Publication details
Fiction of (Rational) Legislator and Its Intentions?
| Authors | |
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| Year of publication | 2025 |
| Type | Appeared in Conference without Proceedings |
| MU Faculty or unit | |
| Citation | |
| Description | One of the most important moments when law is linked to reality is its interpretation and application. In the context of authoritative interpretation and application of law, we can find that interpreters often refer to the legislator´s intentions. In legal scholarship, then, we associate intentionalism with the search for the intentions of the lawmaker and what he actually want to communicate through the text of the normative legal act. Proponents of this position argue that what is most important is what the legislator intended to communicate through the text of the normative legal act, what his intentions were. Those are arguments against intentionalism and the search of legislator´s intention which appear in jurisprudence. Even Ronald Dworkin pointed out that we cannot speak of the legislator as some separately existing entity that might have its own intentions (Dworkin). It is argued that many members of the legislature either do not have an intention that is relevant to the text of the enacted legislation (for example, they vote because someone told them to, or they do not understand what is being voted on at all), or they have different intentions (for example, someone is lobbying) where it is not certain which ones are the ones relevant to determining what was the intention of the plural entity (the legislator). This is why many argue that the legislator is a fiction and it is meaningless to speak of its intentions. These are all serious objections, of course, where the burden is on those who want to look for the intent of the lawmaker to show how this is supposed to happen. I want to suggest that intentionalists might answer those questions by using the insights of analytic philosophy, specifically social ontology. Social ontology is the study of the nature and properties of the social world. It is concerned with analyzing things in the world that arise from social interaction, and with explaining what makes them the things they are—that is, how the social world is “constructed.” |
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