#16142 - Statutory Interpretation - Jurisprudence

Chapter 2: Skeptical Arguments

Dworkin thinks that it’s a mistake to think of legislative intent because the legislature is an institution and institutions don’t have minds. Therefore, he would look instead to the state of mind of the voting majority of legislators, as conveyed by their vote (the “speakers’ meaning” view).

Waldron thinks that the authority of legislation lies in the fair procedure it adopts in making decisions on divisive issues that nevertheless need a common solution. Therefore, it is pointless to speak of legislative intent, because it is rather the product of a process rather than an intentional act (the “voting machine model”).

• Dworkin:

  • Legislative intent = aggregate of intentions of the many legislators

  • Law as integrity; “propositions of law are true if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community’s legal practice”

    • Requires judges when deciding common law cases to think of themselves as an author in the chain of common law (“Hercules’ Method”) (interpret decisions of past judges, and to treat legislators as authors earlier in the chain, to interpret legislation in what they believe to be the best way by asking themselves which reading of the statute “shows the political history including and surrounding that statute in the better light”)

      • Objection: ignores important principle that statutes should be read not according to what judges believe would make them best but according to what legislators actually intended

  • Dworkin’s comeback: the practice of legislative interpretation using legislative history can be done in two ways:

    • “speaker’s meaning” view: judges assume that legislation is an instance of communication, and look to legislative history when a statute is not clear on its face to discover the legislators’ state of mind – the proper interpretation must be “conversational rather than constructive interpretation”

      • Speaks of what legislators intended, obscuring the possibility that what matters is what the legislature intended

      • Conflates the question of what legislators (or legislature) intended with what the legislative history reveals about the mental states of particular legislators

        • Problems:

          • Use of legislative history was long forbidden in England (though relaxed in Pepper v Hart) but judges thought they understood the meaning of statutes to be settled by what the legislature intended to communicate anyway

  • Premise to the “speaker meaning” theory is that legislatures cannot have an intention because it is an institution and institutions don’t have minds, and therefore legislative intent is a construction/fiction

  • Interpreters should abandon attempting to aggregate the intentions of actual people into some fictional collective intention

  • Hermes (Dworkin’s main critique):

    • First question: whose intentions to aggregate

      • Do we count the intentions of the minority who voted against it?

      • Do we give more weight to legislators who spoke in debates?

      • Do we count the intentions of officials who helped draft the bill/president who signed it?

      • Do we count private citizens who sought to influence the legislative process (lobby groups)?

      • Do we count the intentions of those subsequent legislators who didn’t repeal the act? (Dworkin says no – legislative intent only counts when the institution of the legislature acts; if it doesn’t, then it didn’t legislate and its intentions are no more relevant than everyone else who didn’t legislate)

    • Dworkin goes on to assume that only the voting majority counts, each counting equally.

      • Indeed it would be difficult to count the minority whose intention would be not to see the statute enacted at all

    • Then decide how to combine the different intentions of the voting majority to form one corporate intent

      • Dworkin thinks this is a political choice about how best to combine the intents

    • Ekins agrees that it’s important to focus on the voting majority, but this focus implies that what is significant is the action of the legislature itself and not the intentions of each member

    • Second question: to decide which of each legislator’s beliefs, attitudes or other mental states constitutes her “intention”

      • Dworkin thinks that legislators attempt to communicate their intention when they vote

      • Ekins disagrees: when one votes, he simply communicates the proposition that he’s for or against the proposal

      • Legislators aren’t like ordinary speakers, because each individual legislator can’t choose whatever words he wants; he can decide whether he wants a particular message to be delivered to the public, the only alternative being to deliver none at all

        • Thus legislators are signatories to a group letter; this shifts the attention away from their intentions individually to the message that they adopt together

        • Thus it is a mistake to think of each legislator as a separate speaker and legislative intent being the aggregate of what they each thought

        • Dworkin says that a legislator is an intermediate between speaker and hearer, but Ekins thinks that he’s both hearer (of bill) and speaker (of statute)

      • Do we count the hopes and expectations of the legislators?

        • Dworkin says no because hopes may reflect selfish ambitions that should have no place in legislative interpretation

• Waldron:

  • Argues that legal philosophers ignore the importance of internal structure of legislatures in adopting a unitary model treating the “legislature” as a single entity

    • Two examples:

      • Raz’s argument that the legislature is not essential to a legal system

      • Hart’s willingness to interchange the Queen-in-Parliament and Rex in explaining the rule of recognition

  • Concludes that legal philosophers are indifferent to how the legislature is structured, assuming it’s like a single individual having a will and acting on intentions

  • Thus there is a need for a theory of legislation that attends to the structure of the assembly

  • Characteristics of the assembly:

    • It has the form that it has to allow it to act authoritatively in the face of disagreement

    • It must follow detailed procedural rules and focus on a specific text, or action will be impossible

    • It needs to employ majority voting to respond fairly to citizens’ views

    • Legislation has authority because it is the product of a respectful way of addressing problems that call for common settlement

  • Waldron thinks that after Dworkin, appealing to legislative intent is surprising, but Ekins thinks that this is conflating legislative history with legislative intent – in England judges understand their duty to be to identify legislative intent, though not by looking to legislative history. Waldron (Ekins suggests) objects even to this.

  • Waldron thinks that because the authority of legislation depends on the fair procedure, it’s best not to think of it as the intentional product of a single law-making author, but to adopt what Ekins calls the “voting machine model”: legislation is the product of an assembly comprising of a large number of persons with different aims, interests etc. which means that each provision is likely a compromise, so that the legislation considered as a whole doesn’t reflect the intentions of any of the legislators who enacted it

  • Waldron thinks that the legislative process could easily be: preliminary discussion identifying all the provocative issues, after which each member casts a vote on each issue into the voting machine, which automatically produces a statute in its final form and promulgates it to the public (as an alternative to third reading)

  • Purpose of the model: to illustrate that a statute can be conceived of as the result of a process, not the choice of an agent

    • Objections:

      • Most modern statutes are much more complicated than the Vehicles in the Park Act that Waldron uses as an example. The number of issues that might arise would make it impractical to debate all at once and vote

      • Ambiguous as to whether the voting happens all at once or sequentially, so that each legislator knows how the previous issues had been decided.

• “Intention” can be used in at least three different ways:

  • Expression of intention for the future

  • Intentional action

  • Intention with which an act...