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STATUTES AND STATUTORY INTERPRETATION
*R EKINS, THE NATURE OF LEGISLATIVE INTENT (OUP, 2012),
CHAPTERS 1-*2, 4-9
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:
o 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
-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 allo
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