Three Types of Intention in Lawmaking
21 Pages Posted: 2 Feb 2015
Date Written: January 22, 2015
The nature of legislative intent remains a subject of vigourous debate in legal theory. A conspicuous feature of the debate is that its participants perceive in many different ways. Some see it as an intention concerning the meaning of the words used in legal text, others as a will to enact the law, others still as a set of expectations regarding the law’s impact on reality. In this paper I identify the reason for such diverse perceptions: namely, that three intentions are involved in lawmaking, not one.
The three intentions correspond to three aspects of a speech act: locutionary, illocutionary and perlocutionary. The first, the locutionary intention, roughly resembles the semantic intention, i.e. the intention to utter words with specific sense and reference. The illocutionary intention is the intention to perform a specific act by uttering those words, e.g. giving an order or making a promise. The perlocutionary intention is the intention to change reality, i.e. influencing the behaviour of other people by uttering words. The dominant approach in legal theory holds that legislative intent is a broadly semantic (locutionary) one. A closer examination shows that it is fact an illocutionary one.
The paper starts with a summary of traditional approaches to legislative intent, showing the extreme diversity of the perspectives involved. In the second part, I propose a new theoretical framework, based on three types of intentions; first, I identify these three intentions; then I look at the different roles and actors in the legislative process and allocate intentions to them. In the final part of the paper, I draw the consequences for legal interpretation of this more theorised model of legislative intent. In the conclusion, I show that the proposed model explains the theoretical conflations, reconciles allegedly competing postions and opens new perspectives for the debate on legislative intent.
Keywords: legislative intent, legal interpretation, speech acts, legislation, lawmaker
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