Interpreting Legislative Intent
31 Pages Posted: 23 Sep 2018
Date Written: September 4, 2018
Recent developments in the philosophy of language have revived philosophical interest in statutory interpretation. In particular, they have lent renewed support to the idea that legislative intent is a factual notion that determines the content of statutory law. The aim of this paper is to criticize this kind of ‘factual’ view of legislative intent. To this effect it contrasts it to a more moralized understanding of legislative intent, whereby legislative intent is interpretively construed through the mediation of moral considerations that justify the legislature’s having an impact on our legal rights and duties. It contrasts them at two levels, First, by how they can account for the so-called principle of legality in UK law, a canon of statutory construction, whereby courts should presume that Parliament did not intend to act in violation of human rights unless it specifically says so. Second, by interrogating the underpinnings of the factual and moralized view in political philosophy and more specifically the theory of practical authority. It concludes that the factual view misunderstands the authority assigned legislatures in systems that employ canons of statutory construction like the principle of legality. Because legal authority in those systems is shared between the legislature and courts, the legislature cannot claim to rule by say-so. In order to calculate its contribution to the law, we need to know much more than social facts about what it intended to communicate in enacting a statute.
Keywords: Law and Language, Legal Authority, Principle of Legality, Simms, Statutory Interpretation, Canons of Construction
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