Objective Intentionalism and Disagreement

(2021) 27(4) Legal Theory 316

53 Pages Posted: 1 Oct 2021 Last revised: 11 Oct 2023

See all articles by David Tan

David Tan

Deakin University, Geelong, Australia - Deakin Law School

Date Written: September 30, 2021

Abstract

Intentionalist theories of legal interpretation are often divided between objectivist and subjectivist variants. The former take an interpretation to be correct depending on what the reasonable/rational lawmaker intended or what the reasonable/rational audience thinks they intended. The latter take an interpretation to be correct where the interpretation is what the speaker actually intended. This paper argues that objectivism faces serious problems as it cannot deal with disagreement: Reasonable and rational people can often disagree as to what the interpretation of a text should be. It also defends subjectivism against criticisms by objectivists.

Keywords: Intentionalism, Legal Interpretation, Purposivism, Objective Intent, Subjective Intent, Legal Epistemology

JEL Classification: K00, K10

Suggested Citation

Tan, David, Objective Intentionalism and Disagreement (September 30, 2021). (2021) 27(4) Legal Theory 316, Available at SSRN: https://ssrn.com/abstract=3934050

David Tan (Contact Author)

Deakin University, Geelong, Australia - Deakin Law School ( email )

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