Legislative Intent and Agency: A Rational Unity Account

Forthcoming in the Oxford Journal of Legal Studies

39 Pages Posted: 19 Feb 2024

See all articles by Stephanie Collins

Stephanie Collins

Monash University - Department of Philosophy

David Tan

Deakin University, Geelong, Australia - Deakin Law School

Date Written: January 19, 2024

Abstract

Realist theories of legislative intent can be divided between aggregative theories (on which legislative intent is what some proportion of legislators intend) and common intent theories (on which legislative intent is a unanimous intent among legislators). In this paper, we advance and defend an alternative realist conception of legislative intent: the Rational Unity Account. On this account, the legislature is an agent with a distinctive ‘rational point of view’—a concept we adopt from social ontology. The legislature’s rational point of view is shaped by its procedures and structures, in ways not determined by either a common intention held by legislators or an aggregation of the intentions of legislators. We explain how our view improves on existing accounts. We then apply it to three cases to demonstrate its implications for legal interpretation. Importantly, on the proposed account, legislative intent can depart from what individual legislators think or know.

Keywords: Legislative intent, intentionalism, group agency, legal interpretation

JEL Classification: K00, K10, K40,

Suggested Citation

Collins, Stephanie and Tan, David, Legislative Intent and Agency: A Rational Unity Account (January 19, 2024). Forthcoming in the Oxford Journal of Legal Studies, Available at SSRN: https://ssrn.com/abstract=4699750

Stephanie Collins

Monash University - Department of Philosophy ( email )

Victoria
Australia

David Tan (Contact Author)

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

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
99
Abstract Views
404
Rank
572,623
PlumX Metrics