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Private Language, Public Laws: The Central Role of Legislative Intent in Statutory Interpretation

83 Pages Posted: 16 Mar 2004  

Lawrence M. Solan

Brooklyn Law School

Date Written: March 2004

Abstract

For decades, the use of legislative intent in statutory interpretation has been attacked both by conservative and progressive theorists. The more conservative textualists claim that judges should focus not on what members of the legislature had in mind, but rather on what the statute says. Theorists with more liberal political orientations claim that concern about a legislature's intent can inhibit a court from allowing the meaning of a statute to change with the times. All critics argue that the idea of a large group of people having a single intent is incoherent.

Using advances in linguistics, philosophy and the psychology of language, this article defends the use of legislative intent against both camps. It argues that we routinely perceive groups that make decisions deliberately as entities with a single intent, and that we routinely draw inferences about the minds of others in understanding language and conduct. These ways of understanding the world are so firmly embedded in our psychology that we cannot dispense with them even if we try. The article further argues that we cannot avoid concerning ourselves with the intent of a speaker in understanding language, and that arguments to the contrary are based on an illusion about how the human language faculty works. In fact, on many occasions courts use the intent of the legislature to justify approaches to statutory interpretation that are presented as alternatives to legislative intent. Finally, legislative intent is compared to other values that courts may consider important, and a broader perspective on the interpretation of statutes is developed.

Keywords: legislation, statutory interpretation, textualism, legislative intent

JEL Classification: K10

Suggested Citation

Solan, Lawrence M., Private Language, Public Laws: The Central Role of Legislative Intent in Statutory Interpretation (March 2004). Brooklyn Law School, Public Law Research Paper No. 5. Available at SSRN: https://ssrn.com/abstract=515022 or http://dx.doi.org/10.2139/ssrn.515022

Lawrence M. Solan (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States
718-780-0357 (Phone)

HOME PAGE: http://www.brooklaw.edu/lawrence_solan

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