MEDIDORES DE ESPESORES

I term Waldron’s own understanding of the legislative process ‘the voting machine model’. He

outlines it in section 3 of chapter 6, which is entitled ‘Unintentional Legislation’. Waldron imagines a possible statutory text:

Vehicles in the Park Act 1993. (1) With the exception of bicycles and ambulances, no vehicle shall be permitted to enter any

state or municipal park. (2) Any person who brings a vehicle into a state or municipal park shall be liable to a fine of not more than $100.89

It is, he says, deeply confused to think that interpreting this text must be ‘a matter of determining what the intentional being who produced it meant’.90 The reason that it is a mistake to think that modern legislation can be read to identify what its maker meant is that:

Legislation … is the product of a multi-member assembly, comprising a large number of persons of quite radically differing aims, interest, and backgrounds. Under these conditions, the specific provisions of a particular statute are often the result of compromise and line-item voting. It is perfectly possible, for example, that our imagined Vehicles in the Park Act, considered as a whole, does not reflect the purposes or intentions of any of the legislators who together enacted it.91

Imagine that the assembly that enacted the Vehicles in the Park Act formed three factions and that only the first section was controversial. Let the exception for bicycles be B, the exception for ambulances A, and the inclusion of state parks S. Faction one might have voted for A and B and against S; faction two, for B and S and against A; faction three, for A and S and against B. Thus, ‘[s]uccesive majority voting on these various questions would produce our familiar statute—B& A&S—even though that combination corresponded to nobody’s preference’.92

There is an obvious rejoinder, which Waldron anticipates. The rejoinder is that after various possible amendments have been voted on, that is after the machine has determined the content of the bill, legislators will vote on the overall package—so ‘even if they initially disagree, the enacted statute will at least reflect the intentions of a majority at that last stage, taking into account their

awareness of what was politically possible’.93 Waldron’s response is to claim that this final reading ‘is purely an artefact of our particular parliamentary procedures’.94 The legislative process, he

asserts, could just as easily take the following form:

There might be a preliminary discussion during which all the issues likely to provoke a division were identified. General debate would ensue, at the conclusion of which members would feed their votes on the various issues into a machine which would produce the statute in its final form on the basis of the voting and promulgate it automatically to judges, officials, and the population at large.95

This voting machine, he says, is like Wollheim’s democracy machine.96 However, Waldron does not explain in much detail how the machine is to work.

process, like a machine, rather than the choice of an agent.97 The legislators may each have reasons for their votes and intentions beyond the text of the statute, but the statute is just the text that survives the vote. The machine aggregates votes on texts, not intentions or reasons.98 That is, the legislators may each have complex, coherent plans about what should be done, but the legislature ‘acts’ by aggregating those individual plans into a corporate act, the content of which is exhausted by the strict meaning of the statutory text. The contributions to the machine are intentional, because the legislators are persons, and the machine is intentionally designed. The legislators and the programmers of the machine share an ‘expectation about how the machine’s output—whatever it is—will be understood by those to whom it is sent: they will read it as a set of English sentences’.99 It follows, Waldron argues, that statutory provisions may have a fixed meaning without reference to the intentions of any particular language user.100 Therefore, the thought that legislation is in some sense a speech-act should not, Waldron maintains, tempt us to think that the assembly has to form intentions to legislate. The machine takes advantage of the stability of language in that the particular texts it produces have linguistic meaning despite the fact that there is no language user.101

It is not clear whether Waldron means that ‘preliminary discussion’ begins with an otherwise complete legislative proposal already before the legislators for consideration.102 This is significant because it is not clear whether the machine is intended to form entire proposals or to be a means to amend otherwise complete proposals. The former reading is a better fit with Waldron’s concern, which is to show how legislation may be an indirect function of the choices of individual legislators, without being in any important sense the object of choice of a reasoning person (as an already formed proposal would be, to some extent at least). However, this would make the model more artificial, for Waldron is well aware that proposals are ordinarily drafted in detail in advance of legislative

deliberation.103

The legislators are to identify issues, debate and then vote. It is not clear what it means to identify ‘issues likely to provoke a division’.104 An issue may mean part of an existing proposal that is

controversial or it may mean a possible amendment to that proposal. Alternatively, an issue could be a specific point that is relevant to a general question (say, public taxation) that is to be considered. The legislators are to debate and then vote on these issues and this implies that the issue is a textual formulation that if adopted on majority vote will form part of a statute. That is, what are at issue are the possible provisions (what will be sections if enacted) that the legislators wish to consider. Waldron does not discuss whether all legislators are free to contribute possible provisions or if agenda-setters control who may contribute.

Much later in his argument, Waldron says that he has ‘assumed implicitly that any bills [the legislature] considered and any statutes it enacted would be complex in their contents’.105 This assumption does not clearly inform his presentation of the voting machine. The only example that Waldron uses is the Vehicles in the Park Act 1993, which is a two-section statute.106 The issue for the legislators, he stipulates, was just the content of the first section. (I argue in chapter 4 that the machine cannot explain how legislators reason and act even in this simple example.) Most modern statutes are vastly more complex than this simple example. The Finance Act 2008 (UK) for example has 166 sections and 46 Schedules. There are of course a great many subsections and the number of issues, in Waldron’s sense, that arise in the various sections and subsections must be very high indeed. If the proposal is formed in the assembly then there may well be thousands of issues (every section,

may arise make it impractical either to form proposals on the floor or to debate all the issues at once and then to vote. It also makes it impractical to debate all the issues at once and then to vote.

Legislative time is a scarce resource, which the legislative process is structured to use efficiently.107 The most important ambiguity in the model is whether the vote is (a) simultaneous, so that the legislator enters his votes on the five or fifty issues into the machine all at once, or (b) sequential, so that the legislator votes on each issue one after another, knowing how the earlier issues were decided. The extract set out above implies that the vote is to be simultaneous.108 However, in his earlier

discussion of the Vehicles in the Park Act, Waldron says that ‘[s]uccessive majority voting on these various questions would produce our familiar statute’.109 He also says that the evidence for the

model’s explanatory force is ‘the large part that is played by compromise, logrolling, and last-minute amendments in contemporary legislation’.110 Both remarks suggest sequential voting.

It may be that if forced to settle the ambiguity he would opt for sequential voting. Yet there is also reason to think Waldron might opt for simultaneous voting: this would limit tactical voting and focus the legislator on whether he should support each particular provision. Waldron’s arguments that the output of the machine is authoritative, which I discuss in chapter 4, section IV, assume that each legislator responds in this focused way.

If the voting machine model is sound, the legislature acts without forming intentions and legislation cannot rightly be understood to be the coherent choices of an intentional agent. Instead, statutes are sets of isolated provisions, having no purpose beyond what follows from the conventional meaning of the text, and not having been intended for a certain end. Waldron accepts that the model is to some extent artificial, but maintains that it captures the nature of the legislative process:

Of course, this is just a model: in the real world, statutes are never produced exactly like that. But also, in the real world, statutes are never produced exactly as the product of one person’s coherent intention. The interesting question is which picture is more helpful for our thinking about the intentionality of statutes under modern legislative conditions. Given the large part that is played by compromise, logrolling, and last-minute amendments in contemporary legislation, my money is on the machine.111

Waldron does not doubt that the legislature acts. He follows Radin in saying that it ‘is the job of a legislature to pass statutes not form intentions’,112 and takes the legislature’s action, as the term Act of Parliament entails, to be the enactment of a statute. What Waldron insists, however, is that it is a

mistake to take ‘the language of agency’ to entail that there must be a legislative equivalent to the mental states of individual agents.113 He argues that just as it is odd to think that the legislature has motives, so it is unnecessary to think that the legislature has intentions. That is, he asserts that the legislative act is an artificial act constituted by the intentional acts of legislators but not itself the product of any person’s intention.114 This move is not convincing. Motives are abstract or distant intended ends and so the question of whether the legislature has motives is a subset of the question of what intentions it has.115 Waldron is quite likely right that there is no absolute equivalence between artificial and natural agents (artificial agents, I suggest, do not have emotions), but it remains an open question precisely what an artificial agent needs to intend, if anything, if it is to act at all or, more importantly, if it is to act well. The merit of his conception of the legislative process as a voting machine turns on the extent to which it suffices to explain (reasonable) legislative action.

Later in the chapter Waldron helpfully restates his understanding of legislative action. He says again that the defining structure of the legislative assembly—its large and diverse membership, its reliance on formal procedures, and the complexity of the statutes it enacts—serves ‘to undermine any talk about “the intentions of the author” of a statute’. He then goes on, however, to say that ‘[t]o the

extent there is one author, it is the legislature … as distinct from the individual members’.116 The legislature’s intentions as author are exhausted by ‘the meanings embodied conventionally in the text of the statute’ and ‘[t]here simply is no fact of the matter concerning a legislature’s intentions apart from the formal specification of the act it has performed’.117 It seems then that the legislature does act with an intention, or at least its ‘action [is] under a certain intentional description’, namely ‘that such- and-such words were used with their conventional English meaning. That, however, is all there is to

say about the institution’s intentions’.118 Thus, the legislature’s act is defined by a certain intention, but the intention is very thin.

Waldron’s position is that while the assembly needs a rule for aggregating votes if it is to act (majority vote), ‘it does not need, in addition, any rule for combining their thoughts, hopes and understandings into something that would count as the thoughts or purposes of the institution’.119 He says that ‘[i]t is one decision we need, not necessarily one personality, and so it is not merely as a matter of logic that we should refrain from attributing mental states to the legislature’.120 And ‘[w]hat the decision is—what we have done—is the text of the statute as determined by the institution’s

procedures’.121 The legislators do not intentionally make decisions, if Waldron is right. Instead the text that emerges from the series of votes is what they have done. Hence ‘a legislator interested to know what he and his colleagues “decided”’ will, like the citizen or judge, just read the text that the machine produces.122 Waldron concludes that the function and structure of the legislature entail that the legislature has no intention apart from the conventional meaning of the enacted text. It follows that interpreters should not read statutes as if they were the objects of any person’s coherent, intentional choice.123 If a court imposes coherence on the statutory text, ‘it is slighting the political process by virtue of which alone the statute has its legitimacy’.124

This account of legislative action is plausible and important. It denies that the legislature is an intentional agent, instead conceiving of the acts of the legislature as the unintentional output of the intentional system that is the legislative process. Waldron adopts, to my mind, the right approach to studying the legislature. He reflects on the objects for which a well-formed legislature acts and the capacities it exercises to that end. And he reflects first and foremost on what it is that the legislators do together, rather than, as Dworkin does, starting with the question of how interpreters should consider statutes. Further, he attends to some of the problems that legislators face in acting together and hence grounds his theory of legislative action in plausible solutions to those problems.

The live question is whether it is true that the assembly has no capacity to form and act on intentions that go beyond the bare intention to enact the words of the statutory text with their conventional meaning. The argument for this limited conception of legislative action turns on an assumption about how groups act, namely that what the group does is exhausted by formal rules, and an assumption about the nature of language use. It also turns on the truth of Waldron’s conclusions that the voting machine model is a sound account of the nature of the legislative process and that the

machine is likely to produce reasonable legislation, such that the legislature may be said to exercise lawmaking authority. In the chapters that follow, I question each of these points, outlining my own theory that the legislators act jointly like a single legislator. This theory—a form of the unitary model —I aim to ground in the structure by which a group legislates, to which Waldron rightly draws

attention.