MTRO. JAVIER LAYNEZ POTISEK

I argued in chapter 2, section IV that Waldron effectively concludes that legislating is intentional in a very limited sense. Specifically, the ‘intention’ on which the legislature acts is just to enact the

conventional meaning of the statutory text, which minimal intention is thus not practically relevant to interpretation. Joseph Raz has set out a more detailed argument to similar effect, as has John Gardner. I argue that legislative action should not be conceived to be action on this minimal intention.

Raz explains what it is to legislate:

To give a person or an institution law-making powers is to entrust them with the power to make law by acts intended to make law … It makes no sense to give any person or body law-making power unless it is assumed that the law they make is the law they intended to make.76

If the law that the legislator made was not what he intended to make, Raz argues, it would have to be the case that he could not predict what law he was making when the legislature enacted a bill. But if this were so, Raz insists that it would be irrelevant who the legislators were and it would not matter that their intentions were reasonable or unreasonable.77 This conclusion, he implies, is absurd. It matters who the legislators are and what their intentions are because this is relevant to the law they make. There is, he asserts, no invisible hand mechanism that produces law as a function of their beliefs or intentions (he refers to Waldron’s early work and asserts that it is implausible).78

Therefore, ‘the very idea of law-making institutions is that of institutions which can make the law they intend to make’.79

Gardner argues that legislating is intentional because those who have legislative authority must respond to reasons:

An agent acts intentionally inasmuch as it does what it does for (what it takes to be) reasons. Those who legislate, whether they are human beings or institutions, must do so for (what they take to be) reasons for and against changing the law. If they did not, there would be no sense in having wider public debates about legislative policy, nor the general elections in which these debates are brought to a head. Such debates make sense only on the footing that whoever it is that legislates will, in legislating, respond to at least some supposed reasons for and against changing the law.80

I agree with this analysis, but it is framed too strongly. Legislators cannot legislate well unless they act for reasons that bear on whether the law should be changed. They may legislate in a secondary, non-focal sense without reasoned choice, perhaps by taking bribes or legislating for private interest or partisan advantage.

Attaching legal consequences to some act is not, Raz says, enough to make it an act of legislating, for that would be like attaching legal significance to some natural event (say an earthquake of a certain severity which creates a public duty to compensate those who suffer loss).81 What this means is that a legislative act must be an act on the intention to legislate, which is to change the law:

The reason is that the notion of legislation imports the idea of entrusting power over the law into the hands of a person or an institution, and this imports entrusting voluntary control over the development of the law, or an aspect of it, into the hands of the legislator. This is inconsistent with the idea of unintentional legislation.82

It follows, Raz argues, that legislating requires knowing what it is that one legislates. For, ‘[o]ne is hardly in control over the development of an aspect of the law, if, while one can change the law by acts intending to do so, one cannot know what change in the law one’s action imports’.83

Raz recognizes an obvious objection: ‘surely legislators do not have to know the precise details of the legislation they vote for’.84 He says—and I agree—that many legislators will know only the

general outline of the legislation and others will have little idea what they are voting for. Gardner puts the point more strongly: legislators ‘invariably had diverse and conflicting intentions concerning its meaning, application, use and effect’ and ‘[i]ndeed, some …possibly had no intentions at all

concerning any of these matters (they were just lobby fodder who voted when they were told to by their political masters)’.85 Therefore, Gardner concludes, that ‘Parliament usually had no intentions concerning the meaning, application, use, or effect of the statute in question’.86 However, all that is necessary for legislating to be the intentional action of the legislature, Raz and Gardner argue, is for legislators to act on the minimal intention to change the law by enacting this text.

Raz describes the minimal intention in this way:

A person is legislating (voting for a Bill, etc.) by expressing an intention that the text of the Bill on which he is voting will—when understood as such texts, when promulgated in the circumstances in which this one is promulgated, are understood in the legal culture of this country—be law.

On this understanding the required intention is very minimal, and does not include any

understanding of the content of the legislation. We can expect that this intention is almost universally present in acts of legislation.87

The minimal intention on which the legislator acts, and which he expresses in legislating, is that the text of the bill on which he votes is to be law. This formulation might appear to explain how it is that all the legislators may share the intention: the legislator in the minority also intends that the text of the bill on which he votes, against which he votes, is to be law, if a majority votes for it. However, Raz does not understand the intention in this way. He says ‘[l]egislators who have the minimal intention know that they are, if they carry the majority, making law, and they know how to find out what law they are making’.88 This implies that only legislators in the voting majority hold the minimal intention and that the legislature only has this intention because the intention shared by the majority is attributed to the institution. That is, the legislature’s intention is likewise minimal. To be clear, the minimal intention is not a choice to enact specific changes to the law for reasons that justify those changes, for if this were the intention it would not be minimal.

Gardner’s account is similar but not identical. He argues that Parliament could adopt rules that settled whose intentions constituted its intentions on ‘the meaning, application, use and effect of a statute’. (He cites Pepper v Hart89 as a hesitant move in this direction.90) But, he says, ‘for the most part there are no such rules, and hence Parliament has no such intentions’ and ‘[s]o Parliament often has no intention to make the particular changes in the law that it ends up making when it legislates’.91 However, the absence of any specific, particular intentions does not entail ‘that, when it legislates, Parliament has no intention to change the law. Worries about the diverse and conflicting intentions of individual parliamentarians do not apply to this more humble intention’.92 The humble intention is just the intention to change the law, which is either identical to the minimal intention or more minimal still, for Raz’s formulation at least refers, explicitly, to the way in which the text will be understood in the legal culture.93 Drunken accidents aside, all legislators intend to participate in Parliament’s act of changing the law, Gardner says. This is true even for legislators in the minority, who intend the law to be changed if Parliament intends this, ‘where what counts as Parliament’s intention depends in turn

on the actions and intentions of at least some members of Parliament’.94 He takes it then that Parliament’s constitution attributes the humble intention held by each member of the majority to Parliament itself, so that Parliament acts intending to change the law.

This approach to explaining how legislators in the minority stand in relation to the legislature’s act is an advance on Raz. The minority members participate in the lawmaking act because they intend the legislature to enact the statute if a majority votes for it. However, it is not the case, I shall argue in chapter 8, section III, that the intention held by each member of the majority is attributed to the legislature. The legislature acts on majority vote, but its intention is different to that of any one legislator.

Raz anticipates the objection that the minimal intention is insufficient to explain how the legislator acts to make the law that he intends to make. He argues in response that ‘[t]he minimal intention is sufficient to preserve the essential idea that legislators have control over the law’, because the

legislators are able to ‘establish the meaning of the text in front of them, when understood as it will be according to their legal culture assuming that it [is] promulgated on that occasion’.95 It follows that legislative intent is not practically relevant to interpretation. The legislators in the majority intend, and so the legislature intends, to enact the bill ‘when understood as it will be according to their legal culture’. The content of the statutory text, in other words, is settled by the conventions of

interpretation that prevail at the time of enactment. This argument, which he contends is consistent with the nature of language use in general,96 ‘requires one to understand the legislation as meaning what the legislators said’.97

After arguing that the minimal intention suffices to explain how legislators retain voluntary control over the content of the law, Raz makes this observation:

Of course, it is hard to imagine a theory of authority which will not demand much more—that is, which will not demand that authorities form an informed judgment about proposed legislation before endorsing it. But it is intelligible that the law would leave the judgment as to what exactly one needs to know and to intend in order to satisfy this moral requirement to the legislators themselves. Therefore, a legal system which does not require any more specific intention is intelligible.98

Raz thus distinguishes the conditions that the law imposes on how legislators legislate from what legislators must do to exercise legitimate authority (‘form an informed judgment…’). He implies that legislators acting on the minimal intention succeed in legislating, but perhaps do not exercise

legitimate authority.