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Legislative Intent and Agency: A Rational Unity Account

journal contribution
posted on 2024-03-06, 05:38 authored by Stephanie Collins, David TanDavid Tan
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 article, 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.

History

Journal

OXFORD JOURNAL OF LEGAL STUDIES

Location

Oxford, Eng.

ISSN

0143-6503

eISSN

1464-3820

Language

English

Publication classification

C1 Refereed article in a scholarly journal

Publisher

OXFORD UNIV PRESS

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