Linda Tvrdíková: Fiction of (Rational) Legislator and Its Intentions?

ABSTRACT: One of the most important moments when law is linked to reality is its interpretation and application. In the context of authoritative interpretation and application of law, we can find that interpreters often refer to the legislator´s intentions (the so-called subjective teleological method of interpretation, see R. Alexy). In legal scholarship, then, we associate intentionalism with the search for the intentions of the lawmaker and what he actually wanted to communicate through the text of the normative legal act. Proponents of this position argue that what is most important is what the legislator intended to communicate through the text of the normative legal act, what his intentions were. Intentionalists face criticism where the main arguments are that we cannot speak of the legislator as some separately existing entity that might have its own intentions (Dworkin). It is argued that many members of the legislature either do not have an intention that is relevant to the text of the enacting legislation (for example, they vote because someone told them to, or they do not understand what is being voted on at all), or they have different intentions (for example, someone is lobbying) where it is not certain which ones are the ones relevant to determining what was the intention of the plural entity (the legislator). And how are we to determine what the intent of the legislator is. This is why many argue that the legislator is a fiction and it is meaningless to speak of its intentions.

In this lecture we will try to answer those questions by using the insights of analytic philosophy, specifically social ontology, which addresses, among other things, the existence of plural subjects and whether they can have any intentions. Within social ontology we can encounter different approaches, where there are purely individualistic approaches (M. Bratman) and purely collectivistic approaches (M. Gilbert), with some philosophers trying to find a position somewhere in between (J. Searle). We will examine which of these make sense in relation to the discussion regarding the legislator and its intentions. In doing so, we will either refute the thesis that the legislator and his intentions is a mere fiction that arises in the mind of the interpreter based on what he considers to be a rational solution or whether this claim can somehow be confirmed and defended in terms of how the legislator’s intent arises and how it relates to the intent of individual members of the legislature.

Answers to these questions can help us clarify what materials make sense to draw on in interpreting law and why, and what interpretive methods make sense in the context of interpreting law. These are fundamental questions of legal methodology that have or should have an impact on the practice of interpreting and applying law itself.