What lies behind one of our most engrained and persistent assumptions in law – the existence of a specific kind of intention underlying the utterances of an authority?
This is the question that Poggi and Ferraro endeavour to address in this article, and in doing so, they embark on a particularly complex enterprise: to show that what we call “legislative intent” is a deception. Or, put differently: that what we call “legislative intent” does not exist as such, but (only) as a construction by the interpreters; and therefore, that the invocation of “legislative intent” to justify a specific interpretation of a legal text is a sleight of hand that conceals – and, even more, amplifies – the interpreters’ discretion. And all this is done under the guise of objective linguistic rationality and strict respect and deference for the legislator’s decisions.
Poggi and Ferraro argue that (1) the “Ideal Legislator Dogma” (ILD) and the “Competent Speaker Model” (CSM) are either “misleading descriptions or prescriptive models” related to legislative intent and the activity of interpretation;” that (2) both of these approaches rely on forms of rationality that are claimed to be value-neutral, but this is not the case; and that (3) there is always an evaluative choice involved in whether to assume the rationality of legislation or ascribe rationality to legislators, and which type of rationality (among several possibles) is assumed or ascribed. (Pp. 464, 479.)
The so-called ILD claims that legal materials should be interpreted on the assumption that an ideal, rational legislator has produced them. (Pp. 466-470.) Poggi and Ferraro critically analyse several approaches to identifying the relevant features of rationality, including the question of whether these approaches are prescriptive or descriptive, and the consequences of conceiving them as one or the other. One such approach is C.S. Nino’s exploration of the “Rational Legislator Thesis”: a prescriptive model in disguise (ideological fiction), assuming that existing legal norms have been enacted by a rational legislator that is singular, perennial, all-comprehensive, cognizant, finalistic, omniscient, omnipotent, just, consistent, exhaustive, economical, operative, and precise. (P. 467; Nino 1989, Pp. 77-95.) This approach, however, has ethical assumptions that are too strong – even behind the apparently more ethically neutral features – and the very choice of considering “legislator” as a “theoretical term” is not ethically or politically neutral. (P. 468.) Another approach is L. Nowak’s conception of the “Rational Legislator quasi-hypothesis”: an assumption in legal scholarship regarding legislative rationality, which cannot be disproven but is used to explain the behaviour of real lawmakers and to provide guidance in ascribing meaning to statutes. (P. 468.) Here, the rational legislator is the one who, in the light of certain knowledge possessed at a certain time, chooses the most effective legal means to achieve their goals. (P. 468.) Even if less ethically committed, as it does not include views on moral acceptability of goals or the plausibility of the premises of legislative reasoning, this second approach is based on some ethical assumptions: for instance, it rules out legislative dishonesty and the possibility of enacting inconsistent directives as means to achieve a certain goal. (P. 470.)
Behind these approaches, warn Poggi and Ferraro, hides one of the strongest and most pervasive assumptions: that legislative communication has a cooperative nature – i.e., that legislative authorities (propose to) engage in cooperative exchanges with other legal authorities and citizens. And this assumption, for the authors, has survived the seeming abandonment of the ILD and returned to us in pog form: behind the so-called CSM.
The CSM claims that legal materials are to be interpreted in accordance with the communicative intention that a speaker who follows all the relevant linguistic rules would have expressed through these materials. (Pp. 471-479.) Its critical analysis is probably the most developed part of the paper, as Poggi and Ferraro again explore several approaches connected to the CSM, whether they are descriptive or prescriptive, and the consequences of subscribing to them.
One of the consequences is that endorsing the “Competent Speaker Thesis” allows for endorsing an intentionalist account of legal meaning, while avoiding giving an answer to the known problems of collective legislative intent. This is possible because, here, legislative intention is the “single intention that a competent speaker would have expressed through the legal provision at hand according to our common linguistic rules” – both semantic and pragmatic, with the latter filling the gaps to determine the full meaning of a provision when the former fails to do so. (Pp. 471-72.) Moreover, this promises us objectivity and neutrality: to correctly interpret a legal text, we need not involve moral or political evaluations, nor invoke the fiction of a godlike legislator. We just need to discover what the single, unique intention of the competent speaker – according to the semantic and pragmatic rules of our language – would have been. (P. 472.)
Is this true, however? Poggi and Ferraro argue that it is false, and the explanation is simple: when dealing with pragmatic rules, which are context-sensitive, the CSM seems to assume that those contexts are fixed, transparent, and thus purely discoverable. However, the authors claim, those contexts are neither fixed nor transparent; and thus – especially within legal settings – they are always a product of contentious reconstruction that involves subjective evaluations of reasonableness by the interpreters (P. 475). This way, not only the same context – as it is opaque – might yield different interpretative results, but different reconstructions of the relevant context might also yield different interpretative results. (Pp. 472-73.)
The authors take care to further analyse different recent proposals that could fit within the CSM, which offer different reconstructions of the intention of the competent speaker. For example, Goldsworthy’s objective communicative theory – which claims that legal texts are interpreted by judges as having only one possible meaning, based on an objective legislative communicative intention – is criticised as being descriptively false and conceptually wrong in several ways (Pp. 473-476), including that this activity neither involves only considerations of linguistic rationality nor usually leads to (only) one possible or plausible meaning; that Goldsworthy’s conception of the relevant context of legal interpretation as involving the whole corpus iuris presupposes a godlike legislator (not just a mere competent speaker) and admits of several ways of coherent reconstruction (so yields several plausible interpretations); and that interpreters never work with the whole corpus iuris but only with a cut of it – one that involves choice and does not guarantee a unique outcome.
Poggi and Ferraro also consider approaches that reconstruct the intention of a competent speaker on grounds beyond linguistic rules and the relevant context, including reference to substantive reasons. Ekins’ proposal of including also the point of legislation, i.e., to realise the common good, has the problem of either not having exact agreement on what the content of the common good is or having those moral considerations fall outside of what can be determined according to relevant linguistic rules or context. (P. 476.) Prescriptive models for identifying the correct interpretative solutions, which include references to reasons that support those solutions or that ground the decision of the legislator (e.g. Macagno, Walton & Sartor 2018, Capone 2016), present the problem of shifting from trying to infer communicative intentions to trying to infer reasons, and also tend to collapse what the speaker intends to communicate with her substantive reasons for communicating it. (P. 477.) Poggi and Ferraro’s point here is strong: “pragmatic rules do not shed light on substantive rationality,” because “they encode a purely linguistic rationality that can coexist with substantive irrationality and even with some forms of logical irrationality”; “through language we can, and do, communicate very different things, including our unreasonableness” (P. 477-78).
Finally, Poggi and Ferraro consider one approach that seemingly reconstructs the intention of the competent speaker in a minimal and neutral way. (Pp. 478-79.) Poscher’s proposal contemplates the assertion that a single communicative intention is ascribed (through procedural voting rules) to each individual legislator, and that such communicative intention is equivalent to the one of a competent and diligent legislator – identifiable through semantic meaning, factual and regulatory context of the text, and context and materials of the legislative process. Poscher recognises that there might be no single answer in this endeavour for several reasons, including semantic indeterminacies, specific idiosyncrasies of particular legal systems and specific legal culture determinations of the shape of the idealised legislator, and that in such cases legal construction comes into play (a normative, heuristic activity aimed at amending regulations, which is justified by appealing to the communicative intentions of a fictive legislator). However, as Poggi and Ferraro point out, this proposal either is unable to give a solution to interpretative problems (when it strictly maintains minimality and neutrality) or it kicks the door open for strong interpretative discretion (when appeals to the fictive legislator, who in the end is nothing but the ideal, rational legislator). (P. 479.)
What is left, then, after lifting the veil of legislative intent? Maybe the bare bones of a reality that sometimes we – for an array of reasons, ranging from prudential to moral – tend to ignore, dismiss, or forget. One of these reasons might be a strong support of some substantive legitimacy principle of authority, such as democracy, that requires us to normatively support a particular division of normative labour among legal authorities, which might not be descriptively reflected in the world. Another reason, one Poggi and Ferraro point out in the very end, is the fact that our legal systems are such a heterogeneous, disjointed, and ill-fitted body of texts (from different origins, times, and ends) that, in order to be useful, it needs to be interpreted as if it were in some sense rational. (P. 481.) However, even if it might be more comfortable, we may be losing too much by choosing to avoid looking through the veil of legislative intent. We lose the clarity that legislative rationality is not something there to be “discovered,” but it is always constructed, and that it is best conceived of as the product of a legal culture – of the combined and conflicting efforts of jurists, lawyers, judges, and legal authorities. We also lose the clarity that the type of interpretative discretion that we may want to eliminate hides itself behind dogmas or models that postulate one rational or competent speaker or reader with one single, identifiable, purely discoverable intention. And, with losing the clarity that all of this involves choices and thus value judgements, we lose the capacity and opportunity to require that every single decision made by interpreters be publicly and adequately justified without resorting to fictions of neutrality and discovery, behind which value judgements and ascriptions hide untouched and unseen.
Poggi and Ferraro are naturally far from the first to point this out – and I surely hope they will not be the last. Moreover, several relevant questions have been seemingly left out here from their considerations, such as whether the rationality assumption could even go further than written law, how all approaches (including theirs) reflect or not a particular theory of authority and division of normative labour, in which sense and to what extent – and to whom – law is useless if rationality (at least of legislation) is not assumed, the relationship between assuming the rationality of a legislator or of law, and so on. However, their article is a refreshing and sharp reminder of the theoretical importance of critically and openly discussing even our more ingrained assumptions, as well as the practical consequences and risks of failing to do so, or of failing to separate our prescriptive commitments from our descriptive assessment of reality.
