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The Nature of Legislative Intent
     

The Nature of Legislative Intent

by Richard Ekins
 

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Are legislatures able to form and act on intentions? The question matters because the interpretation of statutes is often thought to centre on the intention of the legislature and because the way in which the legislature acts is relevant to the authority it does or should enjoy. Many scholars argue that legislative intent is a fiction: the legislative assembly

Overview

Are legislatures able to form and act on intentions? The question matters because the interpretation of statutes is often thought to centre on the intention of the legislature and because the way in which the legislature acts is relevant to the authority it does or should enjoy. Many scholars argue that legislative intent is a fiction: the legislative assembly is a large, diverse group rather than a single person and it seems a mystery how the intentions of the individual legislators might somehow add up to a coherent group intention.

This book argues that in enacting a statute the well-formed legislature forms and acts on a detailed intention, which is the legislative intent. The foundation of the argument is an analysis of how the members of purposive groups act together by way of common plans, sometimes forming complex group agents. The book extends this analysis to the legislature, considering what it is to legislate and how members of the assembly cooperate to legislate. The book argues that to legislate is to choose to change the law for some reason: the well-formed legislature has the capacity to consider what should be done and to act to that end. This argument is supported by reflection on the centrality of intention to the nature of language use. The book then explains in detail how members of the assembly form and act on joint intentions, which do not reduce to the intentions of each member, before outlining some implications of this account for the practice of statutory interpretation.

Developing a robust account of the nature and importance of legislative intention, the book represents a significant contribution to the literature on deliberative democracy that will be of interest to all those thinking about legal interpretation and constitutional theory.

Oxford Legal Philosophy publishes the best new work in philosophically-oriented legal theory. It commissions and solicits monographs in all branches of the subject, including works on philosophical issues in all areas of public and private law, and in the national, transnational, and international realms; studies of the nature of law, legal institutions, and legal reasoning; treatments of problems in political morality as they bear on law; and explorations in the nature and development of legal philosophy itself. The series represents diverse traditions of thought but always with an emphasis on rigour and originality. It sets the standard in contemporary jurisprudence.

Editorial Reviews

From the Publisher
"In this lucid and wide-ranging book, Richard Ekins offers a robust and original defense of an intent-based approach to statutory interpretation." -Gregory Bassham, Ethics

"The strength of Ekins' book is his account of the rationality of the legislature, and in particular, the institutional features he argues enable and exhibit the exercise of this rationality." -Maksymilian Del Mar, The Cambridge Law Journal

"... a complex and thought-provoking examination of the concept of legislative intent ... this book provides some invaluable insights into the nature of group agency and the philosophy of language, and seeks to give a greater understanding of the function of the legislature within contemporary constitutional thought." -Matthew Burton, Public Law

"Ekins provides a comprehensive, thoughtful and sophisticated argument for the inferential process of interpretation that he advocates. Its subject matter makes it essential reading for those engaged in or studying the legislative process and it must be of interest to all those interested in statutory interpretation." -Christopher Walshaw, New Zealand Law Journal

"[The Nature of Legislative Intent] will be essential reading on this topic, which is central to the theory and practice of law throughout the world...it will set the agenda for future theoretical enquiry." -Jeffrey Goldsworthy, Oxford Journal of Legal Studies

"The Nature of Legislative Intent contains a wealth of sound, innovative arguments. It is required reading for anyone who cares about legislative intent." -Jeffrey Brand, Notre Dame Philosophical Reviews

"Ekins's book gives a compelling account that enriches the current discussion on legislative intent and challenges our understanding of its role in the exercise of statutory interpretation. This is nothing short of impressive." -Alice Wang, Auckland University Law Review

"Ekins' book is analytically rigorous, and provides a sustained and consistent argument...the full-length justification and philosophical underpinning for the doctrine of legislative intent remains a valuable addition to the literature regarding legislation, concerning as it does a concept which is regularly employed by the courts." -Alistair Mills, The Edinburgh Law Review

"Ekins skillfully defends the ancient idea that a legislature can intend to change law, and the job of courts is to give effect to that intent." -Adam J. MacLeod, Liberty Lawsite

"It offers a well-informed account of legislative practices from the perspective of natural law, and relates to the idea of legislative intent to the core concepts of this tradition of thought. It is a welcome addition to the corpus of natural law philosophy, and a new point of reference for debates in statutory interpretation." -Arie Rosen, Public Law Review

"This is a very important book, not only for the purpose of statutory interpretation. It is important because it adds a dimension to legal theory as well as constitutional analysis in its critique of leading modern theorists." -Mary Hemmings, Canadian Law Library Review

"Professor Ekins' argument for the nature of legislative intent moves the scholarly debates in an important new direction ... In stating the central case of the well-formed legislature, he has meticulously crafted an argument that builds on an unusually broad array of critical insights from several branches of philosophy, political science, and economics ... Such a tour de force should stand as an enduring example to modern scholars of the rarely fulfilled promise offered by making a deep commitment to intellectual inquiry unfettered by artificial disciplinary barriers." -Donald L. Drakeman, Cornell Journal of Law and Public Policy

"The Nature of Legislative Intent is an in-depth study of legislatures that offers thoughtful solutions to age-old jurisprudential quandaries. It also puts much needed philosophical sophistication at the service of constitutional law and legal interpretation more generally. This is a book driven by the insight that legislative intent is a concept connecting the inquiry about how legislatures are constituted, and how they act and speak, with the inquiry about how they change the law." -Dimitrios Kyritsis, The Modern Law Review

Product Details

ISBN-13:
9780199646999
Publisher:
Oxford University Press
Publication date:
12/12/2012
Pages:
288
Product dimensions:
6.30(w) x 9.30(h) x 1.10(d)

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Meet the Author

Richard Ekins is a Fellow of St John's College, Oxford. He previously taught at Balliol College, Oxford and the Faculty of Law at the University of Auckland and served as a Judge's Clerk at the High Court of New Zealand at Auckland. He is the editor of Modern Challenges to the Rule of Law (2011) and has published articles in The Law Quarterly Review, Ratio Juris, New Zealand Law Review, Public Law and the Australian Journal of Legal Philosophy. His work has been cited in the House of Lords and in the superior courts and Parliament of New Zealand.

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