NATURE OF LEGISLATIVE INTENT OLPH C

1. Auflage 2012
ISBN: 978-0-19-964699-9
Verlag: ACADEMIC

Buch, Englisch, 320 Seiten, Format (B × H): 161 mm x 240 mm, Gewicht: 643 g

Reihe: Oxford Legal Philosophy

Defends a robust, original account of the nature and purpose of legislative intent, refuting arguments that the concept is illusory and useless
Grounded in contemporary work on the philosophy of group agency, applying general philosophical insights to the specific problems of legislatures in legal and political theory
Clarifies the role of legislative intent in statutory interpretation, a central problem for academic lawyers thinking about the role and democratic legitimacy of the courts

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.

Zielgruppe

Scholars and students of constitutional law, legal philosophy, political science, and political theory.

Autoren/Hrsg.

Ekins

Ekins, Richard

Fachgebiete

• Geisteswissenschaften Philosophie Sozialphilosophie, Politische Philosophie
• Rechtswissenschaften Recht, Rechtswissenschaft Allgemein Rechtsphilosophie, Rechtsethik
• Sozialwissenschaften Politikwissenschaft Politikwissenschaft Allgemein Politische Theorie, Politische Philosophie
• Geisteswissenschaften Philosophie Rechtsphilosophie, Rechtsethik

Inhaltsverzeichnis

I: Introduction
II: The sceptical argument
III: Joint intention and group agency
IV: Legislating without reasoning
V: The legislative function
VI: The legislative assembly
VII: Language use and intention
VIII: The nature of legislative intent
IX: Intentions in interpretation
X: Conclusion

Über Autor(innen)

Ekins, Richard
Richard Ekins, Fellow of St John's College, Oxford

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.

Richard Ekins is Senior Lecturer in Law at the University of Auckland, New Zealand. He previously taught at Balliol College, Oxford 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.