What Does Interprets the Law Mean

There is another type of problem with the collective intention proposal. Suppose a philosopher develops an account of what constitutes the collective intention of a large, diverse group whose attitudes conflict with each other. Let us further suppose that the collective intention of such a group depends in complex ways on how the group would behave in various counterfactual circumstances. (A complication is that what constitutes the collective intention of a group may be relative to the purposes for which the question is asked. But let`s leave this complication aside to reason.) Even if the philosopher`s account is a correct account of the nature of group spirit, another question is whether and to what extent legal interpretation should take into account the intentions set forth in such a report. This question cannot be resolved by philosophy of mind, as the answer depends on clear legal concerns, and the details of the purported representation of collective intentions would obviously be important. When a court interprets a statute, it is guided by the rules of legal interpretation. Judges should first try to find the “clear meaning” of a law solely on the basis of the wording of the law. If the law itself is not clear, a court can use external evidence, in this case legislative history, to interpret what Parliament meant when the law was passed. It is now common for statutes to contain “interpretive clauses” that contain definitions of keywords that often appear in statutes.

These clauses are intended to promote the clear meaning of the law and to prevent the courts from finding their own meaning. In influential textualist and originalist movements, however, there is a discernible tendency to move away from arguments about judicial reluctance and to arguments that textualism and originalism accurately identify the content of the law. Berman (2018, 1340-44) identifies this trend in originalist science. (See also Whittington 2004, 608-09.) As Randy Barnett puts it, “the original meaning of the text provides the law to which legal decision-makers are bound” (Barnett 2013, 417). See, for example, Calabresi and Prakash, 1994, p. 552; Bork, 1990, 5, 144. Similarly, textualists seem to lean towards the idea that “the text is the law.” Scalia, 1997, p. 22; Scalia and Garner, 2012, 383, 397-98; Easterbrook, 2017, page 82 However, as Berman (2018, 1343 n. 60) points out, Scalia has not been consistent in this regard.

See Scalia and Garner 2012, xxviii-xxix, 22, 364-66, 394-96. There is a more fundamental and interesting problem with position – a problem that is endemic in many legal interpretation literatures. The position passes without arguments from an assertion about linguistic meaning to a conclusion about the correct method of legal interpretation. Even if it were true that a text meant what the speaker wanted to say or wanted to communicate, it would not follow that the interpretation of the law should seek the communicative intention of the speaker. Substantive arguments are needed to derive claims of legal interpretation from language and communication claims. As explained above, there are strong reasons to believe that the interpretation of the law is intended to at least contribute a provision to the content of the law. (Even if it seeks the best overall resolution of disputes, given the importance of the law for dispute resolution, it must still determine the contribution of a provision.) The contribution of a provision to the content of the law may differ from its linguistic meaning, such as objective legal intent, the best justification for enacting the provision, or a complex function of several factors. [22] And there are good reasons to reject the general thesis that the legal effect of an action is constituted by the communicative intention of the actor (cf. Greenberg 2011a). Although the pragmatic judge takes into account authoritative texts, he does not consider them as binding, but simply as relevant factors for the best results. Given this emphasis on achieving the best results for the future, pragmatism gives more weight to empirical questions, including the specific facts of controversy and empirical theory – especially economic – than to authoritative texts (Posner 1998, 238-241). The pragmatic attitude towards legal rights and duties is thus comparable to consequentialist approaches to moral rights and duties.

(See entry on consequentialism.) To give a concrete example, United Steelworkers of America v. Weber, the Supreme Court was faced with the question of whether employers could voluntarily introduce subsidy programs under Title VII of the Civil Rights Act of 1964, which states that employers cannot “discriminate.” because of. Race” in recruitment. Some of the legislators who voted in favor of the Civil Rights Act may have intended to create legislation that only prohibits harmful discrimination; Others may have intended to establish a legal rule prohibiting any use of race. Many MPs may have had little or no intention in terms of legal effect – they may have voted in favour of the bill for irrelevant reasons without much thought to the legal effect it would have. Assuming that groups may have collective intentions in certain circumstances, how plausible is it that Congress and the president actually had a common intention on the crucial issue in this case? Many activities are partly defined or constituted by their objectives. Medicine and cooking are examples. Someone who examines people, prescribes medications, and performs surgeries does not practice medicine unless those activities are performed for the proper purpose. Of course, individual doctors may have many other goals, such as making money or impressing people, but such goals are not what the practice of medicine naturally aims. Several competing approaches to legal interpretation, such as intentionalism and textualism, are familiar to jurists and legal theorists. Despite an abundant literature, there is great uncertainty as to the nature of these approaches, that is, exactly the methods they recommend.