Thursday, November 03, 2005

Can there be a will of a group?

Oxford Jurisprudence Discussion Group: Richard Ekins:

Jeremy Waldron argues that legislative intent cannot exist because the legislative assembly is a group rather than an individual. He suggests we should conceive of legislation by assembly to have been produced by a voting machine rather than chosen by a reasoning agent capable of forming and acting on intentions. I argue instead that the assembly does form and act on intentions, which may be termed the legislative intent. Purposive groups in general form and act on intentions, not by summing the intentions of each member of the group but instead by forming plans of action that coordinate the action of the members of the group to the shared end that defines the group.

This is an interesting topic. Can a group of people intend something? I don't know what I think quite yet. But I tend to disagree. How can two wills intend the same thing? Further, how can 100 people will the same thing? Sure, it is easy to will something as simple as wanting to buy some bottled water. But when it comes to legal codes, where interpretation is often a very grey area, can there be any discernable will at all?

The idea of a legislative intent is, interestingly, derived from the Judeo-Christian idea of rule. The sovereign is the king; the king's will is law. Thus, Aquinas' famous defense of this, de monarchia, idealizes the perfection of king-rule, as a reflection of divine rule. Hobbes and Locke replaced the idea of a king with the idea of a representative king, the leviathan. The point of this historical tracing? To show that the idea originally began with a real will, with real intent. However, the idea seems to be detached, the further the idea has gone away from this "ideal." Why is this ideal...impossible?

Well, I think the idea's idealism goes back to platonic dialogue. In order to find out "knowledge," one can engage in a dialectical conversation with someone. From that, we can find out their "intent." For instance, if person X establishes that there be "freedom of speech" in the law, does that include the freedom to be nude in public, for example? A dialectical conversation can answer that.

How, on the other hand, can a group engage in "dialect" with a court who interprets this. One, could, conceivably pass laws that reflect the will of the legislature on an ad hoc basis. However, with a revolving door of constantly changing members in the legislature, how would this ever be possible? It would be like asking your friend's family to interpret what the intent of something your mother's family once wrote -- often people can be so unaware of the original circumstances surrounding the creation of certain rules that "intent" is actually just guesswork.

Finally, from a person's perspective, how difficult it is to interpret laws taken into consideration "intent." The average person can not possibly discern the intent of laws, let alone a judge. There is too much uncertainty. It is guesswork. All that can be reasonably taken as law is the words that are written. People are bound by intent, not will. That is how the rule of law operates; it operates given the principle that people are not subject to arbitrary will, but by preexisting text.

As Beccaria said,

There is nothing more dangerous than the common axiom, the spirit of the laws is to be considered. To adopt it is to give way to the torrent of opinions. This may seem a paradox to vulgar minds, which are more strongly affected by the smallest disorder before their eyes, than by the most pernicious though remote consequences produced by one false principle adopted by a nation.


Christo said...

Think of a high school clique. Groups formed off of preferences, status and other perhaps subconcious reasons, then as I recall these people would will together to play cards at lunch, to go play outdoor basketball, or to go smoke. And though these groups may have often formed on the basis of performing a future act, just as often I think the will anteceded formation of the group. "Okay, so now what are we going to do?"

The suggestion comes and it either plants and idea that was already there in others or it raises an idea that was already prominent to the foreground. With the concensus and partial consensus of the group ("I won't smoke, but I'll come along"), you've got a group willing something .

As for legislative intent, I think it is as hard for me to figure out what my own intentions are as it is for a group.

Why did I want that bottled water? I simply was thirsty. But I didn't want to show my support for something marked up as much as water is. So why did I do it? Maybe I just wanted to get a break from the person who I was driving with. Maybe I just liked the packaging. Yeah, why the heck am I stuck with this bottle now? I think saying that one was merely thirsty, brings about a fair amount of reduction and historicism. Things akin to a group as to an individual - for the body is made up of many different parts.

Jonathan said...

I think that is a good point you make near the end there: sometimes we don't even know why we will certain things. We just do.

Sometimes, other people are even better at explaining it than we are. But to take our intentions as law, when we don't even really necessarily intend our intentions to be treated as law, I think is not the best way of interpreting law. Your water bottle example is very valid, I think.

To create my own example, people might assume that I bought a poppy around this time merely because of me respecting rememberance day. Yes, that is part of it. But there are also other reasons: I feel it is a bit of a civil duty; I feel like its tradition to wear it ever since I was younger; I feel it is good to remember the war; it was partly inspired by me reading a book on the "banality of evil" and world war II; etc, etc, etc. I sure hope that if some biographer ever tried determining my intentions, he would not assume so little of my intentions if he were trying to explain "why" I wore poppies around rememberance day based on the philosophy of intentionalism.

That said, I think the only way to interpret what I say as reliable is not to fill in the blanks for when I say "etc, etc, etc," - for then that person is not respecting the 'thou', or me. It is a bit like a friend deciding to sell my iPod for me because he knows I am sick of the battery life and hard drive capacity; in a very real sense, he is going beyond what I am saying and is making decisions of my intentions without any actual verbal/or textual directive to do so.

And that is why I think textualism is a stronger philosophy than intentionalism, which I probably adhered to more or less in the past.

Blair said...


Good thoughts my friend. My question is not whether intent can ever be generated in a group; I tend to be more interested in the practical application of using 'legislative intent' when attempting to interpret some statute. Due to the elementary nature of my understanding in the subject, I will resort to a quote (or two):

"Intention of the Legislature is a common but very slipperty phrase, which, popularly understood may signify anything from intention embodeied in positive enactment to SPECULATIVE OPINION as to what the Legislature probably would have meant, although there has been an omission to enact it. In a Court of Law or Equity, what the Legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in epress words or by reasonable and necessary implication." --Solomon v. Solomon & Co., [1897] A.C. 22, 38, per Lord Watson....

...In other words: "...the expression does not refer to actual intent--a composite body can hardly have a singel intent: it is at most only a harmless, of bombastic, way of referring to the social policy behind the Act.... a court's reference to 'the intent of the legislature' is a polite notice that it is about to speculate as to what IT thinks is the social policy of statutes..." --John Willis, "Statute Interpretation In A Nutshell" from Canadian Bar Review Vol.XVI Jan. 1938 No.1, p.4

I don't think that Willis' conviction that a composite group cannot have 'intent' is important; regardless, his portrait that incanting 'legislative intent' when interpreting statutes is nothing more than masking groundless conjecture with beautiful words is absolutely true.

Besides that, a general principle of statutory interpretation (or judicial treatment in general, for that matter) is that a decision should never ground itself in policy (i.e. political will of those in 'power') but in principle (i.e. stare decisis).

Given the frailty of our law--espeicially its helplessness in the presence of whimsical interpretation--I am convinced that that statutory interpretation should be limited to the document itself. Any background justification for a statute should be pursued intra-legally (i.e. stare decisis, etc.) not extra-legally (i.e. political policy).

Jonathan said...

I whole heartedly agree with you Blair. Some people, I think, call this "textualism" - or what the text enacted actually says. That quote in Solomon is really cool. I agree with it.

Thanks for the thoughts.

Christo said...

On the subject of Group Think, you should check this out: