Legislative Intent and the Hard Problem of Content

Law and Philosophy https://doi.org/10.1007/s10982-025-09529-4  The Author(s) 2025 KRZYSZTOF POSLAJKO LEGISLATIVE INTENT AND THE HARD PROBLEM OF CONTENT (Accepted 24 March 2025) ABSTRACT. The general aim of this paper is to investigate how philosophical problems with the notion of mental content affect the debate about legislative intent. Specifically, the aim is to define and criticize the metaphysically strongestpossible version of realism about legislative intent, namely ‘‘Strong Realism’’: the idea that the content of legislation is objectively determined by legislatures that are treated as irreducible group agents that are bearers of corporate, functionalist intentions. Against this view, it will be argued that legislatures are insufficiently complex to meet the criteria of being bearers of sui generis propositional states. The failure of this strong, most idealized version of realism heralds bad news for all forms of realism as trying to weaken this position will not deliver the right theoretical goods. Thus, the failure of Strong Realism gives us reasons to prefer a constructivist/fictionalist approach to legislative intent. I. INTRODUCTION In the context of legal interpretation, it is often assumed that the content of legislation is determined by the intentions of the lawmaking body, typically parliament. In many important court cases, the main question is not the facts of the matter but how to best understand the content of the pertinent legal provisions. This is often resolved by reference to the intention of the lawmaker. One example of such a situation was the oft-discussed United Steelworkers vs. Weber1. Simplifying this complex story for expository purposes, the case dealt with the issue of whether voluntary affirmative action programs violated the Civil Rights act, which forbade discrimination 1 Discussed by, e.g., Damiano Canale. ‘‘Legislative intent, collective intentionality and fictionalism’’. in T. Marques & C. Valentini (eds.) Collective Action, Philosophy and Law. (London: Routledge, 2021), pp. 45–68. K. POSLAJKO ‘‘against any individual because of his race (...)’’. The Supreme Court of America rejected the idea that private companies’ voluntary affirmative action projects violate the provision in question, basing its ruling on the contention that Congress intended the Civil Rights act to help non-white American citizens. In effect, the court rejected the literal interpretation of ‘‘prohibiting all forms of discrimination’’. This particular case is just an example: there have been several perhaps less dramatic and politically charged cases in which courts decided, based on intentions ascribed to parliaments, that the literal meaning of legal provisions should be rejected. Courts naturally assume that the content of legislation is determined not by the literal content of sentences used in legal provisions but by the intentions of lawmaking bodies; however, this leads to an intriguing philosophical question: can a lawmaking body, prototypically a parliament, which is a collective entity, be seen as a source of the content of legislation? Two important theoretical positions have been developed within legal theory and analytic social ontology that might be taken to point to the positive answer. The first is what I will call ‘‘Intentionalism’’: the idea that the aim of legal interpretation is (or even must be) is to detect the actual legislative intentions of legislatures2. The second view is what I will call ‘‘Group Mind Realism’’: the idea that certain organized groups are bearers of intentional states that are irreducible to individual members’ mental states3. 2 For various versions of this view, see: Joseph Raz ‘‘Intention in Interpretation’’ In Between Authority and Interpretation (Oxford University Press 2009), pp. 265–98; Richard Ekins, The nature of legislative intent (Oxford: Oxford UP, 2012); Larry Alexander ‘‘Originalism, the Why and the What’’. Fordham L. Rev. 82 (2013): 539.; Brian Slocum ‘‘Conversational implicatures and legal texts’’ Ratio Juris 29.1 (2016): pp. 23–43. For some recent criticism see, e.g.: Mark Greenberg ‘‘Legislation as Communication? Legal Interpretation and the Study of Linguistic Communication’’. In A. Marmor & S. Soames (eds.), Philosophical foundations of language in the law. (New York: Oxford University Press, 2011); Francesca Poggi ‘‘Against the conversational model of legal interpretation’’. Revus. 40 (2020): pp. 9–26. 3 See, e.g., Christian List and Philip Pettit, Group agency: The possibility, design, and status of corporate agents (Oxford: Oxford UP, 2011); Deborah Tollefsen, Groups as agents (John Wiley & Sons, 2015); Stephanie Collins, Organizations as wrongdoers: From ontology to morality (Oxford: Oxford UP, 2023); Kendy Hess, ‘‘Does the machine need a ghost? Corporate agents as nonconscious Kantian moral agents’’. Journal of the American Philosophical Association 4.1 (2018): pp. 67–86. LEGISLATIVE INTENT CONTENT Merging these two positions is a natural and attractive option: the resulting position claims that parliaments are bearers of sui generis intentional states that serve to determine the content of legal statutes. This view has been alluded to several times, sometimes with critical intent4, and it is sometimes floated in informal philosophical conversation. Most recently, Stephanie Collins and David Tan5 has proposed a theory of legislative intent which explicitly relies on the idea of parliaments being sui generis, irreducible group agents whose intentions determine the content of legislation. On these authors’ view, which they call ‘‘The Rational Unity Account’’, there is something that might be described as a parliament’s point of view, and the aim of legal interpretation is to discover the meaning of legal texts as determined by this point of view. In this paper, I will present what I consider the strongest possible version of realism about legislative intent, combining Intentionalism with Group Mind Realism. This position will be, in certain respects, even more metaphysically committed than the position explicitly adopted by Collins and Tan (for the reasons described below). I will dub it ‘‘Strong Realism’’: a view that parliaments are bearers of sui generis, corporate, functionalist intentional states which serve to determine the content of legal statutes. The idea is to create the most robust/pristine version of non-reductionist realism about legislative content in order to see whether this position withstands scrutiny. I believe that this methodology can be fruitful for two reasons. First, the Strong Realist position might be, despite its heavy-duty metaphysical commitments, something that is implicitly assumed by some realist views. Secondly, and more importantly, I will show that trying to weaken the assumptions of the strong version of realism does not lead to a view which could satisfy the motivations of realists. Thus, showing that Strong Realism is not a viable position 4 (...truncated)