The Act of Legislating

The legislator acts to legislate when he communicates or promulgates his choice that certain

propositions shall be law. The form of the choice is the statutory text and the act of enactment is thus both the adoption of the text as law and, more importantly, the exercise of authority to introduce into the law the propositions of which the text is a formulation. The choice is an action that is intentional under a means-end description. The choice is that certain propositions shall be introduced into the law and those propositions stand as a complex means to the end of the realization of patterns of coordination that the legislator perceives to be valuable. Thus, the intention on which the legislator acts in legislating is:

I intend that this set of particular legal propositions shall direct citizens to act in certain ways, such that a certain pattern of social coordination is achieved, which shall be a means to the end, or the instantiation, of a state of affairs in the community that I perceive to be valuable.

The propositions that the legislator chooses are part of the plan on which he acts, hence he acts intending that they be law, but they are also the plan on which the members of the community are to act. Thus, the intentional act of the legislator in legislating is to direct others to act on the plan of action that he has chosen for them.

The legislative act should not be understood to be first and foremost a communicative act. It is necessarily communicative, because the act of a legislature is always to choose standards that direct the community and for those standards to be known they must be made known, which is to say,

communicated.25 My point, however, is that the act of legislating is not a communicative act that has consequences for the content of propositions that direct the community. The act of legislating is the act of settling on those propositions. That is, just as law in general is seen most clearly in the bearing it has on—the meaning and force it has in—the deliberation and action of those it addresses, so too the primary reality of legislating is in the practical reasoning and choice of the legislator. The object of choice is not a course of action on which the legislator is himself to act, save as a proposal to

advance, but rather on which the community is to act.26 The legislator aims at the action of others and his method is to formulate and adopt propositions that are fit to be adopted and to direct the practical reasoning of those others. The central aspect of the act of legislating then is the exercise of reason and the response of will, which culminates in the act of choice, adopting a proposition (a series of inter- related propositions) as if for myself.

The legislative acts of the prince should be understood by perceiving his intentions in acting. That is, one only fully understands how the legislator exercises his authority, and how one is directed to act, when one understand the means-end package on which he acts. It may be that in many cases there is no practical need to grasp the reasons for the legislator’s choice or the ends he intended to seek: the propositions he has chosen may seem clear. However, there is often good reason to be unsure what exactly the legislator has chosen or how it fits with other choices. Purposive interpretation, the correction of legislative mistakes, implied repeal, identifying side-constraints on statutory powers, and the practice of recognizing equitable exceptions to statutes all require the interpreter to reflect on the reasoning of the legislator to identify the law. Arguably one person cannot perceive another’s intended meaning without understanding, to some extent, the reasons for which that person acted; I take up this point in detail in chapter 7. I have made no argument yet for how legislative intent should inform statutory interpretation. My claim is just that when a sole legislator acts, one has reason to reflect on his reasoning to understand how he has exercised his authority to direct one to act. As with any individual action, interpretation or assessment of the act’s significance may focus on or discount the remotest intentions, and/or the more proximate intentions (means) and/or the consequences

including foreseen, foreseeable, and ‘direct’ or ‘indirect’ consequences.

The prince acts intending to choose a plan of action for the community, or for an official and/or non-official part of the community. However, his legislative act, and therefore the content of the standards that have been chosen to be law, does not reduce to his full chain of reasoning. This is an important point and is central to my later account of how the many legislators act like a sole

legislator. The prince may choose a certain plan for the community for a variety of further (private) reasons, none of which need be relevant to the content of the plan of action. For example, the

legislator might enact a certain public standard intending either to do his religious duty, to deter citizens from violent rebellion, to attract favourable comment from historians, or to indulge his capricious whims. The legislator may act for these or other ends and yet the public standard may remain the plan of action that is found in the structure of intentions outlined above.

This detachment from the legislator’s full chain of reasoning is possible because the act of legislating, which is intentional as explained, is itself a means to the legislator’s own ends. An individual’s acts are fully explicable only as part of an extended chain of reasoning and yet any particular act may also be understood by reference to the more limited means-end package that it executes. The legislative function requires the legislator to reason and choose, and the plan that he chooses must be capable of coordinating the community to the ends that define the plan. It follows then that the legislative function requires and authorizes the enactment of a plan that is intentional

under a means-end description, but that plan forms only part of, and therefore does not collapse into, the legislator’s full reasoning. Thus, the act of legislating is a public act, in which the legislator’s intentions are determinative—but only those intentions that constitute a publicly sufficient ground and justification for the specific provisions in the enactment. The legislator’s private intentions, and also his hopes and expectations, are relevant to historians seeking to understand him, not to members of the community seeking to ascertain how he has directed them to act.

It would be a mistake then to think that in the central case the legislator’s full chain of reasoning must be understood before the authoritative standard is known. It would be equally mistaken to think that citizens and officials will have to search for extraneous evidence of the legislator’s intent before they know how to act. The legislator has very good reason to ensure that his intentions—up to the level at which they constitute a publicly justified and justifiable set of provisions—are transparent to members of the community. The statute is to coordinate and direct and so its content must be clear and accessible. The legislator knows that the community should (for rule of law reasons and to reduce costs) understand his statutes as sufficient public standards within a technical system, rather than as partial steps in a private game of’guess what was in my mind’. Therefore, the rational legislator who is concerned to ensure conformity between the standard he chose and the statute he enacted will strive to ensure that the text manifests his choice as to what propositions shall be law. And he will accept as consistent with the authority of his office formalization of the interpretive process that deems the legislator’s reasonably apprehended intention to be his actual intention.

The mistaken but common assumption that the legislator’s further, private intentions define the legislative act may perhaps be explained thus. Some princes will certainly have abused their authority by insisting that their legislative acts create as law not those propositions that they chose in legislating but rather those propositions they would rather they had chosen, which better suit their present needs and private plans. The fact of such abuse may suggest the false conclusion that all the prince’s mental states are decisive so that his hopes and expectations for the statute are always to be fulfilled. The analysis above of the partial detachment of the plan from the legislature’s full reasoning shows this conclusion to be unsound. The conclusion is also unsound because it is often impossible to adopt both the legislator’s past choice and his present inclination. Further, an agent’s hope or expectation is not his intention in acting.27 The legislative function requires only an authoritative public choice. A practically reasonable sole legislator will note and insist on the distinction and thus so too will the sound authority structure that exists in the central case of legislative action.