Intelligible Legislating

I argue that a theory of legislating must explain how, or if, legislating is an exercise of authority. The legislature may legislate unreasonably as well as reasonably. My theory of legislative action aims first to explain reasonable legislating and then to understand unreasonable legislating as a distortion of that which is reasonable. Raz aims to explain the concept of legislating itself. I argue that his theory of legislative action entails that legislating cannot intelligibly be thought to be an exercise of

legitimate authority, and so also lacks de facto authority. Raz would agree, I trust, that a theory of legislative action that cannot explain how legislators might intelligibly be thought to exercise legitimate authority must be unsound.

A person who exercises legitimate authority responds to reasons by reasoning about what should be done and directing how lawmaking subjects are to act. My argument is that if the legislature acts

only on the minimal intention, it does not respond to reason and so does not exercise legitimate authority. The legislature’s intention is just to change the law by enacting this text, which is to be understood by reference to prevailing convention. The minimal intention argument is precisely that the legislature need not intend to change the law in any specific way for any particular reasons. Thus, the legislature has not acted to make it the case that the law will be changed in the way that its act is taken to change it, and it also has not acted for reasons that would justify those changes. If this is what the legislature does, then I say that it is not an authority: it does not respond to reasons with reasoned action. The legislature acts, and it acts for an end—making the conventional meaning of the text the law—but the end lacks the precision for which an authority acts and it is not supported by reason.

It is not rational to intend just to change the law in general, in the same way that it is not rational for an author to intend to convey some meaning in general. Rational lawmaking is action to change the law in specific ways for (what the legislature takes to be) good reasons. Gardner makes this argument himself when he explains what it is to act intentionally and when he argues that the institution of the legislature must respond to reasons for changing the law. On the logic of his account, which I endorse to this extent, the legislature does not even act intentionally if it acts only on the humble/minimal intention to change the law.

The legal norms that a legislative text expresses are norms because the legislature acted to make them law. That is, the point of the act was to introduce these norms. If the legislature acts only on the humble intention, then the norms that interpreters ‘find’ in the legislative text are not legislated law: they are not legal norms that one agent, the legislature, has intentionally and expressly made. Instead, the legislature’s act would be the limited, irrational act of adopting texts, which have legal effects.

Raz might respond that his argument is that action on the minimal intention suffices to legislate, but that to legislate reasonably requires more detailed intentions. However, Raz’s assumption that the intention of the legislature just is the intention held by each legislator in the majority makes it impossible, as a general matter, for the legislature to change the law in specific ways for specific reasons.

Not all individual legislators know or understand the full detail of the statutory text they vote to enact; they also do not grasp fully the reasons for the changes in the law the text introduces. It is a mistake to think that this ignorance is necessarily unreasonable. It may be unreasonable and certainly legislators who never read bills or think about what should be done are poor legislators. However, the modern legislative agenda is complex and legislators rightly focus on particular problems and statutory responses. What this means is that the legislators have to rely on their peers, among others, to help monitor the contents of bills. The committee structure helps legislators act reasonably despite the limitations on their time and legislators also form factions and parties in part to enable close scrutiny and intelligent responses to many bills. Thus, it is not at all surprising that particular

legislators, such as those who drafted, sponsored, or debated bills, may be better informed than others about the detailed content of and reasons for bills. It will almost never be the case that all the

legislators in the majority will share the same detailed knowledge as those particular legislators (some of whom may be in the minority).

For Raz then, as for Gardner, it has to follow that the legislature almost never acts on more detailed intentions, which identify specifically the changes to the law that the statute is to make and the reasons for those changes. That is, the legislature cannot do more than act on the minimal intention. It is thus impossible for the legislature to exercise legitimate authority and so it is unintelligible for it to be thought to have authority. This conclusion cannot be right. Raz and Gardner are driven to it,

unnecessarily, by the unsound assumption that the legislature’s intention must be an intention held by each legislator (or each legislator in the majority). I say that the legislature is a group and so its action must be grounded in the intentions of its members, but this does not mean that its intention reduces to intentions held by each legislator that are attributed to it. The legislature acts on intentions that are formed in part by, but also do not reduce to, the intelligent activity of particular legislators. And ordinary, relatively ignorant legislators participate in the legislature’s act, which is an act on a joint intention that is more detailed than their own intention.

Imagine that only one person exercises legislative authority. This legislator could not exercise his authority, I argue, by acting just on the minimal intention. The legislator would not be responding to reasons; he would not be acting to make the law that he intended to make. Instead, he would be acting to make as law whatever legal effects, if any, follow from the conventional meaning of the text, which by hypothesis he does not know and has not chosen to bring about. If he did know what the text meant (bracketing for now the ground of that meaning) and acted to introduce the changes that it expresses, for reasons that seemed to him good, his intention would not be minimal. The legislator who acts only on the minimal intention would not intend to make whatever specific legal changes his act is taken to make. His act is a failure to legislate in the focal sense. One legislates in the focal sense by making a specific, complex choice in response to reasons, which choice is expressed in the text. If one person cannot exercise legislative authority by acting only on the minimal intention, it follows that a group of persons is similarly incapable. The legislature must act on intentions that are more detailed than the minimal intention if it is to legislate.

One might respond to my argument by contending that while the legislature acts only on the

minimal intention, the legislators respond to reason and this is sufficient. That is, the legislature is an authority because (some) legislators reason individually; its authority follows indirectly from their reasoning about what it should do. I maintain, however, that the institution itself has to act in response to reasons. The legislature’s authority to direct others turns on whether there is good reason to expect its directives to be reasonable. There is no reason to think that the legislature will enact good law if legislators do not respond to reasons as a group, as an institution. Particular legislators would reason and act to vote, but there is no reason to think that the indirect aggregation of the reasoning of various legislators will be reasonable. This is true even if each legislator is reasonable because the

aggregation may still yield a choice that no reasonable sole legislator should adopt. The point is that one cannot devolve the legislature’s response to reasons to each legislator considered as an

individual. The legislators do have to reason and choose individually to some extent, but they reason about and choose what they should do together as the legislature.

Reasonable legislative action is a unitary response to reasons because if it is not it cannot posit coherent, reasonable sets of propositions. Unless the legislature responds to reason directly, the community cannot reasonably understand the legal norms that it introduces to be the exercise of

authority, which is the reasoned choice of reasons for action. Raz rightly argues that there is no way to legislate indirectly, as a function of how legislators think and act.99 Therefore, a group of persons legislates by structuring their interaction so that they together act like a single reasoning, choosing person. In other words, they reason and decide jointly in a way that unifies them in the decision to enact these changes for those reasons.

The legislature must respond to reasons as a group if it is to settle how others should act. There are two further reasons why the legislature must respond to reason as an institution if it is to exercise legitimate authority. The first is that interpreters identify the legal changes that the legislature has

acted to introduce by understanding the intended meaning of the statutory text. Interpreters understand what was intended by inference, which in turn requires reflection on why the speaker acted. If the legislature were not structured to form reasoned decisions, it would be absurd for interpreters to infer what meaning was intended and legislators would be unable to communicate joint decisions by way of a statutory text. I take up this point in further detail in chapter 7, section V, and again, indirectly, in chapter 9.

The second reason is that the legitimate scope of the legislature’s directive may turn on the reasons for which the legislature acted. That is, exceptional cases may arise in which the reasons for a

legislative decision are unexpectedly absent or outweighed by some decisive new factor. In either case, it may be reasonable for the courts to recognize an equitable exception, qualifying the rule that the legislature adopted by reference to the legislature’s choice. It may also be reasonable, even in the absence of a judicial practice to this effect, for citizens to understand their duty to follow the law in this way. Again, this mode of response to the legislative act, which explains the relevant case law,100 requires the legislature itself to act for reasons. (I consider this mode of ‘interpretation’ further in chapter 9, section VI.)

There are many ways to fail to legislate well. The hapless lawmaking body might aim to aggregate preferences rather than respond to reasons, which is to act for an impossible and unattractive end. It might aim to aggregate majority responses to a series of propositions, which is to stumble headlong into collective irrationality. Or the institution might make only the minimal decision to enact the text of the bill whatever its content, which is to fail to exercise authority at all. What unifies the failures is their eschewal of a full, direct response to reason, of the kind I outline in chapter 5. What is striking is that each misconception of legislating is driven in part by a theory of group action, in which the

relevant course of action is all one can expect of an assembly. My own theory of legislative action, outlined across the chapters that follow, provides that legislating is centrally the making and

promulgation of reasoned choice and that the well-formed legislative assembly is capable of such choice.

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