Legislative Intent in Law's Empire

Legislative Intent in Law’s Empire*raju_494 435..460

RICHARD EKINS

Abstract. This article considers Dworkin’s influential argument against legislativeintent in chapter 9 of Law’s Empire. The argument proves much less than is oftenassumed for it fails to address the possibility that the institution of the legislature mayform and act on intentions. Indeed, analysis of Dworkin’s argument lends support tothat possibility. Dworkin aims to refute legislative intent in order to elucidate his owntheory of statutory interpretation. That theory fails to explain plausibly legislativeaction. Dworkin’s argument does not refute legislative intent but instead suggeststhere is reason to think that the legislature is capable of intentional action.

1. Introduction

The proposition that those who interpret statutes should ascertain and giveeffect to legislative intent is orthodox in legal practice but controversial inlegal theory.1 The leading modern philosophical sceptics about legislativeintent are Ronald Dworkin and Jeremy Waldron.2 Dworkin’s argumentagainst legislative intent is especially well known.3 He sets out his argu-ment in its most sophisticated form in chapter nine of Law’s Empire,4 in thecourse of elucidating his own theory of statutory interpretation (Dworkin

* I am grateful to Maris Köpcke Tinturé and Paul Yowell for very helpful comments on anearlier draft; the usual disclaimer applies.1 Scholars and judges routinely affirm this proposition. See, for instance, Bennion 2008, 469:“An enactment has the legal meaning taken to be intended by the legislator. In other wordsthe legal meaning corresponds to the legislative intention [. . .]. [T]he function of the court isto find out and declare that intention [which] is the paramount, indeed only ultimate,criterion”; see also Corocraft v Pan-Am [1969] 1 QB 616 at 638, per Donaldson MR and A-G forCanada v Hallett & Carey Ltd [1952] AC 427 at 449, per Lord Radcliffe.2 John Gardner (2007, 56n.) identifies Dworkin and Waldron as “notable doubters” of thethought that an institution, such as Parliament, may have intentions.3 It is routinely cited by sceptics about legislative intent, including judges and scholars ofstatutory interpretation: See for instance Steyn 2001; Bell and Engle 1995.4 The argument in Law’s Empire is the high point of Dworkin’s scepticism about legislativeintent. His earlier and especially his later work is much less sceptical and expounds what isto my mind a much more plausible account of how legislators act. For a helpful review of theshifts in Dworkin’s position over time, see Goldsworthy 2000.

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1986, 313–54).5 Waldron (1999a, 27–8, 43) often refers to this argument, andindeed he goes so far as to say that:

[. . .] the idea of appealing beyond the statutory text to independent evidence ofwhat particular legislators are thought to have intended has been subject to suchpowerful criticisms, most notably by Ronald Dworkin, that one is surprised to findit appearing again in anything other than a trivial form in respectable jurispru-dence. (Waldron 1999a, 119)6

It is surprising then to find that Dworkin’s argument has received littleclose scrutiny.

This article considers the argument of chapter nine in detail. Theargument begins with Dworkin’s stipulation that legislative intent is theaggregate of the intentions of the many legislators. In Part II, I outline thisstipulated theory, noting that it sets aside without argument an alternativetheory of legislative intent, in which the institution itself forms and acts onintentions. I briefly trace the shape of this theory, which I defend at lengthelsewhere. I introduce the alternative theory not to prove its truth but toclarify Dworkin’s critique and to assess its force. In Part III, I examine thatcritique, arguing that it refutes the stipulated theory but not the alternativetheory. Indeed, close analysis of the critique lends support to that alterna-tive. In Parts IV and V, I consider Hercules’ interpretive method, whichfollows from the proposition, apparently made out by the earlier critique,that the legislature is incapable of intentional action, especially communi-cation. That method centres on justifying what the legislature did, yet, Iargue, Dworkin has no plausible account of legislative action. The implau-sibility of his account is a reason to doubt the truth of his earlier argumentthat the legislature is incapable of intentional action.

Thus I argue that when read closely, chapter nine of Law’s Empire doesnot refute legislative intent, but instead points the way to an understand-ing of legislative intent grounded in how the legislators act jointly, as aninstitution.

II. Two Theories of Legislative Intent

II.1. The Stipulated Theory

For Dworkin, “propositions of law are true if they figure in or followfrom the principles of justice, fairness, and procedural due process thatprovide the best constructive interpretation of the community’s legalpractice” (Dworkin 1986, 225). This theory he terms law as integrity. Heexplains the implications for common law adjudication in chapter eight

5 For a close restatement of the argument, see Guest 1997.6 The extract ends with a reference to Dworkin 1986, 312–37.

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of Law’s Empire and for statutory interpretation in chapter nine. At thestart of chapter nine, he describes his method for reading statutes in thefollowing way:

Hercules will use much the same techniques of interpretation to read statutes thathe used to decide common-law cases [. . .]. He will treat Congress as an authorearlier than himself in the chain of law, though an author with special powers andresponsibilities different from his own, and he will see his own role as fundamen-tally the creative one of a partner continuing to develop, in what he believes is thebest way, the statutory scheme Congress began. He will ask himself which readingof the act [. . .] shows the political history including and surrounding that statutein the better light. (Ibid., 313)

This choice of language may initially seem surprising because Dworkin’ssubsequent argument is that it is a mistake to think that Congress is anauthor or to attempt to interpret statutes by responding to its intention.Although Hercules is to treat Congress as an author, Dworkin does notmean that Congress is in fact an author. The formulation “treat Congressas an author earlier than himself in the chain of law” refers back to chapterseven, where Dworkin explains constructive interpretation in law by wayof an analogy to a chain novel (ibid., 228–39). Law as integrity, Dworkinargued, requires the judge deciding a common law case “to think ofhimself as an author in the chain of common law” (ibid., 238–9). That is,the judge should interpret the decisions of past judges, which are analo-gous to the contributions of earlier authors to a chain novel, deciding thepresent case in the way that best fits and justifies those decisions, thusshowing the entire line of cases in the best light possible.

Dworkin notes that his argument for “how judges should interpretstatutes under law as integrity” faces “an important objection” (ibid., 314).The objection is that “Hercules’ method ignores the important principle,firmly rooted in our legal practice, that statutes should be read, notaccording to what judges believe would make them best, but according towhat the legislators who actually adopted them intended” (ibid.). Havingstipulated the objection in this form, Dworkin says that it is true thatAmerican judges refer to the statements that legislators make about thepurpose of an act and that they take this set of statements to be the“legislative history,” which they must respect (ibid.).

One may view this practice, he says, in one of two ways. The first is, likeHercules, to treat the statements as political acts, which, like the text of thestatute, the best interpretation must fit and explain. The second way, whichDworkin says is presupposed by the objection, is to treat the “statementsnot as events important in themselves, but as evidence of the mental statesof the particular legislators who made them, presumed to be representativeof the mental states of the majority of legislators whose votes created thestatute” (ibid.). Dworkin terms this:

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[. . .] the “speaker’s meaning” view because it assumes that legislation is anoccasion or instance of communication and that judges look to legislative historywhen a statute is not clear on its face to discover what state of mind the legislatorstried to communicate through their votes. It supposes, in short, that properinterpretation of a statute must be [. . .] conversational rather than constructiveinterpretation. The ruling model of this theory is the familiar model of ordinaryspeech. (Ibid., 315)

Dworkin does not cite any theorist or judge who has adopted this view. Hestipulates the objection and the way he does so is telling. The stipulationin its initial form refers to what the legislators intended (ibid., 314), whichobscures the possibility that what matters is what the legislature intended.More significant still is Dworkin’s shift from this initial statement toconsider how and why American judges use legislative history. At first itseems that he has simply changed the subject. However, the effect of thisshift in focus is to conflate the initial objection’s concern with what thelegislators (or legislature) intended with what the legislative history revealsabout the mental states of particular legislators. This leads to Dworkin’sconclusion that the speaker’s meaning view is that when a statute is notclear, one looks to the legislative history “to discover the state of mind thelegislators tried to communicate through their votes” (ibid., 315).

There are two problems with this conflation. Many theorists and judgeswho might object to Dworkin’s approach understand a statute to be clearor not to the extent to which one may identify the speaker’s meaning. Theyneed not adopt the view, which Dworkin attributes to them by implication,that the statute is clear or not on some basis other than the best judgmentof what the speaker—the legislature—intended. Further, the conflation isparochial. The use of legislative history was long forbidden in England,7

and yet judges and lawyers understood the meaning of the statute to besettled by what the legislature intended to communicate in this or that act.8

This alternate possibility establishes that the speaker’s meaning objectionto constructive interpretation does not reduce to studying legislativehistory to reveal the mental state of individual legislators. Dworkin isaware of the English practice. He later relies on its contrast with theAmerican practice to argue that the latter is only justified if the statementsof legislators have some role intermediate between open debate andenacted text (ibid., 344). What he has not acknowledged is that theintelligibility of the English practice means that refuting the stipulatedobjection is not the same as refuting the use of legislative intent in general.

The stipulation continues. Dworkin attributes the following line ofthought to the person who accepts the speaker’s meaning view:

7 The rule was relaxed somewhat in Pepper v Hart [1993] AC 593.8 See further note 1 above.

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He will present his conclusions as statements about the intention of the statuteitself. Is it the purpose or intention of the Endangered Species Act to give thesecretary a certain power? But he regards the intention of the statute as a theoreticalconstruction, a compendious statement of the discrete intentions of particular actualpeople, because only these can have conversational intentions of the sort he has inmind. (Ibid., 315)

This attribution is worth unravelling. What is attributed is the propositionthat the intention of the statute is a compendium of the intentions ofparticular individuals. The interpreter has to understand the speaker’smeaning in this way, Dworkin argues, because only individual personshave mental states. The implication is that the legislature itself, not beingan actual person, cannot have conversational intentions. This assertionentails that the intention of the statute has to be constructed out of the“discrete intentions of particular actual people.” That is, the interpretercannot find the speaker’s meaning but must construct it.

Later, he makes this conclusion explicit:

It seemed a metaphysical mistake to take the “intention” of the legislature itself asprimary so long as Hermes was in the grip of some mental-state version of thespeaker’s meaning theory of legislative intent. So long as we think legislativeintention is a matter of what someone has in mind and means to communicate bya vote, we must take as primary the mental states of particular people becauseinstitutions do not have minds, and then we must worry about how to consolidateindividual intentions into a collective, fictitious intention. (Ibid., 335–6)

That is, Dworkin asserts that it is a tacit premise of the speaker’s meaningtheory that the legislature cannot have an intention because it is aninstitution. This way of framing the problem is critical because it rules outany serious inquiry into how or if the legislature as an institution mighthave intentions and it commits the speaker’s meaning theorist to theconclusion that what is termed “legislative intent” is a construction, afiction. Dworkin never advances an argument for this critical premise. Hetakes its truth to be obvious. Elsewhere in Law’s Empire, he does addressthe metaphysics, as he terms it, of groups (ibid., 167–71). Specifically, hediscusses the personification of groups, which is relevant to the centralplace that the community personified has in law as integrity. That discus-sion is intriguing, but it does not establish that institutions cannot haveintentions; instead, it too assumes that premise and then struggles toexplain intelligibly what it is to personify a group.9

9 The discussion equivocates between discovery and make-believe, opting in the end formake-believe. Dworkin considers corporate liability, which is a much better example than thecommunity personified, but here he just assumes that the corporation has the capacity to act(he asserts that it controls its operations), argues persuasively that one cannot reduce thecorporation’s action to that of any individuals, and then asserts that this cannot be discoverybecause the group has no distinct metaphysical existence (that is, no mind); ibid., 170–1.



The way that Dworkin stipulates the speaker’s meaning theory is impor-tant. Over the next twenty-one pages, Dworkin argues that interpretersshould abandon the attempt to aggregate the intentions of actual peopleinto some fictional collective intention (ibid., 317–37). The argument repaysclose attention. However, it also begs the question. If the premise is truethen the conclusion is true also. What needs to be determined is preciselywhether it is true that the legislature cannot have an intention so that anytalk of legislative intent is “a compendious statement of the discreteintentions of particular actual people” (ibid., 315).

II.2. An Alternative Theory

Consider an alternative theory of legislative intent.10 The legislature is acomplex purposive group—an institution—that forms and acts on inten-tions, which are not reducible to the intentions of the members of thegroup (the individual legislators). The lawmaking intention on which thelegislature acts in enacting any particular statute is the legislative intent,which interpreters intelligibly aim to infer.11

The premise of this alternative theory is that purposive groups form andact on intentions that do not reduce to the intentions held by the membersof the group. This premise has extensive support in the philosophy ofsocial action. There are several possible explanations for group intention(Searle 1995; Tuomela 2007; Kutz 2000; Gilbert 2000), including MichaelBratman’s influential account. He argues that group intentions arise out ofthe interlocking intentions of individuals (Bratman 1999, 109–29). That is,the members of the group intend to act with one another, so their reasoningis structured by reference to action by all towards some commonly sharedend. The group acts when the members act on this chain of reasoning andso seek that end together. Intentions are plans that persons adopt as ameans to ends they seek. The intention of a group is the plan that itsmembers adopt to structure how they are to act to attain some end thatthey want to reach together.

It follows that group intention does not involve spooky group mentalstates (Dworkin 1986, 168). The intention of the group is the plan of actionthat its members adopt, and hold in common, to structure how they are toact in order to achieve some end. When the members play their part in theplan, and carry it out to completion, the group has acted on its intention(Searle 1990, 408–13). The plan that the members adopt will structure theaction of the group in the same way as the intention on which any

10 I term it an alternative because I do not assert that it is the only alternative to the stipulatedtheory. When I refer later to the alternative, I should be understood to be referring to thistheory.11 The following paragraphs draw on Ekins 2010, 72–6. For further elaboration and defencesee Ekins 2006, 108–13 and especially Ekins 2009.

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individual person acts. The plan exists and has significance only becauseof the interlocking intentions of the individual members, but to explainwhat is going on one must do more than state their individual intentions.They understand themselves to be acting as part of a group and each oftheir acts is coordinated by the group plan. Thus, the various individualacts, each of which is intentional, form part of a larger order, which is afterall the reason for the individual acts. The plan held in common amongstthe members of the group is its intention.

With simple groups, all plans are held and known in full by all membersof the group. Complex groups are different (Ekins 2006, 110–1). Their actionis still based on unanimity, because all members of the group take thegroup’s plan, to the extent it concerns them, to direct how they are to act.However, complex groups may adopt procedures to settle how plans forgroup action are to be formed, and the plans so formed may not be knownin full by all members. The group has, one might say, two types ofintention: secondary (standing) intentions, which are plans to form andadopt other plans, and primary (particular) intentions, which are plans thatdirectly concern how the group is to act on this or that occasion.

The legislature is a complex group (ibid., 112–3). The legislative assemblyacts on majority vote. Its members enjoy decision-making equality (invoting, not in agenda-control) and the group structures their interaction invarious stages by detailed procedural rules. The institution legislates; thegroup that is the assembly forms part or the whole of the institution. Thepurpose of the legislature is to make law deliberately and for good reasons,which is to say for the common good. That is the purpose for whichlegislators act jointly and it is also the purpose that defines the enduringinstitution of the legislature, which particular legislators join for a time. Thelegislature stands ready to change the law, when there is good reason to doso. It may be that it can fulfil its purpose without legislating frequently. Thesecondary intention of the group, which defines the institution, and whichall legislators share, is to stand ready to legislate when need be, acting onparticular occasions in accordance with the legislative process.

The legislature acts to change the law. The act of the legislature, theexercise of its capacity to legislate, is the enactment of this or that statute.The legislature acts on a proposal for legislative action—a bill—the contentof which is the particular plan on which the legislator acts, and thus theprimary intention of the legislature (to be distinguished from the second-ary intention noted above). The bill is a proposal for legislative actionbecause it is a plan for how to change the law. It is a detailed text settingout how the law will change if it is enacted. One finds legislative intent inthe plan that coordinates legislators, which explains their joint action. Thedetail of the proposal is the focal point for argument and action. It is theproposal that legislators deliberate about and which, if they assent, theywill act to introduce. That is, the proposal is what legislators hold in



common. They act together by reference to that proposal and the legisla-ture acts when they act to adopt it (a proposal that is rejected is notadopted and so there is no legislative act).

III. Dworkin’s Critique of Legislative Intent

I turn now to the main part of Dworkin’s critique of legislative intent. Thecritique is effective against the stipulated theory. However, close reflectionon the detail of the argument makes clear that it does not refute thealternative theory but rather gives one reason to think that theory true orat least plausible. Dworkin’s method is to trace the reasoning of Hermes,a judge “who is almost as clever as Hercules and just as patient, who alsoaccepts law as integrity but accepts the speaker’s meaning theory oflegislation as well” (Dworkin 1986, 317). Hermes, Dworkin argues, mustanswer a series of difficult questions, the plausible answers to which pushhim to depart from the speaker’s meaning theory and finally to collapseinto Hercules’ method.

III.1. Whose Intentions to Count?

The first decision that Hermes must make is whose intentions to aggregate.This may seem an unlikely problem. Thus far, I have followed Dworkin inassuming that the relevant persons are the legislators who enacted thestatute.12 However, Dworkin now suggests that this is too hasty (ibid., 318).Not all of the members of the enacting legislature voted for the statute, soHermes must decide whether to count the intentions of the minority whovoted against it and whether to give more weight to those legislators whospoke, or spoke more often, in debates. He must also decide whether tocount, and if so how to weigh, the intentions of the officials or staffers whohelped draft the bill, as well, if applicable, as the president who signed itinto law. More widely still, Hermes must decide whether to count privatecitizens who sought to influence how their legislators voted or lobbygroups who participated in the legislative process. After asking whetherlobby groups count, Dworkin says:

Any realistic view of the legislative process includes the influence of these groups;if they contributed to making the statute law, does Hermes have any good reasonfor not counting their intentions in determining what law they made? (Ibid.)

12 In stipulating the objection he refers to the intentions of the legislators that enacted thestatute and to those who voted at the time of enactment: ibid. 314–5. He does note that thespeaker’s meaning theory must answer the question “Which historical people count as thelegislators?” (ibid., 315). However, he does not make it clear at this point why this is a livequestion and directly after posing the question, in his account of Hercules’ method, he refersto the legislators at the time of enactment (ibid., 316) and in his discussion of the evidentialproblems he refers to statesmen, senators and congressmen (ibid., 317).

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I say yes, Hermes has good reason. When Dworkin talks of the “law theymade,” he must mean “they” to refer to the lobby groups. But the “they”that make law are the legislators, perhaps in association with the presidentor queen. Dworkin implicitly concedes this when, a few sentences earlier,he suggests that the president’s intentions are relevant because it is his actof signing a bill (to which Congress assents) that makes it law. Not all thosewho participate in the legislative process make law. The legislature enactslegislation and only its members, the legislators, have authority to legislate.Therefore the persons who made the statute law are the legislators and itis only those persons whose intentional action may constitute the act oflawmaking; this is why they are lobbied. A persuasive lobbyist mayprompt a legislator to form certain intentions, but the lobbyist’s intentionis only relevant to the law that was made if he is persuasive, in which casehis intention drops out. The alternative theory is consistent with this truthfor it provides that it is the legislature—the legislators acting jointly—thatlegislates.

Dworkin advances another possibility as to whose intentions mightcount. He says “[a] statute owes its existence not only to the decisionpeople made to enact it but also to the decision of other people later notto amend or repeal it” (ibid., 318–9). He concedes that it is too strong toterm this a decision, but argues that common understandings may grow upabout a statute that differ from the understanding of those who enacted itand thus he says Hermes must decide whether to consider the intentionsof the legislators who might have repealed the statute but did not. I saythat the intentions of subsequent legislators are irrelevant. Any subsequentlegislature could of course have amended or repealed the statute and if ithad done so then the statute would have changed or ceased. However,Dworkin’s assumption is that the subsequent legislature did not act. In theabsence of any lawmaking act, the intentions of the legislators are just theintentions of those who did not legislate. They have the same relevance asthe intentions of other persons who did not legislate: none at all. Theenacting legislature acted to make the law. If subsequent legislatures do notact to repeal or amend the law that has been enacted, the intentions of thelegislators who belong to those legislatures are not relevant to the contentof that earlier statute (Easterbrook 1983, 538–9). For the intentions oflegislators to be relevant (somehow) to the content of the law, the legis-lators must act jointly to change the law. That is, per the alternative theory,legislative intent arises only when the institution of the legislature acts.

Dworkin says that Hermes must decide whose intentions to count andthat he has no alternative but to think “about the influence that theattitudes, beliefs, and ambitions of particular groups of officials andcitizens ought to have in the process of legislation” and make whateverchoices “would, if generally accepted by judges, bring that process closerto his ideal” (Dworkin 1986, 319). I maintain that a rule of legislative



competence authorises the institution of the legislature, which has adefined membership, to make law (Hart 1994, 95–6). The legislature actswhen its members act in certain ways; so if anyone’s intentions arerelevant, which has yet to be proved, it is the intentions of those members,because they may be relevant to what the enacting legislature did. If thelegislature has authority to make law, as Dworkin’s argument thus farconcedes, Hermes should attend to the intentions of the persons who formthe legislature—the legislators—who when they act together act as thelegislature and make law.

To my mind, the truly difficult choices that face Hermes in attempting toapply the stipulated theory are whether to count the intentions of thelegislators in the voting minority and what weight to give to the intentionsof various legislators. The choices are difficult because although there isgood reason to focus on the members of the enacting legislature, it is notclear what reason there is to differentiate further. That is, all the legislatorshave some connection to the lawmaking act, but it is difficult to identify abasis on which to count only some of those legislators.

Dworkin goes on to assume that Hermes will limit his attention to thevoting majority in the enacting legislature each counted equally (Dworkin1986, 320). This assumption is unsurprising; most theorists concede thatif the majority shared an intention it would be the legislative intent(MacCallum 1993, 17–8). The formal equality of legislators and the major-ity voting rule decision seem to make the voting majority in the enactinglegislature the salient subset whose intentions should count. It is true thatif one aggregates intentions, it would seem difficult to account for legis-lators in the minority whose intentions were likely to be to defeat whatwas enacted. The different members of the majority may have differentintentions and Hermes must thus also decide how to combine theirintentions into a corporate intent (Dworkin 1986, 320). Hermes, Dworkinargues, does not respond to any fact about what the legislature intended,but makes a political choice about how best to combine the intentions ofthe legislators.

There is, contra Dworkin, good reason to focus on the intentions oflegislators who were members of the enacting legislature for only whenthat institution acts may legislators change the law. However, this reasonto focus on the enacting legislature implies that what is significant is theaction of the legislature itself, and how it should be understood, ratherthan the intentions of each member of the legislature considered for his orher part only. The alternative theory is grounded in this truth. The furtherquestions of whether to focus on majority or minority and how to weighthe intentions of various legislators constitute an insurmountable objectionto the stipulated theory. However, they are no objections at all to thealternative theory, which provides that the intentions of all legislators—minority and majority—are relevant because and to the extent that they

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interlock and enable the legislators to act jointly as the legislature. Theparticular intention on which the legislature acts is the open proposal foraction, which does not reduce to the aggregate of the intentions of some orall of the individual legislators.

III.2. Which Mental States to Count? How to Combine Them?

The next choice facing Hermes is how to decide for any legislator, saySenator Smith, “which of her beliefs, attitudes, or other mental statesconstitutes her ‘intention’?” (ibid., 321). The speaker’s meaning theory,Dworkin says, “ties intention to the picture of legislators intending tocommunicate something in particular” and thus understands the legisla-tor’s intention to be what he “actually had in mind as he spoke through hisvote” (ibid., 321–2). Dworkin also refers to the “state of mind the legislatorstried to communicate through their votes” (ibid., 315). It is unclear whetherDworkin thinks that legislators in fact attempt to communicate their stateof mind when they vote; his conclusion concerns how judges shouldinterpret statutes not what legislators do in enacting statutes. Nevertheless,he chooses a curious formulation because it suggests that the legislator’svote is a communicative act, a form of speech.

I take it that one casts a vote intending that it be counted, which is to saypublicly aggregated, and it is important that certain classes of vote are notanonymous (Brennan and Pettit 1990). But it is odd to think that what onedoes when one votes is to communicate some proposition apart perhapsfrom the simple proposition that one votes for or against some proposal.The point of voting, the reason for which one acts to vote, is to make it thecase that the option for which one votes has one more vote than it wouldotherwise have, which in ordinary cases means that it is more likely thatthis will be the course of action that the voting group adopts. The legislatormay in legislating communicate something to someone but presumably thetext of the statute is central to the means of the communication and thevote pertains to whether that communication should be made. Thinking oflegislative intent as the aggregate of the intentions of the legislators mayencourage one to think that each legislator intends to speak through hisvote, but this would seem to be a clear wrong turn because it ignores thelogic of the legislator’s vote, which directs one towards that for which hevotes. The alternative theory responds to this logic, providing that legis-lators vote for or against the open proposal, which if adopted on majorityvote is the intentional act of all.

Dworkin is aware of the problem and denies that the legislator is like anordinary speaker. He notes that ordinary speakers “choose words theyexpect to have the effect they want. They expect to be understood the waythey hope to be understood” (Dworkin 1986, 322). (This description of theordinary speaker is not quite right, for the ordinary speaker expects to be



understood in the way that he intends to be understood; Neale 2005,178–81.) Not all speakers, Dworkin says, are “in charge of their ownwords”: for example, “someone who signs a group letter he cannot rewritefor the group” or “the author of that letter who drafts it to attract the mostsignatures possible” (Dworkin 1986, 322). The example approaches a groupletter from two perspectives, signatory and drafter, and as with theenactment of a statute, the feature that marks it out from the ordinary caseis that a group rather than an individual sends the letter.

The ordinary legislator, the backbencher, is in the same position. That is,he:

[. . .] might well expect that the act would be interpreted to realize his worst fears,but he would hope that it would not be. He is therefore not like someone choosingto communicate some thought or idea or wish. He occupies a position intermediatebetween speaker and hearer. He must decide what thought the words on the paperbefore him are likely to be taken to express and then decide whether he wishes thatmessage to be sent to the public and its officials, including judges, given the onlyrealistic alternative of sending no message at all. That change of role is important,for he treats the document, not himself, or any other person, as the author of themessage he agrees to send. (Ibid.)

This is an insightful analysis. It is an important truth that no singlelegislator is free to adopt whatever words he chooses and it follows that norational legislator may form whatever communicative intention he wishesapart from the content of the statutory text that the legislature acts to enact.In other words, the legislator is like a signatory to a group letter. The groupletter example and the extract just quoted rightly shift the focus ofattention away from the mental states of each person considered indepen-dently and towards the message that they adopt together, which is pre-cisely the focus the alternative theory enjoins. It is a mistake to assume thateach legislator is an independent speaker and that legislative intent is theaggregate of what the many legislators each sought, for his or her partonly, to communicate. What matters is what the legislators do together,how they understand their joint act.

Dworkin says that the legislator “is not like someone choosing tocommunicate [. . .] [but] occupies a position intermediate between speakerand hearer.” It would be more accurate to say that the legislator, like thesignatory to a group letter, is not like someone who communicates on hisown. The legislator is a member of a group and is therefore both hearer (ofthe bill or draft letter) and speaker (of the statute or final letter). Not alllegislators lack control over the content of the statutory text. Dworkinimplies as much when he limits his focus to backbenchers. Ministers orcommittee leaders enjoy more control, but that control is not absolute—itis exercised subject to rules and at the sufferance of the majority—and ifthe group letter analogy is extended they stand, roughly, in the position of

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drafters. The “author” of a group letter is not in charge of her words, toadopt Dworkin’s term, not because she writes to attract signatories, as hesuggests, but precisely because she is not the author of the letter: the groupis. She is the drafter but not the author, and even if she signs the letter sheis but part of the author. Dworkin is wrong to think either that thelegislator treats the document as the author of the message he agrees tosend or even that he agrees to send the message. The legislature sends themessage. The legislator votes for the legislature to send the message butdoes not himself send it, save to the extent that he is part of the legislaturethat acts. Dworkin is driven to conclude that the document is the author,which is absurd (an author is a person who writes a document to conveysomething), because of his prior assumption that the institution does notact.

The (stipulated) speaker’s meaning theory requires Hermes to combinethe mental states of each legislator into a corporate intent. Therefore,Dworkin argues, Hermes must choose whether to count a legislator’shopes or expectations when they come apart. Hopes or expectations mayof course have no connection to action at all. I may hope that tomorrowis a sunny day and I may expect it to rain, but neither thought is in anysense my intention. I may plan to take action based on that thought, inwhich case I would form a conditional intention, say to go the beach if itis sunny or to carry an umbrella if it is rainy. Even when one acts, whatone hopes or expects to follow from, or to be caused by, one’s act is notone’s intention. I may deliver an argument in court, intending to putbefore the judge my client’s argument, hoping that my skilful advocacywill impress my peers but expecting the opposite. Neither the hope northe expectation takes the place of my intention in explaining my action.My hopes and expectations are states of mind that I may hold about myaction; they are not the state that explains how and for what I act, whichis my intention. Dworkin reduces the legislator’s intention to her hope orexpectation because he has no explanation as to how and for what thelegislator acts. That is, in place of an account of why legislators act,Dworkin substitutes their opinions about what may yet happen. Dwor-kin’s awareness of the importance of legislators attending to the meaningof the document open to them all, which they will on a majority votejointly author, has dropped away. This is unfortunate because what isopen to all may, per the alternative theory, be crucial to explain howlegislators understand legislating.

Dworkin argues that Hermes will turn away from hopes because they“may reflect selfish ambitions that have no place in any acceptable theoryof legislative interpretation” (ibid., 323), for example to curry favour withlobbyists or business associates. Likewise, the legislator’s “expectationsmay be based on predictions that have no place in any such theory either”(ibid.), for example the legislator’s belief that the first case to be decided



under the new statute will be heard by a judge who has a certain bias.There is no good choice to be made between hopes and expectations,Hermes will conclude. The situation is no better when the legislator’shopes and expectations coincide because the arguments that appliedagainst each in isolation continue to hold when the two come together.That is, Senator Smith may hope for a particular interpretation becauseit benefits her cronies and also expect this because of the politicaldispositions of the relevant judge (ibid., 324). Thus, even when thelegislator hopes to be understood as he expects to be, which is howDworkin describes the ordinary speaker, Hermes should not attend to hisopinions.

Very often of course the legislator will have no relevant hope orexpectation. The issue before the court will not have occurred to him.Hermes might consider asking what the legislator would have intended ifthe issue had occurred to him. The problem with this response, Dworkinargues, is that neither hopes nor expectations are attractive, whether real orcounterfactual (ibid., 325). Hermes might instead ask whether the legislatorwould have voted for a hypothetical amendment, resolving the issue inone way or another. Dworkin argues that there is no non-arbitrary answerto this question because the legislator could have voted for or against theamendment for any number of reasons (ibid., 326). For example, he mighthave voted for it because he wanted to delay the congressional recess,because he did not want to offend the bill’s sponsor, or because he wasbeing blackmailed. It would be wrong, Dworkin says, to let these reasonssettle how the statute should be interpreted. Further, whether he wouldvote for or against the amendment would turn on when in the legislativeprocess it was introduced and whether it was bundled with other amend-ments that he supported.

The hypothetical amendment discussion is interesting. It means thatHermes has again turned his attention towards the action of the legislature,which might have enacted that amendment. The shift in focus fails torescue the stipulated theory for two reasons. First, it concerns what thelegislature might have enacted, rather than what it did enact. Second,legislators cannot make law by each forming an intention for his part only;they must join together in a legislative act. Hermes never reflects on whatthe legislature did enact and Dworkin never pursues the question—towhich his analysis of the difference between legislators and other speakersgives rise—of how legislators understand the bill that they enact.

Dworkin argues that Hermes will turn away from the legislator’s hopes,expectations and counterfactual votes and look instead to “the politicalconvictions out of which she voted, or would have if she had been votingon principle” (ibid. 327). Attending to convictions, Dworkin says, avoidsthe arbitrariness of the counterfactual approach and is well suited to acommunity of principle, for:

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[. . .] [m]embers of such a community expect their legislators to act on principle andwith integrity, and that goal is promoted if legislation is enforced in the light, notof personal ambitions prominent among legislators, but of convictions dominant inthe legislature as a whole. (Ibid., 328–9)

Note that Dworkin shifts from (the ambitions of) the legislators to (con-victions dominant in) the legislature.13 This foreshadows Hermes’ immi-nent collapse into Hercules. (It is quite unclear how political convictionsmay be dominant in an institution that lacks the capacity to form conver-sational intentions.)

If Hermes adopts the convictions approach he has jettisoned the speak-er’s meaning theory. He now understands “Smith’s votes [to] be evidenceof her convictions [. . .] not statements of them in the way a speaker’ssentences are statements of the thoughts he uses them to express” (ibid.,329). (This analysis does not explain why legislators vote.) Smith, like anyother person, has a jumble of convictions which Hermes has to corral into“a structured system of ideas, made coherent so far as this is possible”before they are fit to use (ibid., 330). That is, he constructively interpretsher political convictions. The evidence that Hermes has for her convictionsis the record of her votes and statements in office and he must therefore ask“what system of convictions provides overall the best justification for whatshe has done in office” (ibid., 335). At this point, “the combinatorialproblem” resurfaces, for Hermes has to interpret each legislator’s recordone by one and then aggregate the set into the convictions of the legislature(ibid.). An alternative exists: “[h]e can train his interpretive imagination[. . .] on the record of the legislature itself, asking what coherent system ofpolitical convictions would best justify what it has done” (ibid.). Thus,Hermes will grasp that “he interprets the record of the institution not theirrecords one by one” (ibid., 337). This is Hercules’ method, which Hermesat last adopts. The reductio is complete.

The fact that legislators have different mental states is a fatal objectionto the stipulated theory. No strategy of aggregating the mental states ofeach legislator, considered for his part only, with no connection to theaction of the legislature itself, can succeed. This conclusion is unsurprisinggiven the initial stipulation that institutions cannot form and act onintentions, and that there is thus in truth no legislative intent, just afictional construct. However, the fact that legislators have different mentalstates does not refute the alternative theory. That theory provides that theintentions of the individual legislators in respect of a particular legislativeact are largely irrelevant. The question is what proposal for legislativeaction is open to all legislators at the time of enactment. The alternative

13 See also ibid., 330 where a very similar phrase is used: “[. . .] they should be read to expressa coherent scheme of conviction dominant within the legislature that enacted them” (emphasisadded).



theory’s focus on what the legislature does, and thus how legislators acttogether, responds to the distinction between legislators and ordinaryspeakers that Dworkin himself notes but does not explore.

It is striking that Dworkin’s conclusion is that Hermes, following Her-cules, should focus not on the hopes, expectations, or convictions ofindividual legislators but on the legislature itself, aiming to “justify whatit has done” (ibid., 335). I ask in Part IV whether Dworkin has a plausibleaccount of what the legislature has done when it enacts a statute. But notefor now that this shift in focus concurs with the alternative theory, in whichit is the legislature’s action that is central rather than the action of theindividual legislators. The alternative theory does not of course deny thatlegislative intent exists: It argues that legislative intent is the open plan ofaction that the members of the legislature adopt and thus jointly act on asthe institution. It is this possibility that Dworkin fails to address. Thus, “thecatalogue of mysteries” (ibid., 348) that afflicts the hapless (stipulated)speaker’s meaning theorist, who sets out to discover an intention that byhypothesis does not exist, does not discredit the alternative theory.

IV. Hercules on Legislative Action

There is no legislative counterpart to Hercules in Dworkin’s theory of law(Waldron 1999b, 1), for Dworkin’s concern is to explain adjudication, notlegislation. Hercules’ interpretive method follows from the proposition thatinterpreters should aim to justify what the legislature has done (Dworkin1986, 335). The method must therefore, if it is to be complete, include orassume some account of what it is that the legislature has done and thuswhat it is for the legislature to have acted. I now examine Hercules’method to determine what, if any, account of legislative action it includesor assumes and to assess the plausibility of that account.

Hercules rejects the idea that legislation is an act of communication (ibid.348). He reads statutes not as if they were communications, but as part ofa principled community’s legal practice, adopting whatever reading showsthat practice in the best light possible. Hercules aims to “identify legalrights and duties, so far as possible, on the assumption that they were allcreated by a single author—the community personified—expressing acoherent conception of justice and fairness” (ibid., 225). It follows that noperson, whether judge or legislator, deliberately makes the law. ForDworkin, the law is never what somebody wills, but rather whatever storybest fits and justifies all legal materials. Dworkin explains his thesis in thisway:

Law as integrity [. . .] begins in the present and pursues the past only so far as andin the way its contemporary focus dictates. It does not aim to recapture, even forpresent law, the ideals and practical purposes of the politicians who first created it.

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It aims rather to justify what they did (sometimes including, as we shall see, whatthey said) in an overall story worth telling now [. . .]. (Ibid., 227–8)

He thus distinguishes “the ideals and practical purposes of the politicianswho first created it,” which are altogether irrelevant, from “what they did,”which is what integrity aims to justify. The phrase “who first created it” isapt to mislead. The rest of the extract makes it clear that the content of thelaw is never settled by what the legislators did, but rather is the story thatjustifies what they did. The legislators who enact a statute cannot be saidto have “first created” the law because no one can create the law. Dworkindoes not specify what it is that the legislators did. Later, the formulation“what they did” recedes from view, with Hercules aiming to interpret whatthe legislature did and what the legislators said.

The premise of Hercules’ method is that the legislature cannot commu-nicate (ibid. 348). I take this to entail that the legislature cannot makedecisions. The same metaphysical concerns cut against both. Yet despitethis, at various points in Law’s Empire, Dworkin sometimes talks as if thelegislature were capable of making and communicating decisions. Hespeaks of the legislature choosing, deciding, and pursuing the collectiveinterest (ibid., 310–2); in discussing how equality and integrity inform howjudges should read statutes enacted by state and national legislatures, herefers to “the decisions they actually made,” which integrity must respect(ibid., 404); and he says that “[l]egislative supremacy [. . .] is a matter offairness because it protects the power of the majority to make the law itwants” (ibid., 405). This language is inconsistent with his claim in chapternine that legislation is not a communicative act because that is metaphysi-cally mysterious. He might mean these various points to be qualified by hismore detailed discussion in chapter nine, so that one has to translatelegislative choice into Hercules’ judgment about how best to justify whatthe legislators did. However, it does seem at each of the points noted abovethat Dworkin understands the legislature to make decisions to which thecourts respond. This understanding is entirely plausible and it undercutsthe account in chapter nine.

My question is what it is that Dworkin thinks the legislators or thelegislature did, which Hercules then interprets. Dworkin assumes thatinstitutions do not have intentions but that “[c]onstructive interpretationcan be directed to the record of institutions and practices as well asindividuals” (ibid., 336). The individual legislator’s public record consistsof his votes and public statements. The legislature’s equivalent is, I expect,the set of enactments. That is, the acts of the legislature, as the term entails,are just the statutes that it enacts. This is true, but unhelpful: the question,which Hercules’ method puts in play, is what the legislature does inenacting statutes, which Hercules then aims to justify. Perhaps Dworkin’sanswer is just that the legislature promulgates the sentences that constitute



the statutory text. The next question would then be whether this is a trueor plausible account of legislative action, capable of grounding the method.

Dworkin is somewhat more specific when he says that Hercules aims tointerpret “the political events that include the statute’s enactment” and“the statements the legislators made in the process of enacting it, [which]he treats [. . .] as political events important in themselves, not as evidenceof any mental state behind them” (ibid., 316). That is, he aims “to find thebest justification he can of a past legislative event. He tries to show a pieceof social history—the story of a democratically elected legislature enactinga particular text in particular circumstances—in the best light overall”(ibid., 338). The problem is that the terms “political event” and “socialhistory” lack content. It is not at all clear what it is to say that theenactment of a statute is a political event or one of many political eventsthat falls to be interpreted: what the legislature did remains a mystery.

The detail of Hercules’ method helps clarify Dworkin’s position. Heargues that the interpreter imposes order on the material that he interprets;he does not discover it in the material (ibid., 52, 273). When he interpretsthe legislature’s record, Hercules recognises two constraints: textual integ-rity and fairness. The first “requires him to construct [. . .] some justificationthat fits and flows through that statute and is, if possible, consistent withother legislation in force,” a scheme of principle and policy that “providesthe best case for what the plain words of the statute plainly require” (ibid.,338). It is not immediately apparent what makes the plain words plain, butDworkin later explains that a statute is only unclear when we think thereare good arguments for more than one interpretation (ibid., 350–4). This isnot a straightforward explanation; the implication is that the language isnot an independent constraint but rather that the text just is part of whatthe justifying interpretation shows in a good light.

It would seem that what Hercules aims to fit is not what the legislatorsor the legislature aimed to communicate, but rather the words them-selves: that is, their semantic or conventional content. Dworkin statesexplicitly that textual integrity “might lead [Hercules] to reject an inter-pretation that would be closer to the concrete intentions of the drafts-man” (ibid., 447 n.). This is an intriguing remark. He does not explainhow the draftsman relates to the legislators (he may be a legislator) orwhat his intentions are. Presumably, like other draftsmen, he acts intend-ing to set out a text that will serve to communicate certain propositionsif the person for whom he writes adopts it. It is likely that the legislatorswho sponsor and debate bills act on intentions of this kind (Ekins 2009;2010, 76–7). Dworkin’s remark discloses an awareness that legislators,especially those who draft legislation, may be reasoning in this way. Yetit seems this self-understanding is not relevant, in his scheme, to what thelegislature did, for the point of his remark is that Hercules will not aim tofit the meaning of the statutory text that the legislators who wrote it

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aimed to convey. The alternative theory by contrast provides that the wayreasonable legislators understand their joint action is highly relevant tohow the legislature acts.

The second constraint—fairness—requires Hercules to take into accountthe statements that legislators have made, not because those statementsexplain why they enacted the statute, but because on certain questionsHercules “is sensitive to general public opinion” and these “statements areordinarily good evidence of public opinion across the community as awhole” (Dworkin 1986, 341). The reason for this, Dworkin says, is thatpoliticians have similar convictions to voters or at any rate are skilled atmaking public statements that track the convictions of voters. Note thatHercules deems relevant what legislators say, in the legislative history,about what they enact, but deems irrelevant what legislators, includingdrafters, intend to convey in enacting the statute. Yet it is the latter ratherthan the former that has a direct connection to the reasons for whichlegislators act and for their understanding of their action.

On Dworkin’s approach, the legislators look to be mere ciphers forpublic opinion. Hercules attends to what they say about the statute (butnot to what they mean) because this is useful evidence of what the publicwants. The legislators report public opinion; if they purport to depart fromit, Hercules will hold them to it, on questions of policy at least (ibid., 340).His decision is not unfair, he thinks, if “nothing suggests that the publicwould be outraged or offended by that decision” (ibid., 347). He may evenconsider a politician’s speech on television to gauge public opinion (ibid.,349). This confirms, I suggest, that Dworkin does not take the legislatureseriously as a decision–making body, instead treating its outputs as a proxyfor majority preference (Yowell 2007, 130–7).

Hercules also understands the statements of legislators to be acts of thecommunity personified, intermediate between the formal text and informaldebate (Dworkin 1986, 343–4). That is, legislative history is best interpretedto be “a contemporary interpretation of the statute it surrounds, aninterpretation that may later”, with regret, “be revised by courts or thelegislature itself” (ibid., 346). It is not clear how the legislature could act torevise the interpretation, unless Dworkin means that its later enactmentsmight change the weight of interpretive material, thus supporting a newreading.

The requirements of fairness and textual integrity change over time.Fairness compels Hercules to defer to public opinion at the time ofadjudication not enactment and he takes the statements of legislators afterenactment to be part of what falls to be interpreted (ibid., 349).14 Further,new judicial decisions and statutes extend the material that is relevant to

14 For argument that post-enactment legislative history is relevant, see also Dworkin 1986, 21,347.



textual integrity, so that the right interpretation may differ over time (ibid.,349–50). In sum, Hercules:

[. . .] rejects the assumption of a canonical moment at which a statute is born andhas all and only the meaning it will ever have. Hercules interprets not just thestatute’s text but its life, the process that begins before it becomes law and extendsfar beyond that moment. He aims to make the best he can of this continuing story,and his interpretation therefore changes as the story develops. He does not identifyparticular people as the exclusive “framers” of a statute and then attend only totheir hopes or expectations or concrete convictions or statements or reactions. (ibid.,349)15

The conclusion that there is no “canonical moment” confirms that Her-cules has not explained what it is that legislators and legislature do. Thefocus on hopes, expectations, convictions, statements, and reactions isdisingenuous because Dworkin’s reference to the intention of the drafterand his earlier discussion of the group letter make it clear that he isaware of another possibility (ibid., 447 n. and 322). His assertion that noone is the exclusive framer leaves unanswered the question of what it isthat the enacting legislators did and why. Dworkin should settle on anaccount of what the legislators did, and what the legislature did, whichHercules then interprets. It would then be open to others to ask whetherhis account adequately explains the reasoning and action of reasonablelegislators.

I do not think that Dworkin, in chapter nine at least, has a theory ofwhat the legislature or legislators do. His discussion of how and whylegislators act, as when Hermes considers Senator Smith, is for the mostpart cynical (ibid., 321–8). Hercules’ method then is alchemy: Base leg-islative materials are transmuted into principle. That is, legislators act(often disreputably) in ways that are not relevant to the content of thelaw, save that their action gives rise (for some undisclosed reason) to theset of sentences that is the statutory text, which judges then rationalise,attributing to the community personified (but not to the enacting legis-lature) a principled explanation for the fact that those sentences formpart of the legal history.

Dworkin’s working assumption is that the legislator acts for reasons, andwith opinions, that do not bear on what the legislature does. This assump-tion is consistent with how Dworkin proposes to interpret past judicialdecisions. There he says that “an interpretation need not be consistent withhow past judges saw what they were doing, in order to count as an eligibleinterpretation of what they in fact did” (ibid., 284). In determining the legalproposition for which some decision or series of decisions stands, I do notthink it sound to ignore the reasons for which judges decided. However,

15 See also ibid., 316, 350.

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it is much less problematic to ignore the judges’ reasons than it is to ignorethe legislators’ reasons. Judges act to settle particular disputes, deciding infavour of one party or the other for certain reasons. A secondary effect ofa judge’s decision, which might loom large in some cases, is to shape thecontent of the law that later judges must apply. The judge may still decidea case rationally even if he knows that later judges will fit the result of hiscase rather than the result and his reasons for that result, just as he maydecide rationally in a system that lacks precedent.16

There is no legislative counterpart to the judge’s decision on the par-ticular dispute to which the subsequent effect on the practice of law ismerely secondary. The legal point of the legislative act is entirely to settlethe content of the law in later cases, an effect which is at best secondaryin the judicial example. Fitting what the legislators “did,” which is whatthey said, but not their reasons for acting entails that their action isinexplicable. The legislators have no good reason to act if Dworkin isright.

V. Legislating in Law’s Empire

The way to explain a form of social action is to begin by reflecting onhow the persons whose action it is—whose choices or forbearances makeit what it is—understand it. That is, the theorist should adopt the internalpoint of view of a participant in the relevant form of social action orpractice (Hart 1994, 86–8; Finnis 1980, chap. 1). Dworkin does not adoptan internal point of view and explain how the reasonable legislatorunderstands what he and the legislature do in enacting the statutory text.Indeed, Hercules’ interpretive method departs radically from that reason-able self-understanding and would place legislators in an almost impos-sible position. Let me trace the reasoning of the legislator trapped inLaw’s Empire.

The legislator knows that Hercules will read the statutory text that hehelped to draft and for which he voted to show the political event ofenactment in the best light possible. That is, Hercules will read the statuteto follow from a scheme of principle and policy that shows it in the lightHercules thinks best. This may not be the same scheme that explains whythe legislator drafted the statute in this way or why he and his fellowsvoted for it. Further he knows that Hercules will not aim to fit the meaningthat the drafter intended to communicate, which the legislators debatedand then voted to adopt, but will aim to fit the bare semantic content ofwhat the statute says. This semantic content will not fully restrain Her-cules, because he will balance fit and justification, but it will partiallyconstrain him. Thus, the legislator knows that the legal meaning and effect

16 The same is true for the person who strives to act courteously: ibid., 47–9, 52.



of the statute turns on how Hercules thinks it should best be read, ratherthan on Hercules’ judgment of what the legislators were trying to dotogether in enacting the statute. He knows also that Hercules will take intoaccount, somehow, the various materials that make up the legislativehistory and whatever other evidence Hercules has of public opinion.Finally, the legislator knows that Hercules is likely to read the statutedifferently as time goes by, taking into account statements made bysubsequent legislators, shifts in public opinion, new judicial decisions, andthe enactment of new legislation.

This legislator, I contend, will understand that the most he and the otherlegislators can do together in enacting a new statute is to contribute newinterpretive material. If Dworkin were right, the legislator would bemistaken to think that he had participated in the legislature’s decisionabout what is to be done. The premise of Hercules’ method is that thelegislature is incapable of decision or communication, but just enacts a text,which will be found to mean whatever the judge decides it should meanif it is to be justified as an act of the community personified. The particularlegislator is empowered to the extent that he (like his fellows) may makestatements that inform the interpretation of earlier legislation that he doesnot help amend or repeal.17

I say that the reasonable legislator aims to make decisions about whatthe content of the law should be and to act jointly with other legislators tochange the law in that way. He should respond to reasons and act tochange the law when there is good reason for that change. The obstacle hefaces is that in Law’s Empire, the orthodoxy is that legislators do not act tomake law, but instead just provide new interpretive material. Therefore, thejudges do not take statutes to be the legislature’s decisions. Together withhis fellows, the legislator will draft texts to manipulate Hercules. He maydraft extremely literal, detailed texts, aiming to rule out explicitly variousprincipled readings that Hercules might otherwise adopt. He might alsothink like Hercules, and determine how the judge would be likely torespond to various textual alternatives, given the other relevant interpre-tive material. The legislator would then adopt the text that would leadHercules to the conclusion that he, the legislator, had already chosen. Thus,the legislators, if they adopted this draft, would act to direct Hercules,framing the interpretive materials in such a way that the law would changein the way they intended it to change. They would be forced into this odddance because Dworkin rules out the obvious course of action: enacting adecision by making it clear that it was their joint intention to decide in thisway.

17 For an argument other than Dworkin’s that legislators have this power, see Elhauge 2009;his argument is critically reviewed in Garrett 2009.

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The legislators might frame the interpretive materials so that Herculesidentified the law that the legislators intended to enact. However, thatinterpretation would remain vulnerable to the unpredictable subsequentchange in interpretive materials, including shifts in public opinion andstatements by later legislators. The reasonable legislator who helps enacta statute does so because he has good reason to think that the law shouldbe changed in this way. He participates in a stable, reasoned decision tosettle the content of the law. The legislator does not, in ordinary cases,have good reason to immunise the legislature’s decision from subsequentchange. However, any change to the content of the law that the legislaturechose should, he would rightly insist, be taken by the appropriate personin response to reasons for changing the law. In ordinary cases, settingaside judicial review, that “person” is the subsequent legislature. The needfor reasoned change is not best handled by later judges responding to theshifting content of the set of interpretive materials. Hercules will not askhimself the right question: Is there good reason to act to change whatwould otherwise remain the law? It is this question that faces subsequentlegislators who are well placed to answer it and who have the capacity,when acting jointly as the legislature, to amend or repeal the earlierstatute.

Fairness does not demand that the continued stability of the content ofenacted law turn on the prevailing state of public opinion or the statementsmade by particular legislators who have not acted as a group to change thelaw. Quite the contrary: it would be unfair, and inconsistent with the ruleof law, for the stability of past legal decisions to be contingent on informalshifts in popular sentiment or on the acts of particular legislators that fallshort of enactment. Even if fairness did entail deference to consideredpublic opinion, the appropriate means for action on that opinion would beformal enactment by a representative assembly after due deliberation. Thereasonable legislator understands the legislature to be an institution that isauthorised to decide, the members of which have a duty to reason to thatend. The reasoning and action of the legislator is, I suggest, unintelligibleunless the law he makes is the law that he intends to make (Raz 1996,258–9). And a polity cannot hold its legislators to account for their choicesin office unless the law that their legislative act brings into being is the lawthat they intend to make (unless they are held to account for negligence,but this would be precisely a failure to bring into existence law that theyshould have chosen).

VI. Conclusion

Dworkin’s argument refutes the stipulated theory in which the intention ofthe legislature is “a theoretical construction, a compendious statement ofthe discrete intentions of particular actual people” (Dworkin 1986, 315). His



argument does not address and so does not refute the alternative theorythat legislative intent is the open proposal on which the legislature acts.Dworkin dismisses without argument the possibility that an institutionmay form and act on intentions. Yet analysis of his critique and ofHercules’ method lends support to the alternative theory: It is the legis-lators at the time of enactment who legislate, they act jointly rather than asindividuals, central to their joint action is the proposal before them, andthey have good reason to intend to convey certain meanings. The alterna-tive theory is an answer—whether true or not—to the question to whichDworkin’s critique and interpretive method give rise, but which he neveranswers, namely how the legislators reasonably understand their jointaction. His critique does not prove that legislation is not an act ofcommunication and his interpretive method is implausible because it isdifficult to square with a plausible account, such as the alternative theory,of how reasonable legislators understand legislative action.

There is a striking asymmetry in Dworkin’s analysis of courts andlegislature. Dworkin takes adjudication seriously but does not do the samefor legislating. He neglects the internal point of view of the legislator,instead asserting a series of cynical observations about legislative motivesand outlining a theory of interpretation that has no explanation for whatit is that the legislature does or how legislators reason. Yet the legislatureis a central legal and political institution and legal theorists should aim tomake sense of its capacities as well as its pathologies. Further, as myanalysis of Hercules’ method suggests, a plausible interpretive methodshould be consistent with how reasonable legislators understand theirlawmaking act.

Outside of chapter nine, and in his other work, Dworkin is less sharplysceptical of legislative intent. His dismissal of institutional intention ispartly undercut by his (muddled) account of personification (ibid., 167–71).But it is noteworthy that Dworkin aims to personify the community ratherthan the enacting legislature. The community personified is a heuristic thatexpresses the demands of integrity, rather than a group or institutioncapable of action. For Dworkin, it is always Hercules that is to speak forthe community personified. However, the legislature, unlike the commu-nity at large, is an institution that purports to act and which it is plausibleto think is capable of action. Further, the modern legislature is an electedbody that purports to represent the community. If the legislature is aninstitution capable of reasoned, coherent decision, which acts to change thelaw, it would have a very strong claim, in place of Hercules, to speak for(or almost to be) the community personified. Dworkin’s theory of statutoryinterpretation centres on denying that the legislature constitutes such aninstitution. His argument does not support this denial, but the denialshould come as no surprise, for the moral of chapter nine would seem tobe that Hercules brooks no rivals.

458 Richard Ekins


University of AucklandFaculty of Law

Private Bag 92019Auckland 1142

New ZealandEmail: [email protected]

References

Bell, John, and Engle, George. Eds. 1995. Cross on Statutory Interpretation. 3rd ed.London: Butterworths.

Bennion, Francis. 2008. Bennion on Statutory Interpretation. 5th ed. London: Lexis-Nexis.

Bratman, Michael. 1999. Faces of Intention. Cambridge: Cambridge University Press.Brennan, Geoffrey and Pettit, Philip. 1990. Unveiling the Vote. British Journal of

Political Science. 20: 311–33.Dworkin, Ronald. 1986. Law’s Empire. London: Fontana.Easterbrook, Frank. 1983. Statutes’ Domains. University of Chicago Law Review 50:

533–52.Ekins, Richard. 2006. The Relevance of the Rule of Recognition. Australian Journal

of Legal Philosophy 31: 95–117.Ekins, Richard. 2009. The Nature of Legislative Intent. DPhil thesis: University of

Oxford.Ekins, Richard. 2010. The Intention of Parliament. Public Law. October: 68–85.Elhauge, Einer. 2009. Statutory Default Rules: How to Interpret Unclear Legislation.

Cambridge, MA: Harvard University Press.Finnis, John. 1980. Natural Law and Natural Rights. Oxford: Clarendon.Gardner, John. 2007. Some Types of Law. In Common Law Theory. Ed. D. Edlin,

51–80. Cambridge: Cambridge University Press.Garrett, Elizabeth. 2009. Preferences, Laws, and Default Rules. Harvard Law Review

122: 2104–38.Gilbert, Margaret. 2000. Sociality and Responsibility: New Essays in Plural Subject

Theory. Lanham, MD: Rowman and Littlefield.Goldsworthy, Jeffrey. 2000. Dworkin as an Originalist? Constitutional Commentary

17: 49–78.Guest, Stephen. 1997. Interpretation and Commitment in Legal Reasoning.

In Legislation and the Courts. Ed. Michael Freeman, 133–53. Dartmouth:Aldershot.

Hart, H. L. A. 1994. The Concept of Law. 2nd ed. Oxford: Clarendon.Kutz, Christopher. 2000. Complicity: Ethics and Law for a Collective Age. Cambridge:

Cambridge University Press.MacCallum, Gerald C. 1993. Legislative Intent and Other Essays on Law, Politics, and

Morality. Madison: University of Wisconsin Press.Neale, Stephen. 2005. Pragmatism and Binding. In Semantics vs. Pragmatics. Ed.

Zoltan Szabó, 165–285. Oxford: Oxford University Press.Raz, Joseph. 1996. Intention in Interpretation. In The Autonomy of Law: Essays on

Legal Positivism. Ed. R. George, 249–86. Oxford: Oxford University Press.Searle, John. 1990. Collective Intentions and Actions. In Intentions in Communication.

Eds. Philip Cohen, Jerry Morgan and Martha Pollack, 401–16. Cambridge, MA:MIT Press.

Searle, John. 1995. The Construction of Social Reality. New York, NY: Free Press.



Steyn, Lord Johan. 2001. Pepper v Hart; A Re-examination. Oxford Journal of LegalStudies 21: 59–72.

Tuomela, Raimo. 2007. The Philosophy of Sociality: The Shared Point of View. Oxford:Oxford University Press.

Waldron, Jeremy. 1999a. Law and Disagreement. Oxford: Oxford University Press.Waldron, Jeremy. 1999b. The Dignity of Legislation. Cambridge: Cambridge Univer-

sity Press.Yowell, Paul. 2007. A Critical Examination of Dworkin’s Theory of Rights. American

Journal of Jurisprudence 52: 93–137.

460 Richard Ekins


Documents

Legislative Intent in Law's Empire