Collective Intentions, Legislative Intents, and Social Choice

Abstract

According to the common modern conception of law, the legitimacy of law is based on the legitimacy of legislative authorities. The authority of the interpreters of law, i.e. courts, is a derivative authority. It depends on the authority of law itself. Therefore. (1) the power of courts to review laws is limited and, (2) when there are problems in interpreting law, courts should, if possible, be guided by the intent of legislative authorities.

The paradoxical results proved by the theory of social choice show that sometimes there is no single majority will or intention. In those cases the actual outcomes, e.g. election results or legislative decisions, are produced by an interplay of institutional structures, political strategies, and agendas. Some American political scientists and legal theorists have argued that because of these results, there is no reason to accept requirements (1) and (2): there is no reason why courts should defer to legislatures. These theorists have three arguments: first. the notion of legislative intent presupposes an illegitimate collectivistic metaphysics: second, even when there is an unambiguous majority supporting a decision, we cannot speak about a “majority will” or “intent” because individual citizens or representatives may support the decision for different reasons, and third, the “paradoxes” of social choice show that there can be several intents or majority wills within the same decision-making unit.

I will try to show that the first and the second argument are conceptually independent of the results of social choice theories. Moreover, one can speak about collective intentions without making any collectivistic metaphysical presuppositions. Against the third argument, I claim that the intent criterion may be a meaningful guide of interpretation even when a majority cycle exists.