Intending to Legislate
| Date | 01 January 2015 |
| DOI | http://doi.org/10.1111/1468-2230.12111 |
| Published date | 01 January 2015 |
| Author | Dimitrios Kyritsis |
REVIEW ARTICLE
Intending to Legislate
Dimitrios Kyritsis*
Richard Ekins,The Nature of Legislative Intent, Oxford: Oxford University Press,
2012, xiii+303 pp, hb £36.99.
INTRODUCTION
It is uncontroversial that the legislatures with which we are familiar comprise a
multitude of legislators. It is also uncontroversial that legislatures have or claim to
have the moral power to change the law. When a legislature exercises this
power, it does so through a combination of acts by its members. When that
exercise of power is successful, it has an effect on our legal rights and duties.1
During the legislative process, legislators form an intention that a specific statute
be or not be enacted. This, too, seems to be rather uncontroversial. What has
proven a lot more controversial is whether that intention and the various other
intentions that legislators entertain in the course of the legislative process deter-
mine the statute’s effect on our rights and duties and, if so, how.
In recent decades there has been a revival of jurisprudential research on such
issues. On the main, this phenomenon has been driven by two factors. First, legal
philosophers have once again begun to ask why and under what conditions the
legislature can make a difference to the law. Whereas the function of legislatures
has been a traditional object of study for political scientists and constitutional
lawyers, it was for a long time assumed that the theory of law can do without
paying close attention to them.2Heeding Bismarck’s admonition that ‘no man
should see how laws and sausages are made’, the theory of law could presumably
focus on the finished product, the statute that was eventually enacted.3Political
*Associate Professor in Law, University of Reading. I am grateful to Stuart Lakin and Dimitris
Tsarapatsanis for discussion of an earlier version of this article.
1 M. Greenberg, ‘Legislation as Communication? Legal Interpretation and the Study of Linguistic
Communication’ in A. Marmor and S. Soames (eds), Philosophical Foundations of Language in the Law
(New York: OUP, 2011) 217, 238: ‘a law-making act’s success consists in its generating legal
obligations’.
2 Needless to say, it was not always so. To name a notable example, Jeremy Bentham had a keen
interest in legislatures, about which he wrote extensively. See J. Bentham, An Introduction to the
Principles of Morals and Legislation, edited by J. H. Burns and H. L. A. Hart (London: Methuen,
1970).
3 It is not certain whether Bismarck made an admonition or observation, or whether he said anything
at all about laws and sausages. Jeremy Waldron, who has done more than anyone to rekindle the
jurisprudential study of legislatures, has also addressed this particular exegetical problem in remark-
able detail in J. Waldron, Law and Disagreement (Oxford: OUP, 1999) 88, n 2.
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© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited. (2015) 78(1) MLR 164–175
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
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