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The Nature of Legislative Intent$
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Richard Ekins

Print publication date: 2012

Print ISBN-13: 9780199646999

Published to Oxford Scholarship Online: January 2013

DOI: 10.1093/acprof:oso/9780199646999.001.0001

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Legislating Without Reasoning

Legislating Without Reasoning

(p.77) 4 Legislating Without Reasoning
The Nature of Legislative Intent

Richard Ekins

Oxford University Press

This chapter considers and critiques theories of legislating that provide that the legislature makes law without making reasoned choices. Dworkin argues that the legislature aggregates preferences rather than responds to reasons; Waldron contends that the legislature is a voting machine, in which legislation is the aggregate of majority responses to a series of propositions; Raz and Gardner argue that the legislature acts only on a minimal intention to enact the text of the bill. The chapter explains that such ‘legislatures’ would fail to exercise legislative authority and would be unlikely to enact reasonable legislation. Theories of this kind depart from how reasonable legislators understand the joint act of legislating. It is argued 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.

Keywords:   legislating, public choice, preferences, Dworkin, Waldron, Raz, voting machine, minimal intention

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