Conflicting multiple intended meanings
Perhaps one of the most frequent criticisms of intentionalist theories of legal interpretation such as ours is that they cannot be applied to multi-member rule-making bodies such as legislatures, administrative boards, and appellate courts.
Individuals have states of minds such as intentions; groups do not. So goes the critical refrain.We agree that groups do not have states of mind qua groups. And we do not assert the existence of group intentions beyond the intended meanings of the individuals who compose the group. Nor do we deny that those individual intended meanings can differ from person to person within the group and can in some cases conflict. Finally, we do not deny that these facts will create difficulties for intentionalist interpretation in some cases. What we do deny is that such difficulties should cause us to reject intentionalism. Instead, what they suggest is that, on some occasions, what appears to be a meaningful law (because its text seems to parse) is actually meaningless.
To begin with, in many cases, the rule-makers who possess the authority to create a binding legal rule - say, the legislators necessary to pass a law (usually a majority of the legislature, but occasionally a supermajority) - will all intend the same meaning for the rule they enact. In other words, if asked how the rule was intended to apply, each member of the majority sufficient to pass the rule would give the very same answer.
In a large number of other cases, individual members of the majority would agree about the intended meaning in most real and hypothetical applications but would disagree about a few such applications. In the cases of disagreement, there is no univocal intended meaning shared by the requisite number of rule-makers. But so long as enough rulemakers for passage would have voted for the rule even if it did not apply in the area of disagreement, the overlapping intended meanings constitute the enacted rule, and the applications lacking sufficient overlapping intended meanings are not within the enacted rule.
To illustrate this possibility, suppose that groups A and B make up a majority of the legislature, and they enact a rule that A intends to outlaw X and Y and B intends to outlaw X and Z. If neither A nor B is of sufficient size to constitute a majority of those voting aye, but both A and B would approve of a rule outlawing only X (and not Y or Z), then the rule has a core meaning, namely, that of outlawing X.
In both of the preceding examples, the multi-membered character of the rule-maker does not defeat the attribution of an intended meaning for the rule, though in the second example the rule is more truncated than any rule-maker intended. However, a third type of example raises real problems for intentionalism. For imagine that the legislative body that enacts the ‘no wild animals' rule is made up of three legislators, A, B, and C. C voted against the ‘no wild animals' rule on the ground that it devalued liberty and property relative to physical security. A and B voted for it. A believed that camels are wild animals and intended the rule to cover them. Had camels been excepted, A would have voted against the rule as unfair to, say, harmless koalas. On the other hand, B believed the rule did not cover camels, camels not falling within his intended meaning of ‘wild animals'. Had B believed camels were included, he would have voted against the rule. And A and B did not clarify whether camels were within the rule before voting.
The results of this disagreement are these. The rule ‘no wild animals' admits of two relevant possible meanings: ‘No wild animals, including camels, are allowed', and ‘No wild animals, except camels, are allowed'. Although the ‘no wild animals' rule itself passed two-to-one, each of its possible meanings would have been rejected by two-to-one votes. The ‘no wild animals' rule has no core of intended meaning that would have been supported by enough legislators for enactment. Neither legislator has been granted authority by the community to settle by herself what the rule should be.
On our view, the ‘no wild animals' rule is only apparently meaningful but not actually so. It is no different from the case where a term in a rule is ambiguous and has two non-overlapping definitions, and some legislators intend one meaning and the others intend the alternative meaning. Consider: ‘No meetings are allowed by the bank', where C votes against the rule on libertarian grounds; A votes for it intending one meaning for ‘bank' - river bank; and B votes for it intending another meaning - financial institution. The rule can only mean either ‘no meetings by the river bank' or ‘no meetings by the financial institution', and neither meaning has the backing of a majority.
If we assume that only the intended meaning of a legislative majority regarding what law subjects are obligated to follow is authoritative for those subjects, then in these kinds of cases, an apparently meaningful rule is in reality no more meaningful than potential signs produced accidentally - that is, without any intention to signify anything. Monkeys on typewriters, cloud formations, and spilled ink may make what might appear to be words in some natural language. But if the monkeys, the clouds, or the spilled ink produced the shapes c, a, t, it would be odd to ask if that means a tabby, any feline, or a jazz musician. Although it could mean any of those - indeed, it could mean almost anything given infinite possible languages with infinite possible ways to signify meanings - without the backing of someone's intended meanings, those unintended shapes have no meaning at all. They are evidence of natural processes, but they are not bearers of meaning.
Our pathological account of the ‘no wild animals' rule renders it no different from the natural products of typing monkeys, clouds, and spilled ink. Once we know the intended meanings of A and B, it is a category mistake to ask what the rule means. A's own rule is meaningful, as is B's; but their jointly produced rule is not.
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