What is the state of mind that constitutes the lawmaker's intended meaning?
We have argued that interpretation of the lawmaker's rule is nothing more or less than an attempt to discern the lawmaker's intended meaning, just as it is whenever we wish to comply with requests from Mom or the kids.
But just what kind of fact is an intended meaning? What thing in the world makes it true that such-and-such was so- and-so's intended meaning? Is intended meaning a mental state that the lawmaker possessed at the time he enacted the law, and if so, what mental state?We naturally assume that the interpreter is in search of the lawmaker's mental state at the time of enactment, just as we are concerned with what Mom has in mind when she asks us to put out the dog. But obviously the content of both the lawmaker's and Mom's minds at the times in question is quite limited. The lawmaker might have a mental picture of a ferocious grizzly bear at the time he promulgates the ‘nowild-animal' rule. Mom might picture Rover as he looked last time she visited. Nonetheless, despite the quite limited nature of the mental states in question, we do believe that the intended meanings extend well beyond the particular images contained in those mental states. The lawmaker may never have seen or even heard of Malaysian sun bears, for example, or Tasmanian Devils. Nevertheless, both he and his audience can be quite certain that he intended to include them within his rule's prohibition. This does not mean that we are concerned with utterance meanings rather than intended ones. Whether or not he used the words ‘wild animals', if his intended meaning is ‘wild animals', it probably covers animals that he has never heard of, much less pictured, at the time of enactment.
Moreover, sometimes an example comes within the intended meaning even if it does not come within the purpose that the rule is meant to accomplish (Greenawalt 1997b). For instance, suppose a property owner possesses a declawed, defanged, quite gentle, and much- beloved-by-all-children black bear, which he keeps in a very secure cage.
This bear presents no danger whatsoever to adjoining property owners. Indeed, it actually benefits them. Yet for all that, it may be true that this bear falls within the intended prohibition for either of two reasons. Confronted with the situation, the lawmaker might think, ‘I did intend to prohibit all wild animals, but I was mistaken not to have carved out an exception for wild animals like this one'. Alternatively, the lawmaker might think, ‘I intended a broad and blunt rule prohibiting all wild animals, and I was well aware that there would be cases like this under the rule. I resisted making such an exception in favor of determinateness, learnability, and so forth, believing that the benefits of the broad, blunt rule would outweigh the costs presented by instances such as this one'.Both of these examples illustrate the possibility that a lawmaker's intended meaning can extend to things that he did not envision at the moment of enactment and that also do not fall within the purpose his rule is designed to accomplish. Moreover, a lawmaker's intended meaning can be completely at odds with his purpose for enacting the rule. Perhaps, for some reason, allowing landowners to possess certain wild animals would actually increase the safety and welfare of adjoining landowners. (They may, for example, be able to take effective and relatively costless precautions against animal attacks and at the same time learn how to profit from the animals' proximity; or statistics may show that crime decreases in neighborhoods with certain wild animals.) It may turn out then that prohibiting some of these animals within one thousand feet of residences is a colossal legislative mistake. Nonetheless, it may be quite clear to both the lawmaker and his audience that such a prohibition, however ill advised, was his intended meaning.[17] It is, therefore, the meaning of the rule.
On the other hand, there may be some cases of ‘wild animals within one thousand feet' that the lawmaker clearly did not intend to include within his prohibition.
Suppose our hypothetical landowner with the declawed, defanged, loveable black bear is faced with an oncoming forest fire or flood and escapes with his pet bear by a route on his property within one thousand feet of a neighbor. The lawmaker may very well say, correctly, ‘I didn't intend my prohibition to apply to that case, and it would be absurd for anyone to imagine I did.'[18] It follows that the case is not covered by the rule. Likewise, Mom might say the same if the question is whether, in order to comply with her request, Rover should be put out on a cold evening if he is suffering from pneumonia. He should not.Finally, however odd this may seem, there may be some cases where the lawmaker himself will not be able to determine what he intended. Suppose the lawmaker had no idea that koalas are wild animals. Or suppose a new species is discovered whose members are the size of a Lhasa Apso, quite shy and docile, and have been, as with elephants and cheetahs in some parts of the world, successfully domesticated by a tribe in the jungles of New Guinea. The lawmaker himself might be quite perplexed over whether he did or did not prohibit possession of that species (Hart 1961). The line between indeterminate rules - where the rule-maker himself would be perplexed over what meaning he intended - and determinate but infelicitous rules (rules the rulemaker would regret) will itself be an uncertain line. Nonetheless, over a substantial range of cases, the rule-maker's intended meaning will be determinate even if infelicitous.
We believe it is possible for a rule subject to advert in a limited way to the rule-maker's purposes in order to grasp what the latter intended to do by enacting a rule, without at the same time equating the rule's meaning with those purposes. Nevertheless, we briefly take up several analyses that raise questions about this distinction and hence about whether lawmaker's intent can serve as the basis of determinate rules.
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