Academic

Green on Intentionalism & Interpretation

By Lawrence Solum

Daniel Austin Green (Liberty Fund, Inc.) has posted Intention and Interpretation on SSRN. Here is the abstract:

In this essay I address the terms under which discussions of legal (constitutional and statutory) interpretation take place, advocating a shift away from ?originalism? as guidepost to ?intentionalism.? Not simply an empty rhetorical shift, I argue that originalism has far more in common with its foes than has been generally recognized, and that intentionalism better implicates the most fundamental aspect of interpretation: the existence and nature of intentions. I assert that originalists, just as much as many traditionally considered opposed to them, are intentionalists because they rely on mental state theories of intention. Delving into the philosophy of action and literary theory, I also suggest that it is helpful to talk of intentionalism because it relates legal concerns to related concerns in other fields. Moreover, I rely on the work of others who, in various ways, have discussed the broader context and implications of intentionalism in the legal literature.

Although I do not here limn or endorse a specific interpretive methodology, my conclusions do extend to asserting that originalism and textualism, instead of being complimentary, are at direct odds with one another ? with originalism being a form of intentionalism and textualism explicitly rejecting intentionalism. An important question remains unanswered, but is immaterial to my conclusions: Does collective (e.g. legislative) intent exist at all? The question could have implications for designing a specific theory of interpretation, but either rejecting the very existence of legislative intent or accepting an action-based theory of intention, both render one a non-intentionalist, thus I need not address that question here. I conclude by discussing the implications and context of my intentionalist/non-intentionalist distinction, as it relates to the existing literature and discussion.

Full post as published by Legal Theory Blog on May 15, 2009 (boomark / email).