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INFELICITIES OF THE INTENDED MEANING
Or, put differently, the only intentions such bodies have consistent with the role that rule makers are supposed to play are some aggregation of the
individual intentions of the members. Aggregation of individual inten- tions is not a problem if a majority has identical intentions. Where those
intentions come apart, however, the passage of a law may be illusory in this sense: despite the appearance of legislative majority agreement that
there be such a law, every possible intended meaning of that law would have been opposed by a majority of the legislative body. Put differently,
no majority determined any possible meaning for the law.
A norm of form such as one that irrebuttably assumes that all laws are intended to mean what they mean in the standard English of the date of
enactment can save some laws from the failure to command a majority of consistent individual intentions. Such norms will not handle all cases,
however, for even standard English will leave open the possibility of ambiguity. And in such instances, by application of Arrow’s theorem,
we face the possibility of majorities in favor of a law and its language but against all possible meanings of that language.
Consider this stylized representative case. Rule makers A, B, and C vote on term T. T is vague and can mean W, X, and Y or W, X, and Z. A
votes aye, intending W, X, and Y. B votes aye, intending W, X, and Z. C votes no. A would have voted no had he been presented with B’s definition
as his only choice. B would have voted no had he been presented with A’s definition as his only choice. Moreover, a truncated version of T, one that
covered only W and X and neither Y nor Z, would likewise have been rejected. It is clear in this case that we have no majority of the authorities
in favor of any possible meaning of T, even though we have a majority in favor of T itself.
See Kenneth J. Arrow, Social Choice and Individual Values 2d ed., New Haven: Yale University Press 1963. Arrow established that democratic procedures for determining policy cannot
avoid the possibility of the following dilemma. When the policy choices are A, B, and C, and the voters are V
, and V
, it is possible for V
to favor A over B; it is possible for V
to favor B over C; and it is possible for V
to favor C over A. Id. at 2–3. In such a situation, majority rule produces indeterminate results. Id. at 3, 51–59. Every
policy a majority favors can be trumped by another policy favored by a different majority in an endless cycle. Unless restrictions are placed on the voters’ agenda, extra weight is given
to some voters’ votes, or some other objectionable constraints are placed on the voters, this possibility of endless cycling is unavoidable. Id. at 22–31.
See Kenneth A. Shepsle, Congress Is a “They,” Not an “It”: Legislative Intent as an Oxymoron, 12 Int. Rev. Law Econ. 239 1992.
REASONING FROM CANONICAL LEGAL TEXTS
Or consider a simple case of ambiguity, such as would occur if there were an ordinance forbidding “canards in the park.” A voted for it to
prohibit lying. B voted for it to prohibit ducks. C voted against it, as would have A or B had “canard” clearly meant what the others intended
One way to handle such cases of failed law is to bite the bullet and say that, despite appearances to the contrary, those legal texts are not laws.
They are only apparent laws. Alternatively, one might decide that having apparent laws on the
books is undesirable for two related reasons. First, the existence of apparent laws confronts those subject to the laws with the specter of
uncertainty. In many or most cases, it will be difficult for the average subject of the laws to determine if a particular law is real and meaning-
ful or only apparent. The uncertainty implicates the rule-of-law value of accessibility.
Second, the existence of apparent laws and the consequent uncer- tainty makes it difficult for legal authorities to carry out their function.
For if they are uncertain about the content of the existing laws, they will be severely handicapped in deciding how best to legislate.
It might be desirable, therefore, to have norms that direct official interpreters to breathe meaning into laws that are actually meaningless –
in effect, to adopt the language of the existing laws but to “reauthor” those laws so that the laws reflect the interpreters’ determinations of what ought
to be done within the constraints of the norms of form. Such norms would make the official interpreters into the primary rule makers, though
constrained by the earlier rule makers’ choice of language.
Although many commentators propose such norms, they frequently make the
mistake of conflating actions taken in pursuance of such norms with interpretation of the statutes or constitutional provisions that exhibit the
failure of law. Those statutes and constitutional provisions are not being interpreted, however, for interpretation would conclude that they are
meaningless marks. Rather, the statutes and constitutional provisions are being reauthored by a new set of legal rule makers.
Note that the same problem of failed law would arise with respect to the interpreters’ determinations if the interpreters were multimember bodies, such as appellate courts.
INFELICITIES OF THE INTENDED MEANING
Again, it should be emphasized that, as with substantive norms, these norms of form and of failed law must be the products of a decision-
making body that possesses higher authority than the rule maker to which they apply. That is so again because these norms lead to departures from
the norm-constrained rule maker’s intended meaning regarding what ought to be done. And, just as with the substantive norms, these norms
of form and of failed law themselves mean what the higher-authority decision maker intends their meaning to be.