The nature of legislative intent remains a subject of vigorous debate. Its many participants perceive the intent in different ways. In this paper, I identify the reason for such diverse perceptions: three intentions are involved in lawmaking, not one. The three intentions correspond to the three aspects of a speech act: locutionary, illocutionary and perlocutionary. The dominant approach in legal theory holds that legislative intent is a semantic (locutionary) one. A closer examination shows that it is, in fact, an illocutionary one. In the paper, I draw the consequences for legal interpretation of this more theorized model of legislative intent.
The author would like to thank Mikołaj Barczentewicz, Laurence Claus, Tomasz Kwiatkowski, Szymon łajszczak, Martin Kelly, Andrei Marmor, Maurice O’Brien, Stanley L. Paulson, Zygmunt Tobor, Maciej Witek, Radosław Zubek, the members of the Jurisprudence Discussion Group at the University of Oxford and the members of the Edinburgh Legal Theory Research Group at the University of Edinburgh, and two anonymous reviewers, for their invaluable comments on the earlier drafts of this paper.
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Matczak, M. Three Kinds of Intention in Lawmaking. Law and Philos 36, 651–674 (2017). https://doi.org/10.1007/s10982-017-9302-8