The interpretative arguments from legislator's intention

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Abstract

This essay aims to examine the interpretative argument of the legislator’s intention. We will distinguish six variants of this argument: three variants referring to historical legislators and three variants referring to an ideal, rational legislator. For each of them, we will give examples and explain the values that justify them. Then, we will present the theoretical criticisms directed against each variant: in support of these criticisms, we will also
present the results of a recent empirical research carried out in the Italian legal
system. We will argue that the theoretical criticisms are justified. The variants
referring to the intention of historical legislators raise conceptual, ontological
and epistemic problems and, in fact, are rarely employed (at least in Italian case
law). The variants referring to the ideal legislator, on the other hand, open up
room for judicial discretion.