Original Intent and Legal Interpretation

Abstract

This paper offers a close analysis of intentionalism -- the idea that the meaning or proper application of written law is determined by certain historical facts about the mental states of those who made the law, at the time they did so. Unrestricted intentionalism faces deep-seated problems: it offers no guidance for resolving its own ambiguities, it almost certainly generates contradictions, and it almost certainly implies that some meaningful laws lack meaning or proper application. On purely theoretical grounds, therefore, the unrestricted theory is almost certainly untenable. I suggest further that there's little prospect of refining intentionalism so that it might provide interpretive guidance; and finally that a type of seemingly intentionalist reasoning is better seen as proposing justifying rationales for laws -- an approach for which there is a plausible justifying rationale (but which, I note, is essentially limited by the availability of genuine justifications).