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10 - Subjective versus Objective Intentionalism in Legal Interpretation

from Part II - Problems in Constitutional Law

Published online by Cambridge University Press:  02 November 2018

Heidi M. Hurd
Affiliation:
University of Illinois
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Summary

Larry Alexander has long been a leading proponent of the thesis that the meaning of a law is the meaning that the lawmaker intended it to communicate. He has argued frequently and powerfully against nonintentionalism, which denies either that a multimember lawmaker can have an intention, or that its intentions inform the meanings of its laws. In this chapter I say only a little about that debate, but enough to indicate why I agree with Alexander that nonintentionalism (thus defined) is implausible. Instead, I mainly discuss a disagreement within the intentionalist camp, between “strong” or “subjective” intentionalists – such as Alexander and Richard Kay – and “weak” or “objective” intentionalists – such as me. I treat Larry Solum’s public meaning originalism as a version of the latter position. I explain and assess the main arguments for and against these positions, and defend objective intentionalism and public meaning originalism against Alexander’s and Kay’s criticisms.
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Moral Puzzles and Legal Perplexities
Essays on the Influence of Larry Alexander
, pp. 170 - 188
Publisher: Cambridge University Press
Print publication year: 2018

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