On the Different Understanding of the Legislative Intent in the Anglo-Saxon Discourse. Analysis of the Views of Stanley Fish, Larry Alexander, Jeffrey Goldsworthy, Richard Ekins, and Victoria Nourse

Redakcja (Mateusz Pękala) — Fri, 15 Dec 2023 16:25:28 +0000

Mgr Paweł A. BOIKE

“Rerum Socialium” Interdisciplinary Doctoral School of Social Sciences,
Nicolaus Copernicus University in Torun

English abstract: The intention of the legislature, as a constitutive concept for intentionalism, is understood very differently by representatives of this trend and not only by them. The aim of this study is to familiarize the Polish reader with how intentions are understood by five authors: Stanley Fish, Larry Alexander, Jeffrey Goldsworthy, Richard Ekins, and Victoria Nourse, as well as to conduct a comparative analysis of their views. This involves the use of a theoretical method consisting in the description of concepts and an attempt to compare them. In the light of the findings, it should be emphasized that Victoria Nourse’s views are more in line with the assumptions of purposivism than intentionalism. Stanley Fish and Larry Alexander represent a radical variety of intentionalism, on whose basis, due to radical ontological assumptions, it is not possible to build any methods of interpretation capable of practical application. Not so with Jeffrey Goldsworthy and Richard Ekins, who assume that the legislature acts in accordance with “simple common sense”.

Keywords: interpretation, intention, intentionalism, purposivism, originalism

Language: Polish

Published: Number 4(37)/2023, pp. 15-26.

DOI: https://doi.org/10.36280/AFPiFS.2023.4.15

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Number of downloads: 250

This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.

Legislative Materials in the Light of Polish and Spanish Law, Judicial Practice and Theoretical Literature

Redakcja — Sun, 29 Sep 2019 21:57:51 +0000

Mgr Paulina Konca

University of Silesia

Abstract: The purpose of the paper is to present a comparative analysis of the use of legislative materials in the process of statutory interpretation in Poland and Spain, by referring to statutes, theoretical literature and case law. The paper is divided into three parts. The first part shows that in difficult cases, when the text is not clear enough as an evidence of the legislator’s intention, other evidence should be sought, including the legislative materials. The second part delivers an analysis of the term ‘legislative materials’, followed by a study of particular examples of legislative materials, including bills and their justifications. It focuses especially on the issue of the Spanish exposiciones de motivos. Moreover, there is a reference to interpretative guidance contained in the legal regulations and to the ways in which legislative materials are used in case law. The third part of the paper responds, on the basis of Polish and Spanish theoretical literature, to some of the objections against the use of legislative materials, underlining its importance for the interpreting the law.

Keywords: legislative materials, legislative history, interpretation, intention, Spanish law, Polish law, ratio legis

Language: Original printed in Polish, English online translation

Received: 13.01.2018
Accepted: 19.04.2018

Published: Number 1(19)/2019, pp. 38-50

DOI: https://doi.org/10.36280/AFPiFS.2019.1.38ENG

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Number of downloads: 324

Archiwum Filozofii Prawa i Filozofii Społecznej