Intent in Norms

Scholars sometimes frame debates on legal interpretation in terms of differences between intentionalists and nonintentionalists. However, even nonintentionalists commonly adopt some form of intentional interpretation. For example, when Justice William Brennan (1906–1997) of the U.S. Supreme Court disputed intentionalism in legal interpretation, he argued that the Constitution “was not intended to preserve [Page 803]a preexisting society” (1988: 18). The disagreement between Brennan and his opponents was not a matter of intentionalism versus nonintentionalism. Implicitly, it concerned different sorts of intention.

We may distinguish varieties of intentions through two parameters: (1) the object of intention and (2) the intending subject. Objects of intention are semantic or practical, thus meanings or goals. In interpreting a legal norm, we may concern ourselves with the intentional meanings of the text or with its intentional goals. Brennan invoked the intentional aims of the framers of the Constitution. His opponents invoked the intentional meanings. Legislators expect their meanings to conduce toward their goals. However, changing circumstances may lead to a discrepancy between the two.

The distinctions among intending subjects are equally consequential. Many intentionalists focus on the authors of legislation. However, if a larger body votes to enact legislation, then the intents of this larger body are probably more significant. Moreover, in the popular ratification of a constitutional amendment, the intentional aims and meanings of ordinary citizens enter into the discussion.

The larger the group in question, the more general the resulting intentional interpretation, as it must cover what is common to the various intents. This exacerbates the problem of interpretation and leads us to a further distinction in meaning—between definition and extension. (The extension of a meaning is the set of particulars to which it refers.)

One commonly specifies extensions in legal interpretation in two ways. These too are ultimately a matter of intention. First, for terms with a primarily legal usage, we commonly interpret extensions in such a way as to preserve consistency in the legal system. Thus, we do not interpret a statutory reference to “voters” as extending only to men even if the legislation preceded women's suffrage. Part of the implicit semantic and practical intention of the U.S. Constitution's Nineteenth Amendment involved changing the extension of such terms everywhere in the legal system.

The second way in which we commonly specify extensions concerns terms that figure in specialized fields of research. In these cases, we often accept the standard (intentional) meanings in the relevant scientific community today (for example, the meanings of human life in the medical community).

In sum, intent is often crucial to the interpretation of legal norms. However, intention is a complex concept. Thus, it is important to distinguish varieties of intention if one wishes to understand intent in norms.