Uncommon Legislative Attitudes: Why a Theory of Legislative Intent Needs Nontrivial Aggregation

• Published date: 01 June 2021
• Author: David Tan
• Date: 01 June 2021
• DOI: http://doi.org/10.1111/raju.12312

© (2021) John Wiley & Sons Ltd.

Ratio Juris. Vol. 34 No. 2 June 2021 (139–160)

Uncommon Legislative Attitudes:

Why a Theory of Legislative Intent

Needs Nontrivial Aggregation

DAVID TAN*

Abstract. Since the publication of Ekins’s The Nature of Legislative Intent, significant attention

has been paid to common attitude models of legislative intention, that is, models that require

unanimity among its group members. A common interpretation of Ekins is that these common

attitudes are to be preferred over aggregated attitudes. I argue that any feasible theory of leg-

islative attitudes will require nontrivial aggregation (i.e., not based on unanimity rules alone).

Two arguments are put forward in this regard: first, that nontrivial aggregation better explains

uncooperative legislative behaviour and, second, that mathematical problems with aggregation

apply to common attitudes as well, since they involve trivial aggregation. These arguments

generalise to theories of common attitudes other than Ekins’s.

Theories of group attitudes have become increasingly central to explaining how

the concept of legislative intention is coherent (I use the term attitude to encompass

any kind of mental state, whether a judgment, preference, or intention). Perhaps the

most comprehensive and seminal work in this area is Ekins’s The Nature of Legislative

Intent (Ekins 2012), which argues that legislative attitudes are not reducible to the

aggregated attitudes of individual legislators. Instead, legislative attitudes must be

attributed to the legislature as a whole with its members jointly working together

(ibid., 47). These attitudes are what List (2014, 1609) refers to as common attitudes. In

contrast to common attitudes, an aggregated attitude is a group attitude determined

by some combination of individuals’ attitudes (e.g., the group has some attitude to-

wards p if more than 50 percent of individuals have an attitude towards p). At least

that is how the two models are often framed in the legal context (see Section1).

In this paper, I argue that if legislative attitudes exist, they must rely on nontrivial

aggregation.1 A nontrivial aggregation is one that does not require unanimity of indi-

viduals for the group to form an attitude. Trivial aggregations, on the other hand, do

1 This paper also only focusses on the ontological question— the existence and nature of legis-

lative attitudes— rather than the epistemic one— how we identify them (Canale and Poggi 2019,

125– 6).

* The author would like to thank participants at his talk in the 2019 Australasian Association of

Philosophy Conference, a work- in- progress seminar at Deakin’s School of Philosophy, and the

anonymous referees for their useful feedback. Conversations with Stephanie Collins and Patrick

Emerton have also been very helpful. Any mistakes are of course my own.

David Tan

140

Ratio Juris, Vol. 34, No. 2© (2021) John Wiley & Sons Ltd.

require unanimity and I argue that common attitudes involve trivial aggregation. In

order to defend the necessity of nontrivial aggregation, I provide both a positive and

defensive argument. The positive argument states that nontrivial aggregated atti-

tudes better explain noncooperative group action such as legislating. The defensive

argument states that common attitudes are a form of trivial aggregation and thus

suffer from the mathematical problems that plague aggregated attitudes generally.

Of course, it might be that there are no such things as legislative attitudes, in which

case this paper says nothing.

As a preliminary point, Section1 shows that there is a third position beyond non-

trivial aggregation and common attitudes: corporate attitudes. Corporate attitudes are

the attitudes of a group acting as an agent which might be formed from a combi-

nation of nontrivial aggregation and common attitudes. Since corporate attitudes

involve nontrivial aggregated attitudes, it is a plausible contender for a theory of

legislative attitudes (in fact, as I discuss in Section2.1, it might be the most attrac-

tive one). I will also show that Ekins might have sympathy for corporate attitudes

and thus for some amount of nontrivial aggregation. A bulk of this paper discusses

Ekins’s positions and arguments. There are two reasons for this. The first is that Ekins

has the most well- developed theory of common attitudes as applied to legislatures.

Secondly, Ekins is often credited as the main proponent of the view that any form

of aggregation cannot provide a satisfactory theory of legislative attitudes. Despite

the focus on Ekins, the arguments in this paper are generalisable to most accounts

of pure common attitudes (as long as they require unanimity and supervenience be-

tween the group and its individuals).

1. Corporate Attitudes and Two Readings of Ekins

The debate on legislative attitudes is sometimes framed on a false dichotomy attrib-

uted to Ekins (2012): One has to choose between aggregated or common attitudes as

a framework for legislative attitudes.2

Goldsworthy (2013, 823) states that “Ekins rejects […] notions […] of legisla-

tive intent […] which depict it as an aggregation of […] individual intentions […].

Instead, he defends a ‘unitary model’ according to which the relevant intention is

that of the legislature itself.”

Alexander (2014, 399) characterises Ekins’s views as “rejecting […] that legislative

intent must be the aggregate of individual legislators’ intents. Instead, he argues that

legislative intent is the product of the interlocking intentions of the legislators.”

Brand (2013) comments that Ekins defends the view that existing attacks on leg-

islative intentions only succeed in “discrediting legislative intent understood as an

aggregation of the intentions of multiple human legislators.” Instead, “the legislature

itself constitutes a collective agent that forms and acts upon intentions” (ibid.).

This is an oversimplistic view of the literature on collective attitudes, one that

Ekins himself might not endorse (see Section1.2). There is a third possibility of mix-

ing aggregation and common attitudes, which List (2014, 1615) calls corporate atti-

tudes. List and Pettit’s work in Group Agency (2011) is an example of such a theory. To

2 Giovanni Tuzet (2019, 70) is an exception, as he does not take Ekins as rejecting aggregation

altogether but rather takes Ekins as imposing collective rationality on those aggregations.