Abstract

Joseph Raz defends the authoritative intention thesis, which has it that to the extent that law derives from deliberate law-making, its interpretation should reflect the intention of the law-maker. The idea is that as a matter of conceptual necessity, if one follows legislation, then one interprets the relevant piece of legislation in such a way that it reflects the intention of the law-maker. Raz’s position, then, is that legal content (as well as form) that is the result of deliberate law-making is necessarily communicated content. While I find the authoritative intention thesis appealing, I do not find the arguments that Raz adduces in support of the thesis persuasive. Raz adduces two main arguments in support of the thesis, which I shall refer to as the no-prediction argument and the argument from authority, as well as a third, highly condensed argument, which he mentions in passing in a discussion of another question; and all three arguments involve the assumption that as a matter of conceptual necessity, law aims to function as an authority, and the claims that legal directives that are not interpreted in accordance with the law-maker’s intention, will, strictly speaking, not be the law-maker’s directives, and that this in turn means that the law-maker cannot be in control of the process of legislation and can consequently not function as an authority. As I try to show, all three arguments fail, though in different ways.