S. Francescutto
IL LEGISLATORE COME METAFORA. UN'ANALISI CRITICA. [Tesi di dottorato]
Università degli Studi di Milano, 2016-06-23
It is common for courts and interpreters to refer to legislative intent to justify a particular interpretation of a statute. Although the nature of legislative intent has raised vigorous theoretical debates, the reference to what the legislature meant, wanted, implied or aimed to realize is usually accepted as an argument to solve questions and doubts concerning the meaning of legal texts. In this thesis I claim that the reference to legislative intent is not as innocuous as it may seem. On the contrary, justificatory reasoning based on this interpretative technique can be extremely misleading and therefore unable to count as a good reason in favor of interpretative conclusions. I maintain that the deceiving role of legislative intent in legal argumentation is due to the inevitable influence that figurative language has on they way in which speakers perceive and conceptualize the world. By using expressions like ‘legislative intent’, ‘intentions of the legislature’ and similar, in fact, we tend to consider a collective body (the legislature) as a single legislator capable of having intentions. In other words, language allows its speakers to personify a group and to confer to it features, intentions, and behaviors that belongs to single individuals only. Because of this personification I argue that, when used as if it designated a single legislator, the term ‘legislature’ works as a metaphor, i.e. a linguistic shorthand to imply an entire network of allusions, suggestions and connections by saying little. The first part of the thesis is dedicated to the examination and critique of some of the most significant and remarkable theories of metaphors. In particular, I examine the theories offered by Aristotle, I. A. Richards, M. Black, P. Grice, J. Searle and G. Lakoff. I conclude the evaluation of these theories claiming that through metaphors an undefined number of associations between two conceptual domains are created. For this system of association remains implicit and speakers may infer different conclusions from it, metaphors are a deceptive tool and cannot stand for a premise in justificatory reasoning. The first part of the thesis thus offers the theoretical means to turn to the examination of the ‘legislature’ as a metaphor, which is the topic of the second part. The first section of the second part is devoted to the nature of intentions. After presenting intentions as peculiar state of mind of single individuals, I illustrate the difficulties connected to the alleged possibility of retrieving the intentions of the legislature. Then I examine the role of legislative intent in legal reasoning and I illustrate how this argument indirectly influences and affects many others. After criticizing five theoretical models that offer different solutions to the identification of the legislature and its relevant intentions, I claim that the consideration of the retrieval of legislative intentions as a key moment of the interpretative process is rooted in the legal positivism developed in eighteenth and early nineteenth-century that had wrongly been considered overtaken. I close this first section claiming that the retrieval of the author’s intentions in neither necessary nor appropriate to confer meaning to the text. In the second section I analyze the outcomes of this conclusion. Claiming that no retrieval of the intentions of the author of the statute would help justifying its interpretations, in fact, the authority of the legislature is inevitably questioned as well. I analyze the connection between authorship and authority through the works of J. Raz who claims that the justification to legislative intent comes directly from the authority of the legislature. After criticizing this position I conclude the thesis with a possible solution to separate authorship and authority..
diritti: info:eu-repo/semantics/openAccess
In relazione con info:eu-repo/semantics/altIdentifier/hdl/2434/403057
LUZZATI, CLAUDIO RAFFAELE
tutore: C. R. Luzzati ; coordinatore: F. Vigano'
VIGANO', FRANCESCO
Settore IUS/20 - - Filosofia del Diritto


Tesi di dottorato. | Lingua: Italiano. | Paese: | BID: TD18002523