Comunicación y reconocimiento de la intención legislativa

Abstract

Legal theory recurrently discusses what importance should be given to the prescriptive will of the normative authorities when interpreting the provisions they enact and determining their content. In particular, it is discussed whether the law should be understood only by its text or whether it is also necessary to resort to other evidence to find out the real intention of the legislator or even to presume the one he would have had with respect to the case under examination; and whether this reconstruction of the legislative intent is a better source of law than the apparent meaning of the legal text itself and justifies the latter being ignored. The reconstructive intentionalist thesis rests on the powerful intuition that the legislated law is the intentional product of normative authorities and its meaning and content depend on that intention. However, in current legal systems the legal text is the established way for authorities to communicate their intent and create law, so that it is justified on legal and practical grounds to take the text as the exclusive and authentic source of legislated law. Moreover, meanings of utterances are made objective when they are conditioned by conventions and practices, as is especially the case in institutional contexts such as legislation. This places the responsibility for the success of the communication of norms mainly on legislators, who must take care that their intention is well explained in the provisions they enact, while the addressees who interpret them must be able to rely on that ability and presuppose that what the law says is the law intended by the legislative authority.