The interpretative arguments from legislator’s intention: Troublesome profiles = Los argumentos interpretativos de la intención del legislador: perfiles problemáticos

This essay aims to examine the interpretative argument of the legislator’s intention. We will distinguish six variants of this argument: three variants referring to historical legislators and three variants referring to an ideal, rational legislator. For each of them, we will give examples and explain the values that justify them. Then, we will present the theoretical criticisms directed against each variant: in support of these criticisms, we will also present the results of a recent empirical research carried out in the Italian legal system. We will argue that the theoretical criticisms are justified. The variants referring to the intention of historical legislators raise conceptual, ontological and epistemic problems and, in fact, are rarely employed (at least in Italian case law). The variants referring to the ideal legislator, on the other hand, open up room for judicial discretion.