Ekins on Groups and Procedures

Abstract: Richard Ekins’s argument, developed in his The Nature of Legislative Intent, rests on four pillars: a socio-ontological conception based on a theory of how groups act; a theory of language use; an explanatory attempt, namely, a descrip- tive account of the nature of the legislative process; and, finally, a normative account of a legislature’s authority. In this paper, we will focus on Ekins’s socio-ontological perspective and argue that, though Ekins’s use of socio-ontological tools to address the nature of legislative intent is undoubtedly innovative, his approach in this regard does not necessarily bring him to the conclusion he argues for. In the first part of the paper, drawing on John Searle and Raimo Tuomela, we will show that a socio- ontological approach to legislatures does not necessarily entail that the nature of legislatures is best accounted for in terms of groups. In the second part of the paper, drawing on Michael Bacharach’s group-centered approach to game theory, we will argue that a different socio-ontological approach works better on explanatory grounds. Hence—this will be our conclusion—Ekins’s socio-ontological assumptions, taken alone, cannot do the work they are assigned.