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Published online by Cambridge University Press: 20 July 2015
Scott Shapiro offers an elaboration and defense of “legal positivism,” in which the official acceptance of a plan figures as the central explanatory notion. Rich in both ambition and insight, Legality casts an edifying new light on the structure of positive law and its officialdom. As a defense of positivism, however, it exhibits the odd feature that its main claims will prove quite acceptable to the natural lawyer. Perhaps this betokens – what many have begun to suspect anyway – that our usual tests for classifying legal theories (as positivist or not) are, in the present state of discussion, no longer credible. In any case, my hope in the following remarks is to suggest how certain ambiguities in Legality might easily be resolved in favor of Planning Natural Law. The Planning Theory of Law, in other words, is not proprietary to positivism.
I am grateful to Arthur Ripstein for his insightful comments on an earlier draft, to the participants (including my co-organizer Sari Kiselevsky) at a roundtable discussion of Legality held at the Benjamin N. Cardozo School of Law in June, 2011, and to Scott Shapiro for giving us the opportunity to come together to discuss his remarkable book.
* Legality by Shapiro, Scott (Belknap Press of Harvard University Press, 2011)Google Scholar.
1. See, e.g., Waluchow, WJ, Inclusive Legal Positivism (Oxford: Oxford University Press, 1994) at 2 Google Scholar; Dworkin, Ronald, Justice in Robes (Cambridge, MA: Harvard University Press, 2006)Google Scholar at Introduction and Chapters 7-8, especially at 238-40; Allen, James, “A Modest Proposal” (2003) 23 Oxford J Legal Stud at 197–210, 205.CrossRefGoogle Scholar
2. See Legality at 119 [L].
3. See L at 134.
4. L at 119. No doubt, there is an ambiguity, relevant to my topic, in the word “fundamental” here. I take this up in Section 5 below.
5. L at 397; see also L at 134.
6. Shapiro calls this the “Possibility Puzzle.” (L at 20) He views the solution to it as the central point of contention in legal philosophy.
6. L at 119.
8. L at 117.
9. I’m not sure that Hart’s “model of rules” alone is incapable of answering the “possibility puzzle,” as Shapiro claims. Nonetheless, it is true that Shapiro is adding something to it, in offering “planning” as a quite general motivation for the official acceptance of a structure of rules of the kind Hart identified.
10. Kant, Immanuel, The Metaphysics of Morals, ed and translated by Gregor, Mary J, Cambridge texts in the history of philosophy (New York: Cambridge University Press, 1996) at A 321.CrossRefGoogle Scholar (What I have quoted here is in fact what Kant calls the Rechtsgesetz rather than the Rechtsprinzip, but the difference in the present context is unimportant.)
11. See ibid especially at A 255-57, 312.
12. L at 42.
13. L at 49.
14. L at 49; see also L at 185. For Shapiro, it is an “obvious truth…that regimes that are morally illegitimate may still have law” (L at 16).
15. Compare L at 42-44, 49 and, e.g., L at 27-30.
16. See, e.g., Waldron, Jeremy, “Kant’s Legal Positivism” (1996) 109:7 Harv L Rev 1535.CrossRefGoogle Scholar Waldron suggests that we bring Kant into the family of legal positivists, notwithstanding his distinctively non-positivist answer to my question (1).
17. I assume this is not meant to include providence or God’s plan for the world. See Austin, John, Province of Jurisprudence Determined (Cambridge: Cambridge University Press, 1995) at 184–85.CrossRefGoogle Scholar
18. L at 119.
19. I don’t mean that many of those, like Austin and Hart, who made advances in clarifying the structure of positive law cannot be found also saying: “And that is all that legality (“strictly speaking”) is—nothing more.” I mean that there are almost no arguments for this later claim. It seems instead to be widely assumed that once you’ve successfully described the structure of positive law, you’ve rejected the classical legal-theoretical tradition. But that can’t be right. For the natural lawyer has always known that there is positive law (the law of a time and place). If planning, as opposed to command or rule, is the key to legal positivity, the natural lawyer can accept that too; his claim was always that there is something more to the topic. I take it that an illustrative exception to this, and one of the few attempt on record to argue for a positivistic limitation of law, is Joseph Raz’s argument from the law’s claim to authority. See Raz, Joseph, “Legal Positivism and the Sources of Law” in The Authority of Law (Oxford: Oxford University Press, 1979) at ch 3Google Scholar; “ Authority, Law and Morality” in Ethics in the Public Domain (Oxford: Clarendon Press, 1995) at ch 10.Google ScholarPubMed
20. See Bratman, Michael, Intention, Plans and Practical Reason (Cambridge: Harvard University Google Scholar
21. On the priority of acting over intending or planning to act, see Moran, Richard & Stone, Martin, “Anscombe on Expression of Intention” in Ford, Anton, Hornsby, Jennifer & Stoutland, Frederick, eds, Essays on Anscombe’s Intention (Cambridge, MA: Harvard University Press, 2011) at 33 Google Scholar; Thompson, Michael, “Naive Action Theory” in Life and Action (Cambridge, MA: Harvard University Press, 2008) at 85.CrossRefGoogle ScholarPubMed
22. Shapiro apparently wishes to exploit the internal, nested rationality of acting (or planning) in order to explain the specific kinds of normative commitments that are involved in social rules. For example he says, “[w]hen we set ends for ourselves, rationality thus demands that we flesh out our plans”. Or again: “planners are rationally obligated to ‘fill in’ their plans…” (L at 123). A plan, “imposes a rational requirement to carry it out” (L at 128). “[A] planner is subject to criticism when she…does not carry out the plan…” (L at 127). (See also L at 128, 142, 181-82, 188). I find myself uncertain how central these appeals to a requirement of “instrumental rationality” are to Shapiro’s planning theory. The thesis is more controversial than he allows. It was put on the defensive by Joseph Raz, for example, in his paper “The Myth of Instrumental Rationality” (2005) 1 J Ethics & Social Phil 2. What is true, according to Raz, is that reasons transfer: If there is reason for one to pursue an end, then there is at least as much reason for one to take some sufficient means. And rational creatures are sensitive to such reasons. But this is different from thinking that there is a rational requirement of means-ends coherence as such. If I plan to poison a cat tomorrow, am I really irrational or subject to criticism if I do not take the steps—buying the poison, etc.—to carry this out? I think the answer is that it is my end that is subject to criticism, not my failure to adopt appropriate means.
23. See Hart, HLA, The Concept of Law, 2nd ed by Bullock, Penelope A & Raz, Joseph (Oxford: Oxford University Press, 1994) at 38.Google Scholar
24. See, e.g., Hayek, FA, The Constitution of Liberty: The Definitive Edition (Chicago, IL: University of Chicago Press, 2011)CrossRefGoogle Scholar Part II; The Road to Serfdom: Text and Documents (the Collected Works of Hayek, FA, Volume 2) (Chicago, IL: University of Chicago Press, 2007)CrossRefGoogle Scholar especially chs 4 and 6.
25. Aquinas, Summa Theologica, First of the Second Part, Q. 90, Art. 4. Summa Theologica, translated by the Fathers of the English Dominican Province (New York: Benziger Brothers, 1948) ST Ia IIae 90, 4.Google Scholar
26. The substitutions “constitutional good” or “civil good” or even “political good” are helpful here just to dispel the utilitarian implications which “common good” is apt to have for modern ears. That is no necessary implication of Aquinas’ formal definition. Neither is any thought that the law is merely an instrumental means of bringing about the common good. On different “constitutional goods,” see Brudner, Alan, Constitutional Goods (Oxford: Oxford University Press, 2007).CrossRefGoogle Scholar
27. Arthur Ripstein, “Self-Certification and the Moral Aims of the Law” in the present volume.
28. Hegel also follows Kant by beginning his account of law with a description of private law (which he calls “abstract right”). Only much later does the State (in the sense of organs of government or the structure of public rules which make positive law possible) come into the discussion. See Friedrich Hegel, Georg Wilhelm, Elements of the Philosophy of Right (Cambridge: Cambridge University Press, 1991).Google Scholar
29. “In a certain way”: Hart recognizes this as a necessity, but one that is contingent on the state of human life as we find it. Hart, supra note 23 at 193-200.
30. L at 119.
31. On this, see Stone, Martin, “Legal Positivism as an Idea About Morality” (2011) 61.2 UTLJ 313.CrossRefGoogle Scholar
32. My effort here is not to resolve this issue, but to sketch a possibility which Shapiro does not consider: namely, that the structures of legal positivity which his “planning theory” seeks to illuminate might find their place in a legal theory for which the moral problem to which law responds is primary. I am indebted to Arthur Ripstein for clarification of the points in this paragraph of the text.
33. See L at 3.
34. See, e.g., L at 171, 175, 213, 386, 399.
35. L at 21.
36. The same holds for the topic of action (which includes planning to act) in general. Someone can be doing something but never succeed in doing it; indeed, the failure to do what one intends or plans to do is extremely common. Applying Shapiro’s “minimal core” strategy here will lead to strange results, such as that acting is essentially an inner movement of the will (or a movement of the muscles), and all else—like actually opening the window—a happy accident.
37. Frederick Schauer contests this from a different direction. He does not think that jurisprudence should restrict itself to giving “philosophical accounts” of the law (conceived in terms of essential features), but should interest itself in sociologically typical (but non-essential) features of the law as well. He regards coercion as such a feature. See Schauer, Frederick, “The Best Laid Plans” (2010) 120 Yale LJ 586.Google Scholar I mention this only to distinguish it from the methodological criticism I am making here.
38. The following paragraphs follow the discussion of forms of generality in Anton Ford, “Action and Generality” in Ford, Hornby and Stoutland, supra note 21 at 76.
39. Similarly, as Anton Ford points out, intentional action is the essential species of action; action theorists, in making it the primary object of their investigation, are not bizarrely truncating their topic. See Ford, ibid.
40. They are not failures of “plain speech.” Cf Hart, HLA, “Positivism and the Separation of Law and Morals” (1958) 71 Harv L Rev 593 at 594, 601, 621-24.CrossRefGoogle Scholar
41. In the Gorgias, Plato asks, “Among all the political office holders, is there any true politician?” Clearly, it makes no sense to ask: Among all the noses, is there any true nose?—except perhaps in a world in which the sense of smell has become widely impoverished.
42. E.g., for Austin, the relevant fact was that of certain people ensuring the likelihood that other people will meet with pain if certain orders of theirs were not obeyed, etc. See Austin, supra note 17.
43. On the impossibility of practical laws for a utilitarian, see Muller, Anselm, “Radical Subjectivity: Morality Versus Utilitarianism” (1977) 19.2 Ratio Juris 115 Google Scholar, and, from a different angle, Anscombe, Elizabeth, “Modern Moral Philosophy [1958]” in Collected Philosophical Papers, Volume III (Oxford: Basil Blackwell, 1981).Google Scholar
44. Austin, supra note 17.
45. On the meaning of Aquinas’ dictum, see Finnis, John, Natural Law and Natural Rights, 2nd ed (Oxford: Oxford University Press, 2011) at ch 12.Google Scholar
46. I am not suggesting that one must be a utilitarian to be committed to the “accidental specification” view. All you need is a view of morality as self-standing, as complete in its basic principles and demands, independently of the law, so that the moral necessity of law, if there is any, is no a priori part of moral theory, but a function of the circumstances. Utilitarianism is simply the most well worked out of such pictures of morality.
47. See the citations in supra note 1.
48. L at 3. Nothing in this paragraph is meant to raise doubts about whether Shapiro has joined issue with the view of Ronald Dworkin. By recasting previous natural themes in terms of the positivist’s own question concerning the existence or validity conditions of the law of a time and place, Dworkin ensured a future career for “positivism” (as opposed to mere elucidations of the structure of positive law) by giving it the target it previously lacked. Notably, contemporary positivists usually take Dworkin as their target and ignore the pre-Austinian traditions in legal theory. Hence, the encounter with “natural law” has come to be regarded by many as mainly an argument with Dworkins’s view that moral facts help determine the existence and content of the law of a time and place. But even if that question gets resolved against Dworkin—for perhaps the reason Shapiro has advanced (“The logic of planning”: L at 177), the question of law’s moral basis, as it is discussed in the natural law tradition, remains open. It seems to me that neither Hart’s “model of rules” nor Raz’s argument from authority nor Shapiro’s “logic of planning” is inconsistent with anything that tradition has wanted to assert. From this perspective, these theories might be regarded as elucidations of legal positivity, not positivisms in any distinctive sense.
49. See L at 49.
50. L at 391 [emphasis added].
51. L at 392.
55. L at 214.
56. Cf L at 171: “[L]egal systems are institutions of social planning and their fundamental aim is to compensate for the deficiencies of alternative forms of planning in the circumstances of legality.” This suggests that the moral necessity of law is only a matter of its superior efficiency, under the circumstances, compared to other means for accomplishing the same ends. The passage continues: “Legal systems are improvements over alternative forms of planning, and hence fulfill their mission, whenever the total reduction in the costs of planning more than offsets any increase in the moral costs engendered by the switch.”
57. Ripstein’s (at supra note 27) observation that this is not a psychological question about the intentions of the planners is relevant here. In the strong version of the moral aim thesis, the emphasis must fall not on the planners having some moral aims, but on their aiming correctly, on their getting the moral-cum-legal problem right.
58. L at 391.
59. L at 399.
