Monthly Archives: September 2011

Law Through the Prism of Planning

Sep 12, 2011 Mark Greenberg

Scott Shapiro’s splendid new book offers a novel theory of the nature of law: legal systems are essentially systems for complex, impersonal social planning, and legal norms are plans. The book provides a new perspective on law, which is both refreshing and fruitful. By thinking about the origins, purposes, and essential features of plans, we gain insight into law. A significant side benefit is that the book connects law to topics in contemporary philosophy of action.

Legality has more virtues than I can discuss here. To begin with, although the book is a highly original contribution to the philosophy of law, it presupposes relatively little background. It is also extremely clearly and engagingly written. The book would therefore make a superb text for a law school, advanced undergraduate, or graduate course. And, because Shapiro frames the issues in new ways, even those portions of the book that introduce and discuss familiar positions and issues provide much food for thought for specialists as well as the more general reader.

For example, early in the book, Shapiro explains what he calls “the Possibility Puzzle.” Legal norms come from institutions with the power to create legal norms, such as legislatures. An institution has the power to create legal norms because of a legal norm that gives it that power, for example a constitutional norm that grants legislative power to a particular body. But where does that norm come from? As Shapiro explains, there is a chicken and egg problem here. In order to solve the problem, we need either a legal norm that does not come from an institution with the power to create legal norms or an institution that has the power to create legal norms but does not derive that power from a legal norm.

Shapiro argues that Hume’s law – an “ought” cannot be derived from an “is” – is a severe obstacle to legal positivist attempts to solve the Possibility Puzzle, because such attempts purport to derive legal norms from nonnormative social facts. HLA Hart’s account is a case in point. According to that account, a convergent practice of legal officials is supposed to generate a social rule, the rule of recognition, that solves the chicken and egg problem. Shapiro offers a subtle interpretation of Hart’s approach to the challenge posed by Hume’s law and argues that, in the end, the approach fails.

On the other hand, however, Shapiro maintains that anti-positivist or natural law attempts to solve the Possibility Puzzle run into the “Problem of Evil”: grounding legal authority in moral authority or moral norms makes it difficult to see how evil legal systems and evil legal norms are possible. Shapiro uses these engaging and easily understood framing devices throughout the book, for example in bringing out the problems in other legal positivist accounts and in arguing for his own theory.

One of  Legality’s great strengths is that, although Shapiro is on the legal positivist side of the positivist/anti-positivist debate, his book engages with anti-positivist theorists to a much greater extent than many legal positivist works. Shapiro is sympathetic to anti-positivist motivations and tries hard to respond to the arguments of anti-positivist theorists. In some instances, he makes substantial concessions to their positions.

An example is that Shapiro agrees with the natural law claim that law has a moral purpose, and that, to the extent that it fails to serve that purpose, it fails to do what it is supposed to do.  Similarly, Shapiro rejects Hart’s claim that legal terms such as “obligation” have a different sense from the corresponding moral terms.  He holds that the law uses these terms to make moral claims.

Another notable example is that Shapiro recognizes that Ronald Dworkin has made extremely serious criticisms of legal positivism—criticisms to which no positivist has yet adequately responded.  Shapiro devotes a couple of chapters to trying to answer Dworkin. (One important point of disagreement: in my view, Shapiro is wrong to maintain that Dworkin’s theory of law depends on a claim about the intentions of legal creators – that they are “necessarily committed to a ‘best-lights’ analysis.” 308.) In sum, one reason Shapiro’s book is valuable – and admirable – is that, rather than passing natural law theory by, it seriously engages with and tries to respond to it.

Most significantly, Legality develops an original account of law in terms of the notion of a plan. A particularly rewarding aspect of the book is its discussion of plans and their relation to legal systems and legal norms. In his appealing and lucid style, Shapiro explores the characteristic features of plans, the needs to which they are responsive, the way in which they are created, and their relation to rationality. He makes the ingenious proposal to understand legal systems as complex systems for impersonal social planning and to understand legal norms as plans, including plans for planning. Like a legal system, planning is an extraordinarily effective instrument for guiding and organizing the conduct of agents who have complex goals but limited rationality and varying degrees of trust in themselves and each other. For example, like legal norms, plans can be created in advance to compensate for anticipated failings of rationality or lack of trust and can be left incomplete and filled in as more information becomes available.

Plans are specialized norms that have just the features, Shapiro argues, that are needed to solve central problems in legal philosophy. The solution to the Possibility Puzzle, for instance, is to be found in the possibility of planning: “we are able to create law because we are able to create and share plans” (181). In Shapiro’s view, the chicken and egg problem is solved because the power to plan derives from norms of instrumental rationality that are not themselves created by people. Because legal norms ultimately rest on these norms, Shapiro’s account is consistent with Hume’s law.

Shapiro thinks that plans are positivistic, i.e. that the content of a plan depends only on nonnormative facts. Because, on his account, the content of the law is the content of a plan – typically, of course, a highly complex plan with many sub-plans, sub-sub-plans, and so on – he concludes that his theory vindicates legal positivism. (More precisely, the content of the law comprises not only the content of the plan but also certain entailments of it.) I want to raise a question about this aspect of Shapiro’s theory. If a terrorist has a plan to blow up a bridge, the content of that plan plausibly is simply whatever he intends. Shapiro sensibly takes the position, however, that in the case of the content of the law, the content of the relevant plan is not wholly constituted by the content of any actual intentions or other psychological states (though the content of various intentions of diverse people may be relevant to the content of the plan). As I would put it, the relevant plan is imputed or constructed.

I believe (though I cannot argue here) that once we are in the business of imputing or constructing the content of the relevant plan, we cannot avoid relying on values to do so. (For related discussion, see my “The Communication Theory of Legal Interpretation and Objective Notions of Communicative Content”; see also my “Legislation As Communication? Legal Interpretation and the Study of Linguistic Communication” in A. Marmor and S. Soames, The Philosophical Foundations of Language in the Law (Oxford: OUP 2011), pp. 217-256, especially pp. 232-233 and section 6.) Shapiro agrees with this point, but he thinks that the relevant values are those of the legal system.

In my view, however, the very same difficulty arises when we ask how the practices of the legal system determine its values. Shapiro says that interpreters must extract the objectives of the legal system from the texts and other practices. But, to stay with this epistemic way of talking, an interpreter cannot move from facts about what various people did, thought, and said to conclusions about the objectives of the legal system without deciding which actors’ decisions or utterances are relevant to the legal system’s objectives, precisely what bearing those events have, how much weight they deserve, and so on. It is difficult to see how the right answer to such questions could not depend in part on moral facts, such as facts about fairness and democracy. For example, a particular past decision might be relevant, and relevant in a particular way, because it would be unfair for it not to be relevant in that way, given the expectations that it reasonably created; conversely, another decision might not affect the content of the plan because, given who made the decision or how it was made, it would be unfair for that decision to have a bearing on the content of the plan.

So I suspect that, if Shapiro is right that the content of the law is the content of a plan, whatever may be the case with respect to other kinds of plans, the content of the relevant plan necessarily depends on moral facts. My disagreement on this issue does not affect my overall judgment of the book: the interest, power, and illumination of Legality far transcend its implications for the legal positivism/anti-positivism debate.

Planning Ahead! (in Jurisprudence)

Sep 12, 2011 Ekow Yankah

Analytical jurisprudence has a peculiar status in American law schools to say nothing of philosophy departments. Most law professors find it an utterly inscrutable or arid project. More generous souls have the vague impression that it is important and like that one or two of their colleagues engage in it, but their gentle forbearance is not to be mistaken for interest. Even those steeped in the subject are often discouraged by the increasing narrowness of the “What is Law” question. It takes a good deal of squinting to see the live question surrounding the nuanced positions on the extent to which morality determines whether something can be considered law; that is, the “validity conditions of a legal system.”

Against this rather gloomy landscape, Scott Shapiro has introduced an illuminating new book, Legality. Though there are few who are as knowledgeable about analytical jurisprudence as Shapiro, his book is admirable not for its attempt to dazzle with intricacies. Rather, Shapiro’s work is laudable because it makes accessible decades of debate in modern jurisprudence while still providing a novel contribution. Most importantly, Shapiro revives the heartbeat of the debate, showing why it matters and synchronizing it with legal issues recognizable to those outside of the small world of analytical jurisprudence. This accessibility means that those who know this debate will find the preliminaries unnecessarily long, a quarter of an already rather long book. Yet, it is no small thing that Shapiro manages to explain half a century of thick debate in a way that interested audiences of lawyers, and perhaps more immediately relevant, undergraduates and law students can understand its contours. Speaking for the many professors who have shied away from teaching the subject, Shapiro’s book makes one reconsider the profitability of reintroducing this debate in the classroom.

Quibbling about jurisprudence classics with Shapiro may be its own sort of fun, but it would distract from Shapiro’s real accomplishment–breathing fresh air into the debate. Shapiro’s novel contribution is to apply the insights in philosophy of action, particularly Michael Bratman’s theories of intentions, to show how law can be seen as a model of social planning. Shapiro attempts to show why a planning theory leads to a positivist theory of law, excluding morality from determining what constitutes law and showing the practical effects for current legal questions.

The core claim of the book is illustrated in a simple and charming story of cooking dinner with a friend. From this, Shapiro spins a tale of the formation and organization of a cooking club to highlight the perfectly quotidian intuition that whether having dinner alone or organizing a cooking club, planning is necessary to achieve our basic goals. The more complicated our goals the more sophisticated our plans must become. Further, and this is crucial for Shapiro, in order to be useful a plan must possess a certain amount of stability. There is no point in painstakingly planning a gourmet meal if when you walk into the grocery store you wonder anew what to cook. Plans can be incomplete or revised in light of new information, but as a general matter plans must resist constant tinkering or reevaluation. Echoing Raz on authority, Shapiro concludes that plans must be accessible without re-evaluating the underlying merits on which the plan was originally based.

This telegraphs the plan of attack. Shapiro uses an analogy between law and the plans generally to generate “a planning theory of law.” On Shapiro’s account, legal institutions are forms of planning which allow large groups to achieve that which they could not otherwise. Critically, just as evil plans are still plans allowing human beings to channel their agency, the plans that constitute law need not be moral to constitute valid law. The only “moral aim” of law is a minimal one; solving the problems that arise as social tasks and ambitions grow more complex. Arguing that law, like plans, must resist reevaluation of its underlying (moral) merits to be useful grounds Shapiro’s positivism on novel grounds.

Elsewhere, I have argued for positivism premised on a conceptual connection between law and coercion. I argued both that coercive norms distinguish the normative systems best described as law and that alternative models of positivism can not adequately defend positivism’s holy grail, the separation between law and morality. Even Shapiro’s thoughtful dinner model illustrates why. Plans can do a great deal to coordinate action and facilitate massive socially coordinated events without a commitment to excluding arguments grounded in morality. “My wife and I will move to Paris, find new jobs and raise our kids in the best way possible” is a plan, even if incomplete and certain to lead to revaluation and argument down the road. “Do not subject others to cruel and unusual punishment” is also “a plan” of sorts even if it leads to the same. Likewise, the 14^th Amendment might rule out discrimination against African-Americans while leaving unspecified whether the elderly are protected against age discrimination. Nor is it dispositive, as Shapiro argues, that moral criteria will not only leave some plans undetermined but may, on occasion, unsettle plans that were once settled.  One need only avoid plans that would be radically and uselessly undetermined.

Further, even if plans need to be relatively stable, it’s unclear that one would want this stability at the cost of excluding moral criteria. Plans are open to moral evaluations from the inside. We criticize, guide and correct our plans with moral reasons not simply evaluate the attractiveness of completed plans with a removed eye. This is especially true because, as Shapiro points out, the plans that constitute law are not an equally shared activity; for many people law represents a set of plans which are imposed upon them. It is this criticism which drives critical (race, feminist, class, etc…) legal views. (Notice Shapiro falls into a common habit of using examples that feature roughly democratic and morally innocuous circumstances.) Given his interest in the ways in which law places people in varying power roles depending on the extent to which they are trusted to properly fulfill those roles, it is strange that Shapiro spends so little time on this. Perhaps this is because for Shapiro, while there is a reason for many of us to adopt the plan in effect around here, he is agnostic about any general obligation to follow the law.

Of course, the point of the positivist project is to establish that the existence of laws are one thing and their morality another. Replying to those who argue that the moral criteria within law can generate legal rights in the same way that morality can guide plans by repeating that planning forecloses this leaves those seeking to engage jurisprudence exasperated or befuddled. Further, to ultimately conclude that the distinction between morally derived legal rights and “law” proper turns on Davidson’s model of the different ways in which obligations can be described will seem to many a terribly slender reed for such an important claim.

This brings us to the most global concern with Shapiro’s model. Why should one accept that law is perfectly analogous to the kind of positivistic planning Shapiro proposes? Many thoughtful judges, lawyers and scholars think quite the opposite. One of the things law allows is for us to frame deep practical moral disagreements of a certain kind and discuss, argue, and alter them while continuing to govern society. While Shapiro is not opposed to this objection, pointing to scholars such as Jeremy Waldron and Akhil Amar, he holds these claims exist outside the law. That claim, I have suggested, cannot come solely from describing law as a type of plan.

Lastly, Shapiro is to be much admired for an intricate discussion tying the core questions of legal philosophy to the legal questions of our day. Shapiro proposes that the “planning model” of law can answer not only “retail” questions of law, but inform broader questions about the amount of discretion officials should wield, their interpretative methodology, etc. Despite lacking the space to discuss these claims, the attempt to link the debates in jurisprudence with live questions may be the most important spirit of the text. While the success of that claim ultimately turns on whether one is convinced by Shapiro’s model, it cannot be doubted that Shapiro’s book, which clarifies and advances analytical jurisprudence, is bound to be a classic text.