Legality

by Scott J. Shapiro

Legality is a profound work in analytical jurisprudence, the branch of legal philosophy which deals with metaphysical questions about the law. In the twentieth century, there have been two major approaches to the nature of law. The first and most prominent is legal positivism, which draws a sharp distinction between law as it is and law as it might be or ought to be. The second are theories that view law as embedded in a moral framework. Scott Shapiro is a positivist, but one who tries to bridge the differences between the two approaches. In Legality, he shows how law can be thought of as a set of plans to achieve complex human goals. His new “planning” theory of law is a way to solve the “possibility problem”, which is the problem of how law can be authoritative without referring to higher laws.

Genres: Law, Philosophy, Nonfiction, Politics

472 pages, Kindle Edition

First published January 3, 2011

Reviews

[Reese Faust · Rating 4 out of 5]

I was fortunate enough to read this very intriguing book while taking Prof. Shapiro's class, before it was published. Building upon the legal positivist tradition under whose shadow he also works, Shapiro lays out a conception of laws as social planning, based upon our ability as rational beings to plan. This avoids many of the problems that have plagued previous legal thinkers, such as the problem of legitimizing the rules made by legal authorities, as well as answering Hume's challenge of deriving ought-statements from is-statements. Perhaps the only weakness to this argument is that morality is merely one aspect of the legal planning process - in keeping with the positivist tradition, Shapiro denies that moral facts determine the content of law. However, this leaves a question of what occurs when there are gaps in the planning process or resulting legal rule. Shapiro wants to avoid the question that a quasi-natural legal philosopher such as Ronald Dworkin would answer with a resort to moral philosophy. Indeed, perhaps the largest problem with our legal system as well as our legal education is the absence of moral philosophical instruction. That aside, however, this volume represents a highly interesting contribution to the field of analytic legal philosophy, and ought to be considered a peer alongside its predecessors.

[Burger King · Rating 4 out of 5]

In Legality, Shapiro solves uniquely the interpretation problem. Law is a sub-type of social plan, and the interpretation of the law is the interpretation of a social plan. Considering the criticism of Ronald Dworkin, Shapiro reformulates the notion of a theoretical disagreement. The disagreement lies in methods of interpretation rather than legal texts. We can agree on the statutes but still disagree on how to interpret them. Shapiro names this disagreement as the meta-interpretation disagreement. In such disagreement, lawyers argue not about how to solve particular cases but about which method is more appropriate. Even though this disagreement is complicated, Shapiro claims plan theory has the solution. When having an argument about constitutional interpretation, such as a quarrel between originalism and living constitutionalism, we should discover how much trust the framers has distributed to the interpreters. The more trust the interpreters have, the more freedom he can have when interpreting the law. As a result, we can appeal to social facts to solve the disagreement. The problem of interpretation methods is a matter of trust.

Nevertheless, Shapiro’s plan approach fails both in descriptive and normative dimensions. In a descriptive sense, his theory incorrectly explains real disagreements among different interpretation theories. When originalists rebut Dworkin, they do not claim Dworkin’s theory wrongly comprehends the framers’ trust, but his theory overly empowers the judges and usurps democracy. Different methods justify their methods for diverse reasons. Generalizing all the disagreements into the disagreement of trust covers the broadness of this issue. Plan theory also has serious normative deficiencies. As Dworkin correctly claims, the theoretical disagreement is the disagreement of political legitimacy. If we knew the framers’ intention of trust, we would still disagree on the right interpretation because interpretation methods are closely related to the justification of our political obligations. Every interpretation method must defend its moral permissibility in the normative domain. Therefore, using Dworkin’s term, Shapiro’s plan theory is another empirical disagreement. One can still ask, we know the distribution of trust, but is it morally good?

[Sean Sullivan · Rating 5 out of 5]

Laws are plans. Go figure.

[Hugo Lefebvre · Rating 5 out of 5]

Professor Shapiro offers a fresh account of law which allows for interesting reappraisals of the theories of all the big names of philosophy of law. According to him, law can be compared to a system of plans which societies give themselves in order to resolve disputes or simply solve problems of organization in a more efficient way. At first, this outlook on law seemed too narrow, falling into the trap of reducing the tackling of social issues to problem-solving endeavours, transforming complex social problems into economic problems. However, the way the books explains how considerations of morality are distributed through a legal system gives more of a structure for the life of the law to flourish. In sum, Legality offers a great explanation of the way law structures interpretive arguments and what he calls "meta-interpretive" arguments, i.e. disputes about what is the law in the first place. However, the importances he gives to the trust given by legislators is somewhat unsatisfying. His exercise in researching the way trust is distributed to different officials in the american legal system isn't convincing, or maybe only works in an american context. My personal impression is that there are more fundamental philosophical disagreements among judges that lead to different theories of interpretation for legal texts and trust given to judges vs. legislators is only of them.

[Shmuel Berman · Rating 4 out of 5]

An approachable, detailed introduction to legal philosophy and defining what the law is.

I came into this not knowing anything about how to think about law, and Shapiro explains everything.

It’s interesting, and he presents his own work in a way that makes sense. A little technical ( be warned) but I think that is required to define your terms.

[Lari · Rating 4 out of 5]

Explains complicated concepts in an easy-to-read way, though sometimes still not easy-to-understand.

[Corey Schuck · Rating 5 out of 5]

Not just enlightening, but at times pretty darn funny

[Divya Dwivedi · Rating 5 out of 5]

Jurisprudential aspects have been explained in new context with a lot of examples that are commonly available. Thanks