LEGALITY, by Scott J. Shapiro. Cambridge, MA.: The Belknap Press of Harvard University Press, 2011. 472pp. $39.95 cloth. ISBN 9780674055667.
Reviewed by Christopher P. Banks, Department of Political Science, Kent State University. Email: cbanks6 [at] kent.edu.
Legality is a reconfiguration of positivist legal theory asserting that the law is best conceived of as the shared social plans of legal officials and legal interpreters who operate under sufficient “circumstances of legality” (pp.170-173), a “legal point of view” (pp.185-188), and an “economy of trust” (pp.331-352). Shapiro treks across the legal philosophical terrain established mainly by H.L.A. Hart (1961) and Ronald Dworkin (1986) in their classic writings to make his point and to respond to critics. In Chapters 1-4 the book introduces basic questions driving the study of legal philosophy, such as “what is the nature and scope of law?”, and “how is law applied by judges committed to using certain methodological and legal reasoning practices?” But its main thrust is to outline and defend an arguably innovative “Planning Theory of Law " (p.171), an intellectual journey inspired by the shared agency and practical reason theorist Michael Bratman (1999)(pp.119-123).
For Shapiro a legal system consists of planners (legal officials), plan adopters (legislators), plan appliers (judges), all operating under the exegesis of a master plan (defining offices) (p.169). Shapiro's commitment to positivism and planning theory is ultimately expressed in chapter 5 and afterwards, but only following a rather dense treatment of key philosophical issues that ground his own thinking (framed in metaphors, including the “Identity Question,” “The Possibility Puzzle,” “The Implication Question,” and “The Egg and Chicken Principles,” which all consider key questions relating to the origins of law, the nature of legal authority, and law’s moral applications). These metaphors are useful insofar as they serve as the analytical framework to posit his theory and protect it. In doing so, they remind scholars of the basic principles that have long been the focus of legal philosophical debate.
The first chapters largely rely on the author’s interpretation of H.L.A. Hart’s The Concept of Law (1961) and its claim that law is a function of rule-based social practices and norms that gain legitimacy because they are acknowledged to be valid by legal officials (under the rule of recognition) and accepted by citizens (under an internal point of view). The early commentary thus confronts the “ought/is” principle in general under the limits of John Austin’s positivism and specifically under the heading of “Hume’s Challenge" (p.97). This is met by Shapiro’s view that morality is conjoined comfortably with the law – a thought that positivists generally deny but which naturalists, and “law as integrity” and “best fit” interpreters, such as Dworkin in Law’s Empire (1986), embrace – so long as the integration of law and morality is based in social facts alone, and constructed by officials using a legal point of view (the [*81] antecedent norms allowing law to be morally legitimate and obeyed). While some may take issue with the claim, Shapiro hints that planning theory is superior to Hart’s The Concept of Law because it “show[s] how legal judgments can be constituted by moral concepts without requiring the legal reasoner to morally endorse the judgments formed” (p.117).
Exactly how planning theory differs from Hart is partially conveyed in Shapiro’s discussion of planning theory and how it manifests itself in a legal system (Chapters 5 to 7). Legality sets itself apart by asserting that legal rules do not necessarily originate from social practices and, instead, are derived from “shared plans” that structure official planning actions (p.190). Shapiro reinforces this idea by stating that “the fundamental rules of legal systems are plans” which are socially adopted and accepted (p.119); and, law is interpreted under an operating presumption that the law’s directive force originates from an appropriate process of planning that, in the end, compels judges to defer to the normative content, or value judgments, of social planners of the legal system (which are validly accepted by officials and citizens as rationally social planning creatures).
Declaring that law is only a function of social planning necessarily begs the question of whether Shapiro and Hart are dissimilar in their basic propositions, and whether the intention of legal officials can be a variable that means anything if both use positivist assumptions that do not clearly answer the ought/is conundrum. Whereas, for Hart, a legal system is a union of primary (duty-imposing) and secondary (power-conferring) rules, and law itself essentially emerges from social practices, a rule of recognition, and an internal point of view, for Shapiro a legal system is a compilation of social planning, and ultimately legal rules, that comes from plans which are also derived from Hart-like antecedent (social) circumstances of legality and a Hart-like legal point of view. In light of these arguable similarities, a critic could wonder if Shapiro’s plan-like legality is any different than a Hart-inspired union of rules when both concepts of law generate their true force from underlying social practices that defines law’s content, purpose, and application in a political community.
Shapiro’s reply might be that planning to plan is the kind of social activity that is the linchpin for knowing what rules are socially formulated, obeyed, and enforced – and that the activity of social planning is a distinction that allows the judge to be at an arm’s length from using moral or value judgments that otherwise might be driving case outcomes. As he states, it is irrelevant if the plans themselves are normatively (morally) good or bad; rather, the key issue is “whether the relevant officials of that [legal] system accept a plan that authorizes and requires deference to that body” (p.119). Yet simply asserting that human agents have the capacity to plan to organize and guide legal behavior might not be unique enough of a positivist contribution to distance itself from Hart’s version, or for that matter any other positivists’ paradigm, which all essentially assume that law is derived from the relentless pursuit of legal goals from social practices that confer legitimacy and instill compliance from both law-generators and law-followers.[*82]
Another perspective might argue that one has to discover what is exceptional about social planning and practices insofar as they create legal rules that may be the result of intentional actions or, conversely, social circumstance and to some degree, random repetitive actions that leads to rule recognition and compliance. The conflation of terms and relevant assumptions, as well as the ambiguity of understanding the role that intention plays in serving as the social linchpin (or not) for understanding the moral scope, nature, and application of law in Shapiro’s legality, are some of the challenges that need to be met before one can agree if Shapiro, as a legal positivist, is advancing the literature in a way that goes beyond Hart. Put differently, if a convincing rationale is not discovered that explains how intention is conceptually divorced from the process of mapping out legal rules that make moral sense in a community’s social order, a cynic could simply conclude that a critical element of planning theory is absent and, in turn, doubt if Shapiro is breaking any new ground here as a positivist theorist.
The next half of the book, Chapters 8 to 14, is consumed with meeting Dworkin’s criticism that positivism incoherently fails in its attempt to orient legal reasoning from a fixed set of legal principles. Through an extended and lively discussion of the judicial role, Shapiro reiterates his conviction that planning theory overcomes Dworkin’s “extremely powerful and not so easily dismissed” (p. 284) objection to positivism. In this light Shapiro tackles the task of orienting legal interpretation in the context of Dworkin’s well-known premise that political morality is an unavoidable consequence of legal reasoning, especially in hard cases where there is no easily discovered precedent or solution to apply. For Dworkin, law is derived not from discretion but rather a commitment to principle – and those principles find a home in adjudicatory behavior that best fits, or puts the best interpretative light, on moral conceptions that are a necessary fabric of the social and political order and its governing practices. In this fashion law is distilled to a long-standing and consistently acknowledged conception of integrity, or law as integrity. In contrast, Shapiro replaces Dworkin’s approach with a view that judging is a variation of cost/benefit interpretative analysis that vests in the judge a discretionary ability to effectuate law’s purpose through an understanding of what the legal text, or written word, purports to say.
Shapiro calls this the economy of trust (p.335), and for him it represents why planning theory is superior to Dworkin’s anti-positivistic "law as integrity model." In fact, it is “central to the determination of the interpretative methodology” that judges use for “[t]rust matters in the interpretation of law because trust matters in the interpretation of plans” (p.332). Shapiro reasons that plans have certain goals in mind and the amount of discretion the interpreter has in achieving those ends is intrinsically tied to the degree of trust the plan’s creator places in the interpreter to get the job done correctly. By way of analogy he points to a situation where an advisor constructs a financial investment plan to satisfy a client’s goal to make money. The extent to which the plan gives instructions to sell a specific stock necessarily depends upon what the plan [*83] dictates; in that way, the advisor, as interpreter, will have more or less “degree[s] of freedom” to accomplish what is intended because the plan will say to sell the stock, for example, “’when the price stabilizes’” or, alternatively, when the stock reaches a specific value of ninety dollars per share (p.333). A critical variable in designing the plan’s terms is how much confidence the advisor can reasonably assign to the client’s knowledge about financial matters. Less interpretative freedom is aligned with more specific direction to act, whereas the opposite obtains if the advisor trusts the client’s knowledge about investments more. In this way, the written plan, and not the interpreter, “allocates decision-making authority so as to compensate for the client’s lack of competence” (or vice versa) (p.333).
The interpretive balancing act that Shapiro contemplates, which notably is built from a historical rendition of the American framing that some might contest on its own terms (pp.312-327), is highly reminiscent of Justice Antonin Scalia’s equivocal allegiance to the written text in interpreting the U.S. Constitution in modern circumstances (Scalia 1989). While Shapiro resists the temptation to align planning theory with a firm endorsement of a particular brand of judicial philosophy, his description of the U.S. constitutional system as authoritarian, i.e. one in which legal officials accept the system’s rules because they originate from those “having superior moral authority or judgment” (p.350), cannot escape the reality that the task of judging often involves a struggle to reconcile competing views about what the text actually means in practice. If one envisions the Eighth Amendment as the type of plan that Shapiro is talking about, it is fair to ask, as Scalia did, how the text, or plan, applies in the context of flogging, provided it becomes the type of sanction that is legally permissible today. In gauging the framers’ superior moral judgment and placing it in the context of social practices that, at the time, supported flogging as a punishment, presumably judges would be hard pressed not to substitute their own judgments for that of the founders. In this light it is difficult to see where trust begins or ends, or how it can be managed or not by law creators or appliers, as a reliable guide to help judges answer basic questions about how much deference they must afford to framing (or legislative) intent; or, put differently, how Shapiro’s premise that plans, as law originating from socially shared plans, gives a better answer than what Dworkin proposes in his law as integrity model. Regardless of the textual commitment that is pulling or binding the law interpreter to the past, the judge, and not the plan, makes the final common-sense and morally-based determination that flogging cannot be tolerated in a modern civilized society – even in situations when the plan is arguably quite clear about what the outcome has to be in light of historically-derived framing intent. Saying that we have to trust the judge to figure out what the operative level of trust is in understanding the law or in explaining judicial interpretative behavior does not seem to get us that far. For, when all is said and done, the methodological approach that the Dworkin realist judge ultimately uses in hard cases is no different than what a Scalia-like positivist judge looks to when the interpretative stakes are morally high, and claiming that the plan- [*84] made-me-do-it (or not) is simply not that helpful in resolving actual cases or issues of legal theory.
The criticisms offered here are admittedly a longstanding restatement of the type of disagreements that ordinarily divide naturalists and liberals from positivists and conservatives. While Legality is a thought-provoking analysis that deserves serious attention in the legal academy, what it may add to the debate in modern legal theory may ultimately rest with the different voice and message that the book brings to comprehending the salience and limits of positivism theory. In this light Legality is probably best suited for jurisprudence specialists. Generalists might not find the book pedagogically useful unless, of course, they are teaching classes that address the abstract nature of law and its political connection to legal reasoning.
Bratmanm, Michael E. 1999. Intention, Plans and Practical Reason. Stanford, CA.: Center for the Study of Language and Information.
Dworkin, Ronald. 1986. Law's Empire. Cambridge, MA.: Belnap Press.
Hart, H.L.A. 1961. The Concept of Law. Oxford: Clarendon Press.
Antonin Scalia. 1989. “Originalism: The Lesser Evil." 57 University of Cincinnati Law Review 849-865.
Copyright by the author, Christopher P. Banks.