Thomas Bustamante (Federal University of Minas Gerais (UFMG)) has posted Interpreting Plans: A Critical View of Scott Shapiro's Planning Theory of Law (Australian Journal of Legal Philosophy, Vol. 37, 2012, pp. 219-250) on SSRN. Here is the abstract:
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In his new book, Legality
, Scott J. Shapiro states in a comprehensive and fully articulated way his jurisprudential theory, which characterises legal activity as a form of shared ‘planning activity’ the fundamental aim of which is to solve moral disagreements that cannot be properly resolved by purely moral deliberation. Nevertheless, he not only addresses the issue of the identification of the necessary features of the legal system, but also the theories of legal interpretation – or the theories about how to extract a theory of legal interpretation – embedded in the structure of the legal system. In the paper, I will reconstruct some of the central elements of his argument about legal reasoning and legal interpretation, and then propose a critical analysis of his work. My objective is to illustrate some of the problems of the methodology chosen by Shapiro and to discuss the most important problems of legal interpretation that his theory intends to solve.
The first section attempts to reconstruct the main arguments of Shapiro’s book. At section 1.1, I explain Shapiro’s views on the nature of jurisprudence, with particular emphasis in his distinction between ‘normative’ and ‘analytical’ jurisprudence, and attempt to reconstruct his understanding of positivism and how it bears on legal reasoning. In sequence, at section 1.2, I present his answer to the so-called ‘Identity Question’, that is, the question about the nature of law and how legal validity is to be ascertained. Moreover, I focus on one particular point of this answer, the Moral Aim Thesis, which holds that the ‘fundamental aim’ of law is to rectify the deliberative deficiencies of moral reasoning, and on the Simple Logic of Planning Argument, which holds that the existence and the content of legal norms can never depend on moral reasons. The second section, in turn, attempts to criticise the central arguments found in the first section. In short, I claim at this section that Shapiro’s Planning Theory of Law is a form of ‘normative’ positivism that is not entirely coherent with its own views on the nature of jurisprudence, since it adopts an interpretive attitude towards the law that does not square well with the claim that the Planning Theory is circumscribed to an ontological or ‘analytical’ inquiry into the nature of law. Furthermore, I hold that there are two serious problems in Shapiro’s legal theory. Firstly, it does not have a sound explanation for the presence of moral reasons in legal documents and in adjudication. And secondly, its meta-interpretive theory is as abstract and philosophical as the theories that Shapiro criticises for giving too much interpretive power to legal officials.