Gustavo Ribeiro (Campbell University – Norman Adrian Wiggins School of Law) has posted Is Law a Social Plan? Reconstructing Shapiro’s Legality on SSRN. Here is the abstract:
This paper discusses Scott Shapiro’s book Legality. In this work, Shapiro presents a theory of the nature of Law, which he names “The Planning Theory of Law.” His main claim is that Law can be better understood as a social plan. The idea of plans plays both a metaphorical and descriptive role in Shapiro’s theory. His argument is not only that Law is like planning, but that Law is a social plan.
The book also offers a defense of exclusive legal positivism. Shapiro’s main argument is that the justification for the existence of plans and laws shows that both would fail to achieve their purposes if their existence and content were not defined by social facts alone. For Shapiro, both plans and laws have as justifications for their existence the creation of content-independent reasons for action. While plans are created to settle what to do next, laws are created to settle matters about morality. These similar justifications require that individuals should be able to identify plans and laws using social facts alone, for if to identify our plans or laws, we had to engage in moral reasoning concerning what we should do next (in case of plans) or what morality requires (in case of laws), both plans and laws would not fulfill their purposes.
This paper argues that Shapiro’s defense of exclusive legal positivism ultimately fails. The metaphor for social plans Shapiro created is helpful and insightful for explaining certain aspects of the legal system. However, he ultimately exaggerates the lessons one can draw from the metaphor to plans.