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Review Essay: Laws and The Logic of Planning
Review Essay: Laws and The Logic of Planning
THOMAS BUSTAMANTE
Federal University of Minas Gerais, Brazil
In one of the most expected legal books of this Century, Legality, Scott Shapiro
characterises law as a form of planning activity with the fundamental aim of settling and
pre-empting moral controversies. He not only addresses the issue of the identification of
the necessary features of the law, but also the theories of legal interpretation embedded
in the structure of legal systems. His fundamental conclusion is that the Rule of Law is
served only when those who engage in legal interpretation are faithful to the vision of the
Rule of Law that the legal system presupposes and embodies (398). In this review I will
reconstruct the elements of his argument that I found most attractive and propose a
short critical analysis of his work.
As stated in the opening pages of the book, Shapiro makes it clear that he is less
concerned with normative jurisprudence than with analytical jurisprudence. While the
former deals with the moral foundations of law, the latter examines its metaphysical
foundations (2). Shapiro thinks of his jurisprudence as an inquiry into the fundamental
nature of law (8).
The problem about the nature of law, in turn, can be split into two further
questions. The first is the Identity Question. To ask about the identity of X is to ask
what is it about X that makes it X and not Y or Z or any other such thing (8). The
second, in turn, is the Implication Question, which concerns not what makes the object
the thing that it is, but rather what necessarily follows from the fact that it is what it is
and not something else (9).
The reader will not take too long to realise that Shapiro is strongly committed to
positivism, and that this adherence has deep-level implications for legal reasoning. If
positivists are right when they contend that the existence and the content of legal
systems are ultimately determined by social facts alone, then the only way to
demonstrate conclusively that a person has legal authority or that one is interpreting
legal texts properly is by engaging in sociological inquiry (29).
The main contention of the book is that the fundamental rules of the legal system
are plans, and thus the existence conditions for the law are the same as those for
plans (149). To put it even more broadly, the claim is that legal activity is best
*
Accepted for publication at Legal Studies The Journal of the Society of Legal Scholars.
For the purposes of the inquiry, plans are abstract propositional entities that
require, permit, or authorize agents to act, or not to act, in certain ways under certain
conditions. Thus, when a person adopts a personal plan she places herself under the
governance of a norm (127). Plans exist with a view to settle questions about what is
to be done (128-9). Similar to Razs views on authority, Shapiro holds that when one
has adopted a plan, for oneself or for another person, the plan is supposed to pre-empt
deliberations about its merits, as well as purporting to provide a reason to pre-empt
deliberations about its merits (129). In the realm of shared agency, plans play a vital
role for the coordination of action, since they provide a higher degree of predictability for
social action and serve a crucial control function, for they enable some participants to
channel the behaviour of others in directions that they judge to be desirable (132-3).
The need for planning increases as communities grow larger and relations
between the participants become more complex. In the case of massively shared
agency it becomes absolutely indispensable to concentrate the power to plan in the
hands of a few (143). Shapiro refers to these situations as the circumstances of
legality, i.e., the social conditions that render sophisticated forms of social planning
desirable (170). As the author states very clearly,
The circumstances of legality obtain whenever a community has
numerous and serious moral problems whose solutions are complex,
contentious, or arbitrary. In such stances, the benefits of planning will be
great, but so will the costs and risks associated with non-legal forms of
ordering behaviour (170).
The law becomes indispensable because of the incapacity of moral principles to act as a
guiding standard for the community. Legal systems and institutions are justified only as
a means to social planning, and their fundamental aim is to compensate for the
deficiencies of alternative forms of planning in the circumstances of legality (171).
What seems most controversial, here, is the Moral Aim Thesis, which implies that the
law has as its fundamental aim to rectify the deliberative deficiencies associated with
the circumstances of legality. The canonical formulation of the thesis reads thus:
The fundamental aim of legal activity is to remedy the moral deficiencies of the
circumstances of legality (213).
Shapiro states, at this stage, the Simple Logic of Planning Argument (SLOP),
which holds that the existence and content of a plan cannot be determined by
facts whose existence the plains aims to settle (275).
SLOP provides the germ of a theory of legal reasoning the most salient feature of
which is that it entirely excludes moral considerations from legal reasoning. Moral facts
never determine the content of law, and even when the law is considered to be
defeasible, it is the law that regulates the manner of its own defeasibility (302-3).
Furthermore, the Planning Theory entails that the authors of the fundamental rules of
the legal system express attitudes of trust and distrust to agents and legal officials.
When they allocate a wide range of discretion for someone, this means that the
economy of trust of the system grants a high degree of trustworthiness to this person,
while a low degree of trustworthiness is expressed whenever the social planners limit
the activity of someone by binding her to strict and inflexible plans and regulations. This
is so because plans are, for Shapiro, sophisticated devices for managing trust and
distrust, since they allow people to capitalize on the faith they have in others or
compensate for its absence (334). The answer to the question of which theory of
interpretation or which approach to legal reasoning ought to be adopted is thus
determined by the economy of trust of the legal system (331).1
THEORETICAL DISAGREEMENTS
One of the merits of the book is that it is probably the first major work from the positivist
tradition to address Dworkins toughest challenge to legal positivism, which concerns the
existence of theoretical disagreements in practical legal discourses.
Hence, lawyers may disagree in their practical activities in two ways. On the one
hand, they may disagree about whether the grounds of law are satisfied in a particular
case. On the other hand, they may disagree about the grounds of law, that is, about
which kinds of propositions, when true, make a particular proposition of law true. The
former type of disagreement is called empirical disagreement, while the latter is called
theoretical disagreement.3
Theoretical disagreements pose a real threat for legal positivism because they
seem to challenge the idea that the criteria of validity are determined by convention and
consensus (283). For Dworkin, positivism is wrong because it entails that genuine
1
The economy of trust is understood, in Shapiros book, as the distribution of trust upon which a plan is
predicated (335).
2
Ronald Dworkin, Laws Empire (Cambridge, MA and London: Belknap Press, 1986), 4-5.
3
Dworkin, above n 2, 5.
disagreement about what the law is must be empirical disagreement about the history of
legal institutions.4
Although Shapiro is impressed by this challenge to positivism, that does not move
him away from his positivist convictions. Although he acknowledges that Dworkin is right
when he holds that theoretical disagreements are legitimate (291), he thinks that the
Planning Theory is perfectly capable to explain them.
To shed some light into the notion of theoretical disagreements, Shapiro comes
back to one of Dworkins examples of this type of disagreements: the debate between
Justice Burger and Justice Powell in Tennessee Valley Authority v. Hill (TVA).5
In TVA, some groups sued Tennessee Valley Authority with a view to prevent it
from completing a multi-million Dollars dam, on the ground that it might threaten a small
fish of no particular scientific, aesthetic, or economic interest, known as the snail darter,
which had been declared an endangered species under the Endangered Species Act
1973. The striking thing about TVA is that both the majority, represented by Burger, and
the minority, represented by Powell, agreed that halting the project would involve an
enormous waste of public funds (US$ 100,000,000.00 in nominal currency of the
1970s) and that it is very unlikely that Congress intended such results. From the point of
view of public policy, both Burger and Powell believed that absurd results would ensue if
the court adopted an interpretation of the Endangered Species Act according to the plain
meaning of the text. Yet the consensus stops here. Whilst Burger thought that the plain
meaning of the text determines the law even when absurdities follow, unless compelling
evidence can be found that Congress did not intend the absurd result, Powell believed
that the plain meaning does not determine the law when absurdities follow unless
compelling evidence can be found that Congress did intend the absurd result (288).
Clearly, TVA is indeed a hard case because there was theoretical disagreement to
resolve what the grounds of law were (289).
Shapiro agrees with Dworkin that the disagreement between Powell and Burger in
TVA may affect the choice of the interpretive theory that one should accept.
Nevertheless, he proposes to reconstruct the notion of theoretical disagreements in a
different vocabulary. In effect, there are important differences between Dworkins
jurisprudence and the Planning Theory, and we need to redefine the concept of
theoretical disagreements in order to make it useful for both theories.
While Dworkin holds that the grounds of law are determined not by social
convention, but by constructive interpretation, the Planning Theory holds that moral
facts can never determine the content of the law, since laws are plans that are
supposed to settle moral questions (302).
Hence, for the Planning Theory, when judges like Burger and Powell disagree
about the relevance of some moral fact to the interpretation of a legal text, they cannot
be disagreeing about the grounds of law (303).
For this reason, Shapiro proposes to adopt a terminology which is more neutral
with regards to the question of whether a fact merits the label ground of law. The really
important question in a case like TVA is not whether absurd statutes are law, but the
choice of the different interpretive methodologies upheld by each judge. The advantage
of talking about interpretive methodologies, Shapiro says, is that it is neutral as to
whether their outputs are pre-existing law and hence whether the facts that they
4
Dworkin, above n 2, 33.
5
Tenesse Valley Authority v Hill, 437 U.S. 153 (1978).
countenance are grounds of law (304). Theoretical disagreements arise, then, when
lawyers advocate different meta-interpretations.
A meta-interpretation does not set out a specific methodology for interpreting legal
texts, but rather a methodology for determining which specific methodology is proper
(305).
It is at this point that we can see Shapiros most vivid disagreement with Dworkin,
for he believes that Dworkin is wrong when he claims that legal interpretation is an
instance of constructive interpretation. That type of interpretation is at stake if in order
to determine what the grounds of law are, the legal interpreter imposes a purpose on
legal practice in order to make it the morally best social practice it can be (293). The
problem with this best-light account of legal interpretation is that the method it uses to
vindicate it constructive interpretation is intensively abstract and relentlessly
philosophical (296).
The most pressing factor for this choice, however, is not institutional history, but
the economy of trust. Shapiro insists that the Planning Theory does not demand that
interpretive methodologies be justified from the moral point of view Interpretive
methodology is pegged not to the truth of any abstract philosophical or social-scientific
theory, but rather to the laws presuppositions concerning the trustworthiness of legal
actors (357). That is to say: the planners method will never license interpretive
methodologies that are inconsistent with the systems distribution of trust and distrust
(357).
The meta-interpreter must, therefore, (1) specify all the different interpretive
methodologies to assess the level of competence and trust needed to apply them; (2)
extract, from the economy of trust of the system, whether the legal actors have the
competences to apply the methodologies found in the previous level; and, (3) evaluate
which of these interpretive methodology is more appropriate for the given legal system
(370).
The first thing to be noted about the Planning Theory is that it might be closer to
normative positivism, and hence to the natural law tradition, than it intends to be. As we
have seen above, the Moral Aim Thesis is the central aspect of Shapiros account of the
nature of legal systems. The fundamental aim of every legal system is to rectify the
moral deficiencies of the circumstances of legality (172).
The Planning Theory is not merely discovering a plain social fact, but it is rather
an instance of normative positivism. According to normative positivism, one begins
with a normative account of the laws mission, and then one argues that that mission
cannot be performed unless rules, commands, norms, edicts, or plans are recognized as
laws by non-moral criteria.6 As Waldron has famously stated, the claim of normative
positivists is that the values associated with law, legality, and the rule of law in a fairly
rich sense can be best achieved if the ordinary operation of such a system does not
require people to exercise moral judgment in order to find out what the law is.7
Normative positivism, for that reason, resists accepting the natural law versus
positivism paradigm. It starts from a moral thesis and then, as a result of the truth of the
moral idea which is claimed to be the point of law, draws positivistic inferences on how
law is to be ascertained and how legal reasoning is to be conducted: If the dichotomy
between positivism and natural law goes out of the window, so be it.8
We can see, now, that when Shapiro rejects the interpretive theory of law known
as conventionalism because it does not privilege social facts at the ultimate level
(297) he fails to perceive that the same criticism could be directed towards the Planning
Theory of Law. When Shapiro claims that conventionalists are natural lawyers who
believe that political morality requires them to act as though they were exclusive legal
positivists (297), he fails to perceive that this is exactly what happens with the Planning
Theory, because the Moral Aim Thesis is not the restatement of a social fact, but rather
a moral and political thesis about the point of the law.
This shows that Shapiros substantial views on the nature of law are inconsistent
with the essentialism that he purports to defend while he distinguishes sharply between
normative and conceptual jurisprudence. This methodological divide is at odds with
6
Jeremy Waldron, Planning for Legality (Review Essay) (2011) 109 Michigan Law Review 883-902, 894.
7
Jeremy Waldron, Normative (or Ethical) Positivism in Jules Coleman (ed.), Harts Postscript: Essays on
the Postscript to The Concept of Law, 411-433 (Oxford: Oxford University Press, 2001), 421.
8
Ibid., 418.
the Moral Aim Thesis, which stands at the core of Planning Theory and provides the
basis for the Simple Logic of Planning argument.
The reason why Shapiro falls in this meta-theoretical trap is that he fails to grasp
that, as Dworkin says, any theory of law, including positivism, is based in the end on
some particular normative political theory.9 In effect, I think that Dworkin is right when
he claims that law is a contested concept and, as such, it is a concept that takes its
sense from its use or from the context of debates about what the law is.10
Shapiro is thus repeating the same mistake that Hart committed when he held that
his jurisprudence is descriptive in that it is morally neutral and has no justificatory
aims.11 If Dworkin is right about this, then Harts advocacy of neutrality is inconsistent
with his own jurisprudence, for the choice of his theoretical position is determined by
political considerations.
The same goes for Planning Theory. Indeed, the only explanation for the fact that
Shapiro is unaware of the fact that his own theory is a form of normative positivism is his
insistence on the view that his theory is a metaphysical demonstration of the necessary
features of law, rather than a normative conception of legality. When Shapiro holds that
the fundamental aim of law is to settle moral disputes which arise in the circumstances
of legality, he needs to adopt an interpretive attitude in order to justify the choice of this
purpose for legal activity. Just like Harts theory, Shapiros Planning Theory is not a
neutral description of legal practice, but an interpretation of it that aims not just to
describe but to justify it to show why the practice is valuable and how it should be
conducted so as to protect and enhance that value.12
9
Ronald Dworkin, A Reply in Marshall Cohen (ed.), Ronald Dworkin and Contemporary Jurisprudence,
247-300 (London: Duckworth, 1984), 254.
10
Ibid., 256.
11 nd
Herbert. L. A. Hart, The Concept of Law, 2 ed. (Oxford: Clarendon, 1994), 240.
12
Dworkin, Ronald. Justice in Robes (Cambridge, MA and London: Belknap Press, 2006), 141.
general theory of law in Kelsens sense,13 that is, a theory of the nature of law in
general.
In a case like Factortame14, for instance, where the House of Lords had to decide
whether or not Parliament is entitled to amend the rule of recognition itself, lawyers will
find themselves in a debate that goes to the fundamentals of an understanding of law.15
Hence, although one cannot decide a case like this without inquiry into what one
might call the institutional rules of the constitution,16 which need to be identified by a
pedigree-method of ascertaining an institutional social fact , this sort of constitutional
disagreement only can be resolved through a constructive interpretation of the
fundamentals of the legal system. As MacCormick argues, it is obvious that one can not
succeed in the attempt to understand a constitutional order in terms of the Hartian or
similar structural account unless one engages in interpretive argument.17
CONCLUSION
The Planning Theory touches on very important points and is a substantial contribution
to the development of legal theory. Nevertheless, as I argued above, it must be revised
on important issues which have to do with the methodological choices that it makes. But
that does not minimize the importance of its achievements.
This connection makes Shapiro one of the first positivists to explain the theories of
legal interpretation and adjudication that stem from his positivist position. This fact alone
is enough to support the conclusion that Legality is one of the most interesting law
books of the last decades.
20
Ibid., at. 12.