Abstract
In his contribution, Scott Shapiro makes reference, within the framework of his theory of law as a plan, to the problem of legal disagreements. Shapiro emphasizes the relevance of social facts while refusing the requirement of interpretive conventions. Like Dworkin, he understands that, in order to provide an explanation for theoretical disagreements, it is essential to take into consideration the purpose of legal practice. In addition, both agree that the most appropriate interpretive methodology in a legal system depends on which best fits its objectives. But, unlike Dworkin, Shapiro does not accept that the attribution of a purpose requires an exercise in moral and political philosophy, but just an inquiry related to social facts. In this sense, the task of the legal interpreter is to detect the political objectives that were intended by the designers of the system, so that the relevant purposes are those that explain the practice and not those that justify; as a consequence, they may be morally deficient. To uncover these objectives, the interpreter must analyse the institutional structure and determine which objectives and values best explain the system. The correct interpretive methodology for the system will be the methodology that best harmonizes with the objectives of those who designed it.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
For an extended explanation, see Shapiro (2011).
- 2.
It should be noted that sometimes courts settle theoretical disagreements. See, for example, Edwards v. Canada (Attorney General) [1930] A.C. 124, where the Privy Council rejected originalism as an appropriate method of constitutional interpretation. I thank Les Green for making this point to me.
- 3.
Because legal systems always contain mechanisms for revision, the designers of a system will change as the structure of the system is intentionally revised. The designers of the present American system include not only the framers and ratifiers of the Constitution of 1787, but the numerous agents over the past 200 years who have changed the complexion of the system. The framers and ratifiers of the 14th Amendment are as much the designers of the current regime as the framers and ratifiers of the original constitution. How the objectives of a system change as the institutional structure is revised is a complex question that I cannot explore here.
- 4.
Not every legal system has designers or has been designed. In some cases, the structure of a legal system, or some part thereof, is the result of custom. In these situations, there may be no ideology that underlies the system’s institutional structure and thus no way to resolve theoretical disagreements (indeed, in these cases theoretical disagreements are not even possible). I say that there may be no ideology because legal officials may theorize previously untheorized customary aspects of a certain system and develop the system in the direction of this new ideology. These officials will then be considered designers, and theoretical disagreements can be resolved by reference to their ideology.
- 5.
Even in those rare instances where there is a very broad consensus in the community on which specific political objectives to pursue, how conflicts between them should be adjudicated, and how they ought to be implemented institutionally, there will still be a pressing need to have mechanisms that can quell dissent, should it arise. Given that in politics not everyone wins, there is always the threat that the loser will challenge the results, and without some way of settling these sorts of disputes, the ability of the legal system to achieve its fundamental ends will be significantly imperiled.
- 6.
It should be clear that this argument does not entail that members of the community are always morally obligated to defer to the system designers. For when those in authority are not trustworthy, or otherwise not entitled to deference, there may be no reason to defer to their judgments about fundamental aims.
- 7.
Similarly, there must exist a shared understanding among participants in the system about who the designers are and which institutional structures they have created.
- 8.
Leiter (2003), p. 18.
References
Leiter B (2003) Beyond the Hart/Dworkin debate: the methodology problem in jurisprudence. Am J Jurisprud 48(1):17–51
Shapiro S (2011) Legality. Harvard University Press, Cambridge
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2019 Springer Nature Switzerland AG
About this chapter
Cite this chapter
Shapiro, S. (2019). The Interpretation of Plans. In: Ramírez-Ludeña, L., Vilajosana, J. (eds) Legal Conventionalism. Law and Philosophy Library, vol 126. Springer, Cham. https://doi.org/10.1007/978-3-030-03571-6_11
Download citation
DOI: https://doi.org/10.1007/978-3-030-03571-6_11
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-030-03570-9
Online ISBN: 978-3-030-03571-6
eBook Packages: Law and CriminologyLaw and Criminology (R0)