Abstract
This chapter critically focuses on the methodological aspects of Scott Shapiro’s book Legality. Indeed, Shapiro’s book sets out several original theses not only about the nature of law and the main problems of jurisprudence but also about how the nature of law can be discovered by jurisprudence. In this sense, the method of inquiry adopted by Shapiro can be considered as one of the most challenging outcomes of his research. The chapter is divided into two parts. In the first two sections, Shapiro’s jurisprudential approach is analyzed by focusing on its resort to metaphysical vocabulary, conceptual analysis, constructive reasoning, and institutional explanation of law. In the following sections, the chapter will consider some of the problems that this approach gives rise to and outline an alternative view on the nature of law stimulated by the discussion of Shapiro’s work.
This chapter has been previously published in Law and Philosophy 31 (4), 2012: 409–441, http://dx.doi.org/10.1007/s10982-011-9125-y.
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.
The following picture is based on Price (2007).
- 2.
Fuller (1969), 133.
- 3.
The way in which the Possibility Puzzle is designed by Shapiro – Why and how can law provide oughts merely on the basis of social facts? – seems strongly influenced by Mark Greenberg’s analysis of the same problem, according to which nonnormative facts cannot themselves constitutively determine the content of the laws; see Greenberg (2006). The theoretical design of the Possibility Puzzle affects the rest of the book, in particular Shapiro’s reading of the tradition of legal positivism, the way in which moral disagreement is conceived and the idea of social planning as an institutional activity that pursues a moral aim. In this chapter, however, I will not concentrate on these issues.
- 4.
Shapiro (2011), 309.
- 5.
Ibid.
- 6.
See Sect. 1.6.
- 7.
An insightful reading of the book is provided by Schauer (2011).
- 8.
Shapiro (2011), 2–3.
- 9.
Ibid., p. 8.
- 10.
Shapiro (2011), 9.
- 11.
- 12.
Justice Holmes dissenting in Southern P. Co. v. Jensen, 244 U.S. 205, 222 (1917). See also Kelsen (1945), 433. One might notice that Jeremy Bentham frequently used the word “metaphysics” in a positive sense, but Bentham denoted thereby a discourse which is “to explain or to inquire what it is a man means” (Bentham 1827, 386), i.e., an inquiry into the meaning of metaphysical statements. As to traditional metaphysics, he was much more cautious: “‘I hate metaphysics,’ exclaims Eduard Burke, somewhere: it was not without cause” (ibidem).
- 13.
- 14.
- 15.
“If there is no proper distinction between analytic and synthetic distinction…, ontological questions end up on a par with the questions of natural science” (Quine 1966, 134).
- 16.
Quine (1960), 271. Obviously, Quine’s criticisms against the analytic-synthetic distinction can be challenged and the autonomy of conceptual analysis vindicated; see on this Himma (2007). As an alternative, Quine’s criticism can be incorporated into an updated vision of conceptual analysis, such as that proposed by Frank Jackson, who is the most important source of inspiration for Shapiro in this respect. See Jackson (1998), 44–55.
- 17.
The “inference to the best explanation” corresponds approximately to what is normally called “abduction” or “hypothetic inference”: “In making this inference one infers, from the fact that a certain hypothesis would explain the evidence, to the truth of that hypothesis. In general, there will be several hypotheses which might explain the evidence, so one must be able to reject all such alternative hypotheses before one is warranted in making the inference. Thus one infers, from the premise that a given hypothesis would provide a ‘better’ explanation for the evidence than would any other hypothesis, to the conclusion that the given hypothesis is true” (Harman 1965, 89). This kind of inference perfectly describes the “detective work” in which the kind of conceptual analysis adopted by Shapiro consists; see Shapiro (2011), 13.
- 18.
The idea that evaluative or normative facts exist and are necessary to determine the content of law is highly controversial; cf. Leiter (2007), 121 ff. and Greenberg (2011). This issue is a part of the jurisprudential discussion about the so-called normativity of law: How is it the case that laws give members of a community reasons for acting? For a critical reconstruction of this debate, see Enoch (2011).
- 19.
Shapiro (2011), 405.
- 20.
Ibid., 13.
- 21.
Jackson (1998).
- 22.
Shapiro (2011), 17.
- 23.
“To adjudicate between intuitions, one would need to examine the theories of which they are a part in order to see which better accommodates the entire set of considered judgments about the law” (Ibid., 17).
- 24.
One might ask if this intellectual process can be still labeled “conceptual analysis.” I argue it cannot. Actually, when Jackson and Shapiro use the word “concept,” they refer to language uses. Indeed, Jackson admits that “our subject is really the elucidation of the possible situations covered by the words we use to ask our questions… I use the word ‘concept’ partly in deference to the traditional terminology which talks of conceptual analysis, and partly to emphasize that though our subject is the elucidation of the various situations covered by bits of language according to one or another language user, or by the folk in general, it is divorced from considerations local to any particular language” (Jackson 1998, 33). As far as the word “analysis” is concerned, then, it seems to me that this intellectual process could be better described as a sort of explanation. In fact, Shapiro’s focus is not so much on the question “What is law?” as on the question “Why do ordinary speakers have such a notion as law?” Only an answer to the second question gives access to the first issue, indeed. This being true, Shapiro could have better labeled his method “explanation of ordinary language uses” rather than “conceptual analysis,” although the former label is much less appealing to philosophers than the latter.
- 25.
On Shapiro’s view, we should not to be “overly confident” in the assertions that a given property is part of the nature of law and be open to change our mind; Shapiro (2011), 19.
- 26.
Shapiro (2011), 15.
- 27.
In this picture, the existence sentence R that is used to explain our commonsense assumption about law should have the form of a Ramsey sentence, i.e., an existentially quantified formula in which all secondary, theoretical terms of a theory of law should be replaced by bound variables (see Ramsey 1990). Actually Shapiro seems to make reference in this respect to the modified version of Ramsey sentences that Jackson applies in identifying ethical properties; cf. Jackson (1998), 140–141.
- 28.
See Jackson (1998), 28.
- 29.
Shapiro (2011), 119. It is to be noticed that the claim “we are planning creatures” is hypothetical not in the sense that it could turn out to be wrong on the basis of conceptual analysis. According to Shapiro, this claim refers to a psychological fact that does not need to be questioned by analysis: It is the hypothesis from which an explanation of our commonsense assumptions about law is inferred.
- 30.
Bratman (1987), 2 ff.
- 31.
- 32.
Shapiro (2011), 6.
- 33.
Ibid.
- 34.
Ibid., 20–21.
- 35.
Ibid., 155.
- 36.
Ibid., 156.
- 37.
Ibid., 195 ff., 208, 225.
- 38.
- 39.
Shapiro (2011), 225.
- 40.
According to Shapiro, plans “are not only positive entities that form nested structures, but they are formed by a process that disposes their subject to comply. As a result, unless the members of the community are disposed to follow the norms created to guide their conduct, the norm created will not be plans” (Ibid., 179).
- 41.
According to instrumental rationality, Shapiro claims, agents are required “to adopt the means to their ends” without further deliberation; see ibid., 123.
- 42.
Cf. Broome (2005), 323–327. According to Broome, some conditional ought sentences do not allow for detachment. Even if I ought (to do M if P) and P is the case, it does not follow that I ought to do M. This conclusion necessarily follows only if detachment is warranted and I believe that P is the case. As a consequence, from the premise “I ought (to do M if I intend to do P and M is a means to P),” and the premise “I intend to do P and M is a means to P,” it does not follow the conclusion “I ought to do M.” See Broome (2000). In tune with Broome’s analysis, R.J. Wallace has claimed that “[instrumental rationality] imposes rational constraints on the attitudes of agents without entailing either that they have reason to take the means necessary relative to their ends, or that they are rationally required to believe that they should adopt the necessary means” (Wallace 2001, 16). Cf. also Smith (2004), 97 ff.
- 43.
Bratman (1987), 109.
- 44.
Christine Korsgaard and Joseph Raz have put forward different lines of reasoning that reach an analogous conclusion. On their view, there is no reason to pursue an end as such. Raz opportunely notices that “a situation in which we do not pursue the means to our ends may be better than a situation in which we do” (Raz 2005, 17). Similarly, according to Korsgaard, the judgment about whether we ought to do M, being M an effective means to P, depends on the content of P; see Korsgaard (1997). In particular, a goal acquires normative relevance only if (a) it is worthwhile, and (b) it is actually an agent’s contingent goal. It follows from this that having a planned end is not sufficient to pursue a means to that end.
- 45.
Contra, however, Bratman (2007), 195 ff.
- 46.
Bratman (2009), 56, emphasis added.
- 47.
Shapiro (2011), 177.
- 48.
Ibid.
- 49.
On the basis of the traditional distinction between legal positivism and natural law theory, the latter claims that the content of laws necessarily depends on what morality requires, whereas the former does not. It follows from this that immoral law is not possible for natural law theory, whereas legal positivism holds that it is. See on this Coleman (2011). Shapiro actually overcomes this picture by claiming that immoral law is possible and that the content of laws necessarily depends on what morality requires.
- 50.
Shapiro (2011), 21.
- 51.
According to the technology of planning, “even the highly complex [social activities] that are mobilized by the law, can be constructed through planning alone” (Ibid., 156).
- 52.
Cf. Raz (2009), 265 ff.
- 53.
Shapiro (2011), 134.
- 54.
- 55.
“Whether philosophers will find a certain necessary property interesting is to some extent context-specific: It depends on which issues and phenomena seem most perplexing at a given time. As a result, we should not expect any theory of law to be complete. Each generation identifies new questions and these newly salient challengers affect which properties legal philosophers will seek to catalogue and study” (Shapiro 2011, 10).
- 56.
Cf. Searle (1995).
- 57.
Cf. Jackson (1998), 38 ff.
- 58.
Shapiro (2011), 17 and 19.
- 59.
Cf. Quine (1960), 58 and 77.
- 60.
Austin (1950), 129.
- 61.
Wittgenstein (1961), 6.54.
- 62.
In doing this, I will not provide an alternative view on the Identity Question; I shall simply outline a different line of reasoning in this respect that is stimulated by Shapiro’s design of the Identity Question. As a result, what follows is a part of the philosophical discussion of Shapiro’s work proposed in this chapter and does not aim to put forward an autonomous philosophical perspective.
- 63.
Quine argued that “[we] have an acceptable notion of class, or physical object, or attribute, or any other sort of object, only insofar as we have an acceptable principle of individuation for that sort of object. There is no entity without identity” (Quine 1981, 102).
- 64.
Geach (1967).
- 65.
A domain of discourse (or linguistic framework) is constituted by the set of terms in a language and the rules that govern their uses. The deflationist view of ontology subscribed to here found its seminal formulation in Carnap (1950).
- 66.
- 67.
For a solution to this problem, see Turner (2010), 28 ff.
- 68.
Shapiro (2011), 11.
References
Austin, J. 1950. Truth. Aristotelian Society Supplementary 24: 111–128.
Bentham, J. 1827. Rationale of judicial evidence, vol. III. London: Hunt & Clarke.
Bratman, M.E. 1984. Two faces of intention. The Philosophical Review 93(3): 375–405.
Bratman, M.E. 1987. Intention, plan, and practical reason. Cambridge, MA: Harvard University Press.
Bratman, M.E. 2007. Structures of agency. Essays. Oxford: Oxford University Press.
Bratman, M.E. 2009. Intention, belief, practical, theoretical. In Spheres of reason. New essays in the philosophy of normativity, ed. S. Robertson, 29–61. Oxford: Oxford University Press.
Broome, J. 2000. Normative requirements. In Normativity, ed. J. Dancy, 78–99. Oxford: Blackwell.
Broome, J. 2005. Does rationality give us reasons? Philosophical Issues 15: 321–337.
Canale, D. 2009. Consequences of pragmatic conceptualism. On the methodology problem in jurisprudence. Ratio Juris 22(2): 171–186.
Carnap, R. 1950. Empiricism, semantics and ontology. Revue Internationale de Philosophie 4: 20–40.
Coleman, J.L. 2001. Naturalized jurisprudence and naturalized epistemology. Philosophical Topics 29: 113–128.
Coleman, J.L. 2011. The architecture of jurisprudence. Yale Law Journal 121: 2–80.
Dickson, J. 2001. Evaluation and legal theory. Oxford/Portland: Hart Publishing.
Enoch, D. 2011. Reasons-giving and the law. In Oxford studies in philosophy of law, vol. 1, ed. L. Green and B. Leiter. Oxford: Oxford University Press.
Finnis, J. 2011. Natural law and natural rights, 2nd ed. New York/Oxford: Oxford University Press.
Fuller, L.L. 1969. The morality of law. New Haven/London: Yale University Press.
Geach, P.T. 1967. Identity. Journal of Metaphysics 21(1): 3–12.
Greenberg, M. 2006. How facts make law. In Exploring law’s empire: The jurisprudence of Ronald Dworkin, ed. S. Hershovitz. Oxford: Oxford University Press.
Greenberg, M. 2011. Naturalism in epistemology and the philosophy of law. Law & Philosophy 30: 419–451.
Harman, G.H. 1965. The inference to the best explanation. The Philosophical Review 74(1): 88–95.
Himma, K.E. 2007. Reconsidering a dogma: Conceptual analysis, the naturalistic turn, and legal philosophy. In Law and philosophy: Current legal issues, ed. M. Freeman and R. Harrison. Oxford: Oxford University Press.
Hirsch, E. 2002. Quantifier variance and realism. Philosophical Issues 12: 51–73.
Jackson, F. 1998. From metaphysics to ethics. A defense of conceptual analysis. Oxford: Clarendon.
Kelsen, H. 1945. General theory of law and state. Cambridge, MA: Harvard University Press.
Korsgaard, C.M. 1997. The normativity of instrumental reason. In Ethics and practical reason, ed. G. Cullity and B. Gaut, 215–254. Oxford: Oxford University Press.
Leiter, B. 2007. Naturalizing jurisprudence. Essays on American legal realism and naturalism in legal philosophy. Oxford: Oxford University Press.
McCaffery, E.J. 2001. Must we have the right to waste? In New essays in the legal and political theory of property, ed. S.R. Munzer. Cambridge: Cambridge University Press.
McDaniel, K. 2009. Ways of being. In Metametaphysics: New essays of the foundation of ontology, ed. D. Chalmers, D. Manley, and R. Wasserman. Oxford: Clarendon.
Oberdiek, J., and D. Patterson. 2007. Moral evaluation and conceptual analysis in jurisprudential methodology. In Law and philosophy: Current legal issues, ed. M. Freeman and R. Harrison. Oxford: Oxford University Press.
Penner, J.E. 1996. ‘The bundle of rights’ picture of property. UCLA Law Review 43: 711–820.
Pound, R. 1939. The law of property and recent justice. American Bar Association Journal 25: 993–998.
Price, H. 1992. Metaphysical pluralism. The Journal of Philosophy 89(8): 387–409.
Price, H. 2007. Expressivism, Pluralism and Representationalism: A New Bifurcation Thesis. Unpublished paper presented at the conference “Expressivism, Pluralism & Representationalism”. University of Sydney, 22–24 July 2007.
Quine, W.V.O. 1960. Word and object. Cambridge, MA: MIT Press.
Quine, W.V.O. 1966. The ways of paradox and other essays. New York: Random House.
Quine, W.V.O. 1981. Theories and things. Cambridge: Harvard University Press.
Ramsey, F. 1990. In Philosophical papers, ed. D.H. Miller. Cambridge: Cambridge University Press.
Raz, J. 1994. Ethics in the public domain: Essays on the morality of law and politics. Oxford: Clarendon.
Raz, J. 2005. The myth of instrumental rationality. Journal of Ethics and Social Philosophy 1: 1–28.
Raz, J. 2009. Between authority and interpretation: On the theory of law and practical reason. Oxford: Oxford University Press.
Schauer, F. 2011. The best laid plan. Yale Law Journal 120: 586–621.
Searle, J. 1995. The construction of social reality. New York: Free Press.
Shapiro, S.J. 2002. Law, plans, and practical reason. Legal Theory 8: 387–441.
Shapiro, S.J. 2011. Legality. Cambridge, MA: Harvard University Press.
Smith, M. 2004. Instrumental desires, instrumental rationality. The Aristotelian Society Supplementary Volume 78(1): 93–109.
Turner, J. 2010. Ontological pluralism. The Journal of Philosophy 107(1): 5–34.
Wallace, R.J. 2001. Normativity, commitment and instrumental reason. Philosopher’s Inprint 1(3): 1–26.
Wittgenstein, L. 1961. Tractatus logico-philosophicus. London/New York: Routledge/Kegan Paul.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2013 Springer Science+Business Media Dordrecht.
About this chapter
Cite this chapter
Canale, D. (2013). Looking for the Nature of Law: On Shapiro’s Challenge. In: Canale, D., Tuzet, G. (eds) The Planning Theory of Law. Law and Philosophy Library, vol 100. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4593-3_1
Download citation
DOI: https://doi.org/10.1007/978-94-007-4593-3_1
Published:
Publisher Name: Springer, Dordrecht
Print ISBN: 978-94-007-4592-6
Online ISBN: 978-94-007-4593-3
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)