Abstract
In his book, Legality (2011), Scott Shapiro puts forward what he claims to be “a new, and hopefully better” (better, namely, than the ones given so far) answer to “the overarching question of ‘What is law?’” The central claim of this new account—the “Planning Thesis”—is that “legal activity is a form of social planning.” “Legal institutions plan for the communities over which they claim authority, both by telling members what they may or may not do, and by identifying those who are entitled to affect what others may or may not do. Following this claim, legal rules are themselves generalized plans, or planlike norms, issued by those who are authorized to plan for others. And adjudication involves the application of these plans, or planlike norms, to those to whom they apply.”
The relevant notion of a plan is the notion molded, in his work in the philosophy of action, by M. E. Bratman. It is resort to this concept of a plan, and to Bratman’s way of understanding human agency as planning agency, that, according to Shapiro, makes substantial progress in legal theory possible.
What, then, can (Bratmanian) plans do for legal theory? Does resort to Bratman’s concept of a plan—along the lines followed by Shapiro—in fact provide new and special insight into the nature of law? I argue that the answer is negative.
An earlier version of this paper was presented at the workshop “The Planning Theory of law. A Workshop with Scott Shapiro” (Università Bocconi, Milan, December 10–11, 2009). I would like to thank all participants to the workshop, as well as Scott Shapiro, for valuable discussion.
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Notes
- 1.
Shapiro (2011). References by page number in the text and footnotes are to this work.
- 2.
Bratman himself is quite sympathetic to a marriage between his own views and legal theory, and, in his more recent works, he repeatedly credits Shapiro with suggestions and insight on these and related matters. What I am asking is how solid this marriage can be.
- 3.
It has to be stressed that what is at stake in the planning theory of law is the possibility of conceiving of the law as “binding” (165–166, 201, 218) or (as Shapiro once says: 168) as endowed with “binding force.” What is at stake is “how legal authority is possible” (119). (I take these—“How is legal authority possible?” and “How can the law be binding?”—to be, in the planning theory, alternative formulations of the same question).
- 4.
The authority in question is not, eo ipso, autonomy. Bratman’s views about (what he calls) “agential authority”—the authority an attitude may have to speak for the agent—are quite complex (see Bratman 2007, 2009a) and need not detain us here. Intentions, and intention-like attitudes (e.g., plans), do not have, as such, this kind of authority, nor may their creation or adoption, as such, be said to be an exercise thereof.
- 5.
- 6.
Remember that one obvious answer—legal plans are no mere orders backed by threats: they are the dictates of morally legitimate authority—is not available to Shapiro, given the basic premises and aims of the planning theory of law.
- 7.
In the section titled Introducing hierarchy (140 ff.), what the head chef does is, trivially, issuing orders (“that is, I can order them to do so,” 141). It is only because we, the sous chefs, accept the plans he made for us, or because we accept his authority, that his orders are binding on us (on the role of acceptance and consent in Shapiro’s argument, see Sect. 6.6.2). Shapiro writes (141): “when the head chef orders a sous chef to perform some action, we might say that she ‘adopts a plan’ for the sous chef.” So, can anybody, at will, adopt a plan for me? No, but, unsurprisingly, acceptance of plans adopted for me by someone else (i.e., adoption, in the first person, of the plan) and commitment to carrying it out make me subject to the normative requirements planning is governed by. Thus, “by issuing the order, the head chef places the sous chef under a norm designed to guide his conduct and to be used as a standard for evaluation. Moreover, the head chef does not intend her order to be treated as one more consideration to be taken into account when the sous chef plans what to do. Rather, she means it to settle the matter in her favor. And because the sous chef accepts the hierarchical relationship, he will adopt the content of the order as his plan [my emphasis] and revise his other plans so that they are consistent with the order. He will treat the order as though he formulated and adopted it himself” (ibid.). Again: “parts of the shared plan authorize certain members of the group to flesh out or apply the other parts of the shared plan. These ‘authorizations’ are accepted when members of the group agree to surrender their exclusive power to plan and commit to follow the plans formulated and applied by the authorized members [my emphasis]. Thus, when someone authorized by the shared plan issues an order, she thereby extends the plan and gives members of the group new sub-plans to follow” (142). When somebody else adopts a plan for me, and I myself adopt it—or commit myself to it (maybe, because I have somehow transferred to him my power to adopt plans for myself)—then I have a plan. Is this all Shapiro means? Or does the planning theory of law claim that, as a matter of conceptual necessity, or of the “fundamental nature” of law, individuals affected by the law adopt legal plans? (See Sect. 6.6.2).
- 8.
The trouble is apparent, it seems to me, where Shapiro puts forward his solution to the possibility puzzle (181): “legal officials have the power to adopt the shared plan which sets out these fundamental rules by virtue of the norms of instrumental rationality. Since these norms that confer the rational power to plan are not themselves plans, they have not been created by any other authority. They exist simply in virtue of being rationally valid principles.” Whose ends are served by the fundamental rules of a legal system, and who is subject to the relevant rational pressures?
- 9.
Corresponding, in the case of intentions and plans, to the issue of the violation of (i.e., deliberate noncompliance with) a norm is the issue of giving in to temptation. Bratman sees the key to the rationality of resisting to temptation in the anticipation, by the agent, of future regret (1999, ch. 4, 2007, ch. 12). This makes good sense because, in the case of intentions and plans, the agent is one and the same: the planner. I can see no parallel in the case of legal norms.
- 10.
Which is not to rule out that there can be norms of rationality laws, qua prescriptions, can be subject to, and rational pressures for means-end coherence, consistency and agglomeration deriving from them. Norms defining the “inner rationality of prescribing” may be identified, building on defeasible assumptions concerning the psychology of prescribers (Celano 1990, 127–150, 187–191, 269–282).
- 11.
Talk of the “normativity of plans” is shorthand for saying that, as explained in the preceding section, adopting a plan involves a distinctive form of commitment and thereby subjects the agent to distinctive normative requirements.
- 12.
My point, then, is that the relevant analogy between individual planning, on the one hand, and legal “planning” does not hold. Shapiro explicitly claims that he wants to flip Plato’s soul-State analogy (193): rather than moving from an inquiry into the nature of (justice in) the State to an inquiry about the individual, he moves from an inquiry about the individual as a planning agent to consideration of the law as a set of plans. Laws, he claims, “play the same role in social life that intentions play in individual and shared agency: they are universal means that enable us to coordinate our behavior intra- and interpersonally” (194). The first part of this statement, however, is misleading, for the reasons I have explained. The second part may well be true. In fact, many aspects of the individual-State analogy, in Shapiro’s version, are, I think, perfectly to the point. See, for example, at p. 200: “by characterizing legal activity as planning activity, my aim thus far has been to highlight the incremental nature of the law’s regulatory behavior. But the parallel does not end there. As I would now like to show, legal activity also seeks to accomplish the same basic goals that ordinary, garden-variety planning does, namely, to guide, organize and monitor the behavior of individuals and groups. It does this by helping agents lower their deliberation, negotiation and bargaining costs, increase predictability of behavior, compensate for ignorance and bad character, and provide methods of accountability.” I have no quarrel with this. Similarly with the following (p. 203, in ch. 7): “[…] not every way of guiding conduct counts as ‘planning.’ Indeed, planning is a very distinctive way of guiding conduct. For this reason, the Planning Thesis makes a strong jurisprudential claim. According to it, legal activity is not simply the creation and application of rules. It is an incremental process whose function is to guide, organize and monitor behavior through the settling of normative questions and which disposes its addressees to comply under normal conditions.” In these passages, the relevant notion of a plan is a rather weak one, far less demanding than the one Bratman has developed (see also below, nn. 16, 38).
- 13.
Accordingly, what Bratman is interested in, as far as forms of sociality are concerned (see Sect. 6.5), are shared intentions (these are common both to SCA and to less stringent forms of JIA). (Bratman’s treatment of the “Mafia case” of shared activity—(1999), 100, 117–118, (2009b), 158—remains quite obscure to me. But it does not seem relevant to the present point anyway).
- 14.
Or of Bratmanian shared intentions (see Sect. 6.5).
- 15.
In such a way, that is, as to define what might be called the “inner rationality of prescribing” (above, fn. 10).
- 16.
One important qualification. If Shapiro is to be understood as claiming that what is distinctive of “plans” is their structure (partiality, nestedness, etc.) only, then I have no quarrel with him. But this is no slight departure from Bratman’s concept of a plan. See, for example, the concluding paragraph of the section titled Individual Planning in ch. 5 (129), where a summarizing definition of the relevant notion of a plan—or so it seems—is provided: “to conclude, a plan is a special kind of norm. First, it has a typical structure, namely, it is partial, composite and nested. Second, it is created by a certain kind of process, namely, one that is incremental, is purposive and disposes subjects to comply with the norms created.” I have no quarrel with seeing legal norms in this light. So understood, the claim that laws are plans turns out to be rather weak, when compared to what plans are in Bratman’s theory. (Both the idea of the partiality of legal norms and of their incremental specification in application are to be found, I think, in Kelsen’s jurisprudence. The same holds, of course, as far as reflexivity—“plans for planning”—is concerned: the law regulates its own production).
- 17.
Perhaps, at least some of the deep differences that, appearances notwithstanding, drive a wedge (or so I have claimed) between Bratman’s planning theory of agency and Shapiro’s understanding of the fundamental nature of law may be traced to a further difference concerning the ontology of plans—a difference that should strike us for its sharpness, although it is not easy to understand its implications, and the connection (if there is one) between it and the difficulties for Shapiro I have been indicating in the text. In short, Bratmanian plans have to be understood as attitudes, while Shapiro’s “plans” are abstract contents, the objects, or contents, or possible attitudes. See, respectively, Bratman (1999), 37, 248; and Shapiro (2011), 127 (“by a ‘plan,’ I am not referring to the mental state of ‘having a plan.’ Intentions are not plans, but rather take plans as their objects. For my purposes, plans are abstract propositional entities that require, permit or authorize agents to act, or not act, in certain ways under certain conditions”).
- 18.
On validity as disquotation, see Celano (2000).
- 19.
Shapiro continues: “[n]otice further that the existence of the shared plan does not depend on any moral facts obtaining. The shared plan can be morally obnoxious: it may cede total control of social planning to a malevolent dictator or privilege the rights of certain sub-groups of the community over others. The shared plan may have no support from the population at large, those governed by it may absolutely hate it. Nevertheless, if the social facts obtain for plan sharing—if most officials accept a publicly accessible plan designed for them—then the shared plan will exist. And if the shared plan sets out an activity of social planning that is hierarchical and highly impersonal and the community normally abides by the plans created pursuant to it, then a system of legal authority will exist as well” (ibid.).
- 20.
See p. 119: “my strategy is to show that there is another realm whose norms can only be discovered through social, not moral, observation, namely, the realm of planning. The proper way to establish the existence of plans, as I argue below, is simply to point to the fact of their adoption and acceptance. Whether I have a plan to go to the store today, or we have a plan to cook dinner together tonight, depends not on the desirability of these plans, but simply on whether we have in fact adopted (and not yet rejected) them. In other words, positivism is trivially and uncontroversially true in the case of plans: the existence of a plan is one thing, its merits or demerits quite another.”
- 21.
See p. 204: “the Planning Theory, however, makes a stronger claim. Not only are some aspects of legal activity shared, but so is the whole process. Legal activity is a shared activity in that the various legal actors involved play certain roles in the same activity of social planning: some participate by making and affecting plans and some participate by applying them. Each has a part to play in planning for the community. Call this the ‘Shared Agency Thesis’”: “legal activity is shared activity.”
- 22.
Talk of agency in the first person plural is not, strictly speaking, correct, as far as Bratman’s models of shared activity are concerned. Bratman’s accounts of shared intention are, in fact, individualistic in spirit (1999, 108, 111, 129, 2009b, 163 f.). Bratmanian shared intentions are a set of appropriately interlocking individual intentions, satisfying appropriate conditions (Bratman calls this approach “constructivism” about shared intention: in accounting for shared intention we proceed “by constructing a structure of interrelated intentions of the individuals, and norms that apply to and guide those intentions”; 2009b, 155). Talk of agency in the first person plural in the text has to be understood accordingly.
- 23.
- 24.
As is well known, the story began with Jules Coleman claiming that the rule of recognition of a legal system should be understood as a Bratmanian Shared Cooperative Activity (or SCA; Coleman 2001, crediting Shapiro for the basic idea) and Shapiro claiming (more plausibly) that it should be understood, rather, as a variation on a Bratmanian Jointly Intentional Activity (JIA; Shapiro 2002; see the discussion in Celano 2003). Neither proposal works, as Shapiro quickly realized. He has since then relaxed Bratmanian requirements, leaving room for alienated participants in MSA (see below).
- 25.
On “shared valuings” see below, n. 37.
- 26.
Cf., for example, pp. 136: “plan sharing does not require that members of the group desire or intend the plan to work” (and see the example of Dudley and Stephens, in nn. 11, 12 to ch. 5); 149: “in order for a group to act together, they need not intend the success of the joint enterprise. They need only share a plan.” What accounts for acting together is sharing a plan (137: “Henry and I acted together because we shared a plan”; “shared plans are constitutive of shared agency”; cp. also n. 14 to ch. 5: “the analogy here is to individual agency: just as individual action is individual behavior explainable by an individual plan, shared action is group behavior explainable by a shared plan”). Further necessary conditions for shared activity (“all members of the group intentionally play their parts in the plan and the activity takes place because they did so,” 138; common knowledge of the existence of the plan, and the disposition to “resolve their conflicts in a peaceful and open manner,” ibid.) are not relevant for present purposes.
- 27.
The leading idea in the construction of shared intention in modest sociality is that of “intentions on the part of each in favor of our joint activity” (Bratman 2009b, 155).
- 28.
Bratman’s constructivism “seeks […] to articulate a deep continuity—conceptual, metaphysical, and normative—between individual planning agency and modest sociality” (2009b, 155). In n. 12 to ch. 5, Shapiro observes that “because Dudley and Stephens do not intend to act together, they are not subject to the same rationality constraints as Henry and I are.” The resulting picture I find quite implausible as a case of shared agency. How can it be said that these people “share a plan”?
- 29.
“The theory seeks, rather, to generate much of the relevant normativity at the social level out of the individualistic normativity that is tied primarily to the contents of the intentions of each” (Bratman 2009b, 161).
- 30.
Shapiro (418) explicitly takes issue with Bratman on this point (severing the link between participants’ intentions and acting together), claiming that, in order to account for joint activity, the requirement of shared intention is “too strong.” This is not, however, as Shapiro (ibid.) goes on to claim, merely a matter of conflicting intuitions about where to draw the boundaries of the concept acting together. The latter may well be, in fact, a verbal disagreement. As argued in the text, however, what is at stake is the very applicability, to the case of MSA (and, thus, to the law), of Bratman’s concept of a plan, and its attendant necessary properties.
- 31.
Shapiro does in fact discuss the adoption of policies designed to avoid free riding in his Cooks’ Island narrative, but such policies are conceived, here, as jointly adopted by all the parties involved, and as leading to the establishment of a market economy. True, in his narrative of Cooks’ Island Shapiro also contemplates disagreement, lack of consensus etc. But these are all envisaged as factors leading to the collective, unanimous adoption of a shared master plan by parties agreeing on the necessity of solving together any issue that may prove divisive. (“[t]he contentiousness of an activity might stem from its complexity, or from the simple fact that the members of the group have different preferences or values. In either case, it is crucial that potential conflicts be identified and resolved ahead of time. The function of planning here is to settle disputes correctly and definitively before mistakes are made and become irreversible,” 133). Under this respect, Shapiro’s jurisprudence seems to harbor a contractualist normative political philosophy, of a Lockeian brand (“the plan that establishes the hierarchy for the island is a shared plan,” 165; it is true that, here, Shapiro goes on claiming that “it is not necessary for the community to accept the shared plan in order for it to obtain,” 165–166: this point will be dealt with in Sect. 6.6.2). The model of free markets as a device for the resolution of conflicts (Planning for Small-Scale Shared Activities, 129 ff.) is clearly insufficient—or at least a substantive argument (both normative and empirical, it seems) is needed, in order to show that it is.
- 32.
- 33.
By a “vacuous specification,” here, I mean one such as, for example, “the maintenance of a legal system,” or “engaging in the practice of the law,” and the like.
- 34.
Cf. Celano (2003).
- 35.
It should be noted that Bratman’s treatment of the apparent violation, in shared intention, of the “settle condition” on intentions (intentions may reasonably concern only what we understand as capable of being settled by ourselves; 1999, 149 ff.) does not, appearances notwithstanding tell against my objection. True, where each one of us intends that we J we go beyond the authority of planners to plan for themselves. Shared intention is, nevertheless, a system of interlocking, interdependent intentions. When each one of us intends that we J, the “settle condition” may not be violated because I may be able to predict what your intention will be (1999, 157). This has no parallel in the law.
- 36.
“Reflection on the underlying structure of such modest sociality may also help us think about larger scale cases, such as law and/or democracy” (Bratman 2009b, 150).
- 37.
Bratman’s discussion of “shared valuings” (Bratman 2006, 2007, ch. 13) appears to be a first step in this direction (see especially his discussion of the adoption, in a university department, of a policy concerning reasons for student admissions, and its relation to the attitudes of individual members). But, insofar as shared valuings, too, involve forms of commitment on the part of those involved—commitment to a given policy in deliberation (see esp. Bratman 2006, 3)—shared valuing, too, is a wholly different phenomenon from what a plausible account of the concept, or the “fundamental nature,” of law would present us with. (We should, I think, resist the temptation of taking law as an essential part of the “package deal” our sociality consists in—Bratman 2006, 4; this would beg too many questions). Thus, norms of rationality involved in shared valuings—the rational requirements applying to them—do not, eo ipso, apply to legal “planning” (different norms, constituting the “inner rationality of prescribing” may apply to it—see above, n. 10; and there may well be deep affinities between the former and the latter).
- 38.
Planning “in institutional contexts” is, Shapiro claims, different from “individual” planning, at least under one crucial respect: “in institutional contexts (…) a plan may be created even though the one who adopted it did not intend to create a norm”; in the case of individual planning, on the contrary, “the process is the psychological activity of intending” (128). But why, then, talk of “plans” when referring to the law? Unless the relevant notion of a plan is the weak one introduced above (n. 16), I see no room here for plans and their characteristic commitments. It does not seem right any more to say that “understanding the law entails understanding our special psychology [as planning agents] and the norms of rationality that regulate its proper functioning” (119–120; this was, it will be remembered, one of the grounding claims of the planning theory of law). Moreover, granted that it is true that, in institutional contexts, as contrasted with personal planning, “a plan may be created even though the one who adopted it did not intend to create a norm,” it remains quite mysterious to me how this could happen. (The legal theories of H. Kelsen and K. Olivecrona, too, face this difficulty; cp., e.g., talk of legal norms as “depsychologized commands,” or as “impersonal and anonymous” commands, in Kelsen 1945, pp. 35–36). We find a sketchy explanation at p. 211: “the introduction of institutional normativity is a revolutionary advance in social planning. Plans can be adopted without the planners actually intending that the community act accordingly. As a result, the community need not worry about whether the planners had the appropriate intentions. They can know that they are legally obligated simply because the planners followed the right procedures. Of course, the institutionality of law is ultimately grounded in intentions. Rules are legally valid because they were created pursuant to a rule that most officials accept [my emphasis]. If officials stopped accepting the plan, then the plans created pursuant to it would cease to be legally valid as well.” This seems to make institutionalized planning continuous with individual planning and its psychology, so as to rescue the claim that understanding the latter is entailed by a proper understanding of the former, but I still find the connection quite mysterious. Here, as in many other crucial junctures in Shapiro’s argument, the necessary explanatory and justificatory work is done, in fact, by an unstated theory of legitimation through acceptance (see Sect. 6.6.2). And, are we assuming that officials, all of them, have the relevant intentions? (Remember that legal activity is supposed to be a MSA; see Sect. 6.5).
- 39.
Cf., for example, 149 “in order for a group to act together, they need not intend the success of the joint enterprise. They need only share a plan. That plan, in turn, can be developed by someone who does intend the success of the joint activity. As long as participants accept the plan, intentionally play their parts, resolve their disputes peacefully and openly, and all of this is common knowledge, they are acting together intentionally.” Some of the relevant material is quoted above, in n. 7. See also p. 182 and the section in ch. 6 titled The Inner Rationality of Law (183). Here, the norms of instrumental rationality (“the distinctive norms of rationality that attend the activity of planning,” 183: consistency, coherence, not reconsidering absent compelling reason) apply only to those who accept the fundamental legal rules (i.e., the master plan), that is, only to legal officials and to “good” citizens. (The relevant norms of rationality govern the activity of planning; thus, they apply only to those who are committed to the plan). Bad men are not subject to their constraints. (“The inner rationality of law, of course, is a limited set of constraints because the rational norms of planning only apply to those who accept plans. The bad man, therefore, cannot be rationally criticizable for failing to obey legal authorities insofar as he does not accept the law,” 183).
- 40.
Sometimes, however, Shapiro argues differently. On Cooks’ Island, “the plan which establishes the hierarchy for the island is a shared plan” (165). Shapiro goes on (165–166): “notice further that since the shared plan was designed for the handful of social planners; it is they who share the plan, not the islanders as a whole. This means that it is not necessary for the community to accept the shared plan in order for it to obtain [my emphasis]—though, as a matter of fact, we do approve of the plan. Since we consider the social planners to be morally legitimate, we plan to allow the adopters and appliers to adopt and apply plans for us. For this reason, we consider the shared plan to be the ‘master plan’ for the group.” (Cf. also p. 150, on MSA, p. 177, and above, on the “bad man,” n. 39). Admittedly, this does not square with my comments in the text. But I cannot see how it squares with the rest of Shapiro’s argument, either. It is not clear to me what the emphasized “obtain” means, here. Specifically, are those inhabitants that do not have accepted the plan supposed to be subject to the pressures norms of instrumental rationality impose on planners? If not, then in what sense laws are shared plans? In what sense is legal activity planning activity? (Remember the “Planning Thesis”: “legal institutions plan for the communities over which they claim authority, both by telling members what they may or may not do, and by identifying those who are entitled to affect what others may or may not do. Following this claim, legal rules are themselves generalized plans, or planlike norms, issued by those who are authorized to plan for others. And adjudication involves the application of these plans, or planlike norms, to those to whom they apply.”) And I cannot see how the answer could plausibly be yes. Once again (see Sect. 6.3), why on earth should the plan you made and adopted for me eo ipso put me under “rational pressure to act accordingly”?
- 41.
Perhaps Shapiro’s claims (laws are plans, etc.) concern only legal officials and are not meant to include all the individuals involved in the operations of a legal system. (I find it hard to establish whether, in Shapiro’s text, “participants” in a legal system includes only officials, or everybody in the relevant social group). But, even if we adopt this reading (which does not sit well with many of the things Shapiro writes; see, e.g., p. 169), the claim that legal activity is shared, planning activity, if resting on the assumption that all the parties involved accept the relevant plan, remains dubious. If we assume that it is (always, everywhere) true that all legal officials accept legal “plans”—if we picture legal officials as a unified body, all agreeing in the acceptance of legal “plans”—and we treat this assumption as sufficient ground for concluding that legal activity is shared activity, the latter claim becomes, it seems to me, rather uninformative.
- 42.
See, for example, pp. 148–149: “as we have seen, we respond to the challenge of managing a large group of inexperienced and unmotivated individuals by requiring them to hand over vast amounts of planning power to us. By accepting the shared plan, they not only assume certain roles but transfer their powers to adopt and apply plans when their plans conflict with the planning of the supervisors.” “Transfer of planning power” by way of acceptance, or consent, has an obvious contractualist flavor. Do Shapiro’s claims (laws are plans, legal activity is shared activity) rest on unstated normative contractualist, or quasi-contractualist, premises? Fragments of the relevant substantive normative theory of legitimation through consent are scattered in Shapiro’s text. Consider, for example, the following principle (142–143): “the fact that someone adopts a plan for others to follow does not, of course, mean that, from the moral point of view, those others ought to comply. The plan might be foolish or evil and, thus, unless there are substantial costs associated with nonconformity, the subjects morally should not carry it out. However, if the subject has accepted the shared plan which sets out the hierarchy then, from the point of view of instrumental rationality, he is bound to heed the plan. For if someone submits to the planning of another, and yet ignores an order directed to him, he will be acting in a manner inconsistent with his own plan [my emphasis]. His disobedience will be in direct conflict with his intention to defer.”
- 43.
“It should also not be overlooked that individuals might accept a subordinate role in a shared activity because they have no other viable option. They might desperately need the money or fear that they will be harmed if they do not. Even in cases of economic or physical coercion, once individuals form an intention to treat the superior’s directives as trumps to their own planning, they have transformed their normative situation and are rationally—if not morally—committed to follow through unless good reasons suddenly appear that force them to reconsider” (143). Cf. also p. 180. if members of the community are not disposed to comply with legal plans (notice that a disposition to comply is, in Shapiro’s theory, a necessary condition for the existence of a plan) “legal authorities can dispose them to comply through various forms of intimidation” (this point is reiterated on pp. 181, 202).
- 44.
As well as with the role of planning in forms of sociality we highly value (on this score, see Sects. 6.5 and 6.6.1). Cf., for example, Bratman 2009c, 54, and ivi, n. 64 (“structures of cross-temporal and interpersonal planning are partly constitutive of […] forms of cross-temporal integrity, cross-temporal self-government, and sociality that we highly value”); 2009a, p. 412, esp. n. 2 (“for planning agents like us, our reason for conforming to these norms of practical rationality derives in part from our reason to govern our own lives”), 417–418, 429, 430, 436. Shapiro hints to these developments in n. 4 to ch. 5.
- 45.
Part of Bratman’s more recent complex justification for planning agency, its being constitutive of forms of integrity and self-governance, has directly and explicitly to do with the authority of planners over their own actions and deliberation (specifically, with attitudes having agential authority; cf., e.g., Bratman 2009c, 56: “this issue [what it is for a thought or attitude to speak for the agent, to have agential authority] is implicit in several of the rationales for planning agency I have been sketching. I have supposed that our answer to the question, why be a planning agent?, will appeal to structures involved in cross-temporal integrity and autonomy. And in both cases those structures involve guidance by basic attitudes that speak for the agent, that have agential authority. I have also supposed that our answer to the question, why be a planning agent?, will appeal to the role of planning agency in broadly effective agency—effective, that is, in the support of the values, cares, ends and concerns that constitute the agent’s practical standpoint. And the question, what constitutes the agent’s practical standpoint?, is a question about agential authority”). Here, Bratman’s line of argument goes, interestingly, from conditions of self-governance and agential authority to the significance of planning. It is not only that planning presupposes the authority of planners (as I have been assuming throughout; see Sects. 6.2 and 6.3). Also, the other way round, it is our interest in agential authority that leads to (i.e., justifies) our planning. (See also ivi, 39). This, I think, strengthens the connection between planning and authority on which I have relied from the beginning, and which, I have claimed, does not hold in the case of legal “planning.”
- 46.
See, for example, pp. 201–202 (“legal institutions are not in the business of offering either advice or making requests. They do not present their rules as one more factor that subjects are supposed to consider when deciding what they should do. Rather, their task is to settle normative matters in their favor and claim the right to demand compliance. For this reason, deliberating or bargaining with officials about the propriety of obedience normally shows profound disrespect for them, and for the law’s authority. Regardless of whether seats belts are a good idea, passengers are required to buckle up – after all, it’s the law”); 275 (“laws guide conduct in the same way that plans do, namely, by cutting off deliberation and directing the subject to act in accordance with the plan”).
- 47.
See pp. 202 (“that the law is supposed to settle, and purports to settle, normative questions should not be taken to mean that the law demands that its dictates be followed come what may. Laws, like all plans, are typically defeasible. When compelling reasons exist, the law will normally permit its subjects to reconsider its direction and engage in deliberation on the merits. The catch here is that the law claims the right to determine the conditions of its own defeasibility. It attempts to settle when the quandaries it has resolved become unsettled”); 303 (“the law […] regulates the manner of its own defeasibility: it identifies the kinds of reasons that suspend the law’s injunctions”).
- 48.
Talking of a single norm doing that, or of further norms specifying the defeaters of a given norm, does not make any serious difference, I think.
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Celano, B. (2013). What Can Plans Do for Legal Theory?. 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_6
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