Abstract
In this chapter, the authors analyze the portions of Shapiro’s primer Legality, which deal with the problem of legal disagreements and the related theory of interpretation (and meta-interpretation) deployed by Shapiro in order to overcome such difficulty. The question of legal disagreements and its seemingly inconsistency with the main assumptions of legal positivism makes it necessary to pay some attention to the current accounts of such a jurisprudential conception. This chapter first deals with legal positivism in the way it is commonly accounted for by Anglo-American jurisprudents. The authors go on to present their own account of methodological legal positivism, much indebted to Norberto Bobbio’s and Alf Ross’s works. Then, the argument from disagreements is summed up, and the difficulties it allegedly poses to legal positivism carefully analyzed. This leads to the analysis of Shapiro’s conception of legal interpretation and consequent response to such a challenge. In the final section, some conclusions are drawn, the main of which is that Shapiro’s sophisticated theory of interpretation is, on the one hand, supererogatory and, on the other hand, unfaithful to the genuine spirit of traditional methodological positivism, since it conflates descriptive and prescriptive aspects of legal interpretation.
We would like to thank Riccardo Guastini, Nicola Muffato, Diego M. Papayannis, Veronica Rodríguez Blanco, and Fred Schauer for helpful suggestions on a previous draft of this article.
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Notes
- 1.
Shapiro (2011).
- 2.
See the defense of ELP in Shapiro (2001).
- 3.
See Leiter (2007: 66–68). Shapiro (2011: 240–242) explains the debate in terms of what he calls the “Ultimacy Thesis” (which states, “Legal facts are ultimately determined by social facts alone” and is defended both by ELP and ILP) and the “Exclusivity Thesis” (according to which “Legal facts are determined by social facts alone” and is defended only by ELP).
- 4.
The third claim (the so-called discretion thesis), which usually accompanies the two claims mentioned in the text, will be analyzed at the end of the present section. It is worth noting that the analytical jurisprudential debate in the civil-law area is also (at least) partially based on such theses, although their interpretation differs significantly from the interpretation generally assumed in the common-law area. See, e.g., Bulygin (2007).
- 5.
As we shall see, this is quite misleading, since they pertain to different levels of inquiry into the law.
- 6.
Leiter (2007: 67).
- 7.
See Coleman (1998: 265). Observe that in Coleman’s formulation, ELP’s tenet implies ILP’s tenet since “necessary” entails “possible.” However, this is a rather counterintuitive implication. In order to avoid such a counterintuitive result, ILP’s tenet must be reformulated as follows: “It is not necessarily the case that in any legal system the legality of a norm depends on its morality and it is not necessarily the case that in any legal system the legality of a norm does not depend on its morality.” This means that it is a contingent matter whether a norm depends or not on its merits in order to be legally valid. Since “contingent” and “necessary” are incompatible, we have an explanation that does not imply the counterintuitive consequence that ELP entails ILP. We owe this clarification to Jorge Rodríguez.
- 8.
Shapiro (2011: 266): “[…] it is impossible for social facts to pick out a complete set of rules for all conceivable cases.”
- 9.
More precisely, inclusivists believe that it depends on the rule of recognition applicable in a certain society, and so although some rules of recognition might allow this, others would not, and the inclusivists say that both would count as law.
- 10.
Shapiro (2011: 272): “exclusive legal positivists agree with Dworkin’s observation that judges always assume that there are norms which resolve hard cases and which they are legally obligated to find and apply. But, they contend, Dworkin has misconstrued the evidence: judicial behavior in hard cases does not show that formalism is true and that judges lack strong discretion. For in hard cases, where the pedigreed rules run out, judges are simply under a legal obligation to apply extra-legal standards. In other words, the fact that judges are under an obligation to apply non-pedigreed norms does not imply that they are compelled to apply pre-existing law; rather, they are merely under an obligation to reach outside the law and apply the norms of morality instead.”
- 11.
Moreover, it is possible that, in case of a legal gap, different moral systems are available. In absence of an ordering meta-criterion, it would probably be inconsistent to pick out a moral solution, case by case, from different and competing moral systems.
- 12.
- 13.
Other rules of closure, such as “All that is not otherwise legally qualified is obligatory” or “All that is not otherwise legally qualified is forbidden,” bring about several well-known logical difficulties.
- 14.
In effect, what makes abstract legislation possible is the rule of augmentation (alias, strengthening the antecedent), according to which a conditional sentence implies a conditional in which the original antecedent is augmented by adding a new proposition whatsoever (in symbols: “(p É q) ⊃ (p & r ⊃ q)”). So that lawgivers, by definition, cannot conceive all the possible future combinations of properties but can regulate them precisely by means of (the implicit acceptance or presupposition of) the rule of augmentation.
- 15.
See Alchourrón and Bulygin (1971: 137–138, and 194 ff). To clarify the point, let us consider the following case. There is a norm providing that if there is a valid will and the killing of the testator, it is forbidden to inherit (“w & k ⊃ O ∼ i”). However, the less fine case characterized only by the presence of a valid will is, by hypothesis, not solved by any specific rule of the system (and solutions provided by finer norms are not applicable, for logical reasons, to less fine norms). So, we can apply to it the general permissive rule of closure: accordingly, it turns out to be legally permitted (“w ⊃ ∼O ∼ i”). As a consequence, the case where there is a valid will and the killing of the testator is connected, via strengthening the antecedent, to two incompatible solutions (“prohibited” – “permitted”).
- 16.
The complete quotation is as follows: “Since actions inevitably fall within one of these categories, it follows that the law will never be completely determinate” (Shapiro 2011: 281). In the draft discussed at the Milan conference, the sentence was: “Since actions frequently fall within one of these categories, it follows that the law will never be completely determinate” (emphasis added). With the change from “frequently” to “inevitably,” it seems that the original fallacy of improper generalization was corrected by means of a controversial move from “contingency” to “necessity.” However, of the three categories Shapiro mentions, only instances of the first seems to us to be unavoidable or necessary (although vagueness can be diminished by means of properly framed definitions). If we are correct, Shapiro owes the reader an explanation of the necessary character of instances of the other two categories he mentions.
- 17.
In the case of antinomies for contradictoriness, the norm-addressee is always legally better off by complying with the obligation to p (hence, by not using the permission not to p).
- 18.
Gavazzi (1993: 145).
- 19.
Ross (1998: 150) affirms that it is “highly misleading” to conceive of the separation thesis as a substantive or ontological thesis about the separation of law and morality.
- 20.
We prefer the term “separation thesis” to “separability thesis” because the latter conjures up a possible word ontology which is completely at odds with the hard facts ontology implied by the epistemic reading of such a claim, which is best expressed by reference to the neat separation (and not only separability) of the domains of facts and values.
- 21.
- 22.
According to Ross (1998: 150), Austin’s battle cry that the law is one thing and its merit or demerit another should be so understood.
- 23.
Shapiro (2011: 274) is very much aware of this objection when he affirms that it must be conceded “that the debate between exclusive and inclusive legal positivism is essentially such a [labeling] dispute. The point of contention, after all, is whether it is proper to call a non-pedigreed norm that judges are legally bound to apply a legal norm. Both the exclusive and inclusive legal positivist, in other words, agree that judges are bound to apply moral norms when the pedigree standards have run out. They just disagree about how to describe what they are doing: for the inclusive legal positivist, judges are applying legal norms; for the exclusive legal positivist, they are also creating new legal norms.”
- 24.
So understood, ELP very much resembles the logical structure of definitional natural law theories, on which see Celano (2005). In what follows, we give a different reading of ELP.
- 25.
Fred Schauer observed, in private communication, that we might be too quick to say that exclusive positivism is simply stipulating a definition of law. ELP’s definition does capture an empirical reality in which laws, law books, law schools, and the like occupy a separate (albeit with fuzzy edges) empirical universe. Indeed, although we talk about the empirical connection between law and morality, there are also important ways in which they are empirically distinct. We agree with Schauer’s observation, but we hold the view that such an empirical separation eminently concerns the “institutionalization” of the sources of law, not their interpretation nor the contingent “references” that such sources can make, more or less successfully, to morality. In our view, ELP, understood in a Razian mood, does not have the necessary tools to offer an explanation of these interpretative and legal drafting phenomena we have just referred to. We rather would need a different, “sanitized,” version of ELP, which only holds the factual, value-neutral, identification of legal sources plus a moderately skeptical view on legal interpretation (which does not necessarily deny – as a strict ELP’s theory of interpretation would have it – interpretive relations between the legal sources’ meaning and axiological, or moral, considerations). On this point, see Ratti (2012). For a strict, Razian, ELP’s theory of legal interpretation, see Marmor (2005: 95) who holds the view that “legal positivism cannot accept the view that law is always subject to interpretation. It just cannot be the case that every conclusion about what the law is, is a result of some interpretation or other.”
- 26.
For relevant discussion on this issue, see Priel (2005).
- 27.
This way of conceiving of jurisprudence – as Guastini (1996: 8) suggests convincingly – is not easily severable from a natural law background, because it presupposes the misleading tenet that all legal systems share some necessary common properties (regardless of their space and time location). Another theoretical possibility is that jurisprudence seeks the “natural” concept of law and it may turn out to be the case that such “natural” concept is one according to which law is always separate from morals.
- 28.
Bobbio (1965: 124–126).
- 29.
Dworkin (1986: 3–6).
- 30.
In the draft discussed in the Milan conference, the quoted passage had a different formulation – which is very similar to the last passage of section 4.A in Shapiro (2007: 37) – “on the plain fact view, theoretical disagreements are impossible. The reason is simple: […] legal participants must always agree on the grounds of law. It follows that they cannot disagree about the grounds of law. Any genuine disagreement about the law, therefore, must involve conflicting claims about the existence or nonexistence of plain historical facts. They must, in other words, be purely empirical disagreements.”
- 31.
See Ratti (2009).
- 32.
This amounts to partially rearticulating Alf Ross’s concept of a legal source. Cf. Ross (1958: 77): “Sources of law, then, are understood to mean the aggregate of factors which exercise influence on the judge’s formulation of the rule on which he bases his decision.” In this sense, not only authoritative texts are legal sources. Also, implied or implicit norms may be legal sources. But if they count as such, it is because a legally competent organ formulates them in what is considered their canonical form. This definition allows considering as legal sources such different “objects” as authoritative texts, ideological principles, customary norms, and judicial precedents.
- 33.
Hart (1994: 266–267): “Certainly the rule of recognition is treated in my book as resting on a conventional form of judicial consensus. That it does so rest seems quite clear in English and American law for surely an English judge’s reason for treating Parliament’s legislation (or an American judge’s reason for treating the Constitution) as a source of law having supremacy over sources includes the fact that his judicial colleagues concur in this as they predecessors have done” (emphasis added). It seems clear from this quotation that Hart holds that the rule of recognition, which is the outcome of judicial consensus, bears upon sources of law, rather than their meaning.
- 34.
This observation is suggested by the very examples Dworkin chooses in order to attack legal positivism and by the account he provides of such cases in Law’s Empire. See Leiter (2009).
- 35.
We must observe, in passing, that we do not think that law is necessarily based on agreement. We rather think that it is based on force. As a consequence, from a theoretical point of view, we completely adhere to the statement made by Schauer (2011: 621) according to which “All too often Shapiro’s book is trapped within a jurisprudential milieu which slights the pervasiveness of coercion and exaggerates the significance of the decidedly counterfactual possibility of sanction-free law.” At any rate, what we hold in the text is that even those who believe that law is based on consensus have a very easy way out from Dworkin’s purported predicament.
- 36.
Bobbio (1965: 124).
- 37.
- 38.
In what follows, we shall only deal with those features of Shapiro’s theory of interpretation that we deem fundamental for the analysis of legal disagreements. For a more thorough analysis of such a theory, we refer the reader to the paper by Giorgio Pino, “we refer to the paper by Giorgio Pino, in this volume.”
- 39.
Shapiro (2011: 382) is aware of that, when he affirms: “That some set of goals and values represents the purposes of a certain legal system is a fact about certain social groups that is ascertainable by empirical, rather than moral, reasoning.”
- 40.
It must be noticed that it can be the case that both are coextensive when the by and large accepted methodology is a “literal qua originalist” one. But, as a matter of fact, this is hardly the case.
- 41.
Shapiro (2011: 305): “I call it a theory of meta-interpretation insofar as it does not set out a specific methodology for interpreting legal texts, but rather a methodology for determining which specific methodology is proper. It provides participants of particular systems, in other words, with the resources they need to figure out whether to endorse textualism, living constitutionalism, originalism, pragmatism, law as integrity and so on.” This formulation seems to be compatible with an explicative interpretation: meta-interpretation is not the choice of interpretive canons but a presupposition of it (what renders it possible). However, in other parts, Shapiro (2011: 381) more clearly endorses a prescriptive stance on meta-interpretation: “the Planning Theory maintains, with Dworkin, that in such cases proper interpretive methodology for a particular legal system is primarily a function of which methodology would best further the objectives that the system aims to achieve.”
- 42.
See Shapiro (2011: 331): “the Planning Theory entails that the attitudes of trust and distrust presupposed by the law are central to the choice of interpretive methodology. Roughly speaking, the Planning Theory demands that the more trustworthy a person is judged to be, the more interpretive discretion he or she is accorded; conversely, the less trusted one is in other parts of legal life, the less discretion one is allowed. Attitudes of trust are central to the meta-interpretation of law, I argue, because they are central to the meta-interpretation of plans – and laws are plans, or planlike norms.”
- 43.
In previous drafts, the beginning of the quoted passage ran like this: “A virtue of this type of proposal is that, insofar as interpretive methodology is not determined by a specific convention about proper methodology, it is able to account for the possibility of theoretical disagreements” (emphasis added). With the passage from “is” to “need,” again we experience a tricky shift from contingency to necessity. In fact, it is not clear whether it is an alethic or, as it were, a “normative necessity.” On the first interpretation, it is not clear what the anankastic proposition which would underpin such a necessity is. On the second interpretation, it is not clear whether it expresses a genuine prescription (i.e., a norm) or rather a descriptive statement bearing on a prescription (i.e., a normative proposition). Note that in this latter case, no necessity would be at stake.
- 44.
Bobbio (1965: 110–112).
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Beltrán, J.F., Ratti, G.B. (2013). Theoretical Disagreements: A Restatement of Legal Positivism. 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_8
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