Most lawyers today seem to believe that they must make new law because the one they inherited was in fact fundamentally unjust.
In Legality, Yale law professor Scott Shapiro attempts to answer the question “What is law?” From the outset, he makes clear that his effort is a work of analytical jurisprudence, i.e., one “not concerned with morality” (3). But unlike much analytical jurisprudence, Shapiro’s approach takes seriously not simply what legal norms are, but the organizations that generate them. A central premise of the book is that “we cannot understand what laws are unless we understand how and for what purposes legal systems produce them” (7). Despite this concern for purposiveness, Shapiro places himself squarely in the positivist camp—that is to say, the existence and content of law are to be determined by social facts alone, rather than by what he calls the “moral facts” that are the concerns of the natural lawyer (31).
Significantly for a legal theorist, Shapiro attempts to build a bridge to the realm of practice by taking seriously the question of trust. Textualist practitioners like Antonin Scalia don’t trust judges to go beyond the text, while non-textual theorists like Ronald Dworkin urge interpreters to give the best moral reading to texts, thereby presupposing an inordinate trust in the philosophical abilities and good will of the interpreters (33). In contrast to Dworkin, Shapiro thinks questions of competence, character, and institutional limitations loom large in any philosophical analysis. The result is a refreshing modesty in matters of constitutional interpretation.
Shapiro takes issue with John Austin, the great 19th century founder of analytical and positivist jurisprudence, who claimed that law can be reduced to sanction. Under that view, law amounts to no more than a rule issued by a recognized sovereign, habitually obeyed, with threat of punishment attached. But as the twentieth century theorist H.L.A. Hart noted, law cannot be reduced to those rules that impose obligations, or punishments for acting or failing to act. Law also prescribes power-conferring rules, which provide a framework to accomplish certain ends—for example, the power to donate, or contract. In other words, not all laws are commands. Furthermore, according to Shapiro, even analytical jurisprudence must find the language to express what we should do—it cannot, without detriment, be merely descriptive, else law would lose an important attribute by which it might be justified and evaluated (77-78).
Further modifying Austin, Hart claimed that law requires validity criteria, i.e., rules of recognition, change, and adjudication that allow us to determine which rules are valid, and how they apply (80, 83). But according to Shapiro, Hart was no more successful than Austin in showing how descriptive facts can be the basis for normative judgments. How, on the basis of analytical jurisprudence, might the legal philosopher say what most people routinely say—and at some level need to say—when considering law: that law tells us how we ought to behave? Law must provide justifications for action and tools for evaluation of behavior (114-117).
The goal of the analytic legal philosopher is therefore to show how rules are generated, and how legal judgments can be moral in relation to such rule generation, without necessarily endorsing that morality (117). And it is here that Shapiro offers a novel theory—novel, at any rate, for analytical jurisprudence—of law as planning. Through social rather than moral observation we can determine which plans have been adopted and accepted in a system, and which therefore serve to define the system.
Human beings have the capacity to plan, but it is not, according to Shapiro, a moral capacity. We are simply “planning creatures” (119). “And once a legal reasoner recognizes the existence and content of the master plan, he can begin to make descriptive assessments about the law’s perspective on moral rights, obligations, and validity, even if he judges the law’s perspective mistaken from the moral point of view” (192).
Legal rules are plans, or “planlike norms” that allow us, collectively, to achieve complex goals. Plans in turn are “abstract propositional entities that require, permit, or authorize agents to act, or not act, in certain ways under certain conditions” (127). As group size increases, so do complexity, contentiousness, and arbitrariness, thus necessitating the activity of planning (151). The plan is not itself moral, but it facilitates the achievement of moral goods by those subject to it (155-56). Legal systems are fundamentally institutions of social planning, though planning authority need not be centralized, or dangerous. Legal planning is not economic planning, or social planning writ large—the sorts of things feared, with good reason, by Hayek and others. It is not even necessarily top-down planning: a fact to which the common law itself is testament. There is not a single model of law as planning (154-55).
Shapiro contrasts his planning theory of law with the one expressed by James Madison in Federalist 51, where he famously claimed that if men were angels no government would be necessary. For Shapiro, law does far more than solve the problem of bad character. It effectuates the intentions of those with good character (173-74). Designers of plans care not only that participants plan, but how they plan. The U.S. Constitution, for example, demands planning through democratic self-rule (205). Yet not too much should be specified by the plan. Contrary to the demands of legal formalism, it is often better for the law to be right than to be precise. No plan can anticipate every contingency, nor should it try. Flexibility and discretion are essential if the law is to get things right (258). Even in a positivist, rule-bound planning regime, the rules are not exhaustive or inflexible. “Creators, therefore, necessarily delegate a certain degree of interpretive freedom to their audience” (327).
And yet, the nature of the planning regime is critical to understanding the interpretive methodologies permissible within it. The American founders were deeply suspicious of human beings, and especially of powerful political actors, and this has consequences for meta-interpretive theories like Dworkin’s. Proper interpretation always respects a system’s “economy of trust.” Hence Dworkin’s claim that the founders wanted to create a practice, the content of which must interpreted according to its “best lights,” is fundamentally flawed, for it relies on the good will and sound philosophical judgments of those who would engage in such ideal inquiry. Between interpretive freedom and “best lights” moral philosophy is an enormous middle ground that Dworkin has overlooked, according to Shapiro.
Unfortunately, Shapiro does not show us the contours of this ground in any detail. Nonetheless, he does point out that Dworkinian jurisprudence can only serve to unsettle the very things that it was the purpose of the founders’ plan to settle (308-09). If the rule of law is to be served, legal interpreters must be faithful to the vision of the rule of law that is embodied in the system of social planning (398). Shapiro’s positivism is therefore one that supports a good deal of restraint. And Shapiro comes off as something of an analytical originalist, though he would not embrace that description (352).
Alas, Shapiro’s stripped down version of natural law—simply as the grounding of legal authority and norms in moral facts—does not do justice to that great tradition. It leads him too quickly to bland assertions such as “natural law theory rules out the possibility of evil legal systems” (49). He is unnecessarily obtuse on the fact that for the natural lawyer, “moral” does not equate to morally good. It is rather a recognition and affirmation of Plato’s argument in the Minos that law aims to be a discovery of what is, or of Aquinas’s in the Summa that human law that diverges from natural law is not law at all, but merely command (though command might surely possess some law-like properties).
To say we are planning animals is another way of saying we are political animals. But, as Aristotle and Aquinas and most everyone else in the natural right or natural law traditions knew, this points to the fact we have natures. And certain conclusions follow from the fact of having such natures. Shapiro makes much of Hume’s challenge—that no one can derive an “ought” from an “is.” But this is not really a direct challenge to the natural law argument that claims such a derivation is in fact possible—at both a common-sense and philosophic level. It is rather a denial of the fact that there is an “is.” Hume must vanquish nature, as the analytic philosophers who follow in his footsteps must also do.
Yet as facts are stubborn things, so is nature. Why, after all, should we respect a planning system’s economy of trust if that economy is very generous, as in a Marxist system? Shapiro’s theory of law cannot answer this question as well as many versions of natural law jurisprudence, which would start from denying the optimistic conception of human nature at the heart of Marxism. According to such jurisprudence—or, more properly, political philosophy—from that initial error of “fact” in the Marxist conception of human nature flow conclusions as to how government—how the plan—ought to be constructed. And because of the initial error, the natural lawyer would say the plan is morally wrong. Moral facts (or claims), in other words, must and do inform any plan, and cannot be viewed merely as artifacts within it. Institutional design and organization strictures are not chosen in a vacuum. All theories of politics, and all systems of law, are at root reflections on human nature, a fact to which analytical philosophy—even in so moderate and sensible a guise as Shapiro presents it—is mostly blind.