This paper and its companion (‘‘The Planning Theory of Law I: The Nature of Legal Institutions’’) provide a general introduction to Scott Shapiro’s Planning Theory of Law as developed in his recent book Legality. The Planning Theory encompasses both an account of the nature of legal institutions and an account of the nature of legal norms. The first paper concerns the account of legal institutions. This paper concerns the account of legal norms.

This paper and its companion (“The Planning Theory of Law II: The Nature of Legal Norms”) provide a general introduction to Scott Shapiro’s Planning Theory of Law as developed in his recent book Legality. The Planning Theory encompasses both an account of the nature of legal institutions and an account of the nature of legal norms. This first paper concerns the account of legal institutions. The second concerns the account of legal norms.

In this essay, I focus on what appear to be Shapiro’s views about the normativity of law, as well as with his surprising claim that law necessarily has a moral aim. I argue that even if Shapiro offers a more compelling reply to the problem of the normativity of law than Hart offers in The Concept of Law, the moves that he makes appear to be equally available to a defender of Hart’s theory, and so in this respect, the (...) planning theory has no particular advantage over the practice theory. As for the Moral Aim Thesis, it appears to be in tension with Shapiro’s positivism. If he is right that law has a moral aim and law claims moral legitimacy, then he should embrace a richer account of the nature and normativity of law than the one that he has offered. (shrink)

The practical, normative dimension of planning is a plausible source of the ‘family resemblances’ noted by a number of legal theorists between Scott Shapiro’s Planning Theory and natural law jurisprudence. Foremost among these resemblances is Shapiro’s contention that the law, necessarily, has a moral aim. The moral aim thesis is at first glance surprising given Shapiro’s intention to defend exclusive legal positivism and unequivocal rejection of what he takes to be the core commitments of natural law (...) class='Hi'>theory. Shapiro’s claim, however, is that although the law necessarily has a moral aim, this does not entail that it is successful in satisfying that aim. In order to assess this thesis, it is helpful to compare the Planning Theory with contemporary natural law approaches. Bringing Shapiro’s Planning Theory into dialogue with contemporary natural law theories can demonstrate some of the Planning Theory’s weaknesses as an alternative explanation of the ultimate grounds of the authoritativeness of legal norms. Some of these weaknesses, moreover, are instructive beyond the specific contours of the Planning Theory insofar as they generalise to other legal positivist approaches. In section one I consider Shapiro’s treatment of the so-called ‘Possibility Puzzle’ regarding the grounding relation between authoritative norms and legal authority. Shapiro’s denial of the capacity of earlier jurisprudential theories to resolve this puzzle overlooks what is – I suggest – a plausible solution developed by John Finnis on the basis of Joseph Raz’s theory of practical reason and norms. Section two then demonstrates why Shapiro’s attempt to combine a robust construal of the social facts thesis with a commitment to the thesis that law necessarily has a moral aim is ultimately unsuccessful. (shrink)

What this book intends to do is to study three-dimensionalism (the distinction values-norms-facts) not in what could be called its historical dimension, but in its substantive aspect, as a "form" that, when applied to different legal themes, would add a "material content" to the three-dimensional theory. We can point out, as a study plan, the distinction between "three" perspectives: Those of the legal norm, of the legal order, and the legal relationship. Three-dimensionalism also appears in this work when one (...) analyzes the "three" phases of the life of the law: The formation, the interpretation, and the application; and in the distinction between the "three" characteristics of the legal order: Fullness, coherence, and unity --- the theory of legal validity, intended as legitimacy, as validity strictly speaking, or as effectiveness. (shrink)

Lays out basics of planning theory of law. Roughly, characterizes the internal point of view as a complex planning intention rather than a response to a recurring coordination problem. We are not responding to such a problem per se, but rather to a cooperation problem - and thus the structure of the attitude or intention must be different. It is officials who have the relevant attitude. Does not reject conventionalism, but argues that the convention is of a (...) different sort than is typically thought. Considers the basic commitment of legal positivism to be a commitment law as social fact. (shrink)

This paper examines methodological issues associated with the theory of planned behaviour and explains that an alternative account of data used to support this theory can be provided by positioning theory. A case is presented that shows tests of the theory of planned behaviour fail to eliminate the possibility of alternative explanations for co-variation in its data. An agency or person-centered alternative shows how a causal interpretation can be reinterpreted as evidence of the actions of a (...) person. Unlike the conceptualisation of the individual as behaving in keeping with postulated underlying cognitive laws or rules we assume that the person has, through socialisation, acquired the skills necessary to initiate and manage their own actions. Unlike the interest in TPB data as a causal explanation of action we draw attention to the interpretation of patterns in these data as an aggregate of each person using a common mode of explanation to justify and explain their intentions. (shrink)

This work reconstructs the original theory of natural law as developed by the early Stoic scholarchs, explains its fundamental differences from our traditional conception of natural law, and considers the philosophical motivation for this transformation of the original theory. For the nearly Stoics, natural law corresponds not to a determinate code of laws or precepts, as in Aquinas, but to a certain mental disposition, namely the perfectly rational and consistent conduct of the wise man. The content of the (...) moral conduct enjoined by natural law is specified by "virtuous actions" rather than "appropriate actions" . ;In the Introduction I discuss the central differences between ancient and modern theories of natural law, outline the plan of my project, and explain how the early Stoic theory of natural law differs quite radically from the Thomistic conception of the subject. Next I reconstruct the original form and motivation of the theory from the fragments of the early Stoic scholarchs, explain its relation to their ethics and political philosophy, and show that its original motivation was to offer a better answer than Plato had succeeded in giving to the problems he raised in the Republic. In the third chapter I reconstruct and examine critically Carneades' attack on the Stoic theory. Finally, I argue that Antiochus of Ascalon introduced a simple but fundamental modification of the early Stoic theory, which radically changed its orientation and laid the basis for the Thomistic theory. To support his view about the unity of doctrine of the "ancients", Antiochus revised natural law so as to enjoin kathekonta rather than katorthomata, thus making the content of natural law correspond to a determinate class of precepts. I conclude with some general remarks on why Cicero chose Antiochus' version of natural law as the basis for his De Legibus. In an Appendix I argue that the Stoics' theory had little if any substantive influence on Roman Jurisprudence. (shrink)

Colemanand Shapiro have recently advanced a second at- tempt to reconcile Hart’s practice theory of rules and the idea of the normativity of law; i.e., the idea that legal rules qua social rules give reasons for actions and, in some circumstances create and impose duties and obligations. Their argumentative strategy is to resort to elements in Bratman’s work on shared agency and planning, though they introduce important and substantive modifications to Bratman’s own explanation. Bratman describes his own (...) class='Hi'>theory as a modest theory of the will where the notion of planning plays a fundamental role. Both Shapiro’s and Coleman’s application of Bratman’s planning theory of agency to an authority structure such as law is impressive, but a number of objections can be levelled, with the intention of grasping both the nature of authority structures and the normativity of law. Although I have referred to Shapiro’s and Coleman’s applica- tions as being similar to one another, the differences are sub- stantive and important. I will scrutinise both Shapiro’s and Coleman’s explanations of ‘shared agency’ and discuss the objections that can be raised against each application. (shrink)

Who should have a right to participate in a polity’s decision-making? Although the answers to this ‘boundary problem’ in democratic theory remain controversial, it is widely believed that the enfranchisement of tourists and children is unacceptable. Yet, the two most prominent inclusion principles in the literature – Robert Goodin’s ‘all (possibly) affected interests’-principle and the ‘all subjected to law’-principle – both enfranchise those groups. Unsurprisingly, democratic theorists have therefore offered several reasons for nonetheless exempting tourists and children from the (...) franchise. In this paper, I argue that their attempts fail. None of the proposed rationales can do the job without having unacceptable implications for the voting rights of other groups. I then develop a new specification of the affected interests-view, one that avoids such problems. According to my life plan-principle, a person is entitled to participate in a polity’s decision-making if and only if its decisions will actually affect her autonomously chosen life plans, or prevent her from developing or revising plans of that kind. I show that this principle straightforwardly avoids enfranchising tourists and children, and thus improves upon its two prominent rivals. The paper ends by considering and rejecting two objections to my new principle. (shrink)

Scott Shapiro offers an elaboration and defense of “legal positivism,” in which the official acceptance of a plan figures as the central explanatory notion. Rich in both ambition and insight, Legality casts an edifying new light on the structure of positive law and its officialdom. As a defense of positivism, however, it exhibits the odd feature that its main claims will prove quite acceptable to the natural lawyer. Perhaps this betokens – what many have begun to suspect anyway – that (...) our usual tests for classifying legal theories are, in the present state of discussion, no longer credible. In any case, my hope in the following remarks is to suggest how certain ambiguities in Legality might easily be resolved in favor of Planning Natural Law. The Planning Theory of Law, in other words, is not proprietary to positivism. (shrink)

The “New Natural Law” Theory (NNL) of Germain Grisez, John Finnis, Joseph Boyle, and their collaborators offers a distinctive account of intentional action, which underlies a moral theory that aims to justify many aspects of traditional morality and Catholic doctrine. -/- In fact, we show that the NNL is committed to premises that entail the permissibility of many actions that are irreconcilable with traditional morality and Catholic doctrine, such as elective abortions. These consequences follow principally from two aspects (...) of the NNL. The first aspect is its distinctive version of the planning theory of intention, in which adopting the 'first-person perspective' of an agent is a sufficient, and not merely necessary, condition for determining the nature of his intentional action; this planning theory rests upon an implicitly Cartesian conception of human behavior, in which behavior chosen by an agent has no intrinsic “intentionalness” apart from what he confers upon it as part of his plan. The second aspect is the NNL's distinctive account of basic human goods' incommensurability, according to which there is no common factor shared by basic human goods that allows them to be comparatively ranked in any way that directs practical deliberation. -/- The entailments of these two aspects of the NNL, we argue, amount to a reductio ad absurdum. Pace the proponents of the NNL account, we sketch an alternative hylomorphic conception of intentional action that avoids untoward moral implications by grounding human agency in the exercise of basic powers that are either (a) essential constituents of human nature or (b) acquired through participation in social practices. This conception of intentional action provides a stronger foundation for natural law theory. (shrink)

In 1672, inspired by the wave theory of Ignace Gaston Pardies, Christiaan Huygens made his first attempt to explain the sine law of refraction, but in 1673 he abandoned his plans owing to difficulties concerning double refraction. Huygens was able to explain double refraction on 6 August 1677 after his discoveries of the axis of symmetry of the crystal and of ‘Huygens's principle’. On 6 August 1679, he wrote: ‘I have found the confirmation of my theory of light (...) and of refraction’, and then described an ‘experimentum crucis’ to decide between his theory and a rival hypothesis. A study of caustics may have led Huygens to the discovery of ‘Huygens's principle’. (shrink)

The venerable cities of the past, such as Venice or Amsterdam, convey a feeling of wholeness, an organic unity that surfaces in every detail, large and small, in restaurants, shops, public gardens, even in balconies and ornaments. But this sense of wholeness is lacking in modern urban design, with architects absorbed in problems of individual structures, and city planners preoccupied with local ordinances, it is almost impossible to achieve. In this groundbreaking volume, architect and planner Christopher Alexander presents a new (...) theory of urban design which attempts to recapture the process by which cities develop organically. To discover the kinds of laws needed to create a growing whole in a city, Alexander proposes here a preliminary set of seven rules which embody the process at a practical level and which are consistent with the day-to-day demands of urban development. He then puts these rules to the test, setting out with a number of his graduate students to simulate the urban redesign of a high-density part of San Francisco, initiating a project that encompassed some ninety different design problems, including warehouses, hotels, fishing piers, a music hall, and a public square. This extensive experiment is documented project by project, with detailed discussion of how each project satisfied the seven rules, accompanied by floorplans, elevations, street grids, axonometric diagrams and photographs of the scaled-down model which clearly illustrate the discussion. A New Theory of Urban Design provides an entirely new theoretical framework for the discussion of urban problems, one that goes far to remedy the defects which cities have today. (shrink)

Scott Shapiro’s theory that law is a social plan is helpful in seeing law essentially as a tool of human creation and as such is sympathetic to understanding law in terms of the social functions it performs, a method I argue for elsewhere. I focus here on two problems with the theory as presented. The planning theory does not adequately explain the persistence of law beyond the utility of those who implement it. Generally, plans can cease (...) to exist as soon as those engaged in them have no more use for them. Laws however, must usually be declared invalid or otherwise nullified for them to have no further effect. Shapiro’s use of self-certification to explain how law is differentiated from other forms of social planning is ad hoc and threatens circularity when he admits it to be a matter of degree. Both of these issues can be better solved by seeing law as an institutionalised abstract artefact, with a greater emphasis upon the nature of institutions doing much of the work done by the idea of planning. (shrink)

Background On December 2017 the Italian Parliament approved law n. 219/2017 “Provisions for informed consent and advance directives” regarding challenging legal and bioethical issues related to healthcare decisions and end-of life choices. The law promotes the person’s autonomy as a right and provides for the centrality of the individual in every scenario of health care by mean of three tools: informed consent, shared care planning and advance directives. Few years after the approval of the law, we conducted a survey (...) among physicians working in four health care facilities specific for the care of people suffering from psychiatric disorders, cognitive disorders and dementia located in the North of Italy aiming to investigate their perceived knowledge and training need, attitudes regarding law n. 219/2017 provisions, and practices of implementation of the law. Methods A semi-structured questionnaire was developed on an online platform. The invitation to participate in the survey was sent by email to the potential participants. Information was collected by means of the online platform (Google Forms) which allows to export data in a spreadsheet (Windows Excel) to perform basic statistical analysis (frequency distributions, bar chart representation). Results Twenty-five out of sixty physicians participated in the survey. None of the respondents value their knowledge of the law as very good, 10 good, 13 neither poor nor good, 1 poor and 1 very poor. All the respondents want to learn more about the law (21 yes and 4 absolutely yes). The majority of respondents agrees with the content of the law as a whole (3 absolutely agree, 13 agree), and on each provision. The question on the clarity of the concept of capacity in the law received mixed answers and this impacted on the physicians’ opinion regarding the legitimacy in principle for our groups of patients to realize shared care planning and write advance directives. Thirteen physicians neither introduced the theme of shared care planning nor arranged for shared care planning and the main reason for this was that no patient was in a clinical situation to require it. When shared care planning is realized, a variability in terms of type and number of meetings, mode of tracking and communication is registered. Conclusions Our survey results indicate a need for more clarity regarding the interpretation and implementation of the law in the patient groups under study. There are in particular two related areas that deserve further discussion: (1) the question of whether these patient groups are in principle legitimized by the law to realize shared care planning or write advance directives; (2) the notion of capacity required by the law and how this notion can be declined in real-life situations. (shrink)

Health care costs and affordability are critical issues to consumers. Just as we assess the coverage impacts of a health reform proposal, we should be able to evaluate how the plan will constrain health care costs: its theory of cost control. This essay provides a framework to assess health reform plans on their theories of cost control, identifying the key policy tools to constrain health care costs organized in a two-by-two matrix across the following dimensions: price vs. utilization and (...) public vs. private payers. It then applies the framework to the Affordable Care Act and the Republican's 2017 legislative efforts to repeal and replace the ACA to identify their general theories of cost control, revealing on the plans' strengths, blind spots, and incoherence. (shrink)

Some laws cannot yet be entirely abrogated in a current political situation, though permitting grave injustices against some individuals; for example, unborn and/or disabled individuals. In supporting the passing of new ‘imperfect’ laws that protect only some of those who now lack protection, do we ourselves discriminate unjustly against those remaining unprotected? Or does that depend on factors such as our intentions – including what we intend that others intend? How may we collaborate with colleagues who intend, and perhaps explicitly (...) defend, the continuation of remaining, closely-related injustices, although they are willing to join us in trying to improve some aspects of the status quo? This paper explores the moral constraints on our attempts to extend the law’s protection to some, but not to all, of those individuals currently deprived of such ­protection and at risk of serious harm. (shrink)

This article explores traditional views of advance care planning in the broader context of advance personal planning, which also accounts for legal and financial matters. Criticisms of existing processes are noted, while the significance of interprofessional collaboration is highlighted. Reframing the purpose of advance personal planning as planning for the rest of life, rather than the end-of-life, and adopting a more holistic perspective informed by theory may help individuals to view advance personal planning as (...) a routine, preventative exercise that safeguards their autonomy and well-being. Both lawyers and healthcare providers have an important role to play in reframing the purpose of advance personal planning. This revised approach is underpinned by the unification of two separate theoretical lenses: Preventive Law Theory and Therapeutic Jurisprudence. This combination enhances our understanding of what it means for people to truly achieve “the good result” (Holtz 2017) when planning ahead for their future legal, financial, health, and personal interests. Preventive Law Theory encourages an ongoing, collaborative relationship between lawyers and their clients, or healthcare providers and their patients, while Therapeutic Jurisprudence ensures an ethical approach to advance personal planning that accounts for all aspects of the individual’s well-being, including consideration of vulnerability, autonomy, and empowerment. (shrink)

One of the world's pre-eminent Max Weber scholars here presents a comprehensive analysis of Weber's ambiguous stance toward modernity considered from a normative, theoretical, and historical point of view. The book is in two parts. Part I scrutinises Weber's world view. On the basis of his thinking about the meaning and inter-relationships of science, politics, and ethics in the modern era, Weber is seen as the embodiment of a social scientist and political thinker who exposes himself to intellectual risks and (...) existential tensions while resisting final solutions. It includes a masterly analysis of Weber's two famous speeches 'Science as a Vocation' and 'Politics as a Vocation'. Part II considers Weber's unfinished project on the sociology of religion. Piecing together planned and partially completed works on Islam and Western Christianity, Schluchter locates them in the history and theory of Weber's overall work. This reconstruction of Weber's work on religion emphasises its interplay between religion, economy, politics, and law. (shrink)

An important part of the legal domain has to do with rule-governed conduct, and is expressed by the use of notions such as norm, obligation, duty, and right. These require us to acknowledge the normative dimension of law. Normativity is, accordingly, to be regarded as a central feature of law lying at the heart of any comprehensive legal-theoretical project. The essays collected in this book are meant to further our understanding of the normativity of law. More specifically, the book stages (...) a thorough discussion of legal normativity as approached from three strands of legal thought that are particularly influential and which play a key role in shaping debates on the normative dimension of law: the theory of planning agency, legal conventionalism and the constitutivist approach. While the essays presented here do not aspire to give an exhaustive picture of these debates--an aspiration that would be, by its very nature, unrealistic--they do provide the reader with some authoritative statements of some widely discussed families of views of legal normativity. In pursuing this objective, these essays also encourage a dialogue between different traditions of study of legal normativity, stimulating those who would not otherwise look outside their tradition of thought to engage with new ideas and, ultimately, to arrive at a more comprehensive account of the normativity of law.--Provided by publisher. (shrink)

Legal theorists tend to focus on disagreement over the law, and yet a theory of law should also explain why lawyers and judges agree on the law as often as they do. To that end, this article first pins down a precise sense in which there can be pervasive agreement on the law. It then argues that such agreement obtains in the United States and likely in many other jurisdictions as well. Finally, it contends that Hartian Positivism offers a (...) straightforward explanation of this phenomenon and, indeed, a better explanation than rival theories, like Ronald Dworkin’s Law as Integrity or Scott Shapiro’s Planning Theory. Given the ubiquity of legal agreement, Hartian Positivism’s explanatory superiority in this regard is a strong, albeit still not dispositive, consideration in its favour. The broader lesson is that theories of law should give greater priority to explaining legal agreement than many theories now do. (shrink)

Our capacity for planning agency is a core capacity that underlies interrelated forms of mind-shaped practical organization: cross-temporal organization of individual agency, shared agency, social rules, and rule-guided organized institutions. A function of our capacity for planning agency is the support of these forms of practical organization. I highlight Peter Godfrey-Smith's contrast between the ‘Wright function’ of something as ‘the effect it has which explains why it is there’ and ‘Cummins functions’ that ‘are capacities or effects of components (...) of systems, which are salient in the explanation of capacities of the larger system’. Drawing on Paul Grice's strategy of ‘creature construction’, I articulate a sequence of nested constructions: from temporally extended planning agency to shared agency to shared policies to social rules to rule-guided organized institutions. We see our capacity for planning agency as part of an explanation of how we achieve such practical organization, and as having nested Cummins functions of supporting those forms of organization. This sheds light on related ideas in H.L.A. Hart's theory of law, a challenge from J. David Velleman, the centrality of such forms of organization to the philosophy of action, and the moral and political significance of our capacity for planning agency. (shrink)

Contract and employment law have grown apart. Long ago, each side gave up on the other. In this Article, we reunite them to the betterment of both. In brief, we demonstrate the emancipatory potential of contract for the law of work. Today, the dominant contract theories assume a widget transaction between substantively equal parties. If this were an accurate description of what contract is, then contract law would be right to expel workers. Worker protections would indeed be better regulated by—and (...) relegated to—employment and labor law. But contract law is not what contract theorists claim. Neither is contract law what the dominant employment theorists fear—a domain that necessarily misses the constitutive place of work in people’s life-plans and overlooks the systemic vulnerability of workers to their employers. Contract, we contend, is not work law’s canonical “other.” Rightly understood, contract is an autonomy-enhancing device, one founded on the fundamental liberal commitment of reciprocal respect for self-determination. From this “choice theory” perspective, the presumed opposition between employment and contract law dissolves. We show that many employment law doctrines are not external to contract, but are instead entailed in liberal contract itself. Grounding worker protections in contract theory has two salutary effects. First, it offers workers more secure protection than that afforded by their reliance on momentary public-law compromises. Second, it reveals contract’s emancipatory potential for all of us—not just as workers, but also as widget buyers. Contract can empower, and employment can show the way. (shrink)

In Legality, Scott Shapiro introduces what he calls the “Planning Theory of Law.” Shapiro introduces the idea of a plan with examples from outside of the law. He then must provide an account of what is distinctive about law, such that the other plan-based social orders are not also legal systems. He gives two answers: first, a legal system is organized by a moral aim. Second, a legal system is self-certifying. I examine these in turn, and argue that (...) each can only characterize what is distinctive about law if the relevant moral problem that law aims to solve is itself specifically concerned with authority—that is with who gets to decide about what. Other forms of planning assign roles to people to solve problems that have nothing to do with authority; law uses role-based authority to solve a moral problem that is fundamentally about authority. (shrink)

I LAW AND NATURE i. The "Pure" Theory The Pure Theory of Law is a theory of positive law. It is a theory of positive law in general, not of a specific legal ...

In “How Facts Make Law” and other recent work, Mark Greenberg argues that legal positivists cannot develop a viable constitutive account of law that meets what he calls the “the rational-relation requirement.” He argues that this gives us reason to reject positivism in favor of antipositivism. In this paper, I argue that Greenberg is wrong: positivists can in fact develop a viable constitutive account of law that meets the rational-relation requirement. I make this argument in two stages. First, I offer (...) an account of the rational-relation requirement. Second, I put forward a viable positivist account of law that I argue meets this requirement. The account that I propose is a version of Scott Shapiro’s Planning Theory of Law. The version of Shapiro’s account that I propose combines (1) the account of concepts and conceptual analysis put forward by David Chalmers and Frank Jackson with (2) the account of the concept LEGAL INSTITUTION (and its conceptual connections to the concept LEGAL NORM) that we get from a certain reading of Shapiro’s Planning Theory. In addition to providing a compelling response to Greenberg’s argument in “How Facts Make Law,” I argue that the explanation for why my response to Greenberg works underscores one of the central problems facing legal antipositivism: namely, its lack of a convincing account of the nature of legal institutions. (shrink)

What does it mean to hold a belief? Some of our ways of speaking in English suggest that to hold a belief is to have something in your mind: beliefs are things we acquire, defend, recover, and so on (Abelson, 1986). That is, believing is a matter of being in a state of having a thing. In this paper, I will argue for an alternative: believing is something we do. This is not a new suggestion. For instance, Matthew Boyle (2011) (...) defends a theory of belief as an activity, which he traces back to Aristotle. This paper, however, makes two new contributions: first, I argue for an analogy between belief and planning that fleshes out what it would mean to understand belief as an activity, and second, I aim to show how the resulting view can help sense of a variety of theories in cognitive psychology that suggest cognitive information storage is dynamic and reconstructive. (shrink)

Reprinted 1999 by The Lawbook Exchange, Ltd. LCCN 98-32334. ISBN 1-886363-74-9. Cloth. $95. * Reprint of the first edition.

Scott Shapiro’s Legality argues the positivist Planning Theory of law meets the anti-positivist challenge posed by the argument from theoretical disagreements about law in Ronald Dworkin’s Law’s Empire. Legality equates theoretical disagreements with what Shapiro calls meta-interpretive disagreements, and then offers a legal theory of meta-interpretation that purportedly accounts for the existence of meta-interpretive disagreements by showing how it is rational or intelligible for legal actors to have such disagreements. This paper argues Legality misconstrues Law’s Empire. The (...) true challenge of ATD was to provide a theory of law that would vindicate the judgment that law is discovered in cases of theoretical disagreements, rather than made. Legality sees the challenge of Law’s Empire to be to show how it is rational or intelligible for legal actors to have theoretical disagreements, which is different from showing how there really is pre-existing law to be found in cases of theoretical disagreements. So the challenge Legality addresses is circumscribed. But Legality does not even succeed at addressing its own more circumscribed challenge, because, under the Planning Theory of meta-interpretation, legal actors are mistaken to think they are finding law in cases of theoretical disagreements. (shrink)

Johannes Althusius, a German legal theorist and political thinker in the early 1600s, attempts in his Politica to create a chain of increasingly large communal associations that could constitute a universally applicable political order. He founds this system on a natural law theory of behavioral guidelines. Many elements of his body of work, from its federalist structure to the granting of a right of sovereignty to the people, bear marks of an early connection to modern Western thought meriting further (...) exploration. Upon close inspection, the natural law theory at play in Politica also contains oddities and inconsistencies worthy of note. His Theory of Justice, a work on law and ethics, contains a similar theory with slight yet significant variations at the core level. Ultimately owed to weaknesses in the derivation of duties to self and a lack of evidence for the reasoning of the hierarchy of duties to others in Politica, the Theory of Justice model, though not without its own internal inconsistencies in the moral authority of positive law, is found to present a more philosophically sound model. (shrink)

The paper deals with the possibility of a theory of the nature of law as such, a theory which will be necessarily true of all law. It explores the relations between explanations of concepts and of the things they are concepts of, the possibility that the law has essential properties, and the possibility that the law changes its nature over time, and that what is law at a given place and time depends on the culture and concepts of (...) that place and time. It also considers the possibility of understanding the institutions, such as the law, of cultures whose concepts are alien to us. The position advocated offers a reconciliation of ways in which a theory of the nature of law is parochial with its claim to be universal. (shrink)

In Legality Scott Shapiro seeks to provide the motivation for the development of his own elaborate account of law by undertaking a critique of H.L.A. Hart's jurisprudential theory. Hart maintained that every legal system is underlain by a rule of recognition through which officials of the system identify the norms that belong to the system as laws. Shapiro argues that Hart's remarks on the rule of recognition are confused and that his model of lawis consequently untenable. Shapiro contends that (...) a new approach is vital for progress in the philosophy of law and, with his lengthy presentation of his own Planning Theory of Law, he aspires to pioneer just such an approach. Except for a very terse observation in the final main section, this article does not directly assess the strengths and shortcomings of Shapiro's piquant planning theory. Instead, I defend Hart against Shapiro's charges and thereby undermine the motivation for the development of the planning theory. (shrink)

THEORY OF LAW INTRODUCTION NEED FOR GENERAL KNOWLEDGE SCHELLING. Vorlesungen iiber die akad. Studium,. COMTE, AUG. Cours de philosophic positive. Tome. ...

Complex moral and political problems like climate change have the capacity to make wrongful (in)actions appear reasonable. This has significance for the central questions of jurisprudence. If we cannot plan rationally for the future, or acts now thought to be rational and blameless become progressively more blameworthy, central elements in our understanding of law – planning, reasonableness, and authority – may diminish in their ability to explain the function and normativity of law. If this is the case, legal positivism (...) and legal non-positivism appear to be confronted with significant, but different, challenges depending on the extent that they conceive of law as future-orientated planning or as a form of practical reasonableness. (shrink)

We have the capacity to act together in shared intentional and shared cooperative ways. This lecture argues that our capacity for the plan-based, mind-supported cross-temporal organization of our individual activities, together with certain further elements, suffices for our capacity for the mind-supported, small-scale social organization characteristic of acting together. These two fundamental forms of human practical organization––diachronic and small-scale social––are for us grounded in a common core: our capacity for planning agency.

Confucianism has been historically intertwined with authoritarianism in general and monarchy in specific. Various contemporary attempts to reconcile Confucianism with democracy have yielded controversial results mostly due to the theoretical tension between the authoritarian character of the former and the liberal one of the latter. This article seeks to develop an alternative route to Confucian democracy by drawing from Huang Zongxi’s 黃宗羲 Waiting for the Dawn: A Plan for the Prince. In this well-known work, Huang argues for a form of (...) limited government that is built upon laws, political protection of academic freedom, good institutional designs, and separation of governmental powers. While these features seem to qualify Huang only as a defective liberal, this article argues that they are in much coherence with the insights of republicanism concerning good governance. This article will argue that the republican themes embodied in Waiting for the Dawn can justify and support a particular form of Confucian republican democracy. (shrink)

On Shapiro’s view, any viable legal theory must successfully respond to his Possibility Puzzle and Humean Challenge. Moreover, he argues that Hartian legal theory fails in this respect. Here, I take issue with his characterization of these challenges and the Hartian response to them. I argue that he equivocates with respect to a number of the key terms and relations that inform his Possibility Puzzle, and I argue that if we disambiguate its terms consistently and plausibly, we will (...) see that its putative challenge to Hartian legal theory is illusory. I also argue that once we adequately characterize Hartian legal theory, it easily meets the Humean Challenge. If correct, these arguments undermine Shapiro’s larger project of defending his planning theory of law, for a key pillar supporting his theory is that it meets challenges that rival theories cannot. I also consider his planning theory directly, and I argue that it compares unfavourably to the Hartian approach in a crucial respect. It obscures the Hartian insight that customary practice is an ineliminable and fundamental feature of legal systems. Thus, I conclude that though Shapiro’s Legality brings to the fore many of the key issues in contemporary analytic jurisprudence and does so in an insightful and provocative way, it does not succeed in its ultimate ambition of improving upon and supplanting Hartian legal theory. (shrink)

_The Laws_, Plato's longest dialogue, has for centuries been recognized as the most comprehensive exposition of the _practical_ consequences of his philosophy, a necessary corrective to the more visionary and utopian _Republic_. In this animated encounter between a foreign philosopher and a powerful statesman, not only do we see reflected, in Plato's own thought, eternal questions of the relation between political theory and practice, but we also witness the working out of a detailed plan for a new political order (...) that embodies the results of Plato's mature reflection on the family, the status of women, property rights, criminal law, and the role of religion and the fine arts in a healthy republic. "Because it succeeds in being both literal and comprehensive, it is by far superior to any translation available. By reproducing dramatic detail often omitted, such as oaths, hesitations, repetitions, and forms of address, Pangle allows the reader to follow the dialogue's interplay between argument and dramatic context.... Pangle's translation captures the excitement and the drama of Plato's text."—Mary P. Nichols, _Ancient Philosophy_ "Pangle's achievement is remarkable.... The accompanying interpretive essay is an excellent distillation of a dialogue three times its size. The commentary is thoughtful, even profound; and it amply demonstrates the importance of reading Plato carefully and from a translation that is true to his language."—Patrick Coby, _American Political Science Review_. (shrink)

This chapter contains sections titled: The Object of Marxist Theory of Law Outline of a Marxist Theory of Law Alternative Marxist Approaches to Law Ideology as Law and Law as Ideology Law and State Economic Relations and the Law Legal Relations and Class Relations Conclusions References.

A theory of human nature must consider from the start whether it sees human beings in fundamentally biological terms, as animals like other animals, or else in fundamentally supernatural terms, as creatures of God who are like God in some special way, and so importantly unlike other animals. Many of the perennial philosophical disputes have proved so intractable in part because their adherents divide along these lines. The friends of materialism, seeing human beings as just a particularly complex example (...) of the sort of complex organic structure found everywhere on Earth, suppose that we are ultimately constituted out of just the same material from which squirrels and rabbits are made. The friends of dualism, instead, think that such a story can hardly do justice to what is special about human nature. Likewise, the friends of a libertarian, robustly non-deterministic conception of free will see something special in human spontaneity and moral responsibility. To their opponents, human beings operate on the same principles, albeit more complex, as do squid and plankton. These and other such disputes need not divide along religious lines. One may oppose naturalism without embracing a supernatural theistic perspective; one might, for instance, think it simply a matter of fact that human beings are fundamentally unlike other biological organisms, but yet not suppose we are made that way by any higher power. Conversely, the theist may think it part of the divine plan to have made human beings as nothing more than the most complex of biological organisms, constituted out of the same stuff and constrained by the same laws. So although the choice I have described between two perspectives –. (shrink)

The 1930s–1940s underwent profound structural economic and political turmoil following the collapse of the nineteenth century liberal market economies. The intellectual debates of the time were dominated by the question of whether Marx’s theory of the tendency of rate of profit to fall was true, or what consequence could be imagined in the survival of capitalist societies. Placed in the middle of such debates was also the reorganization of national productions into war economies. By means of reconstructive analysis, the (...) paper provides a critical overview of the debates that took place within the circle of the Frankfurt School during those years. It also advances an interpretive thesis suggesting that remedies to capitalist crises of the time turned state powers into privatized, illiberal coercive entities. Coercion and privatization reinforced each other. This general tendency is well illustrated by the famous Pollock-Neumann debate. These intellectuals expressed views not only intended to shed light on the historical period of time, but also to formulate long-term considerations on the authoritarian trends embedded in our contemporary democracies. Through historical reconstruction, the paper’s aim is to identify a long-term structural thread of transformation starting from the transformation of the German economy in 1930s and touching upon post Second World War problems of states’ restructuring along privatization/coercion divides. (shrink)

This paper presents in outline Luigi Ferrajoli’s axiomatic and general theory of law, as developed in his lifelong work Principia Iuris . The first section focuses on the three main aspects of the theory: the methodological, the theoretical and the pragmatic, which respectively represent the theory’s syntax, semantics and its pragmatics. Ferrajoli identifies three deontic gaps of norms: firstly, the one between their validity and efficacy ; secondly, the one between their justice and validity ; and finally, (...) and most importantly, the one between validity and existence (i.e. normative force). The presence of such gaps is, according to Ferrajoli, the extraordinary innovation that entrenched constitutions have brought into modern legal systems, by establishing norms that are superior to statutes and case law. In this sense, all normative phenomena (except for the constitution itself) can be conceived both as norms and as facts. In the second section the role of juridical science is briefly discussed. (shrink)