Legality.

• Author: Waldron, Jeremy
• Position: Book review

LEGALITY. By Scott Shapiro. Cambridge: Harvard University Press, 2010. Pp. 472. $39.95.

1. COMPARISONS

   What is law like? What can we compare it with in order to illuminate its character and suggest answers to some of the perennial questions of jurisprudence?

   Natural lawyers compare laws to moral propositions. A human law is an attempt by someone who has responsibility for a human community to replicate, publicize, and enforce a proposition of objective morality such as "Killing is wrong." Law is like moral reasoning, say the natural lawyers, and laws should be regarded as principles of right reason (principles that reason dictates as answers to the moral questions that need to be addressed in human society). (1) However, in recent times legal philosophers have looked for illumination in the domain of social fact rather than in the realm of value. Law is like power, they have suggested, or like certain facts about the existence and exercise of power. So, for example, John Austin, writing in the first half of the nineteenth century, said that laws were like commands. A command is the expression of a wish coupled with the threat of a sanction, and a law expresses the wish of a sovereign along with a threat (for the event of noncompliance) that the sovereign's ascendancy in a society makes credible. (2) Justice Holmes offered a different comparison: a law, he said, is like a prediction of what courts will do in a certain event. (3) The law prescribing fifty-five miles per hour as the speed limit for the state of New York is a prediction that the courts will impose fines on those who are caught driving faster than that. So jurisprudence is like social science: it takes a series of predictions about what powerful people will do and it tests and organizes them.

   H.L.A. Hart, writing in the middle of the twentieth century, used a different comparison from social science. He argued that laws are like social practices. (4) In the United States there is a practice of removing one's cap at a baseball game when the national anthem is played. There is no law to this effect, but it is something one does; those who do it do so because everyone does it and they think they ought to do it, too; and they frown upon and sometimes remonstrate with those who fail to remove their caps when The Star-Spangled Banner is played. (5) Laws, says Hart, are like this--particularly the most fundamental laws of a legal system. (6) The rule that courts follow precedent, for example, is not commanded by a sovereign; and it is not a prediction that judges who fail to follow precedent will be sanctioned. It is just a practice among the higher judiciary that has become established and entrenched. It is complicated, no doubt, and it is by no means an absolute rule. But it exists as a law (in a given system of laws) because it is practiced by the officials of the system.

   Other positivists invoke more abstract and sophisticated comparisons. Hans Kelsen said that laws are like norms. He did not mean moral norms; he meant that laws were like simple normative statements such as "Do this !" or "Do that!" or "This is to be done." (7) And this view is very common among positivists today. (8) They compare laws with prescriptions that purport to guide action. Someone might say "Don't drink" as a way of directing people away from alcohol consumption: his saying that indicates a course of action and prescribes its avoidance. For a while, during the period of Prohibition in the 1920s, we had laws that were exactly like this prescription: they directed us away from the use of alcohol. But then in 1933 we abandoned this norm (at least for adults), though the law continued to direct minors not to consume alcohol. (9) Laws are like that; they are norms or prescriptions that come and go.

   To say that law is like X does not preclude it from also being like Y. Some jurists have backed more than one of these horses William Blackstone tried to combine the command theory with the moral or natural law theory. Law is both like a command and like a moral proposition: his definition of law was "a rule of civil conduct prescribed by the supreme power in a state commanding what is right and prohibiting what is wrong." (10) Jeremy Bentham derided this sort of eclecticism as unrigorous and potentially contradictory. (11) But sometimes more than one comparison is appropriate either because law has many different aspects or because there are different kinds and levels of laws. H.L.A. Hart famously distinguished between the primary rules and the secondary rules of a legal system. (12) As I have indicated, his comparison of law with social practices works best for some of the most fundamental secondary rules, like the rule of recognition. In a system of customary law it might also work for primary rules; these too might be best understood as social practices. But in a system of enacted law, it is better to understand primary rules as norms or prescriptions directed by lawmakers to persons who are expected to comply with them. Their existence conditions may include facts about compliance; but the comparison between ordinary primary rules and social practices is for the most part unilluminating for modern legal systems. (13) So we describe primary rules as norms rather than as practices. But sometimes we use both analogies to illuminate a given law. So, for example, in Hart's account, we say that secondary rules are illuminated by the comparison with social practices but that they are also illuminated by the comparison with norms. This is because the practices Hart has in mind are not just convergences of behavior, but convergences of behavior that has an internal aspect oriented to the guidance of the conduct of those who participate in the practice. Hart's secondary rules are like norms and they are like social practices.

2. THE PLANNING THEORY

   Scott Shapiro, who teaches jurisprudence and philosophy at Yale University, has written a book--rich and vibrant with jurisprudential ambition--suggesting a new comparison. Laws are like plans, he says. "Legal activity is an activity of social planning" (p. 195), and the laws that result from social planning are themselves just like plans that have been adopted in our community. Like the plans that a bunch of people may make among themselves to coordinate an activity like cooking dinner together or going on a trip, social plans operate to guide and coordinate the activities of a number of people acting together but also in partial independence of one another to secure a common objective. "The main idea behind the Planning Theory of Law," says Shapiro, "is that the exercise of legal authority ... is an activity of social planning. Legal institutions plan for the communities over whom they claim authority, both by telling their members what they may or may not do and by authorizing some of these members to plan for others" (p. 195).

   In elaborating his Planning Theory, Shapiro does not reject the conventional view of law as norms (that is, laws as prescriptions that purport to guide action). But his position is that the normative view is incomplete: "[L]egal activity is more than simply the activity of formulating, adopting, repudiating, affecting, and applying norms for members of the community" (p. 195). To plan is to adopt, subscribe to, and comply with a set of norms that makes sense in light of a common purpose, hopefully a set of norms that meshes purposefully with the norms adopted by others involved in that project. Sally is to make sure the car is filled with gas; she is guided by the norm that says, "Sally, make sure the car is filled with gas." And Harry is to bring his luggage at a certain time to a street corner near the University of Chicago; he is guided by a norm that says, "Harry, bring your luggage to the corner at 10 a.m." The two norms intermesh, and being guided in these complementary ways, Harry and Sally can carry through on their plan to drive together from Chicago to New York City. (14) But while all plans involve norms, "not all norms are plans" (p. 128). The norms of logic, for example, are not plans, according to Shapiro (p. 128); they are just norms. And the same, Shapiro says, is true of moral principles (p. 128) like "Thou shalt not kill." All they do is direct us away from killing. But laws--which Shapiro thinks are mostly not illuminated by any comparison with moral principles--are plans. The Sherman Act, for example, is a plan for running a market economy free of collusive and uncompetitive distortions; it requires all sorts of individuals, firms, and officials to follow various norms that are supposed to mesh together as subplans in one vast, complex, planned enterprise designed to avoid monopolies, restraints on trade, and unfair methods of competition (pp. 195-97).

   In pursuing this theme, Shapiro is drawing on the work of Michael Bratman, a philosopher at Stanford University, who analyzes the structure of planning and the intentionality of joint action. (15) When one person plans out an activity for himself, he breaks a complex enterprise down into its component parts, so that he can see how they fit together, what order they need to be pursued in, and what each component requires so far as the other components are concerned. To cook dinner, I must buy food, and so my trip to the supermarket must be oriented to the ingredients of the recipe I have in mind, and the timing of my preheating the oven must be determined by how hot the oven needs to be for the dish I want to cook and how long it will take me to get to the supermarket and back, which depends on which supermarket I choose to go to, which depends in turn on what I need to buy. (16) That is one-person planning.

   When two people engage in an action like cooking dinner together, the intentionality is more complicated. We cannot say that each of them intends to cook dinner, because the intentional actions of each may relate only to a part of...