Legality.

• Author: Schauer, Frederick
• Position: Book review

Legality

BY SCOTT J. SHAPIRO

CAMBRIDGE, MA: BELKNAP PRESS OF HARVARD UNIVERSITY PRESS, 2011, PP. 472.

$39.95.

REVIEW CONTENTS I. LEGALITY: A CRITICAL OVERVIEW II. LAW AS PLAN III. WHEN PLANS GO AWRY IV. ON IGNORING COERCION: A DIAGNOSIS CONCLUSION: TOWARD A JURISPRUDENCE OF COERCION With stunning frequency, law makes us do things we do not want to do. It taxes us even if we think taxation is excessive and its uses wasteful. It demands that we adhere to speed limits when road conditions permit faster driving. It bars us from activities we may believe benign or beneficial, such as buying wine on Sunday or assisting a terminally ill friend who wishes to end her life. And at times it conscripts us into military service, though we may believe the wars immoral, the dangers exaggerated, or the enemies imagined. To be sure, law's demands sometimes track what we would do even were there no law on the subject. Quite often, however, laws coerce us into taking actions that, but for the law, we would have avoided. Because the law can send us to prison, extract fines, and compel us to pay those who sue us, it has ample means to force us to do what we do not wish to do and even what we may believe it is wrong to do.

To observe that law is commonly coercive is hardly a revelation, and even less so to those whose goals are far from noble. In criminal circles, after all, "the law" is slang for the police; for criminals know even better than the rest of us that law is the force that can send them to prison for engaging in larceny, assault, and countless other illegal acts. For bad people as well as good, therefore, law's coerciveness looms large. And thus to the typical citizen, attempting to understand and explain law without regard to its force would seem scarcely conceivable.

Yet however unimaginable it may be to most people to contemplate law without considering its power of compulsion, much of the modern analytic jurisprudential tradition does just that. Historically, theorists such as Jeremy Bentham (1) and, especially, John Austin (2) saw law's ability to back its commands with force as central to the concept of law and went so far as to define legal obligation and duty in terms of the threat of sanctions for noncompliance with the state's orders. (3) But although the Austinian picture of law dominated jurisprudence from Austin's time until the mid-twentieth century, H.L.A. Hart's 1961 attack in The Concept of Law on the view that coercion was essential to legality (4) is now widely understood to have delivered a fatal blow. (5) In pointing out that many laws were empowering rather than restrictive and that legality could exist when citizens or officials internalized legal norms even absent sanctions, Hart demonstrated the folly of maintaining that the threat of force was a necessary component of law. (6) Practitioners of legal philosophy (7) in the modern analytic tradition--proud heirs to the Hartian legacy--have Accordingly sought to explain the nature of law without reference to coercion. (8) For them, the essence of law exists in its capacity to give reasons, not in its willingness to use force to secure compliance with its directives. Legal coercion may be pervasive, but it is still widely considered incidental to the nature of law and extraneous to the concept of law. (9) Yet, as I shall discuss, this conclusion is largely the product of the prevailing methodological commitments of contemporary jurisprudential inquiry. Proceeding from the premise that only the essential features of law can distinguish it from other normative social institutions, practitioners of contemporary jurisprudence have been largely preoccupied with searching for such essential (or necessary) features. Features of law that are empirically pervasive but not strictly essential consequently find themselves relegated to a decidedly inferior position in the hierarchy of theoretical importance.

The modern tradition of seeking to explain the nature of law in terms of essential properties, and accordingly without reference to force, is well exemplified in Scott Shapiro's Legality. (10) In this important contribution to analytic jurisprudence, Shapiro accepts the modern view that only the essential properties of law can explain its nature and that the use (or threat) of force, not being strictly essential, is thereby not a component of the idea of legality. But if the essence of law is not about forcing people to do things they do not want to do, then it must be about something else. And for Shapiro, this essence must be a function of the purpose that law serves. Just what is law for? And why and how did it develop in the first place? These are important questions, albeit not necessarily or exclusively philosophical ones, (11) to which the answers are by no means obvious. After all, human beings interact with each other in myriad ways, but most of them stand apart from the law. We build families, enter into relationships, make friends, and often even cooperate with each other; but such forms of human interaction--and there are many others--predate the law as we know it. Yet even though human beings had many kinds of interactions before they had law, at some point in history they felt it important to create law. But why and how did this happen? Why did societies create law, if not to coerce, and what made it possible for law to get started in the first place? What allows legal systems to exist and persist? And how do we distinguish law from the other institutions through which people manifest and further their collective existence?

Shapiro's distinctive (at least within the jurisprudential literature (12)) answers to these questions reside in the idea of planning, or more particularly, social planning. Humans are planning creatures, he argues, and when we attempt to make plans socially, collectively, and cooperatively in order to serve group aims, we discover that we cannot do so without the devices and institutions that characterize law as a distinct form of social interaction. (13) We need not only rules but also institutions to determine who makes the rules, who changes them, and who interprets them. These tasks, however, presuppose that the people who perform them have the authority to do so, and social planning for Shapiro thus explains not only law's purpose but also its possibility. By being the precondition for law's emergence, planning is, for Shapiro, essential for legality. (14) His claim thus goes beyond the more modest ones that law facilitates planning or that planning facilitates law. For Shapiro, law simply is planning, albeit of a particular institutional kind.

There is much to learn from Shapiro's planning theory of law, as I elaborate below. At times, however, Shapiro's valuable insights into the goals and operation of law appear imprisoned within a view of the jurisprudential enterprise that compels him not only to search for a noncoercive essence to law, but also to assume that the nature of law can be explained only in terms of law's essential properties and necessary implications. (15) If we understand these methodological and disciplinary constraints--if we understand that in the contemporary jurisprudential milieu force and coercion cannot be part of the explanation for law because only law's essential properties are allowed to explain the nature of law--then Shapiro's planning theory is an example of modern analytic jurisprudence at its best. But it is not clear why these constraints should define the jurisprudential enterprise or even why Shapiro should accept them. Once Shapiro has helped us understand the relationship between law and social planning, we find ourselves with a new tool to appreciate the role of the features that law possesses overwhelmingly but not necessarily. And arguably most prominent among these features is the phenomenon of law's coerciveness. Perhaps ironically, therefore, the full value of Shapiro's insights can be grasped only by freeing ourselves from the constraints that Shapiro's own conception of jurisprudence imposes.

1. LEGALITY: A CRITICAL OVERVIEW

As befits a work of serious philosophy, Legality proceeds systematically from a problem or puzzle. The puzzle that attracts Shapiro's attention is that of law's origins, both temporally and conceptually. Sometimes he calls it the "'chicken-egg' problem," (16) and sometimes the "Possibility Puzzle," (17) but the basic idea is the same: If local legal authority (this statute, or this judge, or this ruling) rests on higher legal authority, and higher legal authority rests on still higher legal authority, then how does law and legal authority get started initially (the temporal question) ? And what grounds the highest legal authority (the conceptual question)? It is all well and good to say that in the United States, for example, congressional, executive, and judicial legal authority is derived from and rests on the Constitution; but where does the Constitution get its authority? (18) That is the Possibility Puzzle in a nutshell, and it has interested scholars of law for generations.

For the religiously motivated natural lawyer, (19) the Possibility Puzzle is no puzzle at all. The solution is straightforward: God. From a natural law perspective, and especially one informed by a religious view of the foundation of law, the ultimate source of legal authority is the natural or God-given status of law itself. But Shapiro claims to be a card-carrying legal positivist in good standing, (20) and for him natural law solutions to the Possibility Puzzle are no solutions at all.

The Possibility Puzzle provides the gateway to Shapiro's own solution--the planning theory of law--and also allows him to devote the first third of the book to an attractively presented, albeit conventional, tour of the positivist jurisprudential tradition. He describes Bentham and Austin's neat solution to the Possibility Puzzle--legal authority rests on habitual...