REVIEW ESSAY*

Legality, by SCOTT SHAPIRO Cambridge, MA and London: Belknap Press, 2011, viii + 455 + (index) 17 pp (29.95, hardback). ISBN 978-0-674-05566-7.
THOMAS BUSTAMANTE Federal University of Minas Gerais, Brazil

In one of the most expected legal books of this Century, Legality, Scott Shapiro characterises law as a form of planning activity with the fundamental aim of settling and pre-empting moral controversies. He not only addresses the issue of the identification of the necessary features of the law, but also the theories of legal interpretation embedded in the structure of legal systems. His fundamental conclusion is that the Rule of Law is served only when those who engage in legal interpretation are faithful to the vision of the Rule of Law that the legal system presupposes and embodies (398). In this review I will reconstruct the elements of his argument that I found most attractive and propose a short critical analysis of his work.

LAWS AND THE LOGIC OF PLANNING

As stated in the opening pages of the book, Shapiro makes it clear that he is less concerned with normative jurisprudence than with analytical jurisprudence. While the former deals with the moral foundations of law, the latter examines its metaphysical foundations (2). Shapiro thinks of his jurisprudence as an inquiry into the fundamental nature of law (8). The problem about the nature of law, in turn, can be split into two further questions. The first is the Identity Question. To ask about the identity of X is to ask what is it about X that makes it X and not Y or Z or any other such thing (8). The second, in turn, is the Implication Question, which concerns not what makes the object the thing that it is, but rather what necessarily follows from the fact that it is what it is and not something else (9). The reader will not take too long to realise that Shapiro is strongly committed to positivism, and that this adherence has deep-level implications for legal reasoning. If positivists are right when they contend that the existence and the content of legal systems are ultimately determined by social facts alone, then the only way to demonstrate conclusively that a person has legal authority or that one is interpreting legal texts properly is by engaging in sociological inquiry (29). The main contention of the book is that the fundamental rules of the legal system are plans, and thus the existence conditions for the law are the same as those for plans (149). To put it even more broadly, the claim is that legal activity is best

Accepted for publication at Legal Studies The Journal of the Society of Legal Scholars.

Electronic copy available at: http://ssrn.com/abstract=2195438

understood as social planning and that legal rules themselves constitute plans, or planlike norms (120). For the purposes of the inquiry, plans are abstract propositional entities that require, permit, or authorize agents to act, or not to act, in certain ways under certain conditions. Thus, when a person adopts a personal plan she places herself under the governance of a norm (127). Plans exist with a view to settle questions about what is to be done (128-9). Similar to Razs views on authority, Shapiro holds that when one has adopted a plan, for oneself or for another person, the plan is supposed to pre-empt deliberations about its merits, as well as purporting to provide a reason to pre-empt deliberations about its merits (129). In the realm of shared agency, plans play a vital role for the coordination of action, since they provide a higher degree of predictability for social action and serve a crucial control function, for they enable some participants to channel the behaviour of others in directions that they judge to be desirable (132-3). The need for planning increases as communities grow larger and relations between the participants become more complex. In the case of massively shared agency it becomes absolutely indispensable to concentrate the power to plan in the hands of a few (143). Shapiro refers to these situations as the circumstances of legality, i.e., the social conditions that render sophisticated forms of social planning desirable (170). As the author states very clearly,
The circumstances of legality obtain whenever a community has numerous and serious moral problems whose solutions are complex, contentious, or arbitrary. In such stances, the benefits of planning will be great, but so will the costs and risks associated with non-legal forms of ordering behaviour (170).

The law becomes indispensable because of the incapacity of moral principles to act as a guiding standard for the community. Legal systems and institutions are justified only as a means to social planning, and their fundamental aim is to compensate for the deficiencies of alternative forms of planning in the circumstances of legality (171). This instrumental character of law is consistent, as we have already stressed, with Shapiros positivist views on jurisprudence. To build or operate a legal system one need not possess moral legitimacy to impose legal obligations and confer rights: one need only have the ability to plan (156). And since the fundamental rules of the system are a shared plan accepted by legal officials, the only way to ascertain their existence or content is through an examination of the relevant social facts (177). Hence, Shapiros answer to the Identity Questions is that a group of individuals are engaged in legal activity whenever their activity of social planning is shared, official, institutional, compulsory, self-certifying, and has a moral aim. Or, in a more straightforward formulation,
What makes the law, understood here as a legal institution, the law is that it is a self-certifying, compulsory planning organization whose aim is to solve those moral problems that cannot be solved, or solved as well, through alternative forms of social ordering (225).

What seems most controversial, here, is the Moral Aim Thesis, which implies that the law has as its fundamental aim to rectify the deliberative deficiencies associated with the circumstances of legality. The canonical formulation of the thesis reads thus:
The fundamental aim of legal activity is to remedy the moral deficiencies of the circumstances of legality (213).

Electronic copy available at: http://ssrn.com/abstract=2195438

Shapiro extracts far-reaching consequences from the Moral Aim Thesis. This thesis is important to provide the answers both to the Identity Question, as we have seen above, and the Implication Question. Shapiro states, at this stage, the Simple Logic of Planning Argument (SLOP), which holds that the existence and content of a plan cannot be determined by

facts whose existence the plains aims to settle (275).

SLOP provides the germ of a theory of legal reasoning the most salient feature of which is that it entirely excludes moral considerations from legal reasoning. Moral facts never determine the content of law, and even when the law is considered to be defeasible, it is the law that regulates the manner of its own defeasibility (302-3). Furthermore, the Planning Theory entails that the authors of the fundamental rules of the legal system express attitudes of trust and distrust to agents and legal officials. When they allocate a wide range of discretion for someone, this means that the economy of trust of the system grants a high degree of trustworthiness to this person, while a low degree of trustworthiness is expressed whenever the social planners limit the activity of someone by binding her to strict and inflexible plans and regulations. This is so because plans are, for Shapiro, sophisticated devices for managing trust and distrust, since they allow people to capitalize on the faith they have in others or compensate for its absence (334). The answer to the question of which theory of interpretation or which approach to legal reasoning ought to be adopted is thus determined by the economy of trust of the legal system (331).1

THEORETICAL DISAGREEMENTS

One of the merits of the book is that it is probably the first major work from the positivist tradition to address Dworkins toughest challenge to legal positivism, which concerns the existence of theoretical disagreements in practical legal discourses. Dworkin distinguishes, at the introductory pages of Laws Empire, between the propositions of law, i.e. the various statements and claims people make about what the law allows or prohibits or entails them to have, and the grounds of law, i.e. the more general propositions which make something a legal proposition. The grounds of law are the very foundations of law, i.e. the meta-propositions that make a particular proposition of law true.2 Hence, lawyers may disagree in their practical activities in two ways. On the one hand, they may disagree about whether the grounds of law are satisfied in a particular case. On the other hand, they may disagree about the grounds of law, that is, about which kinds of propositions, when true, make a particular proposition of law true. The former type of disagreement is called empirical disagreement, while the latter is called theoretical disagreement.3 Theoretical disagreements pose a real threat for legal positivism because they seem to challenge the idea that the criteria of validity are determined by convention and consensus (283). For Dworkin, positivism is wrong because it entails that genuine
1

The economy of trust is understood, in Shapiros book, as the distribution of trust upon which a plan is predicated (335). 2 Ronald Dworkin, Laws Empire (Cambridge, MA and London: Belknap Press, 1986), 4-5. 3 Dworkin, above n 2, 5.

disagreement about what the law is must be empirical disagreement about the history of legal institutions.4 Although Shapiro is impressed by this challenge to positivism, that does not move him away from his positivist convictions. Although he acknowledges that Dworkin is right when he holds that theoretical disagreements are legitimate (291), he thinks that the Planning Theory is perfectly capable to explain them. To shed some light into the notion of theoretical disagreements, Shapiro comes back to one of Dworkins examples of this type of disagreements: the debate between Justice Burger and Justice Powell in Tennessee Valley Authority v. Hill (TVA).5 In TVA, some groups sued Tennessee Valley Authority with a view to prevent it from completing a multi-million Dollars dam, on the ground that it might threaten a small fish of no particular scientific, aesthetic, or economic interest, known as the snail darter, which had been declared an endangered species under the Endangered Species Act 1973. The striking thing about TVA is that both the majority, represented by Burger, and the minority, represented by Powell, agreed that halting the project would involve an enormous waste of public funds (US$ 100,000,000.00 in nominal currency of the 1970s) and that it is very unlikely that Congress intended such results. From the point of view of public policy, both Burger and Powell believed that absurd results would ensue if the court adopted an interpretation of the Endangered Species Act according to the plain meaning of the text. Yet the consensus stops here. Whilst Burger thought that the plain meaning of the text determines the law even when absurdities follow, unless compelling evidence can be found that Congress did not intend the absurd result, Powell believed that the plain meaning does not determine the law when absurdities follow unless compelling evidence can be found that Congress did intend the absurd result (288). Clearly, TVA is indeed a hard case because there was theoretical disagreement to resolve what the grounds of law were (289). Shapiro agrees with Dworkin that the disagreement between Powell and Burger in TVA may affect the choice of the interpretive theory that one should accept. Nevertheless, he proposes to reconstruct the notion of theoretical disagreements in a different vocabulary. In effect, there are important differences between Dworkins jurisprudence and the Planning Theory, and we need to redefine the concept of theoretical disagreements in order to make it useful for both theories. While Dworkin holds that the grounds of law are determined not by social convention, but by constructive interpretation, the Planning Theory holds that moral facts can never determine the content of the law, since laws are plans that are supposed to settle moral questions (302). Hence, for the Planning Theory, when judges like Burger and Powell disagree about the relevance of some moral fact to the interpretation of a legal text, they cannot be disagreeing about the grounds of law (303). For this reason, Shapiro proposes to adopt a terminology which is more neutral with regards to the question of whether a fact merits the label ground of law. The really important question in a case like TVA is not whether absurd statutes are law, but the choice of the different interpretive methodologies upheld by each judge. The advantage of talking about interpretive methodologies, Shapiro says, is that it is neutral as to whether their outputs are pre-existing law and hence whether the facts that they
4 5

Dworkin, above n 2, 33. Tenesse Valley Authority v Hill, 437 U.S. 153 (1978).

countenance are grounds of law (304). Theoretical disagreements arise, then, when lawyers advocate different meta-interpretations. A meta-interpretation does not set out a specific methodology for interpreting legal texts, but rather a methodology for determining which specific methodology is proper (305). It is at this point that we can see Shapiros most vivid disagreement with Dworkin, for he believes that Dworkin is wrong when he claims that legal interpretation is an instance of constructive interpretation. That type of interpretation is at stake if in order to determine what the grounds of law are, the legal interpreter imposes a purpose on legal practice in order to make it the morally best social practice it can be (293). The problem with this best-light account of legal interpretation is that the method it uses to vindicate it constructive interpretation is intensively abstract and relentlessly philosophical (296). As Shapiro summarizes Dworkins argument, according to the meta-interpretation developed in Laws Empire the interpreter must choose, during the initial stages of the interpretation of a particular practice, the conception of law that places legal practice in its best light. Let us recall Shapiros own reconstruction:
A conception of law, according to Dworkin, is an interpretation of a particular legal practice. It purports to identify (1) the purpose of this practice and (2) the set of facts such a purpose commends as the grounds of law. A conception of law presents legal practice in its best light when it best fits and justifies the practice (296).

The problem of Dworkins interpretive theory is that it is too demanding on lawyers, since legal officials in general lack either the theoretical resources or the legal competence to undertake that kind of philosophical reasoning. To put it very concisely, Dworkins meta-interpretation neglects considerations of trust and thus ignores the limitations that the systems economy of trust imposes on interpreters and metainterpreters. The right interpretive methodology must be, for Shapiro, established by determining which methodology best harmonizes with the objectives set by the planners of the system in the light of their judgments on competence and character (382). One should undertake, thus, a sociological inquiry into the intention of the creators of the master plan, looking for something like the institutional history of a particular community, as Shapiro did in order to criticize Dworkin, (307-330) and into the economy of trust of the legal system. The most pressing factor for this choice, however, is not institutional history, but the economy of trust. Shapiro insists that the Planning Theory does not demand that interpretive methodologies be justified from the moral point of view Interpretive methodology is pegged not to the truth of any abstract philosophical or social-scientific theory, but rather to the laws presuppositions concerning the trustworthiness of legal actors (357). That is to say: the planners method will never license interpretive methodologies that are inconsistent with the systems distribution of trust and distrust (357). The meta-interpreter must, therefore, (1) specify all the different interpretive methodologies to assess the level of competence and trust needed to apply them; (2) extract, from the economy of trust of the system, whether the legal actors have the competences to apply the methodologies found in the previous level; and, (3) evaluate

which of these interpretive methodology is more appropriate for the given legal system (370).

A CRITICAL ASSESSMENT OF THE PLANNING THEORY OF LAW

The first thing to be noted about the Planning Theory is that it might be closer to normative positivism, and hence to the natural law tradition, than it intends to be. As we have seen above, the Moral Aim Thesis is the central aspect of Shapiros account of the nature of legal systems. The fundamental aim of every legal system is to rectify the moral deficiencies of the circumstances of legality (172). Nonetheless, it is very implausible to hold, unless one is advocating a natural law position, that the Moral Aim Thesis is simply a truism or a metaphysical truth that is part of the essence of every legal system. If the Moral Aim Thesis is to endure, this is not because it is a philosophical dogma which is simply a part of the immutable nature of law and that has to be merely acknowledged by jurisprudents. It is not something that is simply out there to be found by our sensorial perception. On the contrary, the Moral Aim Thesis is itself the result of a political choice of the legal theorist when she constructs her own interpretive theory of law. The Planning Theory is not merely discovering a plain social fact, but it is rather an instance of normative positivism. According to normative positivism, one begins with a normative account of the laws mission, and then one argues that that mission cannot be performed unless rules, commands, norms, edicts, or plans are recognized as laws by non-moral criteria.6 As Waldron has famously stated, the claim of normative positivists is that the values associated with law, legality, and the rule of law in a fairly rich sense can be best achieved if the ordinary operation of such a system does not require people to exercise moral judgment in order to find out what the law is.7 Normative positivism, for that reason, resists accepting the natural law versus positivism paradigm. It starts from a moral thesis and then, as a result of the truth of the moral idea which is claimed to be the point of law, draws positivistic inferences on how law is to be ascertained and how legal reasoning is to be conducted: If the dichotomy between positivism and natural law goes out of the window, so be it.8 We can see, now, that when Shapiro rejects the interpretive theory of law known as conventionalism because it does not privilege social facts at the ultimate level (297) he fails to perceive that the same criticism could be directed towards the Planning Theory of Law. When Shapiro claims that conventionalists are natural lawyers who believe that political morality requires them to act as though they were exclusive legal positivists (297), he fails to perceive that this is exactly what happens with the Planning Theory, because the Moral Aim Thesis is not the restatement of a social fact, but rather a moral and political thesis about the point of the law. This shows that Shapiros substantial views on the nature of law are inconsistent with the essentialism that he purports to defend while he distinguishes sharply between normative and conceptual jurisprudence. This methodological divide is at odds with

Jeremy Waldron, Planning for Legality (Review Essay) (2011) 109 Michigan Law Review 883-902, 894. Jeremy Waldron, Normative (or Ethical) Positivism in Jules Coleman (ed.), Harts Postscript: Essays on the Postscript to The Concept of Law, 411-433 (Oxford: Oxford University Press, 2001), 421. 8 Ibid., 418.

the Moral Aim Thesis, which stands at the core of Planning Theory and provides the basis for the Simple Logic of Planning argument. The reason why Shapiro falls in this meta-theoretical trap is that he fails to grasp that, as Dworkin says, any theory of law, including positivism, is based in the end on some particular normative political theory.9 In effect, I think that Dworkin is right when he claims that law is a contested concept and, as such, it is a concept that takes its sense from its use or from the context of debates about what the law is.10 Shapiro is thus repeating the same mistake that Hart committed when he held that his jurisprudence is descriptive in that it is morally neutral and has no justificatory aims.11 If Dworkin is right about this, then Harts advocacy of neutrality is inconsistent with his own jurisprudence, for the choice of his theoretical position is determined by political considerations. The same goes for Planning Theory. Indeed, the only explanation for the fact that Shapiro is unaware of the fact that his own theory is a form of normative positivism is his insistence on the view that his theory is a metaphysical demonstration of the necessary features of law, rather than a normative conception of legality. When Shapiro holds that the fundamental aim of law is to settle moral disputes which arise in the circumstances of legality, he needs to adopt an interpretive attitude in order to justify the choice of this purpose for legal activity. Just like Harts theory, Shapiros Planning Theory is not a neutral description of legal practice, but an interpretation of it that aims not just to describe but to justify it to show why the practice is valuable and how it should be conducted so as to protect and enhance that value.12 Furthermore, I am not entirely confident that Shapiro is able to cope with theoretical disagreements. In fact, Shapiro does not explain all the sorts of theoretical disagreements that are found in legal discourse. If we distinguish between conceptual theoretical disagreements and meta-interpretive theoretical disagreements, it will become obvious that only the latter can be explained by the Planning Theory. If we define a meta-interpretive theoretical disagreement as one which concerns the interpretive theories that are presupposed by the grounds of law or the fundamental aim of the legal system, we can see that the Planning Theory in fact explains the presence of this type of theoretical disagreement, and even offers a tentative solution for the meta-interpreter. Nevertheless, this explanation only can be accepted if the metainterpreter resolves a more general theoretical disagreement of the conceptual kind. The meta-interpreter must have already accepted, as a preliminary question, that the answer to the Identity Question provided by the Planning Theory is right. Let us define a conceptual theoretical disagreement as one which concerns the fundamentals of a legal system, that is, its constitutional structure or the very facts that make something a legal rule. When a conceptual theoretical disagreement is at stake, lawyers cannot agree on a conception of legality or its application to a given case. A particular instance of this sort of disagreement is a disagreement over what the constitution is. Although these cases appear to be unusual in countries with a written constitution, the Planning Theory must be able to explain then because it claims to be a

Ronald Dworkin, A Reply in Marshall Cohen (ed.), Ronald Dworkin and Contemporary Jurisprudence, 247-300 (London: Duckworth, 1984), 254. 10 Ibid., 256. 11 nd Herbert. L. A. Hart, The Concept of Law, 2 ed. (Oxford: Clarendon, 1994), 240. 12 Dworkin, Ronald. Justice in Robes (Cambridge, MA and London: Belknap Press, 2006), 141.

general theory of law in Kelsens sense,13 that is, a theory of the nature of law in general. In a case like Factortame14, for instance, where the House of Lords had to decide whether or not Parliament is entitled to amend the rule of recognition itself, lawyers will find themselves in a debate that goes to the fundamentals of an understanding of law.15 This debate is a typical sort of conceptual theoretical disagreement because its solution is crucial to determine the actual competences of Parliament. Conceptual theoretical disagreements are relevant because they are disagreements about the conception of law entailed by the constitution or, as it was the case in Factortame, about the meaning of the institutional rules of the constitution, which is vital to resolve practical issues such as the implicit limits of the power to amend the constitution. Hence, although one cannot decide a case like this without inquiry into what one might call the institutional rules of the constitution,16 which need to be identified by a pedigree-method of ascertaining an institutional social fact , this sort of constitutional disagreement only can be resolved through a constructive interpretation of the fundamentals of the legal system. As MacCormick argues, it is obvious that one can not succeed in the attempt to understand a constitutional order in terms of the Hartian or similar structural account unless one engages in interpretive argument.17 We can learn from MacCormick, therefore, that Shapiros meta-interpretive theoretical disagreements are far from resolving all the relevant constitutional issues that may appear in legal practice.

CONCLUSION

The Planning Theory touches on very important points and is a substantial contribution to the development of legal theory. Nevertheless, as I argued above, it must be revised on important issues which have to do with the methodological choices that it makes. But that does not minimize the importance of its achievements. One of these achievements is that it is very successful in explaining the connection between the criteria that we use to define the concept of legality and the interpretive attitudes of the norm-users. Shapiro is, indeed, one of the few positivists who expressly adopted what Bertea has called the Argumentation Thesis, which is usually found amongst non-positivist authors.18 The Argumentation Thesis is the view that (i) legal reasoning is omnipresent in legal practice and plays a pivotal role in shaping legal orders; (ii) legal reasoning is bound by a relationship of reciprocity with the concept of law, in that the way we account for this concept is going to depend on, and be influenced by, the theory we frame of legal reasoning, and vice versa;19 and that, as a
13

Hans Kelsen, General Theroy of Law and State (Cambridge, MA: Harvard University Press, 1946), at xiii. Factortame v Secretary of State for Transport [1991] A.C. 603. 15 Neil MacCormick, Questioning Sovereignty: Law, State and Nation in the European Commonwealth (Oxford: Oxford University Press, 1999), 81. 16 Ibid., 92. 17 Ibid., 92. 18 Dworkin, above n 2; Robert Alexy, A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification, trans. Ruth Adler and Neil MacCormick (1989); Neil MacCormick, Rhetoric and the Rule of Law: A Theory of Legal Reasoning (2005); Thomas Bustamante, Comment on Petroski: On MacCormicks Post-Positivism (2011) 12 German Law Journal 693. 19 Stefano Bertea, Law and Legal Reasoning (2008) 58 Northern Ireland Legal Quarterly, 5, 10.
14

result of (i) and (ii), (iii) no theoretical account of the nature of law can make sense independently of an account of legal reasoning, and vice versa.20 Though authors like MacCormick might understand legal reasoning in a broader sense than Shapiro, the rapport that MacCormick establishes between the concept of law and legal argumentation is the same as the connection that Shapiro establishes between the question of the Identity of Law and the choice of a meta-interpretive theory. This connection makes Shapiro one of the first positivists to explain the theories of legal interpretation and adjudication that stem from his positivist position. This fact alone is enough to support the conclusion that Legality is one of the most interesting law books of the last decades.

20

Ibid., at. 12.