This essay concerns Scott Shapiro's criticism that H.L.A. Hart's theory of law suffers from a Although other philosophers of law have summarily dismissed Shapiro's criticism, I argue that it identifies an important requirement for an adequate theory of law. Such a theory must explain why legal officials justify their actions by reference to abstract propositional entities, instead of pointing to the existence of social practices. A virtue of Shapiro's planning theory of law is that it can explain this phenomenon. Despite (...) these sympathies, however, I end with the suggestion that Shapiro's criticism of Hart, as it stands, is incomplete. Careful attention to Hart's notion of the internal point of view indicates that he was aware that legal justification ends with abstract objects, not practices, and that he offered his own explanation of this phenomenon. (shrink)

The most influential theory of law in current analytic legal philosophy is legal positivism, which generally understands law to be a kind of institution. The most influential theory of institutions in current analytic social philosophy is that of John Searle. One would hope that the two theories are compatible, and in many ways they certainly are. But one incompatibility that still needs ironing out involves the relation of the social rule that undergirds the validity of any legal system (H.L.A. Hart's (...) rule of recognition) to Searle's notion of codification: the idea that institutions need official declarations of their constitutive rules in order to enjoy the full benefits of institutions. The incompatibility arises from the fact that, in order to do its institutional work, the basic validity rule must be codified in Searle's sense—yet, given the particular role it has in legal positivism, it may be impossible to codify in the Searlean sense. In this paper I develop the incompatibility in detail, consider and reject consigning the basic validity rule to Searle's “Background” capacities that support institutional facts, and conclude that the best route to eliminating it while doing a minimum of damage to the two theories is to make a slight emendation to Searle's theory of institutions. (shrink)