Abstract
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 (ATD) 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.
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Notes
Mark Greenberg, ‘How Facts Make Law’, Legal Theory 10 (2004): pp. 157–198, p. 157.
Ibid.
Ibid., p. 158.
Ibid.
“What makes a theory a ‘natural law’ theory? There are almost as many answers to the question as there are theorists writing about natural law theory, or calling themselves ‘natural law theorists.’” Brian Bix, ‘Natural Law: The Modern Tradition’, in Jules Coleman, Kenneth Einar Himma, and Scott Shapiro (eds.), The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford: Oxford University Press, 2004): pp. 61–103, pp. 63–64.
Andrei Marmor, ‘The Nature of Law’, Stanford Encyclopedia of Philosophy (accessed August 7, 2015), available at https://plato.stanford.edu/entries/lawphil-nature/.
“Dworkin does not normally use the label ‘natural law’ for his own work. In fact, with the prominent exception of one lecture, later published as an article, he has avoided referring to ‘natural law’ entirely, either as a description of his own work, or as an approach to contrast with his own. In that one reference, however, Dworkin concedes that his work might warrant the label ‘natural law’: ‘If the crude description of natural law I just gave is correct, that any theory that makes the content of law sometimes depend on the correct answer to some moral question is a natural law theory, then I am guilty of natural law.’” Bix, ‘Natural Law: The Modern Tradition’, p. 83, supra note 5.
Greenberg, ‘How Facts Make Law’, p. 158, supra note 1.
Andrei Marmor, The Philosophy of Law (Princeton Foundations of Contemporary Philosophy) (Princeton: Princeton University Press, 2011): p. 88.
There appears to be a nascent trend to refer to the argument from theoretical disagreement as ‘ATD’. See Dale Smith, ‘Theoretical Disagreement and the Semantic Sting’, Oxford Journal of Legal Studies 30(4) (2010): pp. 635–661, p. 635; Tim Dare, ‘Disagreeing about Disagreement in Law: The Argument from Theoretical Disagreement’, Philosophical Topics 38(2) (2010): pp. 1–15, p 1.
Shapiro has garnered some agreement that positivists still need to do more to respond to ATD: ‘While there have been more than a few replies to Dworkin about the merits both of his claims for the centrality of theoretical disagreement as well as positivism’s account of it, none has been dispositive. The reason for this is that the resources of positivism have not been adequately marshalled’. Dennis Patterson, ‘Theoretical Disagreement, Legal Positivism, and Interpretation’, Ratio Juris 31(3) (2018): pp. 260–275, pp. 260–261.
I follow Shapiro’s use of the word ‘lawyer’: “Indeed, seasoned legal participants such as judges, litigators, and legal academics – whom I will refer to collectively as ‘lawyers’ . . .” Scott Shapiro, Legality (Cambridge, Mass.: The Belknap Press of Harvard University Press, 2011), p. 331.
Ronald Dworkin, Law’s Empire (Cambridge, Mass.: Harvard University Press, 1986), p. 5.
Ibid.
Ibid., pp. 15–30. The cases are: Riggs v. Palmer, TVA v. Hill, McLoughlin v. O'Brian, and Brown v. Board of Education.
Shapiro focuses on TVA in Scott Shapiro, ‘The ‘Hart-Dworkin’ Debate: A Short Guide for the Perplexed’, in A. Ripstein (ed.), Ronald Dworkin (Cambridge: Cambridge University Press, 2007), and in Shapiro, Legality, pp. 287–290, supra note 12.
Dworkin, Law's Empire, p. 20, supra note 13 (quoting TVA v. Hill).
Dworkin, Law's Empire, pp. 20–21, supra note 13.
Ibid., p. 21.
Ibid.
Ibid.
Ibid., p. 23.
Ibid.
Ibid.
H.L.A. Hart, The Concept of Law (Oxford: Oxford University Press, 2012): p. 116.
Scott Hershovitz, ‘The Model of Plans and the Prospects for Positivism’, Ethics 125(1) (2014): pp. 152–181, p. 153.
Shapiro, Legality, p. 302, supra note 12.
Ibid., p. 239.
‘According to law as integrity, propositions of law are true if they feature in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community’s legal practice’. Dworkin, Law’s Empire, p. 225, supra note 13.
Shapiro, Legality, p. 293, supra note 12.
Ibid.
Ronald Dworkin, Justice in Robes (Cambridge, Mass.: Harvard University Press, 2006).
Ibid., p. 2.
Ibid.
Ibid., p. 4.
Ibid., pp. 30–31. Analytic doctrinal positivism is contrasted with political doctrinal positivism, which holds that, as a matter of political morality, judges should not appeal to moral considerations in deciding cases. Dworkin takes constitutional originalism as an example of political doctrinal positivism, because originalism holds, as a matter of democratic theory, ‘that only historical facts about the beliefs or wishes or expectations of historical people provide the truth conditions of propositions of constitutional law’, specifically those people who enacted the law in question. For Dworkin, political doctrinal positivism is consistent with (and perhaps even requires) the idea that the doctrinal concept of law is an interpretive concept. Ibid., p. 29.
Ibid., p. 3.
Ibid., p. 230.
‘We – experts and non-experts alike – do share a rough sociological concept of law: we would almost all make assumptions if astrozoologists reported that a group of intelligent non-human animals they had discovered on a distant planet had a kind of legal system. But we would think it silly to argue about whether they really had a legal system when we discovered that they had no distinct enforcement institutions, or that ex post facto legislation was the norm there rather than a rare exception, or that their officials never claimed morally legitimate authority’. Ibid., p. 3.
There are even other concepts of law Dworkin mentions: the ‘taxonomic’ and ‘aspirational’ concepts of law. The taxonomic concept of law is used when one asks, of some rule or standard, whether it is distinctively legal, as opposed to moral or customary in nature. Ibid., p. 4. Dworkin thinks the taxonomic concept was at issue in the wrongheadedly ‘scholastic’ incorporation debate. See ibid. (‘The Concepts of Law’), especially pages 232–240. The aspirational concept of law is ‘often refer[ed] to as the ideal of legality or the rule of law’. Ibid., p. 5. Because we disagree about what the best account of the ideal of the rule of law is, ‘a great deal turns on what we take to be the correct conception of the aspirational concept’, unlike the sociological and taxonomic concepts (on which a great deal does not turn). Ibid.
I follow Legality in using this terminology. Shapiro, Legality, pp. 290–291, supra note 12.
Dworkin, Law’s Empire, p. 37, supra note 13.
I follow Legality in using this terminology. Shapiro, Legality, pp. 290–291, supra note 12.
See Brian Leiter, ‘Explaining Theoretical Disagreement’, University of Chicago Law Review 76 (2009), pp. 1215–1250.
Shapiro, ‘The ‘Hart-Dworkin’ Debate’, p. 43, supra note 16.
Shapiro, Legality, p. 291, supra note 12.
Ibid., p. 290.
Ibid., p. 305.
Ibid.
Ibid., pp. 305–306.
Ibid.
Ibid., p. 193.
Jeremy Waldron, ‘Planning for Legality’ (book review), Michigan Law Review 109 (2011): pp. 883–902.
Hershovitz, ‘The Model of Plans’, p. 156, supra note 26.
Ibid.
Waldron, ‘Planning for Legality’, p. 888, supra note 53.
In the first place, whether a certain individual plans to do something or other seems to depend on psychological facts about the person (like what they intend) (see Shapiro, Legality, pp. 120–122, supra note 12). In the case of groups of persons who plan to do something, the potential existence of any plan arguably depends on more complex psychological facts about what the members of the group intend, what they have done, what they have said in communications with each other, etc. (see ibid., pp. 129–133). So, prima facie, the existence of plans depends on social facts. Shapiro also offers a more complex argument, though, for the claim that the existence of plans depends on social facts and not moral facts. Basically, because plans aim to settle moral questions, ‘[t]he logic of planning requires that plans be ascertainable by a method that does not resurrect the very questions that plans are designed to settle. Only social facts, not moral ones, can serve this function’ (ibid., p. 177). The merits of this argument are not my concern here. For criticism, see Hershovitz, ‘The Model of Plans’, supra note 26.
Waldron argues that Shapiro, to establish exclusive positivism, must do more than show that law are plans; he must show laws are merely plans. Waldron writes that ‘plan positivism’ ‘settle[s] the issue between natural lawyers and legal positivists’ only ‘if being a plan or being planlike were all there was to being a law.’ (Waldron, ‘Planning for Legality’, pp. 891–892, supra note 53). These issues are not my focus here, however.
Shapiro, Legality, p. 353, supra note 12.
Ibid.
Ibid., p. 331.
The example is Shapiro’s but the whimsically alliterative names are mine.
Ibid., p. 333.
Ibid., pp. 334–336.
Ibid., p. 335.
Ibid.
Ibid., p. 336.
Ibid.
Ibid.
Ibid., p. 359.
Ibid.
Ibid.
Ibid., p. 361.
Ibid., p. 368.
Ibid., p. 370.
Ibid., p. 371. Bustamante criticizes Shapiro’s theory of interpretation on the ground that the Planning Theory’s ‘meta-interpretive theory is as abstract and philosophical as the theories that Shapiro criticises [namely, Dworkin’s,] for giving too much interpretive power to legal officials’. Thomas Bustamante, ‘Interpreting Plans: A Critical View of Scott Shapiro’s Planning Theory of Law’, Australian Journal of Legal Philosophy 37 (2012): pp. 219–250, p. 220.
Shapiro, Legality, p. 382, supra note 12.
Ibid., p. 383.
Ibid.
Ibid., p. 384.
It appears to be crucial, by Shapiro’s own lights, that all three main stages of meta-interpretation can be done without recourse to moral reasoning. For example, Shapiro writes ‘[t]hat some set of goals and values represents the purpose of a certain legal system is a fact about certain social groups that is ascertainable by empirical, rather than moral, reasoning’ (ibid., p. 382). But whether legal actors can extract the purpose or purposes of various institutional features of the legal system, and then go on to figure out which theory of legal interpretation ‘best furthers and realizes the systemic objectives’ without recourse to moral considerations seems open to question (ibid., p. 359). I do not, however, question that claim here.
Ibid., p. 383.
Ibid., p. 384.
Brand criticizes the Planning Theory at this point, because Shapiro’s focus on providing for the intelligibility of disagreements without necessarily resolving them is at odds with Shapiro’s endeavor to show that jurisprudence has practical relevance. As Brand writes, ‘The dubious lawyer might insist that a given scholarly activity has practical relevance for law only if it helps resolve interpretive disputes. If Shapiro admits that his own contribution to jurisprudence – the Planning Theory – does not do so, then he cannot claim to have demonstrated that jurisprudence has practical relevance’. Jeffrey Brand, ‘Shapiro’s Legality’ (review article), The Journal of Moral Philosophy 12 (2015): pp. 83–102, p. 94.
Shapiro, Legality, p. 384, supra note 12.
Ibid., p. 306.
Ibid., pp. 304–305.
Ibid., p. 305.
Dworkin, Law's Empire, p. 20, supra note 13 (emphasis added).
Ibid., p. 23.
Shapiro, Legality, p. 304, supra note 12 (emphasis added).
Dworkin, Law's Empire, p. 27, supra note 13.
Ibid., p. 30.
Shapiro, Legality, pp. 303–304, supra note 13. Shapiro writes that, because Powell was appealing to the ‘morally loaded’ notion of absurdity, a decision made by appealing this consideration would be new law. This again is because the logic of planning requires that legal plans not unsettle the very thing which they aim to settle, namely, the ‘moral deficiencies of the circumstances of legality’ (ibid., 213).
Ibid., p. 304–305.
Leiter, in ‘Explaining Theoretical Disagreement’, maintains that positivism cannot preserve the ‘Face Value’ disagreement, and must instead explain away theoretical disagreements instead. Leiter also adopts what has been called the ‘so what?’ response, which maintains that ‘[w]hat must be shown before legal positivism is abandoned because of its failure to account for theoretical disagreement is that theoretical disagreement is a central feature of law and legal systems’. Barbara Levenbook, ‘Dworkin’s Theoretical Disagreement Argument’, Philosophy Compass 10(1) (2015): pp. 1–9, p. 5.
Smith, ‘Theoretical Disagreement and the Semantic Sting’, p. 659, supra note 10.
Ibid., 659. Dare groups Coleman together with Hart as adopting this sort of strategy as well. See Dare, ‘Disagreeing about Disagreement in Law’, supra note 10, pp. 5, 10 (citing Jules Coleman, The Practice of Principle: In Defense of a Pragmatist Approach to Legal Theory (Oxford: Oxford University Press, 2001). Dare emphasizes that legal disagreement occurs against a background of agreement regarding the procedures for settling disagreements: even when judges ‘do not agree, they couch their disagreements in terms of a shared understanding of legitimate legal discourse’. Ibid., p. 12.
Smith, ‘Theoretical Disagreement and the Semantic Sting’, p. 659, supra note 10.
Shapiro, Legality, pp. 291–292, supra note 12.
Ibid., p. 383.
Shapiro, ‘The ‘Hart-Dworkin’ Debate’, p. 43, supra note 16.
Leiter, ‘Explaining Theoretical Disagreement’, p. 1215, p. 1223, supra note 44.
Dworkin, Law’s Empire, p. 37, supra note 13.
Shapiro, Legality, p. 384, supra note 12. To be fair, Shapiro here is focusing on the fact that the Planning Theory of meta-interpretation may only be able to rule out certain wrong answers at the meta-interpretive stage rather than show that one answer is right.
My critique of Shapiro then, if correct, is more systematic than the critique offered by Smith, who, while making a critique of Shapiro very similar in spirit to mine (in that it argues that Shapiro’s view does not appreciate the full challenge presented by ATD), grants that Shapiro accounts for some but not all theoretical disagreements about law. Smith writes that Shapiro ‘shows that his version of positivism can account for some theoretical disagreements, such as disputes about which interpretive methodology best fits with the law-designers’ purposes. However, he does not show that it can account for more fundamental theoretical disagreements, such as disputes about whether the law-designers’ purposes are relevant to determining the content of the law and (if so) in what way’. Smith, ‘Theoretical Disagreement and the Semantic Sting’, p. 658, supra note 10. This is because Smith argues that ‘the grounds of law are not limited to the criteria of legal validity; they also extend to whatever determines that these are the criteria of legal validity. On Shapiro’s version of positivism, this includes not only the law-designers’ purposes, but also the considerations that determine that these purposes are relevant and how they are relevant’. Ibid. I should point out, though, that Smith is responding not to Shapiro’s Legality, but to a predecessor work that laid out similar ideas.
At least one other commentator appears to have noticed this separation between Shapiro’s concerns and Dworkin’s concerns. As Lopez-Lorenzo puts it, “It is telling that Shapiro takes Dworkin’s ‘Principles’ and ‘Theoretical Disagreements’ critiques to be relevant to the nature of legal reasoning rather than the nature of law”. Miguel-Jose Lopez-Lorenzo, ‘The Planning Theory of Law’ (book review), Res Publica (2012): pp. 201–206, p. 204. Lopez-Lorenzo, however, sees this as creating a problem for Shapiro along the lines of the critique in Smith 2010, which presents a different critique from the one offered here (as discussed in the previous footnote).
As already mentioned, these include those found in Hart, The Concept of Law2012 (‘Postscript’); Leiter, ‘Explaining Theoretical Disagreement’, 2009; and Matthew Kramer, In Defense of Legal Positivism: Law without Trimmings (Oxford: Oxford University Press, 1999). For another collection of positivist responses, see Levenbook, ‘Dworkin’s Theoretical Disagreement Argument’, supra note 96.
In predecessor work to Legality, Shapiro wrote that positivists ‘have made no attempt to show how theoretical legal disagreements are possible.’ Shapiro, ‘The ‘Hart-Dworkin’ Debate’, p. 41, supra note 16. And he wrote in Legality that ‘Dworkin has pointed out that legal positivism, at least as it is currently conceived, cannot make sense of this truism and hence is incapable of accounting for a central feature of legal practice’. Shapiro, Legality, pp. 291–292, supra note 12.
Shapiro, Legality, p. 383, supra note 12.
Ibid.
Ibid., pp. 304–305.
For example, Shapiro writes that ‘some set of goals and values represents the purpose of a certain legal system is a fact about certain social groups that is ascertainable by empirical, rather than moral, reasoning’. Ibid., p. 382.
Marmor makes a similar point when he writes that, for Dworkin’s argument to be successful, Dworkin must ‘show that the judicial reasoning that leads to the identification of a certain principle as a legal one is reasoning about what the law had been prior to the decision—that it is a form of reasoning purporting to discover, as it were, what the law is, and not, as I suggest, reasoning about ways in which the law needs to be changed’. Marmor, The Philosophy of Law, p. 90, supra note 9.
Liam Murphy, ‘Better To See Law This Way’, New York University Law Review 83 (2008): pp. 1088–1108, p. 1105.
Shapiro, Legality, pp. 304–305, supra note 12.
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Case law
Brown v. Board of Education, 347 U.S. 483 (1954).
Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978).
Riggs v. Palmer, 22 N.E. 188 (1889).
McLoughlin v. O’Brian [1983] 1 A.C. 410, reversing [1981] Q.B. 599.
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Johnson, N. Legality’s Law’s Empire. Law and Philos 39, 325–349 (2020). https://doi.org/10.1007/s10982-020-09374-7
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DOI: https://doi.org/10.1007/s10982-020-09374-7