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Published online by Cambridge University Press: 29 January 2014
In Legality Scott Shapiro seeks to provide the motivation for the development of his own elaborate account of law by undertaking a critique of H.L.A. Hart's jurisprudential theory. Hart maintained that every legal system is underlain by a rule of recognition through which officials of the system identify the norms that belong to the system as laws. Shapiro argues that Hart's remarks on the rule of recognition are confused and that his model of law—though commendably more sophisticated than any model propounded by earlier legal positivists—is consequently untenable. Shapiro contends that a new approach is vital for progress in the philosophy of law and, with his lengthy presentation of his own Planning Theory of Law, he aspires to pioneer just such an approach. Except for a very terse observation in the final main section, this article does not directly assess the strengths and shortcomings of Shapiro's piquant planning theory. Instead, I defend Hart against Shapiro's charges and thereby undermine the motivation for the development of the planning theory.
1. Scott Shapiro, Legality (2011).
2. See, e.g., Matthew H. Kramer, In Defense of Legal Positivism (1999), at 21–36; Matthew H. Kramer, The Quality of Freedom (2003), at 312–313; Matthew H. Kramer, Where Law and Morality Meet (2004), at 249–294.
3. For my principal defenses of Inclusive Legal Positivism against Shapiro and other Exclusive Legal Positivists, see Kramer, Law and Morality, supra note 2, chs. 1–4.
4. See Shapiro, Scott, What is the Rule of Recognition (and Does it Exist)?, in The Rule of Recognition and the U.S. Constitution 235–268 (Adler, Matthew & Himma, Kenneth eds., 2009)CrossRefGoogle Scholar.
6. H.L.A. Hart, The Concept of Law (2d ed. 1994), at 94 (emphasis in original).
7. Id. at 95.
8. Id. at 102.
9. Id. at 103.
10. Id.
11. Id. at 105.
12. Id. at 108–109 (emphasis in original).
13. Id. at 110.
14. Id. at 111.
15. Shapiro, What Is the Rule, supra note 4, at 247 (footnote omitted).
16. This point is well made at several junctures in Greenawalt, Kent, The Rule of Recognition and the Constitution, 85 Mich. L. Rev. 621 (1987)CrossRefGoogle Scholar.
17. H.L.A. Hart, Kelsen's Doctrine of the Unity of Law, in 309 Essays in Jurisprudence and Philosophy (1983), at 314–321. Shapiro himself cites a couple of these pages in Shapiro, What Is the Rule, supra note 4, at 247 n.45.
18. Shapiro, What Is the Rule, supra note 4, at 246 (emphases in original) (footnotes omitted).
19. Id. at 246 n.44, quoting Hart, H.L.A., Book Review, 78 Harv. L. Rev. 1281 (1965)CrossRefGoogle Scholar, at 1293.
20. I endorse Hart's position in Kramer, Law and Morality, supra note 2, at 107–108.
21. Of course, with enough logical connectives and operators, this array of norms can undoubtedly be formulated as a single hideously unwieldy principle. (In a like fashion, though less messily, we could formulate John Rawls's principles of justice as a single principle.) However, it is best to understand the Rule of Recognition as an array of norms in which criteria for legal validity are embedded.
22. See Kramer, Law and Morality, supra note 2, at 108–110.
23. Shapiro, What Is the Rule, supra note 4, at 239.
24. For my retort to the views taken by Fuller, Raz, and MacCormick (with citations to their relevant writings), see Kramer, Law and Morality, supra note 2, at 104–105. If one had to choose between their positions, there is a more substantial textual basis for Fuller's understanding of the Rule of Recognition than for Raz's and MacCormick's understanding.
25. Shapiro, What Is the Rule, supra note 4, at 239–240 (footnotes and paragraph breaks omitted).
26. See, most notably, H.L.A. Hart, Essays on Bentham (1982), at 162–193.
27. Hart, Concept, supra note 6, at 289.
28. I have argued at length elsewhere for the proposition that the Rule of Recognition is both power-conferring and duty-imposing. See Kramer, Law and Morality, supra note 2, at 104–105. I here summarize the gist of my argument.
29. This formulation prescinds from various complexities — such as the fact that certain parliamentary enactments are applicable to the whole of the United Kingdom whereas other such enactments are applicable to only some of the four main components of the United Kingdom. Providing a full and precise account of any of the strands in a real-world Rule of Recognition is no easy task, as Kent Greenawalt revealed a quarter of a century ago in his classic article on the American Rule of Recognition; see Greenawalt, supra note 16.
30. Shapiro, Legality, supra note 1, at 80 (emphasis in original).
31. Id. at 95 (emphasis in original).
32. Id. at 103 (emphasis in original).
33. Hart, Concept, supra note 6, at 56.
34. Id. at 90.
35. Id. at 89.
36. Id. at 58.
37. Id. at 57.
38. Shapiro, Legality, supra note 1, at 103.
39. Shapiro's initial main discussion of this problem is in id. at 37–40. The problem is then broached recurrently throughout the first half of his book.
40. Id. at 40.
41. Id. at 95–96.
42. Id. at 95.
43. Id. at 97.
44. Id. at 104–105.
45. Hart, Concept, supra note 6, at 9–11, 55–60.
46. Shapiro, Legality, supra note 1, at 103–104.
47. Kramer, In Defense, supra note 2, at 251–253.
48. Shapiro, Legality, supra note 1, at 104.
49. Here and in the preceding subsection I use the verbs “appear” and “seem” (and their cognates) quite extensively because Shapiro's examples are presented very laconically. Those examples could perhaps be fleshed out in ways that would lead me to change my concrete assessments of them—though the general nature of my rejoinder to Shapiro would remain unchanged, of course.
50. This formulation glosses over some complexities that are fully explored in Matthew Kramer, Moral Realism as a Moral Doctrine (2009), at 6–9.
51. Shapiro, Legality, supra note 1, at 111–112.
52. Id. at 112.
53. Hart, Concept, supra note 26, at 153–155. For Raz's principal discussions of the distinction, see Joseph Raz, Practical Reason and Norms (1975), at 171–177; Joseph Raz, The Authority of Law (1979), at 153–157; and Joseph Raz, The Concept of a Legal System (2d ed. 1980), at 234–238.
54. Kramer, In Defense, supra note 2, at 165–170.
55. Shapiro, Legality, supra note 1, at 415 n.44.
56. Raz, Concept, supra note 53, at 237–238. Much more ambiguous is a sketchy remark in Raz, Practical Reason, supra note 53, at 177. That remark could be construed in line with what Shapiro says about Raz, but it could equally be construed in line with what I say about him. Given that I am interested here mainly in the simulative/internal distinction itself rather than in the exegesis of Raz's texts, I shall leave aside the puzzlingly ambiguous pronouncement to which I have just referred.
57. See Matthew Kramer, Objectivity and the Rule of Law (2007), at 71–82; Kramer, Moral Realism, supra note 50, at 261–275, 287–288.
58. Shapiro, Legality, supra note 1, at 111.
59. Kramer, In Defense, supra note 2, ch. 4. I obviously cannot here advance afresh all the arguments which I put forward on this matter in In Defense ch. 4. I hope that at some point Shapiro will familiarize himself with those arguments.
60. Id. at 84.
61. Shapiro, Legality, supra note 1, at 111, 115.
62. Id. at 114 (footnote omitted).
63. Kramer, In Defense, supra note 2, at 63–77, 123–125, 189–191, 200–204.
64. Shapiro, What Is the Rule, supra note 4, at 259.
65. Id. at 248 (emphasis in original) (footnote omitted).
66. Id. at 249 n.50, 260.
67. Id. at 260.
68. Id. at 267.
69. Id. at 248 (emphasis added).
70. I discuss this matter in Kramer, Law and Morality, supra note 2, chs. 2, 4.
71. Shapiro, What Is the Rule, supra note 4, at 265 (emphases in original).
72. Id.
73. See Kramer, In Defense, supra note 2, at 140–142. My response to Dworkin in this subsection is a substantially abridged and modified version of an array of arguments put forward in id. at 135–146.
74. Of course, I am not writing here about logical necessity. Rather, I am writing about what is necessary in any credible circumstances. I am putting aside bare logical possibilities.
75. Shapiro also misrepresents the writings of John Austin. For example, without any citations he declares: “Austin was fully aware that his theory of rules did not appear to fit power-conferring rules very well.” Shapiro, Legality, supra note 1, at 62. In the only text by Austin to which Shapiro ever refers, John Austin, The Province of Jurisprudence Determined (1832), there is in fact no inkling whatsoever of the problem posed by power-conferring rules.
