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Self-certification and the Moral Aims of the Law

Published online by Cambridge University Press:  20 July 2015

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In Legality, Scott Shapiro introduces what he calls the “Planning Theory of Law.” Shapiro introduces the idea of a plan with examples from outside of the law. He then must provide an account of what is distinctive about law, such that the other plan-based social orders are not also legal systems. He gives two answers: first, a legal system is organized by a moral aim. Second, a legal system is self-certifying. I examine these in turn, and argue that each can only characterize what is distinctive about law if the relevant moral problem that law aims to solve is itself specifically concerned with authority—that is with who gets to decide about what. Other forms of planning assign roles to people to solve problems that have nothing to do with authority; law uses role-based authority to solve a moral problem that is fundamentally about authority.

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Copyright © Canadian Journal of Law and Jurisprudence 2012

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I am grateful to Lisa Austin, David Dyzenhaus and Jacob Weinrib for comments on an earlier draft, to participants in the Roundtable on Legality at Cardozo Law School for their comments and questions, to Martin Stone and Sari Kisilevsky for their comments and pressing me to write them, and to Scott Shapiro for writing a book that made me think I had something to say about analytical jurisprudence. Full disclosure: I was one of the readers for Legality for Harvard University Press.

* Legality by Shapiro, Scott (Cambridge, MA, Harvard University Press, 2011). Page references in text are to the book.Google Scholar

1. Hart, HLA, The Concept of Law, 2nd ed (Oxford: Oxford University Press, 1994) at 101.Google Scholar

2. Lewis, David, Convention: A Philosophical Study (Cambridge, MA: Harvard University Press, 1969).Google Scholar Lewis’s account is applied to law in Coleman, Jules L, “Negative and Positive Positivism” (1982) 11 J Legal Stud at 159.CrossRefGoogle Scholar

3. The moral aim thesis is different from Robert Alexy’s view that the legal system always makes a claim to moral correctness. The two differ, above all in their conception of legal authority. For Alexy, “individual legal norms and decisions as well as whole legal systems necessarily make a claim to correctness.” He notes the problematic status of a constitution that declares itself unjust or a verdict that announces defendant to have been wrongfully convicted. Alexy is pushed to this position because he anchors the connection between law and morality in the claim that law makes assertions, which he believes to be subject to the moral commitments inherent in Habermas’s discourse ethics. If all claims are morally infused, the moral infusion of law does not depend on anything distinctive about it. Alexy, Robert, “On Necessary Relations between law and Morality” (1989) 2 Ratio Juris 167 at 178.CrossRefGoogle Scholar For Shapiro the plan as a whole must have a moral aim, but it does not follow that the system or its planners believe particular decisions to be morally correct.

4. Anderson, Jon L, “Gangland”, The New Yorker (5 October 2009) 37 Google Scholar

5. For classic statements, see Davidson, Donald, “Radical Interpretation” in Inquiries into Truth and Interpretation (Oxford: Oxford University Press, 1984)Google Scholar and Dennett, DanielIntentional Systems” (1971) 68 J Phil 87.CrossRefGoogle Scholar

6. |Burge, Tyler, “Individualism and the Mental” (1979) 4(1) Midwest Studies in Philosophy 73.Google ScholarPubMed

7. The thesis itself goes back at least to Aristotle, but prominent defenders have included Aquinas, Kant, Anscombe and Davidson. For contemporary discussion, see for example, Tenenbaum, Sergio, Appearances of the Good: An Essay on the Nature of Practical Reason (Cambridge: Cambridge University Press, 2007)CrossRefGoogle Scholar and the essays collected in Tenenbaum, Sergio, ed, Desire, Practical Reason, and the Good (Oxford: Oxford University Press, 2010).CrossRefGoogle Scholar

8. See Hart, supra note 1 at 189, 193.

9. (2011) 109 Mich L Rev 883, 898.

10. On the relation between utilitarianism and positivist rejections of natural law thought, see Stone, MartinLegal Positivism as an Idea about Morality” (2011) 61 UTLJ 313.CrossRefGoogle Scholar Stone argues that the subsequent history of positivism bears the marks of its birth.

11. Shapiro notes this point in his brief discussion of angels, (173-74) who would, he suggests, find themselves in the circumstances of legality.

12. Thorburn, Malcolm, “Justifications, Power, and Authority” (2008)117 Yale L J 1070.CrossRefGoogle Scholar

13. I am grateful to David Gray Carlson for pressuring me to clarify my position on this issue.

14. Hart, supra note 1 at 79 ff.

15. The CCF differs from Shapiro’s example of the US Golf Association (224) in several respects. First, it is fictitious; there are a number of Chess organizations in Canada, none with that name. Second, and more importantly, the CCF could not be not in a position to exercise the power on which Shapiro focuses his discussion, to make the rules of chess. Those have been established for centuries, and so it cannot be said that anyone who ignores the CCF’s rules doesn’t play chess properly, because it doesn’t make the rules of chess. But the USGA doesn’t have or claim authority to prohibit people from playing golf according to Scottish rules.

16. Fraenkel, Ernst, The Dual State: A Contribution to the Theory of Dictatorship, translated by Shils, EA in collaboration with Lowenstein, Edith & Knorr, Klaus (New York: Oxford University Press, 1941).Google Scholar