Scott Shapiro's Theory of Law

Kenneth M. Khrenberg, University of Alabama, Department of Philosophy and School of Law, is publishing Law as Plan and Artifact in volume 7 of Jurisprudence. Here is the abstract.

Scott Shapiro’s theory that law is a social plan is helpful in seeing law essentially as a tool of human creation and as such is sympathetic to understanding law in terms of the social functions it performs, a method I argue for elsewhere. I focus here on two problems with the theory as presented. The planning theory does not adequately explain the persistence of law beyond the utility of those who implement it. Generally, plans can cease to exist as soon as those engaged in them have no more use for them. Laws however, must usually be declared invalid or otherwise nullified for them to have no further effect. Shapiro’s use of self-certification to explain how law is differentiated from other forms of social planning is ad hoc and threatens circularity when he admits it to be a matter of degree. Both of these issues can be better solved by seeing law as an institutionalized abstract artifact, with a greater emphasis upon the nature of institutions doing much of the work done by the idea of planning.

Download the article from SSRN at the link.

The Basis of Law

Damiano Canale, Bocconi University Department of Law, has published Is Law Grounded in Joint Action? as a Bocconi Legal Studies Research Paper. Here is the abstract.

One of the central theses in contemporary jurisprudence is that law is grounded in a social practice. It is far from being clear, however, what the characteristics of this practice would be. Starting from the discussion of the social practice thesis recently provided by Carlos Bernal-Pulido, this article critically considers whether the practice at the foundation of law can be seen as a form of joint action based upon collective intentionality and common knowledge. The paper reconstructs the idea of law as a social practice in the works of John Austin, Herbert Hart and Scott Shapiro, and shows that an accurate reading of these works leads us to cast doubt on the persuasiveness of Bernal-Pulido’s proposal. The practice at the foundation of law, if any, cannot be seen as a form of joint action without making several aspects of law puzzling or unaccountable. Finally, the article tries to shed some light on the contemporary debate about the normativity of law by distinguishing the different theoretical problems that this debate actually tackles.

Download the paper from SSRN at the link.