The American philosopher and Yale professor Scott Shapiro, in his recent book entitled ‘Legality’, aims at offering an original and thorough vision of what the nature of law is. In doing this, Shapiro’s ambitious attempt brings along a new method for the pursuit of the nature of law.
On Shapiro’s research method focuses Damiano Canale (Department of Law) in his article Looking for the Nature of Law: on Shapiro’s Challenge, (in Law and Philosophy, 2012, Vol. 31, No. 4, doi: 10.1007/s10982-011-9125-y). Indeed, Canale holds that the method suggested by Shapiro reveals itself to be “one of the most interesting outcome of his research in jurisprudence’. Nonetheless, he finds that Shapiro’s work probably overruns, since it does not limit to answer as to what is the essence of law, but goes as far as explaining every possible legal fact and institution.
In the pursuit of the nature of law, Shapiro suggests to adopt a metaphysical approach; in other words, one should seek the necessary features of the reality, setting aside its contingent characteristics.
The question to be answered is the following: “What it is for a legal entity to be what it is?”. The inquiry to be carried out entails a detective-like work: for every legal concept one has to look for as many truisms – i.e. facts that are not only true, but self-evidently true – as possible. Having so gathered, by means of intuition, a set of “common sense assumptions” about that legal concept, one should start the rational work aimed at building the theory which would give the best possible explanation of them.
Shapiro’s best possible explanation of what is the nature of law is that human beings are “planning creatures” and that legal norms are “plans”. Proceeding upon this principle, also the classic “chicken and egg” problem about the source of law (what comes first, the norms which empower legal officials, or legal officials which set norms?) could be solved: laws generate obligations since they are plans, which coordinate our behavior, resolve doubts and disagreements and distribute rights and responsibilities.
Canale, in his article, puts forward a certain number of challenges to Shapiro’s project, hoping they could turn out to be suggestions for Shapiro to specify (or emend) his thesis.
First of all, Canale detects an overstretching of Shapiro’s Planning Theory of Law. The question to be answered is: if legal norms were plans, would they succeed in doing the job that they actually do in everyday life? Since the answer seems to be negative, it emerges that Shapiro’s claim does not provide a sound justification of the alleged aptitude of plans to generate obligations.
Then, Shapiro’s constructivist strategy risks faulty generalizations: if laws are plans, set by the legislature – i.e. a group of planning creatures – why do some laws end up being irrational results of arbitrary political agendas?
In addition, conceptual analysis is based upon the structure of our thought and language. Therefore, semantic problems arise and should be addressed, due to the issues of superficiality, indeterminacy, inaccurateness of language. Moreover, the correspondence between common sense assumptions and social reality is not ascertainable, and this is not a good thing.
Canale, in light of the challenges to Shapiro’s method above, envisages a possible way out.
Whereas Shapiro maintains that metaphysical features of legal entities can be discovered by analyzing ordinary language, Canale, recalling the ontological pluralism theory, suggests that the legal terms are ambiguous, since they refer to different sets of properties, when applied to different domains. The Planning Theory of Law, therefore, could still be valid, although probably not universally, but only within narrower borders, and in particular in certain domains of discourse.