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Res Publica (2012) 18:201206
DOI 10.1007/s11158-011-9172-0
The Planning Theory of Law
Scott Shapiro: Legality. Harvard University Press, Cambridge, MA, 2011, 472 pp
Miguel-Jose Lopez-Lorenzo
Published online: 11 October 2011 Springer Science+Business Media B.V. 2011
Legality is Scott Shapiros rst monograph, and offers a fresh and distinctive theory about the nature of law, bringing to full fruition the work he has undertaken in a number of inuential articles (Shapiro 1998, 2002, 2007, 2009), Legality develops a sophisticated version of legal positivism called the Planning Theory of Law, which gets its name because it builds on the work of Michael Bratman in the philosophy of action (Bratman 1987, 1999), and defends the idea that familiar puzzles about the nature of law can be solved by paying closer attention to the role played by plans in our practical reasoning. In so doing, Legality is rich in insight and inventive in argument. Nevertheless, there may be some cause for suggesting that Shapiro frames his inquiry in a way which fails to adequately engage with non-positivists and, as such, Legality leaves untouched some important objections that might be raised against the Planning Theory of Law.
Legality is divided into 14 chapters, and its argument is best reconstructed in ve parts. Chapters 1 and 2 comprise its rst part, wherein Shapiro sets out the problems he will address, and the methodology he will deploy. Shapiro opens his account by telling us that his central purpose in Legality is to provide a new, and hopefully better answer to the question: what is law? (3). Indeed, Shapiro describes Legality as an essay in analytical jurisprudence, and that his rst task will be to identity laws essential features by means of conceptual analysis (818). To x ideas on this Identity Question (8), Shapiro introduces two puzzles about the nature of law. First we have the Possibility Puzzle, and the problem it presents is this: it seems clear that legal ofcials only have authority to create legal norms when there is already an existing norm in place which confers such authority on these ofcials. But if legal authority is founded on norms and legal norms presuppose legal authority, then the prospect of a non-circular explanation of how legal authority is possible seems to be in...