This paper and its companion (‘‘The Planning Theory of Law I: The Nature of Legal Institutions’’) provide a general introduction to Scott Shapiro’s Planning Theory of Law as developed in his recent book Legality. The Planning Theory encompasses both an account of the nature of legal institutions and an account of the nature of legal norms. The first paper concerns the account of legal institutions. This paper concerns the account of legal norms.

This paper and its companion (“The Planning Theory of Law II: The Nature of Legal Norms”) provide a general introduction to Scott Shapiro’s Planning Theory of Law as developed in his recent book Legality. The Planning Theory encompasses both an account of the nature of legal institutions and an account of the nature of legal norms. This first paper concerns the account of legal institutions. The second concerns the account of legal norms.

In this essay, I focus on what appear to be Shapiro’s views about the normativity of law, as well as with his surprising claim that law necessarily has a moral aim. I argue that even if Shapiro offers a more compelling reply to the problem of the normativity of law than Hart offers in The Concept of Law, the moves that he makes appear to be equally available to a defender of Hart’s theory, and so in this respect, the (...) planning theory has no particular advantage over the practice theory. As for the Moral Aim Thesis, it appears to be in tension with Shapiro’s positivism. If he is right that law has a moral aim and law claims moral legitimacy, then he should embrace a richer account of the nature and normativity of law than the one that he has offered. (shrink)

What this book intends to do is to study three-dimensionalism (the distinction values-norms-facts) not in what could be called its historical dimension, but in its substantive aspect, as a "form" that, when applied to different legal themes, would add a "material content" to the three-dimensional theory. We can point out, as a study plan, the distinction between "three" perspectives: Those of the legal norm, of the legal order, and the legal relationship. Three-dimensionalism also appears in this work when one (...) analyzes the "three" phases of the life of the law: The formation, the interpretation, and the application; and in the distinction between the "three" characteristics of the legal order: Fullness, coherence, and unity --- the theory of legal validity, intended as legitimacy, as validity strictly speaking, or as effectiveness. (shrink)

The practical, normative dimension of planning is a plausible source of the ‘family resemblances’ noted by a number of legal theorists between Scott Shapiro’s Planning Theory and natural law jurisprudence. Foremost among these resemblances is Shapiro’s contention that the law, necessarily, has a moral aim. The moral aim thesis is at first glance surprising given Shapiro’s intention to defend exclusive legal positivism and unequivocal rejection of what he takes to be the core commitments of natural law (...) class='Hi'>theory. Shapiro’s claim, however, is that although the law necessarily has a moral aim, this does not entail that it is successful in satisfying that aim. In order to assess this thesis, it is helpful to compare the Planning Theory with contemporary natural law approaches. Bringing Shapiro’s Planning Theory into dialogue with contemporary natural law theories can demonstrate some of the Planning Theory’s weaknesses as an alternative explanation of the ultimate grounds of the authoritativeness of legal norms. Some of these weaknesses, moreover, are instructive beyond the specific contours of the Planning Theory insofar as they generalise to other legal positivist approaches. In section one I consider Shapiro’s treatment of the so-called ‘Possibility Puzzle’ regarding the grounding relation between authoritative norms and legal authority. Shapiro’s denial of the capacity of earlier jurisprudential theories to resolve this puzzle overlooks what is – I suggest – a plausible solution developed by John Finnis on the basis of Joseph Raz’s theory of practical reason and norms. Section two then demonstrates why Shapiro’s attempt to combine a robust construal of the social facts thesis with a commitment to the thesis that law necessarily has a moral aim is ultimately unsuccessful. (shrink)

Who should have a right to participate in a polity’s decision-making? Although the answers to this ‘boundary problem’ in democratic theory remain controversial, it is widely believed that the enfranchisement of tourists and children is unacceptable. Yet, the two most prominent inclusion principles in the literature – Robert Goodin’s ‘all (possibly) affected interests’-principle and the ‘all subjected to law’-principle – both enfranchise those groups. Unsurprisingly, democratic theorists have therefore offered several reasons for nonetheless exempting tourists and children from the (...) franchise. In this paper, I argue that their attempts fail. None of the proposed rationales can do the job without having unacceptable implications for the voting rights of other groups. I then develop a new specification of the affected interests-view, one that avoids such problems. According to my life plan-principle, a person is entitled to participate in a polity’s decision-making if and only if its decisions will actually affect her autonomously chosen life plans, or prevent her from developing or revising plans of that kind. I show that this principle straightforwardly avoids enfranchising tourists and children, and thus improves upon its two prominent rivals. The paper ends by considering and rejecting two objections to my new principle. (shrink)

Scott Shapiro offers an elaboration and defense of “legal positivism,” in which the official acceptance of a plan figures as the central explanatory notion. Rich in both ambition and insight, Legality casts an edifying new light on the structure of positive law and its officialdom. As a defense of positivism, however, it exhibits the odd feature that its main claims will prove quite acceptable to the natural lawyer. Perhaps this betokens – what many have begun to suspect anyway – that (...) our usual tests for classifying legal theories are, in the present state of discussion, no longer credible. In any case, my hope in the following remarks is to suggest how certain ambiguities in Legality might easily be resolved in favor of Planning Natural Law. The Planning Theory of Law, in other words, is not proprietary to positivism. (shrink)

Lays out basics of planning theory of law. Roughly, characterizes the internal point of view as a complex planning intention rather than a response to a recurring coordination problem. We are not responding to such a problem per se, but rather to a cooperation problem - and thus the structure of the attitude or intention must be different. It is officials who have the relevant attitude. Does not reject conventionalism, but argues that the convention is of a (...) different sort than is typically thought. Considers the basic commitment of legal positivism to be a commitment law as social fact. (shrink)

Colemanand Shapiro have recently advanced a second at- tempt to reconcile Hart’s practice theory of rules and the idea of the normativity of law; i.e., the idea that legal rules qua social rules give reasons for actions and, in some circumstances create and impose duties and obligations. Their argumentative strategy is to resort to elements in Bratman’s work on shared agency and planning, though they introduce important and substantive modifications to Bratman’s own explanation. Bratman describes his own (...) class='Hi'>theory as a modest theory of the will where the notion of planning plays a fundamental role. Both Shapiro’s and Coleman’s application of Bratman’s planning theory of agency to an authority structure such as law is impressive, but a number of objections can be levelled, with the intention of grasping both the nature of authority structures and the normativity of law. Although I have referred to Shapiro’s and Coleman’s applica- tions as being similar to one another, the differences are sub- stantive and important. I will scrutinise both Shapiro’s and Coleman’s explanations of ‘shared agency’ and discuss the objections that can be raised against each application. (shrink)

This work reconstructs the original theory of natural law as developed by the early Stoic scholarchs, explains its fundamental differences from our traditional conception of natural law, and considers the philosophical motivation for this transformation of the original theory. For the nearly Stoics, natural law corresponds not to a determinate code of laws or precepts, as in Aquinas, but to a certain mental disposition, namely the perfectly rational and consistent conduct of the wise man. The content of the (...) moral conduct enjoined by natural law is specified by "virtuous actions" rather than "appropriate actions" . ;In the Introduction I discuss the central differences between ancient and modern theories of natural law, outline the plan of my project, and explain how the early Stoic theory of natural law differs quite radically from the Thomistic conception of the subject. Next I reconstruct the original form and motivation of the theory from the fragments of the early Stoic scholarchs, explain its relation to their ethics and political philosophy, and show that its original motivation was to offer a better answer than Plato had succeeded in giving to the problems he raised in the Republic. In the third chapter I reconstruct and examine critically Carneades' attack on the Stoic theory. Finally, I argue that Antiochus of Ascalon introduced a simple but fundamental modification of the early Stoic theory, which radically changed its orientation and laid the basis for the Thomistic theory. To support his view about the unity of doctrine of the "ancients", Antiochus revised natural law so as to enjoin kathekonta rather than katorthomata, thus making the content of natural law correspond to a determinate class of precepts. I conclude with some general remarks on why Cicero chose Antiochus' version of natural law as the basis for his De Legibus. In an Appendix I argue that the Stoics' theory had little if any substantive influence on Roman Jurisprudence. (shrink)

This paper examines methodological issues associated with the theory of planned behaviour and explains that an alternative account of data used to support this theory can be provided by positioning theory. A case is presented that shows tests of the theory of planned behaviour fail to eliminate the possibility of alternative explanations for co-variation in its data. An agency or person-centered alternative shows how a causal interpretation can be reinterpreted as evidence of the actions of a (...) person. Unlike the conceptualisation of the individual as behaving in keeping with postulated underlying cognitive laws or rules we assume that the person has, through socialisation, acquired the skills necessary to initiate and manage their own actions. Unlike the interest in TPB data as a causal explanation of action we draw attention to the interpretation of patterns in these data as an aggregate of each person using a common mode of explanation to justify and explain their intentions. (shrink)

Background On December 2017 the Italian Parliament approved law n. 219/2017 “Provisions for informed consent and advance directives” regarding challenging legal and bioethical issues related to healthcare decisions and end-of life choices. The law promotes the person’s autonomy as a right and provides for the centrality of the individual in every scenario of health care by mean of three tools: informed consent, shared care planning and advance directives. Few years after the approval of the law, we conducted a survey (...) among physicians working in four health care facilities specific for the care of people suffering from psychiatric disorders, cognitive disorders and dementia located in the North of Italy aiming to investigate their perceived knowledge and training need, attitudes regarding law n. 219/2017 provisions, and practices of implementation of the law. Methods A semi-structured questionnaire was developed on an online platform. The invitation to participate in the survey was sent by email to the potential participants. Information was collected by means of the online platform (Google Forms) which allows to export data in a spreadsheet (Windows Excel) to perform basic statistical analysis (frequency distributions, bar chart representation). Results Twenty-five out of sixty physicians participated in the survey. None of the respondents value their knowledge of the law as very good, 10 good, 13 neither poor nor good, 1 poor and 1 very poor. All the respondents want to learn more about the law (21 yes and 4 absolutely yes). The majority of respondents agrees with the content of the law as a whole (3 absolutely agree, 13 agree), and on each provision. The question on the clarity of the concept of capacity in the law received mixed answers and this impacted on the physicians’ opinion regarding the legitimacy in principle for our groups of patients to realize shared care planning and write advance directives. Thirteen physicians neither introduced the theme of shared care planning nor arranged for shared care planning and the main reason for this was that no patient was in a clinical situation to require it. When shared care planning is realized, a variability in terms of type and number of meetings, mode of tracking and communication is registered. Conclusions Our survey results indicate a need for more clarity regarding the interpretation and implementation of the law in the patient groups under study. There are in particular two related areas that deserve further discussion: (1) the question of whether these patient groups are in principle legitimized by the law to realize shared care planning or write advance directives; (2) the notion of capacity required by the law and how this notion can be declined in real-life situations. (shrink)

The “New Natural Law” Theory (NNL) of Germain Grisez, John Finnis, Joseph Boyle, and their collaborators offers a distinctive account of intentional action, which underlies a moral theory that aims to justify many aspects of traditional morality and Catholic doctrine. -/- In fact, we show that the NNL is committed to premises that entail the permissibility of many actions that are irreconcilable with traditional morality and Catholic doctrine, such as elective abortions. These consequences follow principally from two aspects (...) of the NNL. The first aspect is its distinctive version of the planning theory of intention, in which adopting the 'first-person perspective' of an agent is a sufficient, and not merely necessary, condition for determining the nature of his intentional action; this planning theory rests upon an implicitly Cartesian conception of human behavior, in which behavior chosen by an agent has no intrinsic “intentionalness” apart from what he confers upon it as part of his plan. The second aspect is the NNL's distinctive account of basic human goods' incommensurability, according to which there is no common factor shared by basic human goods that allows them to be comparatively ranked in any way that directs practical deliberation. -/- The entailments of these two aspects of the NNL, we argue, amount to a reductio ad absurdum. Pace the proponents of the NNL account, we sketch an alternative hylomorphic conception of intentional action that avoids untoward moral implications by grounding human agency in the exercise of basic powers that are either (a) essential constituents of human nature or (b) acquired through participation in social practices. This conception of intentional action provides a stronger foundation for natural law theory. (shrink)

An important part of the legal domain has to do with rule-governed conduct, and is expressed by the use of notions such as norm, obligation, duty, and right. These require us to acknowledge the normative dimension of law. Normativity is, accordingly, to be regarded as a central feature of law lying at the heart of any comprehensive legal-theoretical project. The essays collected in this book are meant to further our understanding of the normativity of law. More specifically, the book stages (...) a thorough discussion of legal normativity as approached from three strands of legal thought that are particularly influential and which play a key role in shaping debates on the normative dimension of law: the theory of planning agency, legal conventionalism and the constitutivist approach. While the essays presented here do not aspire to give an exhaustive picture of these debates--an aspiration that would be, by its very nature, unrealistic--they do provide the reader with some authoritative statements of some widely discussed families of views of legal normativity. In pursuing this objective, these essays also encourage a dialogue between different traditions of study of legal normativity, stimulating those who would not otherwise look outside their tradition of thought to engage with new ideas and, ultimately, to arrive at a more comprehensive account of the normativity of law.--Provided by publisher. (shrink)

Some laws cannot yet be entirely abrogated in a current political situation, though permitting grave injustices against some individuals; for example, unborn and/or disabled individuals. In supporting the passing of new ‘imperfect’ laws that protect only some of those who now lack protection, do we ourselves discriminate unjustly against those remaining unprotected? Or does that depend on factors such as our intentions – including what we intend that others intend? How may we collaborate with colleagues who intend, and perhaps explicitly (...) defend, the continuation of remaining, closely-related injustices, although they are willing to join us in trying to improve some aspects of the status quo? This paper explores the moral constraints on our attempts to extend the law’s protection to some, but not to all, of those individuals currently deprived of such ­protection and at risk of serious harm. (shrink)

In “How Facts Make Law” and other recent work, Mark Greenberg argues that legal positivists cannot develop a viable constitutive account of law that meets what he calls the “the rational-relation requirement.” He argues that this gives us reason to reject positivism in favor of antipositivism. In this paper, I argue that Greenberg is wrong: positivists can in fact develop a viable constitutive account of law that meets the rational-relation requirement. I make this argument in two stages. First, I offer (...) an account of the rational-relation requirement. Second, I put forward a viable positivist account of law that I argue meets this requirement. The account that I propose is a version of Scott Shapiro’s Planning Theory of Law. The version of Shapiro’s account that I propose combines (1) the account of concepts and conceptual analysis put forward by David Chalmers and Frank Jackson with (2) the account of the concept LEGAL INSTITUTION (and its conceptual connections to the concept LEGAL NORM) that we get from a certain reading of Shapiro’s Planning Theory. In addition to providing a compelling response to Greenberg’s argument in “How Facts Make Law,” I argue that the explanation for why my response to Greenberg works underscores one of the central problems facing legal antipositivism: namely, its lack of a convincing account of the nature of legal institutions. (shrink)

Health care costs and affordability are critical issues to consumers. Just as we assess the coverage impacts of a health reform proposal, we should be able to evaluate how the plan will constrain health care costs: its theory of cost control. This essay provides a framework to assess health reform plans on their theories of cost control, identifying the key policy tools to constrain health care costs organized in a two-by-two matrix across the following dimensions: price vs. utilization and (...) public vs. private payers. It then applies the framework to the Affordable Care Act and the Republican's 2017 legislative efforts to repeal and replace the ACA to identify their general theories of cost control, revealing on the plans' strengths, blind spots, and incoherence. (shrink)

This article explores traditional views of advance care planning in the broader context of advance personal planning, which also accounts for legal and financial matters. Criticisms of existing processes are noted, while the significance of interprofessional collaboration is highlighted. Reframing the purpose of advance personal planning as planning for the rest of life, rather than the end-of-life, and adopting a more holistic perspective informed by theory may help individuals to view advance personal planning as (...) a routine, preventative exercise that safeguards their autonomy and well-being. Both lawyers and healthcare providers have an important role to play in reframing the purpose of advance personal planning. This revised approach is underpinned by the unification of two separate theoretical lenses: Preventive Law Theory and Therapeutic Jurisprudence. This combination enhances our understanding of what it means for people to truly achieve “the good result” (Holtz 2017) when planning ahead for their future legal, financial, health, and personal interests. Preventive Law Theory encourages an ongoing, collaborative relationship between lawyers and their clients, or healthcare providers and their patients, while Therapeutic Jurisprudence ensures an ethical approach to advance personal planning that accounts for all aspects of the individual’s well-being, including consideration of vulnerability, autonomy, and empowerment. (shrink)

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 institutionalised abstract artefact, with a greater emphasis upon the nature of institutions doing much of the work done by the idea of planning. (shrink)

In 1672, inspired by the wave theory of Ignace Gaston Pardies, Christiaan Huygens made his first attempt to explain the sine law of refraction, but in 1673 he abandoned his plans owing to difficulties concerning double refraction. Huygens was able to explain double refraction on 6 August 1677 after his discoveries of the axis of symmetry of the crystal and of ‘Huygens's principle’. On 6 August 1679, he wrote: ‘I have found the confirmation of my theory of light (...) and of refraction’, and then described an ‘experimentum crucis’ to decide between his theory and a rival hypothesis. A study of caustics may have led Huygens to the discovery of ‘Huygens's principle’. (shrink)

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. (shrink)

Legal theorists tend to focus on disagreement over the law, and yet a theory of law should also explain why lawyers and judges agree on the law as often as they do. To that end, this article first pins down a precise sense in which there can be pervasive agreement on the law. It then argues that such agreement obtains in the United States and likely in many other jurisdictions as well. Finally, it contends that Hartian Positivism offers a (...) straightforward explanation of this phenomenon and, indeed, a better explanation than rival theories, like Ronald Dworkin’s Law as Integrity or Scott Shapiro’s Planning Theory. Given the ubiquity of legal agreement, Hartian Positivism’s explanatory superiority in this regard is a strong, albeit still not dispositive, consideration in its favour. The broader lesson is that theories of law should give greater priority to explaining legal agreement than many theories now do. (shrink)

The venerable cities of the past, such as Venice or Amsterdam, convey a feeling of wholeness, an organic unity that surfaces in every detail, large and small, in restaurants, shops, public gardens, even in balconies and ornaments. But this sense of wholeness is lacking in modern urban design, with architects absorbed in problems of individual structures, and city planners preoccupied with local ordinances, it is almost impossible to achieve. In this groundbreaking volume, architect and planner Christopher Alexander presents a new (...) theory of urban design which attempts to recapture the process by which cities develop organically. To discover the kinds of laws needed to create a growing whole in a city, Alexander proposes here a preliminary set of seven rules which embody the process at a practical level and which are consistent with the day-to-day demands of urban development. He then puts these rules to the test, setting out with a number of his graduate students to simulate the urban redesign of a high-density part of San Francisco, initiating a project that encompassed some ninety different design problems, including warehouses, hotels, fishing piers, a music hall, and a public square. This extensive experiment is documented project by project, with detailed discussion of how each project satisfied the seven rules, accompanied by floorplans, elevations, street grids, axonometric diagrams and photographs of the scaled-down model which clearly illustrate the discussion. A New Theory of Urban Design provides an entirely new theoretical framework for the discussion of urban problems, one that goes far to remedy the defects which cities have today. (shrink)

One of the world's pre-eminent Max Weber scholars here presents a comprehensive analysis of Weber's ambiguous stance toward modernity considered from a normative, theoretical, and historical point of view. The book is in two parts. Part I scrutinises Weber's world view. On the basis of his thinking about the meaning and inter-relationships of science, politics, and ethics in the modern era, Weber is seen as the embodiment of a social scientist and political thinker who exposes himself to intellectual risks and (...) existential tensions while resisting final solutions. It includes a masterly analysis of Weber's two famous speeches 'Science as a Vocation' and 'Politics as a Vocation'. Part II considers Weber's unfinished project on the sociology of religion. Piecing together planned and partially completed works on Islam and Western Christianity, Schluchter locates them in the history and theory of Weber's overall work. This reconstruction of Weber's work on religion emphasises its interplay between religion, economy, politics, and law. (shrink)

Scott Shapiro’s Legality argues the positivist Planning Theory of law meets the anti-positivist challenge posed by the argument from theoretical disagreements about law in Ronald Dworkin’s Law’s Empire. Legality equates theoretical disagreements with what Shapiro calls meta-interpretive disagreements, and then offers a legal theory of meta-interpretation that purportedly accounts for the existence of meta-interpretive disagreements by showing how it is rational or intelligible for legal actors to have such disagreements. This paper argues Legality misconstrues Law’s Empire. The (...) true challenge of ATD was to provide a theory of law that would vindicate the judgment that law is discovered in cases of theoretical disagreements, rather than made. Legality sees the challenge of Law’s Empire to be to show how it is rational or intelligible for legal actors to have theoretical disagreements, which is different from showing how there really is pre-existing law to be found in cases of theoretical disagreements. So the challenge Legality addresses is circumscribed. But Legality does not even succeed at addressing its own more circumscribed challenge, because, under the Planning Theory of meta-interpretation, legal actors are mistaken to think they are finding law in cases of theoretical disagreements. (shrink)

Contract and employment law have grown apart. Long ago, each side gave up on the other. In this Article, we reunite them to the betterment of both. In brief, we demonstrate the emancipatory potential of contract for the law of work. Today, the dominant contract theories assume a widget transaction between substantively equal parties. If this were an accurate description of what contract is, then contract law would be right to expel workers. Worker protections would indeed be better regulated by—and (...) relegated to—employment and labor law. But contract law is not what contract theorists claim. Neither is contract law what the dominant employment theorists fear—a domain that necessarily misses the constitutive place of work in people’s life-plans and overlooks the systemic vulnerability of workers to their employers. Contract, we contend, is not work law’s canonical “other.” Rightly understood, contract is an autonomy-enhancing device, one founded on the fundamental liberal commitment of reciprocal respect for self-determination. From this “choice theory” perspective, the presumed opposition between employment and contract law dissolves. We show that many employment law doctrines are not external to contract, but are instead entailed in liberal contract itself. Grounding worker protections in contract theory has two salutary effects. First, it offers workers more secure protection than that afforded by their reliance on momentary public-law compromises. Second, it reveals contract’s emancipatory potential for all of us—not just as workers, but also as widget buyers. Contract can empower, and employment can show the way. (shrink)

We have the capacity to act together in shared intentional and shared cooperative ways. This lecture argues that our capacity for the plan-based, mind-supported cross-temporal organization of our individual activities, together with certain further elements, suffices for our capacity for the mind-supported, small-scale social organization characteristic of acting together. These two fundamental forms of human practical organization––diachronic and small-scale social––are for us grounded in a common core: our capacity for planning agency.

What does it mean to hold a belief? Some of our ways of speaking in English suggest that to hold a belief is to have something in your mind: beliefs are things we acquire, defend, recover, and so on (Abelson, 1986). That is, believing is a matter of being in a state of having a thing. In this paper, I will argue for an alternative: believing is something we do. This is not a new suggestion. For instance, Matthew Boyle (2011) (...) defends a theory of belief as an activity, which he traces back to Aristotle. This paper, however, makes two new contributions: first, I argue for an analogy between belief and planning that fleshes out what it would mean to understand belief as an activity, and second, I aim to show how the resulting view can help sense of a variety of theories in cognitive psychology that suggest cognitive information storage is dynamic and reconstructive. (shrink)

Our capacity for planning agency is a core capacity that underlies interrelated forms of mind-shaped practical organization: cross-temporal organization of individual agency, shared agency, social rules, and rule-guided organized institutions. A function of our capacity for planning agency is the support of these forms of practical organization. I highlight Peter Godfrey-Smith's contrast between the ‘Wright function’ of something as ‘the effect it has which explains why it is there’ and ‘Cummins functions’ that ‘are capacities or effects of components (...) of systems, which are salient in the explanation of capacities of the larger system’. Drawing on Paul Grice's strategy of ‘creature construction’, I articulate a sequence of nested constructions: from temporally extended planning agency to shared agency to shared policies to social rules to rule-guided organized institutions. We see our capacity for planning agency as part of an explanation of how we achieve such practical organization, and as having nested Cummins functions of supporting those forms of organization. This sheds light on related ideas in H.L.A. Hart's theory of law, a challenge from J. David Velleman, the centrality of such forms of organization to the philosophy of action, and the moral and political significance of our capacity for planning agency. (shrink)

Complex moral and political problems like climate change have the capacity to make wrongful (in)actions appear reasonable. This has significance for the central questions of jurisprudence. If we cannot plan rationally for the future, or acts now thought to be rational and blameless become progressively more blameworthy, central elements in our understanding of law – planning, reasonableness, and authority – may diminish in their ability to explain the function and normativity of law. If this is the case, legal positivism (...) and legal non-positivism appear to be confronted with significant, but different, challenges depending on the extent that they conceive of law as future-orientated planning or as a form of practical reasonableness. (shrink)

I LAW AND NATURE i. The "Pure" Theory The Pure Theory of Law is a theory of positive law. It is a theory of positive law in general, not of a specific legal ...

One of the principal lessons of The Concept of Law is that legal systems are not only comprised of rules, but founded on them as well. As Hart painstakingly showed, we cannot account for the way in which we talk and think about the law - that is, as an institution which persists over time despite turnover of officials, imposes duties and confers powers, enjoys supremacy over other kinds of practices, resolves doubts and disagreements about what is to be done (...) in a community and so on - without supposing that it is at bottom regulated by what he called the secondary rules of recognition, change and adjudication. Given this incontrovertible demonstration that every legal system must contain rules constituting its foundation, it might seem puzzling that many philosophers have contested Hart's view. In particular, they have objected to his claim that every legal system contains a rule of recognition. More surprisingly, these critiques span different jurisprudential schools. Positivists such as Joseph Raz, as well as natural lawyers such as Ronald Dworkin and John Finnis, have been among Hart's most vocal critics. In this essay, I would like to examine the opposition to the rule of recognition. What is objectionable about Hart's doctrine? Why deny that every legal system necessarily contains a rule setting out the criteria of legal validity? And are these objections convincing? Does the rule of recognition actually exist? This essay has five parts. In Part One, I try to state Hart's doctrine of the rule of recognition with some precision. As we will see, this task is not simple, insofar as Hart's position on this crucial topic is often frustratingly unclear. I also explore in this part whether the United States Constitution, or any of its provisions, can be considered the Hartian rule of recognition for the United States legal system. In Part Two, I attempt to detail the many roles that the rule of recognition plays within Hart's theory of law. In addition to the function that Hart explicitly assigned to it, namely, the resolution of normative uncertainty within a community, I argue that the rule of recognition, and the secondary rules more generally, also account for the law's dexterity, efficiency, normativity, continuity, persistence, supremacy, independence, identity, validity, content and existence. In Part Three, I examine three important challenges to Hart's doctrine of the rule of recognition. They are: 1) Hart's rule of recognition is under- and over-inclusive; 2) Hart cannot explain how social practices are capable of generating rules that confer powers and impose duties and hence cannot account for the normativity of law; 3) Hart cannot explain how disagreements about the criteria of legal validity that occur within actual legal systems, such as in American law, are possible. In Parts Four and Five, I address these various objections. I argue that although Hart's particular account of the rule of recognition is flawed and should be rejected, a related notion can be fashioned and should be substituted in its place. The idea, roughly, is to treat the rule of recognition as a shared plan which sets out the constitutional order of a legal system. As I try to show, understanding the rule of recognition in this new way allows the legal positivist to overcome the challenges lodged against Hart's version while still retaining the power of the original idea. (shrink)

It is common to think that what theory of linguistic vagueness is correct has implications for debates in philosophy of law. I disagree. I argue that the implications of particular theories of vagueness on substantive issues of legal theory and practice are less far-reaching than often thought. I focus on four putative implications discussed in the literature concerning (i) the value of vagueness in the law, (ii) the possibility and value of legal indeterminacy, (iii) the possibility of the (...) rule of law, and (iv) strong discretion. I conclude with some methodological remarks. Delineating questions about conventional meaning, the metaphysics/metasemantics of (legal) content determination, and norms of legal interpretation and judicial practice can motivate clearer answers and a more refined understanding of the space of overall theories of vagueness, interpretation, and law. (shrink)

For Lack of a Better Plan: A Framework for Ethical, Legal, and Clinical Challenges in Complex Inpatient Discharge Planning Content Type Journal Article Pages 311-326 DOI 10.1007/s10730-009-9117-6 Authors Jane Jankowski, Albany Medical Center Albany NY 12208 USA Terese Seastrum, Northeast Health 2212 Burdett Ave. Troy NY 12180 USA Robert N. Swidler, Northeast Health 2212 Burdett Ave. Troy NY 12180 USA Wayne Shelton, Alden March Bioethics Institute, Albany Medical College 47 New Scotland Avenue, MC 153 Albany NY 12208-3478 USA Journal (...) HEC Forum Online ISSN 1572-8498 Print ISSN 0956-2737 Journal Volume Volume 21 Journal Issue Volume 21, Number 4. (shrink)

The algorithmic theory of laws claims that the laws of nature are the algorithms in the best possible compression of all empirical data. This position assumes that the universe is compressible and that data received from observing it is easily reproducible using a simple set of rules. However, there are three sources of evidence that suggest that the universe as a whole is incompressible. The first comes from the practice of science. The other two come from the nature of (...) the universe itself: the presence of chaotic behavior and the nature of quantum systems also suggests that the universe is incompressible. This paper evaluates these sources and argues that none provides a convincing case to reject the algorithmic theory of laws. (shrink)

Following the eclectic itineraries of ‘Near East’ expert, R. M. Graves, this article tells a story of an ongoing Nakba (catastrophe) of small and large legal decisions. Without reducing the human catastrophe of the event of the Nakba (the 1948 Palestinian forced exodus), it engages with it as a legal event that crosses (in this story at least) from Cairo to Jerusalem, from the League of Nations’ era (1920–1946) to the United Nations’ era (1945–), from the governance of labour and (...) gender, to labour partition, and finally to the governance of municipalities through law and expertise. Graves’ relationship to both Cairo and Jerusalem was materialized through different forms of affective legal governance. Graves, who in his own dichotomous words was ‘neither a Zionist nor an anti-Semite’, managed Jerusalem across national lines in the wake of the UN Partition Plan (1947), and as the old empire was withdrawing right before Jerusalem itself became a site of the catastrophe—right before the Nakba. (shrink)

The present study aims to assess the restriction of private ownership on the cultural-historical property based on the public interest and evaluate how this restriction is explained and what restrictions the cultural heritage rules and regulations impose on the private ownership. The present descriptive and analytical study seeks to examine the above-mentioned questions using the library method. Based on the results, statute law has defined a large number of restrictions for the owner including the owner restriction in the obligation to (...) declare, implement protection plans, as well as sale and transfer of the cultural-historical property. Theories such as public interest are considered as the basis for the restriction of ownership on historical-cultural property. (shrink)

Confucianism has been historically intertwined with authoritarianism in general and monarchy in specific. Various contemporary attempts to reconcile Confucianism with democracy have yielded controversial results mostly due to the theoretical tension between the authoritarian character of the former and the liberal one of the latter. This article seeks to develop an alternative route to Confucian democracy by drawing from Huang Zongxi’s 黃宗羲 Waiting for the Dawn: A Plan for the Prince. In this well-known work, Huang argues for a form of (...) limited government that is built upon laws, political protection of academic freedom, good institutional designs, and separation of governmental powers. While these features seem to qualify Huang only as a defective liberal, this article argues that they are in much coherence with the insights of republicanism concerning good governance. This article will argue that the republican themes embodied in Waiting for the Dawn can justify and support a particular form of Confucian republican democracy. (shrink)

In Between Facts and Norms (1996) Habermas presents the more straightforward normative discourse theory of law and democracy, in terms of contemporary legal orders, and then examines, in terms of social theory, whether the theory is plausible, given the complex nature of today’s conditions. The following article focuses in particular on Habermas’ social theory. It is critical of Habermas’ idea of ‘the lifeworld’ and discusses whether the circulation-of-power model might be mapped onto the system–lifeworld model.

The paper addresses the highly controversial subject of the nature of law. It attempts to present a post-modern positivist concept of law that rejects objectivism and the postulation of a unified legal order entirely and merges elements of system and discourse theory.

This volume presents a Type Theory of Law (TTL), claiming that this is a unique theory of law that stems from the philosophical understanding of Jung's psychological types applied to the phenomenon of law. Furthermore, the TTL claims to be a universal, general and descriptive account of law. To prove that, the book first presents the fundamentals of Jungian psychological types, as they had been invented by Jung and consequently developed further by his followers. The next part of (...) the book describes how the typological structure of an individual determines their understanding of law. It then addresses the way in which inclusive legal theory can be understood based on this typology. Finally, the book describes the TTL in general and descriptive terms and puts it into context. All in all, the book shows how the integral or inclusive approach to understanding the nature of law is not only in tune with our time, but also relevant for presenting a more persuasive picture of law than the older exclusivist or dualist approaches of strict natural law and rigid legal positivism did. (shrink)

In response to the republican revival of the ideal of freedom as non-domination, a number of ‘radical’, ‘labour’ and ‘workplace’ republicans have criticised the limitations of Philip Pettit’s account of freedom and government. This article proposes that the missing link in these debates is the relationship between republicanism and socialism. Seeking to bring this connection back into view in historical and theoretical terms, the article draws from contemporary radical republicans and the writings of Karl Kautsky and Rosa Luxemburg to propose (...) a socialist republican theory of freedom and government. This consists of a conception of freedom as collective autonomy and a participatory democratic vision of a decentralised state with parliamentary institutions, the rule of law, worker-controlled workplaces, community-directed investment and a political culture of solidarity and public-spiritedness. This theory of socialist republicanism seeks to overcome the weaknesses and limitations of each respective independent theory and should appeal to republicans and socialists alike. (shrink)