Wednesday, January 05, 2011
Legal Philosophers, Alien Civilizations, Monism versus Pluralism (Reflections on Shapiro's Legality)
Scott Shapiro’s new book, Legality (2011), is a superb articulation and defense of exclusive legal positivism. Readers are treated to an insightful and supremely clear exposition of the core issues that occupy contemporary analytical jurisprudents, including the debate between legal positivists and natural lawyers, between legal positivists and Ronald Dworkin, and between inclusive and exclusive legal positivists. Shapiro’s novel idea in the book is that every single law is a “plan” (or “plan like”) and law in general is a planning system.
I have not read the book you review, but your review stimulated some thoughts. It is interesting that you introduce your comments on this legal positivist with arguments in which he apparently espouses a natural law theory. The idea that laws are somehow inherent in nature (presumably including alien nature) is quite ancient, e.g., Ulpian:
“Natural law is that which nature teaches to all animals [living things], for it is not peculiar to the human race, but is common to all animals which are produced in the air, on the earth, or in the sea. Hence comes the union of male and female, which we call marriage; hence the procreation and education of their young, for we see, in fact, that the other animals besides man act in conformity with this law as if they were acquainted with it.” Justinian. Institutes. Book I. Title ii. Of Natural Law, the Law of Nations, and the Civil Law.
The idea God (whether considered as singular or plural) is subject to laws has been the subject of much juristic thought, especially in the late middle ages as jurists tried to reconcile Christian dogma with Roman jurisprudence and Greek philosophy. If law is inherent in nature, then God is not sovereign; if God is sovereign, then there can be no [Aristotelian] essence, or law, in nature. Thus, juridical thought underlies our Enlightenment idea of science, in which nature has no essence.
And so a third point: apparently Shapiro in engaged in the business of elucidating a "science" of law in the same sense of Kelsen and others since the 18c. The intersection between analytic philosophy, naturalism, positivism and legal philosophy is interesting and complex, but i think the organizing idea is "science" or positivism. Although Shapiro eschews social science, his theory itself (or theories like his theory as you describe it), of a science of law, is as a historical matter identical with social science. The "science" part links them to the same fundamental propositions about nature. Well, they should, except that what you report about Shapiro may be a serious excursus into natural law. His dependence on the idea of “self-evident” statements recalls the same move made by John Finnis in his natural law theory; and they sound somewhat unscientific since science, positivism, values empirical “truisms.”
As I read your comments I wondered how these observations about monism, dualism and natural law would read through the historical school of jurisprudence. The idea laws arise through historical processes from “the life of man” can be consistent with scientific monism, natural law monism, and a natural pluralism, since there is no bar to the persistence of some norms through diverse, successive historical periods. There is a tendency towards the universal for some norms.
As I read this post, I was thinking of Robin Feldman's 2009 article "Historic Perspectives on Law & Science" that I just finished reading yesterday that addresses science but not the social sciences; that distinguishes legal philosophy from science; that law does not understand science. I may have to reread Feldman's article with this post in mind. Maybe science has something to say about aliens. Of course there was the Bush v. Gore decision that seemed alien to many.
One could pick an arbitrary point in time with respect to any mainstay philosophical dispute, such as the nature of free will, and we can say "it's gone on too long, these smart guys should be social scientists."
But that's part of the appeal of philosophy -- the questions are really hard, the terms of the debate often take decades to clarify. One measure of progress in philosophy should be how we get clear on the debates and in finding out where plausible-sounding arguments to these age-old disputes go wrong.
Shapiro has done an amazing job clarifying disputes and positing a plausible answer to the puzzles that have occupied decades of participants. I'm rather glad he didn't become a sociologist -- which is not to say philosophers couldn't benefit from exposure to more sociology.
While I share your doubts about the project of discovering metaphysically necessary truths about law (though not at all for your reasons, at least if I understand them), I am astonished to see Heather Gerken, in a post further up, imply that Scott's particular methodological commitments are somehow essential to doing philosophy. Nothing could be further from the truth, as Scott himself well knows. Methodology in philosophy is contested territory, and one advantage of Scott's book is that it is quite explicit early on about its methodological commitments, extravagant though they are (or so it seems to me).
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