What Can Plans Do for Legal Theory?
Canale, D. and Tuzet, G. (eds.) The Planning Theory of Law. Critical Reader, Springer, Dordrecht
75 Pages Posted: 25 Jan 2011 Last revised: 7 Oct 2012
Date Written: October 5, 2012
In his book, Legality (2011), Scott Shapiro puts forward what he claims to be "a new, and hopefully better" (better, namely, than the ones given so far) answer to "the overarching question of ‘What is law?’ - The central claim of this new account - the "Planning Thesis" - is that "legal activity is a form of social planning" -. "Legal institutions plan for the communities over which they claim authority, both by telling members what they may or may not do, and by identifying those who are entitled to affect what others may or may not do. Following this claim, legal rules are themselves generalized plans, or planlike norms, issued by those who are authorized to plan for others. And adjudication involves the application of these plans, or planlike norms, to those to whom they apply”.
The relevant notion of a plan is the notion moulded, in his work in the philosophy of action, by M. E. Bratman. It is resort to this concept of a plan, and to Bratman’s way of understanding human agency as planning agency, that, according to Shapiro, makes substantial progress in legal theory possible.
What, then, can (Bratmanian) plans do for legal theory? Does resort to Bratman’s concept of a plan - lovg the lines followed by Shaping - in fact provide new and special insight into the nature of law? I argue that the answer is negative.
Keywords: Legal Positivism, Plans, Legal validity, Jointly intentional action, Shared activity
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