Planning Positivism and Planning Natural Law

Abstract

This paper, forthcoming in the Canadian Journal of Law and Jurisprudence, is a comment on Scott Shapiro's book "Legality." I argue that Shapiro's "planning theory of law" is not proprietary to legal positivism. Indeed, there is reason to think that the Planning Theory would thrive best in a natural law context. In the second part of the paper, I comment on a methodological commitment -- one sometimes regarded as quite innocent by practitioners of "analytic" jurisprudence -- which impedes such a natural law possibility from coming into view. The structure of a natural law theory is analyzed here in terms of a logically distinctive form of generality.

Keywords: Shapiro, planning, positivism, natural law, forms of generality, utilitarianism, Kant, analytic jurisprudence, morality