The Canberra Plan and the Nature of Law
60 Pages Posted: 28 Nov 2015
Date Written: November 26, 2015
In this article, I shall consider a method for conceptual analysis which has been called the Canberra Plan. The Canberra Plan is not, however, aimed primarily at the elucidation of the relevant concept, but at the metaphysical question of identifying the descriptive (or natural or physical) property that corresponds to the concept. The idea of the Canberra Plan is, more specifically, (a) to clarify the import of the concept by reference to the role the concept plays in a network of concepts, principles, and claims, and (b) to investigate and see what, if any, descriptive property corresponds to the concept thus analyzed.
The question of what descriptive property, if any, corresponds to the concept of law should be of considerable interest to jurisprudents, not only because the meta-ethical question of whether legal properties are descriptive, or even natural or physical, is generally interesting, but also because the existence of such descriptive (or natural or physical) legal properties is precisely what is asserted by legal positivists through the so-called social thesis, which has it that we determine what the law is using factual criteria.
In order to investigate this question, I shall carry out a Canberra-style analysis of the concept of law, and I shall argue, tentatively, (1) that X is law if, and only if, (i) X is a relation between (alfa) a system of norms all of which can be traced back to one of several recognized sources of law that can be handled on the basis of exclusively factual considerations, and (beta) an organization that is constituted and regulated by the norms of the system and whose task it is to interpret and apply these norms, (ii) X aspires to regulate social life in general, (iii) X is non-optional, and (iv) X claims to trump competing normative systems. In addition, I shall argue, equally tentatively, (2a) that the property of being law is precisely the descriptive property that satisfies the conditions (i)-(iv), (2b) that this property is a role property, not a realizer property, and (2c) that there is very little to be said about the legal realizer property on a general level and that the legal realizer property differs in this regard from moral and mental realizer properties.
I shall, however, also argue (3a) that the analyst who applies the Canberra Plan to the concept of law will almost certainly find it very difficult to come up with a collection of sufficiently rich analytic platitudes, especially what Frank Jackson calls input and output clauses, (3b) that he is not likely to get much help from the idea of mature legal thinking (introduced here as an analog to Jackson’s idea of mature folk morality), and (3c) that the so-called permutation problem, which is very problematic, will arise as a result of the above-mentioned lack of input and output clauses. And I shall therefore argue (4) that, as things stand, the Canberra Plan will not help us clarify the nature of law or lend support to the strong social thesis of legal positivism.
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