Critical Remarks on Shapiro's Legality and the 'Grounding Turn' in Recent Jurisprudence

Abstract

The essay discusses some difficulties in Scott Shapiro’s LEGALITY (2011). Many are well-known among specialists, but I set them out systematically here for the benefit of non-specialists. These include the mischaracterization of core jurisprudential questions in terms of “grounding” relations, which unfortunately erases the major natural law positions in the field (e.g., those of Finnis and Murphy), and results in a version of “positivism” that major legal positivists (e.g., Hart) do not accept; but also the false claims that:

(1) “knowledge of law is normative” such that to say X has “a legal right is to draw a normative conclusion”;

(2) officials have a legal obligation to follow the rule of recognition and;

(3) Hart commits a “category mistake” in his discussion of social rules.

The essay also criticizes Shapiro’s discussion of jurisprudential methodology and his (Dworkinian) attempt to show that the answer to jurisprudential questions matters to how courts should decide cases.

Keywords: Scott Shapiro, H.L.A. Hart, grounding, rule of recognition, methodology, general jurisprudence