Abstract
This chapter seeks to explain and evaluate Shapiro’s theory of legal interpretation, as it is outlined in his recent book ‘Legality’. More specifically, in the following I will try to provide (a) a reconstruction of Shapiro’s theory of legal interpretation, as it is developed in ‘Legality’; (b) an assessment of this theory of interpretation on its own terms (i.e. its internal coherence, its overall persuasiveness); and (c) an evaluation of the compatibility of this theory of legal interpretation with the general project of ‘law as plan’.
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Notes
- 1.
See Shapiro (2011, 2–3), on the distinction between ‘normative’ and ‘analytical jurisprudence’.
- 2.
To my knowledge, the only published comment that deals, in part, with the place of legal interpretation in Legality is Edmundson (2011).
- 3.
Since I believe that a theory of law and a theory of interpretation ‘hang together’ in a sort of reflective equilibrium, the converse also holds: as long as sound theory construction is concerned, a theory of law should not be construed in such a way that renders matters of interpretation trivial.
- 4.
- 5.
Shapiro (2011, 129): ‘a plan is a special kind of norm. First, it has a typical structure, namely, it is partial, composite and nested. Second, it is created by a certain kind of process, namely, one that is incremental, purposive and disposes subjects to comply with the norms created.’
- 6.
The idea that the law has one single fundamental function, and that it would be possible to define the law with specific reference to this single fundamental function, is embraced by so diverse authors as (among others) Finnis (1980), Dworkin (1986, 93), Shiner (1992, 129), and Moore (1992, 221). For a critique of this idea, see Raz (2009, Chap. 9), Hart (1994, 249), and Green (1996, 1709–1711).
- 7.
How do we know that the law has such a moral aim? We know this because, according to Shapiro (2011, 216–217), ‘high-rank officials represent the practice as having a moral aim or aims’; ‘they depict it, in other words, as an activity that is supposed to solve moral problems and should be obeyed for that reason’. It seems, then, that the main reason we have to postulate that the law has a moral aim as its fundamental function is that officials act, or speak, as if the law indeed has a moral aim.
- 8.
See Shapiro (2011, 177): ‘A shared plan exists just in case the plan was designed with a group in mind so that they may engage in a joint activity, it is publicly accessible and accepted by members of the groups in question. As a result, if we want to discover the existence or content of the fundamental rules of a legal system, we must look only to these social facts.’
- 9.
According to Shapiro, the theory of interpretation belongs to the domain of the ‘implication questions’: it does not belong to the definition of law, of what makes the law what it is (the ‘identity question’) – rather, it follows from that. See Shapiro (2011, 331): ‘To know how to interpret the law […] we must answer the Implication Question about law.’ See also Shapiro (2011, 25, and generally 8–10), for the difference between ‘identity questions’ and ‘implication questions’.
- 10.
There are limits to this, of course: a plan should not be followed ‘come what may’, at all costs. See Shapiro (2011, 202, 303) (every plan has an inbuilt ‘unless compelling reasons arise’ clause).
- 11.
Shapiro (2011, 275): ‘It would be self-defeating […] to have plans do the thinking for us if the right way to discover their existence or content required us to do the thinking ourselves!’; Shapiro (2011, 307): ‘the content of laws, insofar as they are plans, must be discoverable in a way that does not require the resolution of questions that laws are meant to resolve’; Shapiro (2011, 309).
- 12.
Shapiro (2011, 313) (‘plans are sophisticated devices for managing trust and distrust’).
- 13.
Shapiro (2011, 338) takes for granted that the distribution of interpretive tasks based on considerations of trustworthiness is the job of legislators. As a consequence, it seems that we should primarily look at legislation to solve meta-interpretive questions. But this is clearly a mistake, since it begs the question of the determination of the level of trust granted to legislators themselves. It is plainly possible that the master plan accords comparatively more trust to legislators for some matters and less for others.
- 14.
Shapiro (2011, 345): ‘Her [scil. the interpreter’s] task is to extract the planners’ attitudes of trust as they are embedded in the plans of the legal system, and then to use these attitudes to determine how much discretion to accord herself. Planners’ confidence in competence and character should yield significant levels of interpretive discretion; doubt and suspicion ought to issue in low levels of discretion.’
- 15.
- 16.
Shapiro (2011, 377): ‘The competitive relationship between social planners is itself a crucial meta-interpretive determinant. This is so because legal plans do not merely manage trust; they manage conflict as well. Plans, as we have noted before, are extremely useful tools for settling political disputes. When plans play a conflict-management function, I would now like to argue, the more competitive the planning relationship is, the more constraining the interpretive methodology; conversely, the more collaborative the exercise of social planning, the more interpretive discretion is warranted.’
- 17.
Shapiro (2011, 276): ‘When the pedigreed norms run out (which they must given the Limits of the Social argument), the social planning that the law provides runs out as well.’
- 18.
Shapiro (2011, 273): ‘Judicial practice in the American legal system, therefore, does not require the legal positivist to give up the idea that the law is ultimately and exclusively determined by social facts. For when pedigreed standards run out, American judges are simply under a legal obligation to exercise strong discretion, by looking outside the law to morality in order to resolve the case at hand.’ At first sight, the distinction drawn by Shapiro between legal reasoning proper and legal decision-making seems to echo Joseph Raz’s distinction between legal reasoning about the law and legal reasoning according to the law (see Raz 1993). The crucial difference, though, is that according to Raz, they are both instances of legal reasoning.
- 19.
Shapiro (2011, 276): ‘The fact that judges routinely rely on moral considerations in such instances simply indicates that they are engaged in further social planning.’
- 20.
On this topic, see especially Endicott (2000).
- 21.
The so-called argument ab absurdo (the interpretive methodology that proscribes the interpreter to reach absurd results) is a paradigmatic case in point. For a nice inventory of even quite routinary cases that involve the exercise of substantive moral judgement by judges, see Waldron (2008).
- 22.
In much the same vein, Hans Kelsen famously argued that law application and law creation are not separate activities, since ‘The higher norm cannot bind in every direction the act by which it is applied. There must always be more or less room for discretion, so that the higher norm in relation to the lower one can only have the character of a frame to be filled by this act’: Kelsen (1967, 349). According to Green (2003), this is ‘a general truth about norms’.
- 23.
- 24.
Shapiro (2011, 359): ‘An interpretive methodology is proper for an interpreter in a given legal system just in case it best furthers the objectives actors are entrusted with advancing, on the supposition that the actors have the competence and character imputed to them by the designers of their system.’
- 25.
See also Shapiro (2011, 177): ‘Shared plans must be determined exclusively by social facts if they are to fulfill their function. As we have seen, shared plans are supposed to guide and coordinate behavior by resolving doubts and disagreements about how to act. If a plan with a particular content exists only when certain moral facts obtain, then it could not resolve doubts and disagreements about the right way of proceeding. For in order to apply it, the participants would have to engage in deliberation or bargaining that would recreate the problem that the plan aimed to solve. The logic of planning requires that plans be ascertainable by a method that does not resurrect the very questions that plans are designed to settle. Only social facts, not moral ones, can serve this function’ (italics in the original).
- 26.
Shapiro (2011, 205–206): ‘When legal systems are designed to achieve certain moral or political goals, it is often possible to recover the goals of a system by a close examination of its master plan. For example, a system that made provisions for voting, representation, elections, and some protection for public deliberation would be one in which democratic self-rule was prized.’
- 27.
Shapiro (2011, 178): ‘To seek to discover the existence or content of such a mechanism [scil. the master plan] by looking to moral philosophy, as the natural lawyer recommends we do, would frustrate the function of the master plan.’
- 28.
Raz (1990, 18): ‘beliefs, though not their content, are also facts’.
- 29.
For an extended argument to this effect, Villa (1997) and Celano (2002, 2005). One could also recall here some remarks made by Joseph Raz (2009, 94) regarding Hart’s theory of the rule of recognition: ‘Attempting to formulate criteria of validity based on complex court practices that are in a constant state of change and that are necessarily vague and almost certainly incomplete, involves not only legal perceptiveness and theoretical skill, it demands sound judgement and reasonable value decisions as well.’
- 30.
Shapiro (2011, 367–368). ‘This theory sets forth various hypotheses concerning the general competence and character of individuals and how particular settings affect their trustworthiness. When a revision of a legal system injects conflicting trust judgements into this “theory”, the meta- interpreter should then engage in minimal revision: she should synthesize judgements of trust by holding the most recent judgements fixed and revising the earlier judgements as little as possible so as to render them consistent.’
- 31.
Rawls (1971, 40 ff).
- 32.
Shapiro (2011, 350).
- 33.
- 34.
Shapiro (2011) devotes considerable attention to the views of the Framers (366, ‘designers of the early American republic’; 371). See also 338, 346, 350, and generally chapter XI.
- 35.
Shapiro (2011, 356): ‘The designers of the present American system include not only the framers and ratifiers of the Constitution of 1787, but the numerous agents who have changed the complexion of the system over the past 200 years. The framers and ratifiers of the Fourteenth Amendment are as much the designers of the current regime as the framers and ratifiers of the original Constitution. Insofar as the meta- interpreter focuses on the current system, the relevant set of planners for meta-interpretation is the current one, namely, those whose planning has not yet been modified or extinguished by subsequent planners.’
- 36.
Shapiro (2011, 178): ‘Plans can do the thinking for us only if we can discover their existence or content without engaging in deliberation on the merits.’ From this, both SLOP and GLOP would follow.
- 37.
Indeterminacy, according to Shapiro, ‘is a feature, not a bug. Perfectly precise rules, even if they could be constructed, would inevitably be arbitrary and likely create havoc. In many instances, it is better to let others fill in the details when they are in a superior position to judge which course of action is best’: Shapiro (2011, 257).
- 38.
Shapiro (2011, 256): ‘In many instances, the best explanation for why lawyers do not know the law is that there is no law to know. They may find, for example, that their case falls within the penumbra of a rule. Or one statute may say one thing, while another statute says another. The uncertainty on how to proceed in these cases, then, will not reflect their ignorance of the law; it concerns their doubts about how the law ought to be developed or how a court will eventually rule’ (emphasis added).
- 39.
According to the Planning Theory, this should be understood as ‘a mandate to engage in further social planning. The pedigree-less norms that they eventually apply are then understood as generating new plans/laws, not the finding of old plans/laws. For if the old plans/laws could only be found through moral reasoning, there would be absolutely no point in having them in the first place’: Shapiro (2011, 276–277, emphasis added).
- 40.
In an obvious and weaker sense, judges are always planners: since a legal norm is a plane and since a judicial ruling is a (individualised) norm, then judges are engaged in individualized planning every time they decide a case.
- 41.
Marbury vs. Madison, 5 US (1 Cranch) 137 (1803).
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Pino, G. (2013). ‘What’s the Plan?’: On Interpretation and Meta-interpretation in Scott Shapiro’s Legality . In: Canale, D., Tuzet, G. (eds) The Planning Theory of Law. Law and Philosophy Library, vol 100. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4593-3_9
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