The unplanned nature of law : a critical approach to Shapiro's legal theory

Scott Shapiro's Planning Theory of Law represents the most sophisticated attempt to understand the nature of law through the lens of shared action. This is not only an ambitious project, but an important one in encouraging the development of research at the intersection of legal philosophy and social ontology. It does this by shifting the methodological focus of traditional analytic jurisprudence from investigating the nature of legal norms to the groups and shared activities that create them. To support this endeavour, this thesis presents a thorough, comprehensive analysis and critique of Shapiro's legal theory in order to identify both its flaws and virtues. It does so by elucidating and examining its three main claims: (1)the group claim: legal organisations are social planning organisations; (2) the activity claim: legal activity is social planning activity; and (3) the norm claim: legal rules are plans and plan-like norms. The thesis begins by unpacking the group claim. Partly due to a methodological inconsistency, it argues that Shapiro does not provide a sufficient account of legal organisations. To help with this task, some recent contributions on the ontology of groups are explored as well as Brian Epstein's metaphysical framework for analysing the nature of groups. While the thesis concludes that legal organisations are not social planning organisations, it suggests that the beginnings of an alternative account can be provided by utilising Epstein's framework. Next, the thesis examines the activity claim which is central to Shapiro's view and explores two main questions which arise from it: (a) What makes legal activity social planning activity? and (b) How do legal organisations carry out legal activity? The thesis considers Shapiro's answers to these questions and presents some challenges to each. Although the activity claim will ultimately be rejected, the thesis briefly suggests an alternative way to answer the second question - rather than relying on Michael Bratman's theory of shared agency to explain how legal organisations perform legal activities, a more promising option is provided by Raimo Tuomela's account of group action. Lastly, the thesis assesses the norm claim by considering Shapiro's analysis of the nature and normativity of plans. It argues that this claim fails for two reasons. First, that legal rules cannot be characterised as different types of plans, and second, that plan rationality cannot explain the normative force of law, despite Shapiro's best attempt to show that it can. The chapter ends by exploring, and ultimately rejecting, the possibility for Shapiro to hold on to a weaker version of his norm claim. While this thesis argues that none of the Planning Theory's main claims survive scrutiny, it nonetheless highlights the significance of Shapiro's project in laying the foundations for a more constructive dialogue between legal philosophers and social ontologists. It contributes towards this goal by calling for a fresh start that moves away from the deadlocked HartDworkin debate of traditional analytic jurisprudence in identifying new lines of enquiry in social ontology that can help us to understand law's institutional nature.