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The Planning Theory of LawThe Possibility Puzzle and Legal Positivism

The Planning Theory of Law: The Possibility Puzzle and Legal Positivism [The aim of this chapter is to discuss a paradox concerning the law, which Shapiro analyzes in his book Legality. According to Shapiro, it is puzzling how the law could have been invented: attempts to explain the origins of law face a paradox, which Shapiro labels possibility puzzle (PP). Briefly, the problem is that in order to get legal power, one must already have legal power. According to Shapiro, the legal positivist solutions to the PP are not homogeneous. Shapiro examines two of these solutions, Austin’s solution and Hart’s one, and he argues that they are both unsatisfactory. In fact, Shapiro stresses that whatever solution to the PP must be compatible with a theory dealing with problematic issues such as the methodology of legal theory, the logical status of normative statements, the judicial duty to apply the law and the relation between moral and legal duties. But, according to Shapiro, neither Hart’s solution nor Austin’s one solves satisfactorily these underlying problems. In this chapter I will sustain, firstly, that once we adopt a legal positivist point of view, the PP vanishes or, better, it turns into a not paradoxical question; secondly, that all the legal positivists (including Hart and Austin) give the same answer to that question, and this is because that answer stems from (is implicit in) the very concept of legal positivism; finally, that the underlying problems (previously mentioned) had already been solved by a legal positivist theory. With regard to the last point, I will try to vindicate Hart’s theory against Shapiro’s criticisms, although I will acknowledge that some corrections must be made.] http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png

The Planning Theory of LawThe Possibility Puzzle and Legal Positivism

Part of the Law and Philosophy Library Book Series (volume 100)
Editors: Canale, Damiano; Tuzet, Giovanni
Poggi, Francesca
The Planning Theory of Law — Jul 11, 2012
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Publisher
Springer Netherlands
Copyright
© Springer Science+Business Media Dordrecht 2013
ISBN
978-94-007-4592-6
Pages
27 –46
DOI
10.1007/978-94-007-4593-3_2
Publisher site
See Chapter on Publisher Site

Abstract

[The aim of this chapter is to discuss a paradox concerning the law, which Shapiro analyzes in his book Legality. According to Shapiro, it is puzzling how the law could have been invented: attempts to explain the origins of law face a paradox, which Shapiro labels possibility puzzle (PP). Briefly, the problem is that in order to get legal power, one must already have legal power. According to Shapiro, the legal positivist solutions to the PP are not homogeneous. Shapiro examines two of these solutions, Austin’s solution and Hart’s one, and he argues that they are both unsatisfactory. In fact, Shapiro stresses that whatever solution to the PP must be compatible with a theory dealing with problematic issues such as the methodology of legal theory, the logical status of normative statements, the judicial duty to apply the law and the relation between moral and legal duties. But, according to Shapiro, neither Hart’s solution nor Austin’s one solves satisfactorily these underlying problems. In this chapter I will sustain, firstly, that once we adopt a legal positivist point of view, the PP vanishes or, better, it turns into a not paradoxical question; secondly, that all the legal positivists (including Hart and Austin) give the same answer to that question, and this is because that answer stems from (is implicit in) the very concept of legal positivism; finally, that the underlying problems (previously mentioned) had already been solved by a legal positivist theory. With regard to the last point, I will try to vindicate Hart’s theory against Shapiro’s criticisms, although I will acknowledge that some corrections must be made.]

Published: Jul 11, 2012

Keywords: Legal System; Legal Rule; Master Plan; Legal Norm; Internal Point

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