Get 20M+ Full-Text Papers For Less Than $1.50/day. Start a 14-Day Trial for You or Your Team.

Learn More →

The Planning Theory of LawWhat Is Wrong with Legal Realism?

The Planning Theory of Law: What Is Wrong with Legal Realism? [Shapiro’s book Legality engages in a difficult and exciting philosophical task: giving an account of what law is and of why it is worth having. His “planning theory of law” addresses the first issue in terms of the so-called social facts thesis and the second in terms of the “moral aim” thesis: law is determined by social facts alone, but it has a moral point, for the aim of legal activity is to remedy some moral deficiencies. Twentieth-century jurisprudential schools divided on such topics: natural law theory was mainly concerned with the value of law and its moral dimension, whereas legal positivism and legal realism were mainly interested in its factual features. Shapiro tries to give a unified picture of it and rejects the realist view because it leaves out of the picture the internal point of view. On this issue, Shapiro follows Hart’s critique of the realist view, but this chapter tries to show that the Hartian picture of legal realism was very simplified, not very charitable and misleading in some respects. One of the misunderstandings is the following: many realist claims were claims about legal knowledge, but they were taken by Hart, and are taken by Shapiro, as claims about legal normativity. In particular, the bad man character does not help us understand whether we ought to comply with legal obligations; it helps us to get knowledge about the law.] http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png

The Planning Theory of LawWhat Is Wrong with Legal Realism?

Part of the Law and Philosophy Library Book Series (volume 100)
Editors: Canale, Damiano; Tuzet, Giovanni
Tuzet, Giovanni
The Planning Theory of Law — Jul 11, 2012
Download PDF
16 pages

Loading next page...
 
/lp/springer-journals/the-planning-theory-of-law-what-is-wrong-with-legal-realism-kYljTvkYZh
Publisher
Springer Netherlands
Copyright
© Springer Science+Business Media Dordrecht 2013
ISBN
978-94-007-4592-6
Pages
47 –63
DOI
10.1007/978-94-007-4593-3_3
Publisher site
See Chapter on Publisher Site

Abstract

[Shapiro’s book Legality engages in a difficult and exciting philosophical task: giving an account of what law is and of why it is worth having. His “planning theory of law” addresses the first issue in terms of the so-called social facts thesis and the second in terms of the “moral aim” thesis: law is determined by social facts alone, but it has a moral point, for the aim of legal activity is to remedy some moral deficiencies. Twentieth-century jurisprudential schools divided on such topics: natural law theory was mainly concerned with the value of law and its moral dimension, whereas legal positivism and legal realism were mainly interested in its factual features. Shapiro tries to give a unified picture of it and rejects the realist view because it leaves out of the picture the internal point of view. On this issue, Shapiro follows Hart’s critique of the realist view, but this chapter tries to show that the Hartian picture of legal realism was very simplified, not very charitable and misleading in some respects. One of the misunderstandings is the following: many realist claims were claims about legal knowledge, but they were taken by Hart, and are taken by Shapiro, as claims about legal normativity. In particular, the bad man character does not help us understand whether we ought to comply with legal obligations; it helps us to get knowledge about the law.]

Published: Jul 11, 2012

Keywords: Legal Rule; Internal Point; Planning Theory; Legal Knowledge; Legal Positivism

There are no references for this article.