Abstract
In this chapter, I shall argue that Scott Shapiro’s Legality suffers from some major problems: (a) It overlooks the point of classical legal positivism (to wit, the positivism of Bentham, Austin, Kelsen, Hart, Bobbio); (b) it endorses a spurious form of positivism; (c) it takes an indulgent attitude towards exclusive legal positivism; and (d) it sets forth a surprising solution to the possibility puzzle concerning legal authority. Because of this, I am highly sceptical about the alleged improvement of contemporary jurisprudence fostered by Legality.
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Notes
- 1.
All the references in the text are from S. Shapiro, Legality, Cambridge and London: Harvard University Press, 2011.
- 2.
H. L. A. Hart exemplifies the analyst’s very prudent attitude on the point. On this aspect of Hart’s approach, see, e.g. P. Chiassoni, The Simple and Sweet Virtues of Analysis. A Plea for Hart’s Metaphilosophy of Law, in “Problema”, 5, 2011, pp. 53–80, at pp. 66–67.
- 3.
In his 1797 Metaphysische Anfangsgründe der Rechtslehre (it. trans. Primi princìpi della dottrina del diritto, Roma-Bari, Laterza, 2005), Kant provides a clear case of a platitudes-distruster: Platitudes are distrusted just because they are (pretended) pieces of empirical, a posteriori, knowledge about law.
- 4.
Socrates’s method of critical examination and refutation provides perhaps the oldest example of such an analytical attitude towards platitudes.
- 5.
Hans Kelsen, Karl N. Llewellyn, Hart, and Norberto Bobbio, to mention only a few, all seem to partake this attitude in their works.
- 6.
See also Shapiro (2011), 274: “Both the exclusive and inclusive legal positivist […] agree that judges are bound to apply moral norms when the pedigree standards have run out. They just disagree about how to describe what they are doing: for the inclusive legal positivist, judges are applying legal norms; for the exclusive legal positivist, they are creating legal norms”.
- 7.
In the passage I considered before (see the quotation in the text corresponding to footnote 6 above), Shapiro talks of “American” judges. I assume he did so by way of example. Otherwise, his theory would become a piece of local jurisprudence and, as such, could hardly be considered a non-interpretive, non-normative theory.
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Chiassoni, P. (2013). Ruling Platitudes, Old Metaphysics, and a Few Misunderstandings About Legal Positivism. 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_7
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