Abstract
Several theories, by focusing on relatively recent accounts of collective intentional activities, claim that legal practice is an instance of collective action. Shapiro’s proposal (which is based on Bratman’s account of collective action) is, perhaps, the more sophisticated one along those lines. This part of the work claims that Shapiro’s account fails. As an account of collective intentional action, his account (and Bratman’s) is unsatisfactory because it is uninformatively circular. Collective action is explained, ultimately, by using the notion of collective action. As an account of legal practice, it fails for the same reasons as Hart and Raz: beliefs among officials that they are under a duty qua officials would be absurd, and disagreement cannot be accommodated because Shapiro requires convergent dispositions and individual actions that are incompatible with disagreement.
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Notes
- 1.
LPPR; Kutz (2001, 460–465); Coleman (2001a, 98).
- 2.
Searle’s example (1990, 401, 403).
- 3.
Recall that whenever I refer to attitudes such as believing/thinking/conceiving/regarding etc, I mean actual or counterfactual attitudes.
- 4.
The example is Gilbert’s, but my treatment of it is somewhat different. Cf. LT 178–184.
- 5.
Thus, I shall not focus on a huge variety of problems that lurk behind the notions of intention and action such as: the difference between intending, willing, endeavouring and trying; the distinction between intentional action, acting with an intention, and intending; the problem of deviant causal chains and side-effects; the difference between “present-directed intentions” and “future-directed intentions”; the problem of whether intentions are reasons or causes; the distinction between conditional intentions and standing intentions; the difference among action, results, events and omissions.
- 6.
So an action in this sense might be intentional under one description but not under others.
- 7.
Bratman (1987, 4–18 ff). Since intending to A is being disposed to A in the way described, to establish when somebody intends to A a counterfactual test is normally needed.
- 8.
FI 93–161.
- 9.
FI 96–97, 114, 147.
- 10.
FI 147.
- 11.
FI 98.
- 12.
FI 99.
- 13.
FI 99.
- 14.
FI 99.
- 15.
FI 100.
- 16.
FI 100, 118–119.
- 17.
FI 102. Bratman claims that he is treating the idea of common knowledge as an un-analyzed notion (FI 102, 117). That is, I submit, he is treating it as a notion which might give rise to theoretical problems that he means to set aside. Whenever I refer to common knowledge I shall also treat the notion in that way.
- 18.
FI 121–122.
- 19.
FI 106.
- 20.
LPPR 412.
- 21.
LPPR 412.
- 22.
LPPR 412.
- 23.
C 81–82.
- 24.
LPPR 412–413.
- 25.
FI 106–107.
- 26.
These conclusions apply to Bratman’s model too, for clause (4) of his model is almost identical to Shapiro’s.
- 27.
These criticisms apply, a fortiori, to Bratman’s account, for clause (3) of his model requires common knowledge, which is a more stringent requirement. In fact, Bratman acknowledges in a footnote (FI 143) that an appeal to common knowledge might be too strong.
- 28.
The same applies, of course, to clause (2) of Bratman’s model.
- 29.
FI 115.
- 30.
Bratman states that he wishes not to argue why he rejects such a reading. Perhaps he disavows this reading because, if “our J-ing” were something I want and not something I intend, then the roles played by shared intentions would not be fulfilled. When I intend to do A, we noticed, I am committed to A-ing. When I want A to occur, this commitment need not take place (1987, 15–16). I may want A to occur and let the world do the job. Similarly for shared intentions. If our J-ing were the object of our shared intention, each should be committed to doing what is necessary for the group to J. By contrast, if our J-ing were something each of us wanted only, these commitments would not take place necessarily. So perhaps this is why Bratman rejects the reading. Be that as it may, the point is that we have, so far, no positive characterization of what “we J” amounts to.
- 31.
FI 96, 99, 145, 159.
- 32.
FI 116.
- 33.
FI 126.
- 34.
FI 130–141.
- 35.
LPPR 418–419.
- 36.
LPPR 419.
- 37.
LPPR 419.
- 38.
LPPR 420.
- 39.
LPPR 420–421. This is the point at which, as anticipated, Shapiro concedes that it is not necessary, for there to be an instance of legal practice, that there be authoritative relations among participants.
- 40.
LPPR 434.
- 41.
LPPR 434–435. Shapiro claims as well that officials would also adopt “rules of change”. I put this element aside because it is irrelevant for understanding Shapiro’s view about legal practice as understood here, i.e. as the practice of norm-applying officials.
- 42.
LPPR 437.
- 43.
Cf FI 96.
- 44.
LPPR 427.
- 45.
LPPR 435.
- 46.
On the other hand, if we appealed to the idea of a rule of adjudication to see who are officials according to Shapiro (that is, if we appealed to Shapiro’s idea of there being a plan adopted by participants, for prudential reasons of the sort considered, picking out those individuals who have the jurisdiction – I submit, the power – to determine whether the rules that satisfy the criteria have been followed), it is clear that similar considerations would apply. Besides, officials could not conceive of themselves as under a duty qua officials for independent reasons. The construal “as an individual who, together with others, has adopted a plan according to which I have power to decide that p, I have a duty to decide that p” is senseless.
References
Kutz, Christopher. “The Judicial Community.” Philosophical Issues 11 (2001): 442
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Sánchez Brigido, R.E. (2010). Collective Intentional Activities: Shapiro’s Model. In: Groups, Rules and Legal Practice. Law and Philosophy Library, vol 89. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-8770-6_4
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