Shapiro’s theory of law

-Two big problems with Hart’s theory:

-1) It is not clear why the social practices that Hart describes create a social rule – that is, a norm that exists for the participants and gives them a reason for action

-For example, people might generally refrain from hitting their heads with a hammer and criticize those who hit their heads with hammers, not because there is a social rule, but because of the pain and harm that it causes – that is, for generally applicable reasons (reasons not just applicable to the members of the group)

  • One way of putting this problem is: what gives participants in the rule of recognition a reason for conformity?

-2) it is not clear how participants in the rule of recognition can attribute legal obligations to non-participants – for Hart, it sounds as if it is participation that gives rise to social rules and so obligations

  • But private citizens need not participate
  • And yet officials will say they have legal obligations
  • Why?

Shapiro’s planning theory of law solves both of these problems

-Start with the normative force of a plan

-If I make a plan to cook dinner at home, this plan exercise a normative force on me (due to the norms of instrumental reason)

-I have a reason not to reconsider the plan, absent compelling circumstances

-And a reason to create subplans that determine how the plan is to be effectuated (where to shop? At Kroger or Stop n’ Shop?)

-These subplans are nested, in the sense that their creation is in the context of, and is rationally constrained by, the plan.

-Groups can also adopt plans.

-When they do, the norms of instrumental rationality constrain the members of the group in much the same way that they constrain individual adopters of plans

  • Members of the group are rationally constrained to not reconsider their shared plan (absent compelling reasons), to create nested subplans, and so on. In addition, members can be rationally required to cooperate with one another, including by adopting subplans created by other members of the group

-The notion of a group plan stands at the heart of Shapiro’s theory of law.

  • The basis of a legal system — the foundational law — is a master plan adopted by the members of a planning organization.
  • This master plan is intended to overcome the fact that the community of which the planning organization is a part faces numerous and serious moral problems whose solutions are complex, contentious, or arbitrary
  • eg what side to drive on – what is appropriate speed to drive, what is appropriate freedom for sexual behavior
  • Once the master plan is adopted, the norms of instrumental rationality assert a binding force upon the organization’s members. Unless there are compelling reasons for reconsideration, they should act according to the plan. Furthermore, they are rationally obligated to create appropriate subplans and to accept the subplans made by other members. These subplans are the other laws of the legal system.

-How does Shapiro explain why officials have a reason to conform to legal practices?

  • because they adopted a plan (say, the Constitution) and deliberation should stop with the plan unless there are compelling reasons for reconsideration

-How does Shapiro explain how officials can attribute legal obligations to private citizens?

  • They do so from a certain moral perspective (of the legal system) under which the plans have solved the moral problems of the circumstances of legality

problem – what about custom that becomes law – - custom is not a plan

-Shapiro solves this problem by saying that there can be a plan to include “planlike norms” – like customs, which solve the same problems that plans do

-but why can’t the legal system itself be based on custom rather than a plan?

What is the Rule of Recognition (RoR) of the American legal system?

Greenawalt

-RoR: Ultimate criteria of legality

-G draws a distinction between ultimacy and supremacy

-The ultimate criterion need not identify a supreme lawmaker

  • Supreme criterion means that laws identified by it can trump all competing laws

-Eg the ultimate criteria in the RoR might identify state law but the state law can be trumped by constitutional amendments

-The supreme lawmaker is arguably the Art V lawmaker (which makes constitutional amendments)

  • constitutional amendments trump anything else

-What limits are there on Art V lawmaking (besides those spelled out in Art V)

  • questions
  • can amendments change the amending clause?
  • We will discuss this later
  • Can amendments get rid of states (except for rump senate representation?)
  • Or get rid of president?
  • What would answer this question of limits on Art V
  • If limits were violated officials would treat amendment as invalid
  • Problem is that when you have enough officials accepting an amendment(because the constitutional amendment passed) they would not as a practical matter treat it as invalid
  • Example
  • Is it a legal method of amending the constitution that if every current officials agrees to follow the amendment then it is valid
  • Probably not, but if this happened it would not matter that it was illegal because all officials would accept it
  • Not enough to argue that amendment is unrestricted that there is nothing in Art V limiting it, because constitution (including Art V) is not necessarily the foundation of all law
  • Depends upon RoR
  • Which could add to constitution
  • Or subtract from constitution

-Another problem:

  • Amending clause has gaps
  • how long can the process take?
  • can a state rescind a ratification (while the process is going on or even after ratification)?
  • With respect to almost every process for lawmaking, there is a method to settle disagreements about whether the process was satisfied
  • For amendments it appears to be Congress

-Does that mean that X is an amendment if Congress says it is?

  • Makes Congress supreme
  • BUT is that true?
  • Look to official behavior
  • Officials might refuse to assent to a congressional determination that there is an amendment if
  • Congress doesn’t even purport to look to Art V
  • Congress makes obvious misapplication of Art V
  • Plus Congress does not treat itself as having ultimate power – it considers itself bound by Art V

-G emphasizes how the criteria of validity of law can vary given the official making the determination

  • Some officials might look to Congress on the validity of an amendment but Congress would look to Art V processes

What about ultimate but non supreme rules

-Original constitution (not supreme because it can be overridden by an amendment) – why is it law?

-Art VII ratification?

-G says no

  • Reasons?
  • Enactment is a one-time only matter (irrevocable)
  • And article VII ratification was tied to a particular constitution
  • BUT is that enough to conclude that the Const is not valid because it was ratified in accordance with Art VII?
  • G notesthat officials might not have thought that the Const. was really law until larger states ratified, even if Art. VII was satisfied
  • Main reason that G gives for why Art. VII is irrelevant to Const’s validity
  • Officials would not accept a court striking down Const on grounds that Art VII was not satisfied
  • That would mean now Const is law because of acceptance, not Art VII
  • Notice if Greenawalt is right same point would apply to amendments
  • Some older amendments are not law because of Art V, but because of acceptance

Three readings of why the Const. is law according to RoR

(1) All or part of the ultimate rule is the Constitution itself, including the amending clause but excluding the amendments.

(2) All or part of the ultimate rule is: Whatever the Constitution contains that is not itself enacted according to another part of the Constitution is law.

(3) All or part of the ultimate rule is: Whatever has been adopted in accord with the ratification clause is law.

G has already rejected 3

-What is difference between 1 and 2?

-In the first, the rule of recognition contains all of the provisions of the Const

-In the second, it contains a rule “what is in the Const is law”

-Greenawalt thinks that 2 is better

  • officials don’t actually know whole Const
  • Also not a coincidence that everything in the Const is accepted as law
  • The provisions in the Const are accepted because they are part of the Const
  • Green – doesn’t that show that Art. VII is still playing a role?

State law

-States don’t get lawmaking power from the Const

  • Const assumes their power
  • Laws of original states must have independent source in RoR – e.g. through state constitutions

-What about subsequent states?

  • Admitted by Congress according to Art VI
  • Does that mean that for them their law is authorized by the Const?
  • when a territory becomes a state, is federal lawmaking power delegated to the state?

-That would mean that Missouri law (the law of a state created from a federal territory) is essentially different from New Hampshire law (the law of an original colony)

-That sounds weird

  • Is there any way to understand New Hampshire and Missouri law as both having their ultimate source in the same way, that is, in their respective state constitution?

Some results from Greenawalt’s article

1-Different RoR for different officials

2-Officials could have different views about RoR but system does not fall apart

3-Revolutions or changes in RoR appear to be happening all the time (e.g. Const was law originally because of Art VII but is now law because of simple acceptance)

Paradox of Self-Amendment

Authority of highest lawmaker – (the sovereign) – cannot be commanded by the highest lawmaker

-no legal control over its own authority

  • to be sure, sovereign can give his power to another by abdicating or dying, but that is in accordance with a limitation on his power that he did not control
  • the RoR in the system would be something like
  • the king’s word is law unless he dies or abidactes, in which case his son (or an appropriate royal successor)’s word is law

-e.g. when Louis XVI called the Estates General in response to financial crisis

  • the Estates General had power only becauseLouis said it did
  • could withdraw the delegated power
  • he could not give the Est Gen his power irrevocably, because that was not allowed under the RoR authorizing him

-what about when the National Assembly claimed power independently of King?

  • That was a revolution
  • RoR simply changed
  • King acknowledged Nat Assembly’s power but that was simply the acknowledgment of an established legal fact

- so it seems that using your authorized to power to change your authorized power it is impossible – can only be understood as a revolutionary change in legal systems

BUT

- problem of amendment clauses being amended

- Art V authorizes alawmaker

- that would mean it cannot be amendment by that lawmaker

- BUT many amendment provisions (although not Article V itself) have been amended by their own procedures in a way that is taken to be binding

- could say revolution, but no one treats such self-amendment as a revolution

That is the paradox of self-amendment

-Ross’s solution?

-IF amendment clauses can be used to amend themselves, the amendment clauses are not actually the amendment procedures in the legal system

-another authorization in background:

-Obey the authority instituted by [the amendment clause], until this authority itself points out a successor; then obey this authority, until it itself points out a successor; and so on indefinitely

- consider these examples

- I authorize you to make rules for my child in my absence

- you think you are going crazy, so you authorize someone else

- one understanding is that there was a revolution

- your new authorization unrelated to earlier authorizing system I created

- but more plausible to say that your delegation was within my authorization

- When I authorized you, it was implicit that I gave you the power to delegate

-- I could have said – you and only you may make rules for my children, delegation is ineffective (even revocably)

- but I probably didn’t

- whichever I decided you can’t change

- if it is only you who can make rules, without delegation, you cannot take this authority and change it to allow for delegation

- likewise if it is delegable, you cannot take it to make it nondelegable

Thus it remains true that the authorization cannot be changed by the authorized person

If Art V allows for self-amendment, that simply means Art V is not the actual amendment provision in our legal system.