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Legality, by Scott J. Shapiro
Ebook Legality, by Scott J. Shapiro
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Legality is a profound work in analytical jurisprudence, the branch of legal philosophy which deals with metaphysical questions about the law. In the twentieth century, there have been two major approaches to the nature of law. The first and most prominent is legal positivism, which draws a sharp distinction between law as it is and law as it might be or ought to be. The second are theories that view law as embedded in a moral framework. Scott Shapiro is a positivist, but one who tries to bridge the differences between the two approaches. In Legality, he shows how law can be thought of as a set of plans to achieve complex human goals. His new “planning” theory of law is a way to solve the “possibility problem”, which is the problem of how law can be authoritative without referring to higher laws.
- Sales Rank: #639561 in eBooks
- Published on: 2011-01-03
- Released on: 2011-01-03
- Format: Kindle eBook
Review
I feel confident that "Legality" is one of the very best boks in general jurisprudence in many, many years...I suspect that "Legality" will become a standard work for students of law and philosophy...Everyone who engages in the academic study of law should read "Legality"--it is that important.--Lawrence B. Solum"Legal Theory blog" (12/11/2010)
Shapiro has produced a work of enduring significance.--Frederick Schauer"Yale Law Journal" (12/01/2010)
This book is throughout a very fine contribution to jurisprudence--imaginative, incisive, fair to interlocutors, and written with elegance and wit...It is essential reading for philosophers of law.--Mark C. Murphy"Law and Philosophy" (05/01/2011)
Rich and vibrant with jurisprudential ambition...There are lots of riches in Scott Shapiro's book...I have not been able to convey how well this book is written or how much light the author is able to shed along the way on various issues in the philosophy of law...It shows that the idea of planning can indeed cast light on the problems of jurisprudence without necessarily blinding us to other analogies and other sources of insight.--Jeremy Waldron"Michigan Law Review" (04/01/2011)
This book is...imaginative, incisive, fair to interlocutors, and written with elegance and wit...It is essential reading for philosophers of law.--Mark C. Murphy"Law and Philosophy" (05/01/2011)
["Legality"] is a sympathetic, accessible, and highly readable exposition of the theories that have preceded it. It is now one of the best single-authored introductions to the subject. It is also a significant contribution. Moreover, it is an apologia for the subject itself, and for the method of conceptual analysis as a way of uncovering the nature and grounds of law...Both as a defense and example of analytic jurisprudence...this book is unrivalled.--William A. Edmundson"Jurisprudence" (06/01/2011)
Scott Shapiro's "Legality" is a rich and ambitious discussion of law's fundamental nature. Almost every page is provocative, touching upon many of the most interesting, complicated and controversial areas within this area of inquiry.--Stefan Sciaraffa"Oxford Journal of Legal Studies" (09/01/2011)
It cannot be doubted that Shapiro's book, which clarifies and advances analytical jurisprudence, is bound to be a classic text.--Ekow Yankah"Jotwell" (09/12/2011)
"Legality" makes a contribution to the field that no student of jurisprudence can ignore.--Judith Baer"Political Science Quarterly" (12/01/2011)
About the Author
Scott J. Shapiro is Charles F. Southmayd Professor of Law and Professor of Philosophy at Yale Law School.
Most helpful customer reviews
36 of 37 people found the following review helpful.
This is a great book!
By J. Fh
INTRODUCTION
This book defends a very sophisticated view of positivism. First of all, it is remarkable how comprehensive, loyal and clear the book is while stating the arguments of authors that are against positivism. For instance, Shapiro dedicates a very good part of the book criticizing Ronald Dworkin for his very closed and strict sense of morality.
SHAPIRO'S MAIN THESIS
Shapiro's main thesis is that laws are plans and they are designed to make sure people can plan safely the outcomes of their actions. They are not derived from some metaphysical source of rights, they are created in an intersubjetive way, which makes them at a large extent contingent. Therefore, it is vital that law remains predictable and established in advance.
LAW AND MORALITY
Shapiro says most positivists were wrong when defending that laws have nothing to do with morality. Of course they do, he says, because as plans they aim at several goals, some of them are economic (promoting welfare, for example), but many of them are, in fact, moral (like preserving fairness).
That doesn't mean that morality is something given a priori, something away from us that falls over our heads. Moreover, this conclusion of his makes laws in general defeasible, but not in order to cope with some ideal vision of morality, based on what judge Hercules thinks (like Dworkin wants), but because laws are defeasible in their own terms. Since they are plans, they were made to be applied in certain circunstances, which means they shouldn't be enforced come what may, like some hardcore positivists want.
LEGISLATING IS PLANNING
The law must be enacted in a democratic environment, so that people can decide as a community, in which everyone's vote has equal measure.
This is the intrinsic worth of legality (from which comes the title of the book), namely, that we all sit down and talk and plan something ahead of time, so that judges can apply it according to what was previously decided, and not according to whatever comes into their minds at a given time. That is the rule of law, which is in itself a requirement of fairness, because it lets all of the subjects involved take part in the discussion and figure out what rules they want to regulate their lives. Democracy is not the government of men, but of the law, passed by the people. This is crucial.
GOOD QUOTES
Furthermore, I should take notice of the fact that Shapiro quotes some passages of paramount importance and that he clearly explains the arguments of most of the philosophers of law of our time, without assuming prior knowledge from the reader. He quotes some passages of paramount importance from, for example, Hans Kelsen, H.L.A. Hart, Jeremy Waldron, Lon Fuller, Ronald Dworkin, Richard Posner, Justice Scalia, Hendrik Hertzberg, etc. The list is long and Shapiro comments on them very well.
For all of this, he deserves, in my view, a lot of credit.
CONCLUSION
It is well-thought, extremely readable (good for both advanced readers and beginners), and makes some remarkable points about philosophy of law, originalism, rule of law, Supreme Court, Pragmatic Adjudication, Democracy, etc.
It is totally worth reading. I highly recommend this book and believe it will become a classic in the years to come (or it least it should, as long as people appreciate what is good).
I sincerely hope my review was of some aid. Please don't forget to vote in case this review was helpful to you.
0 of 1 people found the following review helpful.
Five Stars
By mike
Thankyou!!
0 of 1 people found the following review helpful.
Five Stars
By Amazon Customer
Very powerful book and insightful
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