On the Value of Jurisprudence

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On the Value of Jurisprudence LEGALITY. By Scott J. Shapiro. Cambridge, Massachusetts: The Belknap Press of Harvard University Press, 2011. 472 pages. $39.95.

Introduction

It is a truth universally acknowledged that a legal philosopher in possession of a theory of law must be in want of a point. At least, such is the conventional wisdom on the opinion of mainstream legal academics-the core audience, as it happens, of law reviews like this one. According to this conventional wisdom, analytical jurisprudence is an abstract and abstruse enterprise of little interest to the typical law professor or student. The fun-damental question that analytical jurisprudence seeks to answer-What is law?-has no practical significance, and in any event, legal philosophers' attempts to answer it are incomprehensible. In short, there are better ways for a legal scholar to spend her time than to read a book on analytical jurisprudence.

This Austenian framing of the conventional view is, of course, hyperbole. But like most caricatures, it contains a kernel of truth. As Scott Shapiro wryly observes in his excellent recent book, Legality, "one doesn't need especially acute powers of social observation to be aware that analytical jurisprudence is not everyone's cup of tea."1 Shapiro's book challenges this common sentiment. Shapiro develops an original and ambitious theory of law,2 and does so with a clarity of expression that makes it engaging and accessible to readers not fluent in jurisprudential jargon. Along the way, Shapiro directly addresses the skeptical view of the value of analytical juris-prudence by arguing that the nature of law in general is of crucial importance to determining the content of law in particular cases.3

The central claim of Legality is that law is best understood as an intricate system of plans that allows us to resolve the serious moral problems that arise from communal life in large, complex societies. In the course of presenting and defending this claim, Shapiro positions his theory within the tradition of legal positivism and responds to several prominent critiques from natural law. The result is therefore a guided tour of much of the terrain of Anglophone jurisprudence, with lucid descriptions of theorists including H.L.A. Hart, John Austin, Lon Fuller, and Ronald Dworkin. As such, Shapiro's book provides the jurisprudential rookie with an introduction to both the historical debates and the contemporary disputes in analytical jurisprudence, disputes that have already begun to include the "Planning Theory of Law."

Legality has much to offer jurisprudential veterans as well. For it is not merely an introductory treatise, in either intent or execution. It involves, first and foremost, the development of a sophisticated and comprehensive theory of the nature of law-one that, Shapiro argues, resolves questions that, up until now, legal positivism has found impossible to answer. While, as I argue below, Shapiro's arguments are not always successful, he nonetheless presents a stimulating, evocative, and ambitious theory of law that adds a fresh dimension to the modern jurisprudential discourse.

This Review has several goals. The first goal is to provide readers of the Review with a strong sense of Shapiro's book. This requires not just an exposition of Shapiro's Planning Theory of Law, but also sketching the way Shapiro characterizes the enterprise of analytical jurisprudence, and placing his thesis in the context of other jurisprudential theories and current controversies. One of the strengths of Legality is that it presents an accessible overview of analytical jurisprudence structured around a statement of the central questions of jurisprudence, with the interplay between various theories presented by their differing approaches to answering these questions. My aim is to reflect that attribute of the book in this Review, albeit in signifi-cantly truncated form. This Review, in other words, is intended to provide juris-curious scholars with a useful point of entry into legal philosophy. …