Beyond Plans and Practices: Law as Collective Intentional Institution of Authority

Legal positivists, such as H.L.A. Hart, assume that the existence of legal norms is a matter of social facts. Legal facts, in other words, have an exclusively social ontology. However, classical positivist accounts assume that the relevant social fact is a practice that is defined by only individual attitudes towards the law. They are therefore unable to explain how such a practice can give agents a reason to orient their behaviour towards the law. In order to solve this problem, recent positivist accounts have turned to theories of collective intentionality to explain the nature of legal practice. Using Scott Shapiro's “planning theory of law” as an example, I will argue that such attempts must fail as long as they understand collective intentionality to be established by a structure of interlocking participatory intentions. Using arguments from Margaret Gilbert, it can be shown that legal practices involve a stronger form of joint commitment. However, in order to not require an implausibly strong agreement of legal participants about the grounds of law, Gilbert's account must be modified to successfully describe existing legal practices. I will argue that a model that conceives of joint commitments as defeasible, context-dependent descriptions of authority is best suited as a foundation for a model of legal positivism.

Transcript

1. Beyond Plans and Practices: Law as Collective Intentional Institution of Authority Titus Stahl CollInt VIII, Manchester, 29 August 2012
2. Collective Intentionality and the law • Theories of collective intentionality have been taken up by legal scholars in recent years. • This has happened in the context of positivist theories of law.
3. Legal positivism Core claim of legal positivism: Law has an exclusively social ontology. But what ontology?
4. Structure of the paper 1. Problems of legal positivism: H.L.A. Hart 2. A collective intentionality theory of law I: Scott Shapiro’s planning theory 3. A collective intentionality theory of law II: Margaret Gilbert’s joint commitment theory 4. A new proposal
5. Hart’s positivism H.L.A. Hart: • Law is a matter of rules • Legal rules possess legal authority in virtue of a basic rule that authorises them: “Rule of Recognition”. • The Rule of Recognition exists in virtue of there being a social practice of legal officials as part of which it is accepted.
6. What’s a social practice? Two elements of a social practice: 1. general conformity to the pattern 2. “internal point of view”: • acceptance of pattern as standard for guiding behaviour • acceptance of pattern as standard for criticizing others • acceptance of pattern as standard for accepting criticism
7. Hart’s positivism HSF The basic social fact that constitutes law is that there is a social practice (general conformity; internal point of view) among officials in which they apply and accept a basic rule as the standard of what is to count as valid law.
8. The problem with Hart Hart’s conception of a social practice is unable to explain the point of having legal rules.
9. The problem with Hart The point of having law is given by its role in judicial reasoning: The fact that some rule is legally valid should make a practical difference for judges (and other officials).
10. The problem with Hart • Legal rules make only a difference if they constitute reasons for agents. • If moral (or other non-legal) reasons would always decide how and whether to apply the law, the fact of legal validity of a rule would make no difference. • Law makes only a difference if the legality of actions constitutes, in itself, a reason for officials.
11. The problem with Hart If law provides reasons and law is a social fact, then positivism must give us an account of how certain social facts can constitute an independent source of reasons.
12. The problem with Hart First problem: Why should the fact of a rule being socially practiced constitute a reason? Neither the convergence of our behaviour, nor the convergence of our attitudes towards some rule provides, in normal cases, a practical reason.
13. The problem with Hart Second problem: How does the existence of a social practice justify participants to hold each other accountable? Neither the convergence of our behaviour, nor the convergence of our attitudes towards some rule gives me any special standing to criticise you, nor does it give you any special reason to accept being held accountable.
14. A better idea Might the reason- (or even obligation-)generating nature of the social practice which is the foundation of law better be explained on a model that understands legal practice as a joint intentional activity of legal officials? • Scott Shapiro • Margaret Gilbert
15. Shapiro’s planning theory Scott Shapiro’s Planning Theory.
16. Shapiro’s planning theory Shapiro’s theory builds on Michael Bratman’s theory of Joint Intentional Activities (JIAs): JIA For a cooperatively neutral J, our J-ing is a JIA only if 1. I intend that we J. 2. You intend that we J. 3. I intend that we J in accordance with and because of meshing subplans of (1) and (2). 4. You intend that we J in accordance with and because of meshing subplans of (1) and (2). 5. It is common knowledge between us that (1-4).
17. Planning Most JIAs involve persons jointly adopting plans in order to relieve them from permanently coordinating their cooperation (“I pour, you stir”).
18. Authority Authority: A has authority over B if both A and B intend the directives of A to be reasons for B to adopt these directives as their subplans and to revise their subplans such that they mesh with these directives. (Definition: see handout)
19. Planning for authority We might plan to adopt an authority structure such to make further planning easier: We might authorise a class of participants to plan for others. If we do so, then the pronouncements of the relevant authorities give us reasons to adapt our subplans to their directives.
20. Legal practice as JIAA Shapiro: “Legal practice is always a Joint Intentional Activity involving Authority (JIAA)” Joint Intentional Action involving Authority (JIAA) For a cooperatively neutral J and a group G, the J-ing of G is a JIAA if and only if 1. The J-ing of G is a JIA. 2. Some participant has authority over another participant in J.
21. Legal practice as JIAA Legal Practice is a JIAA where the shared intention is to create and maintain a system of rules that has the properties of a legal system.
22. JIAA and obligation Shared cooperative activity (SCA) A SCA is a JIA in which the relevant intentions are minimally cooperatively stable. In the case of authority structures this means that the participants must be prepared to compensate for each other’s action deficits.
23. JIAA and obligation Legal practice always needs to “hold itself out” not only as JIAA but as a shared cooperative activity.
24. JIAA and obligation the use of normative language bespeaks a commitment to mutual compensation . . . the use of terms such as “obligation” would imply an endorsement of their fellow participants’ success1 1Shapiro (2002): Laws, Plans, and Practical Reason, p. 431
25. Shapiro’s social fact SSF The basic fact which constitutes law is that there is a social practice in which 1. most participants intend to contribute to the creation and maintenance of a legal system by way of meshing subplans with others, 2. most participants intend the directives of certain other participants to be reasons to revise their subplans, 3. most participants intend to compensate for actions deficits due to their endorsement of their fellow participants’ success, 4. most participants intend to do so by following a plan for regulating the setup of the relevant authority structure.
26. The problem with Shapiro’s solution Can Shapiro’s theory solve the two original problems? 1. It must explain how the existence of a legal practice can constitute a practical reason to conform to legal rules. 2. It must explain how the existence of a legal practice can create the standing of participants towards each other necessary to justify mutual criticism.
27. The problem with Shapiro’s solution ad 1: Shapiro can explain the reason-giving nature of legal practices by referring to the role of plans within our practical rationality. Whenever I accept a plan, my having accepted it provides me subsequently with reasons.
28. The problem with Shapiro’s solution ad 2: Shapiro cannot explain, however, how my personal acceptance of a plan puts me under any kind of obligation towards other participants. Without an obligation towards them, I do not have any reason to accept being held accountable in any special manner.
29. The problem with Shapiro’s solution Conclusion: Shapiro can only partially explain authority of law.
30. Gilbert’s account Gilbert’s critique of Hart: In order for acceptance of rule as standard of criticism to be justified, social rule must give members of social groups a certain authority.
31. Gilbert’s critique of Hart I The existence of a social rule in a group, in and of itself, gives group members a title to exert punitive pressure on one another for conformity to the relevant pattern, in the appropriate circumstances. It does this by virtue of grounding a claim for each group member on every other group member for conformity.2 2Gilbert (1999): Social Rules, p. 151
32. Gilbert’s critique of Hart II The fact that I individually regard this pattern as a standard for all members of a certain group, including myself, does not seem to give me any special title to exert pressure in favor of performance.3 3Gilbert (1999): Social Rules, p. 156
33. Solution Gilbert’s solution: joint commitment There is a social rule if and only if the members of some population P jointly accept a requirement of the following form: members of P are to do A in C.4 4Gilbert (1999): Social Rules, p. 163
34. Gilbert’s social fact GSF The basic fact which constitutes law is that there is an ultimate rule of recognition which makes other rules into law due to the fact that the legal officials in a system are jointly committed to applying it in the way necessary to create a legal system.
35. A dilemma for Gilbert’s account of legal practice Joint commitments are distinct from personal commitments. They are commitments of the group / a plural subject.
36. A dilemma for Gilbert’s account of legal practice But why can individual members then be held accountable for the commitments of the group?
37. A dilemma for Gilbert’s account of legal practice The dilemma: First option: Joint commitments generate commitments for individuals in virtue of the individuals having a personal commitment to being a part of the joint commitment. Then Gilbert’s account would have the same problems as the planning theory in regard to authority of criticism.
38. A dilemma for Gilbert’s account of legal practice Second option: Joint commitment is not the result of an independent intention or plan. A commitment to the group itself, which is constitutive for the joint plan itself, just consists in the attribution of authority to others which is distinctive of joint commitments.
39. A dilemma for Gilbert’s account of legal practice But then the account seems to presuppose an individual commitment to community which does not accurately describe legal practices.
40. A dilemma for Gilbert’s account of legal practice Either we understand the individual basis of the authority of the joint commitment involved in legal practice to rest upon individual member commitments to some joint plan, then we are back at the planning theory; or we understand it as plan-independent individual commitment to a community with others; then we lose track of the non-conventionalist features of legal practice.
41. The solution A third option: Joint commitment to law not based on an absolute commitment to community, but on a plan-independent and yet circumscribed and defeasible authority of others in the context of the interpretation of some rule (“recognition”).
42. Recognition account Legal practice holds itself out to have the following features: 1. Usually no antecedent, complete, spelled-out agreement about the basic rules 2. Minimal conditions for judgements about their content to fulfil to count as reasons 3. Judgements of other can be (but need not) rejected if there are socially recognised reasons for doing so 4. But if no reasons for rejecting a judgement about content of the rule, it must be accepted (defeasible authority) This amounts to a recognition-based, plan-independent, non-arbitrary collective intention to follow a rule together.
43. Recognition account RSF: The basic fact which constitutes law is that there is social practice of the Hartian type which involves, for each participant, the attitude of ascribing all other participants a defeasible standard authority concerning the activity of legal judgement.
44. Recognition account 1. Can explain authority of criticism 2. Can explain non-conventional nature of law 3. In contrast to Shapiro: Authority not derived from participatory intention 4. In comparison to Gilbert: Explains relationship between individual and collective commitment
45. Recognition account Legal reasons exist in virtue of a joint commitment to the continuation of a distinctively legal practice itself.