The planning theory and natural law

Duke,G 2015, The planning theory and natural law, Law and philosophy, vol. 34, no. 2, pp. 173-200, doi: 10.1007/s10982-014-9213-x.

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Title The planning theory and natural law
Author(s) Duke,GORCID iD for Duke,G
Journal name Law and philosophy
Volume number 34
Issue number 2
Start page 173
End page 200
Total pages 28
Publisher Springer
Place of publication Berlin, Germany
Publication date 2015
ISSN 0167-5249
Summary The practical, normative dimension of planning is a plausible source of the ‘family resemblances’ noted by a number of legal theorists between Scott Shapiro’s Planning Theory and natural law jurisprudence. Foremost among these resemblances is Shapiro’s contention that the law, necessarily, has a moral aim. The moral aim thesis is at first glance surprising given Shapiro’s intention to defend exclusive legal positivism and unequivocal rejection of what he takes to be the core commitments of natural law theory. Shapiro’s claim, however, is that although the law necessarily has a moral aim, this does not entail that it is successful in satisfying that aim. In order to assess this thesis, it is helpful to compare the Planning Theory with contemporary natural law approaches. Bringing Shapiro’s Planning Theory into dialogue with contemporary natural law theories can demonstrate some of the Planning Theory’s weaknesses as an alternative explanation of the ultimate grounds of the authoritativeness of legal norms. Some of these weaknesses, moreover, are instructive beyond the specific contours of the Planning Theory insofar as they generalise to other legal positivist approaches. In section one I consider Shapiro’s treatment of the so-called ‘Possibility Puzzle’ regarding the grounding relation between authoritative norms and legal authority. Shapiro’s denial of the capacity of earlier jurisprudential theories to resolve this puzzle overlooks what is – I suggest – a plausible solution developed by John Finnis on the basis of Joseph Raz’s theory of practical reason and norms. Section two then demonstrates why Shapiro’s attempt to combine a robust construal of the social facts thesis with a commitment to the thesis that law necessarily has a moral aim is ultimately unsuccessful.
Language eng
DOI 10.1007/s10982-014-9213-x
Field of Research 220204 History and Philosophy of Law and Justice
180122 Legal Theory, Jurisprudence and Legal Interpretation
Socio Economic Objective 0 Not Applicable
HERDC Research category C1 Refereed article in a scholarly journal
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Document type: Journal Article
Collection: School of Humanities and Social Sciences
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