What Can Plans Do for Legal Theory?

Abstract

In his book, Legalidad, Scott Shapiro puts forward what he claims to be “a new, and hopefully better” (better, namely, than the ones given so far) answer to “the overarching question of ‘What is law?’”. The central claim of this new account – the “Planning Thesis” – is that “legal activity is a form of social planning”. “Legal institutions plan for the communities over which they claim authority, both by telling members what they may or may not do and by identifying those who are entitled to affect what others may or may not do. The relevant notion of a plan is the notion moulded, in the philosophy of action, by M. E. Bratman. According to Shapiro, this approach makes substantial progress in legal theory possible. What, then, can (Bratmanian) plans do for legal theory? Does resort to Bratman’s concept of a plan – along the lines followed by Shapiro – in fact provide new and special insight into the nature of law? I argue that the answer is negative.