Shapiro on legal positivism and jointly intentional activity

Legal Theory

Volumn 8, Issue 4, 2002, Pages 511-517

  Bratman, Michael E ^a  

^a STANFORD UNIVERSITY   (United States)

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EID: 85008156460     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325202084057h     Document Type: Article

References (16)

1. This is a revised version of my response to Scott Shapiro's Law, Plans, and Practical Reason address at the Yale Workshop on Participation and Commitment in Law, Politics, and Morality (October, 2001). Parenthetical page references are to Shapiro's paper on p. 387 in this issue.
2. Shapiro is not alone in taking some such tack. Both Jules Coleman and Christopher Kutz, in part under Shapiro's influence, have also pursued related ideas. Coleman, THE PRACTICE OF PRINCIPLE (Oxford, 2001), see lecture 7; Kutz, The Judicial Community, 11 PHILOSOPHICAL ISSUES 442-469 (2001). Coleman appeals to a strong form of shared activity, namely shared cooperative activity; Kutz appeals to a rather weak form of collective activity. The jointly intentional activity to which Shapiro appeals is in a middle ground here.
3. Compare Coleman, Shapiro is not alone in taking some such tack. note 2, at 97.
4. The basic idea, then, is that the relevant shared activity is a JIA; we then argue that, given the characteristic formal goal of this JIA, it will become a JIAA.
5. Shapiro, The basic idea, then, is that the relevant shared activity is a JIA; note 1, at 436. In a footnote Shapiro indicates that his second clause follows Hart's remark that “a rule is conventional when ‘general conformity by a group constitutes part of the reason why its individuals accept it’” (p. 436 n 60).
6. See essays 5-8 in my FACES OF INTENTION: SELECTED ESSAYS ON INTENTION AND AGENCY (New York, 1999).
7. For the idea of a framework reason, see my INTENTION, PLANS, AND PRACTICAL REASON 28-35 (Cambridge, 1987; reissued CSLI Publications, 1999); see also my Shared Valuing and Frameworks for Practical Reasoning, in REASON AND VALUE: THEMES FROM THE MORAL PHILOSOPHY OF JOSEPH RAZ (Philip Pettit, Samuel Scheffler, Michael Smith, and R. Jay Wallace, eds., forthcoming).
8. Shapiro, INTENTION, PLANS, AND PRACTICAL REASON note 1, at 33. Vertical interlock, so explained, may not be asymmetric; it seems possible for me to have authority over you, and you to have authority over me, in the sense explained. This is contrary to the spirit of some things Shapiro says; but perhaps it is not a problem.
9. It is not clear to me exactly how Shapiro wants us in general to characterize the group G, given that it can include members without the relevant intentions. In the case of a legal system, however, I take it the relevant G will be the group of legal officials, understood in a way that does not assume that they will all have the cited intentions.
10. Kutz, COMPLICITY: ETHICS AND LAW FOR A COLLECTIVE AGE 102 (New York, 2000). Kutz says that “many cases of collective action involve contexts where agents are alienated from the end to which they contribute… they involve individuals who see themselves as acting in concert, contributing to a collective end though they disavow that end.”
11. Though Shapiro does not say this explicitly, I assume we should also add that P1 knows that he himself occupies role A and intends that the directives of others in this role also be such reasons for occupants of S; and P2 knows that he himself occupies S and intends that the relevant directives be reasons for himself in part because he occupies S.
12. Shapiro does not think, however, that the relevant shared activities will always be shared cooperative activities (SCAs), in a sense of SCA that is close to one I have discussed and that Coleman has tried to exploit. See Coleman, Though Shapiro does not say this explicitly note 2, at 96-101. This is because the JIAAs essential to a legal system may fail to satisfy relevant conditions of cooperative stability and noncoercion. Nevertheless, Shapiro thinks that a certain pretense on the part of the legal officials is unavoidable, namely that they are engaged in a shared cooperative activity with authority (SCAA). This is because these officials must “act as though they have the requisite cooperative attitudes, even if they don't really have them.” Shapiro, Though Shapiro does not say this explicitly note 1, at 431.
13. Dworkin, LAW'S EMPIRE (Cambridge, 1986), at 145.
14. Coleman, LAW'S EMPIRE note 2, at 75. Shapiro to some extent grants this point in his concluding section.
15. Cf. Coleman, Though recall the discussion above in Section II. note 2, at 98.
16. See, e.g., Thomas Scanlon, Promises and Practices, 19 PHILOSOPHY AND PUBLIC AFFAIRS 199-226 (1990); and see my related discussion in Shared Intention and Mutual Obligation, in FACES OF INTENTION.