On The Shapiro's Theory Of The Nature Of Law

"What is law" is an eternal thesis of philosophy of law.The debate on this thesis creates a situation in which pluralistic views of law coexist.Since the modern times,the theory of natural law and legal positivism have begun a never-ending debate on this thesis.Under the impact of legal positivism,the theory of natural law has been divided into two camps,namely,the strong theory of natural law and the weak theory of natural law.Under the impact of the theory of natural law,legal positivism has also been split into two camps,namely,the inclusive legal positivism and exclusive legal positivism.In fact,even within the camp of legal positivism,there are different interpretations of this thesis.For example,what is law can refer to legal meaning,can refer to legal concept,and can refer to legal property.Based on this thesis,Shapiro attempts to develop a theory of the nature of law to defend the exclusive legal positivism.This theory uses a conceptual analysis approach to answer questions about legal property,legal concept,and to some extent legal meaning.It can be said that this not only has certain theoretical significance but also has certain practical significance.In addition to the introduction and the conclusion,the article is divided into four parts.The following is the specific content of each part:The first part is intended to clarify backgrounds and origins of the Shapiro's theory of the nature of law.It should be noted that the possibility puzzle,the Hume's challenge,and the challenge of theoretical disagreements have challenged the legal positivism.Since Austin and Hart cannot cope with these challenges,Shapiro aims to propose a theory of the nature of law to meet these challenges.This theory is based on the following three theories: the Bratman's theory of planning activity,the theory of the economy of trust,and the theory of competitive legislation-textualism.The second part attempts to elaborate the basic kernel of Shapiro's theory of the nature of law.This theory has two parts: one is the theory of legal identity,that is,the planning theory of law;the other is the theory of legal implication,that is,the meta-interpretation theory.The theoryof legal identity is constructed by the following theses,namely,planning Thesis,sharing agency thesis,“offices,institutionality,compulsion thesis”,moral aim thesis,and self-certifying thesis.The theory of legal implication is premised on an authoritative system,including the specification phase,the extraction phase,and the evaluation phase.The third part is to study the theoretical dispute of Shapiro's theory of the nature of law.On the one hand,there are five aspects to the theoretical dispute of the planning theory of law.First,Professor Celano believes that a law cannot be analogized to a planning,because Shapiro cuts off the link between plannings and intentions.Second,since the moral aim thesis is incompatible with the basic position and the core intuition of legal positivism,Plunkett trys to replace the moral aim thesis with the moral representation thesis.However,Simmonds believes that the perspective of moral language can justify the moral aim thesis.Third,Schauer believes that coercion is not a basic property of a legal system,because the Shapiro's theory of good citizen is inconsistent with his essentialist studies.On the contrary,Ripstein believes that Shapiro does not ignore coercion.Fourth,Bustamante believes that the Planning Theory of Law is not a descriptive legal theory but a normative legal theory.Fifth,Chiassoni believes that the Shapiro's solution to the possibility puzzle is a solution of natural law,but Poggi believes that the soultion is a solution of legal positivism.In addition,Duke believes that the Shapiro's solution to the possibility puzzle ignores a solution of natural law developed by Finnis.On the other hand,there are five aspects to the theoretical dispute of the theory of metainterpretation.First,Pino believes that the Shapiro's view of the American legal system as an authoritative system may narrow the scope of application of the theory of meta-interpretation.Second,Pino believes that the different phases of meta-interpretation are an evaluative study rather than a factual study.Third,Bustamante believes that if Shapiro insists on distinguishing legal reasoning from judicial judgment,there is a contradiction between the theory of moral empowerment produced by judicial judgment and the theory of meta-interpretation.Fourth,Pino believes that although Shapiro distinguishes legal reasoning from judicial judgment,legal reasoning still promotes a morally dictated judgment rather than a morally unrelated judgment.Fifth,Beltrán and Ratti believe that the Shapiro's response to theoretical disagreements is similar to a prescriptive response rather than a descriptive response.The fourth part intends to show the significance of the Shapiro's theory of the nature of law.The significance is manifested in three aspects.First,this theory can not only solve the possibility puzzle and the Hume's challenge that can't be solved by the theory of legal orders and the theory of legal rules,but also effectively respond to the challenge of Dworkin's theoretical disagreements.Secondly,the planning theory of law and the theory of meta-interpretation proposed by this theory are the developments of the theory of legal orders and the theory of legal rules,and this theory attempts to develop a normative legal positivism.Finally,this theory proposes two approaches to the study of the theory of the nature of law.One is the essentialist research approach,and the other is the Bertea's research approach.In all these developments,the normative legal positivism may be the greatest contribution,although Shapiro himself does not necessarily recognize this.This normative legal positivism makes this theory the best and the final theory of legal positivism.It can be said that the Shapiro's theory of the nature of law has made a certain contribution to the pluralistic views of legal civilization in today's vigorous developments of legal schools.