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Published online by Cambridge University Press: 20 July 2015
This paper offers a critical assessment of the way the influential “conception of law as a shared activity” explains the normative component of law in general and legal obligation in particular. I argue that the conception provides a bipartite account of legal obligation: we have full-blooded legal obligation, carrying genuine practical force, and legal obligation in a perspectival sense, the purpose of which is not to engage with us in practical reasoning, but simply to state what we ought to do if we should take the perspective of individuals subject to the jurisdiction of the legal system. This structural feature makes the whole account disjointed, giving it a lack of unity from which stem what I take to be its three main problems, namely, its limited scope, its failure to recognize the moral features of obligation when made to arise out of law as a shared activity, and its failure to illustrate the sense in which law is widely recognized to be a practical institution.
I wish to express my indebtedness to Aldo Schiavello, Filippo Valente and the editors of the Canadian Journal of Law and Jurisprudence, who have offered helpful comments and critical remarks. Needless to say, the responsibility for the views expressed, as well as for any errors, rests solely with me.
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3. The reason why legal positivism finds it difficult to explain legal obligation can be framed in terms of the is-ought gap. Indeed, the moment we construct law as being essentially a matter of social facts, we are in the realm of the ‘is’, whereas obligations are prescriptive and so belong with the ‘ought’. Therefore, if on these premises (i.e., law as fact) law is claimed to give rise to obligations, a transition will have been effected from ‘is’ to ‘ought’. But this is precisely the sort of transition that legal positivism would deem illicit, for it would amount to bridging what—under the view known as Hume’s law—is not amenable to bridging.
4. See supra note 2 at 82-91. Hart proceeds on the basis of these two components (coupled with a few other arguments) to show the inadequacy of John Austin’s command theory of law. Hart argues that, although the theory is constitutively unable to explain how law can guide us in general, it can do so specifically by generating obligations to act in the prescribed way, as opposed to obliging (i.e., forcing) one to do so. For a recent restatement of the thesis of the action-guiding dimension of law, see Coleman, , “Incorporationism”, supra Google Scholar note 2; Coleman, , Practice, supra note 2 at 67–73, 134–48 Google Scholar; Shapiro, , Legality, supra note 2 at 113–15.Google Scholar
5. See “Incorporationism”, supra note 2 at 103 and n 9; Coleman, , Practice, supra note 2 at 68 Google Scholar. This claim goes under the name of the conventionality thesis, a thesis defended by contemporary analytical legal positivism and stating that the criteria of legality are conventional. The connection between legal conventionalism and legal positivism finds a thorough theorisation in Marmor, , Values, supra note 2 at 1–48 Google Scholar; Marmor, Andrei, “How Law is Like Chess” (2006) 12:4 Google Scholar Legal Theory 347; Marmor, , Conventions, supra Google Scholar note 2; Marmor, Andrei, Philosophy of Law (Princeton: Princeton University Press, 2011) at 35–83 Google Scholar; Vilajosana, Jose, El derecho en accion (Madrid: Marcial Pons, 2010 Google Scholar). For a critique of this connection, see Green, Leslie, “Authority and Convention” (1985) 35:141 Google Scholar Phil Quarterly 329; Green, Leslie, “Positivism and Conventionalism” (1999) 12 Google Scholar Can JL & Jur 35.
6. See Kutz, , “Community”, supra note 2 at 453–55 Google Scholar. This gives that conception an edge over other versions of legal positivism, especially in view of the problems by which legal conventionalism is plagued. For a recent statement of these problems, see Dalhman, Christian, “When Conventionalism Goes Too Far” (2011) 24:3 Google Scholar Ratio Juris 335. For a conventionalist reading of the conception of law as a shared activity, see Coleman, , Practice, supra note 2 at 74–102 Google Scholar.
7. See also Bratman, Michael, “Shapiro on Legal Positivism and Jointly Intentional Activity” (2002) 8:4 Google Scholar Legal Theory 511 at 515-16.
8. Not everything that falls under the umbrella of the conception of law as a shared activity bears a connection to Bratman’s model of shared intentional action. As we will see in the final part of this section, Kutz frames the conception of law as a shared activity by reference to an account of joint or collective action that clearly departs from Bratman’s. Although these two accounts go in opposite directions, they are both individualistic: they reject the claim that doing something together implies the emergence of a supra-agential entity. More to the point, even though what we do together is more than the sum of our individual activities, and so cannot be reduced to those activities, the resulting joint action can be explained solely by reference to the single coagents’ intentional and cognitive states, and so does not make it necessary to introduce a supervenient plural subjectivity. For a non-individualist approach to shared activities, see Gilbert, Margaret, Theory of Political Obligation (Oxford: Clarendon Press, 2006 CrossRefGoogle Scholar).
9. See especially Coleman, , “Incorporationism”, supra note 2 at 114–21 Google Scholar; Coleman, , Practice, supra note 2 at 74–102 Google Scholar.
10. This is in addition to their having a shared participatory intent. So we have an added layer of commitment here: the participants’ shared intent is also a commitment to cooperate in making the joint activity a viable enterprise.
11. Shapiro, , Legality, supra note 2 at 195 Google Scholar.
12. See ibid at 161-73.
13. For a summary statement of this legal theory, see ibid at 193-233.
14. Ibid at 203.
15. Ibid at 200.
16. The same minimalist strategy has been explored in Brigido, Rodrigo Sanchez, “Collective Intentional Activities and the Law” (2009) 29:2 Google Scholar Oxford J Legal Stud 309 (Brigido defends a model of joint action, which can be considered coherent with the spirit of Kutz’s overall project despite a partial divergence).
17. See Kutz, , “Together” supra note 2 at 4–10 Google Scholar.
18. See Kutz, , “Community”, supra note 2 at 443 Google Scholar.
19. Ibid at 461.
20. See generally Practice, supra note 2 at 86-102, 143-217. The account no longer reflects Coleman’s view but since there is no competing account that is as thorough in explaining what full-blooded legal obligation is on the conception of law as a shared activity, I will take Coleman’s view as paradigmatic in that respect.
21. Practice, supra note 2 at 143.
22. Legality, supra note 2 at 142.
23. Ibid at 182.
24. Ibid.
25. The idea can be framed on a language-analysis approach by saying that the term ‘legal’ modifies not ‘obligation’ (in the noun phrase ‘legal obligation’) but the whole embedding statement ‘So-and-so has a legal obligation’.
26. The point that legal obligation in a perspectival sense is not a genuine obligation is also made in Kutz, , “Community”, supra note 2 at 463–65 Google Scholar.
27. This should not be taken to suggest that the question ‘Why ought one to enter the legal domain and be a legal subject?’ is nowhere discussed by those who defend the conception of law as a shared activity. See, e.g., Shapiro, , Legality, supra note 2 at 170–73 Google Scholar. In fact, there is no assumption, on this conception, that the question is trivial or that we do in fact have an obligation to be willing participants in the practice constitutive of law. The point is rather that this cannot be understood as a legal obligation, so the question needs to be tackled through a reliance on non-legal considerations, the kind a strictly jurisprudential approach is ill-equipped to handle.
28. See Bratman, Michael, “Taking Plans Seriously” in Millgram, Elijah, ed, Varieties of Practical Reasoning (Cambridge: MIT Press, 2001) 203 at 204–19 Google Scholar.
29. This feature of the account finds its roots in Hart’s jurisprudence. See Hart, especially, supra note 2 at 110–17 Google Scholar. See Coleman, , Practice, supra note 2 at 96–100 Google Scholar; Kutz, , “Community”, supra note 2 at 442–69 Google Scholar; Shapiro, , “Reason”, supra note 2 at 417–19 Google Scholar.
30. See Smith, Matthew Noah, “The Law as a Social Practice: Are Shared Activities at the Foundations of Law?” (2006) 12:3 Google Scholar Legal Theory 265. See generally Pino, Giorgio, “‘What’s the Plan?’: On Interpretation and Meta-interpretation in Scott Shapiro’s Legality” in Canale, Damiano & Tuzet, Giovanni, eds, The Planning Theory of Law: A Critical Reading (Dordrecht: Kluwer, 2013) 187 CrossRefGoogle Scholar.
31. See generally in Bruno Celano, “What Can Plans Do for Legal Theory?” in Canale & Tuzet, ibid.
32. See also MacCormick, Neil, “Voluntary Obligations and Normative Powers I” (1972) 46 Google Scholar Proc Aristotelian Society Supp 59; Scanlon, Thomas, “Promises and Practices” (1990) 19:3 Google Scholar Phil & Pub Affairs 199; Bratman, Michael, Faces of Intention (Cambridge: Cambridge University Press, 1992) at 135–40 Google Scholar; Alonso, FacundoM, “Shared Intention, Reliance, and Interpersonal Obligations” (2009) 119:3 Google Scholar Ethics 444.
33. See Rawls, John, Collected Papers (Cambridge: Harvard University Press, 1999) at 121–23 Google Scholar; Simmons, John, Moral Principles and Political Obligations (Princeton: Princeton University Press, 1979) at 109–04 Google Scholar; Bratman, , supra note 32 at 132–35 Google Scholar. Compare Edmonds, David, “Ronald Dworkin on the Unity of Value” (9 March 2012 Google Scholar) (interview), online: Philosophy Bites http://philosophybites.com/2012/03/ronald-dworkin-on-the-unity-of-value.html (Dworkin’s view, in regard to political institutions, that ‘consensus is not indispensable; it is in many ways desirable, but consensus around the wrong idea would be worthless’).
34. See, e.g., Coleman, , “Incorporationism”, supra Google Scholar note 2. (Coleman describes his project as an attempt to coherently develop Hart’s jurisprudence.)
35. See, e.g., Coleman, , Practice, supra note 2 at 134–38 Google Scholar; Marmor, , Values, supra note 2 at 25–34 Google Scholar; Shapiro, , “Reason”, supra note 2 at 437–39 Google Scholar.
36. This argument also counts as (the beginning of) an indirect challenge to the position advanced by Raz, who in disagreement with Hart combines an exclusive version of legal positivism centred on the social-fact thesis with the claim that legal obligation is moral. See Raz, , “Hart”, supra note 2 at 123–31 Google Scholar; Raz, , Ethics, supra note 2 at 210–37 Google Scholar. Carrying out the challenge in full would require a paper on its own, which is why I cannot discuss this point any further in this context.
37. This is acknowledged in Shapiro, , Legality, supra note 2 at 184–88 Google Scholar. For a detailed account of this aspect of the conception of law as a shared activity, see Rodriguez-Blanco, Veronica, “The Moral Puzzle of Legal Authority” in Bertea, Stefano & Pavlakos, George, eds, New Essays on the Normativity of Law (Oxford, Hart 2011) 86 Google Scholar.
38. This is acknowledged in Shapiro, , Legality, supra note 2 at 115 Google Scholar.
39. See Shapiro, , Legality, supra note 2 at 13–22 Google Scholar.
