Legality and the Liberal Order
| Date | 01 March 2013 |
| DOI | http://doi.org/10.1111/1468-2230.12018 |
| Published date | 01 March 2013 |
| Author | Sean Coyle |
REVIEW ARTICLE
Legality and the Liberal Order
Sean Coyle*
Scott J. Shapiro,Legality, Cambridge, MA: Belknap Press, 2011, 472 pp, hb £30.95.
The question of the nature of law has long occupied a significant place in the
philosophical and intellectual traditions of the West. From the earliest times,
philosophical texts on politics put law at the centre of their reflections upon the
character of the ‘City’, and inquired whether the very embodiment of political
power, the Prince, was himself subject to law. In a similar way, Judaism placed law
at the very heart of Western man’s religious experience. Even Christianity (not
itself a strictly juridical religion) articulated its moral vision for the world in terms
of ‘natural law’. Among philosophers, not only Cicero, but also Aquinas and Kant
wrote treatises on law. Elsewhere, philosophers who did not devote books to the
systematic discussion of law nevertheless gave thought to its nature in the course
of considerations on the subjects of morality, of society, of politics and of grace.
In recent times, the jurisprudential debate about the nature of law has
progressively stripped away these richer associations. Philosophy, which had
traditionally set no limits to the scope of inquiry, was transformed into a demand
that ‘philosophical’ analysis must eschew social, metaphysical, and even moral
ideas if the character of ‘law’ is to be revealed in all its clarity.1This new context
of philosophical investigation made it difficult to raise the concerns that had been
so carefully excluded. Speaking of his relegation of the fundamental concerns of
Chapter XIII to the end of Natural Law and Natural Rights, John Finnis adverted
to the need for an adaptation of exposition ‘to the receptiveness, the state of
mind, of one’s expected audience.’2Those pursuing fundamental questions face
a difficult task. One must be prepared to separate the ‘vices of dishonesty from
a rightly discreet stewardship of the truth ...’
3
The immediate ‘audience’ to whom Finnis’s remarks were directed are those
legal positivists at whose hands, during the course of the twentieth century, the
boundaries of jurisprudential inquiry were progressively narrowed. It was above
all in the tradition of legal positivism that the needs of a detached, descriptive
jurisprudence were so relentlessly separated from the world of political theory, in
which so many contestable conceptions of human nature strove endlessly with
*Professor of English Laws, Birmingham Law School.
1 See for example, H. L. A. Hart, ‘Definition and Theory in Jurisprudence’ in Essays in Jurisprudence
and Philosophy (Oxford: Clarendon Press, 1983) Essay 1.
2 J. Finnis, ‘Religion and Public Life in Pluralist Society’ in Collected Essays vol V (Oxford: OUP,
2011) 43.
3ibid (emphasis in original).
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© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited. (2013) 76(2) MLR 401–418
Published by Blackwell Publishing, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
one another. This separation was not simply a dogma, open to debate, but a
determination of the field of inquiry itself: ‘[F]or the positivist project to work,
it must be a matter of fact that law is best understood as a set of facts. To defend
the foundational assumptions would be to admit that positivism rests on
contestable philosophical underpinnings, immediately reconnecting it with the
philosophical debates of old.’4
Scott Shapiro’s recent book Legality is itself a contribution to the legal
positivist tradition, but its early chapters seem to hold out the promise of a
broader re-engagement with the fundamental associations of law. The context
of discussion is reconfigured in such a way as to display its metaphysical pre-
suppositions (2). Law is once again to be placed in its proper context: central
to the life of the City, to the possibility of community, and to the human
condition itself.
Do the arguments of Legality succeed in placing jurisprudential discussion
onto a new path? Is legal positivism, in particular, enabled to step beyond the
strait and narrow path on which its adherents and detractors have been obliged
to walk in recent times? To answer this question, I would like to begin by
setting the discussion in a specific context: that of liberal political order. My
reasons for doing so are two-fold. First of all, as an analytical legal philosopher
Shapiro would claim that his characterisation of legal order applies to law in all
its manifestations, not simply that of the liberal order (206–207). But many of
the assumptions involved in his ‘planning’ theory indicate a specifically liberal
vision of legal order. Secondly, the modern liberal order is the immediate
context to which, for better or worse, jurisprudential understandings must be
directed. It is this ‘City’ that the jurist’s explanations must elucidate. I will be
asking whether Shapiro’s discussion illuminates or distorts an appreciation of its
fundamental concerns.
LIBERAL POLITICAL ORDER – A CONTEXT
It is possible to argue about the opposing merits of two theses about the nature
of the society that liberals have created: 1. There are no ideal societies or better
forms of life, merely endless alternatives; the ‘open society’ exists because the
very future is ‘open’. 2. The open society is itself the ideal society.
Often articulated in terms of the existence of objective ‘values’, such argu-
ments signify the presence of a basic ambivalence that permeates liberal thought.
Liberals are concerned above all with organisation. Fearing authoritarianism over
all other dangers, liberals wish to place organisation in the hands of individuals to
order their own lives. But desiring to protect individuals from the tyranny of
organised interests, liberals cannot help returning to the state as the pre-eminent
source of order and regulation. I want to be clear that I am raising these matters
not because they form a focal point for discussion in Legality, but because they
represent the end of a very complex knot which it is necessary to untangle if the
book’s strengths and weaknesses are to be understood.
4 See M. Martin, Judging Positivism (Oxford: Hart Publishing, 2013) 6 (forthcoming).
Legality and the Liberal Order
© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited.
402 (2013) 76(2) MLR 401–418
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