The Planning Theory of Law

This chapter seeks to articulate the essence of law in a strict philosophical sense by distinguishing legal systems from other normative orders. Building on Hart’s view of law as “the union of primary and secondary rules,” Scott Shapiro acknowledges that while systematicity is a hallmark of legal systems, it is not unique to them—many institutions, such as condominium associations, also possess secondary rules. Thus, Hart’s account offers only a partial explanation of what law is. Through a comparative analysis of legal systems with similar structures, such as parenting, clubs or organized crime, the chapter aims to isolate the features that uniquely define legal institutions. It argues that legal systems are best understood as compulsory planning organisations with a moral aim, which maintain a privileged relation to other forms of institutional planning. These defining characteristics, the chapter contends, represent the true philosophical essence of law—those properties without which law would not be law.