Plan-Attitudes, Plan-Contents, and Bootstrapping: Some Thoughts on the Planning Theory of Law

Abstract

This paper is a critical assessment of Scott Shaprio's planning theory of law, laid out in his 2011 book Legality. The planning theory could be considered a culmination of some dominant trends in contemporary philosophical thinking about the nature of law, the trends that actually unite most participants in the debate, including those belonging to nominally opposing camps. And the problems of the theory that I will identify in this paper are, in my view, symptomatic of those trends. Here, I diagnose those trends in a way that shows why they lead to the problems that I identify, while also addressing some problems specific to the planning theory. Elsewhere, I have been developing an alternative and, what appears to me, better trajectory in legal philosophical thinking shorn of those trends. Although the arguments of this paper are in great measure negative, they are meant to have the positive effect of helping the reader to see why that alternative trajectory is worth developing.