Moral Aims, Immoral Aims, and the Grounds of Legal Authority
Eliot Michaelson (KCL)
Scott Shapiro’s recent Planning Theory of law depends crucially on what Shapiro calls the “Moral Aim Thesis”: that it is an essential feature of law that it aims to generate morally good solutions to morally significant coordination problems. Shapiro suggests that we understand the law at the result of a certain sort of activity, legal activity, which is itself the activity of a certain sort of institution, legal institutions. The idea is that if we can explain legal activities and legal institutions in purely non-moral terms, then we will have offered a positivist-friendly account of the law. Leaving aside questions of whether it is legitimate to appeal to moral aims in a positivist framework, I shall focus on the question of whether Shapiro has managed to offer an adequate account of legal institutions. As David Plunkett has recently pointed out, it is possible to imagine legal institutions that merely purport to aim at solving morally significant coordination problems, but which do not actually aim to do so in a morally good manner. Pushing this line of thought even further, I argue that it is perfectly plausible that there might be legal institutions that explicitly deny aiming to generate morally good solutions to morally significant coordination problems. If this is right, it foists a serious dilemma on a Shapiro-style Planning Theorist: either the Planning Theorist must accept that clubs and mafias can make laws, or she must offer a viable alternative to the Moral Aim Thesis. I shall suggest that, however unappealing it may first appear, it may well be that the first horn of this dilemma presents the best response for the Planning Theorist.