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By adopting a consolidating standard of liability, the courts move up the legal planning tree, converting previous rulings into sub-plans of a much more general plan.
The first is the political conviction that courts are not the appropriate venues fro large-scale social planning: duly elected representatives ought to set broad policies in democratic societies, not courts. Second, as we have seen in the case of personal planning, committing to a course of conduct far in advance of action is inherently risky.
Laws are able to perform their functions for exactly the same reason that plans can, namely because...
they are positive norms. By simply referring to norms designated as authoritative, the individuals in question need not deliberate, negotiate, or bargain.
Planning not only produces norms in an incremental fashion but also...
1) produces norms that are supposed to settle, and purport to settle, questions about how to act; 2) disposes addressees to obey; and 3) is purposive, that is, has the function of producing norms. Legal activity meets these three conditions, and thus the core idea of the Planning Theory, namely the Planning Thesis, is valid.
The law settles normative matters in their favor and claim the right to...
demand compliance. Also all legal philosophers agree that legal systems exist only if they are generally efficacious, that is, they are normally obeyed. Finally, legal activity is purposive in nature. The legislative process does not happen to produce laws as a side effect of its pursuit of some other end. Its very point is to create norms that are supposed to settle questions about how to act.
The law sometimes aims to express a judgement about...
Shared Agency Thesis: Legal activity is a shared activity.
Shared Agency Thesis justified in two different considerations:
1) It accounts for the core intuition that some legal officials are related to one another in a special way, namely, that they are each members of particular legal systems. 2) The idea that legal activity is also meant to explain how it is that legal systems are able to do what they typically do (tax collection, etc.)
The designers of legal systems do not merely intend that legal participants plan-they very much care about...
how they plan. Committed to a form of democratic self-rule, this commitment explains why the U.S. Constitution has the content that it does.
Legal officials may converge on a set of common goals despite...
differing on more fundamental beliefs and values. One can be Kantian, Christian, Jew, and still believe in the moral necessity of promoting democratic self-rule and protecting individual rights.
Massively shared agency: participants may share a plan even though some are not committed to the success of the joint activity.
The law of a certain system consists of...
1) the master plan shared by a group of planners; 2) those plans created in accordance with, and whose application is required by, such a master plan; and 3) those plan-like norms (such as customary norms) whose application is required by such a master plan.
In regards to parenting, parents have authority within the house but....
that authority is not legal in nature.
One reason parents are not seen as "the law" is because
they are not "officials," that is, they do not occupy offices. Offices are designed to deal with recurring sets of issues and, as such, have long life spans and admit of different occupants.
Offices possess two properties; neither is necessary but both are typically present.
First, offices are typically stable. Rights and responsibilities should not fluctuate over time but remain constant throughout. Second, turnover in occupancy is not only possible but expected.
When parents make a rule in the family, they have to issue
a command or grant permission. Legislatures can just get staff attorney to draft legislation and follow formal procedure to get the legislation enacted. They don't need to intend that those obligated by the rule follow it. They don't even have to know what rule they are enacting.
The normatively of law is "institutional" in nature, which is to say
that the legal relations may obtain between people independent of the particular intentions of those people. The institutionality is made possibly the the structure of the master legal plans.
The introduction of institutional normatively is a revolutionary advance in social planning because
Plans can be adopted without the planners actually intending that the community act accordingly. As a result, the community need not worry about whether the planners had these intentions. They can know that they are legally obligated simply because the planners followed the right procedures.
Parental authority is closer to legal authority than other planning organization when we take into account that parent-child relationship is not
terminable at will. Parental authority we can say, is "compulsory" because consent is not a necessary condition for the applicability of its requirements. Legal authority is similar in this regard. Acceptance is virtually, and in some systems totally, irrelevant to the legal validity of official action and to its applicability.
On the Planning Theory, to say that laws legally obligate is to say
that they morally obligate from the legal point of view. From the perspective of legal institutions, their plans morally bind regardless of whether those who are bound consent to their authority. Just as parents claim the power to bind their six-year-old son to clear the table after dinner even if he objects, the law claims the moral power to obligate irrespective of the will of its subjects.
From the law's point of view, the compulsory nature of its demands is
morally legitimate. That is why you see legal officials touting that they have the right to be obeyed and those who fail to comply are wrong and deserving punishment.
According to the Planning theory, the law is not simply a compulsory planning organization-it is a compulsory planning organization with
a characteristic aim.
Moral aim Thesis: The fundamental aim of the law is to rectify the moral deficiencies associated with the circumstances of legality.
What makes the law the law is that it has a moral aim, not
The Moral Aim Thesis, however, posits an end that is neither parochial nor empty.
It is not parochial (limited scope) because it does not claim that the law is supposed to pursue an substantive end. The law is a universal means, adapted to solve any kind of moral problem. The aim attributes to the law is not empty either, for it specifies one that most things do not pursue, namely, the rectification of the moral defects associated with the circumstances of legality.
The Moral Aim Thesis is bolstered by two considerations:
First, it explains why we think the law is invaluable in the modern world, but not say, among simple hunter-gatherers. The former is the paradigm of the circumstances of legality, whereas the latter is its antithesis. Second, the Moral Aim Thesis explains why legal systems that are unable to solve serious moral problems are criticizable.
Although all legal systems are compulsory planning organizations, not all compulsory planning organizations are
legal systems (crime syndicate). The difference between legal systems and crime organizations is one of aim. If we want to explain what makes the law, the law, we must see it as necessarily having a moral aim, an end that criminal organizations do not necessarily possess.
According to the Moral Aim Thesis, the difference between legal systems and these criminal syndicates is not
that the former are in fact morally better than the latter; rather, the distinguishing factor is that is in the nature of the former that they are supposed to be so. It is a part of the identity of law to have a moral mission. The same cannot be said about criminal syndicates.
A legal system cannot help but have a moral aim if it is to be a legal system; whereas
a criminal organization that did not have a moral aim would still be a criminal organization, thought it would likely be a morally bad one.
It is simply an essential truth about the law that it is supposed to
solve moral problems.
The law possesses the aim that it does because high-ranking officials represent the practice as having
moral aim or aims. Their avowals need not be sincere, but they must be made. These representations may take many forms, explicitly in speeches, judicial dicta, or religious iconography in legal settings.
Although state law must comply with federal law, federal law automatically presumes
that state law complies with federal law. Federal law, in other words, gives states the benefit of the doubt and thus permits state officials to enforce their law without first demonstrating the validity of their actions.
Call a planning organization "self certifying" whenever
it is free to enforce its rules without first demonstrating to a superior that its rules are valid. A planning organization, therefore, will be self-certifying whenever it is supreme or enjoys a general presumption of validity from all superior planning organizations.
In not extending the benefit of doubt to others, the law plays a
gate-keeping function: by requiring them to convince a competent legal tribunal that their rules are valid, it ensures that groups that can abuse their power do not do so.
Self-certification is a property that is best seen as something that comes in
A group of individuals are engaged in legal activity whenever their activity of social planning is
shared, official, institution, compulsory, self-certifying, and has a moral aim. This constitutes that Planning theory's answer to the Identity Question for law: what makes the law, understood here as a legal institution, the law is that it is a self-certifying compulsory planning organization whose aim is to solve those moral problems
What makes laws laws is that they are either
1) parts of the master plan or a self-certifying, compulsory planning organization with a moral aim; 2) plans that have been created in accordance with, and whose application is required by, such a master plan, or 3) plan-like norms whose application is required by such a master plan.
The most basic type of legal norm is
the directive. A directive enjoins a person, persons, or institutional body to do, or not do, some action, possibly under certain circumstances. A directive that requires some action can be called a "requirement," whereas one that requires that an action not be performed can be called "prohibition."
The law will sometimes explicitly not direct some person, persons, or body to forbear from acting in a certain way. Such plans can be called
"permissions." For example, the English Criminal Law Act of 1967 provides that: "A person may use such force as is reasonable in the circumstances in the prevention of crime." This provision is a plan that permits persons to use reasonable force to prevent crimes.
On the planning theory, criminal statues of this sort (murder) are composite plans, consisting of
both behavioral directives and stipulations. Properly understood, the above definition of murder is a behavioral directive prohibiting acts of murder and a stipulation requiring that the former directive be applied to all acts of purposeful and premeditated killing.
There are two reasons why criminal statutes are not usually formulated solely as behavioral directives.
First, if statues simply directed persons not engage in certain kinds of conduct, there would be no way to know from their face whether the conduct is being criminalized or simply constitutes a civil wrong. Second, for every statute criminalizing certain conduct, there is normally another corresponding statue that specifies the punishment that such conduct warrants.
Another basic type of legal plan is the authorization. Unlike directives, authorizations do not
plan action; rather, they confer the ability on others to plan action. Authorizations are accompanied by what I earlier called instructions. Instructions are recipes that specify how the authorized person is to exercise the power conferred.
Authorizations and instructions, we might say, are
legal recipes. Authorizations indicate who has the power to do which actions; instructions inform the power holder how to exercise these powers.
The entering of criminal verdicts by a jury, for example, is the subject of an authorization that
empowers them to enter verdicts, instructions for how to enter verdicts, a requirement to engage in deliberations, a permission to deliberate as long as necessary, prohibition against voting for the wrong reasons, factorizations that require the giving weight to some factors and not to others in deciding guilt or innocent, and a stipulation that requires defendants to be presumed innocent before proven guilty.
The freedom to critique the law depends on its
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