Is Law Based on Joint Action? Comment on the Article by Carlos Bernal

Abstract

This paper discusses Bernal’s work in which he analyzes the thesis about whether or not the Law is founded on a social practice. To this purpose, Bernal puts forward a definition of “social practice” as joint action inspired by the contemporary debate in the field of social ontology. Bernal affirms that, if law is founded on a social practice, this practice shall have the characteristics of the Social Practice Thesis. Since the pictures of law provided by Austin and Hart do not account for such characteristics, these pictures are defective and should be amended. Shapiro’s planning theory of law is much better equipped in this respect. I will show that Austin, Hart and Shapiro call into question Bernal’s Social Practice Thesis, due to the fact that the authors provide some arguments to the contrary: the practice at the foundation of law (if any) does not necessarily have these characteristics.