The force of law PDF
Preview The force of law
THE FORCE OF LAW T H E F O R C E O F L AW Frederick Schauer Cambridge, Massachusetts London, En gland 2015 Copyright © 2015 by the President and Fellows of Harvard College All rights reserved Printed in the United States of America First Printing Library of Congress Cataloging- in- Publication Data Schauer, Frederick F., author. The force of law / Frederick Schauer. pages cm Includes bibliographical references and index. ISBN 978-0-674-36821-7 (alk. paper) 1. Duress (Law) 2. Coercion. I. Title. K579.D8S33 2015 340'.1—dc23 2014016093 for Bobbie and Nikki, who make me better CONTENTS Preface ix A Note about the Notes xiii 1 Introduction: The Force of Law 1 2 Bentham’s Law 1 1 3 The Possibility and Probability of Noncoercive Law 2 3 4 In Search of the Puzzled Man 4 3 5 Do People Obey the Law? 5 7 6 Are Offi cials above the Law? 7 5 7 Coercing Obedience 9 3 8 Of Carrots and Sticks 1 10 9 Coercion’s Arsenal 1 24 10 A wash in a Sea of Norms 1 40 11 The Differentiation of Law 1 54 Notes 171 Index 235 PREFACE This book was conceived as an intervention in debates within analytic jurisprudence, but it has outgrown its origins. The initial plan was to challenge an idea, predominant since H. L. A. Hart published his pro- foundly important The Concept of Law in 1961, that the very nature of law lies elsewhere than in its coercive capacity. Hart’s target was the account fi rst offered in depth by Jeremy Bentham in 1793 and then devel- oped infl uentially by Bentham’s disciple John Austin in lectures subse- quently published in 1832 as The Province of Jurisprudence Determined. According to this account, the characteristic feature of law is the way in which it tells us what to do and threatens us with unpleasant consequences if we do not obey. But law can exist without coercion, Hart argued, and can be found whenever offi cials internalize a set of rules. That those rules are ordinarily backed by force may be an important fact about how law typically operates, Hart claimed, but is nevertheless largely beside the point as a philosophical or conceptual matter. For Hart, and even more for those who succeeded him, it is the systematic and structured internal- ization of rules that makes for law, and not the fact that law frequently supports those rules with the threat of force. For reasons that will be summarized in Chapter 1 and developed in Chapters 2, 3, and 4, I question Hart’s view and question whether force and coercion are as irrelevant to explaining the nature of law as perhaps Hart and certainly his legions of followers have assumed. But it has be- come apparent to me that the role of force in law cannot simply be rel- egated to one side of the debates within philosophical jurisprudence. Rather, the topic of legal force has soc io log i cal, psychological, po liti cal, and economic dimensions that go well beyond the conceptual and the philosophical. Grappling with these empirical dimensions of the legal ix
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