At last, some sense in legal philosophy. With circular
and already-answered-from-the-start discussions for decades about whether a
quest in understanding the nature of law—i.e. what is law?—should include coercion,
it is The Force of Law that reignites
the enquiry long ago thought to be settled. Schauer has two intertwined claims:
a) that law is commonly and valuably coercive; and b) a challenge to a
prevalent mode of jurisprudence inquiry.
With regards the former, Schauer tells us that “[l]aw makes us do things
we do not want to do […] [and] unlike morality and etiquette, possesses the
resources to compel compliance in ways that other normative systems do not […].
[For instance], the law has sanctions at its disposal that are systematic,
often severe, and highly salient. The legal system can put us in prison, take
our money, and in some places even flog us and kill us”.
But, for over fifty years legal theory, following H.L.A. Hart
has made an assumption that law cannot be identified with force. Indeed, “[t]he
theory of law as coercive order meets at the outset with the objection that
there are varieties of law found in all systems which, in three principal
respects, do not fit this description.”
Therein, an opinion translated into dogma: law may refer to coercion but it
does not need to by default—i.e. coercion is not a necessary condition for law
to be.
Schauer agrees that “noncoercive law both can and does exist.” That
is not the issue he intends to unravel in The
Fore of Law. However, because we currently understand in legal philosophy
that coercion is not a necessary condition for law to be, and legal philosophy
seems to be interested only in those features in law that are considered
essential, “coercion loses its philosophical or theoretical interest in explaining
the nature of law”. And that
is Schauer’s second claim, that legal philosophy or legal theory should not be
limited to search for essential features, elements, or components.
There are already voices against Schauer’s attempt
to reintroduce coercion as a more starring character within law. In his latest
paper, Leslie Green “addresses the question of the relationship between law and coercive
force”. Green makes, against Frederick Schauer’s claims in his book, The Force of Law, the following points:
“(a) The force of law consists in three things, not one: the imposition of
duties, the use of coercion, and the exercise of social power; (b) Even if coercion is not part of
the concept of law, coercion is connected to law in a variety of ways. These
are amply recognized in contemporary jurisprudence; [and] (c) We cannot
determine how important coercion is to the efficacy of law until we know what
counts as coercive force. This question is not a matter for empirical
generalization or bare stipulation. It requires an explanation of the concept
of coercion. […] Before we can count we need to
know that what counts as what. Counting—as
is a matter of identifying necessary and sufficient conditions.”
Despite
the apparent disagreements, the focus of this literature, however, is largely
on the question of the justifiability of including coercion amongst the
elements to be studied when referring to the nature of law. There is a huge
literature on the elements that constitute the law. Within this literature, and
in particular since Hart’s The Concept of
Law, coercion in not central to this study. To be more precise, coercion is
only briefly noted as a potential, additional and apparently optional element
in this literature, rather than being subject to detailed analysis.
