The Force of Law

by Frederick Schauer

Many legal theorists maintain that laws are effective because we internalize them, obeying even when not compelled to do so. In a comprehensive reassessment of the role of force in law, Frederick Schauer disagrees, demonstrating that coercion, more than internalized thinking and behaving, distinguishes law from society’s other rules.

Reinvigorating ideas from Jeremy Bentham and John Austin, and drawing on empirical research as well as philosophical analysis, Schauer presents an account of legal compliance based on sanction and compulsion, showing that law’s effectiveness depends fundamentally on its coercive potential. Law, in short, is about telling people what to do and threatening them with bad consequences if they fail to comply. Although people may sometimes obey the law out of deference to legal authority rather than fear of sanctions, Schauer challenges the assumption that legal coercion is marginal in society. Force is more pervasive than the state’s efforts to control a minority of disobedient citizens. When people believe that what they should do differs from what the law commands, compliance is less common than assumed, and the necessity of coercion becomes apparent.

Challenging prevailing modes of jurisprudential inquiry, Schauer makes clear that the question of legal force has sociological, psychological, political, and economic dimensions that transcend purely conceptual concerns. Grappling with the legal system’s dependence on force helps us understand what law is, how it operates, and how it helps organize society.

Genres: Law, Philosophy

256 pages, Hardcover

First published February 10, 2015

About the author

Frederick Franklin Schauer was an American legal scholar who served as David and Mary Harrison Distinguished Professor of Law at the University of Virginia School of Law. He was also the Frank Stanton Professor of the First Amendment at Harvard University's Kennedy School of Government. He was well known for his work on American constitutional law, free speech, and on legal reasoning, especially the nature and value of legal formalism.

Reviews

[Peter]

Hmmm. ☕🍰 (At p39, Schauer points to characterizations that are generally true that tolerate exceptions; presumably he would like some discretion, and we would need to be able to set some healthy and proper boundaries. On p50, we have fourteen instances of 'I' so we may need Schauer in to let off some steam. Some assistance may be required to translate the paragraph beginning 'That the Weberian understanding' at p164 into this one speak.)

Considering section 4.4- The Ought and the Is at pp55-6, who would like to go first?

On p.57, what does 'Human beings do not have antlers, so explaining why they do makes no sense.' assume about the nature of psychosis? What else may be significant in this context? (possibly the issues around the argument in the sentence attached to footnote 32 at pp62-3 - how might these best be handled?-ty)

Considering the arguments in section 9.5 Get Out! Expulsion and Other Disabilities, how can we tell whether the state has been co-opted by cross-border organised crime? What else may be significant in this context? (see also at p161: 'There is a difference between the state and a within-state organization such as the (British) Football Association, a cross-state organization such as the WTO, or an unlawful organization such as the Mafia, but once we have noted the difference, there may be little more to say.')

On p.58, considering 'We will return to [the morality [is] the primary factor in shaping law-related behavior(sic) argument] and to the distinction between behavior correlated with law and behavior caused by law', which chicken-and-egg problem hazards may be significant in this context, and how might such hazards best be handled and resolved decently and sufficiently? Considering 'If people frequently engage in morally or socially motivated rather than purely selfish behavior, and if they do so without reference to the law, then the conclusion that morality is the primary factor in shaping law-related behavior tells us little about law and even less about law's effect on behavior', what else may be significant in this context? And more generally?

On p59, Schauer writes: 'The majority may well often engage in morally motivated behavior that happens to be consistent with the law, but it is not clear why we would want to call such behavior "law-related."' If we put the full-top / period outside of the inverted commas, and describe such conduct as quote lawful unquote, what does the argument tell the reader about the scope, purpose and nature of the application of coercive measures? What else may be significant in this context?

On p60, Schauer asserts: 'Few people who shoplift think that prohibiting shoplifting is a poor idea, and so too with laws against excessive noise, littering, speeding, and even overtime parking.' and so how might it be best to de-convolute, unpack, disaggregate, handle and resolve the argument and its components decently and sufficiently? What else may be significant in this context?

Quoth Frederick at p63: "To formulate a question is not to answer it." Considering the question begged in the paragraph thusly, to what extent does the reader sense that Sir Keir Starmer may be apt to shower Schauer with praise? What else may be significant in this context? (at p65, considering 'We think that law ought to matter, and thus we think that law does matter, but in fact it might matter less than we think, at least when our law-independent judgements are inconsistent with the law's judgements and when force, coercion, and sanctions are removed from the equation.", which formula is being balanced here, and who gets to choose how and whether to execute it? Also section 10.4 Is There a Norm of Law? at pp151-3.)

On p64, considering "To be specific, little actual empirical research focuses directly on the question whether people obey the law, sanctions and their own best judgments apart, just because it is the law.' and were it possible to formulate a hypothesis for testing, to what extent would it be a variation on a theme of Stanley Milgram's experiments on obedience to authority and-or consisting largely of jump-how-high cuckoo reflex tests (i.e. does it seem reasonable that a hypothesis of this type would shed further light on the analysis outlined in the paragraph beginning 'As several decades of commentary on the Milgram experiments have suggested' on p68?)

Considering the conclusion drawn on p65: 'And thus, to the extent that both lay and legally trained people treat the law as less important than their law-independent judgements, the empirical foundations of the notion of law operating, absent coercion, as an external constraint on people's preferred courses of action are undercut even further.' So, is the argument here that the court system should not, does not, and nor is there any necessity to, give consent or approval to or otherwise emit a virtuous thumbs up signal to, the person's lawful choices and conduct? Turning the argument over, in a situation where the person is constrained in an environment by a third party who holds no hostages and makes no demands, what would the person need to do to petition the court system to deploy coercive measures to secure the person's fundamental rights in general? What else may be significant in this context? Considering 'Indeed, when we turn from experimental research to empirical data on actual legal compliance, we find substantial support for the hypothesis that unforced law that does not track people's law-independent preferences an judgments (including moral judgments) is often ineffective.', to what extent is it clear which goods are left dangling? How concerned should we be about the practices of the social media platforms in this context? What else may be significant more generally?

Considering the paragraph beginning 'This collection of studies and reports' on p67, to what extent is it possible to draw conclusions on, or otherwise glean information about, the prevalence of a base-level of sociability in wider society? What else may be significant in this context?

Considering section 5.4 'Does Law Cause Morality?' at pp69-73, who would like to go first? What else may be significant in this context?

At p74: 'But if the puzzled person is not just an analytic construct but the underpinnings of the claim that we have good practical reasons to take noncoercive law seriously, then the actual presence of such persons, and to what degree, becomes important.' seems to beg questions as to by which means and for what purposes the author seeks to control the population, and also, how should the environment best be de-coerced to liberate the person from such attention.

At p96: 'But if our goal is to explain and understand the phenomenon of law, it is hardly clear that we would want to conclude that large numbers of state-based and organized rule-based systems of social control are not law at all and hardly clear that many current and past members of the United Nations, for example, have no law at all.' and as such it is not clear which ultimate goods Schauer wishes to realise and how they might be secured properly. Considering also on p96:' Expanding the realm of the phenomenon we see to explain thus gives us a new window through which to view the legal importance of coercion, for it is coercion in the most basic sense that enables us to understand law as it exists in bad societies as well as good.' and earlier on p75: 'And thus in an environment in which genuine and sanction-independent obedience is rare, coercion through the threat of sanctions emerges as the principal mechanism for securing the obedience that turns out to be so often necessary.' and later at p104: 'Coercion may well be more necessary for legal effectiveness than the misleading image of the puzzled person suggests, but the connection between coercion and legal effectiveness may be rather more complex than Bentham, Austin and their followers found it necessary to consider.' there seems to be a thread describing a desire to control running through Schauer's argument that seems not to consider nuanced balances of discretion and welfare in processes that seek to obtain wholesome measures of justice.

On p102, Schauer argues 'the simple observation that people and businesses often do the right thing for law-independent reasons seems insufficient' and so this one wonders whether this one may be permitted to disagree with the author without being subjected to additional coercive measures.

Section 7.4 - The Settlement Function of Law at pp104-6 seems to be a long-winded way of saying that courts hand out judgements that are subsequently executed.

It's perhaps surprising that Chapter 8, Of Carrots and Sticks has little to say about the person's capacity to form and enter into lawful contracts voluntarily without third party coercion and-or interference. On p119, 'When we consider the difficulty and expense of administering a system of rewards for engaging in advantageous behaviors and not engaging in disadvantageous behaviors, we can better appreciate Bentham and Austin's exclusion of rewards from the domain of law.' to what extent does artificial intelligence make it easier, and drive the cost down of, population control?

Considering the arguments in section 9.6 Coercion and the Role of Private Law and in section 10.1 Of Legal and Nonlegal Norms, to the extent that many engineers may interpret public international law as being a tautology, and private international law as contract law for the mafia, which measures are required to secure the person's fundamental rights? What else may be significant in this context? On p139: 'Journalists adopt more risk-averse attitudes toward truth and falsity than they might have otherwise not because they think such an approach is wise and not simply because the law tells them to do so, but because the law tells them what will happen to them if they do not.' Who would like to go first?

Considering the arguments in section 11.1 A Bundle of Differences at pp154-9, to what extent is it clear that the scope and purpose of executive function has been characterised accurately and how its performance is handled and assessed in the legal system? What else may be significant in this context?

In general, this is would be an easier read were the environment jolly well less hostile.

[Dominic Foo · Rating 3 out of 5]

I was looking around for a Neo-Austinian account of the law and I stumbled upon this contemporary attempt at giving precisely such an account. John Austin's account of the law is that of commands issued by a sovereign backed up by coercion. While Schauer eschews this as a /definition/ of the law, arguing against any attempt at providing necessary and sufficient conditions for anything, he maintains that coercion is empirically a pervasive feature of the law and so important and significance for its functioning that it could practically be said to part of its in order to understand it properly.

I guess overtime I've found myself less and less impressed by philosophical attempts at reducing particular phenomena to philosophical concepts. The book is illuminating to be sure about how coercion works in the law and the distinctions between various times of sanctions, rewards, incentives, etc. However, one gets a sense that something has been lost in the attempt at reductionism. This sense is especially acute given my initial interest in the law as providing the framework for the law of evidence. It is difficult to see where the Austinian account of law as coercion comes into the legal standards of evidence.