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The Force of Law by Frederick Schauer

The Force of Law

by Frederick Schauer

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Imagine the results you'd get if, when thinking about the category of "religion," you took fundamentalist Protestant Christianity as the sole example of the category. When the specific and and the generic become synonymous, pretty strange things happen.

So it is here. Schauer wants to revive Bentham's and Austin's argument that coercion is the thing that sets law apart. Unfortunately he views the American legal system not only as the source for illustrations, but the very essence of law. The weight of his argument is that the "puzzled man" Hart imagines, who obeys the law because it is the law, and not because of any threatened sanction, is largely a myth -- but then goes on to admit that the "puzzled man" is probably much more common in other societies than our own. Unfortunately, he then plows ahead as though this fact does not negate his attempted description of "law" general. Arguably American law is uniquely dependent upon law's coercive power because of the decayed influence of other sources of normative systems, such as family, community, and religion. Looking to a hypertrophied instance as the prototypical instance of "law" causes problems throughout this text.

That aside, the greater problem is that Schauer misunderstands the problem. He regards his chief intellectual adversaries to be those like Hart, who tried to relegate legal coercion to unusual cases, and perhaps he deals adequately with that challenge (not really, but let's pretend. The difficulty he cannot overcome on this prong is that Schauer demands a strict separation of law from morality. He recognizes this, and devotes a section to the problem, but concludes without the outcome he requires to move forward.).

The true obstacle, and one he barely recognizes, is that, yes, law is coercive, but so is every other institution of norm regulation. Religion, custom, and etiquette all extract penalties for rule violation. Most other writers then go on to say that it is the kind of punishment that is crucial, but Schauer cannot do that since for other reasons he has expanded legal coercion so expansively that even public embarrassment at being charged qualifies. Law is therefore neither unusual nor special in this regard. To the extent we are trying to identify something that warrants treating "law" as a distinct social category, we'll need something other than coercion.

While this book has one or two interesting ideas that merit further consideration, the main thesis is a deadend. Austin shall deservedly remain in the jurisprudential grave where Hart interred him. ( )
  dono421846 | Feb 16, 2015 |
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Amazon.com Product Description (ISBN 0674368215, Hardcover)

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.

(retrieved from Amazon Thu, 12 Mar 2015 18:17:02 -0400)

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