The Force of Law

Frederick Schauer

• Publisher: Harvard University Press
• Year: 2015
• ISBN:
  9780674967144
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

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.

1

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INTRODUCTION: THE FORCE OF LAW

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1.1 The Ubiquity of Coercion

Law makes us do things we do not want to do. It has other functions as well, but perhaps the most visible aspect of law is its frequent insistence that we act in accordance with its wishes, our own personal interests or best judgment notwithstanding. The law demands that we pay taxes even when we have better uses for our money and think the taxes unwise. It requires us to obey traffic regulations even when the circumstances make them seem pointless. And at times the law conscripts us into military service, though we may believe the wars immoral, the dangers exaggerated, or the enemies imagined.

Law is hardly the only inhabitant of our normative universe. Morality makes demands upon our behavior as well, as do manners, etiquette, and countless social norms. But law, unlike morality and etiquette, possesses the resources to compel compliance in ways that other normative systems do not. It may be wrong to tell a lie or to clip one’s fingernails in public, but disobeying these strictures often brings no sanctions whatsoever. And even when such behavior attracts the social penalties of disapproval, shaming, guilt, ostracism, and damage to reputation, the penalties are diffuse and unsystematic. By contrast, 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. Moreover, when the law imposes such sanctions, it is commonly understood to be operating justifiably—that is, legitimately. Of course, the law is often subject to moral and political criticism when it imposes its sanctions unfairly, unwisely, imprudently, or immorally, but it remains widely accepted that law may ordinarily and legitimately use force to ensure compliance with its directives.¹

That the law can force people to do things they do not want to do, and which are sometimes against their own interests or their own best (and not necessarily self-interested) judgment, might seem far too obvious to justify thinking or writing much about it. But here, as elsewhere, things are often not what they seem. For more than half a century, legal philosophers, drawing their inspiration from H. L. A. Hart,² have questioned whether force, coercion, and sanctions are as important to understanding the nature of law as the ordinary person—the man on the Clapham omnibus, as the English quaintly put it—believes. Leslie Green, for example, claims that a regime of “stark imperatives” that simply “bossed people around” or that employed a “price system” to “[structure] their incentives while leaving them free to act as they pleased” would not even count as a “system of law” at all.³ Such efforts to marginalize the place of raw force in explaining what makes law distinctive follow on Hart’s seemingly sound observation that law often empowers rather than coerces. It establishes the structures and even the very concepts by which people can create corporations, make wills, and, especially, form governments. Yet understanding law as being coercive when it operates in this manner seems odd. The law, after all, does not appear to care whether I make a will or not, and it certainly does not coerce me into making or not making one. But although the choice to make or not make a will is mine, it is the law that enables me to make a will in the first place. Without the law there simply would be no such thing as a will, just as without the rules and the institution of chess there would be no such thing as checkmate, or castling, and without the rules of bridge (or baseball) it would be conceptually impossible to bid, make, or hit a grand slam. Because some aspects of what clearly is law do not appear to be coercive in any straightforward sense of coercion, we can appreciate the distortion inherent in attempting to shoehorn all of law into the ideas of force or compulsion.

That law is often constitutive⁴ and empowering rather than coercive is an important part of why Hart and his successors have denigrated an emphasis on coercion in attempting to understand the phenomenon of law. But even more important is the fact that it is possible, certainly in theory and occasionally in practice, to understand why people do things they do not want to do just because the law tells them they must do so but not because these commands come with a threat of force. People might, that is, follow the law just because it is the law but still without regard to what the law might do to them if they disobey. For example, in some countries—although decidedly not mine—pedestrians will stand obediently at “Don’t Walk” signs even when there is nary a car or police officer in sight. In doing so, they appear to believe that the law should be followed even when it seems to direct unnecessary, unreasonable, or unwise behavior, and even when the law’s sanctions are either absent or so deep in the background as to make their existence irrelevant. By the same token, governments and legal systems, which are themselves the source of the power to coerce citizens into lawful behavior, exist in the first place not because of force but because the governors have accepted—internalized—the rules establishing and circumscribing official power, and often appear to have done so independent of any fear of sanctions or other forms of coercion.

It thus appears that noncoercive law both can and does exist. But the question remains as to what we should make of this phenomenon. For some theorists, as exemplified by Green’s quotation above, we should make a great deal of it. In the tradition that Hart is taken to have established, the fact of law’s possible and occasional noncoerciveness is seen to be dispositive in characterizing the nature of law,⁵ at least if we understand, as Hart’s followers (but maybe not Hart himself⁶) have understood, the nature of something as involving its necessary or essential properties, the properties without which it would be something else.⁷ So if the nature of law is the collection of law’s essential properties in all possible legal systems in all possible worlds, and if there are things that are plainly law—like the law of wills and the obedient behavior of Finns when confronting a pointless command not to cross at a deserted intersection—but that appear not to be coercive, then coercion can no longer be considered essential to law. And if coercion is not essential to the very idea or concept of law, so the argument goes, then coercion loses its philosophical or theoretical interest in explaining the nature of law, regardless of coercion’s obvious importance to sociologists, psychologists, and the man on the Clapham omnibus. Joseph Raz is clearest and bluntest on the point: “The sociology of law provides a wealth of detailed information and analysis of the functions of law in some particular societies. Legal philosophy has to be content with those few features which all legal systems necessarily possess.”⁸

Yet there is a problem: the soundness of the foregoing conclusion depends on two premises whose own soundness is hardly self-evident. First, it assumes that the nature of something is best understood in terms of its necessary or essential features, or properties. But this is far from obvious.⁹ The nature or essence of any concept or category might sometimes, often, or always be a cluster of interrelated properties, none of which is individually necessary.¹⁰ Or it may be that the concept, category, or institution of law, at least, has no essence, it being too diverse a collection of phenomena to be captured or explained by one or more necessary properties. Yet even without attempting to resolve some of the deepest issues about language, concepts, and the categorial division of the world, it may still often be more valuable to focus on the typical rather than the necessary features or properties of some category or social phenomenon. Just as we can learn a great deal about birds from the typical but not necessary fact that birds fly and can understand important aspects of the history and chemistry of wine by focusing on the fact that wine is typically but not necessarily made from grapes, so too might we learn a great deal about law in general, and not just the law in this or that legal system at this or that time, from law’s typical but not necessary features.

Second, we should not too quickly accept that the domain of inquiry designated as “philosophical” should be limited to the search for essential properties, even if all or some of our concepts do have such essential properties.¹¹ I have neither interest in nor standing to delineate or police the boundaries of the discipline we call “philosophy” or the subdiscipline designated as the “philosophy of law.” Still, the various analytic and argumentative tools of philosophy might well be deployed with profit to forms of understanding other than the largely nonempirical search for necessary (or, occasionally, necessary and sufficient) conditions that characterizes contemporary conceptual analysis. And in any event we ought not let the contingent and contested contemporary demarcations of the academic disciplines circumscribe the inquiry or get in the way of following that inquiry wherever it might lead.

Therefore, although the present examination of the role of coercion in explaining the character and distinctiveness of law will at times be philosophical or conceptual in style and method, it will, unashamedly, often break out of those boundaries defined by the discipline of philosophy or accepted, rather more narrowly, by many contemporary practitioners of the philosophy of law. Some of what follows will be sociological, in the broadest sense, and more than some will draw on experimental psychological research. Some will draw on empirical and analytical conclusions from economics and political science. And none of what is to come will be a theory of law—or for that matter a theory of anything else. Oliver Wendell Holmes may have overstated the case against general theories when he said, “I care nothing for the systems—only the insights.”¹² But at least in the case of law, we may historically, and especially recently, have lost too many insights by too insistent a pursuit of a single systematic unifying account—or theory, if you will. Law might simply be too diverse a social phenomenon to support a unifying theory with very much explanatory power. Or even if a theory of the essence of law, or only of its necessary properties, were possible, such theories might turn out to be so abstract as to leave too many interesting questions, including philosophical questions, about law, about laws, and about legal systems unanswered. This book is thus an exploration of various aspects of law’s coercive dimension, pursued largely philosophically and analytically but with some empirical assistance. It is an account and not a theory. It is certainly not a system. But perhaps a mere account can have some value.

1.2 Obedience to Law

Telling people how to behave may not be all of law, but it seems at least a large part of it. And when law is in its commanding or prohibiting rather than empowering mode, it typically backs its commands and prohibitions with the credible threat of brute force or other sanctions in the event of noncompliance. The law tells us what to do, and it tells us that if we do not obey, then bad things will happen to us—perhaps jail, perhaps a monetary fine, perhaps something else unpleasant. The threat of painful or expensive sanctions in the event of disobedience appears to be a large part of how law operates and how it seeks to ensure compliance with its commands.

Lying behind the ubiquity of legal force is the assumption that without force, the law is often impotent. Compliance with the law may strike us as widespread when what the law commands happens to align with what people would do anyway, but when what law mandates diverges from what people would otherwise do or from what they otherwise believe to be right, the need for the threat of force becomes apparent. Perhaps if people always, or even usually, obeyed the law just because it was the law, their personal interests or not-necessarily-self-interested best judgment notwithstanding, law would have less need to use the raw power it commonly has at its disposal. But as we will explore below, especially in Chapters 5 and 6, that is not our world. In our world—and more in some parts of our world than in others—people generally do what they want to do or what they think it is right to do unless some external force makes them do otherwise. Law’s coercive side thus emerges as a consequence of the less than perfect—just how much less remains to be seen—willingness of law’s subjects to follow the law just because it is the law.

Framing the issue in terms of people’s proclivities toward obedience to law exposes issues that are both conceptual and empirical. What exactly does it mean to follow or obey the law? Is following the law the same as obeying the law just because it is the law? Is every act that is in compliance with the law also an act of obedience to the law? Sorting out these matters is important, as it has been for generations. Indeed, if we look back to Socrates and his reasons for following a legal judgment to his own death even though he thought the judgment unjust, the issue has been with us even longer.¹³ So we must engage in careful analysis, distinguishing obeying the law (or having a reason to obey the law) from acting consistently with or in compliance with the law and thus distinguishing having a reason to follow the law just because it is the law from engaging in the same behavior we would have engaged in even if no laws regulating it existed.¹⁴ It is true, after all, that my practice of refraining from murder, rape, arson, and perhaps even insider trading puts me in compliance with the law, but the law is no part of my unwillingness to engage in these activities, and neither my behavior nor even any of my behavioral inclinations would change one whit were the laws prohibiting such acts to be repealed tomorrow.

Having delineated what it means to obey or follow the law, and thus for law to make a difference in our decisions and behavior, we will turn then to the empirical side, examining whether people really do obey the law just because it is the law. And if there are people who do so, how often do they do so, and under what circumstances? As we will see in later chapters, it is far from clear that sanction-independent obedience to law, whether on the part of officials or of ordinary citizens, is nearly as common as many theorists and others believe.¹⁵ When we specify what it is to obey the law, and when we remove punishment and other coercive sanctions from the picture, it turns out that obeying the law just because it is the law, and not because of what will happen to us if we do not, is hardly widespread. Plainly this varies with the area of law, and even more with time, place, and legal culture, but the notion that law can do what it purports to do simply because of its own intrinsic moral or other power—its normativity, in the technical jurisprudential jargon¹⁶—appears to be substantially exaggerated.¹⁷

And thus force reenters the picture. If the mandates of law often conflict with the law-independent judgments of officials or citizens, and if on many of those occasions the law is right and what its subjects would otherwise do is mistaken, and if, further, the law’s subjects typically follow their own judgment and not the law’s on such occasions, then law’s coercive power—its raw force, if you will—becomes necessary for law to do what it needs to do. Indeed, the pervasiveness of force and the threat of it may be what make law distinctive. Morality urges us to take some actions and refrain from others, and public officials and other advocates do much the same thing when they are operating in persuasive and not coercive mode. But there is a difference between the mandates of moral...