Vol. 26 No. 5 (September 2016) pp. 87-90
THE FORCE OF LAW, by Frederick Schauer. Cambridge, Massachusetts: Harvard University Press, 2015. 239 pages. Cloth $35.00. ISBN: 978-0-674-36821-7.
Reviewed by Whitley Kaufman, Department of Philosophy, University of Massachusetts Lowell. Email: email@example.com.
Law professor Frederick Schauer’s THE FORCE OF LAW is a self-described “intervention” in the legal philosophy debate about the role of coercion in the law (p. ix). His goal is to “challenge an idea” that he sees as “predominant” in legal philosophy since H.L.A. Hart published his vastly influential legal positivist book THE CONCEPT OF LAW in 1961: the idea that the “very nature of law lies elsewhere than in its coercive capacity” (p. ix). Schauer thinks that legal philosophy has, in this regard, become out of touch with common sense reality, where the ordinary person’s experience of the law is defined by the threat of coercive force: “That a feature of law that is so important and salient to almost everyone except legal philosophers is so marginal to the jurisprudential enterprise says something about the enterprise of philosophy of law” (p. x). The book is devoted to defending the centrality of coercion to the law.
It is however unclear precisely what thesis Schauer is defending, for he gives numerous distinct versions of the relationship between coercion and law. These range from the tautological (it is a “mistake to underestimate the role of coercion” (p. 85)) to the fairly obvious (coercion is “often necessary” to secure compliance (p. 75)) to the very strong (coercion is “central to the very idea of law” (p. 165)). Schauer also invokes both a descriptive and normative version of the claim (Law is “commonly and valuably” coercive (p. x)). Schauer further tells us that sanctions “seem crucial” in motivating compliance (p.76), that coercion “occupies center stage” in explaining obedience to the law (p. 148), and that coercion is “not all of law,” but “must be numbered among those features” that need to be explained by a satisfactory theory of law (p. 85). It is thus difficult to say just exactly what his position is: the obviously true claim that coercion is an important part of law, the far more problematic claim it is the “key” or “center stage” of law, the empirical claim that it is what is most salient to the average person, or the claim it is in practice essential to gain compliance.
Nor is it clear just what position Schauer’s book is aimed against. Sometimes he states the opposing view as the very strong thesis that coercion is “irrelevant to explaining the nature of law” (p. ix) or that it is “not essential” to the idea of law, and so “loses its philosophical or theoretical interest in explaining the nature of law” (p. 3). At other points he presents a much weaker and vaguer thesis, for example that coercion is “downplayed” by legal philosophers (p. x) or that “the role of force in law is “marginalized” (p. 2).
Figuring out just what the precise position Schauer is criticizing is further complicated by his ambiguity as to just who holds this view, or how many of them there are. The major target in the book seems to be Hart, who Schauer repeatedly returns to as the source of this pernicious view. Yet from the very beginning of the book, Schauer indicates his uncertainty whether in fact to attribute it to Hart himself. He writes: “I question Hart’s view” and then wonders whether coercion is as irrelevant “as perhaps Hart and certainly his legions of followers have assumed” (p. ix). So the real target seems to be the “legions” of followers and successors of Hart (p. 2), rather than Hart himself (in fact, Hart certainly did not believe that coercion is “irrelevant” to the law). Elsewhere he attributes the position to [*88] a “host of legal theorists” (p. 24) or “many legal theorists” (p. 37), and even says it has become the “conventional wisdom” in legal philosophy, though quickly qualifying the claim by saying “at least in some circles of academic philosophy” (p. 10). Alternatively, it is an unidentified group of “legal philosophers” that have, “for more than half a century” questioned whether force and coercion are as important to law as the ordinary person believes (p. 2).
It is not clear to me who these “legions” are who supposedly claim the irrelevance of coercion to law (if that is what they are supposed to be claiming). Schauer presents a few quotations from these Hart followers to support his claim. But the examples are quite sparse, and moreover it is not at all clear that they are in fact marginalizing or dismissing the role of coercion. In one of the few quotations given in the text (there are several more in the endnotes) he quotes Leslie Green’s statement that a regime that “simply bossed people around” would not even count as law (p. 2). But this could be interpreted simply as holding that mere coercion is not enough to constitute a legal system – a position that seems quite sensible, and that hardly claims that coercion is unimportant, let alone irrelevant. The other quotations Schuaer supplies (in the endnotes) also do not provide clear evidence of scholars proclaiming that coercion is irrelevant to law. All of this makes it difficult to figure out just what the problem is that Schauer is trying to address.
Schauer attempts to make this dispute more precise, by taking it out of the philosophical realm and making it into an empirically determinable question. We can, he thinks, determine just how important coercion is by measuring just how frequent is “sanction-independent genuine obedience to law” (p. 75); that is, how often do people obey the law for reasons other than the threat of punishment? Now just this empirical question was addressed by Tom Tyler, as Schauer recognizes, in an influential book (WHY PEOPLE OBEY THE LAW) published in 1990 (as well as a series of articles). The problem is that Tyler reaches exactly the opposite conclusion: “sanctions are of decidedly secondary importance in explaining legal compliance,” and “morality” is the primary factor explaining peoples’ compliance with the law (p. 58). That is, though Tyler does not claim that sanctions are irrelevant or inessential to the law, he does claim that they are certainly not the central or key defining feature of law to the average person.
Schauer’s response is to reject Tyler’s conclusions as based on a conceptual confusion about the nature of law. He suggests that Tyler failed to distinguish between being motivated to comply with legal norms by “law-independent morality” versus being motivated by law in itself (p. 58). Thus, he insists, Tyler’s conclusion is “fallacious” (p. 58.) and we “cannot reach strong conclusions about the extent to which sanction-free law qua law is providing people with a reason to avoid engaging in behavior they would, the law aside, have considered desirable” (p. 61).
Is Schauer right that Tyler’s conclusions are fallacious? Here we get to the very central and defining issue in Schauer’s book: his key assumption that the possible motivations for obedience to the law are only two: either one is motivated by coercion itself, or by a duty to the “law qua law,” the law in itself. The morality of the law is excluded a priori by Schauer; it cannot count as a form of motivation to obey the law on the grounds that it does not constitute a legal reason to obey the law, but an independent reason. Or, as he puts it, mere “consistency” with the law is not the same thing as being motivated by the law (p. 75).
Many readers will find this consistency argument unconvincing. To be sure, most people are likely to obey laws against theft, homicide, etc. on moral grounds regardless of the law. But to insist that therefore one’s behavior should not count as obedience to the law is to make a rather artificial [*89] distinction. The average person is unlikely to insist that he is obeying the law not because it is the law, but only because of his moral principles. Most people would say, I think, that it is both. Indeed, the fact that the law correlates with moral principles is a reason to respect and obey it, not a reason for ignoring the law as irrelevant. Moreover, Schauer ignores the fact that the consistency of law with morality has an important role in creating acceptance of the legal system. Thus even when there are particular laws that one disagrees with morally, one will be more likely to obey them simply out of respect for the legal system as a whole.
Further, to exclude moral reasons for obeying the law is to stack the deck in favor of Schauer’s thesis, that it is coercion that is central to law. This becomes even more obvious when we examine the notion of being motivated to obey the law qua law. It is far from clear that this is even a coherent position. What could it mean to obey the law “just because it is the law” (p. 88)? This is not to give a reason at all, any more than to tell someone to obey me just because I said so. What we need to know is, what is it about the law that does or should make us want to obey it? To ask this question leaves us only these alternatives: either because of coercion (i.e. self-interest in general), or because of the moral legitimacy of the law (either the moral legitimacy of the individual law, or of the legal system as a whole), or a combination of the two. So if one excludes by fiat morality as a motivation to obey the law, then it follows trivially that coercion must be central.
Schauer claims that there is “scant empirical support for the view that people are willing voluntarily to subjugate their own best judgment of what morality and policy require to what they consider law’s mistaken moral or policy judgment” (p. 98). But while there may not be a host of controlled studies testing this claim, surely common sense tells us that such things happen all the time. Consider for example the notorious BUSH V. GORE case in the Supreme Court. A clear majority of the country voted for Gore and hence disagreed with the outcome; moreover, the reasoning of the majority decision produced by the Court was widely recognized as unconvincing, to put it mildly. Yet the people did not take to the streets to demand justice. Rather, they abided by the decision not because they agreed with it, nor because of the fear of coercion, but because they accepted the legitimacy of the legal and political system itself – including the institutional legitimacy of the Court itself, which despite such occasional lapses as BUSH V. GORE, over the long run has preserved its institutional reputation. And surely this is not an isolated case. Most people abide by most laws they disagree with, in part because of the fear of getting punished, but even more importantly by the idea of respect for the democratic legitimacy of the system. We need not seek for such phantoms as the idea of obeying law qua law, if that even means anything.
This debate is ultimately one between legal positivism and natural law. The natural law position is that the two essential attributes of law are force (in particular, the state monopoly on force) and morality (understood broadly, to include the political legitimacy of the legal system as well as morality in the narrow sense). The legal positivists came along and rejected the idea that morality is essential to law. But this created a major problem for them: does that mean it is force alone that constitutes law as law? Hence the central problem for positivists, how to distinguish the gunman’s command (your money or your life) from the law of the state. Positivists have tried innumerable ingenious suggestions as to what distinguishes law, no one of them becoming the standard view (though Hart’s is the most influential). But in any case, they insist that the law is not merely the ‘gunman writ large’ – i.e. law is not merely about force.
Thus the legal positivist is forced to downplay the role of coercion in law, just so [*90] as to distinguish the law from the gunman case. It is this tendency that has made Schauer think that legal philosophers have lost touch with everyday reality, the role of force in the law. Remarkably, Schauer is willing to go even further than the positivists, in embracing the idea that there is no essential difference between the gunman and the law, and that the law really just is a case of the gunman writ large. From a “positivist perspective,” he writes, “in many respects we might just say, without losing very much, that the Mafia is simply a legal system, even if a nonstate one” (p. 137). He criticizes Hart for holding that “Law surely is not the gunman situation writ large” (Hart 1961, quoted in Schauer p.159), claiming that the use of “surely” is a “common sign” of someone believing that “no actual argument or evidence is necessary” (p. 159).
While this view is consistent with Schauer’s claim that coercion is the “key” to law, for most people the conclusion would constitute a reductio ad absurdum of the positivist theory of law. Even Schauer’s “ordinary person” would surely balk at this result. But if one rejects Schauer’s argument for ignoring moral reasons for obeying the law, the real question becomes one of whether people comply with the law because of the moral legitimacy of the law, or because of the threat of force. And on this question Tyler’s research gives us a clear answer: morality comes first, and force is merely secondary. This position has important practical implications for a law to be effective; law must aspire towards moral legitimacy, both in individual laws but even more so for the system as a whole. Moral legitimacy, not coercion would appear to be the true “key” to law. Schauer is perhaps right that some positivists have gone too far in downplaying the role of coercion in law. But that may just be the result of an inherent flaw in positivism, which in its rejection of the connection between law and morality has to overcompensate by denying the central role of force. In any case, it is equally mistaken to go to the other extreme and make coercion the central defining feature of law, while dismissing the crucial role of morality. In any case, this book will no doubt stimulate further debate on this important question of the connection between force and law.
H.L.A. Hart, 1961. THE CONCEPT OF LAW. New York: Oxford University Press.
Tom Tyler, 1990. WHY PEOPLE OBEY THE LAW. New Haven, CT: Yale University Press.
BUSH V. GORE, 252 U.S. 98 (2000).
© Copyright 2016 by author, Whitley Kaufman