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THE PLACE OF FORCE IN GENERAL JURISPRUDENCE

Published online by Cambridge University Press:  16 November 2016

Jeffrey A. Pojanowski
Jeffrey A. Pojanowski*
Affiliation:
Notre Dame Law School, [email protected]
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Abstract

This essay reviews Frederick Schauer's book, The Force of Law (2015). Schauer argues that coercion is central to legal practice and should be no less important in legal theory. In doing so, Schauer presents formidable challenges to standard versions of legal positivism—and does so from within the positivist framework. Much of Schauer's criticism on that score is sound. His analysis of the role coercion can play in accomplishing law's moral tasks is also welcome and important. Nevertheless, Schauer's jurisprudential framework comes up short in its inability to distinguish law from other social practices that also use force. The Force of Law’s strong critique of contemporary positivism and the incompleteness of its own method make an indirect case for the classical tradition of theorizing that understands law in light of its moral purposes.

Type
Research Article
Information
Legal Theory , Volume 21 , Issue 3-4 , December 2015 , pp. 242 - 253
Copyright
Copyright © Cambridge University Press 2016 

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References

1. Frederick Schauer, The Force of Law (2015).

2. See The Oxford Handbook on Jurisprudence & Philosophy of Law (Jules Coleman & Scott Shapiro eds., 2002).

3. See Schauer, supra note 1, at 11–15.

4. Cf. id. at 11 (“Bentham is one of history's greatest haters.”).

5. See John Finnis, Blackstone's Theoretical Intentions, in IV Collected Essays: Philosophy of Law 189 (2011).

6. Schauer, supra note 1, at 36 (quoting Joseph Raz, The Authority of Law: Essays on Law and Morality (1979), at 104–105).

7. Schauer, Force, supra note 1, at 137.

8. Id. at 31–32, 41–42.

9. Cf. Flannery O'Connor, A Good Man Is Hard to Find, in A Good Man Is Hard to Find and Other Stories (1955).

10. Schauer, supra note 1, at 59.

11. Id. at 57–61 (discussing Tom R. Tyler, Why People Obey the Law (2d ed. 2006)); id. at 61.

12. Schauer, supra note 1, at 48–51.

13. Id. at 64; see id. at 64–67 (surveying studies).

14. Id. at 73–74.

15. Id. at 65.

16. Id. at 86.

17. Id. at 87.

18. Id. at 89–90.

19. Id. at 90.

20. Id. at 84.

21. Morrison, Trevor W., Libya, “Hostilities,” the Office of Legal Counsel, and the Process of Executive Branch Legal Interpretation , 124 Harv. L. Rev. F. 62 (2011)Google Scholar.

22. Gerken, Heather, Judge Stories , 120 Yale L.J. 529, 530 (2010)Google Scholar (paraphrasing Hon. Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit); see, e.g., Sutton, Jeffrey S., A Review of Richard A. Posner, How Judges Think (2008) , 108 Mich. L. Rev . 859 (2010)Google Scholar. Schauer argues elsewhere that at least with respect to technical statutory cases, even the Supreme Court will coalesce around plain meaning independent of policy context. See Schauer, Frederick, Statutory Construction and the Coordinating Function of Plain Meaning , 1990 Sup. Ct. Rev. 231 (1990)Google Scholar.

23. See, e.g., Schauer, Frederick, When and How (If at All) Does Law Constrain Official Action? , 44 Ga. L. Rev. 769 (2010)Google Scholar.

24. See Foerch, Christian & Steinmetz, Helmuth, Left-Sided Traffic Directionality May Be the Safer “Rule of the Road” for Aging Populations , 73 Med. Hypotheses 20 (2009)CrossRefGoogle Scholar (suggesting that left-side laws are safer because more drivers are right-eye dominant).

25. See Schauer, Force, supra note 1, at 55–56.

26. See Bix, Brian, On the Dividing Line between Natural Law and Positivism , 75 Notre Dame L. Rev. 1613 (2000)Google Scholar.

27. Schauer also addresses, albeit not in as much depth, other candidates for necessary features, such as law's claim (true or not) of legitimate moral authority. He argues, for example, that many nation-states recognized by international law rule by fear and serve their leaders’ lust for greed and power. See Schauer, Force, supra note 1, at 95–96, 137.

28. See id. at 97 (“Coercion is hardly the only such characteristic [of law], but it seems to be among the most important.”).

29. See id. at 37–41.

30. H.L.A. Hart, The Concept of Law (3d ed. 2012), at 78 (quoted in Schauer, Force, supra note 1, at 42); see also Schauer, Force, supra note 1, at 42 (identifying how Scott Shapiro, Legality (2011), relies on a similar implicit assumption about puzzled men).

31. Schauer, Force, supra note 1, at 137.

32. Id. at 159–161.

33. Id. at 137.

34. Id.; cf. Jeffrey A. Pojanowski, Legal Thought in Enlightenment's Wake, 4 Jurisprudence 158 (2013) (noting Hart's uncomfortable suspension between natural law and more thoroughgoing, externalist positivism).

35. Schauer, Force, supra note 1, at 95–96.

36. Id. at 154–159.

37. Id. at 160–161.

38. Leslie Green, The Morality in Law, University of Oxford Legal Research Paper Series No. 12/2013 (Feb. 2013), at 6 n.10, http://ssrn.com/abstract=2223760.

39. Green, Leslie, The Forces of Law: Duty, Coercion and Power , 29 Ratio Juris 164, 165 (2016)CrossRefGoogle Scholar.

40. Id. at 177.

41. Id.

42. Id.

43. John Finnis, Natural Law & Natural Rights (2d ed. 2011), at 4.

44. Cf. Thomas Aquinas, Summa Theologica I–II q. 90 a. 4.

45. See, e.g., Webber, Grégoire, Asking Why in the Study of Human Affairs , 60 Am. J. Juris. 51 (2015)CrossRefGoogle Scholar; Finnis, Natural Law, supra note 43, ch. 1; Voegelin, Eric, The Theory of Legal Science: A Review , 4 La. L. Rev. 554 (1942)Google Scholar.

46. Complex lawlike systems also operate within firms, the domain traditionally contrasted with legal ordering. See Gabriel V. Rauterberg, Contracting within the Firm (unpublished paper on file with author).

47. Cf. Schauer, Force, supra note 1, at 71 (discussing the category of “first-stage law”) (citing Ruth Gavison, Legal Theory and the Role of Rules, 14 Harv. J.L. & Pub. Pol'y 727 (1991), at 740–741).

48. See Priel, Dan, Toward Classical Legal Positivism , 101 Va. L. Rev. 987 (2015)Google Scholar (identifying Hobbes and Bentham as “classical” positivists).

49. Schauer, Force, supra note 1, at 101.

50. Id. at 102. Schauer also argues that law can perform a reforming function at a social level, as when antisegregation laws improve attitudes about race over time. See id. at 102–103.

51. Id. at 104–109.

52. See, e.g., Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Life and in Law (1993); Schauer, Statutory Construction, supra note 22; Schauer, Frederick, Formalism , 97 Yale L.J. 509 (1988)CrossRefGoogle Scholar.

53. In addition to Schauer, see, e.g., Larry Alexander & Emily Sherwin, The Rule of Rules: Morality, Rules, and the Dilemmas of Law (2001); Tom D. Campbell, The Legal Theory of Ethical Positivism (1996).

54. See John Finnis, The Truth in Legal Positivism, in The Autonomy of Law: Essays on Legal Positivism 195–214 (Robert George ed., 1996).

55. Because most of us believe we are above-average drivers, too many of us will speed. Schauer, Force, supra note 1, at 106.

56. Id. at 91–92.

57. See Alexander & Sherwin, supra note 53, at 232 n.4 (“[I]t is lack of information, not immoral motivation, that gives rise to the need for formalistic law.”).

58. Cf. Hart, supra note 30, ch. 9.2 (“The Minimum Content of Natural Law”).

59. See Pojanowski, Jeffrey A., Redrawing the Dividing Lines between Natural Law and Positivism(s) , 101 Va. L. Rev. 1023 (2015)Google Scholar (arguing that “the dividing line between natural law and classical positivism is metaphysical”).

60. See Finnis, Truth, supra note 54.

61. See generally Alasdair MacIntyre, After Virtue ch. 4 (2d ed. 1984).

62. Schauer's wise concluding point about when to use law to solve problems, as opposed to other forms of social and political organization owes more to Henry Hart & Albert M. Sacks, The Legal Process (1994), than to Herbert Hart; see Schauer, Force, supra note 1, at 167–168.

63. Or even one that is composed of angels. Lucifer, after all, began his career as part of the Heavenly Host.

64. Cf. John Gardner, Law as a Leap of Faith, in Law as a Leap of Faith 18 (2012) (“Law is not God and happily lawyers need not, in their professional capacity, be true believers.”)