Legal Theory Book Review 129 Harv. L. Rev. 1932

How to Explain Things with Force



Frederick Schauer’s provocative new book The Force of Law champions the study of coercion in legal theory. Schauer holds that, though it is theoretically possible for there to be law without the use of coercion, coercion is in fact a ubiquitous feature of law, central to the everyday experience of law and to popular ideas about it. One might think that it hardly needs emphasizing that the use of coercion is an important feature of law. But Schauer believes that contemporary philosophy of law has mistakenly relegated the study of coercion to the sidelines, and his book aims to correct that mistake.

Schauer argues that a widespread confusion has led philosophers and empirical theorists to overestimate the prevalence of people who obey the law simply because it has the status of law. The alleged confusion is to assume that, if people act consistently with law for reasons other than self-interested ones, such as the threat of sanctions, then they are obeying the law because it is the law. Schauer points out that people often act for moral reasons, broadly understood. Such reasons, he assumes, exist independently of the law. He therefore argues that, when people act for moral reasons, the law has not affected their behavior. In investigating the prevalence of obedience to law, the key question, he insists, is how common it is for there to be people who, when the law requires action that they take to be wrong, nevertheless follow the law simply because it is the law. Although Schauer rightly holds that this kind of fetishism about law is possible, there is little reason to believe that it is common. Schauer draws the conclusion that coercion is the main way in which law can affect behavior.

I will show that Schauer neglects another possibility — that the law can alter morally relevant factors, thus generating moral reasons, such as reasons of fairness, for acting in a particular way. And it can do so without people internalizing legal norms or believing that they have a moral obligation to obey the law. So, if coercion is important, it is not because the use of coercion is the only way, aside from obedience to law qua law, that law can affect behavior. Unsurprisingly, whether coercion is important depends on what one is trying to explain. I will argue, for example, that coercion plays an important role in explaining how legal systems can generate moral reasons.

An important goal of The Force of Law is methodological: Schauer argues that philosophers have mistakenly adopted a narrow methodological view, according to which philosophy of law studies only the necessary properties of law — properties that any possible legal system must have. As Schauer develops the point, the nature of law may be elucidated in terms of typical properties of law rather than necessary ones. He proposes to elucidate the nature of law by what he calls “differentiation,” his alternative to the specification of necessary and sufficient conditions (pp. 154–68). The project of differentiating law seems to involve explaining what distinguishes the institutions ordinarily called “law” from other phenomena by identifying typical or ubiquitous properties of those institutions. Drawing on his discussion of the typical properties of law, Schauer proposes, somewhat cautiously, to classify a disparate collection of institutions and systems of norms as law or legal systems: the Mafia (pp. 136–37, 143); New York diamond dealers (p. 143); the American Contract Bridge League (p. 143); the World Trade Organization (WTO) (pp. 136, 160–63); tyrannies (pp. 95–96); kleptocracies (pp. 95–96); and, of course, the legal systems of contemporary democracies such as the United States and the United Kingdom. Law, thus understood, is a shallow category because the institutions in question have little in common beyond having systems of norms.

I offer two other ways of developing Schauer’s methodological idea. First, Schauer’s skepticism about the specification of necessary and sufficient conditions for law might be understood as a recommendation that philosophers engage in projects other than conceptual analysis, understood in the narrow traditional way, of the ordinary concept of law and the related project of specifying which organizations or systems count as legal systems according to ordinary usage. In my view, such a recommendation is a promising and welcome one (though I don’t take traditional conceptual analysis of law to be as prevalent in the field as Schauer does). I point out, however, that moving away from traditional conceptual analysis does not require giving up the project of providing an account of the nature of a phenomenon such as law. For example, such accounts can be empirically grounded and need not aim to reflect our concept of the phenomenon.

Second, given a proper understanding of the nature or essence of a phenomenon, properties that are not themselves essential properties of law may nevertheless figure in an account of the essential properties of law. In particular, I emphasize that it may be part of the nature of law that law have a point or function, or that it is supposed to be a certain way. And, for example, such a point or function of law may concern the use of coercion even if using coercion is not an essential property of law.

Finally, whatever one thinks about the prospects for an account of the essence or nature of law, there are other kinds of projects in which philosophers of law may profitably engage. I highlight one option — projects driven by explanatory concerns. (As there are diverse sorts of philosophical explanation, this category is a broad one.) Moving away from a focus on the ordinary concept of law and attending instead to systems that share explanatorily potent, or otherwise theoretically important, properties can yield a fruitful account of the role of coercion. I develop an example involving systems that have a particular aim — that of solving certain kinds of moral problems. With respect to such systems, we can offer more illuminating explanations of why they need to use coercion than the simple claim that they want to get people to do things that go against those people’s best judgments. Further, in order for it to be permissible for these systems to use coercion, they must change the moral landscape, for, without such changes, the morally permissible uses of coercion are limited. This constraint plays a powerful role in shaping such systems.

The Force of Law displays many of the strengths that readers will associate with Schauer’s rich and important body of work. It is empirically informed and historically nuanced. Drawing on his broad knowledge of different literatures, he offers insightful empirical speculations, illuminating parallels, and suggestive observations. He makes novel distinctions and resists conventional wisdom. Readers bored with the usual diet of recycled examples will find refreshing the eclectic collection of phenomena that Schauer deploys to illustrate and elaborate his points. These include the recent upheavals in Egypt (pp. 83–84); President Obama’s use of drone strikes in Libya (p. 89); restrictions on the production of raw milk cheese (p. 118); speed bumps (pp. 125–26); proposals to suspend congressional salaries and to deploy federal troops in New Orleans in the aftermath of Hurricane Katrina (p. 90); norms not only of New England whalers, but also of tennis players, comedians, and tattoo artists (p. 142); and a safety device that will automatically stop the blade of a table saw before it cuts off a human finger (p. 120). Another conspicuous virtue is Schauer’s avoidance of the temptation to overstate arguments, instead tending to give sympathetic consideration to both sides of an issue. As is the norm, I will focus on criticisms and points of disagreement, but beyond these there is a great deal to be admired, enjoyed, and learned from in this thought-provoking and original book.

I begin in Part I with an overview of Schauer’s arguments. In Part II, I take up Schauer’s argument that philosophy of law should be concerned with more than necessary properties. Part III criticizes Schauer’s argument that, once morally motivated behavior is set aside, there is little evidence of obedience to law qua law, and, therefore, that coercion emerges as the main lever by which law can affect behavior. In Part IV, I illustrate how a project driven by explanatory goals can provide a more fruitful investigation of coercion. Part V pulls my points together in a brief conclusion.

* Professor of Law and Professor of Philosophy, UCLA; Faculty Co-Director, UCLA Law and Philosophy Program. For detailed discussion and suggestions, I am grateful to Andrea Ashworth, Mitchell Berman, Barbara Herman, Harry Litman, Eliot Michaelson, Stephen Munzer, David Plunkett, Richard Re, Georges Rey, Scott Shapiro, Seana Shiffrin, and Jordan Wolf. I’m also grateful for helpful discussion at a UCLA faculty colloquium, including comments by Iman Anabtawi, Sam Bray, Joshua Dienstag, Robert Goldstein, Jennifer Mnookin, Herb Morris, Stephen Nayak-Young, Frances Olsen, and Rebecca Stone. Special thanks to the editors of the Harvard Law Review for valuable suggestions and editing.