Schauer on Coercion

Schauer on Coercion Anna Pintore*

§ 1. Frederick Schauer’s The Force of Law1 has the great merit of having finally put the focus back onto law’s coercive dimension. This issue has been side-lined by Anglo-American legal philosophy in recent decades, not because it was felt that every aspect of it had been gone over with a tooth-comb, but because it had been decreed to be philosophically irrelevant. Schauer vigorously opposes this new conventional wisdom, defending his position with a book that, like his previous works and even more so, is profound, balanced, lively and rich in insights. The book’s second merit is that it is right, in fact egregiously right: it is impossible to achieve an adequate understanding of what law is and how it functions if its coercive dimension is neglected. Towards the end of his discourse, Schauer points out that ‘relegating the coercive aspect of law to the side-lines of theoretical interest is perverse’ (167). Less diplomatically, I would say that it is a case of consequentialist folly, and I believe we all owe Schauer a debt of gratitude for having planted our feet back on the ground by telling us some sobering truth. But as sometimes happens, it is possible to agree with a conclusion and yet disagree to a greater or lesser extent with the arguments used to reach it: I shall focus here on the main points of disagreement, since I believe that expounding on doubts and criticisms may turn out to be more interesting, both for the author and for readers. To anticipate my approach, I shall express doubts about: 1) Schauer’s interpretation of Hart’s ideas on coercion, 2) the general flavour of his arguments against the current received view and 3) his very notion of coercion.

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Department of Law, University of Cagliari.

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(Harvard UP, 2015).

§ 2. Although Schauer criticises the way that Anglo-American philosophy of law has treated the issue of coercion in recent decades, he agrees with one salient point: he, too, traces the beginning of the new development back to Hart. I must confess that I have some difficulty understanding how the Anglo-Americans have been able to be so persistent in putting across an anti-coercivist interpretation of Hart as to raise it to the status of a received view. I am comforted by the fact that I am not alone, since as far as I know nobody in continental philosophy of law has ever doubted that, with regard to the coercive character of law, Hart can be placed along a line of strict continuity with the authors who exerted the greatest influence on him, i.e. with Bentham, Austin and Kelsen2. We should consider the frequency with which the expressions ‘coercion’, ‘sanction’, ‘force’ and the family of related words crop up throughout his book, and not just in the first chapters devoted to his critique of Austin: consider, for example, his frequent uses of such expressions as ‘the coercive power of law’ and ‘the coercive framework of the law’. We should also remember that Hart treats sanctions as a ‘natural necessity’3, even going so far as to raise them to the status of an element of the minimum content of natural law – something that Schauer duly mentions, although he treats it as little more than a slip of the tongue. I admit that Hart is not always crystal-clear, also when he discusses coercion. The current interpretation may have been fuelled, for example, by his celebrated ‘definition’ (but is it really a definition?) of law as the union of primary and secondary rules that, while focusing on the structure of legal systems, fails to mention its coercive element. While Hart unquestionably refutes both the sanction-based theories of legal obligation and the various reductionist accounts of legal rules, understanding the underlying reasons behind his criticism is important. Hart considers Austin’s model of law as a set of coercive orders to be 2

I went into this in greater detail in my ‘«A Rule-Governed Gunman Writ Large?». El puesto de la coerción

en The Concept of Law’ (2014) 37 Doxa 125. 3

HLA Hart, The Concept of Law (Clarendon Press 2nd ed. 1994 with a Postscript, ed. by Penelope A

Bulloch and Joseph Raz), 199.

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mistaken, not so much because it puts coercion in the forefront, but because it does so in a way that reduces law to a set of psychological and behavioural mechanisms, neglecting its normative dimension. On the other hand, Hart cannot accept Kelsen’s normativism because, as a normative phenomenon, law cannot be reduced to a set of rules that are all sanctioned or sanctioning. In addition to law’s function of social control, Hart certainly also aims to stress those of co-ordination and organisation that Kelsen’s theory glosses over in silence. Schauer’s interpretation hinges in particular on law’s constitutive dimension, so on powerconferring rules, which for Hart are obviously not assisted by sanctions. But it is easy enough to counter that if coercion does not take the form of sanctions in the foreground here, it is nevertheless present in the background: indeed, these rules could not achieve their specific social function if they were not operating within the coercive framework of the law, which provides protection for the individual’s choices when they are made in legal forms, eventually with the aid of coercive sanctions4. To put it another way, being vested with legal powers involves the legal possibility of having recourse to the coercive power of the state and to a certain extent of controlling how it is put into practice. Schauer also stresses Hart’s over-evaluation of the figure of the puzzled man. As Hart believes that law is not normally obeyed out of a fear of sanctions, he would downgrade the legal use of force and sanctions to the level of a walk-on part. I think that Schauer’s critique of the puzzled man is right and also believe that he is right in general when he treats the juxtaposition between the puzzled man and the bad man as a false dichotomy. Nevertheless, I do not find even this argument to be wholly convincing. However unrealistic and irenic it may be, Hart’s belief that law is populated by puzzled men is thoroughly compatible with the idea that it uses rules to organise and administer physical force, especially but not only with the aid of sanctions, to compel the (for him handful of) recalcitrant people to toe the line. But then the distinction between motives 4

For Schauer, on the other hand, power-conferring rules may be coercive to the extent that nullity is

perceived to be ‘unpleasant or inconvenient’ (30), namely as a sanction. See also § 4.

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and reasons is fundamental to Hart’s thinking: one thing are the many and varied motives why in practice we comply with the law, quite another is the reason that justifies this compliance, which always traces back to the legal rule in force. Rightly or wrongly, Hart is primarily interested in the typical and unifying element of adherence to the law that is manifested through the internal point of view and is expressed through the well-known internal normative statements5. In actual fact, the issue of coercion still pervades Hart’s entire theory of social rules, even before his theory of the law. A constitutive element of every social rule, regardless of whether it be moral or legal, it is actually what he calls ‘social pressure’ or ‘pressure for conformity’, which refers back to a varied typology of ‘hostile social reactions’, both verbal and non-verbal, i.e. of negative sanctions; and for Hart one of the criteria for distinguishing between moral and legal rules is the typical form of legal pressure, which in the case of legal rules consists in threats of ‘physical punishment or unpleasant consequences’6. But the role played by coercion in Hart’s concept of law comes across most clearly when he moves on to illustrate the characteristics of a legal system, i.e. when he introduces the notion of the rule of recognition. In fact, he sees this rule’s function as that of establishing the criteria for belonging to the system, which means selecting the rules that will have to be underpinned by social

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Schauer, on the other hand, identifies the reasons for acting with the agent’s individual motives. His thesis

is that the law is obeyed ‘just because it is the law’ (42), in other words it acts as such as a motive of conformity, much less often than Hart and many others think. This is a key point that would deserve much lengthier discussion. Here I shall restrict myself to pointing out that, in my opinion, Hart has never sustained such a thesis, to which he would probably impute confusion between acceptance and the motives for acceptance. In my opinion, the ideal type of the puzzled man in Hart summarises the attitude of adherence to the law (for him unquestionably prevalent in ‘normal’ societies), regardless of the variety of underlying factors that motivate it and that cannot be traced back to the one indicated by Schauer. 6

See Hart (n 1), 179-80.

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pressure7. And in evolved legal systems, says Hart, this social pressure is not managed by an indistinct community, but by a complex, articulated organisation, by a centralised, coercive institutional apparatus that holds the monopoly of coercion in a given territory, tending to rule out the possibility of private self-protection and the private use of physical force. You could almost be forgiven for thinking that you are reading Kelsen. When Hart states that ‘law without sanctions is perfectly conceivable’8, his aim is to criticise those who think that the issue can be decided in terms of definitions, i.e. that the presence of sanctions is required by the meaning of the term ‘law’ or ‘legal system’. On the other hand, when he cites international law as an example of law without sanctions, what he is telling us is not that international law is totally bereft of sanctions, but of ‘centrally organised sanctions’9, going on to point out that, compared to international law, state law is ‘far more strongly coercive’10.

§ 3. The question goes rather deeper than the correct exegesis of Hart’s thinking, however, directly tackling the very issue of the concept of law and its definition. Schauer points out that the element of coercion has been struck out of the Anglo-American philosophy of law agenda on the basis of an essentialist theory of concepts. This states that a concept is adequately constructed only if it includes the necessary or essential properties of what it designates, which as such are to be found in all its instances in all possible world. And since it is possible to imagine a world where the law has no apparatus of coercion and of sanctions, lo and behold law’s coercive character, despite its ubiquity in the real world, cannot be raised to the dignity of an essential or defining element.

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The rule of recognition ‘will specify some feature or features possession of which by a suggested rule is

taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts’ (Ibid, 94, my italics). 8

Ibid, 38.

9

Ibid, 199, my italics.

10

Ibid, 231.

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Schauer counters this line of thought pointing out that there are other ways of understanding concepts that we can find both in the cognitive sciences and in anti- or nonessentialist traditions of philosophy, such as those of family resemblances, of cluster concepts, of prototypes and of generics. He refutes conceptual essentialism, but in so doing, to my mind, he also appears to deny the possibility of talking about law’s necessary features in any perspective other than the essentialist one, for example in a perspective like Hart’s, in which the necessity of coercion is contingent on or conditional to certain constant characteristics of the world and of human nature11. He thus comments that, since not everything that is necessary is also important, and since the law can have features that are important although not necessary/universal, not even conceptual essentialism precludes treating law’s important and ubiquitous – but not necessary/universal – aspects, such as coercion, as relevant problems for the philosophy of law. In other words, he entrusts his argument about the focal role of coercion to factual considerations about what is typical, frequent or generally true. I have the impression that, by reasoning in this way, Schauer ends up giving too much ground to his adversaries, who might even find confirmation of their theses in his book, or at least build them easily enough into their own. After all, they also do not question the ubiquity of coercion in all law known to us. This would result in reducing the dispute to the question of whether the analytical apparatus deployed in his book is fully entitled to be considered a part of our discipline or should rather be considered the theoretical and preparatory part of the empirical investigations in legal sociology12. In other words, it would have the effect of transforming it into a dispute of frankly negligible interest, in his and my own opinion, about the borderline between two neighbouring disciplines. 11

Or, as I shall mention below, in a nominalistic perspective, in which a given feature of law is treated as

necessary by virtue of a stipulative definition consciously instrumental to certain theoretical or practical objectives. 12

And in fact Raz holds that it is the task of the sociology of law to deal with law’s not necessary features.

See Joseph Raz, The Authority of Law: Essays on Law and Morality (Clarendon Press, 1979), 104-5.

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Personally, I identify with a philosophical tradition whose distinguishing trait is an obsessive attention to concepts and definitions and that reacts to the definition of each concept, in particular those that are philosophically controversial, by asking what kind of operation is undertaken, defining it, and what purposes are served by the definition13. These questions are even more inevitable for a concept, such as that of law, whose practical and normative dimension is crucial, as Schauer reminds us at the very start of his book. He refers several times to the proverbial man on the Clapham omnibus, who has no doubts at all that law’s coercive dimension is ‘especially salient’ (167), and rightly holds that legal theory cannot close its eyes to this belief that is so deeply rooted in a common sense from which it should avoid moving too far away14. The fact that law’s coercive nature is taken for granted by common sense and that this has been apparent to centuries of philosophical tradition, including Hart, forces us to question the nature of the philosophical operation undertaken by those who exclude from the concept of law what is unquestionably an essential trait of the ordinary concept. Law is a socially constructed object15, which means that it is shaped by the ideas we have about it. Obviously, our ideas will be all the more influential in determining its characteristics, the more they are socially widespread; but it is equally obvious that law’s crucial importance in every society, the fact that it ‘makes us do things we do not want to do’ (1), interfering continuously with 13

See Uberto Scarpelli, Filosofia analitica del diritto (ETS, 2014); Mario Jori, Del diritto inesistente (ETS,

2010). This perspective is anything but extraneous to Schauer, as is clearly conveyed, for example, when he comments on the thesis that ‘evil’ law is defective law, stating ‘But then the issue is joined about what it is that an account of law is designed to accomplish’ (212-13). 14

What follows is largely influenced by Jori (n 12), whose main thesis is that not only lay people, but also

specialists, rely on common sense both to identify the area of what is juridical and to single out the law in force in a given place and time; the common sense concept of law therefore also underpins legal method. 15

Frederick Schauer, ‘The Social Construction of the Concept of Law: A Reply to Julie Dickson’ (2005) 25

Oxford Journal of Legal Studies 493.

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the most vital aspects of our existence, exerts such enormous pressure that it induces us to reshape it to suit our theoretical requirements and/or our ethical and political values. Legal theory is not immune to this game: on the contrary, it is a front-line player. To grasp the meaning of the operation undertaken by those who exclude coercion from the concept of law, it is therefore necessary to consider not only the elements of legality that are downgraded to the status of contingent factors, but also those elements that are promoted to the status of necessary factors. To quote the two philosophers to whom Schauer devotes most attention, in the case of Raz, the essential element is, as we know, law’s claim of legitimate authority, while in the case of Scott Shapiro it is its having moral aims. Conceptual operations such as those undertaken by Raz and by Shapiro express legitimate philosophical choices, on condition that they are presented as such and not encapsulated in the essence of universal law16. I think it is equally clear that their definitions are not functional to the aim of improving our knowledge of law as a social and historical phenomenon. There is in fact no obvious evidence of what cognitive advantage may accrue from including an angelic law along the lines of Raz or Shapiro’s law of Cooks Island in the area of the juridical. There is nothing to stop us imagining a society in which the social practice of chess is conceived of as a religious ritual rather than a game17. But to use this mental experiment as the basis for a definition of chess that does not include its character as a game would not only fail to improve, but would actually seriously distort, our understanding both of chess and of religion. It follows that the scope of operations of this kind is rather more practical and normative, a fact that is actually quite transparent: their purpose is to

16

One non-coercive universal law is a familiar concept, because it has been around for a long time: it is that

of rational natural law. As we know, however, such law unfortunately has to rely on ‘people with guns’ (129) if it is to hope to have any following in the real world. 17

See Hubert Schwyzer, ‘Rules and Practices’ (1969) 78 The Philosophical Review 451. I say this without

prejudice to the philosophical usefulness of mental experiments and of counterfactual hypotheses as tools of philosophical discovery or clarification. Consider Hart’s useful artifice of pre-legal society.

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redirect attention to the moral dimension of legal operations, to their nexus with requirements or preconditions of morality. Seen in this light, the law takes on the semblance more of a question of moral reasoning and of just moral solution (which it at least potentially aspires to be) than of power, of decision-making and of coercive imposition18. To be sure, not even a conception of law built around coercion can be considered to be immune to philosophical choices, because in actual fact none can be. And yet, in addition to the link to common sense, it is also favoured by the fact that it is better equipped to tackle both the description of law and its evaluation, as well as to lay the foundations for drawing a strict distinction between the two tasks. And Schauer actually deploys some excellent arguments in both these directions. With regard to the descriptive task, he comments that, if we were to follow Raz and Shapiro, we would be forced to exclude from the area of juridical those normative systems that do not even claim legitimate authority, nor set themselves or declare any moral ends, and that nevertheless have undeniable structural similarities with orders that do lay such claims or set themselves such ends19. On the descriptive plane, he says, it is advisable to stick to a skeletal notion of the law, the one that, borrowing a phrase from Ruth Gavison, he calls ‘first-stage law’ (70) and that coincides substantially with the common sense view: for the excellent reason that, if we were to include moral, political or other kinds of elements in the legal area, we would rule out understanding whether and to what extent law can be a factor that influences actions distinct from, and potentially conflicting with, those self-same elements. It could hardly be said better. On the ethical and political plane, Schauer himself stresses how the emphasis put on coercion by the

18

If law could function spontaneously, it would be indistinguishable from morals, i.e. it would have no

reason to exist as a means of guiding actions that exists for the very purpose of making up for the insufficiencies of morals. 19

As Jori points out (n 12, 146), binding legality to moral considerations (with regard to which morals,

moreover?) is first and foremost an extravagant idea, at least for modern law, distinguished as it is by the presence of a legislative organ that is constantly engaged in the daily amendment of its contents.

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English fathers of analytical jurisprudence Bentham and Austin was strictly functional to their plan to distinguish between law as it is and law as it ought to be, a distinction that in its turn is instrumental for the possibility and fertility of a critique of the law: ‘It is precisely the force of law that makes the distinction between law’s existence and its merit essential’ (19). For minds that came after Bentham, coercion is an element that calls for justification and does not give the law any however remote credentials of moral respectability, for which we have to seek elsewhere, if indeed such a thing exists20. In his conclusions, Schauer says that his book can provide tools that can be useful for institutional design; in other words, it can help optimise the social performances that the law is best suited to providing as a guide for human behaviour. This is unquestionable, but if what I have just written is right, the very picture of law that he draws has a much more immediate and pervasive normative scope than the one he declares in sober tones at the end of the book. To return to Hart for a moment, I have the impression that he is not so much the culprit who was responsible for initiating the unfortunate tradition of legal theory that relegates coercion to the periphery of law’s empire, as Schauer and many others maintain: in actual fact it is Dworkin21. Although it is true that Dworkin does not at all deny the coercive character of the law, since he attributes to legal theory the very task of justifying the exercise of the state’s coercive power, it is equally true that he considers the justification to be constitutive of the object justified, in other words coincidental with the law itself, on condition, naturally, that it can be read sufficiently 20

HLA Hart, Law, Liberty and Morality (OUP, 1963), 20: ‘we are committed at least to the general critical

principle that the use of legal coercion by any society calls for justification as something prima facie objectionable to be tolerated only for the sake of some countervailing good’. 21

When he was professor of Jurisprudence at Oxford, Dworkin excluded Kelsen from the standard BC

syllabus in jurisprudence in the early seventies. See Christoph Kletzer, ‘The Role and Reception of the Work of Hans Kelsen in the United Kingdom’ (2010), http://dx.doi.org/10.2139/ssrn.1578145 (16 May 2015), 20. The result was to smooth the way for Kelsen to disappear from English and American philosophy of law, not only in his role as the inspiration for Hart, but in general as a theorist of law as a coercive order.

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profoundly and in such a way as to include all the relevant moral, social and political factors22. In the foreground of Dworkin’s view is thus an objective of justification that absorbs the cognitive approach to the point of becoming indistinguishable from it. The interpretative dimension of law as integrity ends up giving coercion a peripheral and ultimately irrelevant location because, as Dworkin reads it, the law is actually always justified. It is precisely in this sense that Dworkin should be considered to be a pre-Benthamite23.

§ 4. The last point that I shall bring up briefly concerns the very notion of coercion used by Schauer. The relevant definitions arrive almost at the end of his book, enabling us to achieve a better understanding of why he maintains that coercion plays an important, typical and constant, but not ubiquitous, role in law. He says:

Coercion is best understood as an attribute of the effect of law upon the decisions of particular agents and is thus valuably distinguished from the less relational idea of a sanction. That is, sanctions are the devices that law uses or threatens, but whether the sanctions that are applied or threatened are coercive depends on the way in which those sanctions affect the decision-making capacities of the targets of the laws. (128-9)

It follows that the law may well be coercive for some but not for others, or it may be coercive for some at a given moment or in relation to certain rules but not in another moment or in relation to other rules. This explains why Schauer often talks about the noncoercive dimensions of

22

See William A Edmundson, ‘Coercion’, in Andrei Marmor (ed.), Routledge Companion to the Philosophy

of Law (New York: Routledge, 2012), 454. 23

Neil MacCormick, ‘Dworkin as Pre-Benthamite’ in Marshall Cohen (ed.), Ronald Dworkin and

Contemporary Jurisprudence (Rowman & Allanheld, 1983).

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law and about noncoercive law, even though he drastically downplays its importance in law’s overall operativity. Schauer’s definitional choice is both possible and legitimate: as a matter of fact, it comes across as a stipulation. Yet it is important to stress the gap that yawns between it and the conventional view, the one expressed in the twentieth century by Kelsen, by Hart and by numerous other philosophers, notably Ross, Olivecrona and Bobbio. Without denying their differences, all these authors define and analyse legal coercion in terms of the methods of organisation, functioning mechanisms and normative contents of legal systems. They focus more on the characteristics of the institutions that administer coercion than on the variable attitudes of those who are subject to it. As I have also thus far kept to the conventional conception when talking about coercion, there is the risk that my remote dialogue with Schauer has so far been at cross purposes. I must confess that Schauer’s stipulations leave me somewhat perplexed: to my mind they are a prelude to problems. In the first place, his notion of coercion24 does not allow certain distinctions that are important from the standpoint of the law. For example, it precludes distinguishing between the case of those who commit burglary because the fear of sanctions has not been among the motives for their behaviour and those who would never commit this crime, but for motives other than fear of the sanction: for both of these, Schauer’s notion simply produces the conclusion that the legal prohibition of burglary is not coercive. Moreover, it would be difficult to establish, in the light of Schauer’s definitions, whether the numerous direct legal uses of physical force that do not translate into the threat of coercive sanctions should be considered to be coercive

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It should be stressed that Schauer’s notion is not only relational, but also non-dispositional, which in my

opinion makes things all the more complicated, because it runs the risk of producing a highly idiosyncratic phenomenology of juridically relevant conducts. There are points of contact with Robert Nozick’s classical notion, ‘Coercion’ in Sidney Morgenbesser, Patrick Suppes, Morris White (eds), Philosophy, Science, and Method: Essays in Honor of Ernest Nagel (St. Martin’s Press, 1969) 440. My doubts about this notion only concern its use in legal theory and not any potential utility it may have in other contexts.

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(see 124 ff). It would be even less possible to determine whether rules whose targets are even unaware of their existence or content can be considered to be at all coercive; far from being a remote possibility, this is quite normal for lay people and for at least low-level officials, a fact that Schauer has in my opinion rather neglected. Secondly, I suspect that Schauer himself fails to abide by his own stipulations and does not manage to distance himself entirely – I would say fortunately – from the conventional approach: as a matter of fact, the psychological and relational notion of coercion intertwines continuously in his discourse with the structural and systemic notion, so that even for him law is coercive by virtue of being a normative apparatus that holds the monopoly of physical force and constitutes the ultimate source of decision-making about its legitimate and illegitimate uses. Thirdly and lastly, legal theory already has another notion at its disposal that has the potential to do a better job of capturing the relational aspect so dear to Schauer: the notion of effectiveness. Suitably redefined, it can be used to focus on the investigation of the causal role of law in influencing behaviour that he conducts with such finesse in his book, avoiding the potential misunderstandings related to the notion of coercion.

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