Threat of Sanctions Proves Critical to "Force of Law" in UVA Law Professor Frederick Schauer's New Book

Frederick Schauer, a noted legal theorist and First Amendment scholar, is also the author of "Thinking Like a Lawyer: A New Introduction to Legal Reasoning."

January 27, 2015

Whether it's a politician or a pedestrian, Americans break the law when no one's looking, study after study shows. University of Virginia School of Law professor Frederick Schauer , one of the nation's leading legal theorists, looked at the evidence and found it upended decades of legal philosophy.

"There's this widespread assumption that people often obey the law just because it's law," he said.

Schauer's new book, " The Force of Law ," published by Harvard University Press, challenges those conventions.

"If we actually look at how law operates and how people obey the law, we will understand that what differentiates law, what makes law special, is that it tells us what to do and threatens us with bad stuff if we don't do it," he said.

Schauer, the David and Mary Harrison Distinguished Professor of Law at the University of Virginia School of Law, is also Frank Stanton Professor of the First Amendment, Emeritus, at Harvard's Kennedy School of Government. At UVA he teaches courses in jurisprudence, constitutional law and evidence.

Writing the book allowed him to explore literature on obedience to law, a long-standing interest.

Video: Schauer discusses his new book "The Force of Law."

"Obedience to law just because it is law is very rare," he said.

Schauer pointed to evidence from research on public officials, who often don't face sanctions when they break the law in certain contexts.

"Presidents, senators, members of the Congress, city councilors and others don't very often obey the law when what the law requires differs from their own best policy and political judgments, and when there are no sanctions," he said.

The most high-profile public servants have the most protection. If a police officer knowingly violates the Fourth Amendment through an invasive search, for example, he faces legal consequences. But if Congress creates laws that make such violations legal, the only remedy may be voting officials out of office — and that's a safe risk to take.

"They recognize the public evaluates and elects or reelects their politicians based on doing the right thing rather than following the law," he said.

When President Barack Obama launched drone strikes in Libya in 2011 without congressional authorization, many of the president's own supporters thought the action violated the War Powers Resolution, Schauer said.

But "once it became apparent that it was a good policy outcome, everybody forgot about the fact that the law had been violated."

"When following the law conflicts with what looks like doing the right thing, it turns out that doing the right thing wins every time, which ought to be somewhat troubling," Schauer said. "The implications are that in lots of real-world domains, we ought to take more seriously than we do the need for some form of sanctioning in order for law to work."

Schauer drew from research by political scientists, sociologists, psychologists and others. He found that even regular Americans routinely violate the law when there is lax enforcement. The compliance rate for purchasing dog licenses is about 20 percent, and 2 percent for cat licenses. Obedience to HOV lanes that lack enforcement is very low. When Los Angeles created an honor system to have riders pay light-rail fare in 1990, the result was "an utter failure," and the subway system lost an estimated $7 million annually before the idea was abandoned in 2012.

Law's restraints produce a degree of needed stability, Schauer said.

Though judges don't like the Federal Sentencing Guidelines established in 1984 because they prefer maximum discretion in sentencing, the law made for a fairer criminal justice system.

"When there was more or less non-rule-based sentencing, there were dramatic variations based on the quality of the lawyer, race, class, gender and a whole bunch of other things," he said. "Yes, rigid guidelines sometimes get it wrong, but it turns out the absence of rigid guidelines gets it wrong as well."

Though Americans routinely break the law under lax enforcement, not all cultures are the same. In Finland, it is rare for citizens to break rules even when no one is looking.

"In the U.S., certainly more than Finland and certainly more than a lot of other places, the 'law just as law' seems to make less of a difference, even though we like to think that this is a legalized or hyper-legalized society."

Schauer also is the author of "The Law of Obscenity" (BNA, 1976), "Free Speech: A Philosophical Enquiry" (Cambridge, 1982), "Playing By the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life" (Oxford, 1991), "Profiles, Probabilities, and Stereotypes" (Harvard, 2003), and "Thinking Like a Lawyer: A New Introduction to Legal Reasoning" (Harvard, 2009). He is also the editor of Karl Llewellyn, "The Theory of Rules" (Chicago, 2011), and co-editor of "The Philosophy of Law" (Oxford, 1996) and "The First Amendment" (West, 1995).

News Highlights