Seminal Works: Professor Frederick Schauer's 'Force of Law' Shakes Up Legal Theory
Just over a year after it was published, Professor Frederick Schauer’s “The Force of Law” (Harvard University Press, 2015), which argues for law’s power to coerce behavior as its distinctive feature, has spawned a raft of scholarly responses, lectures and symposia worldwide, and even a book dedicated to the topic. Schauer, David and Mary Harrison Distinguished Professor of Law at the University of Virginia School of Law, recently paused to take stock of the attention the book has garnered.
What “The Force of Law” is about:
“The basic ideas of the book, and of the articles from 2010 on that led up to it, are, first, that people who think about the nature of law, especially but not only philosophically or jurisprudentially, would be better off focusing on what is truly important and distinctive about law, and not about what is strictly or logically essential or necessary. And, second, that among the things that are truly important and distinctive about law is a characteristic feature of law that has been ignored in much of jurisprudential discussion and debate for the last half century or more — that law is predominantly coercive, using sanctions or the threat of them to get people to do things they might not otherwise be inclined to do. This may seem obvious to ordinary people, but for a long time much of the writing about the nature of law, especially in the Anglo-American analytic tradition, has tended to ignore this feature of law. Theorists, largely following the lead of H.L.A. Hart in his 1961 book ‘The Concept of Law,’ have typically argued that taking the very existence of a law as a reason for doing things is important, and that sanctions and force and coercion are decidedly secondary. The book thus challenges existing jurisprudential methodology by focusing on the important and not the strictly or conceptually necessary, and then challenges existing jurisprudential conclusions by arguing that sanctions, coercion and force are more central to the phenomenon of law than has been understood ever since Hart.”
“Law makes people do things they do not want to do." (The opening line of the book.)
How it came about:
“Although I have been writing with a philosophical slant about freedom of speech since the late 1970s, similarly about legal and constitutional interpretation since the early 1980s, and similarly about legal reasoning since the late 1980s, I had not written very much about jurisprudence — what some call the philosophy of law these days — until I arrived at Virginia in 2008, and started teaching a course in jurisprudence. The more I taught the course, and the more I read further in the subject, the more I was struck by the prevailing view in the field — the conventional and almost unchallenged wisdom — that Hart was right, that force and sanctions were not key to understanding the basic idea of law, and that what people who do jurisprudence should focus on is what is strictly or logically or conceptually necessary for any possible legal system to be deserving of that name. Both these ideas struck me as at the very least in need of challenge, and most probably wrong. I thus started writing articles on these themes in various American and European law and legal theory journals starting in about 2010. Some of these article attracted attention, and that led both to some published debates and to opportunities to speak about these issues in the United States, in Europe, in Latin America, and even in Australia and Singapore. The book is the culmination of all of this thinking and attention, but was written from scratch as a book and is decidedly not a collection of previously published articles.”
Why the work matters:
“Schauer’s book is a game changer in general jurisprudence not only as to the answers but also the questions,” said UVA Law professor Kimberly Kessler Ferzan, who is also a noted legal philosopher. “Most contemporary legal philosophers have answered the question of how the law obligates by trying to construct conceptual truths about law. As these accounts became more and more refined, they became more and more technical, and less and less recognizable to all but a small group of theorists who specialize in these extremely nuanced moves.
“Enter ‘The Force of Law.’ Schauer reinvigorates the idea that law is coercive, thus breaking with the dominant strand that has denied the importance of force. Schauer also denies that we need an account of why the law obligates that is true in all cases, opting instead for an account of law that is recognizable to us in the vast majority of cases. People often obey the law because they are coerced to do so. Such an account challenges current jurisprudential thinking both substantively and methodologically. Schauer contends not only that coercion is important to our understanding of law but also that the jurisprudential quest for essential characteristics of law is misguided. He has changed the nature of the debate for generations to come.”
Schauer said some of the book’s impact could be due to the fact that the issues he raises have not been studied enough.
“I think it matters not only in the sense that it has attracted much jurisprudential attention, but also because it relates to closely to the truly important — and not just jurisprudentially important — issue of legal compliance and legal effectiveness,” Schauer said. “The typical law school casebook, for example, tells us very little about what has happened in the world as the result of some law or judicial decision. Do officials or individuals comply with it? How is it enforced? Does it make a difference? And so on. I am of course not the first to worry about these issues, but it remains an underexplored and undertheorized domain of law teaching and legal scholarship, and it will also be the path to some of my future work.”
Recognition and options for further reading:
- “The Force of Law Reaffirmed: Frederick Schauer Meets the Critics,” a book edited by Christoph Bezemek and Nicoletta Ladavac (Springer, 2016).
- “How to Explain Things with Force,” a Harvard Law Review book review by UCLA law and philosophy professor Mark Greenberg. Schauer’s response, “How (and If) Law Matters,” was published in the Harvard Law Review Forum.
- “Coercion and the Conceptual Force of Law,” a review by the University of Washington’s Kenneth Himma (Jotwell).
- “Coercion and the Law,” a review by University of Toronto law professor Yasmin Dawood (The New Rambler).
- The last two issues of Ratio Juris (June and September 2016) have offered five substantive responses to the book and Schauer’s responses to those responses.
- Following a University of Chicago symposium about the “The Force of Law” and “The Expressive Powers of Law,” a book by Chicago’s Richard McAdams, six articles and a response will appear soon in the journal Law & Social Inquiry.
- The British journal Jurisprudence will publish a symposium with five contributions and Schauer’s response.
- The book has been reviewed in Australian, Brazilian, European and American legal and philosophical journals, and in The Journal of Economic Literature.
The Seminal Works series explores key scholarship by UVA Law faculty that has changed how we think about the law.