Abstract
Frederick Schauer thinks that force and coercion are not given their due in contemporary philosophy of law. I agree with him that force and coercion play a big role in our legal systems. Nevertheless I think that (1) coercion and force are in an important sense secondary or supplementary to the law’s claimed authority, that (2) even if there is a significant amount of coercion and force, there is also a significant amount of coordination and consensus; giving coercion and force their due should not blind us to these other things.
In equating law with coercion—the threat of punishment or some other “evil”—Austin was simply wrong. Law does much else beside control, threaten, punish, and sanction, and law does not always need coercion to do what it can do. But the fact that coercion is not all of law, nor definitional of law, is not to say that it is none of law or an unimportant part of law. Relegating the coercive aspect of law to the sidelines of theoretical interest is perverse.
—Schauer (2015, 167)
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Notes
- 1.
I not only want to introduce distinctions that Schauer does not think need to be deployed; I also want to resist broadening the notion of force to include multiple other kinds of “incentives” (pp. 98–99) or broadening coercion to include incapacitation or door locks and the like (Schauer 2015, 124–126).
- 2.
Readers will recognize a reference to Raz’s understanding of practical rationality. See Raz (1999 [1975]) and (1986, Chaps. 2–4). In his terms I am assuming that people are able to act against the balance of reasons and so doing is often rational. There are other revisionist accounts of rationality that are similar in important respects. See, for instance, Gauthier (1994, 1996) and McClennen (1990).
- 3.
Independently right, either by standards of natural law or convention.
- 4.
“Coercion may accordingly operate indirectly to encourage legal compliance by reinforcing the seriousness of the prescription itself.” (Schauer 2015, 103).
- 5.
In real small societies in the past, even those with little centralization of authority or power, there was considerable coercion and force. They were not, anymore than our societies, populated by reasonable, well-informed people capable and willing to comply with preemptive directives.
I might also note that in these communities the distinctions we draw between morality, manners, and law seem absent. So it may not always have been true that “law, unlike morality and etiquette possess the resources to compel compliance in ways that other normative systems do not.” (Schauer 2015, 1).
- 6.
I make reference to a Razian account of practical rationality and authority. I think it is possible to deploy my idealized example with or without the assumption of a revisionist conception of practical rationality. Agents without the capacity to constrain themselves and to act counter-preferentially may be harder to control.
- 7.
Arthur Goodhart, quoted by Schauer (2015, 31).
- 8.
- 9.
See Morris (1998, Chap. 2) for an analysis of the state.
- 10.
The Wealth of Nations is the first of many works to explain the benefits of size. Larger “markets” make possible cooperation with more people. I put ‘markets’ in double quotation marks to forestall common misunderstandings of markets as narrowly commercial or “economic” realms; they are better appreciated as domains of cooperation. The notion of “open access orders” developed in (North et al. 2009) is very illuminating here. Open access orders greatly enlarge our opportunity sets.
- 11.
Condition 2b is controversial insofar as the conception of practical rationality is revisionist and antithetical to orthodox balance-of-reason conceptions. Dominant conceptions of rational choice are balance-of-reasons accounts.
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Morris, C.W. (2016). Forceful Law. In: Bezemek, C., Ladavac, N. (eds) The Force of Law Reaffirmed. Law and Philosophy Library, vol 117. Springer, Cham. https://doi.org/10.1007/978-3-319-33987-0_6
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