Coercion as/and the Concept of Law

Freiburger Vorträge zur Staatswissenschaft und Rechtsphilosophie

Vortrag gehalten am 08.06.2011 Zur Person: Frederick Schauer ist David and Mary Harrison Distinguished Professor of Law an der University of Virginia. Zuvor war er 18 Jahre als Professor of First Amendment an der John F. Kennedy School of Government der Havard University und als Professor of Law an der University of Michigan tätig. Er war außerdem Gründer und Co-Editor der Fachzeitschrift “Legal Theory”, Vize-Präsident der American Society of Political and Legal Philosophy und Vorsitzender des Commitee on Philosophy and Law. Zu seinen Werken zählen “The Law of Obscenity“ (1976), “Free Speech: A Philosophical Enquiry” (1982), “Playing By the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and Life” (1991), “Profiles, Probabilities and Stereotypes (2003), “Thinking Like a Lawyer: A New introduction to Legal Reasoning” (2009). Abstract: Until the publication of H.L.A. Hart’s The Concept of Law fifty years ago, it was widely accepted that a central feature of law was its coercive power. Unlike the norms and rules of games, morality, and etiquette, for example, the norms and rules of law were backed by the power of the state, legitimately, to punish those who violated them. Thus, the overwhelming view of legal theorists, including Bentham, Austin, and Kelsen, most prominently, was that coercion was a key component of law itself. In Hart’s attack on Austin, and thus on Bentham, Kelsen, and many others, he sought to show that law was about the union of primary and secondary rules, and about the internalization of the master secondary rule, the ultimate rule of recognition, by legal officials. Coercion played no part in the story, and for Hart and countless of his successors, especially in Anglophone analytic jurisprudence, coercion, because it is not strictly logically necessary for the existence of law on Hart’s account, could not be part of the concept of law. This project is an attempt to place coercion back in the center of legal philosophical thinking. Even if Hart is correct in imagining a possible legal system in a possible world in which coercion is not present, it is surely not irrelevant that all real legal systems employ coercion, and that coercion remains the principal characteristic distinguishing legal systems from other norms systems. To move from the prevalence of coercion to the claim that coercion remains the central feature of law itself, however, requires establishing, first, that the nature of law is better captured by its typical truths than by its logically necessary ones, and, second, that the conceptualization of a human artifact such as law is better understood as a cluster or family resemblance concept than through a set of individually necessary and jointly sufficient conditions.