By YASMIN DAWOOD
Review of The Force of Law, by Frederick Schauer
Harvard University Press, 2015
Is coercion relevant to explaining the nature of law? In an insightful and wide-ranging new book, The Force of Law, Frederick Schauer argues that the coercive aspect of the law has been unnecessarily downplayed by legal philosophers. The tradition established by H.L.A. Hart and his followers has typically treated coercion as not necessary to the concept of law. Yet what makes law distinctive, urges Schauer, is that it compels compliance with its directives through the use of force. As he puts it: “Law makes us do things we do not want to do. It has other functions as well, but perhaps the most visible aspect of law is its frequent insistence that we act in accordance with its wishes, our own personal interests or best judgment notwithstanding.” (1)
To make the case for the force of law, Schauer deftly weaves insights from law, philosophy, economics, sociology and psychology. The book not only provides a rigorous analysis of philosophical theory, it also explores the empirical dimension of legal force. Filled with intriguing examples about human behavior and coercion, the book will appeal to a broad audience. Schauer demonstrates that the debate over coercion has profound consequences for how we view the nature and role of law in society.
The book begins with a detailed review of the philosophical debate over coercion. Jeremy Bentham and John Austin claimed that sanctions are essential to the idea of legal obligation. What makes law distinctive is that its commands can be imposed by force in the face of disobedience. In a highly influential book, The Concept of Law, Hart took issue with the coercion-based theories of Bentham and Austin. He argued that the law is a constitutive force rather than an exclusively coercive one. Hart claimed, in addition, that the law creates an obligation to follow its requirements which is independent of any sanction that would apply if the law is violated. In Hart’s language, people have an internal point of view vis-à-vis legal obligations; that is, they accept the rules as guides to conduct, and they believe that they ought to follow the rules irrespective of whether or not there is a sanction. For these reasons, the Hartian tradition asserts that coercion is not essential to the concept of law.
Schauer’s principal objective is to re-introduce force to the concept of law. He is careful to acknowledge that a coercion-centered account does not explain all of the nature of law. Law has a constitutive dimension, and various aspects of private law, for instance, are not adequately captured by a command model. At the same time, asserts Schauer, it is equally inaccurate to downplay the role of coercion in law. Hart did recognize that coercion plays a role in law, a point which Schauer acknowledges. The main point of disagreement between them, then, is whether coercion should be viewed as part of the concept of law.
Schauer’s second, related, objective is to challenge the jurisprudential methodology employed by Hart and his followers, which focuses on the universal properties of law. For a particular characteristic to count as forming a part of the concept of law, it must hold true for all examples of law in all legal systems. On this logic, since there are examples of noncoercive law, coercion cannot be an essential aspect of the law. Schauer’s response is that an approach that focuses exclusively on universal characteristics does not reflect how we ordinarily think about concepts and categories. While coercion is not an essential feature of every law in every legal system, it is still important to the law as it is experienced. Schauer argues for a more expansive methodological approach that focuses instead on central cases. As he describes it: “Coercion may be to law what flying is to birds: not strictly necessary but so ubiquitous that a full understanding of the phenomenon requires that we consider it. Conversely, noncoercive law may be like the flightless bird: useful in telling us something about all birds but hardly deserving of exclusive or even dominant attention.” (40) On this view, coercion is an aspect of law that is ubiquitous but not conceptually necessary.
Schauer also tackles the empirical dimension of the role of force in law. He begins by examining Hart’s claim about the existence of the “puzzled man” who is willing to do what the law requires provided that he is told what he must do. Schauer interprets the puzzled person as standing for the idea that people follow the law because it is the law. As Schauer points out, this is an empirical claim for which Hart provided no support beyond assertion.
The empirical evidence, though, seems to suggest that people do follow the law because it is the law. In Why People Obey the Law, Tom Tyler engaged in a systematic empirical study which showed that people obey the law even in the absence of coercive sanctions. Morality is the main factor that explains law-related behavior, while sanctions are of secondary importance. But as Schauer points out, there is a distinction between obedience to the law and acting consistently with it. The difficulty with Tyler’s study, Schauer argues, is that it is not clear that law qua law is playing any causal role. For instance, if the law coincides with our moral commitments or our self-interested preferences, then our obedience to the law may not be motivated by the law itself.
To gauge the true effect of the law, self-interest and law-independent moral reasons have to be removed from the equation. The real question, then, is “whether people, when they have reached this all-things-except-the-law-considered judgment, will, sanctions aside, subjugate that judgment to the prescription of the law.” (62) That is, will people do what they believe is wrong or unwise just because the law tells them to and in the absence of the threat of sanctions?
Schauer makes a persuasive case that we ought to think about obedience to law by asking this question. But given the narrow specificity of the question, it is hardly surprising that there is little empirical evidence available. There is one study that seems to address the issue. As described by Schauer, the study asked subjects “whether they would, as a teacher, violate a rule (which in this context can be considered equivalent to the law) mandating so-called blind grading of papers when following the rule would produce injustice.” (64) In the study, however, the subjects were not asked what they would do if they were teachers; instead, the subjects were asked to rate the appropriateness of a teacher violating the blind-grading rule. (Schweitzer et al., 2008) Although the subjects preferred rule-following in the abstract, they preferred the good outcome over the rule-directed one when faced with this concrete example. Schauer suggests that this study shows that there may be less adherence to the law for the sake of law than commonly supposed and that abstract ideas about the importance of following a rule are not reliable predictors of actual behavior.
Skeptics, however, may not be entirely persuaded by Schauer’s analysis of this study. At issue in the study was a school rule, which Schauer asserts could be considered the equivalent of a law. It’s not clear, though, whether a study involving a non-law can tell us much about obedience to law qua law. In addition, a related study, which involved the same research design, shows that lawyers rated the teacher’s violation of the blind-grading rule as most inappropriate when the rule was presented as mandatory, less inappropriate when the rule contained an opt-out provision, and most appropriate when the rule was merely advisory (Schweitzer et al, 2007, at 630). When the blind-grading rule became more law-like, the lawyers rated the rule violation more harshly. This finding would appear to qualify Schauer’s conclusion that there may be less law-following for the sake of the law than is often assumed.
Schauer presents additional empirical evidence, showing for instance that various actors including law students, judges and jurors, often reach decisions in accordance with their policy preferences and not in accordance with the law. Schauer also cites the data on legal compliance which shows that in the absence of stringent sanctions, people often fail to show up in court for traffic citations, fail to attend jury duty, fail to obtain pet licenses, and fail to pay fares for public transportation. Schauer’s example of tax evasion is similarly instructive. Noncompliance rates for income that is neither withheld nor reported is remarkably high (approximately 50%). For Schauer, the tax evasion evidence shows that uncoerced obedience to tax law is much less common than would be assumed under Hart’s puzzled person paradigm. Yet the example of tax evasion also raises a puzzle. As Schauer notes, the rates of noncompliance are high even though taxpayers know that the failure to report income is a crime punished by serious sanctions. If coercion is understood at least in part as the threat of sanction, then this example would also seem to show that the existence of criminal penalties does not on its own prompt people to follow the law.
Importantly, Schauer is cautious about the conclusions he draws, stating, for instance, that there “appears to be little support for the conclusion of law’s sanction-independent influence and some, albeit weak, support for the conclusion of law’s sanction-independent noninfluence.” (64) He also acknowledges that “little actual empirical research focuses directly on the question whether people obey the law, sanctions and their own best judgment apart, just because it is the law.” (64) Yet, in other parts of the book, Schauer is more affirmative in his assessment, concluding that coercion-free obedience to the law is not widespread and that the empirical evidence provides hardly any support for the claim that people will follow the law even in the absence of sanctions.
One possible explanation for Schauer’s more affirmative statements is that he takes a very broad view of coercion. He expands the definition of sanctions beyond that adopted by Bentham and Austin, arguing that sanctions should include rewards in addition to punishments. For Schauer, “law’s coercive (or at least action-inducing) power” can also include its ability to create positive and negative incentives. (7) Intriguingly, Schauer argues that preventative approaches such as locks on doors and bars on windows are also best understood as coercive since they alter people’s motivations and preferences. Once incentives are added to the mix, and once we are concerned with law’s ability to induce action, then the claim about the pervasiveness and importance of force in compelling legal compliance can be understood in its full context.
In sum, Schauer succeeds admirably in drawing our attention to the central role of coercion in law. One of the great strengths of this book is that it addresses the topic of legal force from both philosophical and empirical perspectives. The Force of Law is an important and enduring contribution to jurisprudential inquiry, not only on the topic of coercion, but also on the nature of law itself.
References
H.L.A. Hart, The Concept of Law, 2d ed. (Oxford, Oxford University Press, 1994).
N.J. Schweitzer et al., “The Effect of Legal Training on Judgments of Rule of Law Violations,” poster presentation at the American Psychology-Law Association (March 2008).
N.J. Schweitzer, Douglas J. Sylvester, Michael J. Saks, “Rule Violations and the Rule of Law: A Factorial Survey of Public Attitudes,” DePaul Law Review 56 (2007), 615-636.
Tom R. Tyler, Why People Obey the Law, 2d ed. (Princeton, NJ: Princeton University Press, 2006).
Posted on 15 October 2015
YASMIN DAWOOD is an Associate Professor at the Faculty of Law and the Department of Political Science at the University of Toronto. Her research and teaching interests are in constitutional law and political theory, with a particular focus on election law and democratic theory. She received a Ph.D. in Political Science from the University of Chicago and a J.D. from Columbia Law School.
