On Law and Force

Abstract

Legal positivism has been under attack, especially by doctrines contesting its proud claim of a conceptually necessary separation of law and morality. To such attack, the positivist reaction has been that of articulating on the one side a stricter, exclusivist version of the separationist thesis, and on the other side that of conceding to the possibility, though not to the necessity, of some (thus contingent) connection between law and moral requirements. An additional, traditional, third way of reasserting a positivist orthodoxy has been recently proposed‚ that of once again stressing the law as grounded in the use of force and sanction. This third way circumvents Herbert Hart’s rejection of imperativism and the external point of view through the adoption of an eclectic, anti-essentialist epistemic strategy. However, such anti-essentialism is only apparent in so far as force and sanction are considered as basic conditions of the experience of law, and this is forcefully and indeed essentially reduced to some kind of violence. But such reduction, in spite of its proclaimed common-sense perspective, does not take account of the complexity and plurality of what law is assumed to be by those that practice it. The law as force doctrine also tries to justify itself as a methodology that would allow for an anti-ideological assessment of legal practice, while as, a matter of fact, making it impossible to articulate an antiauthoritarian account of legal operations.

A paper given at the 8th Bonner Humboldt-Preisträger Forum, “Zwischen Handwerk und Bekenntnis, Empirie und Normativität: Selbstbestimmung der Internationalen Rechtswissenschaft”, Bonn, 17–21 November 2018. Many thanks to Professor Brian Bix for useful comments and suggestions.