Abstract
In The Force of Law, Frederick Schauer maintains that in order to analyze the normative force of the law, one should adopt a particular strategy to ‘isolate’ the effect of laws in determining the behavior of citizens and legal officials. To understand the law’s capacity to motivate human behavior, one should look only at the cases where the law conflicts either with a person’s best moral judgment or her own self-interest in the matter at stake. In these situations, according to the argument developed in the book, it is an empirical fact that people very rarely obey the law merely by deference to its authority. My point in this paper is to discuss and criticize this methodological assumption and draw some implications about the study of the normativity of law. Firstly, I think that Schauer’s argument only makes sense if we accept from the start his own conception of legality, which takes for granted the concept of law defended by exclusive positivism, and the undemonstrated empirical assumption that the people in general and the legal officials also share this conception of legal validity. To counter these hidden assumptions, I argue that exclusive positivism is just one of the plausible forms of explaining the nature of law, and that Schauer’s own reservations against philosophical essentialism provide a reason to resist the conclusion that the law must always be defined in a content-independent way. Secondly, I advocate that Schauer’s strategy to ‘isolate’ the effect of law leaves the ‘core cases ’ of legal provisions out of the realm of jurisprudence. To understand the effect of the law and its capacity to motivate the action of citizens and officials, jurisprudence should neither focus on the individual attitudes towards a legal rule, as Schauer appears to be doing in his book, nor concentrate in the cases where the law comes into conflict with one’s interests or moral convictions.
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Notes
- 1.
According to Raz, “making internal statements” is a “sign of endorsement of the rule concerned. One endorses a rule if one uses it regularly in guiding, evaluating, and criticizing those actions to which the rules applies” (Raz 2009b, 154).
- 2.
I think that an important difference between Hart’s original formulation of the “internal point of view ” and Raz’s position about the same point of view is that Raz seems to believe, unlike Hart, that this point of view is not only the point of view of judges and legal officials, but also of the ordinary citizens, at least in the most important cases. According to Raz, “the internal statements are characteristic of the judge, and of the law-abiding citizens”, whereas the kind of statement called “detached” legal statement “is characteristic of the lawyer and the law teacher (who of course often make internal and external statements as well) for they are not primarily concerned in applying the law to themselves or to others but in warning others of what they ought to do according to law” (Raz 2009b, 155).
- 3.
According to Schauer, “if one accepts—internalizes, or takes as a guide to action—the system, then that system creates obligations for those who accept it” (Schauer 2015, 34).
- 4.
According to Marmor (2011, 61–62), in legal cases “it always matters that it is the law (or some particular legal authority) that says so. One of the main challenges about the explanation of the normativity of law is precisely to explain this connection between reasons for action and the relevance of the answer to the ‘who says so?’ question”.
- 5.
See, for instance, Enoch (2011, 16–19).
- 6.
I come back to this point again bellow at note 7.
- 7.
The property of “ruleness” should be understood here also as the capacity that a rule possesses to give reasons for action. It is difficult to establish why Schauer uses this word instead of the familiar concept of “normativity”, which is usually deployed to explain the same kind of normative capacity. Why does Schauer forge a distinct concept—in fact, a concept that appears to be even more mysterious and obscure—to express an idea that is relatively familiar to philosophers and legal theorists? A possible explanation could to be that Schauer wants to avoid the use of a nomenclature that is often associated with the moral justification of legal authority. The concept of normativity, as we will see in the next sections, is closely related to the legitimacy of an authoritative pronouncement. A law becomes normative, according to the general argument accepted by many legal philosophers, if it is able to obligate its addresses, i.e., if it is capable to give them moral reasons for acting in a certain way. I think that this could be an explanation for Schauer’s reluctance to openly address the problem of the normativity of law. When speaking of “ruleness”, he wants to emphasize that he is talking about the reasons for action that a rule is capable of generating. But there seems to be an implicit constraint on the character of these reasons. Schauer could be imagining, if this hypothesis is correct, “prudential reasons for action”, but never “moral” reasons to the same effect. If this is correct, then he would owe us a justification for this constraint. At first sight, it does not appear to be unwise to admit both moral and prudential reasons to count as a basis for the normativity of law.
- 8.
According to Schauer, the concept of “ruleness” comprises a dimension of weight: “Ruleness will be greatest where rules commend the highest proportion of extensionally divergent results for a given agent or class of agents. Conversely, the property of ruleness will diminish insofar as a rule does not indicate, for an agent or a class of agents, actions different from those the agent would have performed in the absence of the rule” (Schauer 1991a, 104).
- 9.
Here we can find a very important difference between Schauer and Hart. Unlike Schauer, Hart thinks that the internalization that matters to establish a legal obligation must not be “unilateral”, otherwise we would have to give up the thesis of the social source of law. As Kenneth Himma explains, “Hart does not argue it is unilateral acceptance that binds an official to the rule of recognition; that would be problematic because unilateral acceptance does not provide anything that necessarily has independent normative force given what we know about the psychology of ordinary persons. Hart argues instead that it is the joint acceptance by officials together with social pressure on each to conform to the rule of recognition that together warrant characterizing the rule of recognition as being ‘obligatory’” (Himma 2013, 169). On Hart’s scheme, the existence of law and legal obligation is established in two steps. First, officials must converge in taking the internal point of view towards the rule of recognition. Second, citizens must comply with the rules validated by this rule of recognition. It is the social pressure for compliance, rather than the internalization of the rule of recognition, that establishes a legal obligation for citizens. Though there might be different explanations for the root of this social pressure, it appears to me that a plausible Hartian account to explain it is Himma’s view that it is the authorization of coercive enforcement (by officials) together with acquiescence on the part of the citizens that explain how citizens are obligated by the primary rules established by legal officials (Himma 2013, 172–178).
- 10.
When considering the “constitutive capacity” of legal norms, Schauer is referring to Searle’s concept of “constitutive rules”, which are rules that create institutions and enable us to interact with them. It is worth mentioning, here, Searle’s famous distinction between “regulative” and “constitutive” rules: “regulative rules regulate antecedently or independently existing forms of behaviour […]. But constitutive rules do not merely regulate, they create or define new forms of behaviour. The rules of football or chess, for example […] create the very possibility of playing such games” (Searle 1969, 33).
- 11.
See above at note 9.
- 12.
Gavison uses the terminology “first-stage” law to identify what Dworkin would characterize as the pre-interpretive legal materials that stem from the sources of law (Gavison 1987, 30–31). Schauer’s account of the force of law is intended to explain, however, just what Gavison would classify as “first-stage law”. He thinks that in his book he does not to need to explain “whether first-stage law is all or just some of law” because what most people, including most famous practitioners of civil disobedience, think of law is not the set of norms resulting from Dworkinian interpretivism , but rather the type of ‘first-stage’ law that exclusive positivists are talking about (Schauer 2015, 70).
- 13.
A milder version of the objection presented in the quote above could be adduced with regards to inclusive positivism: “If the rule of recognition could include political, moral, empirical and policy considerations, then, whenever this incorporation occurs, making any attempt to isolate the effect of a narrower conception of positive law would be a fundamentally misguided enterprise”.
- 14.
I owe this point to Kenneth Himma, who prevented me from making the bad mistake of ignoring this answer that is available to Schauer.
- 15.
Conceptual analysis, according to the view defended by most legal positivists, “presupposes that the concepts central to law are social constructs arising from the common core understanding of legal practice by legal practitioners” (Himma 2013, 154). In this sense Kenneth Himma assumes, with Raz, “that legal practitioners cannot be systemically mistaken about the nature of the core practices of law”, and therefore that “an adequacy constraint on any theory of legal obligation is that it conforms to the ordinary core understanding of judges, lawyers, and legislators” (Himma 2013, 154).
- 16.
The virtue of “conservatism”, for these authors, is interpreted in a very specific way, and means only that we should avoid an explanation which conflicts with our previous set of beliefs.
- 17.
Leiter, for instance, tried to argue along these lines in order to claim that exclusive positivism can provide the best explanation for the kind of theoretical disagreement that Dworkin is talking about in Law’s Empire (Leiter 2009, 1239).
- 18.
Schauer assumes that these materials—that can be designated as “first-stage” law in the sense of Ruth Gavison (see above at note 12) or “pre-interpretive” law in the sense of Dworkin (1986)—are exhaustive of the concept of law: “only with something like the category of first-stage law in hand can we understand the perspective on law not only of most ordinary people but of the legal system itself” (Schauer 2015, 70).
- 19.
One can argue, at this point, that while the rule of recognition is a social rule, the primary norms produced in accordance with it are not. Although the idea that the rule of recognition is a social practice can explain how the secondary rules become normative for officials, it cannot explain how primary norms become obligatory for private citizens. The real challenge for a Hartian (or post-Hartian) theory of legal normativity would be to explain how it is that the law becomes normative for the ordinary citizen. Schauer could still have a good account, therefore, to explain how coercion can provide for the ordinary citizen a good set of prudential reasons for acting in accordance with the law. Though this argument is sound, I will contend, in the final section of this paper, that the most it can do is to show that coercion is a strong determinant of the normativity of law, and not that the law is superfluous in the absence of coercion, as Schauer seems to believe.
- 20.
I think that Himma is correct, thus, when he argues that the acceptance required to establish the obligatory character of a social norm cannot be “unilatteral”, as Schauer seems to think. See above at note 9.
- 21.
I hope that it is clear to my reader that I am not claiming that we necessarily need to rely on the idea of the rule of recognition as a form of SCA in order to explain the normativity of the law. All that I am trying to do is to show that the normativity of the law (or at least of the rule of recognition) must be explained in a social way, and that Schauer’s strategy to explain the practical effect of the law focusing in how an individual internalizes a given rule is problematic.
- 22.
This seems to be a point of consensus between legal positivists and Dworkinian interpretivists. Though Dworkin avoids the term “normativity ” to explain the normative force of the law, he has a very similar view, since he bases the normative force of the legal principles on the associative obligations that citizens have towards each other in a political community. See Dworkin (1986, 195–216).
- 23.
The quotation within the quotation is from Hart (1994, 214).
- 24.
Himma is not making, however, the implausible contention that all norms of every legal system are coercive in nature. The authorization of coercive enforcement is presented as a necessary feature of law, not of every norm that is part of it.
- 25.
See above note 9.
- 26.
None of this implies, however, that these rules constitute irrefutable reasons to comply with the law. The law can create reasons for action even if these reasons are “prima facie” or overridable.
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Acknowledgments
I would like to thank FAPESP (São Paulo Research Foundation) for the funding provided to the research that led to the preparation of this draft, in a postdoctoral fellowship at the University of São Paulo, under the supervision of Ronaldo Porto Macedo Júnior, who kindly hosted me in that institution (Grant # 2014/09810-8, São Paulo Research Foundation—FAPESP). During that visit, I also received funding from the CNPq (Grant # 4984975/2013-7, Brazil’s National Council for Research) and from FAPEMIG (Grant # PPM-00178-14, Minas Gerais Research Foundation). I am equally thankful to those two research foundations for their support. I would like to thank also Ronaldo Macedo, Lucas Miotto, Fernando Leal, André Coelho, Rafael Bezerra Nunes and Jorge L. Fabra Zamora for valuable critical inputs on the topic of this paper. Above all, I thank Kenneth Einar Himma for the meticulous comments that he made on a previous draft, which prevented me from making some bad mistakes. Needless to say, the mistakes that the reader will find in this piece are all mine, and probably are the product of my stubbornness, rather than the lack of a fair warning.
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Bustamante, T. (2016). Coercion and the Normativity of Law: Some Critical Remarks on Frederick Schauer’s The Force of 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_3
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