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2 Hart’s Legal Theory Does not Belittle the Role of Coercion in the Social Phenomenon of Law

2 Hart’s Legal Theory Does not Belittle the Role of Coercion in the Social Phenomenon of Law

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Supporting The Force of Law …



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Kelsen looks inspired by the goal of neutralizing theories of law that provide a

misleading picture of law because of their unjustified, dogmatic, irrational, pretence

of reducing the complex social phenomenon of law, where rules, coercion and

morality combine in multifarious ways, just to one basic ingredient. Accordingly,

The Concept of Law can be safely read as meaning to redress the unbalance in

favour of coercion, without replacing it with another unbalance, this time in favour

of secondary rules. Fred, to be sure, is well aware of that. I think, however, that it is

worthwhile adding a further line of argument. This line has to do with Hart’s theory

about what he calls the “minimum content of natural law” in positive law.3

As it is well-known, this part of Hart’s legal theory has its starting point in the

following problem: “Can positive law have any content whatsoever?”

Natural lawyers understand that question as a moral, normative question: “As a

matter of morality, is it permissible for positive legal orders to have any content

whatsoever?” They ask, accordingly, whether positive law is allowed to, can legitimately, by way of moral correctness, have any content whatsoever. And, as it is

well-known, they provide a negative answer: positive law is not allowed, morally

speaking, to have any content whatsoever. On the contrary, if a given positive legal

order happens to have certain morally vicious contents, that legal order is not a legal

order in a proper, central, sense, or, to take a more radical view, it is no legal order at all.

Contrariwise, Hans Kelsen—the champion of legal positivism—understands that

question as an empirical question: “As a matter of fact, is it possible for positive

legal orders to have any content whatsoever?” Pointing to what has happened in the

course of human history, he provides a positive answer. As a matter of fact—Kelsen

claims—positive legal orders can, and do, have whatever content. As a matter of

fact, positive legal orders can settle the unavoidable, fatal, un-relentless conflicts of

interests among the several components of a society in any way that the ruling side,

from time to time, may consider proper. In fact, Kelsen remarks, positive legal

orders can settle such conflicts in ways that, so to speak, try to strike a balance,

make some sort of compromise, between the interests of the several parties

involved; this is a typical feature of democratic legal orders. But they can also settle

conflicts of interests in ways that, uncompromisingly, sanction the full victory of

one side over the others, as it often happens under autocratic governments. In the

latter case, Kelsen suggests, the arrangement can be, as a matter of fact, less stable

than a compromising arrangement: more liable to social unrest and upheaval.

Overlooking this real-politik side of Kelsen’s view, Hart, as we all know, purports to provide a different answer from both the natural lawyers, on one side, and

Kelsen, on the other side. On the one hand, Hart refuses to understand the question

“Can positive law have any content whatsoever?” as natural lawyers do, that is to

say, as a moral question belonging to normative ethics. On the other hand, Hart

wants to resist to Kelsen’s plain “yes” to that question, if understood as an empirical

question (which by the way, as we have seen, is not “plain” at all—but this is



3



Another line of argument can be drawn from Hart’s theory of international law (Hart 1961, ch.

X); I will not consider it here.



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another issue which for the time being must be left aside). In order to do so, Hart

works out an «empirical» theory of the natural law content of positive law, on the

basis of the current human condition, as characterized by (1) human vulnerability,

(2) approximate equality, (3) scarcity of resources, (4) limited altruism, (5) limited

capacity of understanding and foresight, (6) limited force of will, and (7) general

inclination to survival, which makes of human societies, at least ordinarily,

something different from suicide clubs. Now, this theory has its gist in the following

claim: if a human society does not want to be like a suicide club, if it wants to

promote the survival of—most, or at least, the ruling part, of—its members, then it

must establish, and enforce, a minimal system of protections concerning individual

life, limbs, liberty, property, and contracts. From this standpoint, notice, coercion is

a necessary ingredient of positive law: necessary—to be sure—as an empirical

necessity, provided the way we, here and now, are; necessary, accordingly, by way

of an instrumental necessity that reason points to humans to help them, and keep

them, out of the Hobbesian state of nature (Hart 1958, 79 ff., 1961, 189 ff.).

One thing is worthwhile remembering before proceeding. Precisely in reaching

that conclusion, Harts makes a mockery of those philosophers who may waste their

time in considering whether such an empirical, instrumental, “necessary” connection between law and coercion, like a similar empirical, “necessary”, connection

between law and morals, does indeed partake of a higher metaphysical status: is a

conceptual, logical, necessity; belongs, as essentialist jurisprudents would say, to

the very nature or essence of the law.4



3 How to Get Rid of Essentialist Jurisprudence 2:

Essentialists’ Wrong Track

Fred suggests that essentialist jurisprudence is wrong, on the basis of two

arguments.

First, he makes an argument from cognitive science: essentialist jurisprudence

endorses a view of concepts, of our way of creating, modifying and using concepts,

that is at odds with the outputs of empirical research by cognitive science.

Essentialist jurisprudence is built on a false picture of the way concepts are and work.

Second, he makes an argument from the analytical (and Wittgensteinian) theory

of concepts: essentialist jurisprudence endorses a view of concepts that is at odds

with the influential ideas, within the analytical tradition, about “family resemblance” concepts and “cluster” concepts, which cast light on the fact that concepts

(and the categories they refer to) are not necessarily identified by sets of necessary

or essential properties (Schauer 2015, 37–42).

Hart (1958, 79): «The connection between law and moral standards and principles of justice is

therefore as little arbitrary and as ‘necessary’ as the connection between law and sanctions, and the

pursuit of the question whether this necessity is logical (part of the ‘meaning’ of law) or merely

factual or causal can safely be left as an innocent pastime for philosophers».

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These are—to my view—very good arguments. Indeed, they can be considered

sufficient to raise doubts about essentialist jurisprudence, to suggest how profoundly mistaken such an enterprise is. They are, furthermore, perfectly in tune with

Fred’s mode of philosophical argument, which is inspired, if I may say so, by an

elegant, “light touch”.

Essentialist jurisprudence, however, constitutes a very serious threat to philosophical progress in jurisprudence. It represents, in fact, the return to a

pre-analytical theory of concepts, which all those of my generation were inclined to

think as something fortunately gone forever. Sadly, we were wrong. Consequently,

a light touch is perhaps, all things considered, not sufficient. What is needed here is,

rather, a “spider touch”. Surely, I am not the one capable of such a skilful venture.

I will accordingly limit myself to evoking one more argument that could help in the

way of a radical refutation of essentialist jurisprudence. This is a “Benthamite

argument”.



3.1



The Benthamite Argument



The Benthamite argument is a direct supplement to Fred’s argument from

Wittgenstein & C. While doing jurisprudence, it is worthwhile remembering

Bentham not only for the theory of law he developed, but also for his sophisticated

meta-theory of law: particularly, for his ideas concerning the proper tools for useful

and demystifying inquiries upon the law. Now, as it is well known, the Benthamite

toolbox for universal expository jurisprudence contains, among other valuable

instruments of analysis, two items: (i) the distinction between real terms and fictitious terms, and (ii) the method of paraphrasis. The former distinction points to the

fact—which was, and still is, overlooked by many people—that, in our discourse,

we use two very different kinds of terms. On the one hand, there are real terms:

these are the terms that refer to real entities. “Lion”, “table”, “house”, “water”,

“judge”, “happiness”, “melancholy”, etc., all are real terms referring to real entities.

On the other hand, there are fictitious terms: these are the terms that do not refer to

real entities, but, rather, to fictitious entities, that is to say, to entities that owe their

very existence to language. “Fortitude”, “justice”, “duty”, “right”, etc., are all fictitious terms referring to fictitious entities. The distinction is relevant, according to

Bentham, because fictitious terms cannot be usefully defined by means of the

traditional mode of definition by genus and specific difference. Of course, we may

say that, for instance, “Fortitude is the virtue of being resilient to adversities”: we

may point, accordingly, to some genus and some specific difference. Unfortunately,

however, the definiens genus is likely to appear, in turn, as mysterious and baffling

as the definiendum. For, indeed, what is a “virtue”? The failure of the traditional

method urged Bentham to work out a method for coping with the definition of

fictitious terms (and concepts)—the method of paraphrasis—that will be known,

later, as method of “contextual definition” or “definition in use”. The method of

paraphrasis, as it is well-known, consists in clarifying the meaning of the



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definiendum (say “legal duty”) by clarifying the meaning, and particularly, the truth

conditions, of the sentences in which, in ordinary speech, the definiendum is being

used (like, for instance, “Italians have the legal duty to pay yearly an income tax”).5

Notice that definitions by genus and specific difference are definitions that pretend

to identify the set of necessary and sufficient properties for the correct use of the

defined word and the correct identification of the objects to which it refers. The

necessary properties that are captured by the definition are in fact tantamount to the

necessary properties making of something a table, a lion, water, and not another

thing. Of course, the same thing has different necessary properties according to the

different concept-term by which it is being referred to: one thing is, at the same

time, a “table”, a “piece of wood” (if made out of wood), a “precious XVIth century

artefact”, a “dangerous item according to the local Fire Brigade”, etc. Speaking of

necessary properties with regards to fictitious terms and fictitious entities is, by

contrast, not viable, since, as we have seen, they are not suitable to definitions by

genus and specific difference. Now, in Bentham’s view, the term “law”, when it

refers to the law, is a fictitious term referring to a fictitious entity; if it refers to

something real, it refers to the set of individual laws that, at any time, with regard to

a certain society, make up the fictitious entity we are used to call “the law”. As a

consequence, if we take Bentham’s stance seriously, speaking of the necessary or

essential properties of the law, to make any sense, cannot but be an indirect,

misleading, way to refer to the necessary or essential properties of the individual

laws conceived or adopted by a certain sovereign for a certain set of subjects. Now,

as Bentham makes clear in his magisterial, posthumous, treatise Of Laws in General

(Bentham 1970, 2010), there is a wide variety of laws, each kind of which presents

some property that differentiate it from other kinds. There are, for instance,

non-imperative, permissive norms (non-commands, non-prohibitions) and imperative norms; there are simple imperative norms, which command some behaviour to

a generality of subjects, and subsidiary punitory laws, which establish that a certain

coercive sanction ought to be ordered by a judge against those who have been

found guilty of a certain behaviour. So, in this innocent way, we can speak of the

necessary or essential properties of laws. Clearly, a punitory law is a law that,

necessarily, i.e., conceptually, establishes a penalty; establishing a penalty is its

“essential property”, what makes of a law a punitory law, and not another sort of

law. We cannot speak, however, of the necessary or essential properties of the law.

These considerations boil down to the following conclusion: essentialist jurisprudents set their task as consisting in identifying the essential, necessary, properties of

the law; there is, however, no such a thing as the law, while, to be sure, there are

laws, and judges, and legislatures, and sheriffs, and tax-payers, etc. Accordingly,

the task essentialist jurisprudents set to themselves appears to be the weird,

ill-conceived, task of nailing down the essential properties of something that does

not exist.



5



I provide an account of Bentham’s jurisprudential toolbox in Chiassoni (2009, ch. I).



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References

Bentham, J. (1970). Of Laws in General. In H. L. A. Hart (Ed.). London: Athlon Press (a more

recent edition: Id).

Bentham, J. (2010). On the limits of the Penal Branch of Jurisprudence. In P. Schofield (Ed.).

Oxford: Oxford University Press.

Chiassoni, P. (2009). L’indirizzo analitico nella filosofia del diritto. I. Da Bentham a Kelsen.

Torino: Giappichelli.

Chiassoni, P. (2013). The model of ordinary analysis, in Reading HLA Hart’s the concept of law.

In A. Dolcetti, L. Duarte d’Almeida, & J. Edwards (Eds.) (pp. 247–267). Oxford and Portland,

Oregon: Hart.

Hart, H. L. A. (1958). Positivism and the separation of law and morals. In H. L. A. Hart (Ed.),

Essays on jurisprudence and philosophy (pp. 49–87). Oxford: Clarendon Press, 1983.

Hart, H. L. A. (1961). The Concept of Law. Third edition with a postscript edited by Penelope A.

Bulloch and Joseph Raz. And with an Introduction and Notes by Leslie Green. Oxford:

Clarendon Press, 2012.

Hart, H. L. A. (1967). Problems of the philosophy of law. In H. L. A. Hart (Ed.), Essays on

jurisprudence and philosophy (pp. 88–119). Oxford: Clarendon Press, 1983.

Hart, H. L. A. (1970). Jhering’s heaven of concepts and modern analytical jurisprudence’, 1970.

In H. L. A. Hart (Ed.), Essays on jurisprudence and philosophy (pp. 265–277). Oxford:

Clarendon Press, 1983.

Hart, H. L. A. (1983). Introduction. In H. L. A. Hart (Ed.), Essays on jurisprudence and

philosophy (pp. 1–18). Oxford: Clarendon Press.

Schauer, F. (2013). Hart’s anti-essentialism. In A. Dolcetti, L. Duarte d’Almeida, & J. Edwards

(Eds.), Reading HLA Hart’s the concept of law (pp. 237–246). Oxford and Portland, Oregon:

Hart.

Schauer, F. (2015). The force of law. Cambridge: Harvard University Press.



Coercion and Sanctions as Elements

of Normative Systems

Nicoletta Ladavac

Ignorantia legis non excusat.

If it is not necessary to make a law, then it is necessary to

refrain from making a law.

(Montesquieu)



Abstract In this paper I shall attempt to demonstrate the role that sanctions and

coercion have played in legal systems and still play within normative systems.

Starting from continental law, namely the theory of law developed by Hans Kelsen

and Norberto Bobbio, I shall summarize the concept of coercion as a possible but

not a necessary element of law, while nonetheless being an essential feature of the

coercive order. I shall then demonstrate how Kelsen and Bobbio considered the law

to be comprised by coercive norms and legal norms operating in their function as

coercive norms, and state as coercive apparatus holding a monopoly on the use of

force. I shall then seek to stress how the conception of coercion and force endorsed

by Frederick Schauer is in many senses similar to the classical model of the

coercive order. Revisiting a normativist conception of the law, for Schauer too

coercion is an unequivocal and necessary element of modern legal systems, thus

demonstrating that coercion distinguishes law from other rules.



1 Introduction

In his latest book The Force of Law (2015) Frederick Schauer presents detailed

reflections on the nature of law, asking in particular what is its defining characteristic which distinguishes it from other types of rules that regulate the life and

conduct of individuals and society as a whole, because since ever there have been

debates over whether people should obey the law simply because it is the law.

Despite the common understanding of law as coercive, a number of important legal

This paper was translated by Thomas Roberts, Edinburgh.

N. Ladavac (&)

Philosophy of Law, Thémis Centre d’Etudes de Philosophie, du droit,

de Sociologie du droit et de Théorie du droit, Geneva, Switzerland

e-mail: nbersier@iprolink.ch

© Springer International Publishing Switzerland 2016

C. Bezemek and N. Ladavac (eds.), The Force of Law Reaffirmed,

Law and Philosophy Library 117, DOI 10.1007/978-3-319-33987-0_5



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N. Ladavac



theorists, including Hart and Raz, have considered that law is not inherently

coercive. This position stems from the rejection of earlier jurisprudential models,

forwarded by Austin and Bentham, which described law as little more than coercion

sponsored by the state. In noting what was wrong in the older models, that law is

importantly normative and authoritative, Schauer reintroduces what other theorists

have dismissed what was right, that law is inherently coercive.1 Consequently,

Schauer identifies force as a key element which characterises the law, a force which

is not external to the law but rather inherent within and correlated to it. Contrary to

many legal theorists who argue that the efficacy of the law results from the influence

of external forces and factors, including in particular the fact that the law and rules

are internalised by human beings on the basis of a complex social process, and that

this internalisation occurs without any constraint or coercion, Schauer reassesses the

role of the force that is inherent within the law, thereby seeking to demonstrate that

coercion, namely the constraint inherent within the law, establishes a profound

distinction between the function played by the law and the role played by internalised rules, thereby seeking to demonstrate that the force inherent within the law

is greater than the influence of social rules that impinge upon the thoughts and

actions of human beings.

Carrying out a detailed empirical and philosophical analysis, Schauer presents a

social reality which conforms to the law on the basis of the sanction and respect for

legal obligation, thereby demonstrating that the efficacy of the law is fundamentally

dependent upon its coercive force, claiming that the law provides individuals with

an indication of how they must behave by threatening to subject them to negative

consequences and sanctions in the event that the behaviour demanded is not

complied with. For Schauer, coercion thus performs an essential function within

society, even though human beings in general comply with the law more out of

respect for authority than for fear of sanctions, thus demonstrating that its force is

more pervasive than the efforts of the state to control a minority of disobedient

citizens. Schauer thus asks whether what the law commands differs from what

people think is the right thing to do, i.e. should they follow the law just because it is

the law. To evaluate the real effect of the law, self-interest and law-independent

reasons must be removed from the equation. The real problem, is “whether people,

when they have reached this all-things-except-the-law-considered judgement, will,

sanctions aside, subjugate that judgement to the prescription of the law” (Schauer

2015, 62). That means, will people do what they believe is wrong just because the

law tells them to do, and in the absence of the threat of sanctions?

For Schauer there is also an important empirical question as to whether people

actually obey the law simply because it is law. While much behaviour undoubtedly

complies with the law, it is important to distinguish between engaging in behaviour

because of the law and engaging in behaviour because of what the law may do to us

if we do not comply. Thus, the important point is what people think in relation to



The roots of normative force date back in a previous book, “Playing by the Rules”, that Schauer

published in 1991.



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the behaviour that is required, i.e. whether or not it is right to obey the law. In his

concluding arguments, Schauer argues that when human beings believe that the

action they should take differs from that required by the law, compliance with the

law is less widespread than might be assumed. Coercion, along with force, thus

becomes a necessary element of the law and the dismissal of the importance of

coercion in much of modern jurisprudence is a mistake which needs to be corrected.



2 Rules, Legal and Social Norms

However, before talking about actual coercion it is necessary to differentiate

between the various types of rules to which coercion attaches. For our present

purposes this means the rules of the legal system, which are rightly defined as legal

rules in that they are able to determine the general legal order, i.e. objective law, on

a generally stable basis. In general, the aim of a legal norm is to establish common

conduct according to values that are shared throughout society. The goal is to

regulate the behaviour of individual members of a group in order to ensure its

survival and to pursue the purposes considered by it to be pre-eminent. And in

general, legal norms are considered to be equivalent to rules of behaviour, i.e. to a

command requiring a certain course of action from an individual. The coercive

nature of the legal norm is thus indispensable. This central element of the legal

norm is decisive in differentiating it from other types of norms, such as moral or

religious rules, which belong to a non-coercive sphere in the sense that they are not

commands associated with a requirement of compliance.

The fundamental characteristics of a legal norm are: its general nature, in that it

does not relate to an individual person but to a class of persons; its abstract nature,

in that it does not refer to a specific individual case; its imperative (or coercive)

nature, in that the norm laying down a substantive requirement is associated with a

rule imposing a sanction; its coercive nature, in that it must mandatorily be complied with and failure to comply with it will be punished by the imposition of a

sanction on the transgressor; its positive nature, in that it is posited by the state or

another public authority; and its bilateral nature, in that it recognises a right as being

vested in one party while imposing a duty or obligation on another.

The legal norm must not under any circumstances be confused with the law. The

legal norm is a general and abstract prescription which identifies and asserts the

interests associated with a social group and defines the procedures governing their

protection and specific satisfaction, and which compliance must therefore be

guaranteed. Legal norms are such because they emanate from legal authority as they

are issued by the competent state authority and properly promulgated. In that sense

they have a strict normative meaning. As regards their normativity they regulate the

conduct of individuals, and as regards their generality they are binding on an

indefinite number of people and in an indefinite number of cases, and may be

enforced by the power of the state. State laws rely on enduring effectiveness;

therefore legal norms are based on effectiveness.



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Today the meaning of the legal norm has thus expanded, precisely thanks to the

abandonment of the understanding of the normative as prescriptive (mandatory,

imperative). In fact, the term norm is no longer used within legal language solely to

refer to prescriptive propositions, but also to permissive and empowering rules.

Permissive rules, which negate the effects of previous imperative rules, give permission to do something which would otherwise be prevented by another norm:

permissive norms thus grant a power, while prescriptive rules deprive power. It

must be noted also as regards the meaning of norm as a prescription that prescriptive force is not implemented with equal intensity by all legal norms. There are

in fact unconditional norms as the obligation to which the addressee is subject is not

conditional, as well as conditional norms in which the obligation is by contrast

subject to a condition.

Aside from legal norms which prescribe conduct that is binding as a matter of law,

there are also ethical, social, moral or religious norms which only bind the internal

forum of our conscience. Social norms are perhaps the most widespread and the

sociological analysis of social norms by sociologists and sociologists of law has taken

on particular significance over the last few decades. Sociologists describe norms as

informal understandings that regulate the behaviour of individuals (Marshall 1998)

(social psychology has however adopted a more general definition, recognising

smaller social units that may endorse norms separate or in addition to societal

expectations). Such norms are considered to exist as collective representations of

acceptable group conduct as well as individual conduct (Lapinski and Rimal 2005).

Within social psychology, the role of norms is emphasised by guiding behaviour as a

mental representation of appropriate behavior (Aarts and Dijksterhuis 2003) through

the promotion of pro-social behaviour. According to a psychological definition of the

behavioural component of social norms, there are two dimensions to norms: the

extent to which certain behaviour is displayed, and the extent to which the group

approves that behavior (Jackson 1965). Both of these dimensions can be used in

normative messages to alter norms and subsequently alter behaviour.

Although they are not considered to be formal laws, social norms still promote a

great deal of social control. Social norms can be enforced formally, that is through

sanctions, or informally through language and non-verbal communication. Because

individuals often derive physical and psychological resources from group membership, groups are said to control and stimulate individuals. Social norms also allow

an individual to assess what behaviour the group regards as important for its existence. Norms create conformity that allows people to become socialised within the

culture in which they live. Social norms are learned through social interaction.

Groups may adopt norms in a variety of ways. Norms can arise formally where

groups explicitly set out and implement behavioural expectations. However, social

norms are much more likely to develop informally, emerging gradually to control

behaviour. Informal norms represent generally accepted and widely sanctioned

routines that people follow in everyday life (Gerber and Macionis 2011, 65). These

informal norms, if broken, may not provide for formal legal punishment or sanctions,

but do encourage reprimands and warnings. Deviance from social norms is defined

as non conformity to a set of norms that are accepted by a significant number of



Coercion and Sanctions as Elements of Normative Systems



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people in a community or society (Applebaum et al. 2009, 173), that is if group

members do not follow a norm, they become labeled as deviant (labeling theory). In

sociological terms they are considered outcasts of society. Group tolerance for

deviation varies across membership; not all groups receive the same treatment in the

event of norm violations.

According to the theory of normative conduct, social norms may be divided into

descriptive norms and injunctive norms. Descriptive norms depict what happens,

while injunctive norms describe what should happen. A descriptive norm defines

people’s perceptions of what is commonly done, and signifies what most people do

without assigning judgment. An injunctive norm, on the other hand, transmits

group approval concerning a particular pattern of behaviour, that is, it dictates how

an individual should behave (Schultz et al. 2007). Unwritten rules that are understood and followed by society are prescriptive norms that indicate what we should

do. Proscriptive norms, by contrast, are similarly society’s unwritten rules about

what one should not do (Wilson et al. 2001).



3 The Role of Coercion Within Continental Legal Systems

and Common Law

3.1



The Definition of Coercion



First and foremost, what is coercion? Derived from the Latin coercio, it means a

pressure, a constraint that is exerted on a person in order to bring about a particular

form of behaviour which would not otherwise be engaged in, or a change in that

person’s intention. Coercion is thus associated with repression, constraint or inhibition. It involves various types of forceful actions that violate the free will of an

individual in order to bring about the desired response. In general, it is based on the

threat of physical or other violence with the aim of conditioning a person’s behaviour. These actions can include, but are not limited to, extortion, blackmail, torture, and threats. Such actions are used as leverage to force the person to act in a

manner contrary to her own interest. Coercion may involve the infliction of physical

pain or psychological harm in order to enhance the threat. The threat may secure

cooperation by or the obedience of the person being coerced. The purpose of

coercion is to substitute one’s own aims for those of the person being coerced.

Various forms of coercion may be distinguished, depending upon the type of injury

threatened, its aims and scope and its effects, each of which will have different

legal, social, and ethical implications.

It is said that legislation is based on coercion and that the threat of sanctions aims

to ensure that people do not commit unlawful acts out of fear for the negative

consequences imposed by law. Legal coercion is a typical element of law and

involves the imposition of sanctions which are applied in the event that individuals

violate certain norms imposing limitations on behaviour. In other words, in order



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for a norm to be considered as legal, it must be supported by a coercive power

which provides for the use of force against any breaches. In order to explain and

justify the necessary function of coercion within law, Schauer draws above all on

the Anglophone legal tradition (common law) and the ideas of Jeremy Bentham and

John Austin, including in particular their conceptions of sanctions and coercion as

effective means of fulfilling the goals of the law. In an important article from 2010

(Schauer 2010), Schauer sketches out the problems which he would go on to

consider in greater detail shortly afterwards in The Force of Law. Analysing

Austin’s theory of sanctions and coercion along with Hart’s criticism of that theory,

Schauer reassesses Austin’s ideas concerning the role of the sanction and coercion

within law, proposing a synthesis between Austin’s position and the criticism

brought by Hart and other philosophers of law writing in the Hartian tradition.

Thus, the two opposing positions appear to be reconciled.

Schauer stresses first and foremost that part of the misunderstanding between the

two theories that results from a misinterpretation of the linguistic distinction

between being obliged and being under an obligation. The claim of law and one of

the central tasks of jurisprudence—as Schauer rightly claims—is to create obligations, or most specifically legal obligations, which must not however be confused

with other types of obligation such as moral obligations (Schauer 2010, 3) In fact,

commands without sanctions—as Austin argues—lack coercive force and would

deprive the law of its power to impose itself as law, and consequently of its status as

a source of legal obligations. Schauer points out that it is the threat of sanctions,

therefore, that gives the law its normative force and authority, and which consequently creates the idea of legal obligation (Schauer 2010, 4). In fact, the law is

binding because of its capacity to punish in the event that its dictates are disobeyed.

However, according to Schauer, if the law is reduced to an instrument for creating

only duty-imposing and not power-conferring rules, the account of law as law will

provide only a partial description of its function, offering a highly restricted perspective on the law. Schauer thus criticises Hart and modern analytical jurisprudence for having limited and underestimated the role played by sanctions within the

law, reducing their task to a mere contingent function, as had by contrast been

correctly established in the past by Austin. Schauer explains that this is due to the

following misunderstanding, namely the notion that most human beings obey the

law out of commitment to the law and not in order to avoid sanctions, as Hart and

most of modern legal theory seeks to argue, which is however a distortion of reality

(Schauer 2010, 9). Schauer thus poses a question which is more than legitimate,

asking what legal theory is designed to accomplish, and thus what criteria distinguishes a satisfactory account of law from a limited one. Thus, the task of the jurist

is to decide on the essential features of law, and not simply to provide a descriptive

account of law on the basis of its factual externalisation. This means that it is

necessary to establish the relationship between legal obligations and sanctions.

Schauer is very clear about the fact that, in order to understand the relationship

between legal obligations and sanctions it must first and foremost be reiterated that

when referring to an obligation in relation to the law, we are not referring to an



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2 Hart’s Legal Theory Does not Belittle the Role of Coercion in the Social Phenomenon of Law

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