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2 Hart’s Legal Theory Does not Belittle the Role of Coercion in the Social Phenomenon of Law
Supporting The Force of Law …
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
Another line of argument can be drawn from Hart’s theory of international law (Hart 1961, ch.
X); I will not consider it here.
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
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».
Supporting The Force of Law …
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
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
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
I provide an account of Bentham’s jurisprudential toolbox in Chiassoni (2009, ch. I).
Supporting The Force of Law …
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.
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,
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:
Schauer, F. (2015). The force of law. Cambridge: Harvard University Press.
Coercion and Sanctions as Elements
of Normative Systems
Ignorantia legis non excusat.
If it is not necessary to make a law, then it is necessary to
refrain from making a law.
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.
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
© 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
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.
Coercion and Sanctions as Elements of Normative Systems
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.
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
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
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
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