The Force of Law Reaffirmed : Frederick Schauer Meets the Critics

This Book Examines The Success Of Frederick Schauer's Efforts To Reclaim Force As A Core Element Of A General Concept Of Law By Approaching The Issue From Different Legal Traditions And Distinct Perspectives. In Discussing Schauer's Main Arguments, It Contributes To Answering The Question Whether Force, Sanctions And Coercion Should (or Should Not) Be Regarded As Necessary Elements Of The Concept Of Law, And Whether Legal Philosophy Should Be Concerned At All (or Exclusively) With Necessary Or Essential Properties. While It Was Long Assumed That Legal Norms Are Essentially Defined By Their Force, It Was H.l.a. Hart Who Raised Doubts About Whether Law And Coercion Are Necessarily Connected, Referring To The Empowering, Or More Generally Enabling, Character Exhibited By Some Legal Norms. Prominent Scholars Following And Refining Hart's Argument Built An Influential Case For Excluding Force As A Necessary Element Of The Concept Of Law. Most Recently, However, Frederick Schauer Has Made A Strong Case To Reaffirm The Force Of Law, Shedding New Light On This Essential Question. This Book Collects Important Commentaries, Never Before Published, By Prominent Legal Philosophers Evaluating Schauer's Substantive Arguments And His Claims About Jurisprudential Methodology.--publisher's Website. Introduction: Why (ever) Define Law And How To Do It / Isabel Trujillo -- Bad For Good: Perspectives On Law And Force / Christoph Bezemek -- Coercion And The Normativity Of Law: Some Critical Remarks On Frederick Schauer's The Force Of Law / Thomas Bustamante -- Supporting The Force Of Law: A Few Complementary Arguments Against Essentialist Jurisprudence / Pierluigi Chiassoni -- Coercion And Sanctions As Elements Of Normative Systems / Nicoletta Ladavac -- Forceful Law / Christopher W. Morris -- The Force Of Law: Law And Coercion, Validity And Effectiveness, And Synergy / Jorge Emilio Nunez -- Does Law Without Force Exist? / Michael Potacs -- Schauer On The Differentiation Of Law / Lars Vinx -- Incomplete Responses / Frederick Schauer. Christoph Bezemek, Nicoletta Ladavac, Editors. Includes Bibliographical References And Index. Preface 6 Contents 8 Contributors 9 Bibliographical Note 10 Thematic Bibliography 12 1 Introduction: Why (Ever) Define Law and How to Do It 13 Abstract 13 1 The Domestic Assumption and the Process of Law Differentiation 13 2 How to Define Law 16 3 From Non-state Law to Soft Law 17 3.1 Self-regulations 19 3.2 Cooperation Beyond the State 20 3.3 Soft Law and International Law 23 4 Conclusion 25 References 26 2 Bad for Good: Perspectives on Law and Force 27 Abstract 27 1 Introduction: Full House 27 2 Family Ties 28 3 Breaking Bad 30 4 Angels and Demons 32 5 Law and Order 34 6 Conclusion: Bad Man Returns 36 Acknowledgments 37 References 37 3 Coercion and the Normativity of Law: Some Critical Remarks on Frederick Schauer’s The Force of Law 39 Abstract 39 1 Introduction 40 2 Schauer and the Normativity of Law 40 3 The Possibility of Non-coercive Laws and the Search for the Puzzled Man 47 4 Obedience to the Law and the Foundations of Legal Authority 50 4.1 On Schauer’s Conception of Law 51 4.2 On the Social Character of Legal Norms 57 4.3 On the Moral Foundations of Legal Authority and the Obligations of Legal Officials 62 4.4 Individuals and the Normativity of Law 66 5 Conclusion 69 Acknowledgments 70 References 70 4 Supporting The Force of Law: A Few Complementary Arguments Against Essentialist Jurisprudence 72 Abstract 72 1 Introduction 72 2 How to Get Rid of Essentialist Jurisprudence 1: Essentialists’ False Pedigree 74 2.1 Hart’s Meta-Theory Takes a Radically Anti-essentialist Stance 74 2.2 Hart’s Legal Theory Does not Belittle the Role of Coercion in the Social Phenomenon of Law 77 3 How to Get Rid of Essentialist Jurisprudence 2: Essentialists’ Wrong Track 79 3.1 The Benthamite Argument 80 References 82 5 Coercion and Sanctions as Elements of Normative Systems 83 Abstract 83 1 Introduction 83 2 Rules, Legal and Social Norms 85 3 The Role of Coercion Within Continental Legal Systems and Common Law 87 3.1 The Definition of Coercion 87 3.2 The Continental View of Hans Kelsen and Norberto Bobbio 89 3.3 Norberto Bobbio 95 3.4 Frederick Schauer: Coercion as Force of Law 99 4 Conclusion 102 References 105 6 Forceful Law 107 Abstract 107 References 115 7 The Force of Law: Law and Coercion, Validity and Effectiveness, and Synergy 117 Abstract 117 1 Law and Coercion 117 2 Coercion Is Generally or by Default Part of the Law 118 3 Coercion May Occasionally not Be Part of the Law: Coercion Sensu Stricto 120 4 Motivation 120 5 Coercion and Force 122 6 It Is a Matter of Synergy; not of Counting 123 7 Validity or Logical Existence 124 8 Effectiveness or Factual Existence 125 9 Validity and Effectiveness: Synergy 126 10 Conclusion 128 References 129 8 Does Law Without Force Exist? 131 Abstract 131 1 Family Resemblance? 131 2 Reality 132 3 Objections 133 4 Reasons 136 5 Rationality 136 6 Conclusion 138 References 138 9 Schauer on the Differentiation of Law 139 Abstract 139 1 Introduction 139 2 The Gunman 141 3 Stateless Law 143 4 Coercion, Differentiation, and the State 145 5 Monopolistic Coercion 148 Acknowledgments 152 References 153 10 Incomplete Responses 154 1 Lars Vinx and the Methods of Jurisprudence 154 2 Pierluigi Chiassoni and the Mistaken Search for Essences 157 3 Thomas Bustamante and Law’s Normativity 160 4 Situating Coercion—Christopher Morris’s Amendments 162 5 Jorge Nunez and the Actual Effectiveness of Law 164 6 Not Far Enough—Michael Potacs and the Necessity of Coercion 165 7 Christoph Bezemek and the Moral Force of Law 167 8 Nicoletta Ladavac and the Norms of Law and Legal Theory 169 9 Isabel Trujillo and the Relation Between Force and the State 171 References 173 Index 176 "This book examines the success of Frederick Schauer's efforts to reclaim force as a core element of a general concept of law by approaching the issue from different legal traditions and distinct perspectives. In discussing Schauer's main arguments, it contributes to answering the question whether force, sanctions and coercion should (or should not) be regarded as necessary elements of the concept of law, and whether legal philosophy should be concerned at all (or exclusively) with necessary or essential properties. While it was long assumed that legal norms are essentially defined by their force, it was H.L.A. Hart who raised doubts about whether law and coercion are necessarily connected, referring to the empowering, or more generally enabling, character exhibited by some legal norms. Prominent scholars following and refining Hart's argument built an influential case for excluding force as a necessary element of the concept of law. Most recently, however, Frederick Schauer has made a strong case to reaffirm the force of law, shedding new light on this essential question. This book collects important commentaries, never before published, by prominent legal philosophers evaluating Schauer's substantive arguments and his claims about jurisprudential methodology." (éditeur) Front Matter....Pages i-xiii Introduction: Why (Ever) Define Law and How to Do It....Pages 1-14 Bad for Good: Perspectives on Law and Force....Pages 15-26 Coercion and the Normativity of Law: Some Critical Remarks on Frederick Schauer’s The Force of Law ....Pages 27-59 Supporting The Force of Law: A Few Complementary Arguments Against Essentialist Jurisprudence....Pages 61-71 Coercion and Sanctions as Elements of Normative Systems....Pages 73-96 Forceful Law....Pages 97-106 The Force of Law: Law and Coercion, Validity and Effectiveness, and Synergy....Pages 107-120 Does Law Without Force Exist?....Pages 121-128 Schauer on the Differentiation of Law....Pages 129-143 Incomplete Responses....Pages 145-166 Back Matter....Pages 167-169