I. QUESTIONING THE NECESSITY OF NECESSITY

Coercion, Schauer argues, is neglected in legal theory because the dominant mode of contemporary analytic jurisprudence places it on the sidelines. His primary foil is conceptual analysis that seeks to understand the nature of law by identifying the “few features which all legal systems necessary possess” rather than law's contingent accidents.Footnote ⁶ Theorists working in this tradition differ on the particulars, but included in such a list of conceptual necessities is the feature that legal systems claim to give their “subjects moral reasons for action.”Footnote ⁷ Furthermore, there is the central role played by the “Puzzled Man,” who obeys the law not out of fear of force but rather an internal sense of legal obligation.Footnote ⁸ The Puzzled Man marks a mature legal system and facilitates the exclusion of coercive sanctions from the set of necessary features in our concept of law. Coercion is not part of the nature of law because not every legal system in every possible world requires it; the Puzzled Man does not need the truncheon or the jail to goad him toward legal compliance.

But, like good men on Georgia's literary byways, a Puzzled Man is hard to find.Footnote ⁹ To see this, Schauer argues, we must distinguish legal obedience from behavior that is merely consistent with the law. Perhaps some people acting in accordance with the law do so because it is the law, but far more common are people who conform because they agree with legal norms for law-independent reasons. Legal conformity is not the same as the legal obedience to law qua law.Footnote ¹⁰ With this distinction in hand, Schauer proceeds to pare down the prominence of the Puzzled Man.

He first challenges Tom Tyler's findings that people comply with the law for reasons other than fear of sanctions. Schauer concludes that Tyler's research, and other studies in that vein, mostly show that people follow laws that they thought were good in the first place rather than proving “the very fact of law makes a difference to the reasoning and decision-making processes of ordinary people.”Footnote ¹¹ Few people need law to restrain them from cannibalism, rape, fraud, or flying jet planes without a license.Footnote ¹² Other research offers “little support” for law's sanction-independent effect on decision-making and “some, albeit weak” support for the notion that law qua law plays little role at all.Footnote ¹³ Interestingly, these studies show that obedience to law qua law varies by nation and culture. There are comparatively many Puzzled Men waiting at deserted “Don't Walk” signs in Finland,Footnote ¹⁴ while in many other places, people ignore “unenforced law that does not track [their] law-independent preferences and judgments.”Footnote ¹⁵ One gets the sense that Hart's Puzzled Man has the internal point of view of a British tax barrister, which Hart once was, or at least the stereotypical Englishman who queues with grave abandon.

Of course, Hart's challenge to Austin's command theory does not hinge on having the masses made up of Puzzled Men. What matters to Hart's theory is that officials have an attitude of sanction-independent obligation. Yet Schauer is also skeptical that officials possess this trait as much as law professors think they do. He first notes that coercion matters to petty officials who face internal discipline or civil suits if they flout the law.Footnote ¹⁶ Therefore, high officials who stand above or are immune from the law offer a natural experiment to test the force of law without force.Footnote ¹⁷ The results, Schauer concludes, suggest the force is not strong with them. He catalogues a number of high-profile examples suggesting that absent sanctions, officials will ignore law that contravenes their preferences or all-things-considered judgments.Footnote ¹⁸ Only when illegality leads to unsuccessful policy, Schauer argues, does violation of law qua law come at a price.Footnote ¹⁹

As with his argument about average citizens, Schauer avoids the strong claim that there are no Puzzled Officials.Footnote ²⁰ Even with that hedge, one can ask whether Schauer's examples represent official practice or are outliers demonstrating that hard cases make bad law-compliance. For instance, the claim that the Obama administration went through “a highly unusual process” in not consulting the Office of Legal Counsel (OLC) on the legality of its Libya operations suggests that the OLC will say “no” to a president who listens.Footnote ²¹ Similarly, even if the Supreme Court has a reasonably free hand, many intermediate appellate judges blanch at their more adventuresome colleagues’ defiance of a Court that “can't reverse everything.”Footnote ²² Perhaps these suggestions of sanction-free compliance—out of view because of their mundanity—are illusory or (self)-deceptive, but a few high-profile stories to the contrary do not demonstrate that.

Schauer writes on these topics at greater length elsewhere,Footnote ²³ though a concise engagement with the political science here would have been helpful. The ratio of wind-up to delivery on this central question of official compliance is one shortcoming of this part of the book. Still, this is not a fatal flaw. Schauer seeks to show that coercion plays an important, not necessary, role in our thinking about law. One of his key insights is that law plays its most important role when it tells us to do things contrary to our best judgment. If the many hidden instances of law compliance occur when the policy stakes are low or noncontroversial, prominent examples of noncompliance at least indicate that law qua law loses its teeth when it most needs to bite.

The Puzzled Man, Schauer concludes, is not nearly as important as mainstream Hartians believe it is—at least if our measure of importance is empirical frequency, not conceptual necessity. If Puzzled Men are rare, what makes law operate in the main? Perhaps it is people who follow the law despite their first-order moral judgments because of a second-order moral judgment about the benefits of law. We can call them Principled People. Morality may not give one an answer about which side of the road to drive on, but if the law says “right,” I have good moral reasons to obey even if I am convinced by studies finding left-side laws safer.Footnote ²⁴ Or so classical natural lawyers, social contractarians, rule utilitarians, and others argue.Footnote ²⁵ Even if legions of Principled People wandered about submitting their first-order judgments to law for second-order moral reasons, however, that would not help Hart establish the primacy of the Puzzled Man. Such an argument builds moral evaluation into the Rule of Recognition and shifts us from positivism to natural law.Footnote ²⁶ And if Schauer's survey of law-abiding behavior (or lack thereof) is correct, Principled People are rare as well.

So what else makes law work? According to Schauer, for many people, much of the time, law makes a difference when the threat of sanction steers them away from their law-independent preferences and judgments. Even if we are not bad people, many of us are Bad Men in the Holmesian sense of wanting to know where the axe of the law will fall. By relying on the Puzzled Man, Schauer argues, positivism after Hart rests its case against Austin on a very thin sliver of reality.Footnote ²⁷ Force, while theoretically contingent, plays a much larger role in law than the abstract, sanction-free sense of “normativity” that puzzles legal philosophers.Footnote ²⁸

Such contingent, regular features of law are those that Schauer thinks more jurisprudential inquiry should focus upon. Drawing on social science and basic intuitions, he doubts that conceptual analysis should center on necessary features of a phenomenon, as opposed to paradigm cases or Wittgensteinian clusters of features arrayed in a family resemblance.Footnote ²⁹ And if these latter approaches are sounder ways of analyzing law, coercion deserves a place at the table. And if coercion plays a much larger role in legal reality than the Puzzled Man, it merits a commensurately larger serving of our attention.

More strongly, The Force of Law intimates that keying conceptual analysis on necessary features is, in fact, bad positivism. Hart, after all, criticized Austin's sanction-centered positivism because it did not “fit the facts” of law as we experience it.Footnote ³⁰ Schauer is happy to concede that Hart was right about Austin's picture being incomplete. But Hart makes the inverse, larger error, Schauer argues, by regarding Austin's omissions as the most important part of our concept of law. It is a strange positivism that neglects a theoretically contingent feature—coercion—that happens to be present in most every actual legal system while fixating on a comparatively small, normative sliver of the phenomenon. Hartian positivism offers an imperfectly faithful world a Concept of Law for Angels. For Schauer, a “more strictly positivist perspective”Footnote ³¹ fits the facts of this fallen world by focusing on law's coercion of its rebellious subjects.

II. COUNTING WHAT'S IMPORTANT

Penguins and crows are birds. Not all birds fly like crows can. Therefore, the concept of bird looks like a penguin, which embodies the necessary, but not contingent, features of the genus. This is bad ornithology, Schauer suggests, and he argues that positivists make similar errors by giving outsized attention to law's necessary features to the exclusion of coercion. More crows, fewer penguins.

But what about bats? Schauer does not crisply distinguish law from other practices that deploy coercion and other legal tools. The Mafia uses force, claims authority over all under its sway, and has an intricate hierarchy and detailed rules of conduct—the omertà is a code, after all.Footnote ³² Does the mob have law? We might say the Mafia is not a legal system because it lacks the necessary feature of “claim[ing] to give its subjects moral reasons for action,” but from a “more strictly positivist perspective,” it is unclear why that matters.Footnote ³³ If positivism is “as unconcerned with the moral goals of a system as with its ultimate moral worth,” the pride of place given to a moral claim to authority seems an odd natural-law vestige.Footnote ³⁴ This is particularly so if there are states that do not claim moral authority, or at least offer a fig leaf so transparent as to hide none of its leaders’ love of power or money.Footnote ³⁵

Accordingly, Schauer's more pluralist—more “strictly positivist”?—approach to theorizing tolerates overlapping conceptual clusters. Law is a phenomenon in which certain features—things like courts, emphasis on procedure, reasoning from rules, reliance on authoritative sources—are more pronounced than in other domains of life.Footnote ³⁶ Schauer simply wants to add coercion to that list of features that differentiate law by degree from other phenomena, and the fact that force (like reasoning from rules or submission to authority) exists in other domains is no problem.Footnote ³⁷

For analytical theorists like Leslie Green, Schauer conflates the notion that something “counts as” law with the idea that something “is quite a bit like law.”Footnote ³⁸ Green forcefully argues that before we know what is “typical” of law, “we need to count. Before we can count, we need to know. . . what counts as what.”Footnote ³⁹ Indeed, Schauer's theoretical modesty may be, in Green's words, “despair-inducing.”Footnote ⁴⁰ If “something definite were picked out about” about, say, the “activity engaged in by courts” to tie it to what we call law, we might be getting somewhere.Footnote ⁴¹ But as Green notes, courts and officials do lots of things, including lawbreaking.Footnote ⁴² And, as noted, outlaws use rules and procedures. Without criteria for selecting what is significant about law, Schauer's analysis risks becoming, in John Finnis's words, a mere “conjunction of lexicography with local history.”Footnote ⁴³

All this suggests that Schauer's no-frills positivism can only get us so far in analyzing the practice. To be sure, if we are simply counting frequency of occurrences in the real world, it is arbitrary to give pride of place to a system's claims of legitimate authority and its subjects’ internalization of those claims. Positivism after Hart is correct to ask for more, but by limiting itself to nonevaluative description, it deprives itself of the tools to identify why these normative features are so important. In this respect, Schauer's parsimony is the logical conclusion of a positivist methodology that rejects the necessity of moral assessment in general jurisprudence.

An evaluative approach, by contrast, can avoid the charge of arbitrariness and explain the importance of the litany of “necessary” features in the positivist pantheon in a way that Schauer's clustering approach cannot. Those features stand out because they cohere with a reasonable understanding of law's moral purposes. If the ideal type of law is, say, an ordinance of reason for the common good promulgated by those with responsibility for the community,Footnote ⁴⁴ claims of legitimate authority and uncoerced obedience stand out as central features of the practice. The empirical marginality of such features induces no despair if the goal is to construct critically, from existing social facts, an ideal type or central case.Footnote ⁴⁵ Such a central case can identify why the Mafia, the Rally for Congolese Democracy, or Myanmar's State Peace and Development Council are defective examples of legal systems, even if they share some features of the practice. And it can lead to further theorizing about the extent to which less nefarious sub- and supra-state entities are legal systems.Footnote ⁴⁶

From the perspective of the central-case theorist, Schauer provides crucial data for critical reflection on the practice. Perhaps we can call it “first-stage” theorizing about law.Footnote ⁴⁷ But a second-stage, evaluative theory offers a more complete explanation of law as we understand it. The positivist who wants to move to the second stage without an evaluative filter for sorting the variegated facts of practice will despair, and rightly so.

III. THE MORALITY OF COERCION

In re-centering general jurisprudence around the fact of force, Schauer brings legal positivism back to its Benthamite roots. From this perspective, sidelining normative criteria from the concept of law sharpens the contrast between the positivist and natural-law traditions. In another respect, however, Schauer's return to Bentham highlights how classical positivist and natural-law approaches to general jurisprudence emphasize law's moral purposes, even if they differ on the nature and roots of morality itself.Footnote ⁴⁸

The Force of Law offers important insights about the role force plays in accomplishing law's moral tasks. Schauer notes that coercion has its most obvious impact on “moral outliers” who would otherwise flout common social norms against murder, fraud, and the like.Footnote ⁴⁹ Legal coercion can also deter the more principled majority of people from engaging in fewer grave immoralities that they know are wrong.Footnote ⁵⁰ Of greater theoretical interest and importance, however, is the argument that legal coercion matters most when it countermands our all-things-considered judgments.Footnote ⁵¹ Here, Schauer unites his analysis of legal coercion with his work on the moral benefits of rule-based formality.Footnote ⁵² In doing so, he demonstrates how coercion is more than just a salient and common feature of law: it is crucial for reaping the moral benefits that legal rules can offer a political community.

The moral case for rule formalism is familiar.Footnote ⁵³ Sometimes we can best achieve moral goals by following general, authoritative rules rather than first-order, all-things-considered judgments. Rules can be blunt—overinclusive and underinclusive—but if they are good enough, they get more cases right than they get wrong while avoiding decision costs. There are flies in the ointment, but before getting to them, let us first consider law's positive effects.

People often disagree about the good and how to implement it. Such disagreement hardly entails moral skepticism; a true morality can leave many practical questions as matters of imprecise, varying, contextual judgments. If morality provides a range of reasonable, though debatable, options on many important questions, it will often be better that we pick and stick with one of them, at least until we decide to revisit the matter deliberately—and authoritatively.Footnote ⁵⁴ Unlike when law encourages our better angels, law here can contradict our best, all-things-considered judgment about what morality requires. This is so even though the moral agent, in some respect, is mistaken about what morality requires, in that she believes there is a clear answer that the law countermands. The ideally rational agent would recognize that this is a matter of reasonable moral disagreement and realize that there are powerful second-order reasons for deferring. That is what the Principled Person would do (and would say justifies the attitude of the Puzzled Man). But not all of us are Puzzled or Principled Persons. And even if we were, we are not omniscient or perfect reasoners, so it often unclear when something is a matter of moral indifference.

Relatedly, people can also choose beyond the bounds of reasonable disagreement or miss the correct answer. In that circumstance, an altruistic, morally motivated person will violate the law in good faith. Unlike moral outliers who see nothing wrong with cannibalism or rape, these more mundane lawbreakers may make factual mistakes or be overconfident about their moral judgments in the face of challenging questions.Footnote ⁵⁵ This latter point is particularly important for officials tasked with following rules. Law is necessary not only to keep officials from doing bad or self-interested things but also to keep them from doing what they think is right when it is, in fact, wrong. Law's constraint matters in part “because neither good faith nor confidence is a particularly reliable indicator of official wisdom,” especially when the allure of short-term benefits distracts from long-term or systemic considerations.Footnote ⁵⁶

In these respects, The Force of Law emphasizes an important aspect of legal rules. Law is not just for moral monsters, or for good people who want to stop being bad, but also for people of goodwill who want to do what happens to be wrong. For them (us, really), we also need force, because well-meaning, mistaken dissenters have already reached contrary reasoned judgments. Legal coercion can promote the common good by spurring people to do the right thing even when—or especially when—people mistakenly believe the law is morally wrong. In short, legal coercion is central to law because we are not angels who always want to do the right thing and because we are also not gods who always know what the right thing is.Footnote ⁵⁷ Once we widen the frame to consider our human condition and law's moral purposes, legal coercion is important in a concept of law for reasons beyond empirical prominence.Footnote ⁵⁸

Here we see practical overlap between consequentialist rule formalists and the classical natural-law tradition. The latter tradition adopts an Aristotelian or Thomistic moral theory that while insisting on moral absolutes, admits that morality often does not geometrically resolve practical questions. Now, the classical natural lawyer's understanding of moral reality and reasoning is very different from, say, a utilitarian's.Footnote ⁵⁹ But once tolerably just law is posited, the consequentialist formalist and the classical natural lawyer's approach to legal rules backed by force may not have much daylight between them.Footnote ⁶⁰ From that angle, the stock image of the natural lawyer inveighing against positive law on moral grounds is misleading. Or perhaps that standard picture reflects the rationalist cast that much nonconsequentialist moral theorizing has taken since the Enlightenment.Footnote ⁶¹ Natural law in those hands will be more censorious of posited law than in the hands of a moral realist who does not demand more precision than the discipline admits.

Coercion is necessary for any legal system that governs imperfect people with imperfect judgment. But there is a catch. The bright side of the force of law—and the moral rationality of submitting judgment to legal authority—depends on the moral wisdom of those who make and enforce the laws. Schauer's observations about officials’ (non)compliance with law does not give much confidence in their ability to follow and enforce decisions that fall in the realm of reasonable disagreement. The moral case for legal force also assumes that when morality has a best answer, lawmaking officials are more likely to get matters right than citizens on the ground would. But if we also need things like statutes and constitutions to constrain epistemically overconfident officials, can we trust those same flawed people to make authoritative rules? The possibility that morality, in many circumstances, leaves a wide range for reasonable judgment mitigates this dilemma. But at a certain point, substantively bad decisions can trump second-order benefits such as cooperation, coordination, and settlement.

The Force of Law does not offer legal coercion as a panacea to these problems of legal authority. If it brought such glad tidings, it would have a cheerier dust jacket. It simply seeks to describe when legal coercion can be morally useful and necessary, even if it sometimes (often?) is not.Footnote ⁶² The Force of Law underscores how morally justified coercion plays a central role in complete concept of law, or at least one in a world not populated with gods or angels.Footnote ⁶³ Law made and enforced by humans lacks divine inerrancy, and thus in practice can coerce its subjects unjustly.Footnote ⁶⁴ Its subjects, however, are no less flawed and thus may be uncertain (or too certain) about when to say “non serviam.” This is why the Principled Person—right out of central-case casting—adopts the untidy but reasonable position that positive law in a generally just system creates a presumptive moral obligation. In the central case, law's threatened coercion is justified. The possibility that in reality such justification may often be lacking does not marginalize the notion of legitimate authority. Rather, it only highlights that much of our concept of law points toward a moral ideal.