Enforcement and the Concept of Law

24 Pages Posted: 25 Oct 2012 Last revised: 29 Dec 2012

Date Written: November 22, 2011

Abstract

International law, many think, is not really law at all because it is not enforced. This Essay asks two philosophical questions about that claim. What do we mean by enforcement when we channel the intuition that enforcement is part of law’s nature? And what is the place of enforcement in our concept of law?

Enforcement, the Essay argues, is the activity by which a legally constituted power is applied to make the law’s dictates actual; it is a matter of law’s efficacy. Enforcement so conceived is constitutive of law’s identity as law, but not strictly necessary to it because law is not the kind of thing that has strictly necessary features. Nor is enforcement sufficient to make a norm a law: the skepticism toward international law is not based on enforcement alone.

Keywords: Legal Philosophy, Jurisprudence, Enforcement, International Law, Jurisprudence

Suggested Citation

Kleinfeld, Joshua, Enforcement and the Concept of Law (November 22, 2011). 121 Yale Law Journal Online 293 (2011); Northwestern Public Law Research Paper No. 12-39. Available at SSRN: https://ssrn.com/abstract=2166341

Joshua Kleinfeld (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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