61 Pages Posted: 19 Dec 2014 Last revised: 26 Jan 2015
Date Written: December 17, 2014
In his new book, The Force of Law (forthcoming), distinguished jurisprudent and first amendment scholar Frederick Schauer maintains, inter alia, that jurisprudents should not follow H.L.A. Hart and others in assuming that an inquiry into the nature of law must be a search for essential properties of law, but should instead focus on properties that are typical of law and important. He adduces two distinct claims in support of this main methodological claim, namely, (1) that law has no essential properties, and (2) that focusing on essential properties of law to the exclusion of properties that are typical of law and important, albeit not essential, means that the theorist will run the risk of missing out on important insights. And he adduces in turn two distinct claims in support of claim (1), namely, (1a) that people in general think of and with concepts not in terms of necessary and sufficient conditions for their proper application, but in terms of central and peripheral cases, and accept that not all instances, not even all central instances, of a concept share any one property or properties, and (1b) that the concept of law is a family resemblance concept.
I argue, however, (i) that Schauer’s attempt to show that legal anti-essentialism is a defensible position fails, because argument (1a) is either irrelevant or else incomplete, depending on how one understands it, and because argument (1b) is false, since the concept of law is not a family resemblance concept, and possibly also incoherent, (ii) that claims (1a) and (1b) could not be true together, and (iii) that Schauer’s discussion of properties of law in the chapter on the differentiation of law is in tension with, and might even undermine, the legal anti-essentialism that Schauer espouses. I also argue (iv) that Schauer’s legal anti-essentialism does not seem to be anti-essentialism in the usual sense of a rejection of the existence of essential properties, but rather a rejection of the possibility of analyzing the concept of law in terms of necessary and sufficient conditions, which is a different view. Moreover, I argue (v) that legal anti-essentialism in Schauer’s sense seems to render parts of legal scholarship, such as the interesting and valuable discipline of comparative law, more or less pointless, and (vi) that a jurisprudent who despite the objections set forth in this article accepts legal anti-essentialism (in Schauer’s sense) should consider modifying his approach to the inquiry into the nature of law accordingly by giving up the method of philosophical analysis and trying instead either the method of explication or the method of the ideal-type. Finally, I argue (vii) that we do not have to go all the way back to the time of Bentham and Austin to find a prominent jurisprudent who puts coercion at the center of law, but can find a much more recent jurisprudent who does precisely that, namely Scandinavian realist Karl Olivecrona, and (viii) that a comparison of Schauer’s and Olivecrona’s accounts of legal coercion makes it clear that these accounts treat very different questions and differ quite a bit in general, and that the main reason why this is so is that they differ in their understanding of what an inquiry into the nature of law is.
Keywords: philosophical analysis, explication, ideal-type, anti-essentialism, coercion, family resemblance, cognitive science, Hart, Olivecrona
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