Law's Necessary Violence

104 Pages Posted: 24 Mar 2017 Last revised: 11 Apr 2019

Date Written: August 31, 2017

Abstract

The concept of political positive law necessarily includes coercive physical force. Legal philosophers have erred in this area since Hart’s The Concept of Law (1961) and recent works, such as Frederick Schauer’s The Force of Law (2015), repeat Hart’s mistake by failing to understand that those subject to political positive laws must be able to recognize a coercive intent behind those laws in order to coherently and consistently recognize them as laws. Acknowledgment of this conceptual necessity would combat confusion over law caused by the increasing divergence in legal subjects’ fundamental worldviews and ways of personally accessing reality. It could also combat the weakening consensus regarding the authority of political and legal figures while promoting a more libertarian attitude toward the use of law. I employ novel arguments to demonstrate that a refined understanding of the Benthamite–Austinian command theory of law is the correct one. I argue that every law, properly so-called, is a speech act that signals legitimated violence and, unlike previous proponents of the coercive command theory, I clarify that the coercion involved is necessarily physical. My epistemology rests upon a common-sense and naturalistic approach and I use natural-kind concepts, rooted in the causal effects of physical objects, as models for all other concepts while adopting normative thin positivism, thus separating law from morality as much as possible. The necessity of using coercive force to distinguish law from rhetoric, moral suasion, exhortation, guideline, and other social phenomena—and legal persecution from other forms of social disapproval—becomes apparent with this approach. To promote the best understanding of the world, the concepts of law and legal obligation cannot overflow the distinguishing ends and means of political legal authorities, and their distinguishing means is legitimated physical coercion applied through a legal system.

Keywords: legal philosophy, legal theory, jurisprudence, law and coercion, concepts, conceptual analysis, linguistic theory, essentialism, legal positivism, naturalism, natural law theory, Aristotle

Suggested Citation

D'Agostino, Joseph, Law's Necessary Violence (August 31, 2017). 22 TEX. REV. L. & POL. 121 (Fall 2017). Available at SSRN: https://ssrn.com/abstract=2940252

Joseph D'Agostino (Contact Author)

Savannah Law School ( email )

7426 Hodgson Memorial Dr
Ste A
Savannah, GA 31406
United States

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