Sanctions and Efficacy in Analytic Jurisprudence

27 Pages Posted: 15 May 2018 Last revised: 4 Oct 2018

See all articles by Brenner Fissell

Brenner Fissell

Villanova University; Villanova University, Law School

Date Written: May 2, 2018

Abstract

Legal theory has long grappled with the question of what features a rule system must have for it to be considered “law.” Over time, a consensus has emerged that might seem counterintuitive to most people: a legal system does not require punishment for the disobedience of its rules (“sanctions”), nor must it be obeyed by the people it purports to apply to (it need not have “efficacy”). In this Article, I do not challenge these conclusions, but instead stake out an attempt to reconcile these claims with other intuitions about law. I argue that while neither sanctions nor efficacy are alone determinative of legal validity, legal systems must at least aspire to be efficacious. Sanctions, then, may be seen as but one optional manifestation of the crucial background quality they represent: a readiness to adapt and react to the external realities surrounding a legal system’s attempted implementation.

Keywords: jurisprudence, philosophy of law, sanctions

Suggested Citation

Fissell, Brenner, Sanctions and Efficacy in Analytic Jurisprudence (May 2, 2018). Rutgers Law Review, Vol. 69, No. 1627, 2018, Hofstra Univ. Legal Studies Research Paper No. 2018-11, Available at SSRN: https://ssrn.com/abstract=3172521

Brenner Fissell (Contact Author)

Villanova University ( email )

Villanova, PA 19085
United States

HOME PAGE: http://www.brennerfissell.com

Villanova University, Law School ( email )

299 N. Spring Mill Road
Villanova, PA 19085
United States

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