The long-standing axiom of twenty-first century jurisprudence has been the secondary importance of coercion in law. Since the publication of H. L. A. Hart’s The Concept of Law in 1961, the most dominant legal philosophers have assumed that coercion is not an essential property of law. This paper examines closely Frederick Schauer’s The Force of Law, which argues, against the tide of history, that coercion is a salient feature of law and therefore merits careful attention. While such an ambitious goal itself should be highly regarded and this paper embraces the work’s focus on coercion by law for the most part, three inherent issues are apparent. One is that it focuses on the causal efficacy of law while remaining silent about the concept of law. It thus fails even to challenge the legal positivist cases against the centrality of coercion. Second, the crux of The Force of Law is difficult to ascertain given the “presumptive positivism” articulated in Schauer’s earlier work Playing by the Rules, which imposes stringent constraints not only on people in general, but also on judges or “officials”. However, the fatal flaw is that Schauer’s failure to analyze sufficiently the concept of coercion from a philosophical perspective creates a paradox for him where someone who acts in accordance with the law turns out to be uncoerced by it.

(森村進先生　退職記念 = Commemorating Professor Susumu MORIMURAʼs Retirement)

一橋大学大学院法学研究科

2020-03-10

Japanese(jpn)

departmental bulletin paper

VoR

10.15057/31124

1347-0388

AA1161370X

一橋法学

19

1

131

159

19巻1号(2020.3)

https://hdl.handle.net/10086/31124