Schauer's Anti‐Essentialism

• Author: Torben Spaak
• Date: 01 June 2016
• Published date: 01 June 2016
• DOI: http://doi.org/10.1111/raju.12123

Schauer’s Anti-Essentialism

TORBEN SPAAK*

Abstract. In his new book, The Force of Law, Frederick Schauer maintains that law

has no necessary properties (a position he calls legal anti-essentialism), and that

therefore jurisprudents should not assume that an inquiry into the nature of law has

to be a search for such properties. I argue, however, that Schauer’s attempt to show

that legal anti-essentialism is a defensible position fails, because his one main argu-

ment (the cognitive science argument) is either irrelevant or else incomplete,

depending on how one understands it, and because the other main argument (the

family resemblance argument) is false.

1. Introduction

In his new book, The Force of Law (Schauer 2015), distinguished jurisprudent and

first amendment scholar Frederick Schauer investigates the role of coercion in law.

He maintains that coercion is a very important feature of law, because all known

legal orders (or legal systems) are coercive and because coercion is very likely what

actually motivates most people—officials as well as citizens—to obey the law. He

argues, as regards the question of motivation, that once we substitute a distinction

between self-motivated (or self-interested), law-motivated, and other-motivated or

morally-motivated behavior for the cruder distinction between self-interested and

law-motivated behavior employed by many scholars who have been considering

our reasons for obeying the law, we will see that it is a mistake to believe that

many people obey the law just because it is the law, and that the threat of coercion

is very likely an important motivating factor. The reason why it is important to

consider other-motivated and morally-motivated behavior is, of course, that such

conformity to legal requirements does not qualify as law-motivated obedience.

But Schauer also has important things to say about jurisprudential methodology,

maintaining as he does that jurisprudents should not follow H.L.A. Hart and others

* I would like to thank the participants inthe workshop “The Force of Law. A Workshop with

Fred Schauer” at Bocconi University, Milan on 2–3 October 2014, for helpful comments on my

presentation of the ideas in this article. I would also like to thank the participants in the

advanced seminar in practical philosophy, Uppsala University, especially Jens Johansson, for

helpful comments on an earlier version of the article, and A

˚ke Fr€

andberg and Patricia Mindus

for equally helpful comments on an even earlier version of the article. Finally, I would like to

thank Robert Carroll for checking my English. As always, the responsibility for any remaining

errors and imperfections in the articlerests with the author alone.

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Ratio Juris. Vol. 29 No. 2 June 2016 (182–214)

in assuming that an inquiry into the nature of law must be a search for essential

properties of law (in order to qualify as an inquiry into the nature of law), but

should instead focus on properties that are typical of law and important. He addu-

ces two distinct claims in support of this main methodological claim (MMC), as I

shall refer to it, namely, (1) that law has no essential properties, and (2) that focus-

ing 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, or a so-called cluster

concept.

I find both (MMC) and the claims (1)–(2), including the supporting claims (1a)

and (1b), interesting and well worthy of extended discussion. Clearly, since juris-

prudents focus on the question of the nature of law, they should know how to go

about an inquiry into the nature of law, and how not to, and they should also

know why they should go about such an inquiry in the one way rather than the

other. Questions such as “What is an essential property?,” “Do we have reason to

believe that law has essential properties?,” and “Assuming that law does have

essential properties, should we focus our jurisprudential inquiries exclusively on

those properties?” should be of considerable interest to any reasonably reflective

jurisprudent.

But the role of (MMC) in Schauer’s inquiry, as distinguished from its truth or

defensibility, is also interesting, and in my view somewhat puzzling. Since no juris-

prudent in his right mind would want to deny Schauer the right to investigate the

role of coercion in law, but would probably only say that, strictly speaking, such an

inquiry does not qualify as an inquiry into the nature of law, one may wonder why

Schauer considers this question to be so important. Why does he want his investi-

gation to qualify as an inquiry into the nature of law? Why does he not just go

ahead and investigate the role of coercion in law and accept that some, perhaps

quite a few, jurisprudents will not consider such an investigation to be an inquiry

into the nature of law?

The answer to this question appears to be that Schauer wishes to undertake a

philosophical investigation (or examination) of coercion in law:

Having shed the belief of sup posing that properties t hat are not conceptually ne cessary are

of little philosophi cal or jurisprudential in terest, we are now bette r situated to think about

those pervasive aspect s of law that are ubiquitous and t ypical but not conceptuall y essen-

tial. Coercion is surel y one of those aspects, an d freed from the necessity of limiting our

examination to conceptua l essences we can recover the theoretic al and philosophical exami-

nation of coercion in law f rom the exile to which a dubio us essentialism has cast i t. (Scha-

uer 2015, 43)

I do not find this answer convincing, however. For, as Schauer (2015, 4–5) himself

notes, and as is clear from his own book, an investigation of a legal phenomenon,

such as legal coercion, may well be philosophical without amounting to an

inquiry into the natu re of law, as that enterpri se has traditionally b een conceived.

Schauer's Anti-Essentialism 183

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Why, then, does Schauer want his philosophical investigation to qualify as an

inquiry into the nature of law? Why does he not rest content knowing that his is

a very interesting , philosophically in spired investigat ion of the role of coercio n in

law?

I shall not, however , pursue this (rather mi ld) objection to Scha uer’s analysis,

but shall focus instead on Schauer’s anti-essentialism and the above-mentioned

two claims adduced by S chauer in support of i t, namely, (1a) and (1b) , and their

relation to one another. I shall argue, more specifically, (i) that Schauer’s attempt

to show that legal anti-essentialism is a defensible position fails, because argu-

ment (1a) is either irrelevant or else incomplete, depending on how one under-

stands 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 dif ferentiation of law i s in tension with, and mig ht even

undermine, the leg al anti-essential ism that Schauer esp ouses. I shall also a rgue

(iv) that Schauer’s legal anti-essentialism does not seem to be anti-essentialism in

the usual sense of a rejecti on of the existence of ess ential properties, b ut rather a

rejection of the pos sibility of analyzin g the concept of law in t erms of necessary

and sufficient con ditions, which is a di fferent and quite r adical view. Moreov er, I

shall argue (v) that legal anti-essentialism in Schauer’s sense is a problematic doc-

trine, because it see ms to render parts of le gal scholarship, suc h as the interesting

and valuable discipline of comparative law,

1

more or less pointl ess, and (vi) that

a jurisprudent who d espite the objectio ns set forth in this ar ticle accepts legal

anti-essentiali sm (in Schauer’s sen se) should consider modifying his approach to

the inquiry into the nature of law accordingly by giving up the method of philo-

sophical analysis and trying instead either the method of explication or the

method of the ideal-type. Finally, I shall 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 t he center of law, but can fi nd a much more recent jur ispru-

dent who does precisely that, namely Scandinavian realist Karl Olivecrona, and

(viii) that a compari son of Schauer’s and Ol ivecrona’s account s of legal coercion

makes it clear that th ese accounts treat ve ry different quest ions and differ quite a

bit in general, and t hat the main reason wh y this is so is that the y differ in their

understanding of what an inquiry into the nature of law is.

I begin, however, by considering the structure of Schauer’s argumentation

(Section 2) and by saying a few words about how I understand the method of

philosophical analysis, which Schauer objects to (Section 3). Having done that, I

consider the claims (1a) and (1b) in more detail, including the logical relation

between the two claims (Sections 4–8), discuss rather briefly two alternative meth-

ods of jurisprudential inquiry, namely the method of explication and the method

of the ideal-type (Section 9), and identify a tension, perhaps even a contradiction,

in Schauer’s discussion of (what Schauer refers to as) the differentiation of law

(Section 10). The article concludes, in an attempt to place Schauer’s investigation in

a larger context, with a brief consideration of Karl Olivecrona’s thoughts on legal

coercion (Section 11).

1

For a valuabletreatise on comparative law, see Zweigertand K€

otz (1998).

184 Torben Spaak

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