The Ambiguity of Force

DOIhttp://doi.org/10.1111/raju.12130
AuthorDavid Dyzenhaus
Date01 September 2016
Published date01 September 2016
The Ambiguity of Force
DAVID DYZENHAUS
Abstract. The author argues that Schauer’s understanding of appropriate empiricism
and relatedly what he wishes to take from the positivist classics might have an even
more reductive impact on legal philosophical inquiry than the legal positivist quest
(which Schauer rejects) to confine such inquiry to a search for necessary and suffi-
cient conditions. The argument is based on the example of the legal order of the
Arab territories occupied by Israel. In the author’s view, this legal order is very close
to what Schauer regards as the normal case of a properly functioning legal order
and in its closenessone can discern the flaws in his argument.
Frederick Schauer calls for philosophy of law to be more attentive to the empirical
experience of law (Schauer 2015). I am in deep sympathy with this call, as well as
with his allied suggestion that a positivistic conception of legal philosophy that
restricts it to the discovery of the necessary and sufficient conditions for something
to be law is unduly restrictive. Finally, I agree with Schauer that a return to the
concerns of the classics in the pre-Hartian tradition of thought—Hobbes, Bentham,
Austin—is most productive.
However, I shall argue that Schauer’s understanding of appropriate empiricism
and relatedly what he wishes to take from the positivist classics might have an
even more reductive impact on legal philosophical inquiry than the quest to
confine such inquiry to a search for necessary and sufficient conditions. I shall
startwith an account of a legal order, that of the Occupied Territories—the Arab
territories occupied by Israel. In my view, this legal order—the OTLO—is very
close to what Schauer regards as the normal case of a properly functioning legal
order.
I do not mean by “normal case” that Schauer thinks it is good when a legal order
functions in this way, only that it is functioning as a legal order, that is, an order in
which people obey the law not because they think that is the morally correct thing
to do but because they fear law’s sanctions. This view of obedience to law disam-
biguates the idea of “force” in Schauer’s title in a way that I regard as unhelpful.
As he is well aware, “force” in debates in philosophy of law can mean either force
as the compulsion exerted by official exercise of coercive power, or force as in the
force of a justification based on reasons that we find compelling (cf. Dworkin 1986,
110). As I shall argue, it is productive for legal philosophy and empirical inquiry to
preserve both senses of force, but Schauer wishes to focus exclusively on the first
sense. In so doing, he falls prey to an objection he levels against some rival
V
C2016 The Author. Ratio Juris V
C2016 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main
Street, Malden 02148, USA.
Ratio Juris. Vol. 29 No. 3 September 2016 (323–347)
conceptions of law of adopting an “essentialist” understanding of law, one that
stipulates that law is the commands backed by threats of an uncommanded com-
mander. As we shall see, Hobbes and Bentham did not essentialise law in this way,
and I doubt that Austin did either. Rather, their conception of law is shaped by
their political philosophies.
In this light, it will become apparent that Schauer’s understanding of relevant
empirical experience is shaped by normative commitments, or as social theorists
used to say, “value laden.” Hence, his general strategy of claiming that we
should revise our understanding of the scope and nature of legal philosophy
because its central concepts do not “fit the facts” is undermined. For if what the
relevant facts are, indeed, even what in some regards the facts are, is itself in part
a normative construction, argument by appeal to facts alone looks rather
problematic.
1. The Law in These Parts
Your Honor,
Every time I am called to appear before your courts, I become nervous and afraid. Eighteen
years ago, my sister was killed in a courtroom such as this, by a staff member. In my lifetime,
I have been nine times imprisoned for an overall time of almost three years, though I was
never charged or convicted. During my imprisonment, I was paralyzed as a result of torture
by your investigators. My wife was detained, my children were wounded, my land was sto-
len by settlers, and now my house is slated for demolition.
I was born at the same time as the occupation and have been living under its inherent
inhumanity, inequality, racism, and lack of freedom ever since. Yet despite all this, my belief
in human values and the need for peace in this land have never been shaken. Suffering and
oppression did not fill my heart with hatred for anyone, nor did they kindle feelings of
revenge.
I organized peaceful demonstrations in order to defend our land and our people. I do not
know if my actions violate your occupation laws. As far as I am concerned, these laws do
not apply to me and are devoid of meaning. Since they have been enacted by occupation
authorities, I reject them and cannot recognize their validity. [...]
The military prosecutor accuses me of inciting the protesters to throw stones at the sol-
diers. This is not true. What incites protesters to throw stones is the sound of bullets, the
occupation’s bulldozers as they destroy the land, the smell of tear gas and the smoke coming
from burnt houses. If released by the judge, will I be convinced thereby that justice still pre-
vails in your courts? [...]Bassem Tamimi. (Shulman 2014)
This statement to an Israeli military court in the Occupied Territories closes “The
Law in These Parts,” the powerful documentary by Ra’anan Alexandrowicz, an
Israeli director, about the legal system administered by the Israeli Defence Force in
the Territories since their occupation in 1967. Alexandrowicz’s sketch of the OTLO
emerges not from the stories of the Palestinians subject to it, but from the accounts
of those who run it—from the answers to questions put by an off-camera inter-
viewer to a group of legal officials, mainly judges.
While at the beginning of their interviews the officials present a view of the sys-
tem as striking a fair balance between order and justice, by the end the picture is
different. As one of their number put it in the documentary, “As a military judge,
you don’t just represent justice.” “You represent the authorities of the occupation,
vis-
a-vis a population that sees you as the enemy... It’s an unnatural situation.
324 David Dyzenhaus
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C2016 The Author. Ratio Juris V
C2016 John Wiley & Sons Ltd. Ratio Juris, Vol. 29, No. 3

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