The Ultimate Force of the Law: On the Essence and Precariousness of the Monopoly on Legitimate Force

• Published date: 01 September 2016
• Author: Ralf Poscher
• DOI: http://doi.org/10.1111/raju.12131
• Date: 01 September 2016

The Ultimate Force of the Law:

On the Essence and Precariousness

of the Monopoly on Legitimate Force

RALF POSCHER

Abstract. In his new book, Fred Schauer adopts a prototypical approach to the law

in order to reestablish the importance of “The Force of Law”, and I strongly support

his claim that there are interesting things to be said about the relationship between

law and force. One aspect concerns the special kind of force to which the law is

related. In the tradition of political philosophy, this kindof force has often been char-

acterized with the state’s monopoly on legitimate force. Whereas the essay will sup-

port the idea that the law has a monopoly of force, it will challengethe idea that it is

its legitimacy that makes it characteristic. It is a monopoly not so much on legitimate,

but on ultimate force. The robustness of the force the law is—prototypically—related

to, however, should not obscure the fact that the relation between law and force is

quite delicate and precarious. Three strategies of the law to manage this fundamen-

tal precariousnes s are pointed out.

In his recent book, Schauer (2015) adopted a prototypical approach to the law to

reestablish the importance of force for the law, and I strongly support his claim

that there are interesting things to be said about their relationship. He convincingly

made the point that the relations between law and force are not ephemeral. He left

the armchair and tried to back up his claims with empirical research results.

As always, however, this was only possible on the basis of analytical distinctions

between different aspects of obedience to the law, allowing him to isolate the rele-

vant empirical questions. It is only against the background of such analytical work

that empirical research can make sense, and Fred Schauer impressively combines

analytical and empirical aspects in his analysis of the force of the law.

I see my observations not as critical to his endeavor, but rather as complemen-

tary to it, although much more armchair-based and in the form of somewhat anec-

dotal empirical observations. I wish to organize these observations around two

questions regarding the relation between law and force: First, what kind of force is

specific to the law? Second, what characterizes the relation between the law and

this specific kind of force? My observation here is that the relation between law

and force is a precarious one despite the robust character of the force associated

with it.

V

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Ratio Juris. Vol. 29 No. 3 September 2016 (311–322)