LEGAL THEORY WORKSHOP
presents
Frederick Schauer
University of Virginia Law School
The Force of Law:
Recapturing the Role of Coercion in Understanding Law
Friday, November 15, 2013
12:30 - 2:00
Solarium (Room FA2) - Falconer Hall
84 Queen's Park
Ever since H.L.A. Hart published The Concept of Law in 1961, the coercive side of law – the aspect of law featured in the accounts of Jeremy Bentham and John Austin – has been treated as decidedly secondary by legal theorists. In seeking to understand the internalization of law by law’s officials and subjects, modern jurisprudence in the Hartian tradition treats law’s coercive force as an empirically contingent but non-necessary aspect of law whose pervasive existence is not part of an account of the concept of law itself. This approach, however, rests on view about the nature of concepts that is at least contested and may well be wrong. Moreover, the importance of the now-commonplace view that relegates coercion to the sidelines of legal theory is itself dependent on an empirical claim – Hart’s “puzzled man” – about the prevalence of sanction-independent obedience to law. Once we have clarified what it is to obey the law because it is law, however, rather than merely to act consistently with law for reasons other than the law, it turns out that puzzled people in Hart’s sense are far rarer than Hart and his followers have supposed. And to the extent that this is so, coercion – the ability of law to make people do things they do not want to do -- reemerges as perhaps the most important characteristic and distinguishing feature of law. The presentation consists of two draft chapters from the in-progress book that seeks to support the foregoing claims.
FREDERICK SCHAUER IS David and Mary Harrison Distinguished Professor of Law at the University of Virginia. He is also Frank Stanton Professor of the First Amendment, Emeritus, at the Kennedy School of Government, Harvard University, where he taught from 1990 to 2008, served as Academic Dean and Acting Dean, and taught courses on evidence and freedom of speech at the Harvard Law School. Previously he was Professor of Law at the University of Michigan, and has been Visiting Professor of Law at the Columbia Law School, Fischel-Neil Distinguished Visiting Professor of Law at the University of Chicago, Morton Distinguished Visiting Professor of the Humanities at Dartmouth College, Distinguished Visiting Professor at the University of Toronto, and Distinguished Visitor at New York University. In 2007-2008 he was the Eastman Professor at Oxford University and a Fellow of Balliol College. A Fellow of the American Academy of Arts and Sciences and former holder of a Guggenheim Fellowship, Schauer is the author of The Law of Obscenity (1976), Free Speech: A Philosophical Enquiry (1982), Playing By the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life (1991), Profiles, Probabilities, and Stereotypes (2003), and Thinking Like a Lawyer: A New Introduction to Legal Reasoning (2009). He is also the editor of Karl Llewellyn, The Theory of Rules (2011). Schauer was founding co-editor of the journal Legal Theory, and has served as chair of the Section on Constitutional Law of the Association of American Law Schools and of the Committee on Philosophy and Law of the American Philosophical Association. In 2006 Schauer was author of the Foreword to the Harvard Law Review’s Supreme Court issue, and has written numerous articles on freedom of speech and press, constitutional law and theory, evidence, legal reasoning, and the philosophy of law. His books have been translated into Italian, Spanish, Portuguese, Chinese, and Turkish, and his scholarship was the subject of a book (Rules and Reasoning: Essays in Honour of Fred Schauer, Linda Meyer, ed., Hart Publishing, 1999) and special issues of the Notre Dame, Connecticut, and Quinnipiac Law Reviews, Politeia, and the Harvard Journal of Law and Public Policy.
A light lunch will be provided.
For more workshop information, please contact Nadia Gulezko at n.gulezko@utoronto.ca.
