Coercion, rules and interpretation: legal formalism and positivism in Frederick Schauer

Abstract

The paper intends to present, analyze and discuss a theoretical version of legal positivism: the one represented by the work of Frederick Schauer. The theoretical hypothesis raised is that Schauer continues the theoretical project formulated by English positivists – particularly, Bentham, Austin and Hart – of presenting a descriptive view of what law is, differentiating such endeavor from the assessment of how law ought to be. However, in pursuing this endeavor, Schauer creatively explores the disparities in content and methodology among the classic authors of positivism, taking innovative positions. In the end, instead of aiming to guide the legislature (like Bentham) or aiming at conceptualizing the necessary attributes of any and every legal order (like Austin), Schauer supports the project of discerning typical (though not invariable) attributes of law as practiced in the modern state. In this vein, he argues for the centrality of coercion to the effective functioning of a legal system (confronting Hart’s position in this regard) and to the distinctiveness of law from other normative orders (social, moral, political) that cannot enforce conformity to its norms by the threat of unpleasant sanctions. Such distinctiveness of the legal order is also characterized by the importance of formalized rules as rational linguistic constraints that impose themselves on the decision making of law enforcing authorities.