Law & Coercion Flashcards
(8 cards)
What does Austin argue about law and coercion?
Every law or rule is a command; this is distinguished from other significations of desire by the power of the party commanding it to inflict an evil if it is disregarded (i.e. a sanction)
- Command, duty and sanction are inseparably connected terms, denoting a different part of the same notion
- Therefore, laws are orders backed by the threat of sanction given by the sovereign
- The bulk of society are in a habit of obedience, making it political, and the sovereign is not in a habit of obedience to another, making society independent
- The sanction of power conferring laws is nullity, when a person fails to conform with formality rules they have their desire to do something taken away by making it null
What does Kelsen argue about legal rules?
- Laws are coercive orders, law is the primary norm that stipulates sanctions, i.e. conditional orders to apply sanctions
- There is no ‘law of murder’ only a law directing officials to apply sanctions to those who do murder (if X does / doesn’t happen, apply sanction Y)
- Legal rules are norms directed at officials, they give power to these people to impose sanctions
- Power conferring rules (such as contracts) are necessary in order for sanctions to be imposed, i.e. making a contract is not a legal obligation, but once made each party has legal rights under it
How does Hart respond to the views of Austin and Kelsen?
ATTACK OF AUSTIN:
- To extend the idea of a sanction to a nullity is a source of confusion
- With criminal law we may able to subtract the sanction and still be left with an intelligble standard of behaviour it was designed to maintain
- However with other forms of law about formality, if failure to comply did not entail nullity then the rule itself could not be intelligble, nullity is part of the rule where sanctions are attached to it
ATTACK OF KELSEN:
- Requires a recasting of the law, most laws are set up to actually guide the conduct of citizens and not to direct officials
- To direct to officials can conceal how the rule works and what the ordinary man should take from it
- Why should rules that confer powers not be seen as distinct from those imposing duties? They are used for different reasons and have different values
Hart thinks coercion is simply a tool that is used for people to follow the law
What is Hart’s conception of the law?
Legal obligations do not come from coercive orders, but from a rule establishing a standard of behaviour
- People adopt an internal attitude to obey the law, based on the fact it represents our moral beliefs
- Coercion is an external tool of law of the law that is used when people follow the law, but it is not necessary for law to exist
What does Raz argue about coercion?
Raz denies that coercion is necessary for law to be effective at guiding the conduct of its citizens
- Imagines a society of angels, perfect beings who have higher reasons for following rules
- However, they would still need a legal system due to regulating new issues, disputes, etc.
- There would be no need for it have coercive effect
What are some arguments / pushbacks against Raz?
Schauer: Questions whether conceptual analysis alone can adequately address the nature of law as it is experienced in the real world, focusing only on hypothetical cases risks ignoring the central role of coercion
What argument is advanced by Schauer?
Accepts that Austin ignored the non-coercive dimensions of law, but argue it remains a central feature of how law functions. Sanctions and threats play a significant role in motivating legal compliance
- Critiques theories such as Raz which define legal theory by the essential or conceptual features of law
- Argues that such views elevate hypothetical scenarios over common realities, thinks a theory of law should explain the law as experienced
- Sanctionless system may be conceptually possible, but empirically marginal
- Agrees not all obligations require sanctions, but emphasises that legal obligations may be distinct prescisely because they are coercively backed
Consider that law is a human creation
What are some different arguments about the methodology of jurisprudence?
Finnis: Must be grounded in an account of practical reason and human goods, whilst maintaining a descriptive rather than prescriptive. We should focus not on what there must be for law to exist but what purposes law serves when it exists
Dickson: We should postpone giving a central role to moral evaluation in our theories and maintain a wariness, until we have an accurate account of what is and what it claims, then we can make moral evaluations
