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This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License
Article
THE FORCE OF LAW AS A SOCIAL PROBLEM
Author(s)
Marco A. Quiroz Vitale
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DOI:10.17265/1548-6605/2017.09.001
Affiliation(s)
ABSTRACT
In this paper, the author
aims to respond to the
urgings in the book “The Force of Law” by Frederick Schauer breaking from the
paradigm of analytical jurisprudence, insofar as the University of Virginia
philosopher states having found sociological bases for his own
logical/reconstructive architecture. The author, on the one hand, intend to
develop a critique of Schauer’s approach that is not merely theoretical, but
sociological as well; on another hand, Hart’s thesis on force in law—strongly criticized by
contemporary analytical philosophers—is not therefore rebuffed by sociological
analysis but somehow finds confirmation. In a nutshell, whether the use of
force is sociologically necessary to control isolated resistance to the rules
shared by the majority, or to reinforce a law, that aims to trigger necessary
social change, but such a strong limitation of human freedom must be justified;
and this legitimacy can only derive from the need for Justice.
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