Would many people obey non-coercive law?

Frederick Schauer’s book The Force of Law defends a subtle position about the relationship between law and coercion. It concedes that it is conceptually possible for individual laws to lack coercive enforcement. A law can count as a real law, not merely as a public recommendation or exhortation, even if there is no penalty for violating it and even if the law is not coercively enforced in any other way. It is even conceptually possible for an entire legal system to lack a coercive enforcement mechanism. But these possibilities have limited practical or theoretical significance, Schauer argues, because in many human societies, there are relatively few people whose behaviour non-coercive law would affect. Non-coercive law can significantly influence people’s conduct only if society includes many people who are inclined to do what the law says because of what it says, not because they fear governmental coercion and not because they recognise a law-independent moral requirement. Following HLA Hart, Schauer calls people who voluntarily turn to the law for guidance ‘puzzled men’. Schauer argues that the admittedly limited empirical evidence suggests that puzzled men are rare in most actual societies; there is no convincing evidence that puzzled people are common in Schauer’s own society, the United States. In his words, ‘There appears to be much assertion and little empirical support for the general proposition that so-called puzzled people exist in significant numbers in modern legal systems’ (94). Since in many societies, law must be coercive to affect people’s conduct significantly, it is appropriate for philosophers of law to think harder about its role. Schauer argues convincingly that a philosophical account of the relationship between law and coercion needs to consider empirical facts about human behaviour. If non-coercive law could not significantly influence human behaviour, then it would matter little for a theory of law as a human institution that a society of angels could have a non-coercive legal system. The book contributes valuable insights to the interpretation of the empirical evidence about people’s motivations for following the law. Schauer is admirably candid about evidence that runs contrary to his position – he admits, for instance, that there are cultural differences in attitudes about obedience to law – and his claims in assessing the evidence are carefully qualified. That said, the book’s conclusion about the existence of puzzled people, and thus about the possibility of effective non-coercive law in human societies, is unduly pessimistic. Indeed, Schauer’s own example of someone refraining