Legal theory has traditionally taken the use of sanctions to be a characteristic feature of any legal order. Positivists like John Austin take the notion of commands backed by threats to be the essence of law. Yet even those who scorn positivism, like Immanuel Kant, are equally committed to the view that the sovereign must enforce positive legal rules by punishing those who violate them.
This emphasis on sanctions has always struck me as a bit curious. It is not irrelevant to the understanding of legal phenomena, but it does seem to have been exaggerated in philosophical efforts to understand the nature of law. It does not capture our everyday experience of living under a legal order. As lawyers and as citizens, we rarely experience bailiffs' laying hands on us, jailers' slamming shut steel doors or sheriffs' seizing our property. What we do experience as participants in the legal order is incessant argument, verbal thrusts, ripostes, and parries. We receive warnings and traffic tickets from police officers, notices from the IRS, and occasional letters from credit agencies telling us to pay up. We argue back to the police officers and traffic judges by quoting words in statute books and case reports. We respond to the IRS by invoking the language of tax regulations. We tell our creditors that if they understood the subtleties of contract law, they would realize that we did not really owe the sum alleged. All of this is talk. It is interaction, and sometimes play, in a restricted mode of discourse.
Law | Public Law and Legal Theory
George P. Fletcher,
Law as Discourse,
Cardozo L. Rev.
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