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RESEARCH PRODUCT

Introduction: Why (Ever) Define Law and How to Do It

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This contribution addresses some problems regarding the two core aspects of Schauer’s proposal discussed by his critics in this book: the method of defining law (his proposal of anti-essentialism) and the definition of law based on the ubiquity of coercion. In this introduction, both aspects will be discussed pushing to the very limit the idea of law as a differentiated phenomenon. This means that legal theory has to take non-state law seriously. But main legal theories in the Nineteenth century are biased by the domestic assumption: law is produced by the nation-state as a coherent and rational system identified by its pedigree and supported by the state’s raw force. According to this idea, theorists tend to exclude from the concept of law any legal phenomena not responding to this scheme. In the task of defining law in the twenty first century it is necessary to afford the dissolution of that paradigm. In the new paradigm of law different elements are crucial for its definition. There are sources different from the nation-state, even if states are more necessary now than before, not for the raw force, but for its goals. Law is able to obtain compliance for its virtues, because it offers reasons for action in a pluralistic cooperative perspective. All this is compatible with the idea of the ubiquitous presence of the force of law, even if law is not mainly defined by force.