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Posted April 9, 2012

Faculty Q&A: Schauer on Whether There Are (Enough) Political Risks to Breaking the Law

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Professor Frederick Schauer

Whether a policy is legal appears to play only a minor role in the decision-making process of the American public officials who implement it, University of Virginia School of Law professor Frederick Schauer writes in a new paper.

In the article, "The Political Risk (If Any) of Breaking the Law," Schauer suggests that a number of recent examples show how constituents, the media and others reward public officials for what they consider good policy decisions and sanction them for poor ones. The policy's legality, he argues, makes little difference.

Contact: Brian McNeill

In your new paper, you consider whether politicians will obey the law just because it is the law. What did you find?

I have not yet conducted an extensive and systematic study, but numerous examples suggest the possibility that obeying the law — following the law just because it is the law, and not because you think the law happens to be right as a matter of substance — may be less important to officials and to their constituents than a great deal of popular "rule of law" rhetoric suggests.

In that context, what are some real-world examples that show this pattern of behavior?

The best recent example comes from the bombing of Libya [in 2011]. Because the War Powers Resolution places limits on the ability of the president to involve the United States in "hostilities" without congressional approval, the administration, against the legal advice of even its own Office of Legal Counsel,  claimed that no hostilities were involved because no American soldiers were in danger. This claim was widely mocked as legally implausible by commentators and political figures across the political spectrum, and got some press attention for a day or two. But in the end a bad regime was overthrown and there were no American casualties, and the fact that American involvement was unlawful under American law turned out not to matter.

Things were similar with respect to the disregard by the Bush administration of the constraints of the Foreign Intelligence Surveillance Act, or with respect to the mayors of San Francisco and New Paltz, N.Y., several years ago in performing same-sex marriages in contravention of the law at the time.

People who agree with the substance of an act do not care about its legality, and people who disagree note its illegality only to underscore their substantive disagreement.

Are you really just describing Machiavellian politics?

I don't think it's about power for power's sake. It is about policy and political substance. But the illegality of a substantive policy seems to matter less than many have thought.

Do you think it is necessarily a bad thing that public officials are not always constrained by laws?  Why?

Obviously there are times when civil disobedience is justified. But if all that matters is the rightness or wrongness of a policy in all cases, then we are losing some sense of why law, as law, is important.

In looking at this issue, do you draw any larger conclusions about whether laws really matter for all citizens, or whether we should do more to make them matter? Do you think any reforms are needed?

Political figures react to the preferences of their constituents, so official behavior may say something about the inability or unwillingness of the population to worry about law for its own sake. And this suggests that sanctions and coercion may be more important to law than some people think, because when formal sanctions are not available there may be less obedience to law than is often assumed.

Why did you decide to look at this issue?

I've been thinking and writing about this from a bunch of different directions for a few years now, perhaps largely as a reaction to a number of public events, such as the ones mentioned above.

How does this paper fit into your larger body of research?

With respect to constitutional law, it is noteworthy that the Constitution, which is supposed to constrain officials, may not do so when there are no penalties, as there are not, typically, with legislators, prosecutors, judges and presidents. So this research agenda is part of my larger concern with constitutionalism and the conditions for its effectiveness. And in thinking and writing about jurisprudence and the nature of law, I have been writing about the importance to law of coercion, which, surprisingly, goes against the grain of much contemporary jurisprudential thought.

What will you be working on next?

A book titled "The Force of Law," [that] will explore exactly these issues, especially the coercion part.

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