| This thesis explores the conceptual relationship between law and enforcement. My position is that the problems posed by any attempt to conceptually link law and enforcement can be surmounted. Traditionally, legal and political philosophers have agreed that enforcement is a necessary condition for the existence of a legal system, a consensus that bridges the gap between legal positivists and natural law theorists. Recently, however, the consensus has broken down, due perhaps partly to ideological concerns. I view this trend as wrong-headed and unfortunate. During the course of my exposition, I discuss John Austin's and H. L. A. Hart's analyses of the role of enforcement. Austin's theory proves to be more viable than is generally credited in the literature, whereas Hart turns out to be less important than expected. In particular, the union of primary and secondary rules provides neither a necessary nor sufficient condition for the existence of a legal system, and the rule of recognition applies to legal systems only in the trivial sense that every well-formed set implies a rule that determines which objects are members. A central piece of my analysis is demonstrating how the power-conferring laws can be sensibly spoken of as subject to enforcement. In the final chapter, I develop an enforcement-based theory of law that is positivist but cannot be considered a reconstruction of Austin. |
