Graduate studies at Western
|Abstract||Do laws always restric t the liberty of the people who live under them? Or, if some laws are thought to be non-coercive—for example, laws that make voting possible—is this at least true of c oercive laws? Does the c oercion involved in threatening to impose penalties mean that the subjects of the laws thereby suff er a loss of freedom? e answer that appears to have a nearly universal hold on the minds of legal theorists and philosophers today is that yes, coercive law does always reduce people’s freedom. e canonical text is from Jeremy Bentham: ‘As against the coercion applicable by individual to individual, no liberty can be given to one man but in proportion as it is taken from another. All coercive laws, therefore . . . and in particular all laws creative of liberty, are, as far as they go, abrogative of liberty’.¹ ere are two recognized, if not often endorsed, ways of avoiding Bentham’s stricture. But one does not off er a real alternative and the other is decidedly unattractive. e approach that fails to off er a real alternative would say that it is only the prevention of choice—not just the threat of a penalty—that takes away someone’s freedom, thus suggesting that only the imposition of a penalty will aff ect freedom.² But this is an implausibly narrow conception of interference and, as a number of authors have noticed, it will not turn the required trick. A coercive law against X-ing may not prevent someone from X-ing, only make it more hazardous, but it will prevent agents from X-ing and avoiding the prospect of hazard; it will deny them access to that more complex alternative.³ e sec ond..|
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