Whether legal systems are necessarily coercive raises normative concerns. Coercion carries a presumption of illegitimacy and a special justificatory burden. If legal systems are necessarily coercive, coerciveness necessarily taints our legal institutions. Traditionally, legal systems have been regarded as contingently coercive. This view is mainly supported by the society of angels thought experiment. For the past few years, however, this traditional view has been under attack. Critics have challenged the reliability of the thought experiment and have urged us to centre (...) the discussion on typical legal systems: legal systems made by humans to address human needs. Once we do so – they claim – we would inevitably reject the traditional view. This paper argues that the critics are wrong. After discussing key features of the society of angels thought experiment and responding to objections, it is argued that even typical legal systems are contingently coercive. Coerciveness is a feature that our legal systems can and should strive to get rid of. (shrink)

The relationship between law and coercion has been, and still is, a central topic in legal philosophy. Despite this, discussion about it is immersed in confusion. Some philosophers have noticed this, but hardly any work has been done to attempt to solve or even identify the confusions. This paper aims to fill this gap. Here I propose distinctions and qualifications that help us clarify the relationship between law and coercion and avoid confusion. Building on the clarificatory work, I then argue (...) that despite there being several distinct philosophical discussions about the relationship between law and coercion, one of them should be prioritised. (shrink)

Legal philosophers make a number of bold, contentious claims about the nature of law. For instance, some claim that law necessarily involves coercion, while others disagree. Some claim that all law enjoys presumptive moral validity, while others disagree. We can see these claims in at least three, mutually exclusive ways: (1) We can see them as descriptions of law’s nature (descriptivism), (2) we can see them as expressing non-descriptive attitudes of the legal philosophers in question (expressivism), or (3) we can (...) see them as practical claims about how we should view law or order our society (pragmatism). This paper argues that we should understand these claims in the pragmatist way, as claims about how we should view law or order society. (shrink)

ABSTRACT“A legal system exists,” Joseph Raz claims, “if and only if it is in force.” By this he means to suggest that the efficacy of law—that is, its capacity to control the population to which it applies—is necessary for its identity as such. Despite widespread recognition that efficacy is a condition of the existence of law, however, little time has been spent analyzing the notion. This article begins an attempt to make up the deficit. I make the case for efficacy (...) as necessary for law and go on to develop and defend an account of the concept that is broadly Kelsenian in spirit. In doing so I address questions concerning the relationship between obedience and enforcement in an account of the existence of a legal system as well as relating the discussion to that concerning the ontological status of international law. (shrink)

Most legal and political philosophers agree that typical legal systems are coercive. But there is no extant account of what typically makes typical legal systems coercive when they are coercive. This paper presents such an account and compares it with four alternative views. Towards the end I discuss the proposed account’s payoffs. Among other things, I show how it can help us explain what I call ‘comparative judgements’ about coercive legal systems (judgements such as ‘Legal system a is more coercive (...) than legal system b’) and how it can help the development of social scientific inquiries into the coerciveness of our legal systems. (shrink)