Abstract
Many recent arguments about the role of coercive sanctions in law suggest that the importance of coercion is underrated. The question has thus been where the lower threshold for coercion might be within a legal system. Very little attention, by contrast, has been paid to whether, at some upper threshold, coerciveness might itself present a problem for law, even on a positivist account. In this article I therefore interrogate the standard positivist picture from this unorthodox direction: Is it true that there is no degree of coerciveness that is incompatible with a system of law? Or, in other words, have we gone far enough in circumscribing the role of coercion in our account of law? I argue that coercion of a certain kind undermines the conditions necessary for the social normative practices that ground legality on social accounts of law. Sufficiently coercive circumstances, I conclude, can diminish the law’s normativity by inhibiting the conditions necessary for the effective transmission of norms.
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Notes
The proposition that as a matter of conceptual necessity sanctions are extrinsic to the concept of law emerged from a few core lines of argument. Hart’s account of a concept of law that is fundamentally social in character is built on his foundational observation that sanctions are less central to what law is than had been asserted by Austin and Bentham. See Leslie Green, “The Forces of Law: Duty, Coercion, and Power”, Ratio Juris 29(2) (2016): pp. 164–181, at 171. See generally H.L.A. Hart, The Concept of Law (Oxford: Oxford University Press, 3rd ed, 2012). Raz’s early positivist account of legal norms as exclusionary reasons, too, suggested that sanctions, offering dependent or first order reasons to follow legal rules, are the wrong kind of reasons to amount to legal norms. Joseph Raz, Practical Reason and Norms (London: Hutchinson & Co Ltd, 1975) at 161–162. See also Hans Oberdiek, “The Role of Sanctions and Coercion in Understanding Law and Legal Systems” 21 American Journal of Jurisprudence 71 (1976): 86.
I introduce this phrase to denote a general position, not necessarily of any individual positivist, nor of course of positivists in general. Rather, I mean to delineate a view of coercion that is, it seems safe to say, a background assumption in many positivist views, though its particular manifestations differ from theorist to theorist. For the purposes of my argument, these more fine-grained differences are not important – what matters is the more general position, and it is that position that I invoke when I use the phrase, ‘standard picture’.
Small caps designate a non-contingent account of a term; many philosophers use this designation to refer to concepts rather than terms. To avoid controversy regarding either conceptual analysis or the meta-normative status of law, I use the convention simply to indicate a non-contingent account.
Once allowing the ‘natural’ necessity of coercive sanctions, if we fail to specify or qualify the sense in which coercion is to be understood, then extremely coercive sanctions could be utterly pervasive within a given legal system without the standard picture having any basis on which to object to that system’s legality.
This question has been considered, if somewhat obliquely, in Jeremy Waldron, “All We Like Sheep” 12 Can. J. L. & Jurisprudence (1999):169; a related question has been suggested, though implicitly, in the argument that if only officials accept the legal norms there is a ‘moral risk’ that the law will become alienated from its subjects. On this point see Michael A. Wilkinson, “Is Law Morally Risky? Alienation, Acceptance and Hart’s Concept of Law.” Oxford Journal of Legal Studies 30.3 (2010): 441–466. An approach to a similar question that ultimately focuses on the issue of the nature of acceptance – a very different question from the one pursued here – is Mikołaj Barczentewicz, “The Illuminati Problem and Rules of Recognition.” Oxford Journal of Legal Studies 38.3 (2018): 500–527.
See Kenneth Einar Himma, ‘The Authorisation of Coercive Enforcement Mechanisms as a Conceptually Necessary Feature of Law’ Jurisprudence, 7(3) (2016): 593–626.
The question of whether some level of coercion or coerciveness might be necessary to the nature of law, and the argument that coercion must be understood as being central to law’s effective operation, have attracted increasing interest in recent years. For a representative sampling of this interest, see: Kenneth Einar Himma, “The Authorisation of Coercive Enforcement Mechanisms as a Conceptually Necessary Feature of Law”, at 66; Ekow N. Yankah, “The Force of Law: The Role of Coercion in Legal Norms”, Rich L. Rev. 42(5) (2008): pp. 1195–1255. See also Frederick Schauer, The Force of Law (Cambridge & London: Harvard University Press, 2015); Grant Lamond, “Coercion and the Nature of Law,” 7 Legal Theory 35–57 (2001); Grant Lamond, “The Coerciveness of Law,” 20 Oxford Journal of Legal Studies 39–62 (2000); Nicos Stavropolous, “The Relevance of Coercion: Some Preliminaries,” 22 Ratio Juris 339–358 (2009); Matthew Kramer, In Defense of Legal Positivism: Law Without Trimmings (Oxford: Clarendon Press, 1999); José Juan Moreso, “Schauer on Coercion, Acceptance, and Schizophrenia”, Ratio Juris 29(2) (2016): pp. 215–222; David Dyzenhaus, “The Ambiguity of Force”, Ratio Juris, 29(3) (2016): pp. 323–347.
The view outlined here would thus be compatible with either a view that coercion is conceptually unnecessary to law or that coercion is, in some properly circumscribed way, one of law’s necessary criteria. My view simply has no implication either way.
When I use the term ‘normativity’ and the phrase ‘legal normativity’, I mean only the kind of normativity that law has, whatever one takes that to be. I do not take that normativity to create moral obligation or to be ‘robust’ in that sense. Everything I say about law’s normativity is compatible with having something like a formal or intra-systemic account of it.
In using this label, I follow Japa Pakkathayil, “The Possibility of Choice: Three Accounts of the Problem with Coercion” Philosophers’ Imprint 11(16): (2011) pp 1–20.
Green, Introduction, supra note 11 at xxxii; Green, “The Forces of Law”, supra note 1, at 173–174.
I take to be the explanandum of legal normativity to be, as Kevin Toh puts it, “What it is for a community to treat laws as furnishing reasons to behave in certain ways and to criticize those who deviate.” Kevin Toh, “The Predication Thesis and a New Problem About Persistent Fundamental Legal Controversies.” Utilitas 22.3 (2010): 331–350.
Whether and what kind of normative force law has is a hugely controversial question in jurisprudence, with some claiming that law necessarily claims moral force, others claiming that law’s normativity is in some sense sui generis, and yet others claiming that law cannot, as it purports to do, create reasons for action. I do not assume, nor do I claim to show, that legal normativity has any particular character beyond what I argue for here: social normativity. I do not, therefore, take this argument to presume anything about law’s having a particular kind of normative force other than the one I describe. It is for this reason that my first premise is that social normativity is at least necessary to legal normativity, not, though, necessarily sufficient for establishing it. I circumscribe my claim to pertain to accounts of law that rely on social normative practice to explain legal normativity, whatever they take that normativity to ultimately involve.
H.L.A. Hart, The Concept of Law (Oxford: OUP, 3rd ed, 2012), pp. 56–57 and 255–256.
I do not aim to stake out a claim about either Hart’s interpretation or about the relation between positivism and a broadly social account of law. I take Hart’s account of law to be the seminal social one, simply because he introduced the connection between the social character of law and its distinctive normativity. So, I take Hart’s account of social rule practise as the basic structure of the social normativity of law, but I will tailor my argument to conditions for social normativity that are based on Hart’s basic idea but which I take to expand on it in certain ways.
I take each of these capacities to be necessary to the one that follows it, so that (i) is necessary to (ii), (ii) to (iii), and (iii) to B. The necessity of the capacity for practical reason to the capacity to reason from a point of view, and of the latter to the capacity to adopt and reason from the internal point of view, seem to me self-evident.
The elements in A are, I take it, widely accepted within jurisprudence either as jointly necessary to fulfil something like Hart’s practice conditions for social rules or norms, or because they are jointly necessary for a more Razian form of positivism which involves the social practice of legal norms primarily as an exercise of practical reason from the legal point of view.
I have tried to be as minimal as possible in the requirements I make of the internal point of view. Many people require much more of it and read much more into it. I do not mean to take a position about any of those further requirements and the issues they raise. See, for some examples, the general discussion in Benjamin C. Zipursky, “Legal Obligations and the Internal Aspect of Rules” Fordham L. Rev 75 (2006–2007): 1143; Stephen Perry, “Hart on Social Rules and the Foundations of Law: Liberating the Internal Point of View” Fordham L. Rev. 75 (2006) 1171; Kevin Toh, “Four Neglected Prescriptions of Hartian Legal Philosophy” Law and Philosophy 33(2014) 689–724, “An Argument Against the Social Fact Thesis (And Some Additional Preliminary Steps Towards a New Conception of Legal Positivism)” Law and Philosophy 27(5) (2008): pp. 445–504; Scott J. Shapiro, “What is the Internal Point of View?” Fordham L. Rev. 75 (2006–2007): 1157.
The nature of the internal point of view is that it, and of statements made from it, have been the focus of much philosophical inquiry into legal normativity and social norms more generally. See the references in note 13, supra. See further Kevin Toh, “Raz on Detachment, Acceptance and Describability.” Oxford Journal of Legal Studies 27.3 (2007): 403–427; Veronica Rodriguez-Blanco, “Peter Winch and HLA Hart: Two Concepts of the Internal Point of View.” Canadian Journal of Law & Jurisprudence 20.2 (2007): 453–473; Frederick Schauer, “The Jurisprudence of Custom.” Tex. Int'l LJ 48 (2012): 523; Dennis Patterson, “Explicating the Internal Point of View.” SMU L. Rev. 52 (1999): 67; Richard Holton, “Positivism and the Internal Point of View.” Law and Philosophy 17.5 (1998): 597–625.
Adam Perry, “The Internal Aspect of Social Rules.” Oxford Journal of Legal Studies 35.2 (2014): 283–300.
This formed the basis of Dworkin’s critique of Hart’s practice theory of rules, and of Hart’s circumscription of that theory’s applicability to social rules. See Hart, The Concept of Law, supra, at note 1, at 256.
Hart took criticism of others, and not only evaluation of one’s own conduct, to be necessary to a social normative practice.
Some have taken the communicative aspect of norm-practice to be a sign of an expressivist meta-ethics at work in legal positivism; see Kevin Toh, “Hart's Expressivism and His Benthamite project.” Legal Theory 11.2 (2005): 75–123. But my point is much simpler, and merely points to the interpersonal communication involved in internal legal statements and the establishment and sustenance of social norms.
Hart, The Concept of Law at 56 (“how many of the group must in these various ways treat the regular mode of behaviour as a standard of criticism, and how often and for how long they must do so to warrant the statement that the group has a rule, are not definite matters”).
By using ‘Speaker’ and ‘Hearer’, I do not mean that the content need be verbalized explicitly: the British are fond of the ‘tisk tisk’ sound, or the shaking of the head, say, when someone jumps the queue at a bus stop. I mean ‘speaking’ and ‘hearing’ under this terminology to mean saliently communicating. Thanks to Grégoire Webber for this example.
But not, of course, on no occasions ever. She will have to conform her action to the norm at least enough that the point of sufficiency can be met for the social practice to meet the basic condition of manifesting a regular pattern of conduct.
In relying on the dual meaning of acceptance as a term of art to indicate both criticism of self and others on the basis of a standard, I am narrowing the scope of my general account of social normativity somewhat: one might well inquire further about the nature of the relation between the criticism of self and of others on the basis of the same norm. One might wonder whether one can, as the idea of the detached point of view would allow, pass norms in what appears to be a normative or internal mode without also ever using those norms to criticize and conform one’s own conduct. A fuller account of the nature of the social normativity of law would address these matters, but as this article is chiefly about the relation between volitional coercion and social normative practice, such an account would be beyond its scope. I am thus using a more minimal framework for social normative practice here, the conditions of which are to some extent laid out stipulatively. I begin a fuller inquiry into the social nature of law’s normativity in “Social Normative Practice – Foundations of the Leap of Faith” in Michelle Dempsey and François Tanguay-Renaud (eds) From Morality to Law and Back Again: Liber Amicorum for John Gardner (Forthcoming: Oxford University Press)
I am grateful to an anonymous reviewer for raising this point and for this example.
Hart notes that “the insistence on importance or seriousness of social pressure behind the rules is the primary factor determining whether they are thought of as giving rise to obligation.” Hart, supra note 1, at 87.
See Kenneth Einar Himma, “A Comprehensive Hartian Theory of Legal Obligation: Social Pressure, Coercive Enforcement, and the Legal Obligations of Citizens” in Wilfrid Waluchow and Stefen Sciaraffa (eds), The Nature of Law: Contemporary Perspectives (Oxford University Press 2013) 152–82.
I am grateful to an anonymous reviewer for this suggestion.
The distinction I’m describing here has been described in terms of ‘guiding’ as opposed to ‘goading’. The locus classicus of this way of putting it comes from W.D. Falk, “Goading and Guiding”, Mind 62(246) (1953): pp. 145–171.
This need only be perceived epistemological authority; it is significant because it can affect Hearers’ perception that some persons are reliable where reasons are concerned.
Harry G. Frankfurt, “Coercion and Moral Responsibility” in Essays on Freedom of Action, Ted Honderich (ed.), (London: Routledge & Kegan Paul, 1973) 65–86; Grant Lamond, “The coerciveness of law.” Oxford Journal of Legal Studies 20.1 (2000): 39–62; Nozick, Robert “Coercion,” in Philosophy, Science, and Method: Essays in Honor of Ernest Nagel, Sidney Morgenbesser, Patrick Suppes, and Morton White (eds.), (New York: St. Martin's Press, 1969), 440–472.
See, generally, Joel Feinberg, The Moral Limits of the Criminal Law Volume 3: Harm to Self (New York: Oxford University Press, 1989), pp 191–194; see also Catharine Mackinnon, “Rape: On coercion and consent.” Writing on the body: Female embodiment and feminist theory (1997): 42–58; David Archard, “Sexual consent.” The Routledge Handbook of the Ethics of Consent. Routledge, 2018. 174–184; William A. Edmundson, “Moral education and the ethics of consent.” The Routledge Handbook of the Ethics of Consent. Routledge, 2018. 372–383; David Archard, Sexual consent. Routledge, 2019; Joan McGregor, “Undue Inducement as Coercive Offers.” The American Journal of Bioethics 5.5 (2005): 24–25.
For an influential illustration of this point see David Enoch, “Giving Practical Reasons.” The Philosopher’s Imprint 11.4 (2011), at p. 4.
I take Green to refer to the phenomenon I have in mind when he observes that Schauer seems to see coercion in the law anywhere law has, as Green put it, ‘causal power’ to affect people’s behavior. Green argues against Schauer that not all ‘ancillary motivation’ – what I am calling ‘influence’ – is ‘coercive.’ Green argues that coercion means something more specific than ‘affecting someone’s conduct’ – even intentionally through the use of incentives: It means something that could diminish the coerced person’s responsibility for their coerced conduct, and thus seems to require something more like, to use Green’s phrase, ‘to have one’s will overborne.’ He points out that the importance of the distinction to jurisprudence has been clear for Kelsen, Bentham, Austin and Hart; see also., Yankah, supra note 1.
See, for an argument that explicates this necessity, Fowler, “Coercion and Practical Reason,” at 332.
A different way to object would concern the use of the language of ‘fear’, above: We may say I am afraid of my car being towed, afraid of going to jail, just as I am afraid of my child being murdered or afraid of being tortured again today as I was yesterday. Described in this way, reason still seems operative insofar as I have reason to be afraid in all these cases, even if the level of fear will differ. But again, we recognize that not all fears are the same. The presence of some fears seems to warrant excusal from moral responsibility while that of others clearly does not. The fact that it may be difficult in the abstract to identify the degree of fear that will have such an effect on practical reason does not mean that the effect is not there. In this way, volitional coercion may be a paradoxical concept comparable to baldness: We can recognize someone who is bald, and someone who is not, but we cannot define baldness by reference to some degree or level of skin exposure or number of active follicles. See e.g., Michael Tye, “Sorites Paradoxes and the Semantics of Vagueness” Philosophical Perspectives 8 (1994): pp. 189–206; Hart, supra note 6, at 24.
I am grateful to an anonymous reviewer for pressing me on this point.
This slightly more general way of putting the point is perhaps the most common: see Mark Fowler, “Coercion and Practical Reason” 8 Social Theory and Practice (1982): 329–355, at page 338: “a truly coerced agent never has a reasonable alternative to yielding to a threat.”
Harry Frankfurt, “Coercion and Moral Responsibility”, supra at note 30, p 36. See also Harry Frankfurt, “Three Concepts of Free Action”, in The Importance of What We Care About.
See, for instance, Onora O’Neill, “Between Consenting Adults”, in Constructions of Reason: Explorations of Kant’s Practical Philosophy (Cambridge: Cambridge University Press, 1989), and Christine M. Korsgaard, “Kant’s Formula of Humanity” and “The Right to Lie: Kant on Dealing With Evil”, in Creating the Kingdom of Ends (Cambridge: Cambridge University Press, 1996)
Japa Pallikkathayil, “The Possibility of Choice”, at 10.
See Waldron, ‘All We Like Sheep’, at 5.
See, in general: David Dyzenhaus, Hard Cases in Wicked Legal Systems: Pathologies of Legality (Oxford, 2010); Robert Alexy, The Argument from Injustice: A Reply to Legal Positivism (Oxford, 2002); Trevor RS Allan, "Law, Justice and Integrity: The Paradox Of Wicked Laws." Oxford Journal of Legal Studies 29(4) (2009): 705–728.
For the argument that this is the central commitment of legal positivism, see John Gardner, “Legal Positivism: 5 ½ Myths”, American Journal of Jurisprudence 46 (2001): pp. 199–227.
For this argument, see Kenneth Einar Himma, ‘The Authorisation of Coercive Enforcement Mechanisms as a Conceptually Necessary Feature of Law’, at 6.
See Green, “The Forces of Law”, supra note 1, at 171.
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* I am especially indebted to Kevin Toh for his very helpful comments, as well as to two anonymous reviewers at Law and Philosophy. Earlier versions of this paper were presented at an Edinburgh Legal Theory workshop, and at the King’s and Queen’s Symposium in Legal Philosophy at King’s College London. I am grateful in particular to Luís Duarte d’Almeida, Chris Essert, Christoph Kletzer, Tim Macklem, David Owens, Joseph Raz, Paolo Sandro, John Tasioulas, Grégoire Webber, and Nicolas Lamp. Thanks to Rory Tighe for research assistance. All errors remain entirely my own.
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Thomas, J. Coercion in Social Accounts of Law: Can Coerciveness Undermine Legality?. Law and Philos 40, 471–508 (2021). https://doi.org/10.1007/s10982-020-09395-2
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DOI: https://doi.org/10.1007/s10982-020-09395-2