Law and Coercion: Some Clarification

• Published date: 01 March 2021
• Author: Lucas Miotto
• Date: 01 March 2021
• DOI: http://doi.org/10.1111/raju.12302

© (2020) The Authors. Ratio Juris published by the University of Bologna and John Wiley & Sons Ltd

Ratio Juris. Vol. 34 No. 1 March 2021 (74–87)

Law and Coercion: Some Clarification

LUCAS MIOTTO*

Abstract. 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 discus-

sions about the relationship between law and coercion, one of them should be prioritised.

1. Introduction

Claims such as “law is overwhelmingly coercive” (Schauer 2010, 18) or “coercive-

ness is one of the most conspicuous features of law” (Himma 2016, 593) are familiar.

Even more so is the claim that law is coercive. Not only is this claim familiar because

it is frequently asserted; it is familiar also because some regard it as trivial or “the

most banal of observations” (Yankah 2008, 1217). But this impression of familiarity is

misleading. This claim is highly ambiguous and there is no agreement among philos-

ophers about how to interpret it. Not surprisingly, discussions about it are plagued

with confusion and equivocation. Some of these confusions have been noticed (see,

e.g., Green 2016); but hardly any work has been done to solve or clarify them.

This paper aims to bring some clarity into discussions about the relationship be-

tween law and coercion in general, and to the claim that law is coercive in particular.

The paper, however, does not attempt to develop a substantive theory of the coer-

civeness of law, a theory that would, among other things, answer substantive ques-

tions such as “Is law coercive?” or “Is law necessarily coercive?” Instead, the paper

attempts to bring clarity into law and coercion debates by proposing a framework

that allows us to identify, distinguish, and make better sense of the different debates

about the relationship between law and coercion. This is done primarily in Section 2.

Section 3 deals more specifically with the predicate “coercive.” There I present two

main ways to interpret the claim that law is coercive—what I call the broad and strict

senses—and give some examples of confusions that have emerged in virtue of philos-

ophers conflating these two readings. Towards the end I argue that the strict reading

* For helpful comments and discussion, I’m thankful to Himani Bhakuni, Kara Woodbury-

Smith, Luís Duarte d’Almeida, Martin Kelly, Neil Walker, Paul Burgess, Pedro Múrias, and the

anonymous reviewers.

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