The Nature of Law and Potential Coercion

• Date: 01 June 2020
• DOI: http://doi.org/10.1111/raju.12288
• Published date: 01 June 2020

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

Ratio Juris. Vol. 33 No. 2 June 2020 (223–240)

The Nature of Law

and Potential Coercion

KARA WOODBURY-SMITH*

Abstract. This paper argues for a novelunderstanding of the relationship between law and

coercion. Itfirstly refutes KennethHimma’s claim that the authorisation of coercive enforce-

ment mechanisms is a conceptually necessary feature of law.Itthen claims that the best way

to understand the law is as coercion-apt. The “coercion-aptness” of law is clarified, in part, by

appealing to an essential distinction between law and morality: Whereas it can be reasonable

for the law to appeal to coercive means in order to motivate compliance, it seems decidedly

unreasonable for morality to do so.

1. Introduction

Law coerces. This assertion seems banal and yet a debate concerning the concep-

tual relationship between law and coercion has been present in jurisprudential liter-

ature for decades. Of course, that law coerces is not the focus of discussion but rather

whether coercion is a conceptually necessary feature of law. If X is a conceptually

necessary feature of a concept, then X is an existence condition of the concept in

question. As a crude example, a cause is a conceptually necessary feature of an effect

because an effect cannot exist without a cause. Thus, claiming that coercion is a con-

ceptually necessary feature of law is the same as saying that the existence of law is

determined, at least in part, by the presence of coercion.

There are different ways in which coercion can be said to be a conceptually neces-

sary feature of law. One of the more classic assertions is: It is a conceptual truth that

every legal norm, R, is coercive such that R includes a coercive sanction for its viola-

tion.1 Another classic explanation is: It is a conceptual truth that every legal system, L,

1 This claim is commonly attributed to John Austin, who identifies a law as the command of the

sovereign backed by coercive sanctions. Laws are best understood as commands, as opposed to

requests, because laws obligate the receiving party in a way requests cannot: “[I]t is only by the

chance of incurring evil that I am bound or obliged to compliance” (Austin 2007, 84). Thus, a law

has been created if and only if the sovereign issuing the command is both disposed to, and capable

of, sanctioning a subject in the event that the legal requirement or prohibition is not satisfied.

* Previous versions of this paper have been presented at the Ontario Legal Philosophy Partnership

Graduate Conference, May 2016; the University of Ottawa Graduate Students in Law Conference, May

2016; the Cambridge Doctoral Workshop in Legal Theory, August 2016; andthe Edinburgh Legal

Research Group, May 2017. It has been greatly improved by conversations had during, and

after, all events. Thank you to Thom Brooks, Matthew Grellette, Kenneth Einar Himma,

Katharina Stevens, and the anonymous reviewers for their time and thoughtful comments.

Finally, thank you to WilWaluchow for his endless support and guidance.

This is an open access article under the terms of the Creat ive Commo ns Attri bution License, which permits use, distribution,

and reproduction in any medium, provided the original work is properly cited.

Kara Woodbury-Smith224

Ratio Juris, Vol. 33, No. 2© 2020 The Authors. Ratio Juris, published by University of Bologna and John Wiley & Sons Ltd.

is coercive such that it includes coercive sanctions for the violation of some of its

rules.2 Owing primarily to H. L. A. Hart’s arguments found within The Concept of Law

(Hart 2012), such classic assertions are generally taken by legal philosophers to be

erroneous. Hart argues that the relationship between the concept of law and coercion

isgroundedexclusively in natural factsof our world—facts like resource scarcity and

the fallible, selfishnature ofhumans.Coercion, according to Hart, is not a conceptu-

ally necessary feature of law (or of legal systems), but a natural necessity of our legal

practices.

Over the past decade multiple works have arisen questioning Hart’s rejection

of coercion as a conceptually necessary feature of law. Some theorists, like Ekow

Yankah (2007), Andrew Stumpff Morrison (2016), and Joseph D’Agostino (2017)

defend variations of the classic claims mentioned above. Morrison attempts to

raise the sovereign from the dead and reinstitute the command theory of law,

whilst D’Agostino’s (2017, 1) main claim is that the law, via legislators, inher-

entlyintendsto threaten violence against those who violate its norms. In his work,

Yankah (2007, 1197) argues that “the ability to use coercion under special condi-

tions defines legal norms.”

As noteworthy as these articles are, Kenneth Einar Himma’s work, spread over a

series of articles and chapters, is more comprehensive, and his claim is more moder-

ate. Contra Morrison, D’Agostino, and Yankah, Himma (2016, 594) explicitly denies

the classical claims that coercion is a conceptually necessary feature of a law qua legal

norm or law qua legal system. Himma’s claim, rather, is that the authorisation of coer-

cive enforcement mechanisms (henceforth CEMs) is a conceptually necessary feature

of the concept of law qua legal system (Himma 2013, 2016, 2018, and 2020).3 According

to Himma, the central function of the legal system is to keep the peace. Furthermore,

“law can efficaciously keep the peace only by backing some legal norms with autho-

rized coercive enforcement mechanisms” (Himma 2018, 154). A system of norms that

does not authorise the use of CEMs, per Himma, cannot keep the peace, cannot func-

tion in the way that law is supposed to function and, therefore, cannot be properly

identified as legal.

The present work will argue that Himma’s arguments in support of a conceptually

necessary relationship between law and coercion (so understood as the authorisation

of CEMs) are unsuccessful. The thought is: If Himma’s more modest claim is not cor-

rect, then it is not clear how else a conceptually necessary link between law and coer-

cion can be supported. My suggestion is that, whilst the authorisation of CEMs is not a

conceptually necessary feature of law, itisa conceptual truth that law iscoercion-apt.4 It

may not be immediately evident what the difference between these two positions is,

2 This claim is typically attributed to Hans Kelsen, who argues that coercion is a distinguishing

feature of legal systems. According to Kelsen, we should think of legal orders as directing legal

officials how to respond when subjects of the law act in a certain way (Kelsen 1945, 63). So, the

legal duty to not steal ought to be interpreted as stipulating which sanctions are to be applied

by officials if a theft occurs (ibid., 61). For Kelsen, then, part of the essence of a legal order is that

it commands the use of sanctions by officials.

3 Many thanks to Ken Himma for sharing the penultimate version of his chapter “Can There Be

Law in a Society of Angels?” (now Himma 2020).

4 This phrasing is directly influenced by Leslie Green’s (2008, 1050) observation: “Law is the

kind of thing that is apt for inspection and appraisal in light of justice; we might say, then, that

it is justice-apt.”