Coercion and the nature of law

Legal Theory

Volumn 7, Issue 1, 2001, Pages 35-57

  Lamond, Grant ^a  

^a BALLIOL COLLEGE   (United Kingdom)

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EID: 31144460914     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/s1352325201071026     Document Type: Article

References (41)

1. H.L.A. Hart, THE CONCEPT OF LAW chs. 2-4 (2d ed. 1994).
2. H. Oberdiek, The Role of Sanctions and Coercion in Understanding Law and Legal Systems, 21 AM. J. JUR. 71 (1976) and J. Raz, PRACTICAL REASON AND NORMS 158-59 (2d ed. 1990).
3. See, e.g., J.M. Finnis, NATURAL LAW AND NATURAL RIGHTS 266-70 (1980); R.M. Dworkin, LAW'S EMPIRE 93 (1986).
4. These questions are often described as “analytical” or “conceptual,” but “clarificatory” more clearly captures what is at stake, because it takes no position on the appropriate methodology for achieving such clarification. See N.E. Simmonds, Philosophy of Law, in BLACKWELL COMPANION TO PHILOSOPHY 388-89, 396-99 (N. Bunin & E.P. Tsui-James eds., 1996).
5. I have tried to say something about the evaluative significance of coercion in The Coerciveness of Law, 20 OXFORD J. LEGAL STUD. 39 (2000).
6. R.P. Wolff, IN DEFENSE OF ANARCHISM especially 3-19 (rev. ed. 1976).
7. That this need not be so is argued by Raz in On the Nature of Law, 82 ARCHIV FÜR RECHTS UND SOZIALPHILOSOPHIE 1, 1-5 (1996).
8. Correspondingly, where mistaken perspectives on law come to be widely accepted, they too may modify the form of law in a community (and indeed ultimately be retrospectively validated by such changes).
9. H.L.A. Hart, The Demystification of the Law, in ESSAYS ON BENTHAM (1982).
10. As R.M. Dworkin proposes, The Demystification of the Law note 4, at 68-73, drawing on Ludwig Wittgenstein's conception in PHILOSOPHICAL INVESTIGATIONS § 67 (3d ed. 1968).
11. This approach need not involve a commitment to Dworkin's view that law is an “interpretive” concept: It takes no view on whether the account of law must provide an interpretation that makes law the best it can be from the viewpoint of political morality. See Dworkin, drawing on Ludwig Wittgenstein's conception in PHILOSOPHICAL INVESTIGATIONS § note 4, ch. 3.
12. For example, the enforcement of civil actions at one time in Roman law. B. Nicholas, AN INTRODUCTION TO ROMAN LAW 27 (1962).
13. This discussion omits a range of details that a fuller account of coercion would demand. Some of those details can be found in Lamond, AN INTRODUCTION TO ROMAN LAW note 6, especially at 45-51.
14. A. Wertheimer, COERCION ch. 12, especially at 218-19 (1987); W.A. Edmundson, THREE ANARCHICAL FALLACIES ch. 3, especially at 79-80 (1998). Conceivably the two views could be coextensive with a sufficiently extended account of rights.
15. The first view focuses on the coercer's intention to deliberately set back the interests of those coerced unless the latter comply: It is the purposive diminution or invasion of another's interest which must be justified, quite apart from whether the other has a right to those interests. I develop these arguments in more detail in Lamond, Conceivably the two views could be coextensive with a sufficiently extended account of rights. note 6, at 47-51.
16. Edmundson has argued that so long as the law's use of physical force and sanctions is morally legitimate, it is not coercive. W.A. Edmundson, Is Law Coercive?, 1 LEGAL THEORY 81 (1995); Edmundson, The first view focuses on the coercer's intention to deliberately set back the interests of those coerced unless the latter comply: It is the purposive diminution or invasion of another's interest which must be justified, quite apart from whether the other has a right to those interests. note 15, pt. 2, especially at 82-83, 123-24. But a rights-violation approach to coercion is not committed to this. One can acknowledge that there are rights (e.g., to be free from physical interference, or to one's current holdings, or to various advantages in the future) that can be justifiably overridden in certain circumstances. An interference with one's rights will be coercive if it would constitute a violation of one's rights in the absence of those (justifying) circumstances: The coerciveness is indicated by the need for such a justification to be present. One significant objection to Edmundson's position (as he is aware) is that it becomes difficult to leave room for the distinction between justified and unjustified coercion. For his attempt to meet this issue see id. at 94-96.
17. I consider some other qualification in Lamond, Edmundson has argued that so long as the law's use of physical force and sanctions is morally legitimate note 6, at 57-60.
18. Thus, even if it is paradigmatic for law to provide remedial measures, as Honoré has argued, this is not in itself sufficient to show that law provides for the enforcement of such measures. See T. Honoré, Groups, Laws, and Obedience, in MAKING LAW BIND 40-41 (1987).
19. J. Austin, THE PROVINCE OF JURISPRUDENCE DETERMINED lecture 1 (1954).
20. H. Kelsen, Professor Stone and the Pure Theory of Law, 17 STAN. L. REV. 1130, 1142-44, 1144 (1956).
21. H. Kelsen, THE PURE THEORY OF LAW 24-27, 33-44 (M. Knight trans., 1967).
22. M. Weber, ECONOMY AND SOCIETY 34-35, 311-38 (especially 311-19) (G. Roth & C. Wittich eds., 1978)
23. See B.Z. Tamanaha, REALISTIC SOCIO-LEGAL THEORY ch.4, especially at 97-98 (1997); T. Honoré, What is a Group?, in MAKING LAW BIND 68 (1987).
24. See, e.g., R. Harrison, BENTHAM ch. 5 (1983).
25. O.W. Holmes, The Path of the Law, 10 HARV. L. REV. 47 (1897).
26. See, e.g., B. Leiter, Legal Realism, in A COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY (D. Patterson ed., 1996).
27. See J. Raz, Legal Realism note 3, at 150.
28. N. Bobbio, Law and Force, 49 THE MONIST 321 (1965).
29. Dworkin, Law and Force note 4, at 93; Ronald Dworkin, Legal Theory and the Problem of Sense, in ISSUES IN CONTEMPORARY LEGAL PHILOSOPHY 15 (R. Gavison ed., 1987).
30. See J. Raz, THE CONCEPT OF A LEGAL SYSTEM ch. 9 (2d ed. 1980), for one of the few extended discussions of this issue.
31. Tamanaha, for one of the few extended discussions of this issue. note 24, at 135-37.
32. For other connections between law and morality, see T. Honoré, The Dependence of Morality on Law, 13 OXFORD J. LEGAL STUD. 1 (1993).
33. For a more extensive discussion of possible analyses of duties-not restricted to legal duties-see P.M.S. Hacker, Sanction Theories of Duty, in OXFORD ESSAYS IN JURISPRUDENCE, SECOND SERIES (A.W.B. Simpson ed., 1973).
34. An analogy skilfully used by Philip Soper in, for example, Legal Theory and the Problem of Definition, 50 U. CHI. L. REV. 1170, 1195-1200 (1983); Making Sense of Modern Jurisprudence 22 CREIGHTON L. REV. 67, 83-87 (1988); Legal Theory and the Claim of Authority 18 PHIL. & PUB. AFF. 209, 232-36 (1989).
35. For instance, compulsory seat belt legislation in New Zealand that was, at first, not backed up with sanctions. N. Lacey, Obligations, Sanctions, and Obedience, in THE LEGAL MIND 221-22 (N. MacCormick and P. Birks eds., 1986).
36. See Raz, For instance, compulsory seat belt legislation in New Zealand that was, at first, not backed up with sanctions. note 31, at 70-92, 140-47, 216-30.
37. I discuss this more fully in Lamond, For instance, compulsory seat belt legislation in New Zealand that was, at first, not backed up with sanctions. note 31 note 6, at 57-60.
38. Though this account of law's claim has been disputed. See K. Greenawalt, CONFLICTS OF LAW AND MORALITY ch. 4 (1987); P. Soper, Law's Normative Claims, in THE AUTONOMY OF LAW 229-39 (R.P. George ed., 1996); Edmundson, I discuss this more fully in Lamond note 15, ch. 2.
39. For example, the account of the state in R. Martin, A SYSTEM OF RIGHTS 5-8 (1993).
40. The indeterminate nature of legal authority is sometimes referred to as its being “comprehensive” See Raz, A SYSTEM OF RIGHTS note 3, at 150-51; Finnis, A SYSTEM OF RIGHTS note 4, at 148-49.
41. See J. Raz, Legitimate Authority, THE AUTHORITY OF LAW (1979).