Abstract
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.
Highlights
Whether legal systems are necessarily coercive raises normative concerns
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
Critics have argued that we should not make claims about legal systems based on scenarios depicting institutions designed to deal with angelic needs; we should focus instead on typical legal systems: legal systems made by humans to address human needs.[2]
Summary
Whether legal systems are necessarily coercive raises normative concerns. Coercion carries a presumption of illegitimacy and a special justificatory burden. Legal systems are not the type of institution that necessarily carries a presumption of illegitimacy or has the everlasting need to discharge this presumption with a special justification. Critics have argued that we should not make claims about legal systems based on scenarios depicting institutions designed to deal with angelic needs; we should focus instead on typical legal systems: legal systems made by humans to address human needs.[2] Once we do so – they claim – we should abandon the traditional view and acknowledge that typical legal systems are necessarily plagued by coerciveness and its stains.[3]. According to these arguments, even typical legal systems are not necessarily coercive. Coerciveness is a contingent feature of our legal systems, one that we can and should strive to get rid of
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