Should the Coercion Thesis really be defended as a conceptual claim?

Abstract

Kenneth Himma’s Coercion and the Nature of Law offers a forceful response to the claim that coercion is an ancillary, rather than a conceptually necessary, property of law. It matters for Himma that the Coercion Thesis is defended as a conceptual claim, although his metaphysics purports to be a “modest” conceptual analysis in Frank Jackson’s sense. In this comment I have no argument against the Coercion Thesis, and I grant that Himma provides a successful reply to the skepticism about coercion that permeates the jurisprudence of H.L.A. Hart and Joseph Raz. Nonetheless, I believe that this thesis cannot be defended with the methodology that Himma suggests. I challenge Himma’s interpretation of Jackson (which claims that it requires one to start with lexical meanings and “canons” of ordinary language) and argue that his argument for the coercive character of international law only works because it is based on a pragmatic argument about empirical features of social practices. After explaining this objection, I hold that other methodologies, like Dworkin’s interpretivism (if interpreted as endorsing an inferentialist theory of meaning), can provide a more plausible account of the coercive character of law.