Abstract
AbstractThis 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 enforcement 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.
Highlights
Before a legal system can authorise the use of CEMs, that legal system must have both the necessary infrastructure to make use of the CEMs, and officials who have the relevant authority to authorise the use of the CEMs
Himma asserts that the concept of law qua legal system ought to be connected in some way to the conceptual function of the modern state, which, per Himma, is to provide efficient social control, to “keep the peace,” so that a Hobbesian state of nature is kept at bay (Himma 2016, 2018)
The question, becomes: Is there a way to explain the ubiquitous relationship law has with coercion at the highest level of abstraction of the legal system, where not even the authorization of CEMs is a conceptually necessary feature of law? The goal is to provide an account of the relationship between law and coercion as originating from law, not from the human predicament
Summary
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 violation.. 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 coercive enforcement mechanisms ( CEMs) is a conceptually necessary feature of the concept of law qua legal system (Himma 2013, 2016, 2018, and 2020).. 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,. I will develop my positive contribution: What coercion-aptness is, and why law is apt for coercion
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