Coercion and the Nature of Law

by Kenneth Einar Himma

Overview

The Coercion Thesis has been a subject of longstanding debate, but legal positivist scholarship over the last several decades has concluded that coercion is not necessary for law. Coercion and the Nature of Law is concerned with reviving the Coercion Thesis, presenting a strong case for the inherently coercive nature of legal regulation, and arguing that anything properly characterized as a legal system must back legal norms prohibiting breaches of the peace with the threat of a coercive sanction.

Himma presents the argument that people are self-interested beings who must compete in a world of scarcity for everything they need to survive and thrive. The need to compete for resources naturally leads to conflict that can breach the peace, and threatens the ability to live together in a community and reap the social benefits of cooperation. Law only functions as a system if it can maintain the peace enough for community to continue, and thus systems of law cannot succeed in doing anything that we want systems of law to do unless they back laws prohibiting violent assaults on persons or property with the threat of punishment; without sanctions, we would descend into something resembling a condition of war-of-all-against-all. We adopt coercive systems of regulation precisely to avoid having to live under such conditions.

The book is divided into three parts: (1) a prima facie logical-empirical case for the Coercion Thesis, (2) a study of the "society of angels" and international law counterexamples, and why they do not refute the thesis, and (3) an analysis of how law guides behaviour and the implications of the Coercion Thesis on reasons for action.

Going against the current conventional wisdom in legal philosophy, Himma makes a systematic defence of the Coercion Thesis arguing that coercion or enforcement mechanisms are not only a necessary feature of legal systems, but a conceptually necessary feature of legal systems.

Product Details

ISBN-13:	9780198854937
Publisher:	Oxford University Press
Publication date:	07/07/2020
Series:	Oxford Legal Philosophy
Pages:	288
Product dimensions:	9.30(w) x 6.40(h) x 1.00(d)

About the Author

Kenneth Einar Himma is Continuing Guest Professor at the Faculty of Law of the University of Zagreb. He has taught at the University of Washington in the Philosophy Department, Information School, and the School of Law, as well as in the Philosophy Department at Seattle Pacific University. He has published widely in philosophy of law, philosophy of religion, and information ethics.

Table of Contents

1 The Coercion Thesis 1

1 Ambiguities of the Concept-Term Law 1

2 The Coercion Thesis 4

3 The Coercion Thesis and Morality 16

4 The Coercion Thesis and the Motivations of Subjects 18

5 Outline of the Arguments 20

2 Methodology and the Nature of Law 23

1 Explicating the Metaphysical Nature of a Thing: Three Types of Modal Claim 23

2 Conceptual Analysis as a Descriptive Enterprise 28

3 The Distinguishing Task of Conceptual Analysis 30

4 Modest and Immodest Conceptual Analysis 33

5 The Relevant Philosophical Assumptions Are Ours 38

6 Modest Conceptual Analysis and Objective Truth 43

7 The Logical Structure of a Modest Conceptual Analysis 46

3 A Prima Facie Case for the Coercion Thesis: Sanctions as a Paradigmatic Feature of Municipal Law 49

1 The Meaning of the Term Law as Defined by the Canons of Ordinary Usage 50

2 Types of Coercive Sanction in Modern Municipal Law 54

3 The Ubiquity and Centrality of Coercive Sanctions in Existing Municipal Legal Systems 67

4 Sanctions as a Paradigmatic Feature of Law: A Prima Facie Case for the Coercion Thesis 70

4 What Law Must Be Able to Do: The Coercion Thesis and the Need to Keep the Peace 73

1 The Concept of an Artifact 74

2 Characteristic Uses, Basic Purposes, and Conceptual Functions of Artifacts 75

3 The Problem an Artifact Is Needed to Solve as Denning Its Conceptual Function 78

4 Something Must Be Reasonably Contrived to Perform the Conceptual Function of an Artifact to Be Properly Characterized as an Artifact of That Kind 80

5 The Conceptual Function of a Legal System 81

6 Keeping the Peace and Authorized Coercion 91

5 Three Conceptual Problems of Legal Normativity: The Logical Space of Reasons 99

1 The Concept of Normativity 100

2 The Logical Space of Reasons 101

3 The Character of the Reasons to Which the Practices Constitutive of Law Are Reasonably Contrived to Give Rise 112

4 Three Conceptual Problems of Legal Normativity 124

6 The Coercion Thesis and the How Problem of Legal Normativity 127

1 Vindicating the Coercion Thesis (1): Authorized Coercive Sanctions Solve the How Problem of Legal Normativity 128

2 Vindicating the Coercion Thesis (2): There Is No Other Plausible Explanation for Law's Conceptual Normativity 139

3 Are Objective Motivating Prudential Reasons the Wrong Kind of Reason to Solve the How Problem of Legal Normativity? 146

4 Does It Matter that It Is Not the Valid Norms Governing the Subject's Behavior That Provide the Objective Motivating Reason to Comply? 149

5 Coercive Sanctions and the How Problem of Legal Normativity 153

7 The Coercion Thesis and the Order Problem of Legal Normativity 155

1 First-Order, Second-Order, and Exclusionary Reasons 156

2 Sanctions, Exclusionary Reasons, and the Problems of Legal Normativity 160

3 The Basic Sources of Objective Motivating Reasons for Action 162

4 Only the Coercion Thesis Can Explain How Mandatory Legal Norms Governing Non-Official Behavior Give Rise to Objective Motivating Exclusionary Reasons 165

5 Can the Coercion Thesis Explain How Law Creates Objective Exclusionary Motivating Reasons? 167

6 The Claim That Law Provides Objective Exclusionary Motivating Reasons to Comply Explains Nothing That Needs to Be Explained 174

8 The Coercion Thesis and the Content Problem of Legal Normativity 179

1 Intrinsic and Instrumental Motivating Reasons 180

2 Order and Value: The Relationships Among the Various Kinds of Reason 182

3 Morality, Conventions, and Intrinsic Motivating Reasons to Comply 184

4 Law as a Source of Subjective Intrinsic Motivating Reasons to Comply 188

5 Law as a Source of Objective Intrinsic Motivating Reasons to Comply 190

6 The Capacity to Give Rise to Objective Intrinsic Motivating Reasons Explains Nothing That Needs to Be Explained about Law 199

7 The Coercion Thesis and the Problems of Legal Normativity 201

9 Coercive Sanctions and International Law 203

1 Ordinary Usages of the Term International Law 204

2 The System of International Regulation Denned by the U.N. Charter 207

3 Enforcement Mechanisms Authorized by the U.N. Charter 208

4 Objections and Replies 224

5 Conclusion: The Normative System Defined by the U.N. Charter Is Not a Counterexample to the Coercion Thesis 230

10 Can There Be Law in a Society of Angels? 231

1 Law and Real Angels 232

2 Law and Razian Angels 235

3 The Society of Angels and the Canons of Ordinary Usage 238

4 The Society of Angels and the Conceptual Function of Law 239

5 The Society of Angels and the How Problem of Legal Normativity 240

6 The Society of Angels and the Content Problem of Legal Normativity 241

7 Evaluating the Normative Commitments of the Angels 242

8 Revisiting Existing Legal Systems 250

9 Conclusions 252

Appendix-Can There Be a System of Municipal Law with Only Compensatory Damages? 255

Index 263

Editorial Reviews

"A welcome contribution to law and coercion debates" — Lucas Miotto, Law and Philosophy

"Coercion and the Nature of Law is a surprising and original book." — Thomas Adams , Oxford Journal of Legal Studies

"Coercion and the Nature of Law is a welcome and needed addition to the jurisprudential literature: it defends the possibility and value of discovering the nature of law, it defends a version of conceptual analysis, it revisits a long-standing debate about the role of coercion in law, and it offers an intriguing merger of conceptual analysis, artifact theory, and functional theory." — Brian H. Bix, Revus

"Himma has convincingly shown that coercion is fundamental to explaining the role of law in practical reasoning and has provided intelligent responses to the arguments of mainstream philosophers like Hart and Raz. This achievement cannot be understated." — Thomas Bustamante, Revus

"In addition to the clarity and rare precision with which Himma argues his theses, I greatly appreciated two aspects of his book that I consider fundamental in any good philosophy of law: (1) the conviction that coercion can be adequately addressed only within an overall theory of law, which is indeed the one the author offers; (2) the idea that each conception of law inevitably presumes methodological choices, choices that must be expressed and justified." — Anna Pintore, Revus

"Kenneth Himma's Coercion and the Nature of Law is a thoughtful and thought-provoking book. It constitutes a landmark in the current trend of renewed interest among Anglo-American legal philosophers in the relationship between law and coercion." — Pablo A. Rapetti, Revus

"It is best received, I think, as a study in the psychology of law – one that takes claims about law as such ... and fills in any lacunae with reference to empirical observations about human nature, our particular psychologies, and about law as we see and experience it — and it gets a lot right." — Kara Woodbury-Smith, Revus

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