The Place of Coercion in Law

The relationship between law and coercion is a complex issue in jurisprudential thinking. Different accounts have been proposed, but they all converge on whether the language, concept, or essence of law as a system of governance necessarily entails the coercive character of this system. This Element provides a non-modal framework for discussing this disagreement, suggesting that there can be no meaningful disagreement about whether law is coercive without prior agreement on the contours of a theory of how law is made.

Format: Paperback / softback
Length: 75 pages
Publication date: 31 May 2023
Publisher: Cambridge University Press

The question of whether coercion is a necessary or contingent feature of governance by law is a deeply intricate and historically complex aspect of a longstanding modalist trend in jurisprudential thinking. The nature of the relationship between law and coercion has been explored through a diverse range of modally qualified accounts, all converging on a response to whether the language, concept, or essence of law as a system of governance inherently entails the coercive character of this system. This Element offers a non-modal framework for legal philosophers to engage in meaningful disagreements about the coercive nature of governance by law. On this alternative model, it is impossible to have a meaningful disagreement about whether law is coercive without prior agreement on the contours of a theory of how law is made.

The historical development of the relationship between law and coercion has been marked by a series of debates and arguments. Early legal philosophers, such as Hobbes and Locke, argued that law was necessary to establish and maintain social order and that coercion was an essential tool for enforcing laws and maintaining order. Later legal philosophers, such as Kant and Rawls, argued that law was not coercive and that coercion was only justified when necessary to protect individual rights.

Today, the debate over the coercive character of governance by law continues to be a topic of scholarly discussion and debate. Some legal scholars argue that law is inherently coercive and that coercion is necessary to ensure the enforcement of laws and the protection of individual rights. Others argue that law is not coercive and that coercion is only justified when necessary to protect public safety and the general welfare.

One of the key challenges in understanding the coercive character of governance by law is the distinction between positive law and natural law. Positive law is law that is created and enforced by human beings through political processes. Natural law, on the other hand, is law that is believed to be inherent in the natural order of things and that is enforced by natural forces, such as the law of gravity or the law of evolution.

Another challenge is the distinction between legal coercion and physical coercion. Legal coercion is the use of law to compel individuals to act in a certain way, such as by imposing fines or imprisonment. Physical coercion, on the other hand, is the use of physical force to compel individuals to act, such as by beating or killing.

Despite these challenges, there are a number of ways in which legal philosophers can approach the question of the coercive character of governance by law. One approach is to argue that law is inherently coercive and that coercion is necessary to ensure the enforcement of laws and the protection of individual rights. Another approach is to argue that law is not inherently coercive and that coercion is only justified when necessary to protect public safety and the general welfare.

In conclusion, the question of whether coercion is a necessary or contingent feature of governance by law is a complex and multifaceted issue that has been debated and argued over for centuries. While there is no definitive answer to this question, legal philosophers can approach the issue from a variety of perspectives and argue for their positions based on their philosophical beliefs and empirical evidence.

Weight: 119g
ISBN-13: 9781009009638