The Force Of Law: The Role of Coercion in Legal Norms
Despite the common understanding of law as coercive a number of important legal theorist, including Hart, Raz, Finnis and Oberdiek, have long held that law is not inherently coercive. This position stems from the rejection of earlier jurisprudencial models of law, forwarded by Austin and Bentham, which erroneously described law as little more than state sponsored coercion. In noting what was wrong in the older models, that law is importantly normative and authoritative, modern theorists have dismissed what was right, that law is inherently coercive.
This piece argues that law is inherently coercive. The piece first distinguishes coercion from sanctions, arguing that neither is a subset of the other. The piece then clarifies a model of coercion which, though explicit in understanding coercion as sensitive to a moral balance does not rely on Kantian models which locate coercion solely in a threat to violate the rights of others. Rather the model identifies coercion as a restriction imposed on another’s will.
Given this model of coercion the piece argues that without understanding law as coercive one cannot delineate the concept of law from other competing normative systems. Against the arguments of many leading jurisprudence scholars, the piece argues that coercion in law cannot be understood as necessary merely in light of human weakness but rather is a conceptual necessity. Lastly, it is argued law’s coercion offers intriguing implications for the long running analytical jurisprudence debate regarding the role moral principles play in the definition and criteria of law as well as powerful suggestions regarding the need and form of moral justification needed in our political morality.
Ekow N. Yankah. 2007. "The Force Of Law: The Role of Coercion in Legal Norms" ExpressO
Available at: http://works.bepress.com/ekow_yankah/1