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Is Law Coercive?

Published online by Cambridge University Press:  13 February 2009

William A. Edmundson
William A. Edmundson
Affiliation:
Georgia State University College of Law
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Extract

That law is coercive is something we all more or less take for granted. It is an assumption so rooted in our ways of thinking that it is taken as a given of social reality, an uncontroversial datum. Because it is so regarded, it is infrequently stated, and when it is, it is stated without any hint of possible complications or qualifications. I will call this the “prereflective view,” and I want to examine it with the care it deserves.

Type
Article
Information
Legal Theory , Volume 1 , Issue 1 , March 1995 , pp. 81 - 111
Copyright
Copyright © Cambridge University Press 1995

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References

1. See Wertheimer, A.. Coercion 5–6 (1987).Google Scholar This schema docs not allow the possibility that nonpersons may coerce, and on this account will be objectionable to some. See Feinberg, J., Harm to Self 193 (1986)Google Scholar. My focus is on the concept of coercion as it occurs in what I term “justification-demanding” contexts, and I think all would agree that even if one might properly say that a person had been coerced by, e.g., a falling rock, such a coercion claim would not demand any sort of justification of the rock's conduct.

2. The seminal works in the literature are Nozick, Robert, CoercionGoogle Scholar, in Philosophy, Science and Method 444 (Morgenbesser, Sidney ed., 1969)Google Scholar; and Oppenheim, Felix, Dimensions of Freedom (1961).Google Scholar

3. Whether “wrong” here means “prima facie wrong” or “wrong all thing considered” is taken up infra, where I consider objections to moralized analyses.

4. Wertheimer, , supra note 1, at 172Google Scholar (emphasis in original).

5. This example is drawn from Verne, Jules, Around the World in Eighty Days 40–41Google Scholar (Towle, G. trans., 1984)Google Scholar.

6. See Nozick, , supra note 2, at 449–50.Google Scholar

7. The term is Vinit Haksar's. See Haksar, . Coercive Proposals, 4 Pol. Theory 65, 68 (1976).CrossRefGoogle Scholar

8. Some writers have taken the position that threats coerce, while offers do not. See, e.g., Nozick, , supra note 2, at 441.Google Scholar Others have insisted that there exists such an animal as a “coercive offer,” and there has been extensive controversy about this point. I don't think very much of substance is at issue in this dispute, and so I haw chosen to use the neutral, generic term “proposal.”

9. Nozick, , supra note 2, at 449.Google Scholar

10. A proposal may be coercive even if it fails to achieve its purpose. See Westen, , Freedom and “Cotrcion”-Virtue Words and Vice Words, 85 Duke L.J. 541, 562–63 (1985)CrossRefGoogle Scholar, who explains the error of the contrary view, that “coercion” is essentially a “success” word, which is held by many. See, e.g., Bayles, Michael, The Concept of CoercionGoogle Scholar, in Coercion: Nomos XIV (Pennock, R. & Chapman, J. eds., 1972).Google Scholar

11. Hans Oberdiek has expressed the rhetorical significance or coercion claims this way: Coercion is a moral notion. That is, like deception, wantonness, bribery and countless other concepts, coercion embodies a moral assessment: insofar as an act or institution is coercive, it is morally unjustified and therefore stands in need of a moral defense or excuse. At the same time, coercion is an incomplete moral notion, since truly describing an act or institution as coercive does not conclusively settle its moral unjustifiability, though it does place a definite onus probandi on anyone who wishes to defend or excuse the act or institution.

The Role of Sanctions and Coercion in Understanding Law and Legal Systems, 1975 Am. J. Jurisp. 71, 80Google Scholar (emphasis in original). Assigning the burden of proof to an opponent is a key move in what has been termed the “argument from ignorance.” See Gaskins, R., Burdens of Proof in Modern Discourse (1992).Google Scholar

12. Haksar, , supra, note 7, at 68.Google Scholar

13. Id. at 73–74 n. 11.

14. Those who disagree might consider the following:

Case 5a: 98.Pound Weakling

A person of modest physique, Weakling, is subjected to humiliating taunts when he takes off his shirt at the beach. In particular, Nemesis, a more muscular person, kicks sand in Weakling's face. Weakling therefore undertakes a strenuous muscle-building regime and, months later, suitably enlarged, returns to the beach. As Weakling hopes and intends. Nemesis refrains from further provocation.

Many, if not most, of us would say that Weakling has not coerced Nemesis, and that Weakling's implicit threat to measure his strength against Nemesis's does not constitute a coercive proposal. If this is our response to Case 5a, I cannot see how our response to Case 5 can differ. To say that the Traveller's threat is not wrongful is not to say that his shooting the Gunman to recover the money would be permissible, for sometimes it is permissible, even laudatory, to threaten to do what would be wrong to do. See Wertheimer, , supra note 1, at 102Google Scholar (calling fora “morality of proposals” to supplement the “morality of actions”) and cf. Model Penal Code §3.06(3)(d)(ii) (appearing to allow the Traveller's use of deadly force in situations like Case 5).

15. This phrase was coined by Derek Parfit, who assigns it a very different meaning in a very different context. See Parfit, D., Reasons and Persons 388 (1984)Google Scholar.

16. Wertheimer, , supra note 1, at 217.Google Scholar

17. Id. at 220–21.

18. See Zimmerman, David, Coercive Wage Offers, 10 Phil. & Pub. Aff. 121–23 (1981).Google Scholar

19. I realize that the “we” I address here may exclude many readers. It happens that the United States incarcerates a higher percentage or its population than any other on Earth, and perhaps in the Earth's history. See American Imprisonment Rates Are World's Highest, 2 Overcrowded Times 1 (1991).Google Scholar

20. Neil MacCormick has well paraphrased this aspect of the pre-reflective view:

[T]he very existence of a standing body of law defining offenses and appointing penalties to offenders marks in itself an intrinsic coercive feature of state societies. To have penalties of any kind is to subject ourselves all and sundry to standing threats aimed at securing our compliance with law for fear of the consequences of non-compliance.

Legal Right and Social Democracy 243 (1982).Google Scholar

21. The doctrine of original sin to the contrary notwithstanding. See Romans 5: 12–19.Google Scholar Also notwithstanding the variety of consequentialist moral theories that hold that every human action requires justification. See, e.g., Wilson, Catherine, On Some Alleged Limitations to Moral Endeavor, 90 J. Phil. 275 (1993).Google Scholar

22. Further citations may be found in MacCormick, N., supra note 20, at 236Google Scholar (counting Aquinas, Austin, Bentham, Kelsen, the early Raz, sociologist Max Weber, and anthropologist E.A. Hoebel as adherents), in Oberdiek, , supraGoogle Scholar note 11, at 71–72 (naming Hobbes, Bentham, Austin, von Jhering, Kelsen, Aquinas, Kant, Hart, and Raz), and in Westen, , supraGoogle Scholar note 10, at 575–76 & n. 110 (listing Plato, Bentham, Kelsen, Harold Laski, and Weber). Arguments for the pre-ref lective view are rare. Here is one offered by the late Michael Bayles:

Before a penal law is passed, a person can perform an action without probable punishment by the state; afterwards he cannot. Hence, an alternative choice liad been made less desirable and penal law is coercive.

Bayles, , Coercive Offers and Public Benefits, 55 The Personalist 139, 141 (1974)Google Scholar. It is a very quick one, but it is an argument.

23. Nozick, , supra note 2, at 440.Google Scholar

24. (1974).

25. Id. at xiv.

26. Id., at xi. Nozick later disavowed this approach-see Nozick, , The Examined Life 286–87 (1989)Google Scholar —without proposing an alternative.

27. Nozick, , supra note 24, at xi.Google Scholar

28. Rawls, J.. Political Liberalism 136 (1993) (emphasis added).Google Scholar

29. Id. at 137.

30. Dworkin, Ronald. The Model of Rules. 35 U. Chi. L. Rev. 14, 22 (1967).CrossRefGoogle Scholarreprinted in The Philosophy of Law 38, 43Google Scholar (Dworkin, R., ed. 1977Google Scholar), and in Dworkin, R.. Taking Rights Seriously 22 (1977).Google Scholar

31. See Fiss, Owen, Conventionalism, 58 S. Cal. L. Rev. 177 (1985)Google Scholar; Fiss, , Objectivity and Interpretation, 34 Stan. I. Rev. 739 (1982).CrossRefGoogle Scholar

32. I borrow the phrase “legitimating foundations” from Stephen Burton. See Burton, S., An Introduction to Law and Legal Reasoning 168 (1985)Google Scholar.

33. See Dworkin, , supra note 30, at 30Google Scholar; Burton, , supra note 32, at 168.Google Scholar

34. For a striking judicial instance, see DeShaney v. Winnebago County Dept of Soc. Servs., 489 U.S. 189, 203 (1989)Google Scholar; see also Heckler v. Cheney, 470 U.S. 821, 832 (1985)Google Scholar (“when [the state] refuses to act it generally does not exercise its coercive power over an individual's liberty.”-emphasis in original).

35. Husak, Douglas, The Presumption of Freedom 17 Nous 345, 355 (1983) (emphasis in original).CrossRefGoogle Scholar

36. See McCormick, C., Evidence §342 (2d ed. 1972).Google Scholar

37. Joel Feinberg defends the presumption of liberty and derives the presumption against coercion from it: “if a strong general presumption of freedom has been established, the burden of proof rests on the shoulders of the advocate of coercion.” Social Philosophy 22 (1973).Google Scholar

38. See Hart, , Rawls on Liberty and its Priority, 40 U. Chi. L. Rev. 534. 537–55 (1973)CrossRefGoogle Scholar; Husak, , supra note 35Google Scholar; de Mameffe, Peter, Contractualism, Liberty, and Democracy, 104 Ethics 764 (1994).CrossRefGoogle Scholar

39. Rawls writes:

No priority is assigned to liberty as such, as if the exercise of something called “liberty” has a pre-eminent value and is the main if not the sole end of political and social justice. There is, to be sure, a general presumption against imposing legal and other restrictions on conduct without sufficient reason. But this presumption creates no special priority for any particular liberty… [and] although in A Theory of Justice I sometimes used arguments…which suggest that the priority of liberty as such is meant…this is not the correct interpretation.

The Basic Liberties and Their Priority, in III The Tanner Lectures on Human Values 5–6Google Scholar (McMurrin, S. ed., 1982Google Scholar), reprinted in Rawls, , supra note 28, at 291–92.Google Scholar Notice that Rawls clings to a presumption against legal restrictions even as hejettisons a presumption favoring liberty. Notice also that the presumption is against imposing legal restrictions “without sufficient reason.” The implication is that the nonimposition of legal restrictions enjoys some sort of presumption of correctness.

40. See Dworkin, . supra note 30, at 266–78.Google Scholar Dworkin distinguishes liberty as “license” from liberty as “independence.” As to restrictions of the former “the government needs no special justification—but only a justification…” (Id. at 269 emphasis in original). The presumption of liberty (bearing the oddly neologistic moniker, “the principle of abstraction”) returns to take a short bow in Dworkin, , What is Equality? 3: The Role of Liberty, 73 Iowa L. Rev. 1, 25–37 (1987)Google Scholar, before being buried under a mountain of other theoretical debris.

41. Wertheimer, , supra note 1, at 173.Google Scholar See also Ryan, Cheyney, The Normative Concept of Coercion, 89 Mind 481 (1980)CrossRefGoogle Scholar; Murphy, Jeffrie, Consent, Coercion, and Hard Choices, 67 Va. L. Rev. 79 (1981)CrossRefGoogle Scholar; Alexander, Larry, Zimmerman on Coercive Wage Offers, 12 Phil. & Pub. Aff. 160 (1983).Google Scholar

42. Wertheimer, , supra note 1, at 243.Google Scholar I work this point out in a way that is at odds with Werthcimer's, however. See infra.

43. G.A. Cohen argues that the fact that a moralized account tends toward the repugnant conclusion serves as a reductio ad absurdum of moralized accounts of coercion (or of “being forced”). See Cohen, . The Strutture of Proletarian Unfreedom, 12 Phil, & Pub. Aff. 3, 4 & n. 2 (1983).Google Scholar

44. See Frankfurt, Harry, Coercion and Moral ResponsibilityGoogle Scholar, in Essays on Freedom of Action 66 (Hondereich, T. ed., 1973).Google Scholar

45. The law of duress speaks of a “person of reasonable firmness.” See Model Penal Code §2.09.

46. Nozick, , supra note 2, at 450.Google Scholar

47. Id. at 447–48.

48. Id. at 450.

49. Id. at 451 (emphasis added).

50. See Gorr, Michael, Toward a Theory of Coercion, 16 Canadian J. Phil. 383, 388–91 (1986)CrossRefGoogle Scholar; Gunderson, Keith, Threats and Coercion, 9 Canadian J. Phil. 247, 253–54 (1989).CrossRefGoogle Scholar

51. The “biconditional” nature of the law's proposals is noted by Nozick as a problem for the view that law is coercive. See Nozick, , supra note 2, at 469 n. 33.Google Scholar The law proposes to punish all but only the guilty. One tactic might be to adopt a rule that all proposals containing a coercive component are to count as coercive. Thus, “I will break your arms if, but only if, you fail to pay me by Wednesday,” counts as coercive even though the component subproposal, no breakage if debt timely paid, may be welcome.

52. Id. at 451.

53. Wertheimer objects to it Tor this very reason. See Wertheimer, , supra note 1, at 249.Google Scholar

54. Id. at 182.

55. Id. at 184.

56. Id. at 186 (emphasis in original).

57. Id. at 187 n. 17.

58. Id. at 186 n. 16.

59. Id. at 256.

60. Id. at 173.

61. Nozick, , supra note 2, at 451–52Google Scholar (emphasis in original, but for case of comprehension I have taken the liberty of replacing Nozick's variables). For a proposal to save the pre-reflective view that relies on a similar mechanism, see Westen, , supra note 10, at 581.Google Scholar

62. David Zimmerman endorses Nozick's “tokcn-subtractive” approach to “some pro posals,” including (presumably) any or the form “if you do that, I will punish you,” but Zimmerman is not sure “whether Nozick is making a general theoretical point here, or simply handling a single case in the most plausible way.” Zimmerman, , supra note 18, at 142.Google Scholar

63. For analyses that erode the monolithic appearance of law, see Hart, H. L. A., The Concept of Law 26–48 (1961)Google Scholar; Raz, J., Practical Reason and Norms 154–62 (2d ed. 1990)Google Scholar; and MacCormick, N., supra note 20, at 237–240.Google Scholar

64. By “moral” self-help I mean those measures that individuals have a right to pursue to defend themselves and their interests against unjustified encroachments by others. It also includes those remedial means one has a right to pursue against others. Moral self-help is independent of, if tolerated by, legal procedures. Cf. Flagg Bros. v. Brooks, 436 U.S. 149 (1978)Google Scholar (distinguishing 14th amendment “state action” from legally tolerated self-help).

65. Hart, H. L. A., Are Then Any Natural Rights?. 64 Phil. Rev. 175 (1955).CrossRefGoogle Scholar

66. See Robert Nozick's notorious “classical music” counterexample, in Nozick, , supra note 40, at 90–96.Google Scholar Nozick argues that-contrary to Hart's principle—I can't be enforcably obliged to dedicate one day a year to playing classical music over a community public address system, even if everyone else does, and even if I enjoy the music they play. Nozick's counterexample is less compelling if it were to involve, say, a day's labor at the community sanitation plant to monitor the level of toxic bacteria in the water supply. This suggests that Hart's principle of mutuality of obligation, suitably modified, can escape Nozickian counterexamples.

67. On the vexed topic of why blackmail is a wrong, see, e.g., Lindgren, James, Unraveling the Paradox of Blackmail, 84 Colum. L. Rev. 670 (1984).CrossRefGoogle Scholar

68. See Greenawalt, Kent, Criminal Coercion and Freedom of Speech, 78 Nw. U. L. Rev. 1081, 1096–97 (1983)Google Scholar; Wertheimer, , supra note 1, at 220.Google Scholar

69. Wertheimer, , supra note 1, at 220.Google Scholar

70. The statute is based on OCGA §16–6–2 (1982). See Bowers v. Hardwick. 478 U.S. 186 (1986).Google Scholar

71. This is not to suggest that the Georgia Sodomy statute, on which Case 11 is based, is not both wrongful and disproportionate to any wrong it might conceivably relate to. For those readers who find it impossible to ignore these aspects, I suggest substituting any other statute that has fallen into desuetude.

72. Rawls, writes: “Political society is closed: we come to be within it and we do not, and indeed cannot, enter or leave it voluntarily.”Google ScholarRawls, , supra note 28, at 136 (emphasis added).Google Scholar

He explains further that,

The government's authority cannot…be freely accepted in the sense that the bonds of society and culture, of history and social place of origin, begin so early to shape our life and are normally so strong that the right of emigration…does not suffice to make accepting its authority free, politically speaking, in the way that liberty of conscience suffices to make accepting ecclesiastical authority free, politically speaking.

Id. at 222. Here, Rawls is invoking what he takes to be the fact that “political power is always coercive power,” id. at 136, in a way typical of a justification-defeafing context of coercion claims. The pre-reflective view of law does double duty for liberal political theory, in this sense: it casts a burden of justification upon the state and it rebuts any appeal to implied consent that might be offered to justify the state's inevitable coercion.

73. This scenario is loosely based on the facts of Rummel v. Estelle, 445 U.S. 262 (1980)Google Scholar.

74. This assumption is one made by Nozick:

Moral philosophy sets the background for, and the boundaries of, political philosophy. What persons may and may not do to one another limits what they may do through the apparatus of a state, or do to establish such an apparatus. The moral prohibitions it is permissible to enforce are the source of whatever legitimacy the state's fundamental [i.e. unconscnted] coercive power has.

Nozick, , supra note 24, at 6 (emphasis added).Google Scholar

75. My argument here follows Nozick's. See id. at 57–71.

76. The U.S. Supreme Court's proportionality jurisprudence does not take us much farther, unfortunately. See Dressler, J., Understanding Criminal Law 31–43 (1987)Google Scholar.

77. Waldron, Jeremy, Liberal Rights 119–20 (1993)Google Scholar. I owe this analogy to Alan Wertheimer.