INTRODUCTION

It’s apples and oranges, we say. Chalk and cheese.Apples and oranges is the North American term, implying incommensurability. Chalk and cheese is the British term, implying both incommensurability and incompatibility. Or, somewhat more equivocally, six of one and half a dozen of the other.This may imply either the equality of the options before us (if emphasis is placed on the identity of six and half a dozen) or the incommensurability of options that are insignificant in our lives (if emphasis is placed on the difference between one option and the other). What do we mean?

It is a commonplace that coercion forms part of the nature of law: Law is inherently coercive. But how well founded is this claim, and what would it mean for coercion to be part of the “nature” of law? This article suggests that the claim is grounded in our current conception of law. The main focus of the article, however, is upon two major lines of argument that attempt to establish a link between law and coercion: one based upon the law’s efficacy; the other upon the law’s normativity. It argues that the claim that law is necessarily coercive because it must be efficacious is mistaken—not necessarily on sociological or psychological grounds, but because it identifies law with the preconditions for its existence. On the other hand, the argument that law’s normativity is inherently linked to coercion contains an important truth—not because coercion is necessary to account for normativity, but because the scope of law’s claim to authority encompasses the right to authorize the use of coercion.

On November 27, 1905, the steamship Reynolds was moored to Vincent’s dock for the purposes of unloading its cargo, when a violent storm arose. The captain signalled for a tug to tow the ship from the dock after the cargo had been unloaded, but none could be obtained, because the waters had become too rough. It was too dangerous to cast off, and as the lines holding the ship to the dock became frayed, the crew replaced them. The Reynolds was repeatedly thrown against the dock, causing considerable damage to it. The ship’s owner, the Lake Erie Transportation Company, was held liable for the cost of the damage. Defendant’s appeal against an order denying a new trial was dismissed by a two to one majority of the Supreme Court of Minnesota in an opinion that has since enjoyed considerable and consistent attention.Vincent v. Lake Erie Transportation Co., 124 N.W. 221 (Minn. Sup. Ct. 1910).

I. INTRODUCTION

Rawls’s fundamental conception of fairness, that “the arbitrariness of the world must be corrected for” (141/122),A Theory of Justice (1971) has been issued in a revised edition (1999a). The new edition involves no significant changes of substance in the topics I address. I cite to the relevant page in both editions, but to avoid cumbersomeness, I normally cite merely the page numbers separated by a forward slash. The footnoted parenthetical citation “(141/122)” thus refers to p. 141 of the 1971 edition and p. 122 of the revised 1999 edition. Where there is a textual difference, I generally give the version from the revised edition; but I cite language from the earlier version where it seems to me illuminating. runs deep in the liberal moral sensibility and permeates American jurisprudence.This is one interpretation of the underlying idea of due process. See Daniels v. Williams, 474 U.S. 327, 331 (1986) (approving “the traditional and common sense notion that the Due Process Clause [of the federal Constitution], like its forebear in the Magna Carta, was ‘intended to secure the individual from the arbitrary exercise of the powers of government’” (internal citations omitted)). Even the very deferential “rational basis” standard under which the courts review Equal Protection challenges to social and economic regulation must avoid arbitrariness. A standard formulation is that similarly situated individuals must be treated similarly. See, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); Reed v. Reed, 404 U.S. 71, 75–76 (1971); Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). Likewise, the most common level of review by the courts of decision making by administrative agencies is that the agency action will be overturned if “arbitrary and capricious.” 5 U.S.C. § 706; see Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971); see also Davis & Pierce (1994: 200ff.), discussing the meaning of this test. Rawls’s theory of justice is the most profound and elaborated statement that we have of the intuition that justice is freedom from arbitrariness, that social benefits and burdens ought not be distributed on the basis of random factors over which people have no control. The whole apparatus of Rawls’s theory is at bottom a way of representing this intuition with clarity and precision. But the theory runs athwart the institution of the family. As Rawls acknowledges in his treatment of equality of opportunity, the family introduces an irreducible contingency into the circumstances of our social life that any acceptable theory of justice must accommodate. But Rawls’s accommodation is unsatisfactory in a way that reveals a deep—indeed, a fatal—problem with the fundamental conception of fairness. Because the family is ineliminable, we must give up a conception of justice based on correcting for the arbitrariness of the world, and adjust our notion of equality of opportunity accordingly.