The Coerciveness of Law: Grant Lamond

Oxford Journal of Legal Studies, Vol. 20, No. 1 (2000), pp.
39–62
The Coerciveness of Law

GRANT LAMOND*
Abstract—One of the central features associated with law is its coerciveness. A major
source of our interest in law’s coerciveness is that the use of coercion is thought to require
moral justification—hence the liberal interest in the harm principle. This article seeks to
contribute to the debate about the justifiable grounds for legal coercion by clarifying the
ways in which law is coercive and demonstrating that coerciveness is a highly complex
phenomenon. It argues that the legal authorization of physical force and sanctions, rather
than the existence of enforcement institutions, is the appropriate focus for these enquiries.
It considers the appropriate methodology for understanding the nature of coercion and
goes on to argue that there are a group of nested conceptions of coercion which perform
diVerent roles in diVerent contexts. The diVerences between these conceptions help to
account for some of the dis-agreements over law’s coerciveness. There is also an
important contrast between laws which aim to coerce and those which merely have a
coercive eVect. All of these internal distinctions within coercion matter because they have
considerable significance for the justification of coercive legal measures. Finally, it is
argued that sanctions are neither necessary for the law to be coercive, nor always suYcient.
1. Introduction
Law is coercive. This is part of the everyday understanding of law, one shared by
most members of contemporary societies. Law is regarded as coercive because there is
provision for and the means by which it can be, and regularly is, enforced—by the
courts, by the police, by sheriVs and bailiVs, by debt collectors, by wheel clampers.
This often results in people complying with the law when they would not otherwise do
so. Most of us, at one time or another, have complied with a law due to the risk of
being caught and penalized. And some more recalcitrant people, we suspect, would
persistently ignore their legal duties were it not for the spur of enforcement. Coercion
helps to give legal rights their great practical importance—at least potentially: we are
only too aware that many legal rights are not eVectively enforced, and many are not
conscientiously respected.
A major source of interest in law’s coerciveness has derived from the study of the
nature of law. Many philosophers, anthropologists, and sociologists have regarded
coerciveness as one of the key features of law, or as one of its distinctive features. At
the same time they have been concerned with what distinguishes
* Lecturer in Jurisprudence, King’s College London. I would like to thank John Gardner, Rahul Kumar, John Stant-Ife,
and an anonymous reader for this Journal for their comments on drafts of this article.
Ó 2000 Oxford University Press
40 Oxford Journal of Legal Studies VOL. 20
legal coercion—and hence law—from other uses of coercion. The aim has been to
clarify the nature of law and to deepen our understanding of it as a form of social
organization.1 There is, however, another issue we may seek to clarify about the
coerciveness of law, namely, in what sense is law coercive? In what way does the
enforceability of law render it coercive? Is it coercive in any other ways? What is it
for law (or for anything else) to be coercive? This clarificatory task gains most of its
interest from the evaluative significance of coercion. We care about coercion because
it is ordinarily regarded as something which stands in need of moral justification. This
is as true of the law’s use of coercion as it is of anyone else’s. The law’s authority
over a community may provide it with special justifications unavailable to ordinary
individuals, but it does not exempt it from the need to provide a justification. Hence
the great interest of the harm principle for liberals, since it provides just such a basis
for the use of coercion. Contrary to popular perception, the harm principle is not in
itself a principle limiting the use of legal coercion, though it has been used that way by
J. S. Mill and others. The harm principle merely establishes one sound basis for legal
coercion; further argument is necessary to show that it is the sole acceptable basis for
such coercion.2 An important ingredient in assessing the cogency of grounds for
coercion such as the harm principle is to identify more precisely the ways in which the
law is coercive, and thus to identify what it is that stands in need of this type of
justification.
This article seeks to make a contribution to that task by demonstrating that

coerciveness is in fact highly complex—there are many diVerent ways in which
practices such as law may be coercive. The existence of these diVerences helps to
explain some of the disagreement over law’s coerciveness. More importantly, these
diVerences carry considerable evaluative significance: the sorts of grounds which will
support coercive legal measures depends upon the type of coerciveness which is
involved. A number of clarifications of the nature of coerciveness of law will be
proposed. In the first place, it will be argued that the concern with law’s coerciveness
does not derive principally from the existence of legal institutions charged with its
enforcement but in the authorization of coercive measures, irrespective of who is to
carry them out. Secondly, coercion is not restricted to the use of physical force, and
not all uses of physical force are ipso facto coercive. Thirdly, there is a group of
nested conceptions of coercion which perform diVerent roles in diVerent contexts, and
it is coercion in what may be described as its ‘action-inducing’ role which is most
relevant to understanding the coerciveness of law. Fourthly, there is an important
distinction between actions that aim to coerce and those that merely have a coercive
eVect, a
1
This is often described as ‘analytical’ or ‘conceptual’ jurisprudence, but ‘clarificatory’ more nearly captures what is at
stake since it is agnostic on the appropriate methods for achieving such clarification. See N. E. Simmonds, ‘Philosophy of
Law’ in N. Bunnin and E.P. Tsui-James (eds), Blackwell Companion to Philosophy (1996), 388–9 and 396–9.
2
Liberals of such impeccable credentials as Joel Feinberg have seen fit to supplement it with the oVence principle
(OVense to Others: The Moral Limits of the Criminal Law, vol. 2, 1985), just as H. L. A. Hart in the 1960s supplemented
the harm to others principle with a dash of paternalism (see Law, Liberty and Morality, 1963).
SPRING 2000 The Coerciveness of Law 41
distinction with significant implications for the evaluation and justification of legal
measures. Finally, it is arguable that legal sanctions, contrary to their common
estimation, are neither necessary nor always suYcient for the law to be coercive. What
emerges is a far more nuanced picture of the way in which the law is coercive, a
picture which may lead us to reconsider the adequacy of traditional accounts of the
proper limits of legal coercion.
2. Legal Considerations and Legal Institutions

In saying that law is coercive, or that legal systems are coercive, there are two things
we normally have in mind. The first is that legal systems contain coercive laws, i.e.
that at least parts of ‘the law’ provide for the use of coercion. The second is that legal
systems contain coercive institutions, i.e. that there are agencies or oYcials charged
with giving coercive eVect to the law. An initial question to explore is whether either
of these is more central to the question of the coerciveness of law, and to consider the
relationship between them. In particular, is one or other more important to the issue of
justifying legal coercion, or do each of them raise separate concerns?
‘The law’ is the body of normative standards and considerations which guide and
direct legal institutions and other persons within a community and which are regarded
as enjoying an authoritative status. 3 It is the law which determines whether we have a
legal duty, for example, to pay a tax or acquire a licence or wear a seat-belt, and
whether we have a legal right for example, to vote, or to receive a pension, or to be
heard in a dispute. The law thus provides guidance on the appropriateness of particular
courses of action and facilities for altering the types of considerations which apply to
particular individuals. To say that law is coercive, then, may be to point out that there
are laws which provide for the use or application of coercive measures, either by
directing or permitting their imposition.
The other sense in which law may be coercive is in the existence of public oYcials
and agencies who coercively enforce the law. OYcials such as the police, prison
oYcers, sheriVs, and bailiVs, fulfil this function. Enforcement involves giving eVect
to legal directives, i.e. taking whatever action is mandated or authorized by the
relevant legal position. In saying that law is coercive, therefore, one might be referring
to the fact that there are institutions which are legally authorized to give coercive
eVect to the law.
There are good reasons for giving priority to the coerciveness of the law over the
coerciveness of legal institutions. First of all, the enforcement function of public
institutions is based upon the legal authorization of this role, i.e. upon the existence of
laws which confer the entitlement to do so. Without legal authorization, for example,
an arrest is simply an assault accompanied by false
3
The authoritative status of legal considerations varies in its force: it may mean that the consideration cannot be
questioned by adjudicative institutions but must be followed; alternatively it may mean that it can be departed from by
adjudicative institutions but only if there are suYciently strong reasons for doing so.
imprisonment. Acts which are ultra vires an agency’s authority are not instances of
enforcement, although they purport to be. One notable feature of law is its self-
regulation: it regulates not only its own creation but also its own enforcement. 4 Legal
authorization, then, is necessary to bring the actions of enforcement institutions within
the ambit of legal measures and thus within the scope of the inquiry into the
coerciveness of law. Secondly, bodies other than public institutions can be authorized
to impose coercive measures: schools and private clubs may enjoy the power to use
coercion, for example, in maintaining order on their premises. And it is not only
organizations or their oYcials which can be endowed with this authority: private
individuals may also be authorized to use coercion, for example, in the power to eVect
a citizen’s arrest. Finally, the identification of law’s coerciveness with the
enforcement functions of public bodies involves a certain conflation of law with the
state. Strictly speaking, law’s coerciveness in an institutional sense should pertain to
the enforcement functions of legal institutions. But oYcials such as prison oYcers and
members of the armed forces are not normally regarded as part of the legal system
although they often enforce the law. The legal system is, within modern states, a
subsystem of public authority: there are many state oYcials and agencies outside the
legal system who carry out enforcement functions.5
While we may sometimes associate the coerciveness of law with the existence of
certain public agencies and oYcials charged with enforcing it, therefore, the
underlying question is the way in which the law itself is coercive, since it is only when
the actions of public agencies are authorized by the law that they constitute
enforcement, and private individuals and bodies may be authorized to enforce the law
instead of or in addition to such agencies. The institutional perspective does, however,
draw attention to an important question in considering the grounds for legal coercion:
it is not merely what is authorized by the law which has to be accounted for, but also
who is given the authority or the responsibility for carrying it out. It may be, for
example, that it is not justifiable to authorize public agencies to seek remedies for
breaches of some legal responsibilities; similarly, it may not be justifiable to permit
private individuals to carry out certain enforcement measures.
3. Coercive Laws
Coerciveness is popularly attributed to the law for two reasons: because of the
existence of laws authorizing the use of physical force, and because of the existence of
those prescribing sanctions. It is tempting to think that these two types of coerciveness
are in fact one, though for conflicting reasons. The first temptation is to suppose that
sanctions are coercive because they involve the
4 H.Kelsen, Pure Theory of Law (trans. M. Knight) (1970) 71, 233–6.

5 What then characterizes those institutions which make up the legal system? The fact that their practices
determine which considerations constitute legal considerations in a particular legal system. Hence the primacy accorded to
both courts and legislatures, despite their otherwise varying functions.
use of physical force, i.e. that sanctions are coercive because their imposition must
involve the use of force. The second temptation is to suppose that physical force is
merely one kind of sanction, and that it is coercive because sanctions are coercive. But
neither of these suppositions are true. The imposition of some sanctions need not
involve the use of physical force, and not all legally authorized uses of physical force
are sanctions.
Many sanctions, such as the seizure of bank accounts or the forfeiting of intangible
property, do not require the use of physical force. 6 What is lost may be something
which derives its value from its legal protection, such as intellectual property, or may
be something intangible which is constituted by legal rights and duties. Similarly, the
loss of certain entitlements, such as pensions, welfare payments or free medical care,
does not require physical force to implement. There are other forms of sanctions
which also need not depend on the use of force such as the refusal to enter contracts
with a firm or individual, or the circulation of adverse publicity about someone’s
employment practices or the safety of their products. In all of these cases the sanction
takes a form which does not involve the use of force. It is a mistake, therefore, to
suppose that sanctions need to be tied to force.
Equally it is a mistake to suppose that all legally authorized uses of physical force
are sanctions.7 Physical force is often used to prevent people endangering themselves
or to prevent natural agents from causing harm. Thus emergency services may
forcibly intervene to prevent an individual from committing suicide (even where
suicide is neither a crime nor other legal wrong). The police and health workers may
forcibly restrain a person who is mentally unfit and constitutes a danger to themselves
or to others. Quarantines imposed to prevent the spread of infectious diseases may
likewise make use of physical restraints. Force is also used to destroy privately owned
animals which pose a danger to humans, and to demolish structures in order to prevent
the spread of fire or flood. In none of these cases does the use of force constitute the
imposition of a sanction.
Neither the use of physical force nor the use of sanctions are ultimately reducible to
one or the other. Instead they correspond to two distinct modes of coercion—which
may be described as ‘physical compulsion’ and ‘rational compulsion’. What is
common to all modes of coercion, and what makes them instances of coercion, is the
underlying notion of suYcient pressure being brought to bear by one person to force or
make another person do as the first wills. Hence to be coerced into doing something is
not to do it voluntarily: it is to do it against one’s will. But there are diVerent sorts of
pressure which can achieve
6
See J. Raz, The Concept of a Legal System (2nd edn, 1980) 79, and Practical Reason and Norms (2nd edn, 1990) 157;
and H. Oberdiek, ‘The Role of Sanctions and Coercion in Understanding Law and Legal Systems’ (1976) 21 American
Journal of Jurisprudence 71, 88–9.
7
As has been pointed out by Kelsen, above n 4 at 40–2; Raz, above n 6 at 79–80; and Oberdiek, above n 6 at
88.
this, and it is pressure—not physical force nor sanctions–which is the key operative
factor in coercion.8
In the case of physical compulsion it is our bodies which are controlled by the
power of another person. Our own bodily strength proves inadequate to resist the
physical pressure which is being brought to bear. So a struggling protester may be
man-handled and thrown into a police van, or a suspect’s hand may be held around a
pen in order to have them ‘sign’ a confession. Physical force may also be used to
restrain a person, as with handcuVs and locked rooms. Rational compulsion, by
contrast, arises from the sort of pressure which the threat of the infliction of some
sanctions brings to bear. It involves being forced to choose between two alternatives
—an unwelcome consequence and another option—where the choice is designed to
ensure that it is the other option which is chosen. The choice is forced in the sense that
we do not regard the unwelcome consequence as an acceptable alternative relative to
the other option, i.e. we do not consider we have a ‘real’ choice between the two, nor
is there any acceptable way of avoiding the alternatives with which we have been
presented.9
Physical compulsion works on the body of the person against whom it is directed
and is irresistible by them. Rational compulsion works instead on the mind of the
person subject to it. It is ‘rational’ in the sense that it works through our reasoning
faculties—it involves making a choice—and it presupposes that the person presented
with the choice will act rationally by settling for the lesser evil. The most common
way in which rational compulsion is brought to bear is by threatening another person:
unless they do something (bring something about, abstain from doing it etc.) an
unwelcome consequence will ensue. Physical compulsion and rational compulsion
diVer in two important respects. Whilst physical compulsion is irresistible, rational
compulsion is not: it is not that we are unable to resist, we simply do not regard
resistance as an acceptable course of action. Secondly, what is rationally compulsive
will be relative to what is demanded: a threat to damage a car might compel someone
to move it, but not compel them to injure another person.10
Although some cases of rational compulsion are closely related to physical

compulsion, it is wrong to suppose that all cases are: it is not the case, for example,
that rational compulsion is the threat whereas physical compulsion is the use of force.
Of course force can be the unwelcome consequence that is threatened—such as arrest,
or detention, or imprisonment if someone does not
8 Some people regard physical compulsion as the paradigm of coercion, and rational compulsion as an extension of this
paradigm. Although there are important diVerences between the two modes, the reason that they both constitute cases of
coercion is that they fulfil parallel roles in the evaluation of the conduct of the party applying the coercion and the party
being subjected to it, as will be seen below.
9 Rational compulsion should not be equated with motivation out of fear: someone subject to a forced choice may fear
the unwelcome outcome, but in other cases they will simply regard it as something to be avoided due to its cost.
10 It may be, however, that in diVerent circumstances we can find diVerent reserves of physical strength to resist
someone else, and so the parallels between rational and physical compulsion are closer than might be thought: see H.
Frankfurt, ‘Coercion and Moral Responsibility’ in his The Importance of What we Care About (1988) 39–40. Clearly the
amount of pressure necessary to compel another will depend on the individual characteristics of that person, whether
physical or mental.
comply with an order. But not all threatened uses of force would amount to physical
compulsion if they were carried out: the use of violence to wound or incapacitate
someone need not be directed at making them do anything, it may be an end in itself.
And many cases of rational compulsion do not involve the threat of physical force, for
example, the threat of sanctions such as cutting oV benefits or seizing the proceeds of
a bank account.
This establishes an interesting point. The common view that laws are coercive if
they provide for the use of physical force is inaccurate. The use of physical force is
coercive when it amounts to physical compulsion, i.e. when it bodily compels
someone to take or abstain from taking some particular course of conduct. But not all
uses of physical force have this function. The infliction of corporal punishments—
such as whipping, amputation or execution—is not in itself coercive, although it may
require the assistance of coercive measures to restrain the victim, and despite the fact
that it can have the eVect of preventing the victim from engaging in certain conduct
(or any conduct) in the future. Similarly, the use of force to destroy property or
animals to prevent the spread of some natural calamity is not coercive: it does not (at
least in itself) compel or restrain anyone from some particular course of action, though
its im-plementation may require preventing owners from intervening. Destruction of
property does, of course, deprive the owner of a resource and may thereby have the
eVect of reducing the options available to the owner. But this does not physically
force the person to do or abstain from some particular course of conduct, rather it
deprives them of the means of taking certain actions. It is important to bear in mind
that not every way of preventing someone from doing something is a case of
coercion.11
But what of the view that laws are coercive if they authorize the application of
sanctions? Nothing said so far shows that this is a misconception. Nonetheless it
requires serious qualification: although many sanctions are coercive, and though
sanctions are in practice central to the coerciveness of law, it remains the case that
sanctions need not be coercive and that laws other than those which are sanction-
prescribing may be coercive. But before this can be explained a number of ambiguities
about the nature of coercion need to be considered, since these ambiguities lie behind
many of the misapprehensions over the coerciveness of law.
4. The Ambiguities of Coercion

Discussions of coercion regularly display two flaws: the failure to distinguish three
nested conceptions of coercion, and the failure to attend to the disparate scope of the
terms ‘coercion’ and ‘coercive’. The second failure is of greater importance in
understanding the coerciveness of law, but the first can lead to considerable confusion.
11
Similarly, a sanction disqualifying someone from holding an oYce deprives them of an opportunity, but not by
coercing them, i.e. forcing them not to hold oYce. It simply renders them unable to hold oYce.
Before these two points can be considered, however, something needs to be said
about how we should go about understanding the nature of coercion. So far I have
made a number of observations about the nature of coercion, and I have proceeded on
the basis that these observations are relatively unobjectionable, given our everyday,
unreflective understanding of coercion. I have sought to avoid making controversial
claims about the nature or scope of coercion. I will go on to make a number of claims
which I hope will prove persuasive, at least on reflection, even if they are not
uncontroversial. How should my claims be assessed? Let me start by indicating two
ways in which they should not be assessed. It is a misconception to imagine that the
way to understand the nature of coercion is to understand the situations in which the
use of the word ‘coercion’ would be appropriate. A diverse vocabulary describes
coercion: people are ‘forced’ to do something, or are ‘made’ or ‘compelled’ to do it;
they do it ‘against their will’, or ‘not voluntarily’; it is something that they ‘had to’ do,
or ‘had no choice’ but to do. ‘Coercion’ is a term more commonly heard in theoretical
discourse than in everyday discussion. I assume that while there is a fair amount of
overlap in each of our uses of the term ‘coercion’, there is also a fair degree of
divergence. In any case it is not our usage of a particular term which interests us:
instead, as should be apparent from the preceding section, we are interested in a
particular means of altering human conduct whose evaluative significance depends on
the nature of those means. What the concept of coercion seeks to capture is a certain
mode of altering behaviour which has an important evaluative significance for those
subjected to it, and which can be referred to in a number of ways. We are interested in
the nature of the phenomenon which we use a range of terms to indicate and
describe.12
Equally, it would be an oversimplification to regard the task of developing an

account of coercion as a process of ‘reflective equilibrium’ in which we match our
considered (but pre-reflective) judgment of instances of coercion to our core notion of
it, and gradually modify these two limbs until a satisfactory reconciliation has been
achieved. The exercise is more elaborate than this, and involves harmonizing a wider
range of considerations. We have our basic understanding of what is involved in being
coerced, and a range of cases which we regard as paradigmatic instances of coercion.
Equally importantly, we have a grasp of the connections between coercion and other
evaluative concepts, such as willingness, or voluntariness, and an understanding of the
role which coercion plays in assessing human actions and practices. These elements
roughly and inchoately characterize the sort of thing which is involved in coercion and
the significance of coercion within our evaluative understanding.
In providing a philosophical account of coercion we are seeking an account which

makes sense of this range of elements, i.e. which corresponds suYciently with our
ordinary understanding but also provides a coherent and structured
12
Thus language does not entail that the best philosophical account of coercion must restrict coercion to cases involving
compulsion by another person rather than by natural forces (although that is the way ‘coercion’ is standardly used in
contemporary English): instead there are good evaluative reasons for maintaining this focus.
conception which explains the evaluative significance attached to the phe-nomenon. It
would be surprising if a philosophical account was not at least mildly revisionary: it
may, for instance, shift the boundaries of what are ordinarily taken to be an instance of
the phenomenon in question:13 it may provide a novel explanation for the significance
of the phenomenon; and it may disentangle a number of related phenomena being run
together under the same concept. The adequacy of these reconceptualizations is
ultimately a question of how convincing and illuminating an account they provide in
each case—whether what they deliver is still recognizable as an account of the
phenomenon in question, how well it succeeds in systematically linking the
phenomenon to related aspects of our understanding, and whether it deepens our
comprehension of the phenomenon.
One final point should be emphasized. Although the account of coercion developed
here is directed to examining the coerciveness of law, this does not mean that it is an
account based upon the law’s conception of coercion. Coercion figures in legal
doctrines in a number of ways (as will be seen below), but it is a concept which we
use outside the law to comprehend various aspects of social life, including aspects of
the law. So the material from which we are working is not principally legal: rather, it
is the full range of situations which it is appropriate to include within the ambit of
coercion. Legal analysis does not enjoy a privileged or central perspective from which
to assess the adequacy of an account of coercion. Instead the account must be assessed
in terms of how well it makes sense of our everyday judgments of what is and is not
coercive, and what light it throws on various diYcult and controverted parts of our
common conception. It is this extra-legal, philosophical analysis which can then be
used to ascertain the ways in which the law is coercive. I shall suggest that the
introduction of a number of distinctions and refinements are called for because they
make better sense of our judgments and our concerns with coercion.14
A. Three conceptions of coercion

Our interest in coercion is based upon its evaluative significance, but it is common to
overlook the fact that there are three sorts of claims which may be couched in terms of
coercion.15 All three are present in the law. The first claim is that someone was forced
or made to act under pressure from another and thus did not act voluntarily. An
employee may be threatened with dismissal, or a mortgagee with foreclosure, or a
student with punishment if they do not do as they are instructed. This is the action-
inducing use of ‘coercion’. The second
13 This may include rejecting some of those cases which we originally regarded as ‘paradigmatic’ instances.
14 These remarks on methodology are most indebted to Joseph Raz’s discussion of normative-explanatory accounts in
The Morality of Freedom (1986) 14–16, 62–66, and 165–66, and to Ronald Dworkin’s account of interpretive concepts in
Law’s Empire (1986) ch. 2, especially 62–76. This approach should perhaps be distinguished from the more ambitious task
of reinterpreting such basic notions in the light of a particular ‘theory’ of morality, such as consequentialism,
consensualism, rights-based theories etc. Such an endeavour presupposes the possibility of far deeper alterations to our
evaluative thought than the one outlined.
15 See, for example, Oberdiek, above n 6 at 81–2. A tripartite distinction with some similarities is recognized by W.A.
Edmundson, Three Anarchical Fallacies (1998) 74—7.
claim is one for redress for a wrong which has been committed through the
employment of coercion. The form of redress varies. It may be claimed that an
agreement or permission or consent is not valid because of the way it was obtained,
and that the status quo ante should be restored or amends made for what has
transpired. Or it may be claimed that compensation is due for some loss or indignity
which has resulted from what the coerced party was forced to do. Legal claims such as
that for duress as a vitiating factor in contract, or duress as a ground for restitution in
unjustified enrichment, as well as claims for compensation in tort for intimidation, fall
under this category. This is the liability-grounding use of ‘coercion’. Finally, the claim
may be that some wrongful action was either justifiable or excusable because of the
conditions under which it was performed. When the defence of duress is pleaded in
criminal law, the defendant claims that she should not be held liable for some prima
facie wrong because she was coerced into committing it. This is the responsibility-
aVecting use of ‘coercion’.
What is the relationship between these diVerent cases of coercion? Claims for
redress normally arise where A has coerced B into doing something which confers a
benefit on A or causes some loss to B. Claims for exculpation usually involve
situations where A has coerced B into wronging C.16 Both the liability-grounding and
responsibility-aVecting cases of coercion view coercion from the perspective of B, the
person subjected to it. The action-inducing case, by contrast, views it from the
perspective of A, the person applying it. The action-inducing case is the most basic
category: it is pressure which forces or makes someone perform an action. It is A’s
action-inducing coercion which may give rise to B’s claims for redress or exculpation.
B’s claim for redress (for having been forced to do something), and her claim for
exculpation (on the basis that she was forced to do the wrong thing), only arise when
A has subjected B to action-inducing coercion. 17 Whether it does give rise to these
further claims depends on the presence of other elements.
It was noted above that our interest in characterizing coercion derives from the fact
that it is a means of altering human behaviour which has an important evaluative
significance for those subjected to it. Our evaluative concern with liability-grounding
and responsibility-aVecting coercion is self-evident: the first imposes a responsibility
for redress upon the coercing party (A), whereas the second relieves the wrongdoer (B)
of blame (either wholly or in part). What of action-inducing coercion? Does it have
any significance in itself, or is our interest based solely on the fact that it can lead to
liability-grounding and responsibility-aVecting coercion? To understand this it is
necessary to consider the relationship between action-inducing and liability-grounding
coercion. What grounds B’s claim for redress is the fact that A has illegitimately
forced B to comply with A’s
16 Though it may also involve B simply doing something she should not have done.
17 In the case of exculpation, however, there is the closely related claim of necessity, which is based on the existence of
pressure generated by some situation for which no-one is responsible—such as the need to dump cargo in heavy seas to
prevent a ship from floundering.
demand. Action-inducing coercion, then, can be either legitimate or illegitimate.
When it is illegitimate, it will support a claim for redress from B (i.e. it will constitute
liability-grounding coercion). When it is legitimate, on the other hand, there are two
competing analyses of what is going on. One view is that the action is simply
permissible, and is of no evaluative significance in itself. The better, alternative view
is that the action is prima facie impermissible, but an adequate rationale exists for its
being taken. On this view, action-inducing coercion is something which always calls
for legitimation because of its very nature, and liability-grounding coercion is simply
those cases of action-inducing coercion which lack an adequate basis. But why is this
the better view of action-inducing coercion? Why should it be thought that action-
inducing coercion is prima facie impermissible in every instance?
In the case of physical compulsion the answer is clear: it is because it involves the
physical interference with another person. Rational compulsion, on the other hand, is
prima facie impermissible because it involves the threat deliberately to bring about an
unwelcome consequence—some disadvantage—if the other person does not comply
with a demand: thus it involves the proposal deliberately to set back their interests or
deprive them of some expectation if they are uncooperative. It is the proposal
deliberately to impose a disadvantage on another which gives rise to the need for
legitimation irrespective of the nature of the disadvantage. What must be shown is that
this is an acceptable method of securing the other’s compliance. Two points should be
emphasized here. First, the need for a legitimate basis arises in every case because it is
someone’s purpose to disadvantage another—it is not merely the unintended
consequence of an action taken for some other reason. Some actions, of course,
require a defence simply because of their eVects (such as injuring another, or causing
damage): other actions, however, require defence because of the conjunction of their
eVects and the intention with which they are taken. In some cases of rational
compulsion the threatened disadvantage would be prima facie impermissible whether
or not it was purposely imposed, but what makes all cases of rational compulsion
stand in need of a defence is the fact that they involve the plan purposely to bring
about something unwelcome to another. Secondly, that action-inducing coercion calls
for a defence does not mean that it can only be rarely or exceptionally justified. There
are a multiplicity of potential bases for coercive actions, sometimes related to ensuring
that people discharge their responsibilities (for example, duties, earlier undertakings,
authoritative decisions), at other times related to the instrumental contribution which
(some forms of) coercion can make to the success of a sphere of activity (for example,
the education of children, commercial competition, industrial relations). 18
18
Edmundson, above n 15 at 95–6 (see also 11), argues that action-inducing coercion as characterized in the text cannot
be prima facie impermissible because all actions which are prima facie impermissible lead to moral ‘residues’ (for
example, of regret or remorse) even when they are justifiably taken. But this is too broad a claim. Lying is prima facie
impermissible, but one need feel no compunction about (justifiably) lying to an assailant to save one’s life. The
appropriateness of reactions such as regret or remorse turns on features additional to those of an action being prima facie
impermissible.
The alternative view of action-inducing coercion often derives from a tempting

misconception—that the question of legitimation only arises when what is threatened
would violate some right of the party against whom the pressure is directed. 19 On this
view, where no right is threatened, there is nothing to defend, and the threat is simply
permissible. This is a particularly strong temptation for those accustomed to thinking
within a legal framework since the law (especially private law) is generally
conceptualized in terms of rights and duties, and because this account of coercion is
often thought to tally with the law’s own view of coercion. 20 Now even if it were true
that this was the law’s view of coercion, it is important to recall that it would not
undercut the preferred analysis: what is being sought is the best theoretical account of
coercion, not the best account of how the law views coercion.21 And, in any case, it is
not unambiguously true. The law settles at any one time which types of actions are
permissible and which are not: it does not reconsider the issue de novo in each case. In
those spheres of activity where coercion has been legally accepted, it does not need to
be justified anew each time it occurs, and is unlikely to be reconsidered while it is
endorsed by prevailing social norms.22
The rights-violation approach to understanding the evaluative significance of

action-inducing coercion misconstrues the relevance of rights to such claims. What
must be defended is the deliberate imposition of a disadvantage on another. The role
of rights is not in (sometimes) providing the trigger for the need for a defence: instead
the rights of both parties contribute to the ultimate resolution of the question whether
the coercion is legitimate. This is reflected in the fact that it is not enough to justify a
threat to do X by pointing to one’s right to do X. Statements of rights are normally
shorthand approximations of more complex specifications, and rights themselves are
normally defeasible by other con-siderations. To say that an employer has the right to
dismiss an employee does not necessarily mean that they have the right to do so for
any reason whatsoever. An employer may not have the right to dismiss someone
because they remind her of a childhood rival, or because she does not approve of their
domestic arrangements, although she may have the right to do so if the employee’s
work is unsatisfactory, or the employee has concealed relevant facts in their
application. Equally, that someone has the right to do X does not mean that they have
the right to do X irrespective of the consequences of doing so. An owner of property
may have the right to destroy it, but if a car has become the last surviving example of
an historically significant model then it may be that it ought to be preserved, and that
in this context the right is overridden. Locke famously asserted that people had the
right of acquisition over unappropriated resources,
19 A. Wertheimer, Coercion (1987) 217–18, followed by Edmundson, above n 15 at 80–2.

20 See T. Honore´, ‘A Theory of Coercion’ (1990) 10 OJLS 94, 95–8.
21 See above 47 and Honore´, above n 20 at 98 and 101. (The view taken by the law is, naturally, relevant to developing
an extra-legal account.)
22 ‘Justified’ in the broad, evaluative sense, not its narrow legal sense. In law, ‘justification’ is often used to describe
defences which must be established in each case, as in the case of duress in its responsibility-a Vecting uses. But the
question here is with the background justification for certain classes of action-inducing coercion, not with the exceptional
justification of actions which are prima facie prohibited by law.
such as empty land or wild animals, but he added the rider that this was the case only
so long as they left enough and as good for others to so acquire. 23 Until we have
examined the details of a particular case, therefore, it cannot be concluded from the
judgment that someone has the right to do X or that it is permissible for them to
threaten to do X unless someone complies with their demand, even where the demand
is not in itself impermissible (i.e. it does not involve the other in doing something
wrong). We need to know what X is, and what it is that is being demanded before we
can know whether the pressure is legitimate. This can be seen clearly in the oVence of
blackmail. I may have the right to reveal your adultery to your spouse, or to reveal
information which is on public record (such as a conviction or an earlier marriage),
but if I demand some advantage as the price for my silence then I may well have
committed a serious criminal oVence.24 Conversely, my claim for redress or
exculpation if I am blackmailed need not rest on the claim that I had the right that
certain information (such as that on public record) not be disclosed, or that certain
actions not be taken. It rests quite simply on the impropriety of the means adopted to
obtain an advantage, i.e. on the lack of any adequate basis for demanding some
advantage as the price for not deliberately damaging my interests. 25 Thus although
rights play an important role in determining the legitimacy of particular instances of
action-inducing coercion, they do not account for the fact that such coercion stands in
need of defence in the first place.26
In considering the coerciveness of law we are concerned with the action-inducing

use of ‘coercion’ rather than its liability-grounding or responsibility-aVecting uses.
We are seeking to understand which laws are coercively action-inducing. Of course,
we may go on to ask whether those laws which are identified as coercive can be
justified: if they cannot then there may be grounds for redress to those aVected by the
law. But the focus of our inquiry is on a particular means by which law can seek to
motivate conduct, and on the propriety of the law’s adoption of those means.27
23 J. Locke, Two Treatises on Government, II, 27, 33.

24 For a fuller discussion of blackmail see my ‘Coercion, Threats, and the Puzzle of Blackmail’ in A.P. Simester and
A.T.H. Smith (eds), Harm and Culpability (1996).
25 Wertheimer, above n 19 at 102–3, 219–21, is not unaware of the diYculties presented by blackmail, which leads him
to propose the need for a ‘morality of proposals’ to supplement a ‘morality of action’. But this ‘need’ is a product of (a) not
distinguishing action-inducing coercion from liability-grounding and responsibility-aVecting coercion, and (b) tying an
account of coercion to a rights-based theory of morality (see, for example, 217–19).
26 Of course, some theorists claim that morality (or at least morality in the ‘narrow sense’, i.e. that part generated by the
need to respect the interests of others) is rights-based, and that rights and duties exhaust the content of (narrow) morality.
For such an approach the question becomes whether there is a (prima facie) right not to have one’s interests deliberately set
back. On any ordinary conception of morality, however, rights constitute merely one range of considerations relevant to
what we should do.
27 Edmundson’s adoption of Wertheimer’s account of coercion (above n 15 at 79 and 103–5) leads him to conclude that
when law and sanctions are justified law is not coercive (123–4, see generally 82–124): but this is because Wertheimer’s
account is principally one of responsibility-aVecting coercion, not action-inducing coercion (above n 19 at 6).
B. Coerciveness
Discussions of the coerciveness of law normally manage to avoid the most serious
consequences of being misled by these diVerent senses of coercion, despite the failure
clearly to distinguish them. By contrast, the term ‘coercive’ is apt to generate a
number of subtle confusions. There are two aspects to coercion. The first is that one
person aims to make another person do something by threatening her. The second is
that the threat succeeds in forcing the other person to comply with whatever is
demanded. If A coerced B into doing Y, then A intended to make B do Y, and A
succeeded in having B do Y (by threatening to do X should B not do Y). By contrast,
we use the term ‘coercive’ more liberally than this. 28 For one thing, an action is often
described as ‘coercive’ if it is intended to force someone to do something, whether or
not it succeeds. An employer’s threat to sack a worker unless she reveals who else has
been breaking a certain rule is coercive, even if the worker prefers to lose her job than
to inform on her colleagues. An action or practice may also be considered coercive
where it has the eVect of forcing people to do something, even if it was not so
intended. An ordinance which provides for vehicles parked in kerb-side lanes between
6 a.m. and 9 a.m. to be lifted may be based on the need to remove obstacles to the
smooth flow of traYc, but it may well force local residents to stop parking overnight in
such lanes.
Of course, any action which reduces the desirability of an option exerts some
pressure on those considering choosing that option. Re-zoning an area may make it a
less desirable neighbourhood by altering the activities which are permitted, thus
putting oV potential purchasers of property in the area. Or it may have the eVect of
increasing the property taxes to which holdings within the area are subject, thus
creating pressure on business owners to move elsewhere. But ordinarily such a re-
zoning will not be considered coercive if these are merely the unintended
consequences of the change of status. It is only actions which create a substantial
degree of pressure which are regarded as coercive. Why is this? Coercion does not
merely involve a disadvantage which applies some pressure: the pressure must be such
as to provide a suYcient reason for not carrying out the option, i.e. suYcient decisively
to outweigh the considerations in favour of that option. 29 This is the sense in which
someone is ‘forced’ or ‘made’ to abstain from that option. Hence most taxes are not
coercive although they increase the cost of the taxed option and have the eVect of
dampening overall demand. What people would be willing to pay for some option
normally diVers from its current price. But some taxes are regarded as prohibitive
because they so increase the cost of an option that it exceeds what people would be
willing to pay. So actions may be regarded as ‘coercive’ even though they are not
intended to coerce when (a) they make the taking of an option the condition
28 In this case an evaluatively significant distinction does correspond to a linguistic one; the linguistic pointers soon run
dry however.
29 What is suYcient in any particular case will, of course, depend upon what is at stake, i.e. what the choice is between.
for the deliberate imposition of a disadvantage, and (b) the disadvantage provides a
suYcient reason against taking that option. These actions are regarded as coercive
because it is as if they were intended to force someone not to adopt the option.
Laws may be coercive then not only (i) in being intended to coerce, but also (ii) in
unintentionally having a coercive eVect, i.e. in compelling conduct.30 Discussions of
coercion can easily proceed at cross-purposes if these two are not distinguished, with
one side concerned solely with those laws which are intended to coerce and the other
with those laws which have a coercive impact. Still, it might be wondered whether the
intentional dimension ultimately matters. There are two sources of doubt here. First,
can laws be coercive in intent? Is the ‘intent’ of laws in any way comparable to the
intent of actions performed by individuals? And second, even if they are, does it
matter if a law is intended to coerce? Surely the only thing that is important is whether
a law has a coercive eVect, irrespective of its intent.
I can only deal very briefly with the first objection. What does it mean to say that
laws are coercive in intent? Obviously, it is not to suppose that they are the product of
a single lawmaker whose attitudes and beliefs are the key to the characterization of the
law. But the mistake here is to suppose that intentionalistic discourse is restricted to
individuals. We often attribute plans, intentions, hopes and other attitudes to decision-
making bodies such as committees, boards of directors, and legislatures. In speaking
of the intention behind a law we ordinarily mean the rationale for its enactment or
existence.31 It is often quite unproblematic to identify the (at least purported)
justifications for why a law has made the imposition of a disadvantage conditional on
some option being taken. Judgments of the reasons for a law’s existence bulk large in
our understanding of the law, and judgments of coercive intent are no more fraught
than other such judgments. Not only is it possible, therefore, to attribute intent to
individual laws, it is something which is regularly done.
Putting to one side the general objection to intent, that still leaves the more specific
objection: what point is there in distinguishing laws which are intended to coerce from
those which merely have a coercive eVect? Is not the only relevant issue the law’s
eVects? But this is not true. The distinction between the two matters because it is
evaluatively relevant, in that the structure of justification for actions which are
intended to coerce and those which merely have a coercive outcome are diVerent.
Actions which merely have a coercive eVect are of concern if they result in people
being deprived of valuable choices or options: what matters is not that people are
being deprived of a choice per se, but of what in particular they are being deprived.
By contrast, actions which are intended to coerce are of concern in themselves, in
addition to their eVects, since they use
30 There is a third important sense of ‘coercive’, namely, something that has a tendency to coerce—which shall be
considered further on at 55.
31 G. C. MacCallum Jr, ‘Legislative Intent’, reprinted in R.S. Summers (ed.), Essays in Legal Philosophy (1970) and J.
Raz, ‘Intention in Interpretation’ in R.P. George (ed.) The Autonomy of Law (1996).
the threatened imposition of a disadvantage as their means of securing a particular

outcome.
Actions which merely have a coercive eVect must satisfy a twofold test: it must be
shown that (a) there are good reasons supporting the imposition of the disadvantage,
and (b) that the deprivation of an option as a result of the threatened disadvantage
does not outweigh these reasons. Thus there may be good reasons of eYciency
justifying the removal of parked vehicles blocking traYc lanes during specified
periods of the day, and the fact that the prospect of having a vehicle removed deprives
local residents of the option of parking their cars in those lanes overnight may well not
outweigh this justification. By contrast there may be good grounds of commutative
justice supporting the specific enforcement of contractual undertakings by an
employee not to use know-how acquired in the course of employment for the next five
years, but this may have the eVect of so seriously limiting the options of comparable
alternative employment that they are prevented from resigning. This may be regarded
as so seriously eroding their autonomy that it should not be enforced. In all of these
cases, the coercive eVect on the person must be shown to be outweighed by the
reasons in favour of the action, but so long as this is satisfied the action is permissible.
In the case of actions which intend to coerce, on the other hand, what must be
shown is that the imposition of the disadvantage is justified by the need to eliminate
the option aVected. It is the undesirability of the option to be eliminated which must
provide the justification for imposing the disadvantage in question. So the invasion of
rights involved in knowingly taking another’s property without their consent may
justify penal sanctions, such as fines and restrictions on liberty; the need to prevent
pollution may justify the closure of premises and treble damages; and the importance
of upholding court orders may justify fining and imprisoning those who wilfully
disregard them. The particular disadvantage which is threatened must be justified,
then, by the gravity of the undesirable option involved: it must be established, for
example, that it is justifiable to penalize non-compliance (rather than just encourage
compliance, or admonish non-compliance), that the disadvantage is proportionate to
the failure,32 and that it is not otherwise reprehensible, for example, by being cruel or
humiliating. In the case of actions which intend to coerce, then, the undesirable nature
of the option against which the coercion is directed, and the need to eliminate that
option, must be such that it provides the justification for the coercive measures.
It should not be supposed that the diVerence in the structure of justification between
actions which are intended to coerce and those which merely have a coercive eVect
represents some relative ranking of the importance of the two. Both matter, but for
diVerent reasons. This distinction is of particular interest from the perspective of
principles justifying legal coercion. The harm principle, for example, provides a
justification for coercion, i.e. it identifies those cases
32
Or at least that the response is the minimum feasible response to prevent the occurrence of some outcome for which
amends cannot be adequately made.
where it is legitimate to force someone to take or abstain from some action (because
of the harmful eVects of the performance or omission of that action). Understood in
this way, the harm principle is most germane to the legitimacy of measures aimed at
coercing someone, rather than to cases where a legal measure merely has a coercive
eVect. The latter cases fall instead to be settled by the ordinary process of balancing
what is achieved by the measure against what is being lost: there is no special question
of justification despite their coercive eVect.
One final ambiguity in the term ‘coercive’ should be noted. Many actions and
practices are regarded as coercive if they merely have a tendency to force people to
make certain choices. There are two senses in which laws can be said to have this
tendency. First of all there can be laws which ordinarily only create some pressure, but
which occasionally exert suYcient pressure on individuals in particular situations to
force them to make a certain choice. Secondly, the implementation of law is
imperfect: many laws which would compel a choice if carried out to the letter only
lead in practice to the likelihood of pressure being imposed on an individual. The first
possibility derives from the fact that most laws have a degree of generality: their scope
applies beyond a single individual to a class of subjects and beyond a single occasion
to a range of situations. The circumstances of the members of the class may diVer
considerably, as may the precise details of the situations covered. So a law which
would not ordinarily provide a suYcient reason to carry out some action may
occasionally do so, and may be regarded as ‘coercive’ for that reason. The second
possibility derives from the fact that many laws which provide on their face for the
application of compulsive pressure will in practice only tend to provide a suYcient
reason for compliance, i.e. because of such things as the diYculties of detection and
enforcement, the inevitable limitations on the resources to implement them, and
policies on implementation.33 It also derives from the fact that many disadvantages
only create indirect pressure, via their connection with various linked laws, as will be
discussed below.
These two features of law are a consequence of the inevitable imprecision and
imperfection of social standards and practices. They both represent ways in which the
law may be coercive, but they can be assimilated to the categories established earlier.
That some laws are occasionally coercive is significant if they unwittingly deprive
individuals of valuable options. The question it raises is whether the law could be
altered to avoid this result, and, if not, whether the occasional hardship outweighs
whatever good is achieved (whether in attainment or aspiration) by the law. This is a
special case of the balancing exercise involved in the cases of laws which are coercive
solely in their eVects. On the question of imperfect implementation, while it is
undoubtedly true that over a range of cases most laws are only given eVect to a
degree, what is significant is that a law
33
MacCormick indeed presses the point that in the absence of empirical evidence it is mere conjecture what e Vect such
laws have on those to whom they apply: ‘The Obligation of Reparation’, 229–30 and ‘Coercion and Law’, 239, both in his
Legal Right and Social Democracy (1982).
authorizes or prescribes compulsive measures. It is important to determine whether

this assertion of legal authority can be justified, even if it is only irregularly given
eVect. The law purports to authorize or prescribe the imposition of coercive
measures–it entitles individuals and oYcials to take such measures. Ultimately, it is
the fact that a law is intended to compel individuals or may have the eVect of doing so
which is of consequence, whether it does so in most cases, or only in a few. Such
measures must be justified according to the appropriate category of coerciveness to
which they belong.34
Before concluding, one complication in applying the analysis of coercion to the law
should be discussed. This complication derives from the internal structure of laws.
Sometimes the imposition of a disadvantage may be authorized or prescribed in a
separate law to that rendering an individual liable to the dis-advantage if they take
some action. Neither law in isolation is coercive. One law merely creates a liability in
certain circumstances; the other provides for disadvantages to be imposed on those
who have rendered themselves so liable. But the combined eVect of the two laws is to
render someone liable to the imposition of a disadvantage if they take a certain course
of action. In this sense laws which create liabilities may be regarded as coercive if
they have linked measures providing for their imposition. Such linkage may extend
beyond two laws: one law may create a duty in the event of certain conduct; another
may impose a second duty should the first go unperformed; a third law may render the
individual liable to having the second duty enforced in the event of an authoritative
finding of liability for non-performance; and a fourth may authorize the enforcement
of the authoritative finding of liability. 35 Although the steps leading to a disadvantage
being imposed inevitably reduce its likelihood, they do not alter the basic fact that
taking a certain option renders one liable to a legally authorized disadvantage which
may either be enforced itself or, if left undischarged, renders one liable to a further
disadvantage which may be enforced. This chain may be extended further, but the key
is the provision for enforcement at the end of the chain: the potential enforcement at
the end of the chain transmits its force along the links. The coercive pressure is
indirect, and less eVective, but none the less real for all that.36
What is the upshot of the preceding considerations? The issue of the co-erciveness
of law concerns coercion in its action-inducing role rather than in its liability-
grounding or responsibility-aVecting roles. Laws which make dis-advantages
conditional upon the adoption of certain courses of conduct are rationally coercive if
the prescribed disadvantage provides a reason which would be suYcient to compel a
rational agent to abstain from that course. This means
34 This addresses MacCormick’s concerns. If, on the other hand, the law has truly become a ‘dead letter’, our concern (if
any) will be with the expressive significance of its retention, and any consequent legal e Vects of its retention (for example,
enforceability of contracts, protection of interests in tort).
35 This aspect of the law is stressed by MacCormick: ‘Coercion and Law’, above n 33 at 237–40.
36 Since coerciveness does not pertain to the logical type of a law but to its social e Vects, it is unsurprising that coercive
legal situations do not necessarily individuate laws, contrary to (one of) Kelsen’s views (see Raz, The Concept of a Legal
System, above n 6 at 77–92; for a more promising approach to individuation, see ibid at 140–7).
that the class of coercive laws extends well beyond those which prescribe sanctions. It
includes any law which imposes disadvantages on certain options and which is
coercive in either intent or outcome. Specific taxation measures, for instance, may be
designed to price a commodity or activity out of the market, or they may have the
eVect of doing so. Death duties, for example, may be knowingly tailored to compel
the sale of land holdings, thereby breaking up large estates, or may unwittingly have
that outcome. Similarly, measures such as those setting out safety requirements, or
restrictions on the time and place when certain activities may be undertaken may
prevent those activities from taking place. Undesirable activities may be placed under
zoning requirements, for example, which seek to render them unprofitable. The idea,
therefore, that sanctions are necessary for rational compulsion is erroneous. Other
legally prescribed disadvantages can be equally coercive.
5. The Place of Sanctions

The preceding section has explained why sanctions are not necessary for law to be
coercive. The purpose of this section is to explore whether the fact that a law is
sanction-imposing is always suYcient for it to be coercive. The analysis of coercion
suggests two ways in which sanctions may fail to coerce. The first is that they may
simply not be severe enough to provide a suYcient reason for acting as directed. They
may thus fail in their outcome. The second is that sanctions may not be intended to
coerce, i.e. the justification for their imposition may not be that they will thereby
compel compliance.
That sanctions may not succeed in coercing is obvious enough. The dis-advantage
which is set for non-compliance may not be suYcient to outweigh the reasons which
the members of the class to which they apply would ordinarily have for acting
otherwise. A penalty may be set too low to begin with, and people may be quite happy
to pay it in the case of detection. Or the size of a penalty may diminish over time due
to eVects such as inflation, or changing attitudes towards particular kinds of sanctions.
Alternatively, a penalty may remain fixed while the attraction of the conduct it is
meant to prevent increases.
It is not obvious, however, that a sanction can fail to coerce due to the lack of
intention to do so. Surely a sanction just is a disadvantage which is prescribed in order
to deter behaviour?37 This is a common assumption, but it is not clearly right. What,
after all, are sanctions? The concept of a sanction is quite vague–much vaguer than the
concept of coercion discussed above. In certain areas within legal doctrine sanctions
are well defined. Thus the concept of sanctions in public international law is explicitly
articulated as part of a series of doctrines on how states may be justifiably treated. But
our concern is with how, from an ‘external’, jurisprudential standpoint, to characterize
certain legal measures, rather than with the characterizations provided internally by
particular areas of legal doctrine.
37
See Oberdiek, above n 6 at 75–7 and J. Raz, Practical Reason and Norms, above n 6 at 160.
To a significant extent, therefore, a characterization of sanctions will be based on its

theoretical usefulness, rather than on deepening our grasp of a concept with an
established role in our understanding. It will still conform to a large extent to our
uncritical judgments of what are and are not sanctions, but it will attempt to put this
on a more consistent and systematic basis in a way that serves our goal of isolating an
important type of legal measure.38
Two points seem incontrovertible. Sanctions are disadvantageous: they involve
some loss, such as the forfeiture or suspension of a benefit or expectation or right, or
the imposition of some additional burden, such as the application or extension of a
penalty or duty. Bentham departed from this element, regarding rewards as ‘praemiary
sanctions’ on the basis that rewards as much as dis-advantages could motivate
compliance.39 But given the ordinary conception of sanctions, and their link to such
concepts as coercion, deterrence, and pun-ishment, there seems little reason to
abandon this element. Secondly, sanctions are related to wrongs: they are imposed in
consequence of the commission of a wrong, i.e. for the breach of a duty. More
precisely, the reason for the imposition of the disadvantage is because of the breach of
the duty. Not every disadvantage which is prescribed by law is thought to be a
sanction. Taxes, for example, are not, nor is the necessity to fill in forms when
claiming some benefit, nor the court fees for commencing a case, nor the attendance
for an interview to obtain some status (such as marriage or a passport), although all of
these requirements are, in various ways, disadvantageous. The same is true of
requirements such as jury service, giving evidence as a witness, and being conscripted
to fight. Again, there seems no reason to modify this element of the conception of a
sanction: it is only disadvantages which are imposed in virtue of the violation of some
duty which constitute sanctions, rather than disadvantages which are imposed for
other reasons. The reasons for which a disadvantage is prescribed is relevant to both
our evaluation of the disadvantage itself and our evaluation of the person who renders
themselves liable to it.40
This suggests the following picture: sanctions are disadvantages which are
prescribed for the breach of a duty. The common assumption, on the other hand,
entails that this is not suYcient: a sanction must not only be a disadvantage prescribed
for the breach of a duty, but a disadvantage prescribed for a breach of duty in order to
deter that breach. Now both of these views have their merits, but it seems unnecessary
to narrow the class of sanctions further by restricting
38 Oberdiek’s paper, above n 6 at 75–9, contains a very helpful discussion. One complication here lies in the fact that the
concept of a sanction plays such a prominent role in the theories of both Austin and Kelsen. The influence of these theories
has undoubtedly altered the understanding of sanctions among those with a theoretical interest in law.
39 J. Bentham, Of Laws in General (ed. H.L.A. Hart) (1970) 134–6, 144–5. Of course Bentham’s usage is intentionally
stipulative: he was attempting to reconceptualize law as a whole in a systematic and metaphysically defensible manner.
Piecemeal criticisms of his definitions, therefore, have little weight as objections to this larger project.
40 This second element is another reason for resisting Bentham’s suggested extension of the concept of a sanction.
it to those disadvantages which deter until we have considered what this might
exclude.
There are two erroneous bases for the idea that the reason for imposing a sanction
must be to deter a breach of duty. The first is the obvious fact that many sanctions are
imposed in order to deter violations of duties: a multitude of legal penalties exist to
perform this function. But this does not show that they have to be. The second is the
fact that all sanctions, by virtue of being disadvantageous, apply some rational
pressure against the violation of a duty: in some circumstances this may be severe
enough to provide a suYcient reason to comply with the duty. Deterrence and coercion
are not, of course, equivalent: although they can coincide, and certainly shade into one
another, to deter is not necessarily to coerce. To deter is strongly to discourage, i.e. to
provide a strong reason for (not) engaging in some conduct, but to coerce is to provide
a suYcient reason. Still, a sanction which deters may well occasionally coerce: it may
be coercive in the weak sense of having a tendency to coerce in certain situations. The
fact that sanctions will, necessarily, exert some pressure for conformity does not, then,
establish that they must be intended to deter. It merely shows the inherent link
between disadvantages and rational pressure.
On the other hand, it is quite possible for a disadvantage imposed upon a breach of
duty to be prescribed for reasons other than its deterrent value. It may, for example, be
prescribed in order to ensure that amends are made for some wrongdoing, for
example, by requiring the payment of compensation to those whose rights have been
violated or by restoring the status quo.41 On the orthodox view of damages for breach
of contract, the aim of the sanction is to place the innocent party (so far as money can)
in the position that she would have been in had the contract been performed. The aim
of the sanction is not to prevent breaches of contract, but to compensate innocent
parties for breaches. The rules on liability and quantification seem to bear out this
understanding of the rationale of damages in contract.
This is not to ignore the possibility of mixed rationales for sanctions. Some
sanctions may be justified, for instance, both by their compensatory and their deterrent
functions. But if this is so then it would be expected that the deterrent function would
be apparent in some way, for example, in the case of contract damages it should be
manifested in the rules on liability, or remoteness, or quantification. In the case of
contract law, there is clearly a deterrent function in the remedy of specific
performance, which requires contractual obligations to be carried out on pain of being
held in contempt of court, but this is not the case with damages. This is brought out
most vividly by the award of nominal damages for breach of contract: unless there has
been loss, substantial damages will not be awarded. The thought that contract damages
have a mixed rationale sometimes derives from the confusion with a separate
phenomenon, namely,
41
MacCormick emphasizes the non-deterrent understanding of civil damages, above n 33, in ‘The Obligation of
Reparation’ especially at 221–7, and ‘Coercion and Law’ at 239, which leads him to question whether they can be regarded
as coercive.
welcome by-products. It is a welcome consequence of contract damages that they

provide reasons for parties to perform their obligations, but this does not mean that the
justification for their imposition lies in their deterrent eVect. It is simply inherent in
the nature of sanctions that they will provide a reason against breaches because they
make the imposition of a disadvantage conditional upon a breach. Something more is
needed to show that this eVect is part of the rationale for the imposition of the
disadvantage.
Having said that, it is important not to lose sight of the fact that the question over
sanctions concerns the rationale for their legal imposition, rather than the justification
for certain underlying obligations of justice or responsibilities towards others. The
question is what is the reason for the existence of certain legal directives. Take the
case of tortious liability for negligent conduct. The traditional view has been that this
is based on the enforcement of the moral obligations of corrective justice, i.e. like
contract law its rationale is to make amends for wrongfully inflicted loss. It is
arguable, however, that the scope of liability in negligence—the reach of doctrines
such as duty of care, breach, remoteness, and vicarious liability—fit ill with such a
rationale, and that the more plausible account of some parts of modern negligence law
is in terms of the deterrence of accidents and the spreading of loss. 42 If this is so, then
it may be that damages for negligence are at times best seen as sanctions aimed at
deterring breaches of the duty of care, rather than aimed at correcting wrongs caused
by such breaches.
Why does this matter? It matters for the reasons discussed in the preceding section,
namely, in assessing the justification for the imposition of the sanction. If it is true, for
instance, that liability in negligence is at times based on deterrence, it might be argued
that the imposition of liability in this way is not a morally justifiable means of
pursuing the goal of accident reduction (quite apart from whether it is an eYcient
means of doing so). It may be, for example, that it involves imposing losses on
individual defendants which should be met instead by the community at large, and
thus it may be distributively unjust to those defendants since it imposes a burden
disproportionate to the wrongfulness of their behaviour in causing an accident.
Civil damages have traditionally been regarded as sanctions, for example, for
breach of contract, or the commission of a tort. To a certain extent it is a matter of
convenience whether one labels them as ‘sanctions’. What really matters is the
rationale for their imposition. But if one accepts the broader notion of a sanction, then
although in practice sanctions may account for the bulk of legal coercion, their
presence is neither necessary nor always suYcient. Not necessary, since any legally
authorized disadvantage may be intended to or have the eVect of deterring conduct,
most notably taxation. Not always suYcient, because sanctions may be justified for
reasons other than deterrence, and may not be severe enough to have a coercive eVect
(as in the case of nominal damages in contract).
42
J.G. Fleming, An Introduction to the Law of Torts (2nd edn, 1985) 6–8, 11–16, and 173–9.
6. Conclusion
The law is coercive in a variety of ways. It authorizes the use of physical force and the
imposition of disadvantages designed to make people behave in certain ways (such as
to conform to its directives), and some legal uses of force and disadvantages have the
eVect of depriving people of certain options. The law thereby exerts both physical and
rational coercive pressure. The law also uses physical force and disadvantages which
are non-coercive, since they are neither intended to compel conduct nor have the
eVect of doing so. Sanctions are merely one form of disadvantage employed by the
law, albeit the most important in practical terms.
The moral appraisal of law is hampered by law’s inherent complexity and by a

tendency to neglect the nuances of its operation. A key distinction within the law lies
in the contrast between laws which aim to coerce and those which merely have a
coercive eVect. Many laws fall into the latter category, and they are legitimate when
the reasons in favour of the disadvantage with the coercive eVect outweigh the
importance of the options which are eliminated. Laws of this kind do not raise
problems peculiar to the issue of coercion. Most laws involve balancing exercises,
with the gains having to be compared to whatever is lost.
In the case of a law intended to coerce, on the other hand, the justification for the
disadvantage must lie in the need to eliminate the option in question, and it must be
shown that the disadvantage is a necessary and acceptable means of pursuing this
goal. Coercion of this kind matters because the rationale for the imposition of the
disadvantage lies in the attempted elimination of the option. It is not merely that it
involves the deliberate imposition of a disadvantage, though that is important. Nor is it
simply this kind of imposition combined with its eVect on options, though that
obviously matters too. It is the claim that the goal of eliminating the option provides a
sound justification for the disadvantage.
The significance of coercion is often thought to lie in its relationship to personal
autonomy, since coercion narrows the choices available to an individual. But arguably
autonomy only requires an individual to enjoy an adequate range of choices, in which
case particular instances of coercion can leave personal autonomy unscathed. This
may suggest that any general concern with coercion must simply be an expressive
extension of our concern with its interference with autonomy. 43 But in truth autonomy
merely amplifies the significance of coercion in certain types of cases. Coercion
matters, irrespective of autonomy, because of the way it treats individuals—because
of the means by which it seeks to modify people’s conduct. Coercion involves the
deliberate imposition of a disadvantage on another, whether threatened or executed, in
order to alter their options. Coercion is hostile. It is often justified and necessary. But
it treats people as hostages to their choices, and it requires a special sort of
justification—one
43
Raz, above n 14 at 377–8. This view of the significance of coercion focuses on its consequences and helps to explain
our concern with actions which are unintentionally coercive.
that shows that the pressure is a legitimate means of eliminating a particular outcome–
whether or not it also invades their autonomy.
It is this special justificatory burden that makes it important to maintain a well-
defined characterization of coercion—one that identifies coercion on the basis of its
salient aspects. And it this which has led liberals and others to seek general principles
to identify the appropriate bounds to the legal use of coercion. At the same time, it is
important to see that the law is both more and less coercive than is ordinarily
supposed. More coercive, because a far wider range of measures than physical force
and sanctions can be used to coerce. Yet less, because rational compulsion can be
achieved by the threat of disadvantages far removed from the use of physical
punishments or the loss of fundamental rights. It is sometimes said that the appropriate
restrictions on the use of legal coercion has been found in the ‘harm principle’.
Nothing in this article directly casts doubt on the correctness of this position. But if we
reflect on the diVering kinds and degrees of pressure involved in physical and
(particularly) rational coercion, we might wonder why harm—however it is
characterized–is thought to be the only value capable of justifying its application.

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Oxford Journal of Legal Studies, Vol. 20, No. 1 (2000), pp.

The Coerciveness of Law

This article seeks to make a contribution to that task by demonstrating that

2. Legal Considerations and Legal Institutions

4 H.Kelsen, Pure Theory of Law (trans. M. Knight) (1970) 71, 233–6.

Although some cases of rational compulsion are closely related to physical

4. The Ambiguities of Coercion

Equally, it would be an oversimplification to regard the task of developing an

In providing a philosophical account of coercion we are seeking an account which

A. Three conceptions of coercion

The alternative view of action-inducing coercion often derives from a tempting

The rights-violation approach to understanding the evaluative significance of

19 A. Wertheimer, Coercion (1987) 217–18, followed by Edmundson, above n 15 at 80–2.

In considering the coerciveness of law we are concerned with the action-inducing

23 J. Locke, Two Treatises on Government, II, 27, 33.

the threatened imposition of a disadvantage as their means of securing a particular

authorizes or prescribes compulsive measures. It is important to determine whether

5. The Place of Sanctions

To a significant extent, therefore, a characterization of sanctions will be based on its

welcome by-products. It is a welcome consequence of contract damages that they

The moral appraisal of law is hampered by law’s inherent complexity and by a

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