Professional Documents
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1 Semester Nature of Law
1 Semester Nature of Law
LAW IS COERCIVE
Throughout human history the law has been known as a coercive institution, enforcing its
practical demands on its subjects by means of force, threats and violence. This conspicuous
feature of law made it very tempting for some philosophers to assume that the normativity of law
resides in its coercive aspect. Coercion is an essential feature of law, distinguishing it from other
normative domains.
In law’s coercive aspect, there are several issues entangled here, and we should carefully
separate them. John Austin famously maintained that each and every legal norm, as such, must
comprise a threat backed by sanction. This involves at least two separate claims: In one sense, it
can be understood as a thesis about the concept of law, maintaining that what we call “law” can
only be those norms which are backed by sanctions of the political sovereign. In a second,
though not less problematic sense, the intimate connection between the law and the threat of
sanctions is a thesis about the normativity of law. It is a reductionist thesis about law’s normative
character, maintaining that the normativity of law consists in the subjects’ ability to predict the
chances of incurring punishment or evil and their presumed desire to avoid it.
In addition to this particular controversy, there is the further question, concerning the relative
importance of sanctions for the ability of law to fulfill its social functions. Hans Kelsen, for
instance, maintained that the monopolization of violence in society, and the law’s ability to
impose its demands by violent means, is the most important of law’s functions in society.
Law’s only function in society is essentially tied to its coercive aspects. Solving recurrent and
multiple coordination problems, setting standards for desirable behavior, proclaiming symbolic
expressions of communal values, resolving disputes about facts, and such, are important
functions which the law serves in our society, and those have very little to do with law’s coercive
aspect and its sanction-imposing functions.
For example, there may be many reasons that bear on the question of how fast to drive on a
particular road—the amount of pedestrian traffic, impending turns in the road, etc.—but drivers
may comply better with the balance of those reasons by following the legal speed limit than if
they tried to figure out all the trade-offs in the moment. The legitimacy of the legal speed limit
would thus be derived from the way in which it aids people in acting in better compliance with
the balance of the right reasons.
Now, it follows that for something to be able to claim legitimate authority, it must be of the kind
of thing capable of claiming it, namely, capable of fulfilling such a mediating role.
Legal institutions