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Law and Coercion
What do we mean when we ask 'What is law?'
Shapiro: There are two main questions inherent in asking about what the law is:
(a) The essential question - what are the essential parts of the law? What distinguishes it from other things?
(b) The necessary question - what are the necessary features of the law?
a. These features can be shared by other normative systems
What do we mean by 'coercion'?
Coercion can be defined in multiple various ways:
(a) Deterrence conception a. Lamond: An action is coercive when it intentionally or unintentionally creates a deterrent incentive that gives people reason to avoid certain conduct: in other words, it is coercive in effect. This is opposed to being coercive in intent.
i. Hughes: Some sanctions are not coercive given that the incentive they provide is not powerful enough to deter action.
1. On this view coercion is a subjective concept (depending upon the deterrence impact on an individual) untenable position ii. Some sanctions' purpose is not deterrence but some other end, e.g.
compensation assumes an obvious deterrence/compensation dichotomy, which might not exist.
(b) Punishment conception a. According to Hughes, political philosophers tend to assume that law is coercive if it threatens imprisonment, fines, punitive damages or other sanctions for non-compliance.
i. It is questionable how far the punitive conception could be applied to the law of contract or wills - there is no mention at all about the voluntary assumption of obligations.
(c) Morality conception a. Haskar: A proposal will only count as a threat if it is a proposal to do something morally impermissible.
i. Dworkin would object, asserting that coercion is justified by the existence of law.
(d) Threat conception a. The Hart/Austin debate understands coercion to basically refer to threats
(seemingly of a physical nature), e.g. the gunman in the bank.
In considering the necessary relationship between law and coercion, a more restrictive approach (threat of violence) should be adopted over a broader sense of the term
(deterrence conception) given that a finding of a necessary relationship in the case of the former will necessarily find one in the case of the latter. Sanctions are the most common form of coercion. Other forms of coercion (e.g. police patrolling the streets ensuring people are not leaving their houses) are possible, but uncharacteristic of western democratic societies.
Non-coercive factors that make us follow the law: (a) socialisation, (b) social pressure, (c)
1. Are individual laws necessarily coercive?
Austin - laws as orders backed by threats, originating from a sovereign
(a) Laws = orders backed by threats of sanction (a "command"). There are some key components of a command:
a. Commands are significations of desire, but different from other significations of desire because non-compliance renders the command-ee liable to evil from the command-er.
i. The magnitude of the evil is irrelevant. The smallest chances of incurring the smallest of evils is sufficient.
b. The command-ee will be bound or obliged by the command.
i. Thus, command and duty are correlative terms.
(b) Sanctions are laid down when laws are breached.
a. It is the power and purpose of inflicting eventual evil, and not the power and the purpose of imparting eventual good, which gives to the expression of a wish the nature of a command.
(c) All laws are set by a sovereign.
a. Two important aspects to this part of the definition:
i. Legal commands are to be distinguished from occasional commands to the extent that a law is a command which obliges persons generally to acts of forbearance of a class ii. Laws therefore proceed from superiors and bind or oblige inferiors
Hart's objections to Austin - legal provisions which do not fit with 'orders backed by threats'
Hart objected that not all legal provisions constitute orders backed by threats:
(a) Power-conferring rules a. Power-conferring rules either provide individuals with facilities for realising their desires (e.g. formation of contracts or wills) OR relate to the various branches of government.
b. Thus there are two basic categories of law: (i) power-conferring rules, and (ii)
duty-imposing rules. Austin and Kelsen object:
i. Austin: Non-compliance with power-conferring rules results in nullity:
nullity = sanction.
1. Hart: With power-conferring rules, there is no rule without the nullity (it would just be describing circumstances without any effect). Thus there is no 'order backed by a threat'. Nullity is not a sanction, but part of the rule extending the term
'sanction' to include nullity would be artificial.
a. BUT: Why is it the case that the sanction cannot form a part of the rule in question? Hart's only reason for this is that, in his view, it is simply not the case. Surely whether or not something is a sanction should be concerned with the effect it has on a relevant individual.
b. Sanctions are reactionary. Therefore, nullity is not a sanction. (see end of condensed notes for my argument)
c. Nullity - nothing is taken away from you no setback to interest.
2. Hart: Sanctions are used to discourage certain conduct. Nullity is not to discourage certain conduct.
a. Frustrating a (legitimate) expectation is punishment in a similar light to that of the criminal law.
b. The point of formalities relating to contract and wills is the creation of a cohesive system by which agreements can be given effect to. Failure of a legal system to do this potentially causes similar civil unrest as the failure to conform to criminal law. In this sense, not conforming to the cohesive system is conduct which should be discouraged.
ii. Kelsen: Laws are conditional orders to officials to apply sanctions.
Kelsen attempts to narrow the concept of a 'legal rule' so as to exclude power-conferring rules. He says that power-conferring rules are mere fragments of real laws: they constitute the 'if-clause' of conditional orders backed by threats.
1. Hart: The 'fragment' argument seeks unification at too great an expense: power-conferring and duty-imposing rules simply work in different ways. Kelsen's approach obscures the way in which such rules operate; it only assumes the 'bad man's view of law', but law is not just for the bad man.
c. Raz also points out that it is possible to have sanction-less legal duties. This is proved by (a) diplomatic immunities, (b) judicial duty to apply the law, (c)
limitation periods on debts: if the debtor pays the creditor after the 6yr limitation period, the debtor cannot claim back the money paid the duty to pay continues even if the creditor cannot enforce the payment.
i. Q: Is the HRA declaration of incompatibility a recognition that duties can be breached without sanctions being imposed?
(b) Criminal statutes
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