#16138 - Law As Coercion - Jurisprudence

Laws, Commands and Orders

• Hart criticizes a concept of law based on commands and habits (most clearly pronounced by Austin)

• In ordinary language we have imperative language – there are requests, pleas, and warnings. There is the order of a gunman (give me money or I shoot you). We perhaps shouldn’t use order or command because they are too associated with the military and thus connote a degree of authority.

• But law is not like the orders of a gunman because:

  • Legal controls are mostly general, in that rather than having officials parade the streets looking for improper conduct which they deem illegal, general forms of directions that aren’t addressed to individuals but to everyone are used instead

  • Laws have ‘standing’ or persistent characteristic – they're meant to bound future classes of the same people time and time again. Gunmen, on the other hand, are not superior to the bank clerk except in that very moment where he’s able to make that threat – there is no continual belief in the consequences of disobedience (the order is not kept ‘alive’)

  • Laws must be followed by most people most of the time, whereas the mere temporary ascendency of one person over another as in the case of the gunman is the antithesis of law

• Thus a closer version to the law is “general orders backed by threats given by one generally obeyed”, where it is “generally believed that these threats are likely to be implemented in the event of disobedience” and the body giving the law must be “internally supreme and externally independent”.

Objections to the model

• Three main groups:

  • Content of laws: there are groups of laws that don’t conform to the order backed by threats model (eg. ways to make valid contracts/wills/marriages – those that provide facilities for achieving certain ends)

    • But laws that govern courts’ jurisdiction seem different – if I didn’t have two signatories to my will, it is void. But if a court surpasses its jurisdiction, its decision stands until (and unless) it is quashed by a higher court

    • Statutes conferring legislative power on subordinate legislators cannot be assimilated with a general order

      • However the desire for uniformity is strong, so we should consider arguments that these differences in variety of laws is superficial and that the ultimat notion of orders backed by threats is adequate:

        • Nullity as a sanction – objections:

          • Nullity may not be an ‘evil’ to the person who failed to satisfy the conditions required for validity

          • Criminal sanctions can identify an undesirable social conduct and sanction intended to prohibit it – this is not true of power-conferring laws, which seek to encourage conduct if anything

          • With criminal law it might be logically desirable or possible for these rules to exist without punishment (we can distinguish the rule prohibiting behavior and the provision for penalties) whereas the same cannot be said of power-conferring laws

        • Power-conferring rules as fragments of laws – laws do not prohibit conduct, they merely order officials to apply certain sanctions in certain circumstances (more extreme form); laws intended to govern the ordinary citizens are seen as orders backed by threats but power-conferring rules are seen as “if… then” constructions (if a will has been signed then the official shall recognize it)

  • Mode of origin of laws

    • Custom conflicts with the gunman view

      • But whether or not custom is law is subject to debate

      • Even if it is it’s a subordinate source of law in that it can be displaced by statute and whether courts recognize them in the first place is subject to discretion (eg. by applying ‘reasonableness’ test)

      • Objections:

        • Nothing can be law until someone orders it to be so (custom is not law until courts apply it)

        • Status of custom as law is due to the sovereign’s tacit order

  • Range of application of laws

    • The top-down view of authorities making laws binding its subjects can only be reconciled with political realities if an authority in his official capacity is separated from his private capacity (an official in official capacity creates rules that bind everyone including himself in his private capacity

    • Perhaps the better view is that legislation is the introduction of general standards of behavior to be followed by society generally; thus, the legislator is not like giving orders (outside the reach of what he does) but like making a promise, he must fall within the ambit of the promise (rule) he makes

Sovereign and the Subject

• In criticism of theory of orders backed by threats it’s necessary to consider whether there is always a sovereign who makes laws and who this sovereign is

Habit of obedience

• Habit of obedience – say people over time acquire a habit of doing (inter alia) what the sovereign orders him to do

  • Then nobody needs to express a view on whether his or others’ obedience is right/proper/legitimately demanded

• Differences between habit and law:

  • Habit is enough for behavior to converge in fact but for a law deviation must be considered wrong

  • For a law deviation from the standard should be considered a good reason for criticism

  • Laws have an internal aspect in that people strive to maintain it and view it as a general standard to be followed by the group of people as a whole

The persistence of law

• Laws clearly cannot be regarded as valid for the legislator’s lifetime only, but how do we recognize continued recognition of past laws?

  • Past statutes owe their present legal status to the acquiescence of the present legislature? This is surely wrong because courts when applying statutes don’t distinguish based on the acquiescence of present legislatures

• Discussion is premised on the assumption that governments want to stay in power, and to make the nations they govern prosperous/powerful/religious/eminent. To do so they use force, but this force can never be used no matter how beneficial except as licensed by rights and responsibilities flowing from past political decisions about when collective force is justified

• Law of a community license coercion because they flow from past decisions of the right sort

• Three conceptions that try to answer questions like why there needs to be a link and what sort of link? Is there a point to requiring licensing of coercion and what is it?

  • Conventionalism: the point of law’s constraint on coercion is predictability and procedural fairness; the link needs to be strong enough that the past decision states explicitly the rights and responsibilities in question, or that these be made explicit through other means accepted by the legal profession. No other link to history is needed.

  • Legal pragmatism: No link needed between decisions and the past; judges should do whatever they think best for community’s future rather than trying for consistency and valuing it for its own sake (rejects the concept of law as legal rights)

  • Law as integrity: accepts the concept of law as legal rights but considers the link as not just allowing procedural fairness/predictability but also equality among citizens which makes the community more genuine and improves the moral justification for exercising political power

• Law and morality

  • “Popular morality” is not law because the law depends not on passive views but positive commitment because authorities have enacted these views into law, but a different conception of the law may make what counts as law depend on popular morality and the explicit content of executive decisions

  • Law is also not synonymous with justice because it again depends on the theory that you identify with – it is permissible to hold that when executive decisions are unclear then justice plays a role in interpretation, but the natural law/legal positivism debate may place a greater role on justice

• Whether the Nazis had law can be a question of semantics – it is perfectly right to say that a wicked system doesn’t have laws despite having established principles of governance. But at the same time it’s possible to say that they did have law because they had the essential features of a legal system (this approach is positivist). But the answer to the question doesn’t matter, because we would know that when someone says whether Nazis had/didn’t have law they’re not making a value judgment of Nazis but rather adopting different conceptions of the meaning of ‘law’

• Central idea: coercion is relevant to the explanation of law if an adequate explanation of how it is that certain political facts constitute distinctively legal obligations must necessarily refer to some coercion-involving fact

• Interpretations:

  • Threat of sanction is constituent in every law (as an aspect of nature of laws or as generalization about actual laws)

  • Nature of law claims authority to regulate coercion

  • Descriptive: legal obligations not honored are coercively enforced

  • Normative: government may exercise coercion only if it is allwed by law

• What is coercion?

  • Coercer interferes with coercee’s alternatives as to lead him to take the course of action that the coercer wants him to take (by changing the balance of reasons)

  • This is often thought to be a necessary but insufficient element to constitute coercion

• When is coercion permissible?

  • Coercion is thought to be in principle objectionable but subject to justification based on consideration of transition of subject’s situation before interference to results of interference

  • Maybe coercion is only objectionable...