This paper addresses the relationship between law and coercive force. It defends, against Frederick Schauer's contrary claims, the following propositions: The force of law consists in three things, not one: the imposition of duties, the use of coercion, and the exercise of social power. These are different and distinct. Even if coercion is not part of the concept of law, coercion is connected to law many important ways, and these are amply recognized in contemporary analytic jurisprudence. We cannot determine how (...) important coercion is to the efficacy of law until we know what counts as coercive force. The question of what counts as coercion is not a matter for generalization or stipulation. It requires an explanation of the concept of coercion. (shrink)

Legal rationalist: law claims to give its subjects reasons for action. Normative reasons intuition: Reasons for action being key, the obvious way to establish that law makes a practical difference in people's deliberations is by arguing that the law claims to give reasons for action to its subjects. Explanatory Reasons Intuition: "And while it is possible to be confused about our normative reasons, it seems unlikely that everyone is confused all the time; so the fact that people consistently take the (...) law as their motivating reason and guide their conduct by the law does seem to suggest that the law does provide normative reasons for its subjects." And if it’s a necessary feature of law that it claims authority, then the argu- ment seems to establish that law claims to provide reasons for its subjects. Schematically the argument as a whole goes like this: The law claims to be a legitimate authority. If a legitimate authority directs a subject to φ the subject is obligated to φ ). The fact that an agent is obligated to φ is a reason for her to φ. So the law claims that its directives are reasons......Obligations as Reason-Giving : the fact that A is obligated to φ is itself a reason for A to φ. Unfortunately for the Legal Rationalist, OAR is false. Legal obligation has certain features which mean that the fact that a certain action’s being legally obligatory cannot itself constitute a reason to perform that action." Will explain away the intuitions in terms of triggering, and show how law can make a normative difference that is consistent with the falsity of OAR. Law's claim, and normative impact, can be captured exclusively in terms of second-order reasons. PartofwhatHartisafterhereistheideathatdeliberationon the matter of whether or not to φ is closed or settled by the obligation. But deliberation is cut off because the law has reached some sort of conclusion or answer or verdict on the question of whether or not to φ. The legal obligation not to φ contains a practical verdict about φing: it is not to be done. This idea – that the legal obligation not to φ provides or contains a verdict that φing is not to be done – is the idea that legal obligation is verdictive. For something to be verdictive is for it to express or embody a verdict or conclusion as to what ought to be done. It is plausible to say that wrongness is verdictive. So to say that such-and-such an action would be wrong is to express a verdict on that action – it is one which should not be done. To get a handle on the idea of the verdictive it helps to contrast it with the contributory. A contributory consideration is one which contributes to the verdict, by increasing the weight on the verdict’s side. So that φing would harm someone, or would cause extreme suffering, or would have costs that vastly outweighed any benefits, say, would be contributory considerations on the side of the verdict that φing would be wrong." "Wrong" is verdictive, and so it cannot itself be a reason for the action - it cannot be a reason for itself. Obligation and wrong in law are very close, and obligation should be treated as verdictive. This shows us that OAR is false. (shrink)

According to a recent wave of work by legal anti-positivists, legal norms are a subset of moral norms. This striking “one-system” view of law has rapidly become the dominant form of anti-positivism, but its implications have so far been little tested. This article argues that the one-system view leads systematically to untenable conclusions about what legal rights and obligations we have. For many clear legal norms, the view lacks the resources to explain the existence of corresponding moral norms. And its (...) criteria for distinguishing legal norms within morality imply an under- or over-inclusive set of legal norms. I stress the special difficulties that apply beyond obligations, in the case of privileges and powers, and I show that the view's problems do not only—or mainly—concern egregiously unjust law, or indeed morally defective law at all. I close with reflections on legal normativity and the prospects for different forms of anti-positivism. (shrink)

What do normative terms like “obligation” mean in legal contexts? On one view, which H.L.A. Hart may have endorsed, “obligation” is ambiguous in moral and legal contexts. On another, which is dominant in jurisprudence, “obligation” has a distinctively moralized meaning in legal contexts. On a third view, which is often endorsed in philosophy of language, “obligation” has a generic meaning in moral and legal con- texts. After making the nature of and disagreements between these views precise, I show how linguistic (...) data militates against both rivals to the generic meaning view, and argue that this has significant implications for jurisprudence. (shrink)

In this paper, I examine the terms on which John Simmons rejects all arguments for a moral obligation to obey the law and so defends “philosophical anarchism.” Although I accept his rejection of several criteria on which others might and often do insist, I criticize his reliance on the conditions of “generality” and “particularity.” In doing so, I propose an alternative to his influential conception of legitimacy.