This article presents a critical reevaluation of the thesis—closely associated with H. L. A. Hart, and central to the views of most recent legal philosophers—that the idea of state coercion is not logically essential to the definition of law. The author argues that even laws governing contracts must ultimately be understood as “commands of the sovereign, backed by force.” This follows in part from recognition that the “sovereign,” defined rigorously, at the highest level of abstraction, is that person or entity (...) identified by reference to game theory and the philosophical idea of “convention” as the source of signals with which the subject population has become effectively locked, as a group, into conformity. (shrink)

Research Articles Christopher W. Morris, Social Philosophy and Policy, FirstView Article.

The relationship between law and coercion has been, and still is, a central topic in legal philosophy. Despite this, discussion about it is immersed in confusion. Some philosophers have noticed this, but hardly any work has been done to attempt to solve or even identify the confusions. This paper aims to fill this gap. Here I propose distinctions and qualifications that help us clarify the relationship between law and coercion and avoid confusion. Building on the clarificatory work, I then argue (...) that despite there being several distinct philosophical discussions about the relationship between law and coercion, one of them should be prioritised. (shrink)

While the rule of law is surely a very important good, the familiar discussions found in the literature lead many to conclude that it is either a relatively trivial political ideal, or else a redundant one. What is needed is a new and persuasive defense of the rule of law that properly reflects its great significance for human well being. An important step towards building such an argument is to question a widely-shared but often unnoticed assumption that the rule of (...) law should be understood as a virtue of legal systems. The path is then cleared for a republican argument built on two theses: first, the thought that an ideal society would be one in which no one is the master of anyone else, and second, the thought that our freedom from domination is not natural or pre-institutional. (shrink)

Though political philosophers often presuppose that coercive enforcement is fundamental to law, many legal philosophers have doubted this. This article explores doubts of two types. Some legal philosophers argue that given an adequate account of coercion and coerciveness, the enforcement of law in actual legal systems will generally not count as coercive. Others accept that actual legal systems enforce many laws coercively, but they deny that law has a necessary connection with coercion. There can be individual laws that lack coercive (...) sanctions, and it is at least conceptually possible for there to be a legal system that lacks coercive enforcement altogether. This article then examines why most political philosophers and some legal philosophers have been reluctant to treat the conceptual possibility of non-coercive law as significant. (shrink)

One of the most conspicuous features of law, as it works in the world of our experience, is that legal norms are characteristically backed by coercive enforcement mechanisms. Nevertheless, many legal philosophers specializing in conceptual jurisprudence believe that coercion is not a conceptually necessary feature of law. In this essay, I argue that the authorization of coercive enforcement mechanisms is a conceptually necessary feature of law. I ground the argument in the Hartian claim that the sense of ‘law’ requiring explication (...) picks out municipal legal systems in the modern state; widely accepted Razian claims about how our legal practices construct the content of our legal concepts; claims showing the centrality of coercive enforcement mechanisms in every paradigm instance of law we have ever known; and logical difficulties arising in connection with explaining legal normativity in a system without such mechanisms. (shrink)

This paper guides the reader through the use of functions in contemporary legal philosophy: in developing those philosophies and through methodological debates over their proper role. This paper is broken into two sections. In the first I canvass the role of functions in the legal philosophies of several mid to late twentieth century Anglo-American general jurisprudents whose theories are still common topics of discussion: Ronald Dworkin, H.L.A. Hart, Lon L. Fuller, John Finnis, and Joseph Raz. In the second, I examine (...) contemporary arguments over the role of functions in the methodology of legal philosophy. (shrink)

Citizenship and residency are basic conditions for political inclusion in a democracy. However, if democracy is premised on the inclusion of everyone subject to collectively binding decisions, the relevance of either citizenship or residency for recognition as a member of the polity is uncertain. The aim of this paper is to specify the conditions for being subject to collective decisions in the sense relevant to democratic theory. Three conceptions of what it means to be subject to collectively binding decisions are (...) identified and examined, referring to those subject to legal duties and legal powers or to those subject to legal duties and state institutions. The contrast between them is most clearly illustrated in relation to non-residents, those not present in the territory of the state. The extraterritorial dimension of the law thus highlights a fundamental ambiguity in the theory of democracy concerning the extension of political rights. (shrink)