In modern jurisprudence it is taken as axiomatic that John Austin's sanction-based account of law and legal obligation was demolished in H.L.A. Hart's The Concept of Law, but Hart's victory and the deficiencies of the Austinian account may not be so clear. Not only does the alleged linguistic distinction between being obliged and having an obligation fail to provide as much support for the idea of a sanction-independent legal obligation as is commonly thought, but the soundness of Hart's claims, as (...) well as the claims of many legal theorists who have followed him, depend on a contested view of the nature of legal theory. If the task of a theory of law, as Joseph Raz and others have influentially argued, is to identify the essential features of the concept of law, then the theoretical possibility, if not the empirical reality, of a sanction-free legal system is what is most important. But if the task of a theory of law is to provide philosophical and theoretical illumination of law as it exists and as it is experienced, then a theory of law that fails to give a central place to law's coercive reality may for that reason be deficient as a theory of law. The question of the soundness of the Austinian account, therefore, may be a function of the answer to the question of what a theory of law is designed to accomplish. (shrink)

This essay differentiates two approaches to understanding the concept of coercion, and argues for the relative merits of the one currently out of fashion. The approach currently dominant in the philosophical literature treats threats as essential to coercion, and understands coercion in terms of the way threats alter the costs and benefits of an agent’s actions; I call this the “pressure” approach. It has largely superseded the “enforcement approach,” which focuses on the powers and actions of the coercer rather than (...) the perspective of the coercee. The enforcement approach identifies coercion with certain uses of the kinds of powers that agents need to accumulate and wield in order to be able to make significant, credible threats. Though there is considerable overlap extensionally in the instances of coercion recognized by the two approaches, the enforcement approach encompasses some uses of power to coerce that do not involve threats . It also circumscribes which threats should be counted as coercive, though notably it provides a picture of coercion that is non-moralized in its essentials. While there may be specific purposes for which a pressure account is to be preferred, I argue that the enforcement approach better describes how coercion works, and elucidates factors that are often tacitly assumed by pressure accounts. It also is more useful for explaining the social and political significance of coercion, and why coercion is thought to have the implications commonly associated with it. In particular, I argue that it helps us understand why uses of coercion are in general a matter of ethical significance, why state authority depends on commanding a monopoly on the right to use coercion, and why being coerced may reasonably provide one a defense against being held responsible for actions one is coerced into taking. (shrink)

This is the penultimate draft of a paper originally presented at the Hart-Fuller at 50 conference, held at the NYU Law School in February 2008. A revised version will appear in the NYU Law Review. The paper seeks to clarify and assess HLA Hart's famous claim that legal positivism somehow involves a 'separation of law and morals.' The paper contends that Hart's 'separability thesis should not be confused with the 'social thesis,' with the 'sources thesis,' or with a methodological thesis (...) about jurisprudence. Hart's thesis denies the existence of necessary (conceptual) connections between law and morality. But that thesis is false: there are many necessary connections between law and morality, some of them conceptually significant. Among these is an important negative connection: law is of its nature morally fallible and morally risky. Lon Fuller emphasised the 'internal morality of law,' the 'morality that makes law possible'. Hart stressed that there is also an immorality that law makes possible. Law's nature is seen not only in its internal virtues, in legality, but also in its internal vices, in legalism. (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 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)