COERCION AND THE NATURE OF LAW argues that it is a conceptually necessary condition for something to count as a system of law according to our conceptual practices that it authorizes the imposition of coercive sanctions for violations of some mandatory norms governing non-official behavior (the Coercion Thesis). The book begins with an explication of the modest approach to conceptual analysis that is deployed throughout. The remainder of the book is concerned to show that an institutional normative system is not reasonably contrived to do anything that law must be able to do for us to make sense of why we adopt systems of law to regulate non-official behavior unless we assume that mandatory norms governing that behavior are backed by the threat of a sovereign; an institutional normative system that satisfies every other plausible existence condition for law is not reasonably contrived to give rise to either objective or subjective first-order motivating reasons to comply with mandatory norms governing non-official behavior unless they are backed by the threat of a coercive sanction. Law’s presumed conceptual normativity can be explained only by the Coercion Thesis.
Author(s): Kenneth Einar Himma
Series: Oxford Legal Philosophy
Publisher: Oxford University Press
Year: 2020
Language: English
Pages: xiii, 273 pages
City: New York
Copyright
Preface
Contents
1 The Coercion Thesis
1. Ambiguities of the Concept-Term Law
2. The Coercion Thesis
2.1 What Is Coercion?
2.2 What Is a Sanction?
2.3 What Is a Coercive Sanction?
2.4 The Imposition of Coercive Sanctions for Non-Compliance Is Authorized by the Norms of the System
2.5 Sanctions Are Authorized as Judicial Response to Non- Compliance with Some, and Not Necessarily All, Mandatory Norms of the System
2.6 Sanctions Need Be Authorized Only with Respect to Non-Official Behavior
2.7 Sanctions Are Authorized for Some Mandatory Norms Prohibiting Acts that Breach the Peace
3. The Coercion Thesis and Morality
4. The Coercion Thesis and the Motivations of Subjects
5. Outline of the Arguments
2 Methodology and the Nature of Law
1. Explicating the Metaphysical Nature of a Thing: Three Types of Modal Claim
2. Conceptual Analysis as a Descriptive Enterprise
3. The Distinguishing Task of Conceptual Analysis
4. Modest and Immodest Conceptual Analysis
5. The Relevant Philosophical Assumptions Are Ours
6. Modest Conceptual Analysis and Objective Truth
7. The Logical Structure of a Modest Conceptual Analysis
3 A Prima Facie Case for the Coercion Thesis: Sanctions as a Paradigmatic Feature of Municipal Law
1. The Meaning of the Term Law as Defined by the Canons of Ordinary Usage
2. Types of Coercive Sanction in Modern Municipal Law
2.1 Criminal Punishment and the Court’s Authority to Hold a Party in Contempt
2.2 Do Compensatory Damages Count as Coercive Sanctions?
2.3 Is Non-Enforcement of Improperly Formed Instruments a Coercive Sanction?
2.4 Criminal Law, Civil Law, and the Coercion Thesis
3. The Ubiquity and Centrality of Coercive Sanctions in Existing Municipal Legal Systems
4. Sanctions as a Paradigmatic Feature of Law: A Prima Facie Case for the Coercion Thesis
4 What Law Must Be Able to Do: The Coercion Thesis and the Need to Keep the Peace
1. The Concept of an Artifact
2. Characteristic Uses, Basic Purposes, and Conceptual Functions of Artifacts
3. The Problem an Artifact is Needed to Solve as Defining Its Conceptual Function
4. Something Must be Reasonably Contrived to Perform the Conceptual Function of an Artifact to Be Properly Characterized as an Artifact of That Kind
5. The Conceptual Function of a Legal System
6. Keeping the Peace and Authorized Coercion
5 Three Conceptual Problems of Legal Normativity: The Logical Space of Reasons
1. The Concept of Normativity
2. The Logical Space of Reasons
2.1 Epistemic and Practical Reasons
2.2 Defeasible and Conclusive Reasons
2.3 Subjective and Objective Reasons
2.4 Motivating and Justifying Reasons for Action
3. The Character of the Reasons to Which the Practices Constitutive of Law Are Reasonably Contrived to Give Rise
3.1 The Relevant Reasons Are Practical Reasons and Not Epistemic Reasons
3.2 The Relevant Practical Reasons Are Defeasible Reasons and Not Conclusive Reasons
3.3 The Relevant Reasons Are Motivating Reasons and Not Justifying Reasons
3.4 The Relevant Reasons Are Objective and Not Subjective Reasons
3.5 The Relevant Motivating Reasons Must Be Both Novel and Content-Independent
3.6 Law Must Be Reasonably Contrived to Provide the Relevant Reasons and Not Merely Capable of Doing So
4. Three Conceptual Problems of Legal Normativity
6 The Coercion Thesis and the How Problem of Legal Normativity
1. Vindicating the Coercion Thesis (1): Authorized Coercive Sanctions Solve the How Problem of Legal Normativity
1.1 The Threat of a Coercive Sanction Gives Rise to Motivating Prudential Reasons
1.2 The Motivating Prudential Reasons Are Defeasible
1.3 The Motivating Prudential Reasons Are Objective
1.4 The Objective Motivating Prudential Reasons Are Novel and Content-Independent
1.5 The Relevant Practices Are Reasonably Contrived to Provide Objective Motivating Prudential Reasons to Comply
1.6 Conclusion: The Coercion Thesis Explains Law’s Presumed Conceptual Normativity
2. Vindicating the Coercion Thesis (2): There Is No Other Plausible Explanation for Law’s Conceptual Normativity
2.1 The System Satisfies Hart’s Minimum Conditions for the Existence of a Legal System
2.2 The System Must Contain Norms Governing Non-Official Behavior that Reproduce the Minimum Content of Natural Law
2.3 The System Must Be Metaphysically Capable of Instantiating Morally Legitimate Authority
2.4 The System Must Include Norms Metaphysically Capable of Motivationally and Epistemically Guiding Behavior
2.5 Conclusion: Only the Coercion Thesis Can Explain Law’s Presumed Conceptual Normativity
3. Are Objective Motivating Prudential Reasons the Wrong Kind of Reason to Solve the How Problem of Legal Normativity?
4. Does It Matter that It Is Not the Valid Norms Governing the Subject’s Behavior That Provide the Objective Motivating Reason to Comply?
5. Coercive Sanctions and the How Problem of Legal Normativity
7 The Coercion Thesis and the Order Problem of Legal Normativity
1. First-Order, Second- Order, and Exclusionary Reasons
2. Sanctions, Exclusionary Reasons, and the Problems of Legal Normativity
3. The Basic Sources of Objective Motivating Reasons for Action
4. Only the Coercion Thesis Can Explain How Mandatory Legal Norms Governing Non-Official Behavior Give Rise to Objective Motivating Exclusionary Reasons
5. Can the Coercion Thesis Explain How Law Creates Objective Exclusionary Motivating Reasons?
6. The Claim That Law Provides Objective Exclusionary Motivating Reasons to Comply Explains Nothing That Needs to Be Explained
8 The Coercion Thesis and the Content Problem of Legal Normativity
1. Intrinsic and Instrumental Motivating Reasons
2. Order and Value: The Relationships Among the Various Kinds of Reason
3. Morality, Conventions, and Intrinsic Motivating Reasons to Comply
4. Law as a Source of Subjective Intrinsic Motivating Reasons to Comply
5. Law as a Source of Objective Intrinsic Motivating Reasons to Comply
5.1 There Is No Plausible Source of an Objective Intrinsic Motivating Reason to Comply
5.2 Objective Norms of Practical Rationality Do Not Require Treating Law as Giving Rise to an Intrinsic Motivating Reason
5.3 Does It Make a Difference If the System Contains Only Legal Norms Reproducing the Content of Mandatory Moral Norms?
6. The Capacity to Give Rise to Objective Intrinsic Motivating Reasons Explains Nothing That Needs to Be Explained about Law
7. The Coercion Thesis and the Problems of Legal Normativity
9 Coercive Sanctions and International Law
1. Ordinary Usages of the Term International Law
2. The System of International Regulation Defined by the U.N. Charter
3. Enforcement Mechanisms Authorized by the U.N. Charter
3.1 Military Enforcement Mechanisms
3.2 Economic Enforcement Mechanisms
3.2.1 The Economic Measures Are Authorized as a Response to Non-Compliance
3.2.2 The Economic Measures Are Intended and Reasonably Contrived to Deter and Punish Misbehavior
3.2.3 The Economic Measures Are Plausibly Thought to Succeed in Helping to Keep the Peace
3.3 Diplomatic Enforcement Mechanisms
4. Objections and Replies
4.1 Are Acts That Merely Withhold a Benefit Not Properly Characterized as Sanctions?
4.2 Does the Veto Power Imply That the Authorized Enforcement Mechanisms Are Not Sanctions?
5. Conclusion: The Normative System Defined by the U.N. Charter Is Not a Counterexample to the Coercion Thesis
10 Can There Be Law in a Society of Angels?
1. Law and Real Angels
2. Law and Razian Angels
3. The Society of Angels and the Canons of Ordinary Usage
4. The Society of Angels and the Conceptual Function of Law
5. The Society of Angels and the How Problem of Legal Normativity
6. The Society of Angels and the Content Problem of Legal Normativity
7. Evaluating the Normative Commitments of the Angels
7.1 The Improbable Oddness of the Angels’ Normative Commitments
7.2 The Practical Rationality of the Angels’ Deference to the Authority
8. Revisiting Existing Legal Systems
9. Conclusions
Appendix: Can There Be a System of Municipal Law with Only Compensatory Damages?
Index
