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Symposium on law and coercion

Coercion, function, and the “why” of law

Comments on Kenneth Einar Himma’s Coercion and the Nature of Law
Brian H. Bix

Abstract

In Coercion and the Nature of Law, Kenneth Einar Himma offers a methodical analysis of the role of coercion in understanding the nature of law. Himma’s work combines conceptual analysis, artifact theory, and functional analysis, ultimately concluding that for a social system to be “law” it must include coercive sanctions. The present article offers an overview of Himma’s arguments, ultimately focusing on the discussion about law’s function. In considering the problem of law’s function, the article contrasts Himma’s view with the views of John Finnis and Mark Greenberg.

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1 Introduction

  • 1 Himma 2020.

1In Coercion and the Nature of Law,1 Kenneth Einar Himma offers a masterful and methodical analysis of the role of coercion in understanding the nature of law, ultimately staking out a position contrary to that taken by some of the most influential figures in modern legal philosophy. Himma’s work combines conceptual analysis, artifact theory, and functional analysis, in an effort to show that for a social system to be “law” it must include coercive sanctions. The present work will give a brief overview of Himma’s novel combination of analytical approaches and the conclusions he draws, comparing his approach to some other prominent views in contemporary legal philosophy.

2In what follows, Section 2 summarizes Himma’s views on conceptual analysis, Section 3 introduces the author’s “Coercion Thesis,” and Section 4 contrasts Himma’s views regarding law’s purpose with those of John Finnis and Mark Greenberg, before concluding.

2 Conceptual analysis

  • 2 Leiter 2007.
  • 3 Schauer 2015.
  • 4 Cf. Dyzenhaus 2000; Enoch 2019.
  • 5 Himma 2020: 1 (italics removed, footnote omitted).

3It is today common—one might even say “fashionable”—to denigrate conceptual analysis in jurisprudence. Some, following Brian Leiter, describe conceptual analysis as an outdated “armchair” way to do philosophy, an approach that other philosophical disciplines gave up long ago.2 Others are persuaded, by Frederick Schauer, that seeking the “necessary” or “essential” properties of the concept of “law” will only distract us from a different and more central task: determining what is most important about the social practice, law.3 Still others simply think that the project lacks interest.4 In the face of these arguments, Himma unabashedly endorses what he labels “metaphysically driven conceptual analysis.”5

  • 6 Himma 2020: 23.

4One line of objection to conceptual analysis is that it is merely an examination of the theorist’s own intuitions, or, at best, a summary of the conventions of a particular linguistic community. Himma’s response to such concerns is that conceptual analysis can be – indeed needs to be – grounded on a combination of “the canons of ordinary usage governing use of the associated concept-term” and “assumptions about the metaphysical nature of the thing to which the concept-term refers.” In this way, conceptual analysis, though on the surface only about “intersubjective conventions,” “can [still] tell us something about the objective world.”6

  • 7 Himma 2020: 23, 33, 42. Himma adds: “Even if we could ascertain the metaphysical nature of law as i (...)
  • 8 See Jackson 1998; Himma 2020: 33–38. In Legality, Scott Shapiro also appears to endorse and use som (...)
  • 9 Himma 2020: 35. This is in contrast to “immodest” conceptual analysis – rejected by both Jackson an (...)
  • 10 Himma 2020: 49.

5Under this approach, to analyze a concept is to analyze a category defined by our practices, primarily, though not exclusively, our linguistic practices.7 Himma uses (and endorses) Frank Jackson’s “modest” approach to conceptual analysis, which essentially involves refining common intuitions (“folk theory”).8 Modest conceptual analysis “seeks to understand the metaphysical nature of a thing as it is defined by the conceptual framework we impose on the world through our empirically contingent linguistic practices.”9 There are connections we can study between language and the world: “the canons of ordinary usage are grounded in implicit philosophical assumptions about the metaphysical nature of [a] thing.”10

  • 11 Cf. Laurence & Margolis 2003: “If conceptual analysis comes to regain its position in philosophy, m (...)
  • 12 See Leiter 2007. In Himma 2011, there is a chapter, “The Methodology of Conceptual Analysis,” which (...)
  • 13 Jackson 1998: 31–44.
  • 14 Himma does not himself use the label, “folk theory,” favoring instead to speak of “the canons of or (...)
  • 15 Himma comments: “There is little reason to doubt that the idea that the coercive mechanisms of law (...)

6Himma’s endorsement of Jackson’s approach is central to the argument of Coercion and the Nature of Law in two ways. First, Jackson’s approach is (arguably) the most accepted and most sophisticated defense of conceptual analysis among mainstream philosophers today.11 Adopting Jackson’s version of modest conceptual analysis gives (some) legitimacy to Himma’s use of conceptual analysis, though one might still have wished that the book had offered more direct responses to critics of conceptual analysis, like Brian Leiter.12 Secondly, Jackson’s approach justifies turning to common shared intuitions about a concept as a first step towards analyzing the concept,13 and folk theory14 in the present case (Himma argues) bolsters the view that coercion is central to law.15

  • 16 Himma 2020: 73: “rationally competent self-interested subjects … in worlds of acute material scarci (...)

7Himma’s basic argument is that the (main or primary) function of a legal system is to guide behavior with the ultimate object of keeping the peace, and that, given the realities of our circumstances and human nature,16 this can only be accomplished through the use of coercive sanctions.

3 Himma’s “Coercion Thesis” and functional analysis

  • 17 Himma 2020: 1.
  • 18 Himma clarifies that the requirement is at the level of norm systems; individual norms can be “lega (...)

8From the above analysis, Himma develops his “Coercion Thesis.” The thesis states: “it is a conceptually necessary condition for the existence of a legal system that it backs some mandatory legal norms prohibiting breaches of the peace with the threat of detriment that rationally competent subjects have a practical reason to avoid.”17 That is, something that might otherwise resemble a legal system, would not be (could not be) a legal system if it lacked mandatory norms backed by sanctions. To put it another way, for a social system to count as law (as legal), it must use sanctions to enforce some mandatory norms.18

  • 19 Himma 2020: 231.
  • 20 Hart 2012: 199, quoted in Himma 2020: viii. Hart adds: “We can say, given the setting of natural fa (...)
  • 21 Raz 1990: 159–160; see Himma 2020: viii–ix, 231–253. For a recent defense of the “society of angels (...)

9As Himma points out, this is not, in the context of jurisprudential history, a radical view. The idea that sanctions are a necessary element of law can be found (with varying degrees of emphasis and explicitness) in theorists as diverse as Thomas Aquinas, Thomas Hobbes, David Hume, Immanuel Kant, Jeremy Bentham, John Austin, and Hans Kelsen.19 However, as Himma points out, a number of influential modern legal philosophers have gone in a different direction. H.L.A. Hart argued, in the context of discussing international law: “There are no settled principles forbidding the use of the word ‘law’ of systems where there are no centrally organized sanctions … .”20 And Joseph Raz, in an analysis Himma critiques at length, argues that a society of angels might have need of rules, but would have no need for sanctions, and this system would still warrant the label “law.”21

  • 22 Himma was a co-editor of the collection, Law as an Artifact, Burazin, Himma, & Roversi 2018, and Hi (...)

10Himma’s turn to functional analysis is tied with a focus on law as an “artifact.”22 Artifacts are human products created to serve particular purposes. Viewing law through the rubric of artifact theory fills in important steps in Himma’s argument. He writes:

  • 23 Himma 2020: 91.

If what an artifact is needed, characteristically used, and supposed to do, as a functionally normative matter, defines its conceptual function, then the conceptual function of a legal system is to keep the peace among rationally competent self-interested subjects like us in worlds of acute material scarcity like ours by regulating behavior through the governance of artifactual norms metaphysically capable of guiding behavior.23

  • 24 Himma 2020: 115–116
  • 25 Himma 2020: 122.
  • 26 Himma 2020: 70 (emphasis in original).

11Once one assumes that our attention must be on what is actually going to affect behavior – to motivate alterations in behavior for a significant portion of the population – then one can quickly conclude that some Hartian combination of primary and secondary rules, or even moral reasons for action, will not, on their own be sufficient.24 Only coercive sanctions “provide defeasible novel content-independent objective motivating reasons to comply with mandatory legal norms prohibiting socially undesirable acts.”25 It is thus not surprising, Himma observes, that coercive sanctions are “ubiquitous among existing legal systems.”26

4 Himma, Finnis, and the “why” question

12As noted, Himma’s analysis is structured as a combination of conceptual analysis and a functional theory connected to a theory of artifacts. The latter part of the analysis depends on a view of law’s purpose. There is an interesting contrast to be drawn with a parallel sort of analysis offered by John Finnis.

  • 27 Finnis 2003.
  • 28 See Ehrenberg 2016; see also Mihal 2017.
  • 29 Scott Shapiro offers a comparable analysis: “The circumstances of legality obtain whenever a commun (...)
  • 30 Himma 2020: 82–89.

13Finnis argued that traditional legal positivism errs by focusing too closely on the “what is law” question, and not sufficiently on the “why (have) law” question.27 Such an emphasis on the “why” of law might seem the same, or at least highly similar to, the functional questions posed by Himma (and Kenneth Ehrenberg and others).28 However, the discussions in fact diverge sharply. For Finnis, the answer to “why (have) law?” is largely moral. We have law to respond to, and prevent, unjust and immoral behavior, and also to create social goods we have moral reasons to create.29 For Himma, law is an artifact, defined by its function, and that function is to guide behavior in order to keep the peace.30 The answers of Himma and Finnis overlap, but are also clearly different.

  • 31 E.g., Finnis 2012; Himma 2002.
  • 32 In Aquinas’s terms, when the actions of legal officials “have the power of binding in conscience” ( (...)

14In one sense, it is not surprising that Himma’s analysis and discussion follows a different path than Finnis’s. Finnis is a prominent natural law theorist, while Himma is a well-known advocate for (inclusive) legal positivism.31 Finnis is more concerned with the question (that goes back at least to Thomas Aquinas) of whether and how the actions of legal officials can create (new) moral obligations.32 Himma, as a legal positivist, avoids moral considerations, both in the construction of the legal theory and in the test of the legal validity of individual norms. How can one reconcile these two quite different theoretical perspectives and the two quite different answers to the same question – why law?

  • 33 Greenberg 2016, reviewing Schauer 2015. In his work, Schauer accepts the Hart/Raz view that coercio (...)
  • 34 Greenberg 2016: 1958.

15One response might come from a recent work by Mark Greenberg, where he reviews another work connecting law and coercion, Frederick Schauer’s The Force of Law.33 Greenberg writes about the possibility that an explanatorily important property – the aim of solving certain kinds of moral problems – can help to explain why systems with the property need to use coercion. Moreover, the need to use coercion imposes a major burden on systems that have this property, shaping how they can operate.34

  • 35 Greenberg 2016: 1958.

16Similarly focusing on “why” questions, and the role of coercion, Greenberg offers these “why” questions to consider: “Why does law try to make us do things that go against our best judgment? Why does law resort to force when other normative domains such as fashion, chess, and etiquette, whose reason-giving force Schauer places on a par with law, do not ... ?”35 Thus, for Greenberg, the coercive nature of law raises the issues of morality saliently, both as motivation (why coercion is needed for law but not for other normative social systems) and as justification (the use of coercion creates a need for [moral] justification that may be significant less pressing for non-coercive systems). Can one raise and explain the role of coercion in law and still remain aloof from moral evaluation, as Himma and other legal positivists try to be?

  • 36 Himma 2020: 83–84.
  • 37 Himma 2020: 86. Himma points out the obvious connection with the work of Thomas Hobbes, but notes h (...)

17Himma does have a (partial) response to this line of argument. He asserts that references to law’s function of offering moral guidance are all well and good, but we can determine the reason we have law by imagining what life would be like without it.36 We would feel the absence of law, not so much in having insufficient guidance on how to live a good life (there is no scarcity of sources willing to tell us what they consider to be the right path), but in the resulting disorder. We have law “to keep the peace.”37

18Of course, different people might imagine different nightmare scenarios: e.g., a world where everyone is allowed to act in (what this person believes to be) a deeply immoral and religiously heretical behavior; a world in which the poor and various other disfavored groups are left to lifelong suffering and exploitation; a world in which little is done to fight the coming catastrophe of climate change and other preventable disasters; etc. That is, reasonable people might disagree on what is most important for law to do (and disagree about whether we are already in the middle of a disaster because law is not doing what it is supposed to do).

  • 38 Hobbes 1651: ch. 13, at 79.
  • 39 Cf. Alexy 2002: 68–81 (“claim to correctness”).

19Himma might reasonably respond that among all these scenarios, the Hobbesian “war of all against all”38 is both the most horrible and the most universally shared fear. Thus, when considering the function of law and the shared concept of law, it is appropriate to fasten upon “keeping the peace” as central to law. And this is why, Himma would argue, coercion is central to the nature of law, while achieving moral aims, or even just having moral objectives,39 is not.

5 Conclusion

20Coercion and the Nature of Law is a welcome and needed addition to the jurisprudential literature: it defends the possibility and value of discovering the nature of law, it defends a version of conceptual analysis, it revisits a long-standing debate about the role of coercion in law, and it offers an intriguing merger of conceptual analysis, artifact theory, and functional theory. In contrasting Himma’s present work with themes from the works of John Finnis and Mark Greenberg, one can get a sense of the nuanced debates regarding how to characterize the purpose or function of law, and how much of the argument about the nature of law may turn on one’s view about why we (do or should) have law.

Acknowledgments.— I am grateful for the comments and suggestions of an anonymous reader for the journal.

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Bibliography

Alexy, R. (2002). The Argument from Injustice: A Reply to Legal Positivism (S.L. Paulson & B.L. Paulson, trans.). Oxford University Press. ISBN: 0198259875.

Aquinas, T. (1993). The Treatise on Law (R.J. Henle, trans. and ed.). University of Notre Dame Press. ISBN: 9780268018801.

Burazin, L., Himma, K.E., & Roversi, C. (Eds.) (2018). Law as an Artifact. Oxford University Press. DOI: 10.1093/oso/9780198821977.001.0001.

Dyzenhaus, D. (2000). Positivism’s Stagnant Research Programme. Oxford Journal of Legal Studies, 20(4), 703–722. DOI: https://doi.org/10.1093/ojls/20.4.703.

Ehrenberg, K.M. (2016). The Functions of Law. Oxford University Press. DOI: 10.1093/acprof:oso/9780199677474.001.0001.

Enoch, D. (2019). Is General Jurisprudence Interesting? In D. Plunkett, S.J. Shapiro, & K. Toh (Eds.), Dimensions of Normativity: New Essays on Metaethics and Jurisprudence (pp. 65–86). Oxford University Press. DOI: 10.1093/oso/9780190640408.003.0004.

Finnis, J. (2003). Law and What I Should Truly Decide. American Journal of Jurisprudence, 48(1), 107–129. DOI: https://doi.org/10.1093/ajj/48.1.107.

Finnis, J. (2012). Natural Law and Natural Rights (2nd ed.). Oxford University Press. ISBN: 9780199599141.

Garcia-Godinez, M.A. (2019). Flaws and Virtues of An Artifact Theory of Law. Ratio Juris, 32(1), 117–131. DOI: https://doi.org/10.1111/raju.12230.

Greenberg, M. (2016). How to Explain Things with Force. Harvard Law Review, 129, 1932–1979. https://harvardlawreview.org/2016/05/how-to-explain-things-with-force/.

Hart, H.L.A. (2012). The Concept of Law (3rd ed.). Oxford University Press.

Himma, K.E. (2002). Inclusive Legal Positivism. In J. Coleman & S. Shapiro (Eds.). The Oxford Handbook of Jurisprudence and Philosophy of Law (pp. 125–165). Oxford University Press. DOI: 10.1093/oxfordhb/9780199270972.013.0004.

Himma, K.E. (2011). The Nature of Law: Philosophical Issues in Conceptual Jurisprudence and Legal Theory. Foundation Press. ISBN: 9781599414119.

Himma, K.E. (2018). The Conceptual Function of Law: Law, Coercion, and Keeping the Peace. In L. Burazin, K.E. Himma, & C. Roversi (Eds.), Law as an Artifact (pp. 136–159). Oxford University Press. DOI: 10.1093/oso/9780198821977.001.0001.

Himma, K.E. (2020). Coercion and the Nature of Law. Oxford University Press. DOI: 10.1093/oso/9780198854937.001.0001.

Hobbes, T. (1651). Leviathan. Andrew Crooke, available at https://socialsciences.mcmaster.ca/~econ/ugcm/3ll3/hobbes/Leviathan.pdf.

Jackson, F. (1998). From Metaphysics to Ethics: A Defense of Conceptual Analysis. Oxford University Press. DOI: 10.1093/0198250614.001.0001.

Laurence, S. & Margolis, E. (2003). Concepts and Conceptual Analysis. Philosophy and Phenomenological Research, 67(2), 253–282. DOI: https://doi.org/10.1111/j.1933-1592.2003.tb00290.x.

Leiter, B. (2007). Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy. Oxford University Press. DOI:10.1093/acprof:oso/9780199206490.001.0001.

Mihal, J. (2017). Defending a Functional Kinds Account of Law. Australasian Journal of Legal Philosophy, 42, 121–144.

Miotto, L. (2021). From Angels to Humans: Law, Coercion, and the Society of Angels Thought Experiment. Law and Philosophy, 40, 277–303. DOI: https://doi.org/10.1007/s10982-020-09396-1.

Raz, J. (1990). Practical Reason and Norms. Princeton University Press. ISBN 9780691023205.

Schauer, F. (2015). The Force of Law. Harvard University Press. ISBN 9780674368217.

Shapiro, S.J. (2011). Legality. Harvard University Press. ISBN 9780674055667.

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Notes

1 Himma 2020.

2 Leiter 2007.

3 Schauer 2015.

4 Cf. Dyzenhaus 2000; Enoch 2019.

5 Himma 2020: 1 (italics removed, footnote omitted).

6 Himma 2020: 23.

7 Himma 2020: 23, 33, 42. Himma adds: “Even if we could ascertain the metaphysical nature of law as it is independent of our conceptual practices, we would still have reason to want to understand the metaphysical nature of law as it is determined by our practices” (Himma 2020: 42, emphasis in original).

8 See Jackson 1998; Himma 2020: 33–38. In Legality, Scott Shapiro also appears to endorse and use some version of Jackson’s approach (Shapiro 2011: 13–18, 405 n. 11).

9 Himma 2020: 35. This is in contrast to “immodest” conceptual analysis – rejected by both Jackson and Himma – which “seeks to understand the metaphysical nature of a thing as it really is independent of any such conceptual framework” (Himma 2020: 35).

10 Himma 2020: 49.

11 Cf. Laurence & Margolis 2003: “If conceptual analysis comes to regain its position in philosophy, much of the credit will have to go to Jackson.”

12 See Leiter 2007. In Himma 2011, there is a chapter, “The Methodology of Conceptual Analysis,” which contains selections from both Jackson and Leiter (among others), but there is little there that might count as a direct response to Leiter’s critique.

13 Jackson 1998: 31–44.

14 Himma does not himself use the label, “folk theory,” favoring instead to speak of “the canons of ordinary usage governing use of the associated concept-term together with the assumptions grounding these canons” (Himma 2020: 23). However, in context, and considering Himma’s endorsement of Jackson’s approach, it seems clear that the same basic notion is being used. See also Himma 2020: 46: “Conceptual analysis begins from shared intuitions about the application-conditions of the concept-term of interest that are conditioned by the canons of ordinary usage defining its lexical meaning but goes on to identify, explicate, and theorize the deeper philosophical commitments these intuitions imply or presuppose.”

15 Himma comments: “There is little reason to doubt that the idea that the coercive mechanisms of law are needed to keep the peace is widely shared among the ‘ordinary’ folk whose views condition our social practices, conceptual and otherwise, with respect to law” (Himma 2020: 89).

16 Himma 2020: 73: “rationally competent self-interested subjects … in worlds of acute material scarcity.”

17 Himma 2020: 1.

18 Himma clarifies that the requirement is at the level of norm systems; individual norms can be “legal” (valid parts of a legal system) without being connected with coercive sanctions, as long as some of the system’s mandatory norms are backed up by such sanctions (Himma 2020: 1–2).

19 Himma 2020: 231.

20 Hart 2012: 199, quoted in Himma 2020: viii. Hart adds: “We can say, given the setting of natural facts and aims, which make sanctions both possible and necessary in a municipal system, that this is a natural necessity … ” (Hart 2012: 199, emphasis in original).

21 Raz 1990: 159–160; see Himma 2020: viii–ix, 231–253. For a recent defense of the “society of angels” argument for why coercion is not an essential property of law, see Miotto 2021.

22 Himma was a co-editor of the collection, Law as an Artifact, Burazin, Himma, & Roversi 2018, and Himma’s own contribution to that collection was titled “The Conceptual Function of Law: Law, Coercion, and Keeping the Peace” (Himma 2018). For a partial critique of (one version of) artifact theory applied to law, see Garcia-Godinez 2019.

23 Himma 2020: 91.

24 Himma 2020: 115–116

25 Himma 2020: 122.

26 Himma 2020: 70 (emphasis in original).

27 Finnis 2003.

28 See Ehrenberg 2016; see also Mihal 2017.

29 Scott Shapiro offers a comparable analysis: “The circumstances of legality obtain whenever a community has numerous and serious moral problems whose solutions are complex, contentious, or arbitrary. ... [L]aw is first and foremost a social planning mechanism whose aim is to rectify the moral deficiencies of the circumstances of legality ...” (Shapiro 2011: 170, 172).

30 Himma 2020: 82–89.

31 E.g., Finnis 2012; Himma 2002.

32 In Aquinas’s terms, when the actions of legal officials “have the power of binding in conscience” (Aquinas 1993: Question 96, at 324).

33 Greenberg 2016, reviewing Schauer 2015. In his work, Schauer accepts the Hart/Raz view that coercion may not be necessary/essential for “law,” but argues that it is nonetheless central to understanding law.

34 Greenberg 2016: 1958.

35 Greenberg 2016: 1958.

36 Himma 2020: 83–84.

37 Himma 2020: 86. Himma points out the obvious connection with the work of Thomas Hobbes, but notes how less “Hobbesian” theorists, like Robert Nozick and John Stuart Mill, also accept keeping the peace as the ultimate objective of the law (Himma 2020: 83–91).

38 Hobbes 1651: ch. 13, at 79.

39 Cf. Alexy 2002: 68–81 (“claim to correctness”).

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References

Electronic reference

Brian H. Bix, Coercion, function, and the “why” of lawRevus [Online], 45 | 2021, Online since 11 November 2021, connection on 26 January 2022. URL: http://journals.openedition.org/revus/7532; DOI: https://doi.org/10.4000/revus.7532

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About the author

Brian H. Bix

Frederick W. Thomas Professor of Law and Philosophy, University of Minnesota (USA)

Address: University of Minnesota Law School, 229 19th Avenue South – Minneapolis, MN 55455 – USA

E-mail: bix@umn.edu

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