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Symposium on law and coercion

Should the Coercion Thesis really be defended as a conceptual claim?

A Dworkinian rumination on Himma
Thomas Bustamante

Abstract

Kenneth Himma’s Coercion and the Nature of Law offers a forceful response to the claim that coercion is an ancillary, rather than a conceptually necessary, property of law. It matters for Himma that the Coercion Thesis is defended as a conceptual claim, although his metaphysics purports to be a “modest” conceptual analysis in Frank Jackson’s sense. In this comment I have no argument against the Coercion Thesis, and I grant that Himma provides a successful reply to the skepticism about coercion that permeates the jurisprudence of H.L.A. Hart and Joseph Raz. Nonetheless, I believe that this thesis cannot be defended with the methodology that Himma suggests. I challenge Himma’s interpretation of Jackson (which claims that it requires one to start with lexical meanings and “canons” of ordinary language) and argue that his argument for the coercive character of international law only works because it is based on a pragmatic argument about empirical features of social practices. After explaining this objection, I hold that other methodologies, like Dworkin’s interpretivism (if interpreted as endorsing an inferentialist theory of meaning), can provide a more plausible account of the coercive character of law.

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1 Introduction

  • 1 Hart 1994: 40.
  • 2 Himma 2020: 4.

1Kenneth Himma’s Coercion and the Nature of Law makes valuable progress in analytical jurisprudence. It illuminates an important aspect of the nature of law, which is its ability to coerce. It extends an invitation to reconsider H.L.A. Hart’s influential assertion that coercive procedures are “ancillary provisions for the failures of the [legal] system,”1 instead of an essential property of the concept of law. In contrast to Hart, Himma supports the Coercion Thesis, which asserts that authorizing coercion is one of the necessary features of any proper legal system. Part of the nature of law, for Himma, is that “the properties constituting something as a legal system include that it backs some mandatory norms” with the threat of applying coercive sanctions.2

  • 3 Hart 1994: 213–237.
  • 4 Raz 1999a: 157–161.

2Although different versions of the Coercion Thesis have been defended in the history of legal philosophy, that thesis has been challenged by influential works in contemporary jurisprudence, especially among philosophers interested in conceptual analysis. Hart, for instance, suggested that the absence of a coercive central power is no reason to deny the legal status of international law,3 whereas Joseph Raz suggested that proper legal norms would be needed even in a society of angels faced with complex coordination problems.4

3I will argue in this review, however, that the Coercion Thesis, while plausible, is better defended as a pragmatic instead of conceptual claim in Himma’s sense. In the following three sections, I discuss Himma’s views on methodology (Section 2), his reply to Hart’s skepticism about the role of coercion in international law (Section 3), and some pragmatic alternatives to his metaphysics (Section 4). These sections are followed by a longer section in which I reconstruct the Coercion Thesis according to Dworkin’s interpretivism, which I believe is the most plausible theory of law.

2 Linguistic practices and metaphysical claims

  • 5 Himma 2020: 33.
  • 6 Himma 2020: 33.

4The assumption that the Coercion Thesis is a “conceptual” claim appears to be crucial in Himma’s argument, although it is not evident to readers without training in metaphysics what is meant by this sort of philosophical demand. Himma describes the enterprise of conceptual analysis as a “metaphysical” exercise because its point is to identify some “inherent properties” an entity must possess to belong to a certain class.5 He argues that it is this commitment to determine the “nature” or “essential properties” of a thing that makes this analysis philosophical, instead of sociological in character.6 Nonetheless, perhaps this description of the character of philosophical arguments is too narrow.

  • 7 Himma 2020: 34.
  • 8 Himma 2020: 42 (emphasis in original).
  • 9 Bix 2021.

5Himma’s conceptual analysis is agnostic about the claim that there is an absolute nature which is entirely independent of our minds. He endorses Frank Jackson’s distinction between modest and immodest conceptual analysis, to argue that his theory is conceptual only in the former sense. A philosophical endeavor in conceptual analysis is modest if it seeks to explain the nature of a thing as it is determined by “contingent linguistic practices,” whereas an immodest conceptual analysis explains this nature with intuitions that track some “brute” and “mind-independent” metaphysical facts.7 The point of modest conceptual analysis, according to Himma, is to “explicate the world of our experience as we construct it socially,” according to a conceptual framework that is “determined by our practices.8 As Brian Bix explains, it is a crucial role that Himma, in his philosophical project, attributes to Jackson’s conceptual methodology, since it justifies turning to folk intuitions about a concept as a preliminary step in the analysis of the content of the concept at stake.9

6I have no objection to Jackson’s methodology, because it holds that a serious metaphysics must make sense of pragmatic assumptions instead of abstract intuitions about brute facts the nature of which is independent of our ordinary linguistic vocabulary.

  • 10 Jackson 1998: 3.

7A central assumption of any serious metaphysics, according to Jackson, is the thesis known as “entry by entailment.” We frequently need a metaphysical vocabulary to explain several things like, for instance, our scientific findings about natural kinds. Nonetheless, that metaphysical vocabulary enters our account only after the empirical work is done, and its task is to make sense of implicit assumptions required to render our empirical findings intelligible and sound. When we attribute a metaphysical property like “solidity” to objects like tables, chairs, pens, and so on, which are objects given to us by the empirical findings of our experience, our reference to the metaphysical property of solidity is part of a set of implicit assumptions we need to make sense of what is explicit in our experience, in the sense of being entailed by it.10

  • 11 Jackson 1998: 30 (emphasis in original).
  • 12 Jackson 1998: 43–44.

8Jackson’s metaphysics attributes a modest role to conceptual analysis because it is committed to avoiding any claims that are based on intuitions and articles of faith. “The questions we ask when we do metaphysics are framed in a language, and thus we need to attend to what users of the language mean by the words they employ to ask their questions.”11 The way to avoid reliance on my own personal intuitions when I employ a metaphysical vocabulary is to replace them with the assumptions embedded in the ordinary vocabulary employed by users of a public language, i.e., the “folk concepts” these users employ. A modest conceptual analysis “restricts itself to drawing the conclusion” that something must be taken as true given the folk usage of a certain concept, whereas an immodest conceptual analysis gives intuitions “too big a place in determining what the world is like.”12

3 Himma’s pragmatic argument for the Coercion Thesis

9Perhaps Himma’s appeal to the ordinary meaning of concepts enshrined in social practices can be described as a form of linguistic pragmatism. When we turn to his substantive arguments in favor of the Coercion Thesis, it is easy to suspect that his most important claims are pragmatic and only derivatively conceptual. They are driven by practice, not metaphysics, and they only work because Himma competently shows that they can explain our practices as we understand them here and now.

  • 13 Hart 1994: 216–220.
  • 14 Waldron 2013: 383, quoting Hart 1994: 214.
  • 15 Hart 1994: 219–220.

10Consider, for instance, Himma’s discussion of Hart. The impression that it is an ordinary practice, instead of metaphysics, that is doing the work becomes more persuasive when we consider the argument from the coercive nature of international law. Hart’s thesis that international law is a counterexample to the Coercion Thesis is premised on the assumption that there are other sources for the general conformity with international law. According to Hart, the normative force of international law is independent from a system of organized sanctions enforced by a central power. The international community, as a community of states and international organizations, is very different from the “societies of individuals,” with approximately equal strength and vulnerability, that we find in municipal law.13 Sanctions are more crucial in communities of individuals than in the community of sovereign states. “Among natural individuals living in close proximity to each other, ‘opportunities for injuring others, by guile, if not by open attack, are so great, and the chances of escape so considerable,’ that mere natural deterrents are seldom adequate to restrain interpersonal violence.”14 Aggression between states, in turn, has a greater cost for the aggressor and is more likely to inspire criticism: “The use of violence between states must be public, and though there is no international police force, there can be very little certainty that it will remain a matter between aggressor and victim, as murder or theft, in the absence of a police force, might.”15

  • 16 Hart 1994: 219.

11To establish its normativity, therefore, international law requires less coercive enforcement than municipal legal systems do, since the aggressor’s public exposure and the risks associated with illegal activity are always great, even for the strongest powers and in the most favorable situations. International sanctions, in this context, have a limited capacity to place an additional burden upon states.16 International aggression implies a greater cost for illegal behavior, and the law is more likely to play its coordinating role by providing mechanisms for cooperation and solving prisoner’s dilemmas than by appealing to coercive measures against violators of legal obligations.

  • 17 Hart 1994: v.

12It is no accident that, in the Preface to The Concept of Law, Hart characterized his own project as “an essay in descriptive sociology.”17 His argument against the coercive nature of law can be read as a pragmatic argument about the features of the concepts we use in a social practice. The proper way to respond to it, then, is with another pragmatic argument rather than with mysterious intuitions about the nature of the entity we are describing.

  • 18 Himma 2020: 215.
  • 19 Himma 2020: 215.
  • 20 Himma 2020: 216.

13I believe that it is precisely this type of argument that we find in Himma’s reply to Hart’s skepticism about the coercive properties of international law. Instead of appealing to intuitions detached from ordinary practices, Himma begins with the content of treaties and legal enactments that explicitly authorize the imposition of sanctions without application of physical force.18 He argues that economic enforcement mechanisms, and perhaps some diplomatic sanctions, can “operate exactly the way [physical] coercive sanctions are contrived to operate,”19 as long as they satisfy three cumulative conditions: first, they are an authorized institutional response to the violation of a norm; second, they are intended to “deter and punish noncompliance”; third, they are reasonably perceived to “succeed to some non-trivial extent in deterring rationally competent subjects from violating the applicable norms.”20

14I believe that these conclusions are correct. But they are based on empirical claims, although Himma dresses them as “inherent” properties or conceptual claims. To understand them well we should not miss the point that the arguments which support them are descriptive reports of the practice instead of a list of lexical meanings we find in dictionaries and canonical definitions. They are pragmatic arguments because they account for the practical function of international law and the way its norms are internalized and observed by the ordinary participants in legal practice.

4 Pragmatism and conceptual norms

15The reconstruction of Himma’s substantive arguments in response to Hart shows that his theory of law presents itself as a detailed conception of a political concept, the sense of which is found not in an a priori reality, but instead in the attitudes and responses of participants in the practice of law.

16Like other pragmatic accounts of the meaning of concepts, this semantic theory treats the practice of employing the concept of law as a rational practice, one that counts as rational because it entails a set of epistemic or conceptual norms that enable us to distinguish between “correct” and “incorrect” uses of the concept it purports to explain.

17Himma’s modest conceptual analysis must accept some rational norms to vindicate its claim to distinguish itself from the immodest conceptual analysis it criticizes. It is this reference to implicit norms that enables a philosophical project to deflect the habitual objection that it is based only on intuitions and perceptual mechanisms that merely confirm an inquirer’s original insights. Without pragmatic norms enshrined in linguistic practices, Himma would be left with detached philosophical intuitions about a priori categories we find in the world of abstractions, falling prey to a myriad of objections he makes a valuable effort to rebut.

  • 21 Himma 2020: 37
  • 22 It is the faith in this methodology that explains Himma’s choice to cite dictionary definitions ad (...)

18Yet the difficulty with Himma’s methodology arises when we try to make these conceptual norms explicit. I do not think that the problem lies in Jackson’s appeal to “folk concepts,” but rather in the way that Himma interprets this suggestion for his own theoretical purposes. When it comes to interpreting Jackson’s proposal to begin the enquiry with the “folk concepts” that competent users of a public language employ, Himma draws from this idea a duty to read our concepts according to the “canons of ordinary language that determine the application-conditions” of a given concept.21 He appeals to a putative set of linguistic “canons” that tacitly assumes there are fixed meanings in ordinary language, which can be accessed through lexical definitions accepted as a matter of strict convention, and disregards the reflective dimension of concept formation. This method quickly degenerates into an exercise of lexicography, which reduces the complexity of discursive practices to dictionary definitions that are cited over and over again.22

19The underlying conceptual norm in the methodology proposed by Himma seems to be that we must resort to lexical definitions to find the semantic content of our words, assigning authority to dictionaries, encyclopedias, or other repositories of conventional definitions. But if we fail to find any isomorphic conventional definitions, then our intuitions are back in the business of driving our conceptual work. Beyond lexical definitions, which are treated as primary sources of meaning for contested concepts, there are only analytic judgments that systematize intuitions which fail to deliver the kind of objectivity a sound philosophical argument would require.

20Regardless of what Jackson says, therefore, Himma’s version of conceptual analysis inherits the problems of two implausible methodologies. Sometimes it is trapped into lexical definitions that fail to reflect the complexity and reflexive nature of discursive practices, whereas at other times it places trust in intuitive assessments of the properties these definitions are said to encompass.

21When we consider the tests by which to determine the conditions of correctness for the application of legal concepts, we can find more plausible alternatives in contemporary jurisprudence. A naturalized jurisprudence, for instance, is likely to do a more promising job, since it accords an explanatory priority to science and empirical experience.

  • 23 Leiter 2011: 511.

22According to Leiter, “the history of philosophy is littered with mistaken theories of things,” and the proper way to identify these mistakes is to look for an answer in the discoveries of science: “if you want to know what some kind of X is like, find out what the science of X says about it”!23

  • 24 Leiter 2007: 137–138.
  • 25 Leiter 2007: 145.

23Leiter’s defense of a Quinean jurisprudence avoids the idea that philosophy is a “purely a priori discipline, whose methods are antecedent to – indeed stand above and adjudicate among – the claims of science.”24 One of the merits of Quine’s epistemology is that it dissolves the difference between synthetic judgments – which are true in virtue of correspondence with empirical assessment of facts – and analytic judgments – which are “true in virtue of meaning.” It develops a test of correctness for our use of concepts according to which all reliable statements “are answerable to experience.” With this argument Quine discards the uncomfortable assumptions of the foundationalist epistemology that underlies different varieties of logical positivism. Carnap’s semantic theory, for instance, is rejected because of its unrealizable attempt to grasp the meaning of concepts through “some point-by-point contact with sensory input,” instead of a (more plausible) “meaning-holism” in which theoretical terms “get their meanings from their place in the whole theoretical framework.”25

  • 26 Gibson 1996: 526–8, quoted in Leiter 2007: 146.
  • 27 Leiter 2007: 145 (emphasis added).

24On a naturalist jurisprudence, the illusion of an Archimedean “point of cosmic exile from which to leverage our theory of the world”26 is replaced by a philosophical naturalism according to which “the relation between sensory input and theoretical output ... is to be answered by science,” not because it does not make sense to talk about epistemic norms, but because “these norms will themselves be the deliverances of science.”27

25Although more research would be needed to specify the scientific discoveries that could be helpful in understanding the role of coercion in law, or in explaining how legal considerations produce reasons for a person’s action, it is likely that a naturalist jurisprudence can find a more integrated network of concepts than Himma’s appeal to the “canons” of ordinary language.

  • 28 Leiter 2011: 512.

26It is interesting to observe that none of this is incompatible with attributing a subsidiary role to conceptual analysis, if the priority of experience is acknowledged. Thinkers like Leiter can resort to conceptual analysis if they reject the assumption that conceptual analysis must be a form of “glorified lexicography” and allow, instead, a space for the kind of “modest” conceptual analysis Jackson defends.28

  • 29 Schauer 2015.
  • 30 A problem with Schauer’s psychological theory in explaining the role of law in practical reasoning, (...)

27A psychological theory or a behavioral explanation of human responses to threats of sanction, for instance, might provide a fruitful explanation of the force of legal considerations in our reasons for action. Probably an interesting example is Frederick Schauer’s account of legal coercion, since it seems to be based on the kind empirical assumptions a naturalist jurisprudence can provide.29 For instance, a psychological explanation of the impact that rules have on our reasons for action might do a better job than an appeal to lexical definitions or an abstract systematization of philosophical intuitions.30

28By the same token, as I will argue in the next section, the epistemic norms that Dworkin employs to determine the correct application of our legal concepts is also more successful than Himma’s strategy of beginning with dictionary entries and lexical meanings. Dworkin can be read as endorsing an inferentialist semantics that appeals to a different kind of holism.

  • 31 Dworkin 2011: 120.
  • 32 Raz 1999b: 119.

29Dworkinian interpretivism maintains that “all true values form an interlocking network,” in which “each of our convictions about what is good or right or beautiful plays some role in supporting each of our other convictions in each of those domains of value.”31 The concept of objectivity required in justifying moral arguments no longer assumes a representationalist epistemology, but instead becomes a methodological concept that rejects a correspondence theory of truth while presupposing the possibility of “epistemic objectivity,” i.e., the idea that people can be objective about certain assertions “if they are, in forming or holding opinions, judgments, and the like, about [certain] matters, properly sensitive to factors which are epistemically relevant to the truth or correctness of their opinions or judgments.”32

  • 33 Brandom 2000: 189–196.

30Although Dworkin speaks of “truth,” his concept of truth is deflationary because he does not commit to a correspondence theory of truth. The objectivity of moral and legal judgments is purchased not by making representations that match moral facts that pre-exist in the world, but instead by a discursive process in which conceptual contents are treated as rational claims in social and normative practices. On this account, rationally assertible concepts are those that can play the role of premises and conclusions in an inferential network of mutually supporting conceptual norms. When a language user employs these concepts, she takes them as reasons for further judgments and for inferences and actions based on them, and if she uses the concept correctly, she becomes entitled to a social recognition of its force by the other participants in the discourse. By employing concepts to describe moral norms in a “game of giving and asking for reasons,” she undertakes a commitment to place herself under the authority of these norms, i.e. to become liable to assessment under these norms. She becomes responsible for her judgments, while at the same time entitled to a social recognition of its correctness by other language users. The social source of objectivity for the kind of moral judgments lawyers need to make in their professional practice is found in these mutual commitments and entitlements within a community of speakers, who endorse similar concepts and inherit the entitlement to employ them as premises and conclusions in the same game of giving and acknowledging reasons.33

5 Coercion for hedgehogs

  • 34 I owe this terminology to Stanley Fish (1991). It is interesting to observe, as some critics have, (...)

31I doubt that Himma would agree with my reconstruction of Dworkin as a pragmatist, or “almost pragmatist,” legal philosopher.34 Himma believes that Dworkinian interpretivism is implausible because he attributes to that jurisprudence an implicit commitment to the kind of “immodesty” he criticized in the traditional versions of conceptual analysis.

32Consider Dworkin’s argument in an early review of Robert Cover’s book Justice Accused, which discusses the conflicts between the moral beliefs of abolitionist judges, in the context of pre–Civil War northern states, and their views on fidelity to enacted law. In response to the challenging jurisprudential questions raised by Cover’s book, Dworkin criticized the decisions of northern judges who sent slaves back to the south because their fidelity to legal positivism prevented them from seeing an equally plausible account of the nature of law, constructed by Dworkin in the following terms:

  • 35 Dworkin 1975: 1437 (emphasis added).

The law of a community consists not simply in the discrete statutes and rules that its officials enact but in the general principles of justice and fairness that these statutes and rules, taken together, presuppose by way of justification.35

  • 36 Himma 2016: 212.

33Himma cited this excerpt to provide a short statement of Dworkin’s position about the nature of law.36 I italicized two fragments in this passage to clarify my disagreement with Himma, because he emphasizes the first fragment, while I believe that it is the second that is doing the explanatory work.

  • 37 Himma 2016: 212.

34Himma attributed an “immodest” methodology to Dworkin because he believes Dworkinian jurisprudence automatically incorporates some practice-independent moral principles into the legal domain. The problem with Dworkin’s analysis would be that he believes concrete rules can acquire legal validity when they are “rationally derived from the general moral principles of justice and fairness that show the law … in its best moral light.”37 Perhaps there is nothing wrong with this sentence, but it fails to grasp the central assumption in Dworkin’s thought, which is marked in the second fragment highlighted in the quote. Dworkin believes that principles of morality only enter the law when they are “presupposed by way of justification.” To get to the core of Dworkin’s argument we must therefore turn our attention to the process of justification Dworkin provides in his jurisprudential account.

35Let us go back to Dworkin’s ruminations on the law of slave catchers to explain the argument Dworkin thinks was available – but unfortunately not adopted – in American pre–Civil War jurisprudence. After the fragment cited by Himma, Dworkin proceeds to submit the following:

  • 38 Dworkin 1975: 1437 (emphasis added).

The general structure of the American Constitution presupposed a conception of individual freedom antagonistic to slavery, a conception of procedural justice that condemned procedures established by the Fugitive Slave Acts, and a conception of federalism inconsistent with the idea that the State of Massachusetts had no power to supervise the capture of men and women within its territory. These principles were not simply the personal morality of a few judges, which they set aside in the interests of objectivity. They were, rather, on this theory of what the law is, more central to the law than were the particular and transitory policies of the slavery compromise.38

36There are many ideas in this short paragraph, but what appears to be central is that the “particular and transitory policies” which protected slave catchers conflict not only with an abstract formulation of the principles of freedom, procedural justice, and federalism. The concrete rules adopted in the Fugitive Slave Act are challenged because they are inconsistent with the conception of these principles, and this conception is central to the law, rather than merely amounting to the “personal morality of a few judges.”

37Now we get to a question which is a fundamental step in Dworkin’s reasoning: How can the discrete rules that stem from particular and transitory policies be inconsistent with a conception of a general principle?

  • 39 Raz 1972: 839. I am not sure that Raz still believes this thought, given what he would go on to say (...)

38When we try to answer to this question, we encounter a difference between Dworkin and the way most legal positivists think of the relationship between principles and rules. According to Raz, “since we justify considerations which apply to a limited range of situations and actions by more general considerations, principles can be used to justify rules but not vice versa.”39 Dworkin’s interpretivism, however, does not accept this view, because his theory of law is pervasively holistic, in the sense specified above. Dworkin admits that we can get to the content of a principle by looking at the concrete rules and assumptions comprised in its conception.

39A conception of a concept is an integrated set of rules which explain this concept, and it makes a big difference in his reasoning that Dworkin says that the discrete rules of slavery are inconsistent with the conceptions of freedom, procedural justice, and federalism, rather than being inconsistent with any individual value considered in isolation. The shift from concepts to conceptions plays a major role in Dworkin’s argument, as his thoughts on the concept of “law” exemplify.

  • 40 Dworkin 1986: 112.
  • 41 Dworkin does not treat the “grounds of law” as “basic” or “final” determinants of its content, i.e. (...)
  • 42 Dworkin 1986: 113.
  • 43 Dworkin 1986: 109.
  • 44 Dworkin 1986: 91.
  • 45 Dworkin 1986: 93.
  • 46 Dworkin 1986: 83.
  • 47 Dworkin 1986: 81.

40A conception of the concept of law, for Dworkin, is a “theory of the grounds of law.”40 Nevertheless, Dworkin does not understand the notion of “grounds” in the metaphysical sense that Himma suggests.41 This understanding, for Dworkin, would be “an orphan of scholasticism” because it would miss the crucial point that a theory of law must be political in a “general and diffused way.”42 A conception of law must be general because it must supply a “unifying structure for the conception as a whole,”43 but it must also be concrete because “we all enter the history of an interpretive practice at a particular point,” and the “necessary preinterpretive agreement is in that way contingent and local.”44 It must be political, finally, because the law is a normative practice which authorizes the use of coercion in a given community.45 To take seriously our task to construct a conception of the concepts we employ, which involves explaining and making explicit the implicit rules we must apply to act as responsible moral and political agents, we need to begin with our practice, instead of with mysterious moral facts. “The practices of interpretation and morality give these claims all the meaning they need or could have.”46 It would be wrong to suppose that we can trace moral facts to the physical world, for instance “showing that atmospheric moral quaverings” confirm my judgment, or that my moral conviction “matches a noumenal metaphysical fact.”47

41In these fragments Dworkin mocks metaphysical accounts of moral facts because he eschews the sort of immodest conceptual analysis that Himma attributes to him. He thinks that pragmatic arguments are all we have, because the arguments to which we resort to express our concept of law are not regarded as different in kind from those that we employ to show that slavery is wrong. These two classes of arguments are arguments “within rather than about the enterprise of morality,” although “theoretical” arguments may be more abstract. But regardless of their alleged abstraction, they retain their pragmatic character because the way to assess their soundness is to show the integrity (or lack thereof) of the commitments assumed by the participants in the practices and the further commitments these commitments entail.

  • 48 Hershovitz 2006: 115.
  • 49 Dworkin 1986: 189.
  • 50 Hershovitz 2006: 116.
  • 51 Hershovitz 2006: 116 (emphasis added).
  • 52 Dworkin 1986: 184.

42This inferentialist interpretation of Dworkin’s value of integrity is postulated because we must assume that courts and political institutions are rational actors in the same way an individual can be. Integrity requires “a commitment to a coherent and defensible view of the rights and duties people have under law.”48 It insists that “each citizen must accept demands on him, and may make demands on others, that share and extend the moral dimension of any explicit political decision.”49 It requires, in addition, that a political institution, such as a court or a legislature, “takes seriously what it has said in the past,” and that it develops a “coherent vision of what we owe one another.”50 Hershovitz therefore interprets Dworkin’s advice to conceive the law as an integrated network of principles and rules instead of a “discrete set of decisions” as entailed by the sensible assumption that the state must “strive to act morally”51 because it would become pointless and irrational if it failed to do so. “The state lacks integrity,” for Dworkin, when “it must endorse principles to justify part of what it has done that it must reject to justify the rest.”52

43The need to defeat discrete provisions when they are incompatible with our most central and genuine commitments therefore becomes a central aspect of law because it is a central aspect of any rational practice.

  • 53 Dworkin 2011: 414.
  • 54 Dworkin 2006.
  • 55 See Priel 2020, Decat 2015a & 2015b, Nye 2016, and Bustamante 2019 & 2020.
  • 56 Brandom 2011: 59.
  • 57 Brandom 2011: 65.

44The best way to read Dworkin’s apparently odd assumption that judges are “working political philosophers,”53 therefore, is to presuppose that philosophy should be integrated into our ordinary arguments, which constitute a central aspect of our ordinary practices (including institutionalized and political practices). Despite the resistance that Dworkin has offered against most strands of pragmatism, either in law or in philosophy,54 one can find important traces of pragmatism in his accounts of truth and objectivity in morality and law.55 There seems to be at least one sense in which Dworkin can be regarded as endorsing a kind of pragmatism in his account of moral and legal objectivity. Dworkin fits the profile of a “fundamental pragmatism” in the sense that Robert Brandom employs the term. He is partly a pragmatist because he assumes a conception of objectivity according to which our theories respond to the practice and should be tested in practice, for it is the practice of argumentation that provides “the ultimate criteria of adequacy according to which the success of that theoretical enterprise is to be assessed.”56 He is a fundamental pragmatist because he tacitly endorses the view that knowing how to use moral concepts has an “explanatory priority” over knowing that concepts mean such and such. As a fundamental pragmatist, Dworkin must commit to the view that “explicit theoretical beliefs can be made intelligible only against the background of implicit practical abilities.”57 Given the concreteness and richness of the moral problems that figure in the ordinary business of adjudication, lawyers must develop a discipline of making moral judgments and synthesizing normative claims, concepts, and arguments in a network of values and practical directives.

  • 58 Himma adopts a narrower account of philosophy which assumes that those who reject conceptual analys (...)
  • 59 Dworkin 1975: 1437.
  • 60 Postema 2003: 8.
  • 61 Postema 2017: xlviii–xlix.

45It is this account of the relationship between theory and practice that explains Dworkin’s search for a methodological, rather than metaphysical, conception of objectivity.58 It is not by chance that Dworkin ends his comment on the laws of slave catchers with a statement that although his position “was not set out in any influential work of jurisprudence,” it “is, in fact, the theory of law on which the idea of the common law is based.”59 If we turn to legal history and to the arguments of prominent English lawyers like Edward Coke and Matthew Hale, for instance, we can see that this view of legal reasoning has important similarities with the practice of 17th-century common lawyers, and that some of the arguments these lawyers deployed to sustain that the common law has a “distinctive” rationality (what they called “artificial” reasoning) are analogous to the arguments that Dworkin employs in defence of his conception of legal objectivity. According to classical common law jurisprudence, the law could not be conceived of as a plain historical fact. The classical common lawyer’s notion of the “artificial reason” of law implied that “only in the process of argument, regarding concrete cases, in open court subject to reasoned challenge, is the law to be found and forged.”60 The jurisprudence of common lawyers required a “refined skill of combining a grasp of general principles with a full appreciation of the significance of particular circumstances”; it provided the “concrete conditions of social life” in which these principles should be interpreted and applied.61

  • 62 For a couple of intriguing analyses of the inferentialist commitments of common law reasoning, see (...)

46Perhaps these common lawyers were not entirely clear about the status of moral assertions and lacked a general account of objectivity in morality or law. In effect, they needed an artificial reason for law, understood as a special form of practical reasoning, because they thought that the norms of “natural law,” for instance, were too indeterminate to be capable of guiding our action. But they were on the right track. They acknowledged that practical reasoning is not about excavating brute facts, and that transcendental arguments about the nature of our judgments are disappointing and sometimes describe our moral judgments in terms that do not make sense to ourselves. This explains why they thought, in line with what Dworkin argued more recently, that a methodological account of objectivity and an inferentialist theory of concepts do a better job in practical reasoning.62

  • 63 Dworkin 1986: 55.

47I believe that Dworkin’s conception of law, if interpreted in this inferentialist sense, is a more promising path to vindicating the Coercion Thesis. It provides further support for Himma’s Coercion Thesis, although it avoids arguments about the lexical meaning of linguistic terms. Dworkin’s path for demonstrating the correctness of the Coercion Thesis begins with a controversial aspect of his interpretative jurisprudence, namely, the claim, which he borrows from Gadamer’s hermeneutics, that to understand an object is to apply a point or purpose in light of which to grasp the meaning of that object.63

48Although Gadamer does not share Dworkin’s view that the purpose that orients the interpretive attitude of a legal interpreter is a moral purpose, to which we resort in justifying the practice being interpreted, the thought that the meaning of concepts is only available at the moment they are applied explains Dworkin’s assertion that the content of the law embodies a moral justification, such that one cannot even understand what it requires without making a moral judgment. When we take this idea seriously, we can see why Himma’s Coercion Thesis also stands at the center of Dworkin’s philosophy of law. It provides a simple and plausible answer to the question of why we must resort to moral justification to understand the content of law. As I argued in earlier work,

  • 64 Bustamante 2020: 123.

a Dworkinian interpreter will always need to make a moral judgment about the purpose of the law. Nonetheless, what generates this burden is a crucial aspect of any Dworkinian interpretive practice: the fact that these values are embedded in the practice implies that it is the practice itself that establishes the interpreter’s personal responsibility to understand it critically, making it the best it can be. We have a special responsibility when we interpret the practice because of a special property of the practice, which is the ability to justify coercion.64

49The Dworkinian interpretive edifice needs Himma’s Coercion Thesis to remain standing. Although Dworkin does not describe this matter as a conceptual thesis, since his interpretivism commits him to denying that theoretical assertions about the character of law are second-order propositions detached from legal practice, there is enough of an agreement to establish that he and Himma treat the capacity to coerce not only as a necessary feature of law, but also, and perhaps more importantly, as a central element to understanding its role in practical reasoning.

6 Conclusion

50When we consider this practical role, which in several sections of the book Himma explains with innovative insights, we can fully appreciate the value of his intellectual effort. Himma has convincingly shown that coercion is fundamental to explaining the role of law in practical reasoning and has provided intelligent responses to the arguments of mainstream philosophers like Hart and Raz. This achievement cannot be understated. He has managed to show both that coercion is a necessary property of law and that it has a motivating capacity in our lives. This practical role is fundamental to understanding the kind of artifact law is and the kind of normative force it may claim over us, even if in order to understand it we need a more plausible philosophical method than the one he defends in the opening chapters of the book. When we consistently employ these more sophisticated methods, we can get a comprehensive picture of the justificatory role that law plays in any form of legitimate exercise of coercion in our political practices.

—Acknowledgments.— This comment was written during a Global Research Fellowship at New York University, with a grant from the Fulbright Commission. I would like to thank these institutions for the support that I received. I would like to also thank Brian H. Bix, Rodrigo Dornas, and Lucas Dalsotto for insightful comments on previous versions of this review.

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Notes

1 Hart 1994: 40.

2 Himma 2020: 4.

3 Hart 1994: 213–237.

4 Raz 1999a: 157–161.

5 Himma 2020: 33.

6 Himma 2020: 33.

7 Himma 2020: 34.

8 Himma 2020: 42 (emphasis in original).

9 Bix 2021.

10 Jackson 1998: 3.

11 Jackson 1998: 30 (emphasis in original).

12 Jackson 1998: 43–44.

13 Hart 1994: 216–220.

14 Waldron 2013: 383, quoting Hart 1994: 214.

15 Hart 1994: 219–220.

16 Hart 1994: 219.

17 Hart 1994: v.

18 Himma 2020: 215.

19 Himma 2020: 215.

20 Himma 2020: 216.

21 Himma 2020: 37

22 It is the faith in this methodology that explains Himma’s choice to cite dictionary definitions ad nauseam, in all the chapters of the book. I believe, however, that these dictionary definitions played a small part in justifying the conclusions reached in the book.

23 Leiter 2011: 511.

24 Leiter 2007: 137–138.

25 Leiter 2007: 145.

26 Gibson 1996: 526–8, quoted in Leiter 2007: 146.

27 Leiter 2007: 145 (emphasis added).

28 Leiter 2011: 512.

29 Schauer 2015.

30 A problem with Schauer’s psychological theory in explaining the role of law in practical reasoning, however, is that it seems to neglect the social aspect of law, as I argued in a comment to his intriguing explanation of the role of coercion in law. See Bustamante 2016: 45–50.

31 Dworkin 2011: 120.

32 Raz 1999b: 119.

33 Brandom 2000: 189–196.

34 I owe this terminology to Stanley Fish (1991). It is interesting to observe, as some critics have, that despite Fish’s harsh disagreements with Dworkin, they share many assumptions about the character of the social practice of law (Patterson 1993). According to Fish, “a pragmatist account of the law speaks to the question of how the law works and gives what I think to be the right answer: the law works not by identifying and then hewing to some overarching set of principles, or logical calculus, or authoritative revelation” (Fish 1991: 56, emphasis in original). What drives legal reasoning is a practice that provides a set of shared assumptions that constitute the roles of lawyers and judges, i.e., that define these roles (Fish 1991: 62) and provide a set of interpretive conventions within an interpretive community (Fish 1980: 14). The difference between Fish and Dworkin, as I see it, is that Fish believes, first, that we should treat these assumptions as conventions that work as the only criterion of correctness for any given interpretation, and second, that lawyers cannot help but apply these interpretive conventions, i.e., they do it “naturally” instead of only when they display some virtue or take certain special attitudes, whereas for Dworkin the ideal of objectivity plays a central role in distinguishing between “correct” and “incorrect” interpretations (Fish 1989: 87–119, 356–371; Dworkin 1983). It is conceptually possible, for Dworkin, that the whole community or the community’s interpretive conventions are incorrect about certain matters.

This is not an “error theory,” suggesting that officials and participants in the practice are systematically mistaken about their beliefs (Himma 2016), because we must resort to commitments and inferential relations among conceptual norms to identify these mistakes, instead of mysterious metaphysical entities (as an “immodest” conceptual analysis, in Himma’s sense, would require). Wil Waluchow’s account of a community’s constitutional morality seems to rely on a similar interpretive theory, when it distinguishes between a community’s “moral opinions” and its “moral commitments”: the former “describes moral views that have not been critically examined so as to achieve reflective equilibrium, and the latter those that have.” True moral commitments are those that hold good after a careful reflection under an interpretive scheme, because it is “the commitments, not the beliefs, that are said to be true – although those who believe that moral sentences express propositions to which truth values can be assigned will hope that their beliefs share this property as well” (Waluchow 2007: 224). Dworkin’s theory does not need to assume, therefore, that officials can be “systematically” mistaken about their practice, as Himma argued in an earlier work (Himma 2016).

35 Dworkin 1975: 1437 (emphasis added).

36 Himma 2016: 212.

37 Himma 2016: 212.

38 Dworkin 1975: 1437 (emphasis added).

39 Raz 1972: 839. I am not sure that Raz still believes this thought, given what he would go on to say, many years later, about the justification of values (Raz 2003) and the objectivity of morality and other domains (Raz 1999b: 118–160).

40 Dworkin 1986: 112.

41 Dworkin does not treat the “grounds of law” as “basic” or “final” determinants of its content, i.e., as a sort of underived goods from which we can infer the meaning of concrete provisions by modal relations. The inferences that connect the commitments which stem from the conception of these principles, on the one hand, and the rules and discrete provisions that Dworkin intends to reject, on the other, are often material inferences, in the sense that they do not take the logical form of modality. Material inferences arise from the conceptual contents we employ and from the relations of entailment and incompatibility that hold among these concepts. An inference like “1: citizens in a state can elect their own government; 2: Massachusetts is a state; hence, 3: the citizens of Massachusetts can elect their own government” is true in virtue of the modal relations between those premises, whereas an inference like “Los Angeles is to the west of Miami, therefore Miami is to the East of Los Angeles” is a material inference because what makes it true is the content of the concepts “east” and “west” together with the incompatibility relations between the commitments we undertake when we attribute meaning to these concepts. On the inferentialist interpretation, which in this review I endorse, the justificatory relationships that Dworkin presupposes with the claim that principles are “assumed by means of justification” are usually material inferences. But regardless of this status, they are correct inferences that help us see how norms in a large network support one another, in the way that integrity demands. For an assessment of whether Dworkin’s chain novel metaphor can be integrated in Brandom’s inferentialist philosophy of language, see Brandom 2014. For a comprehensive defence of the inferentialist interpretation of Dworkin, see also Decat 2015a, Decat 2015b, Klatt 2008, and Bustamante 2021.

42 Dworkin 1986: 113.

43 Dworkin 1986: 109.

44 Dworkin 1986: 91.

45 Dworkin 1986: 93.

46 Dworkin 1986: 83.

47 Dworkin 1986: 81.

48 Hershovitz 2006: 115.

49 Dworkin 1986: 189.

50 Hershovitz 2006: 116.

51 Hershovitz 2006: 116 (emphasis added).

52 Dworkin 1986: 184.

53 Dworkin 2011: 414.

54 Dworkin 2006.

55 See Priel 2020, Decat 2015a & 2015b, Nye 2016, and Bustamante 2019 & 2020.

56 Brandom 2011: 59.

57 Brandom 2011: 65.

58 Himma adopts a narrower account of philosophy which assumes that those who reject conceptual analysis because it is “metaphysically driven” must “lack formal training in philosophical method” (Himma 2020: 1). Nevertheless, sometimes the priority of practice instead of metaphysics appears even in scholars who are usually associated with the methodology of conceptual analysis. Raz, for instance, has made a persuasive argument to the effect that metaphysical explanations of the nature of social practices are interesting only to the extent that they illuminate important aspects of the practice: “Metaphysical pictures are, when useful at all, illuminating summaries of central aspects of our practices. They are, in other words, accountable to our practices, rather than our practices being accountable to them” (Raz 2009: 227–228, emphasis added). What seem to be guiding this idea are the ordinary features of the practice and the arguments which are internal to the practice at stake. Furthermore, in his discussion of the objectivity of a domain, including not only the domain of law but also the domains of values and morality, Raz proposes a “long route” to justify it, one that combines different criteria, including some that are normally classified by philosophers as “metaphysical, epistemic, and semantic.” In response to the objection that this approach conflates and confuses these criteria, Raz argues that “not all concepts can be readily separated in this way,” and that those who attempt to “separate semantic and metaphysical senses of objectivity miss the point that the two are interdependent, and that at the most fundamental level these stipulated concepts are not useful” (Raz 1999b: 130). Although Raz disagrees with Dworkin’s insistence that internal statements are all we have to explain the concept of law, what he says about the objectivity of practical domains seems compatible with Brandom’s fundamental pragmatism. I believe this conclusion is available when we consider Raz’s discussion of the “route-dependence” of understanding in general, according to which “we understand new things by relating them to what we already understand, even though had we started somewhere else we could have gained an understanding of those things without understanding how they relate to what we in fact know now” (Raz 2009: 44).

59 Dworkin 1975: 1437.

60 Postema 2003: 8.

61 Postema 2017: xlviii–xlix.

62 For a couple of intriguing analyses of the inferentialist commitments of common law reasoning, see Postema 2007 and Decat 2020.

63 Dworkin 1986: 55.

64 Bustamante 2020: 123.

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References

Electronic reference

Thomas Bustamante, Should the Coercion Thesis really be defended as a conceptual claim? Revus [Online], 45 | 2021, Online since 11 November 2021, connection on 26 January 2022. URL: http://journals.openedition.org/revus/7565; DOI: https://doi.org/10.4000/revus.7565

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About the author

Thomas Bustamante

Professor of Jurisprudence at the Federal University of Minas Gerais, Brazil. Senior Research Fellow at the National Council for Scientific Development (CNPq, PQ-1D, Grants Nos. 423696/2018-1 and 306284/2020-0).

Address: Federal University of Minas Gerais (UFMG) – Av. Antonio Carlos, 6627 – Belo Horizonte, Minas Gerais 31270-901 – Brazil

Email: tbustamante@ufmg.br

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