1It used to be a convention on bicycle paths near our house that one moved left when approaching another bicycle rider. It later became a law. What changed when that happened? When it was a convention, bad things could happen when one violated the convention – angry words perhaps, and the chance of having an accident went up. When moving to the left became a law, a further bad thing entered the picture: one became liable to a coercive sanction administered through a legal system.

3I am no philosopher of law, but he convinced me (a task made easier by the fact that I was antecedently disposed to accept something like the Coercion Thesis). My remit here is to discuss the way he argues for the Coercion Thesis in chapter two, “Methodology and the Nature of Law,” via claims about conceptual analysis.

We can apprehend the metaphysical nature of things only as they appear to us mediated through the concepts we deploy to organize and make sense of our experience; we have no reliable way to apprehend things as they are utterly independent of the concepts through which we organize the materials of our experience. It is an exercise in futility to attempt to understand C as it really is independent of the empirically contingent linguistic practices that enable us to talk about Cs to begin with.

• 3 Himma 2020: 37–38, his emphasis.

The only epistemically viable approach to conceptual analysis is MCA. MCA is epistemically viable because it is concerned with explicating the metaphysical nature of an entity of interest as it is determined, in part, by our empirically contingent linguistic practices; … . MCA purports to tell us something about how our conceptual activities structure the world – and not about how the world is structured independent of these conceptual activities that enable us to talk about something and hence to understand it.3

5The wordings in this passage (and they aren’t atypical) suggest views which many will find highly controversial. How can empirically contingent linguistic practices restrict our understanding of what our concepts refer to, and if they can, shouldn’t we reform those practices and shouldn’t we deploy the kinds of experimental methods to be found in the sciences to get around the restrictions? Isn’t the metaphysical nature of an entity one thing and our talk about it another? Is it really plausible that our conceptual activities structure the world? Surely our thoughts seek to ascertain the structure to be found in the world; they do not create that structure.

6With one exception to be noted later, I think that these worries, though understandable given the wordings, are mistaken. Himma’s methodology in defence of the Coercion Thesis is just fine, or so I will argue. I will spell this out by offering a kind of reconstruction of his line of argument for the Coercion Thesis. (It will be interesting to read his thoughts on my reconstruction.)

7We could not make sense of the world we inhabit without seeing – sometimes literally, but often in the sense of thinking or conceiving of – the items in it as falling into categories. We see the chairs we encounter as alike and as different from the tables and the gaps between them. If we didn’t, we would have trouble crossing the room, and even more trouble complying with a request like, “Please move the chairs further away from the tables.” We know that round objects roll more smoothly than square ones, and this bit of knowledge is about the behaviour of items that fall into the similarity classes we speakers of English use “round” and “square,” respectively, for. We seek understand how the economy is travelling by classifying it in terms of inflation, GDP, level of unemployment, etc., and we English speakers use “inflation,” etc., to report on our endeavours. We could not read text if we did not see various tokens of “a” as alike in the relevant way and as different from various tokens of “b,” “c,” etc., despite the fact that different tokens of “a” vary substantially depending on whether they are in Times, Courier, or one’s doctor’s handwriting. Understanding, predicting, and explaining the world we occupy involves a massive exercise in conceiving of the items in it as being alike and unalike in a myriad of ways; it involves a massive exercise in classification, if you like, along with our ability to identify those ways – that is, our ability to have reliable beliefs about when items are alike and unalike in those ways – and to talk and write about them. We need the last in order to share what we believe about them with others, and with ourselves in the future (which is why we take notes at meetings, for example).

8There is a sense in which we create the classifications and a sense in which we do not. The items to be found in our world are alike and unalike in their many ways, independently of us, or so we realists insist. Yes, it may take training, sometimes a good deal of training, to see items as alike in the relevant ways. Seeing and hearing sentences as grammatical or ungrammatical was something we all had to learn, but what we learnt to grasp is something that exists independently of us. We are acquiring an ability to spot the relevant similarities and differences; we aren’t creating them. What we create are the classifications we choose, implicitly or explicitly, to employ in making sense of the world, and not whether or not some item falls under some classification. Here is a simple example to clarify the issue. Anthropologists decided that it would be good to classify people together in terms of whether or not they have a parent in common, co-opting the term “sibling” to do the job in language: x and y are siblings just if they share a parent. They created the term and the classification, but they did not thereby create any siblings. Parents do that.

9Now if we create the classifications, and the words we use to report on them, it is perfectly reasonable for us to appeal to our intuitions about whether or not some item falls under some given classification, as captured in the words we use for that classification, in deciding whether or not the item does indeed fall under the classification. We are, in fact, all familiar with this kind of appeal to intuition when we wonder whether or not we have spelled a word correctly, or whether or not some sentence or other is or is not grammatical. Sometimes we find out whether or not we have spelt a word correctly by writing down the various versions we are undecided and seeing which one “looks” right. This is less common these days now that we have spell checkers in our word processing programs, but used to be a common occurrence for those of us with shaky spelling. The same happens with sentences. Some sentences sound or look “off” – “we is happy” is an example – and that’s how we find out that they are ungrammatical. Of course, we can make the same discovery using a grammar book, but (i) we do not need to (no one reading this essay needed a grammar book to tell themselves that “we is happy” is ungrammatical), and (ii) the grammar books get written by people who draw on their own intuitions and those of the people they consult. Anyone working in theoretical linguistics knows about placing an asterisk before a sentence to indicate ungrammaticality: the asterisks get assigned on the basis of intuition, on whether or not the sentences sound or look “off.”

11It is one thing to classify some body of rules and regulations as a legal system, and quite another to classify it as a set of norms of behaviour designed, or intended, to make things go better in one way or another. We can imagine a society with a functioning legal system but where no one in that society ever gets punished because no one breaks a law and no one gets punished by mistake: there are no lawbreakers and no law abiders punished in error in this society. This extremely unlikely possibility would not be a counterexample to the Coercion Thesis. For it would still be true in that society that had certain laws been broken, punishments would have been meted out. Next, imagine that this last feature is removed from our imagined society: it is not true that had “laws” been broken, punishments would have been meted out. Now there is nothing to make the difference between a law and a norm of behaviour. We have turned our imagined society into one without a legal system but with an elaborate set of behavioural norms. Subtracting constraints from a legal system turns it into a set of norms of behaviour. The constraints are not optional extras for a legal system; they are an essential part of what makes the difference between a legal system and a set of norms of behaviour.

12I have talked of the classifications we make and why they are so important. But there is of course a distinction between the classifications we make and the classifications it would be good to make for one or another purpose. I would not be doing justice to Himma’s book and its guiding methodology if I did not highlight the fact that his claim that the concept of a legal system is such that the Coercion Thesis is true is more than a merely descriptive one. His thesis is also a normative one: it would be good to make the possibility of punishment for breaking its laws a necessary condition for being a legal system, for it is part of the essential rationale for having legal systems. This theme appears in many places, and I will restrict myself to quoting a passage from late in the book.

• 5 Himma 2020: 240.

All that stands between civilisation and the state of nature is an institutional normative system that backs mandatory norms prohibiting certain assaults on persons or property with the threat of severe detriment; this is why every existing legal system in our world ... backs mandatory norms prohibiting acts likely to lead to breaches of the peace with the threat of incarceration – or worse.5

13As we might put it: had the Coercion Thesis not been an integral part of the concept of a legal system, it would have been sensible to change the concept to make it such a part. (Having two exact divisors was once not part of the concept of being a prime number. It was sensible to make it part of the concept because it was sensible to exclude the number one from the class of prime numbers.)