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Symposium on law and coercion

Legal normativity in Kenneth Einar Himma’s Coercion and the Nature of Law

Kara Woodbury-Smith

Abstract

In Coercion and the Nature of Law (CNL), Kenneth Einar Himma defends his Coercion Thesis, which states: the authorisation of coercive enforcement mechanisms is a conceptually necessary feature of law qua legal system. In this discussion, I engage with Himma’s writings on legal normativity, on which he relies to support his Coercion Thesis. The conclusions in CNL regarding legal normativity are established in Himma’s earlier writings where he defends what I call the Strong Normativity Thesis. This thesis claims that legally valid norms necessarily provide their subjects with objective reasons for action. It stands in contradiction to what I call the Weak Normativity Thesis, which maintains that legally valid norms claim to provide their subjects with objective reasons for action. Himma’s account of legal normativity may support his Coercion Thesis, but, as I will argue, it should not be wholly embraced. I will first give a brief account of the claims that ground Himma’s Coercion Thesis. Then I will unpack Himma’s account of legal normativity and explain how it supports his Coercion Thesis. I will finally explain why I am hesitant to accept Himma’s account of legal normativity.

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1 Introduction

  • 1 Himma writes that CNL is meant to provide an analysis of the concept of law, “as it picks out syste (...)
  • 2 Hart 2012: vi, 13–17. The others being the relationship between law and morality and law and rules.

1In Coercion and the Nature of Law (CNL), Kenneth Einar Himma defends his Coercion Thesis, which claims that the authorisation of coercive enforcement mechanisms (CEMs) is a conceptually necessary feature of law qua legal system.1 It is a no-stone-left-unturned analysis of the relationship between law and coercion – one of the relationships that was central to H.L.A. Hart’s The Concept of Law.2

  • 3 This is where legal normativity gets weedy. The law takes itself to be a normative authority, one w (...)

2In this essay, I will focus on what Himma writes in CNL about legal normativity: what he thinks it is and what he thinks we, as legal philosophers, ought to include in an account of legal normativity. Legal normativity is a weedy topic, but I generally take normativity in this context to be action-guidingness. At its most basic, then, the claim “law is normative” means that law guides its subjects’ conduct. Simply put, if you want to know how you should act in a given jurisdiction, then you should consult the law.3

  • 4 “Twin Earth” is from Hilary Putnam’s thought experiment from “The Meaning of ‘Meaning’” (Putnam 197 (...)

3Engagement with CNL, and with Himma’s other writings on legal normativity, is particularly difficult because we have different starting points; we mean different things when we think and write about the conceptual analysis of law as such. I think a conceptual theory of law ought to account for law at its most general, and I mean this in the Hartian sense: the objective is a conceptual theory of law that is universal in the sense that it can account for all instances of law anywhere – including Twin Earth, or Heaven.4 Himma, however, argues that such a project cannot be done.

  • 5 Himma 2020: 38; Jackson 1998.
  • 6 Himma 2020: 33–38.
  • 7 Himma writes: “The ultimate point of [modest conceptual analysis] is to explicate the world of our (...)
  • 8 Himma 2020: 49.

4In CNL Himma lays out what he takes to be the “only epistemically viable approach” to conceptual analysis of law. It is called modest conceptual analysis and is an application of Frank Jackson’s work in From Metaphysics to Ethics.5 As Himma explains it, Jackson argues that metaphysicians should be after so-called modest conclusions, which are conclusions that reflect and account for how things are according to our ordinary conceptions.6 Himma thinks we ought to use Jackson’s methodology in our conceptual analyses of law because we are after an explanation of how law is in the same way that metaphysicians are after an account of how the world is. And hence, Himma claims a conceptual theory of law ought to offer an account of how law is according to our ordinary conceptions, also known as folk concepts.7 One of the reasons he gives for this claim is that if a conceptual theory of law is too far removed from these ordinary conceptions, then it will result in an error theory.8 After all, how can the ordinary users of law – its subjects and those whose behaviour and attitudes are responsible for law’s existence – be mistaken about what law is?

  • 9 Himma 2020: 67–69.
  • 10 Himma 2020: 67.

5Where this is going concerning the relationship between law qua legal system and coercion may now be clear to some. Himma claims that, on the basis of ordinary conceptions of law, we can reasonably claim that the authorisation of CEMs is both a ubiquitous and central feature of legal systems.9 Following modest conceptual analysis, a conceptual theory of law needs to harmonize with that ordinary conception of law, and this is what Himma calls the prima facie case for his Coercion Thesis.10

  • 11 Himma 2016: 155.
  • 12 Himma 2020: 100, emphasis added.

6Himma’s use of modest conceptual analysis also informs what he takes to be the objectives a theory of law ought to have, particularly when it comes to his claim that a theory of law ought to vindicate law’s normative character, ought to explain how law (qua legal system) is capable of motivating us to comply with its mandatory norms for no reason other than that they are legal norms. Law, Himma points out, is presumed to be normative by legal scholars, by subjects of law, and by practitioners of law and, in line with the method of conceptual analysis he utilises, a theory of law must account for that ordinary conception.11 This, then, is why Himma writes that, “[a]ny conceptual theory of law lacking the resources to vindicate law’s presumed conceptual normativity fails ... – either because it is incomplete and needs supplementation or because it is false.”12

7In this essay, I am going to explore Himma’s claims regarding legal normativity further – what does he think law’s presumed normativity amounts to? How does his claim that a conceptual theory of law ought to vindicate law’s presumed conceptual normativity support the Coercion Thesis? Is he correct? In Section 2, I will provide an overview of how Himma’s Coercion Thesis comes together in CNL. In Section 3, I will explain why Himma thinks that there are difficulties associated with attempting to explain the normativity of law qua legal system independently of a legal system’s authorization of CEMs. Then I will explain what I take to be the feature of his arguments that gives me the most pause when I wonder whether this is a good account of the normativity of law as such. I think Himma’s bar for what constitutes a successful account of legal normativity is higher than what a conceptual theory of law as such needs to offer. Being able to precisely state how law qua legal system provides us with objective reasons for complying with its mandatory norms is dependent not only on how we conceive of law as such (in the Hartian sense), but also on understanding the ways in which humans can be motivated to comply with norms. Lastly, in Section 4, I will engage in a brief discussion regarding the disjunction between our understandings of law as such.

2 Coercion and the nature of law

  • 13 Himma 2018; Himma 2020: 81–97.
  • 14 Himma 2020: 77–79.
  • 15 Himma 2020: 77.

8Himma’s Coercion Thesis (that the authorisation of CEMs is a conceptually necessary feature of law qua legal system) is grounded in a series of claims that this section will briefly highlight. Law, per Himma, is an artifact.13 This means that law is a purpose-made object; it is intentionally created with certain end(s) in mind. Because artifacts are purpose-made, Himma writes, they necessarily have a conceptual function, or the purpose for which the artifact is made.14 The conceptual function of an artifact is, in turn, defined by its functional normativity, or what an object must be capable of being used for if it is to be properly designated as being a particular artifact.15

  • 16 It is unclear to me whether artifacts can only have one conceptual function, but for this example i (...)

9As an example, consider flathead screwdrivers. From observation alone, one could conclude that they have at least two typical uses: driving and unscrewing flathead screws and popping open paint cans. Which typical use is the conceptual function?16 The driving and unscrewing of flathead screws. Not only because this is what they are typically used for, but because that is the purpose for which they are made. So understood, the functional normativity of a screwdriver is the driving and unscrewing of flathead screws. Meaning, if something looks like a flathead screwdriver but is incapable of functioning in that way, then it is not entitled to the designation “flathead screwdriver” – even if it is able to pop open the odd paint can.

  • 17 Himma provides the argument for this claim in Himma 2020: 81–91.

10Let’s turn to law. Himma’s claim that law is an artifact includes the following sub-claims: (1) law is purpose-made, (2) law has at least one characteristic use, (3) law has a conceptual function, and (4) law has a functional normativity. According to Himma, the characteristic use of law qua legal system is to keep the peace in a given society. This is also the purpose for which law is made and maintained.17 So, keeping the peace is law’s conceptual function and, following that, its functional normativity, which ultimately means: a normative system that is incapable of keeping the peace is not law.

  • 18 Himma does not claim Hart is mistaken but, rather, that Hart’s account of the minimum conditions of (...)
  • 19 Hart 2012: 116–117.
  • 20 Hart 2012. It doesn’t matter whether subjects follow the law because it is law, or because they are (...)

11This mother claim (law is an artifact whose functional normativity is to keep the peace) is the lynchpin to Himma’s defence of his Coercion Thesis. One can understand the link between law’s normative function and the Coercion Thesis, as Himma unpacks them, by realising that he is employing the Hartian efficacy condition for the existence of law qua legal system.18 For Hart, there are two conceptually necessary features of legal systems: a legal system must be a complex union of primary and secondary rules (which must include rules of change, adjudication, and recognition) and its norms must be obeyed by most of its subjects most of the time.19 Hart is famously silent on how the second condition cashes out – saying that obedience by subjects of law can be for any reason.20 Himma takes that efficacy condition and extends it by claiming that unless a normative system is contrived in such a way that it is capable of giving reluctant subjects reasons to behave in accordance with its norms, it will not be reasonably capable of keeping the peace and, therefore, is not properly designated as a legal system. Put another way, law’s functional normativity is that it be normative in the sense that it actually provides its subjects with reasons to follow its mandatory norms.

3 Himma on legal normativity

12Having provided that broad-strokes account of Himma’s Coercion Thesis as defended in CNL, I will turn specifically to the topic of legal normativity. In CNL, Himma writes:

  • 21 Himma 2020: 99.

[T]he practices constituting something as a system of law are presumed normative in the sense that they give rise to something capable of persuading rationally competent subjects to change their minds about doing something prohibited by mandatory legal norms.21

  • 22 Himma 2013: 155. Briefly, an objective reason for action is one that applies to you even if you are (...)
  • 23 Himma 2013: 181.

13As Himma construes it, to claim “law is normative” is to claim that law (qua legal system) is capable of guiding our conduct because it is constructed in such a way as to be capable of motivating us to act legally. In order to get to the core of Himma’s understanding of legal normativity as expressed in the above quote, I want to turn to an earlier work where Himma defends the Strong Normativity Thesis (SNT), which asserts that “[i]t is a conceptual truth that laws are normative in the sense that they actually provide [objective] reasons for action.”22 SNT grounds his Coercion Thesis in some respect because, per Himma, a normative system is law if and only if it is capable of keeping the peace, and a normative system can only be capable of keeping the peace amongst self-interested human beings in a world like ours, e.g., with finite resources, if it authorises the use of CEMs.23

  • 24 Raz [1979] 2009: 30.

14Himma takes the task of properly accounting for legal normativity to consist in answering two questions: (1) why is it that, when law says “you must not y,” you have a reason to “not y”? And, (2) what kind of reason for action is the law providing? Focussing specifically on (1), Himma thinks it can only be sufficiently answered with reference to the aforementioned SNT. The SNT is importantly different from what I call the Weak Normativity Thesis (WNT), which asserts that the law is normative insofar as it claims to be a legitimate authority and, as such, claims to provide us with objective reasons for action. This is essentially Raz’s way of putting things and includes the further claim: legal norms claim to be first-order reasons for action that are also exclusionary in nature. So, a law prohibiting x claims to be a first-order reason to not x and also claims to exclude all other reasons to x.24

15There are two different assertions we can take the WNT to be making. Firstly, a claim about how the law presents itself and what it is. Second, a claim about subjects of the law and law-abiding behaviour; one that explains what it means to take the law as providing us with objective reasons for action. It is not, however, necessarily the case that every legal norm actually serves this purpose in our practical reasoning. This is because, following WNT, the answer to whether law actually provides objective reasons for action depends on the merits of the law in question.

16If the right social facts obtain, then there can be a valid legal norm prohibiting parents from hugging their sons in public. Most would, I hope, agree that such a law would be cruel and lack any merit. Here, WNT explains that whilst such a law claims to provide parents with an objective reason to refrain from hugging their sons in public, because the law claims that that conduct which it prohibits is wrong, such a law in fact fails to provide an objective reason for action in virtue of its cruelty. It furthermore seems reasonable to claim that not even the law could exclude the reasons a parent would have for hugging their son who had fallen off of his bike and needed comfort. This is true whether or not the law claims that it could exclude such reasons, and whether any parents actually act accordingly.

  • 25 Himma 2013: 155, emphases in the original.

17Himma rejects WNT in part because he thinks that “[t]he problem of legal normativity is concerned not with how law can or does [or claims to] provide moral reasons for action but how law provides reasons for action that are distinctively legal and characteristic of law.”25 Thus, in order to defend SNT, Himma needs to be able to explain how it is that legal norms are objective reasons for action in virtue of nothing more than their legal validity. The only way a legal system could give its subjects reasons to follow a law that is obviously lacking in merit, he claims, is to authorise the use of CEMs for non-compliance.

  • 26 He explains at Himma 2020: 145–146 that, given positivism, law has no necessary moral content. This (...)

18Here, then, is a very brief sketch of how Himma’s defence of SNT and his account of legal obligation hangs together: because legal norms are social constructions, they owe their normative character to other sorts of more basic explanations. Consider religious norms; they are social constructions and are reasons for action, but they are not basic reasons for action. This is because religious norms are grounded in more basic reasons for action including moral reasons for action (e.g., the norm “thou shalt not kill” is a basic moral reason for action that takes on a religious character because of its incorporation into the Ten Commandments) and prudential reasons for action (e.g., if you do not comply, then you risk going to Hell). Unlike religion, the normative character of our legal obligations, per Himma, can only necessarily reduce to prudential reasons for action.26

  • 27 Himma 2020: 195
  • 28 See Himma 2020: 182–191.
  • 29 Himma 2020: 180, emphasis added.

19As I wrote earlier, according to Himma, the conceptual function of law qua legal system is to keep the peace. Law is the thing that keeps us from a Hobbesian state of nature where we fallible humans would constantly war with one another over limited resources. If this is correct, then one could claim that there is a sense in which law does provide us with at least one objective prudential reason for action, even if we disagree with it. One could say that regulating our behaviour in accordance with legal norms keeps us safe by keeping the state of nature at bay. However, Himma explicitly denies this explanation of legal normativity.27 This seems to be because such an account of legal normativity presupposes that the legal system is good at keeping the peace.28 In order to vindicate law’s normativity, in order to explain how it is that law (qua legal system) is capable of motivating us to comply with its mandatory norms, Himma claims we ought to explain what reasons law gives us for obeying the law because it is law, not what reasons we might have to obey some law. This is why Himma ultimately claims: “We simply cannot make sense of why we do what we do with law unless the Coercion Thesis is true.”29

  • 30 Himma 2020: 99.
  • 31 Himma 2013: 161. The Equivalency Thesis is not directly referenced in CNL, but he makes a similar c (...)
  • 32 Himma 2020: 162.
  • 33 The Equivalence Thesis is echoed in CNL: “if l is a mandatory norm in … a legal system, then l give (...)

20To recall, per Himma, law is only presumed normative insofar as it is capable of motivating its subjects to comply with its mandatory norms.30 And its ability to motivate compliance cannot be dependent on some moral reason to comply with law; rather, it must be a distinctly legal reason. But why think this? The answer may be in an earlier work, where Himma defends what he calls the Equivalence Thesis, which states: “It is a conceptual truth that P is legally obligated to do a in circumstance C if and only if there is some legal norm that, in circumstance C, requires P to do a.”31 The Equivalence Thesis, for Himma, is a claim not only about legal obligation, but also about the law as an objective reason for action. Himma’s thinking seems to go like this: legal obligations are genuine obligations, in the same vein as moral obligations. If you have a moral obligation, then you really must, all things considered, do what that obligation requires because the essence of a moral obligation is that it expresses the right course of action. Legal and moral obligations may have different properties (depending on the theory of law to which one subscribes), but if both are said to be types of obligations, then they must have some similar features and, for Himma, that is the idea that both mandate conduct.32 If a is mandated of you – is actually required of you – then you have an objective reason to perform a, one that applies to you whether or not you are aware of it or accept it. So, another way to explain the Equivalence Thesis is as follows: it is a conceptual truth that P has an objective reason to a in circumstance C if and only if there is some legal norm that, in circumstance C, requires P to a.33 However, this is true only if the Coercion Thesis is true.

  • 34 Himma 2013: 181.

21There are, then, two parts to Himma’s argument surrounding legal normativity and his Coercion Thesis. Firstly, SNT is true, and law actually gives us objective reasons to do what the law says because it is law. Second, the quasi-Austinian claim that the authorisation of CEMs “constitutes a mandatory [legal] norm as legally obligatory.”34 It is a particular understanding of what it is to be subject to law qua legal system: you have objective prudential reason to follow legal norms, indeed are obligated to follow them, because if you do what they say, then you won’t get sanctioned.

  • 35 Himma 2016: 594.
  • 36 Himma 2016: 155–156.

22However, notice here that the conversation has slipped. In the introduction, I pointed out that Himma’s Coercion Thesis is about the nature of law qua legal system. It is not meant to account for the validity of legal norms, and Himma explicitly denies endorsing something like the Austinian command theory.35 However, the Equivalence Thesis states that the very existence of a mandatory legal norm necessarily creates an objective reason for action. So put, if norm z mandates conduct in legal system Z, then the legal validity of norm z is conceptually tethered to norm z being an objective reason for action, and norm z being an objective reason for action is dependent on legal system Z authorising the use of CEMs. All of this being true hinges on behavioural psychology and on what Himma takes the folk concept of law to be, which is itself grounded in what he thinks the ordinary users of law think law is. For instance, Himma supports SNT and the Equivalence Thesis with the observation that legal practitioners and theorists all talk, think, and act as though this is the role legal norms play in our reasoning – as though they are obligations rooted in objective reasons for action that are distinctly legal.36 And if this is how we all actually talk and think (that legal obligations are real, e.g., objective, obligations in virtue of their being legal), then our concept of law ought to reflect that.

  • 37 Himma 2016: 155.

23It may be a truism amongst legal practitioners and officials, and even some theorists, that legal obligations are obligations in the objective sense, even when they conflict with moral obligations.37 However, that theorists and practitioners take there to be such a class of obligations, and talk as though they necessarily arise from valid legal norms, does not establish the truth of what is believed or said. There may be other explanations. For example, it is obviously of rhetorical advantage for a prosecutor to speak and argue as though the law provides genuine reasons for action that warrant conviction of the defendant. Similar things are true of a judge whose role is to adjudicate the fate of litigants, often with seriously negative consequences for the losing party. The fact that such talk pervades legal practice provides us with little reason to think that valid law necessarily provides the genuine reasons for action that legal rhetoric presupposes.

24There are plausible, alternative explanations for this fact, such as the one provided by WNT: law claims to be the supreme normative authority for a given population; it claims that its norms provide us with objective reasons for action in virtue of their being “law” (in virtue of their legal validity). However, this claim does not entail that law does provide its subjects with objective reasons for action, or that it necessarily does so. And this is why our law incorporates sanctions – they are a failsafe. The legal norm itself – like the example from the misogynistic society that bans parents from hugging their sons – may lack any merit, and in such a case it would be incorrect to claim that the existence of such a legal norm gives its subjects objective reasons for action. However, if such a law were backed by CEMs, then, depending on the severity of the CEMs relative to the reasons one has to break the law, one could have a prudential reason to comply. This is an explanation that is perfectly consistent with WNT. It also strikes me as being consistent with human nature – we do not like complying with laws that seem to us to be pointless or wrong, and compliance with such rules could be explained by fearing consequences to ourselves or others. Such an understanding does not strike me as being significantly different from the explanation that SNT provides.

4 Methodological questions

25So far in this essay, I have picked up on one of the many lines of conceptual analysis that Himma explores in Coercion and the Nature of Law, specifically, his account of legal normativity and its role in defending his Coercion Thesis. If my exegetical work is correct and my reasoning is sound, then there does not seem to be any reason for preferring the Strong Normativity Thesis to the Weak Normativity Thesis.

26The discussion presented herein highlights the difference between how Himma and I approach the conceptual analysis of law as such. Himma writes:

  • 38 Himma 2020: 201–202.

If we cannot explain how the practices constituting something as a system of law are reasonably contrived to give rise to ... reasons to comply, then we cannot explain something that should be easily explained – namely, why we use these systems to regulate the behaviors we use them to regulate. The very rationality of our doing what we do with law rests on our being able to vindicate the presumption that it is conceptually normative.38

  • 39 Himma 2020: 180.

27As I pointed out in the introduction, Himma has a specific objective in mind, one that is in line with Jackson’s modest conceptual analysis: our conceptual theory of law ought to be framed by ordinary conceptions of law and by human nature and the human predicament. This means that questions surrounding a possible conceptual relationship between law and coercion are necessarily framed in terms of efficacy: the law as we observe and experience it here on Earth must, of necessity, authorise the use of CEMs in order to satisfy its purpose (to keep the peace). And because our law routinely authorises the use of CEMs in order to guarantee compliance with its directives, we actually have objective reasons for complying with the law. This is because the existence of a legal norm that prohibits or requires conduct within a legal system that authorises the use of CEMs for non-compliance itself provides a characteristically legal reason for action. Furthermore, because the authorisation of CEMs is a universal feature of all known legal systems, and our legal systems are the proper object of analytic jurisprudence, Himma’s Coercion Thesis must be correct. As Himma claims, without it, “[w]e simply cannot make sense of why we do what we do with law.”39

28The metric for success with regards to Himma’s understanding of modest conceptual analysis is whether a conceptual theory of law harmonizes with the folk concept of law. I worry, however, that this leaves very little room for conceptual work to move our folk concepts. The best pieces of philosophy are those that demonstrate how a previously held assumption (or a folk conception) is either problematic or erroneous. Those pieces intend to disrupt folk concepts. If the traditional canon of analytic jurisprudence teaches us anything, it is that the claim “coercion is not a conceptually necessary feature of law” may sound radical but, once unpacked, analysed, and clarified, it makes a good deal of sense. Folk concepts can alter with reflection, and the work of conceptual analysis – regardless of the area of research – ought not to be completely restricted by them.

29Law at its most general, in the Hartian sense, is not an impossible thing to think, talk, or write about. In this context, the oft-discussed society-of-angels thought experiment is pertinent. It is simply not a useful tool for conceptual analysis if what we are wondering about, if what we are after, is an illuminating analysis of “our” concept of our law – that is, the concept of law as it applies to human beings with all their limitations and motivations. On the other hand, the thought experiment is a particularly useful tool if what we are concerned about is not the concept of “human law,” but of law as such – a concept that applies as much to angels as it does to human beings. Simply put, if what we are out to analyse is law as such, then it is important that our analysis not be tied to the peculiarities of human beings. And what gets missed, if we focus exclusively on human law, are the important elements that conceptions of our law take from the concept of law as such.

  • 40 Woodbury-Smith 2020: 230.

30As I argue elsewhere, what we can take from Raz’s society-of-angels thought experiment is this: angels need law not only because they will need to solve coordination problems but also because they will need authoritative dispute resolution.40 After all, even morally perfect beings can have accidents. These two needs can be met by the introduction of norms that are determined by nothing more than a coin toss. But even a coin-toss legislated society would need to be systematized in order to provide a modicum of authority to the results of the coin tosses. After all, who gets to toss the coin? Is there only one official coin that can be flipped, or multiple? What factors determine when a coin toss is necessary and whether it was conducted in the proper manner? How will the results be recorded and publicised in such a way that subjects know the real (e.g., authoritative) result? For all this, even angels would need a functioning legal system. Another conclusion we can draw from engaging in Raz’s thought experiment is that all subjects of law have to be in some way incentivised in order to subject themselves to law. For angles, it is enough that their legal system successfully organises their lives so that they can live in peace. And if, as the thought experiment shows, there is a possible world where law can exist without authorising CEMs, then we have a strong reason to claim that coercion (or its authorisation) is not a conceptually necessary feature of law (qua legal system).

31Those who engage with questions about law at its most general will seem to be more concerned with fairy tales than with life here on Earth because a conception of law in its most general form will, at times, seem disconnected from what we see and experience. But this should only signal to us that filling in any lacunae – those instances where the conceptual theory seems especially disjointed from empirical observations – requires that we look to contingent features of our law as a form of law specifically designed to deal with the contingencies of human existence. Analyses of our law, like Himma’s, extend beyond those general features of law, such as the need for subjects of law to be incentivised in some way to comply with it, and go on to ask: how are we typically incentivised to subject ourselves to law? To this question we might add further questions concerning incentives such as, how should our legal systems incentivise us to subject ourselves to law? After all, perhaps the fact that coercion is, as Himma argues, central to our folk concept of law has resulted in overtly and overly coercive legal systems.

5 Conclusion

  • 41 Himma 2020: 42.

32Coercion and the Nature of Law is a book about our concept of our law. As Himma writes, “the exclusive concern of this volume is to understand what we do with what we call law.”41 It is best received, I think, as a study in the psychology of law – one that takes claims about law as such (like, law is a social phenomenon; legal norms are rules; law qua legal system is created for the purpose of ensuring our mutual survival; the existence of law is not conceptually dependent on the existence of coercive mechanisms, etc.) and fills in any lacunae with reference to empirical observations about human nature, our particular psychologies, and about law as we see and experience it – and it gets a lot right. Utopia is not possible in our world. Even in the most perfect legal system – where subjects trust their legal officials to act in their best interests (because their legal officials actually do try to act in their best interests), where everyone in society has a sufficient minimum standard of living, where subjects genuinely want to know what the law is so they can follow it (because they accept that sometimes they have to do stuff that they don’t want to do in order to sustain their society) – even there someone will want more from their legal system or more than their fair share of resources. And so, even there, the authorisation of CEMs will be necessary (naturally, of course). But this should not blind us to the fact that all of this is true only because of contingent features of us and our world, which have little to do with the nature of law as such.

Acknowledgments.— My thanks, first and foremost, to Ken Himma for his exceptional book and for always being supportive of my engagement with his work. Heartfelt thanks as well to Luka Burazin for putting this symposium together and inviting me to take part. This response was inspired by a section in my doctoral thesis, The Nature of Law and Potential Coercion, called “What’s Normativity Got to Do with It?” This luckily means I get to thank some of the people central to my completing that project, like Mike Giudice, Violetta Igneski, and Wil Waluchow.

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Bibliography

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Himma, K. (2013). A Comprehensive Hartian Theory of Legal Obligation: Social Pressure, Coercive Enforcement, and the Legal Obligation of Citizens. In W.J. Waluchow & S. Sciaraffa, Philosophical Foundations of the Nature of Law (pp. 152–182). Oxford University Press.

Himma, K. (2016). The Authorisation of Coercive Enforcement Mechanisms as a Conceptually Necessary Feature of Law. Jurisprudence, 7(3), 593–626. DOI: 10.1080/20403313.2016.1236896.

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

Himma, K. (2020). Coercion and the Nature of Law. Oxford University Press.

Jackson, F. 1998. From Metaethics to Ethics: A Defence of Conceptual Analysis. Oxford University Press.

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Putnam, H. (1979). The Meaning of “Meaning.” In Philosophical Papers, Vol. II, Mind, Language, and Reality (pp. 215–271). Cambridge University Press.

Raz, J. ([1979] 2009). The Authority of Law: Essays on Law and Morality (2nd ed.). Oxford University Press.

Raz, J. (1990). Practical Reasons and Norms. Princeton University Press.

Woodbury-Smith, K. (2020). The Nature of Law and Potential Coercion. Ratio Juris 33(2), 223–240. DOI: https://doi.org/10.1111/raju.12288.

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Notes

1 Himma writes that CNL is meant to provide an analysis of the concept of law, “as it picks out systems, rather than norms, of law” (Himma 2020: 47).

2 Hart 2012: vi, 13–17. The others being the relationship between law and morality and law and rules.

3 This is where legal normativity gets weedy. The law takes itself to be a normative authority, one whose norms you ought to comply with for no reason other than that it is law. That the law’s claim to be a normative authority can come apart from investigations into whether it is actually regarded as a normative authority by its subjects, or even investigations into why we should do what our laws tell us to, is at the crux of this discussion.

4 “Twin Earth” is from Hilary Putnam’s thought experiment from “The Meaning of ‘Meaning’” (Putnam 1975) and “Heaven” alludes to Joseph Raz’s Society of Angels thought experiment in Practical Reason and Norms (Raz 1990).

5 Himma 2020: 38; Jackson 1998.

6 Himma 2020: 33–38.

7 Himma writes: “The ultimate point of [modest conceptual analysis] is to explicate the world of our experience as we construct it socially” (Himma 2020: 42).

8 Himma 2020: 49.

9 Himma 2020: 67–69.

10 Himma 2020: 67.

11 Himma 2016: 155.

12 Himma 2020: 100, emphasis added.

13 Himma 2018; Himma 2020: 81–97.

14 Himma 2020: 77–79.

15 Himma 2020: 77.

16 It is unclear to me whether artifacts can only have one conceptual function, but for this example it helps to presume this is generally the case.

17 Himma provides the argument for this claim in Himma 2020: 81–91.

18 Himma does not claim Hart is mistaken but, rather, that Hart’s account of the minimum conditions of law qua legal system is incomplete because it does not sufficiently explain what Himma thinks it ought: “[H]ow the practices constituting a system of law are reasonably contrived to give rise to new ... reasons to comply [with its norms]” (Himma 2020: 144).

19 Hart 2012: 116–117.

20 Hart 2012. It doesn’t matter whether subjects follow the law because it is law, or because they are afraid of sanctions, or because they think that it is morally obligatory to follow the law. Other scholars, like Andrei Marmor, have echoed this point: that the practice of law can exist as long as enough people “play the game, for whatever reasons for doing so they may have” (Marmor 2001: 33).

21 Himma 2020: 99.

22 Himma 2013: 155. Briefly, an objective reason for action is one that applies to you even if you are unaware of it or refuse to guide your behaviour in accordance with it. For instance, the risk of skin cancer is an objective reason to wear sunscreen at the beach – and this applies to you even if you decide against applying sunscreen or are unaware that exposure to UVA/B rays increases your risk of skin cancer.

23 Himma 2013: 181.

24 Raz [1979] 2009: 30.

25 Himma 2013: 155, emphases in the original.

26 He explains at Himma 2020: 145–146 that, given positivism, law has no necessary moral content. This means that legal obligation cannot reduce to or be explained by moral obligation because we only have moral obligations to comply with moral norms.

27 Himma 2020: 195

28 See Himma 2020: 182–191.

29 Himma 2020: 180, emphasis added.

30 Himma 2020: 99.

31 Himma 2013: 161. The Equivalency Thesis is not directly referenced in CNL, but he makes a similar claim: “if l is a mandatory norm in ... a legal system, then l gives rise to an objective motivating reason to comply in subjects of that system because l was enacted ... [in that] legal system” (Himma 2020: 188–189).

32 Himma 2020: 162.

33 The Equivalence Thesis is echoed in CNL: “if l is a mandatory norm in … a legal system, then l gives rise to an objective motivating reason to comply in subjects of that system because l was enacted … [in that] legal system” (Himma 2020: 188–189).

34 Himma 2013: 181.

35 Himma 2016: 594.

36 Himma 2016: 155–156.

37 Himma 2016: 155.

38 Himma 2020: 201–202.

39 Himma 2020: 180.

40 Woodbury-Smith 2020: 230.

41 Himma 2020: 42.

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References

Electronic reference

Kara Woodbury-Smith, “Legal normativity in Kenneth Einar Himma’s Coercion and the Nature of LawRevus [Online], 45 | 2021, Online since 11 November 2021, connection on 26 January 2022. URL: http://journals.openedition.org/revus/7699; DOI: https://doi.org/10.4000/revus.7699

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About the author

Kara Woodbury-Smith

Assistant Professor of Legal Theory - Durham Law School, Durham University (UK)

Address: Stockton Road, Durham - DH1 3LE – England, UK

E-mail: kara.m.woodbury-smith@durham.ac.uk

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