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In defence of the Coercion Thesis and modest conceptual methodology

A reply to critics
Kenneth Einar Himma

Abstract

This is the author’s reply to a book symposium on law and coercion. Himma’s book – Coercion and the Nature of Law (OUP 2020) – had two principal objectives. The first was to show it is a necessary condition for a normative system to count as one of law that it includes prohibitions on violence and theft that are backed by detriment that counts as a sanction in virtue of being reasonably contrived to deter enough noncompliance to enable the system to minimally achieve its function of keeping the peace (the Coercion Thesis). The second was to defend and illustrate the methodology of modest conceptual analysis as defined by Frank Jackson. The book was critically discussed by Brian Bix, Thomas Bustamante, Frank Jackson, Paolo Di Lucia and Lorenzo Passerini Glazel, Anna Pintore, Pablo Rapetti and Kara Woodbury-Smith in the 45th issue of Revus.

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1I want to thank the editors of Revus for sponsoring this symposium on Coercion and the Nature of Law (OUP 2020). I am deeply indebted to each of the philosophers who honoured me with their thoughtful reviews of the book. I apologize to all for my delay in replying.

2The book had two principal objectives. The first was to show it is a necessary condition for a normative system to count as one of law that it includes prohibitions on violence and theft that are backed by detriment that counts as a sanction in virtue of being reasonably contrived to deter enough noncompliance to enable the system to minimally achieve its function of keeping the peace (the Coercion Thesis). The second was to defend and illustrate the methodology of modest conceptual analysis (MCA). MCA explicates the nature of a kind as it is determined by our semantic conventions for using the corresponding term as qualified in hard cases by certain shared philosophical assumptions about its nature – i.e. as it is determined by our conceptual practices. Immodest conceptual analysis (ICA) explicates the nature of a kind as it is determined by objective considerations that are utterly independent of anything we do with words – i.e., as it is determined independently of our conceptual practices.

3The book adopts MCA because it is the only epistemically viable methodology for conceptual analysis; it seems clear to me that no ordinary human being has reliable epistemic access to the nature of a kind as it is determined independently of our conceptual practices by purely objective considerations. To do ICA, one would need something akin to a God’s-eye view of the nature of kinds that none of us can plausibly claim to have. We have, after all, little reason to believe our basic perceptions of the objective material world mirror what it is actually like — though they clearly enable us to thrive in this world. But we have even less reason to believe that we have insight into the nature of a kind as it is determined independently of anything we do with words. I adopt MCA, then, because it is, as far as I can tell, the only game in town.

4It bears noting that each of the reviewers accepts some version of the claim that law is, by nature, coercive in the sense it is a necessary condition for a system to count as one of law that some of its norms are backed by the threat of a sanction. And I surmise some would go further, as I would, and argue that it is a necessary condition for a mandatory norm to count as one of law that it is backed by a sanction. In this respect, each of the reviews vindicates the Coercion Thesis.

1 Reply to Brian Bix

  • 1 I address these criticisms in Section 4 of Chapter 1 of Himma 2019.

5Bix’s review begins with an exposition of the book’s methodology and arguments and then criticizes it for not engaging more directly with the various criticisms of the project of conceptual analysis.1 As Bix (2019: 32) describes Brian Leiter’s criticisms, conceptual analysis is “an outdated ‘armchair’ view to do philosophy, an approach that other philosophical disciplines have abandoned”. Leiter and others argue that conceptual analysis should not be done because, among other reasons, it is “uninteresting” and has no normative implications that would enable us to improve our legal practices.

6 I don’t know whether Bix is endorsing these criticisms. Either way, however, they are important enough to warrant a response. To begin, it is not true that philosophers have abandoned conceptual analysis. Philosophers specializing in metaphysics (which concerns, among other things, the nature of time, space, free will, causation, etc.) or metaethics (which concerns, among other things, the nature of good, right, wrong, morality, etc.) continue to pursue conceptual analysis. Visit any accredited philosophy department and you will find someone competent with metaphysics and someone competent with metaethics.

7Indeed, and on the contrary, the project of conceptual analysis is enjoying a philosophical resurgence — and one, moreover, that highlights the ascendency of MCA. The projects of experimental philosophy and conceptual engineering are becoming increasingly influential: experimental methods are deployed to ascertain the intuitions of competent speakers pertaining to hard cases so as to better understand our conceptual practices. Similarly, conceptual engineering is concerned with understanding and evaluating our conceptual practices so as to revise them to eliminate perceived problems.

8Bix also worries about my apparent lack of engagement with John Finnis’s substantive views, but I do not engage his natural law theory for two reasons. First, with one crucial exception discussed below, the arguments I make in the book are non-partisan in the sense they do not presuppose the truth of legal positivism. Second, and more importantly, Finnis (1996: 203, 204) makes clear he accepts positivism’s separability thesis:

‘There is no necessary or conceptual connection between positive law and morality.’ True, for there are immoral positive laws; ‘there are two broad categories (with many sub-classes) of unjust laws…’. And a conceptual distinction or disconnection is effortlessly established by the move made in the Summa, of taking human positive law as a subject for consideration in its own right (and its own name), a topic readily identifiable and identified prior to any question about its relation to morality…. ‘The identification of the existence and content of law does not require resort to any moral argument.’ True, for how else could one identify wicked laws such as Israel’s prophet denounced in words so often quoted by Aquinas: ‘Woe to those who make unfair laws [leges iniquas] who draw up instruments imposing injustice [iniustitiam], and who give judgments oppressing the poor’?

  • 2 Himma 2019.

9As I argue in Morality and the Nature of Law,2 Finnis’s natural law theory is intended to explicate an evaluative usage of law – i.e., law in its ideal sense or law as it should be, and he believes that positivism’s separability thesis is true of the descriptive usage of law because that thesis cannot be plausibly disputed: it is simply undeniable, on the descriptive usage we construct with our conceptual practices, that there can be wicked law.

  • 3 Dictionaries are compiled by lexicographers who ground their definitions in scientifically rigorous (...)

10My concern in the book was to explicate the descriptive usage, which is the only one reported in mainstream dictionaries.3 While law in its ideal sense might have a moral purpose (e.g., to do justice, as determined by substantive natural law theory), there is no reason to think law in its descriptive sense has such a purpose; and the idea that the basic purpose of law is the purely descriptive one of maintaining order has an impressive pedigree that goes back as far as Locke, Hobbes, Blackstone, Aquinas. There is, of course, obvious moral value in keeping the peace (war is bad). However, we are motivated, first and foremost, by the prudential value of keeping the peace; if there is no objective morality, we would still be motivated to create some sort of normative system contrived to keep the peace. Few people would be willing to try to live together without the coercive mechanisms of law.

11As for the worry that it is not desirable to focus on conceptual analysis without worrying about the moral evaluation of law, my voice is certainly not needed to contribute to the moral evaluation of law. There are, after all, vastly more theorists evaluating our legal practices than there are theorists addressing conceptual problems. And I would be stunned if I have anything new or worthwhile to contribute to that discussion.

2 Reply to Thomas Bustamante

  • 4 Bustamante 2021: 39.

12Bustamante is a Dworkinian who, like Dworkin, accepts the Coercion Thesis. However, he believes that law’s coercive nature cannot be satisfactorily grounded in MCA. As he expresses the matter, “other methodologies, like Dworkin’s interpretivism (if interpreted as endorsing an inferentialist theory of meaning), can provide a more plausible account of the coercive nature of law”.4

  • 5 See above for Finnis’s views on the matter.

13 Three observations might be helpful here. First, Dworkin accepts the Coercion Thesis but gives no argument for it; he simply builds it into his analysis of the concept of law, which holds that the law of a community includes not only those rules enacted by the relevant authoritative body but also those moral principles that justify the use of coercive enforcement mechanisms. Second, there is nothing in any of my arguments that Dworkin is committed to rejecting. Indeed, he could adopt any of them without even prima facie inconsistency. Third, and most importantly, Dworkin (1986: 103–104), like Finnis,5 makes clear he is concerned with explicating an evaluative – or “preinterpretive” – concept of law and that he believes positivism is consistent with his analysis:

We need not deny that the Nazi system was an example of law … because there is an available sense in which it plainly was law. But we have no difficulty in understanding someone who does say that Nazi law was not really law, or was law in a degenerate sense, or was less than fully law. For he is not then using ‘law’ in that sense; he is not making that sort of preinterpretive judgment but a skeptical interpretive judgment that Nazi law lacked features crucial to flourishing legal systems whose rules and procedures do justify coercion.

  • 6 Dworkin is critical of the view that the criteria of validity are necessarily exhausted by a rule o (...)

14Though there are clearly some differences between Dworkin and positivists,6 the misunderstanding that Dworkin’s mature theory of law in Law’s Empire is inconsistent with the basics of positivism continues to persist despite the unambiguous character of these remarks.

15 Much of what Bustamante says in his review of my book is less concerned with my views than with mounting a defence of the Coercion Thesis grounded in the evaluative methodology that Dworkin deploys in defence of his interpretivism. Indeed, and somewhat oddly, Bustamante never offers a reason to think Dworkin would reject the use of MCA in defending the claim that the Nazis had a legal system; and I see no other reasons to think Dworkin is committed to rejecting any of the substantive claims I make in the book in defence of the Coercion Thesis.

16Bustamante argues that those arguments count as pragmatic in character because they are grounded in claims about our practices. In particular, he argues that Hart’s remark that The Concept of Law is “an essay in descriptive sociology” shows he intends his arguments as pragmatic. But a consideration of the full context of those remarks makes clear Hart (2012: vi) is concerned to give an analysis of what we do with words:

The lawyer will regard the book as an essay in analytic jurisprudence, for it is concerned with the clarification of the general framework of legal thought, rather than with the criticism of law or legal thought. Moreover, at many points, I have raised questions which may well be said to be about the meanings of words.… Notwithstanding its concern with analysis the book may also be regarded as an essay in descriptive sociology; for the suggestion that inquiries into the meanings of words merely throw light on words is false. Many important distinctions, which are not immediately obvious, between types of social situations or relationships may best be brought to light by an examination of the standard uses of the relevant expressions and of the way in which these depend on a social context, itself left unstated (Emphasis added).

  • 7 See, e.g., Preston (2022: sec. 2.3) and Burazin (2023: 1846).

17Although my argument relies on the claim law has a basic function, this does not constitute the strategy as pragmatic. It is an uncontentious conceptual truth that every artifact performs some task we want or need it to do; it is nearly universally accepted among artifact theorists that an artifact is, by nature, contrived to perform some basic function – i.e., one it needs to be able to perform in order to do anything else it is standardly used to do.7 If law counts as an artifact, it is partly because it has a basic function.

18 It should be clear that both the Coercion Thesis and its supporting arguments are conceptual in character. To begin, it is worth noting that Oxford English Dictionary defines law as “the system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties.” Further, Chapters 4 through 8 are all aimed at vindicating the conceptual truism that law is normative in the sense that it is a necessary condition for a system to count as one of law that its mandatory norms give rise to reasons to comply. The point of the last two chapters discussing international law and the society of angels is to show that neither is a counterexample to the Coercion Thesis.

  • 8 They can, of course, help us to identify counterexamples to a claim purporting to be necessarily tr (...)

19 Bustamante (2021: 43) accepts my conclusions but argues “they are based on empirical claims.” That is true, but inconsequential because those claims describe our conceptual practices and hence count as metaphysical in virtue of purporting, as every conceptual claim does, to be necessarily true. There are no other empirical observations that could justify a necessary truth about the nature of a kind.8 It is a necessary truth on our conceptual practices that every bachelor is an unmarried man because — and only because — we converge in using the term bachelor, as a contingent empirical matter, to refer only to unmarried men.

3 Reply to Paolo Di Lucia and Lorenzo Passerini Glazel

  • 9 Di Lucia & Glazel 2021: 57.

20Di Lucia and Glazel focus on what they deem to be “risks” of MCA, which, they argue, illegitimately grounds substantive conclusions about the nature of law in “the canons or ordinary usage and on the philosophical assumptions of an undefined and contingent linguistic and cultural community”.9

  • 10 Di Lucia & Glazel 2021: 62.
  • 11 Ibid.
  • 12 Di Lucia & Glazel 2021: 63 (emphasis added).
  • 13 Ibid.

21It is worth noting they do not try to show that ICA is epistemically viable. Instead, they describe the following four problems with MCA. The first is that, “among people who construct definitions for a living, there is no single, generally accepted cognitive model, even for such common concepts as ‘mother’”.10 The second is that there are “divergent” or “alternative” usages of the term law.11 The third is that “linguistic analysis [is] … not merely descriptive or explicative but critical [in the sense] … [o]rdinary language is rendered more rigorous and less flexible, or indeed entirely supplanted by, scientific language”.12 The fourth is that “it is unclear whom the adjective ‘ours’ refers to [in our conceptual practices] – except for the exclusion of the academic philosophical community”.13

22I begin with the fourth: the term “our” refers to the community of competent speakers of our language, which does not exclude members of the academic community; the intuitions they have about the nature of law are also obviously conditioned by their competence with the term law. The relevant point is simply that we philosophers are constrained in giving an account of the nature of law by our conventions for using the term. That seems indisputable because any theory of law inconsistent with the idea that law consists of norms can be rejected – and conclusively – for that reason. It would, for example, be obviously preposterous to claim that law is, by nature, composed of H2O molecules.

23As to the third criticism that what they characterize as linguistic analysis is “critical” in the sense described above: that might be true, but that’s not inconsistent with anything I say because I do not claim to be doing that kind of linguistic analysis. Philosophers are free, of course, to pick out aspects of our usage that are problematic and recommend changes. This is being done with great success by those engaged in the project of conceptual engineering. One could group the two projects together, but I see no reason to do so. The projects of describing our conceptual practices and evaluating them might be related, but they are also clearly distinct, and it accomplishes nothing of value to suggest otherwise.

24Further, it is false that the point of analysing our conceptual practices is necessarily to replace ordinary language with more rigorous scientific language. The physical sciences have contributed to improving our conceptual practices, as they did in leading us to revise the term water to refer only to liquids composed of H20 molecules. But that doesn’t change the fact that description/explication and evaluation/revision are different projects.

25As to the second criticism that there are different usages of “law”: that is true but irrelevant. There are usages that refer to the propositions that purport to describe causal regularities in the universe (the so-called laws of nature) and to morality. But the Coercion Thesis is concerned by its own terms with only the usage that refers to what John Austin and Jeremy Bentham describe as “positive” or “posited law” and there is no reason to think my focus on that usage is problematic.

26It is worth noting the descriptive usage with which my book is concerned is the only one recognized by mainstream dictionaries because that is the only one we use in ordinary contexts. When one travels to a foreign country and wants to know whether, say, the law prohibits use of cannabis, one is asking whether there is a legal prohibition that is enforced in that country, which is all that really matters as a prudential matter.

27Indeed, the only competent speakers I have ever encountered who use the term in an evaluative sense are legal philosophers, such as Finnis and Dworkin. However, this technical evaluative use does not, as far as I can tell, enable us to do anything we cannot do more clearly by simply thinking in terms of the moral principles governing legitimate authority. I would hypothesize that the reason the evaluative usage has not gained currency in ordinary usage is that it is just not needed to discuss anything we need to worry about when it comes to law.

28Finally, as to the first criticism that there is no commonly accepted “cognitive model” for ordinary concepts: that might be true, but it is clear that there is core content to the relevant usage of the term “law” that every speaker who counts as competent with the term would accept in virtue of being competent with that term — such as the claim that law consists of norms.

29And it is not the business of descriptive conceptual analysis to produce cognitive models. “Cognitive model” as defined by the American Psychological Association Dictionary of Psychology, means “a theoretical view of thought and mental observations, which provides explanations for observed phenomena and makes predictions about an unknown future.” There is a trivial sense in which MCA is concerned with explaining an observed phenomena (i.e., our conceptual practices for using words) and making predictions about an unknown future (i.e., that we will continue to use words in this way), but it distorts the idea of conceptual analysis beyond recognition to describe it as a “psychological theory” and it distorts the idea of a cognitive model as much to suggest it is concerned with our conventions for using words.

4 Reply to Frank Jackson

  • 14 Jackson 2021: 71.
  • 15 Jackson 2021: 72.

30Jackson’s comments are sympathetic to both the Coercion Thesis and the arguments of the book. He says, for instance, “I am no philosopher of law, but [Himma] convinced me (a task made easier by the fact that I was antecedently disposed to accept something like the Coercion Thesis)”.14 Although he observes that my views about MCA diverge in some particulars from his, he defends the methodology as I have articulated it: “Himma’s methodology in defence of the Coercion Thesis is just fine, or so I will argue”.15

  • 16 Jackson 2021: 73.

31 Jackson has two principal worries. While I characterize the Coercion Thesis as a purely descriptive claim, he argues certain remarks I make express a normative claim — namely that “it would be good to make the possibility of punishment for breaking its law a necessary condition for being a legal system, for it is part of the essential rationale for having legal systems”.16 He points to the following remarks I made as evidence the Coercion Thesis expresses a normative claim:

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 system of our world … backs mandatory norms prohibiting acts likely to lead to breaches of the peace with the threat of incarceration – or worse (Himma 2020: 24).

32 I was not intending to make a normative claim in that passage; however, my language invites that interpretation. This text occurs in a chapter of the book where I was making an empirical argument that the Coercion Thesis coheres with existing legal practice because every system in our world that counts as one of law backs mandatory prohibitions on acts likely to lead to a breach of the peace with something that counts as a sanction. But that claim about existing legal systems should be distinguished from the conceptual claim about the nature of law: the empirical claim is that without law we would likely fall into a state of nature; the conceptual claim is that the Coercion Thesis is true because we have adopted the term “law” to refer only to systems that are minimally efficacious in keeping the peace in virtue of backing those prohibitions with a sanction.

33Jackson’s methodological concern is that I give MCA too large a role in structuring the world. On his view, the problem is that:

  • 17 Ibid.

There 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… What we create are the classifications we choose, implicitly or explicitly, to employ in making sense of the world, and not whether some item falls under some classification…. 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…. They created the term and the classification, but they did not thereby create any siblings. Parents do that.17

34 Jackson is correct, and I did not mean to suggest otherwise. As I typically put the matter, what we do with words structures the world of our experience by organizing kinds and their instances into an ontology. But those conceptual practices assume the things we name already exist in the world of our experience. Indeed, it is the fact that we notice they exist and are salient that explains why we adopt words to talk about them. Our conceptual practices structure the world, as I intend that idea, only in the limited sense that they create a framework that assigns words to the various kinds we experience so we can talk about those kinds.

35 Jackson worries that this claim is incompatible with ontological realism, but I disagree. It is, as far as I can tell, compatible not only with realism but also with antirealism. That I consistently speak in terms of the world of our experience or our world was intended to acknowledge that what we perceive might not be really true; but that latter claim is compatible with the realist view the world really exists and with the antirealist view that it doesn’t really exist. Those perceptual beliefs might be false because the world doesn’t exist, or they might be false because our perceptions systematically misrepresent what the world really looks like. The Coercion Thesis and supporting arguments are compatible with both ontological views.

36 This is as it should be. A modest conceptual theory of law should not make any assumptions about whether the world as we perceive it exists in some immodest sense. Since our conceptual practices are what they are regardless of whether realism or antirealism is true, an account of those practices should be agnostic about the disputes between realism and antirealism. Our conceptual practices structure the world of our experience, and, for all we can be certain of, our beliefs about the mind-independent world might be systematically mistaken.

5 Reply to Anna Pintore

  • 18 She is not shy about expressing her disdain for the concerns of the “Anglo-American” world of legal (...)

37Pintore’s review (2021: 79) begins with a strikingly aggressive remark: “To dispel any doubt, I will say immediately that there are very few points in the book that I agree with, notwithstanding the fact that I believe, like its author, that coercion plays a crucial and ineluctable role in the legal world”.18 Ouch.

38Unfortunately, Pintore’s review tends to meander, so it is not always easy to understand. However, her principal complaints seem to be that my analysis: (1) “equat[es] legal coercion with authorization to impose sanctions,” (2) “oscilat[es] between law in general and law here and now,” (3) relies on a concept of normativity that is either unclear or nonstandard, and (4) “reduce[s] the motives for law-abidance to a single one – the desire to avoid a sanction.”

  • 19 She also points out (Pintore 2021: 82), first, that “not all sanctions are penal sanctions” and, se (...)

39 I am baffled by these claims. I have no idea why, to begin, she thinks (1) is problematic, since she accepts the Coercion Thesis. It is an obvious truism that one can coerce only by threatening detriment. If the relevant norms are coercive in the relevant sense, it is because they are backed by the threat of a sanction. While Pintore points out law is not the only normative system that backs its prescriptions with a sanction, there is nothing in the book inconsistent with that claim; the Coercion Thesis is, after all, limited by its own clear terms to systems of law.19

40 Similarly, I do not understand which elements of my argument Pintore believes “oscillate” in an objectionable way between law in general and particular instances of legal systems. If one wants to show, for instance, that international law is not a counterexample to the Coercion Thesis, as I argued in Chapter 9 of the book, one must discuss the particular system of international law governed by the U.N. Charter. I suppose that might count in some literal sense as “oscillating,” but that is part of what must be done to show a claim is true as a matter of conceptual necessity.

41 Pintore’s concerns about the concept of normativity are just as confusing (“which normativity?” she asks in the title to her review). Much of the analysis in the central part of my book is concerned with defending the claim that law is conceptually normative in the sense that it is part of the nature of a legal system that at least some of its norms create reasons to comply. The book argues that if law is conceptually normative in that sense, the Coercion Thesis uniquely vindicates its conceptual normativity; and that cannot be plausibly denied. Since there can be wicked systems that count as law, not every legal system creates moral reasons to comply. But if that is correct, then the only reasons a system of law could create as a matter of conceptual necessity are prudential and the Coercion Thesis provides the only remotely plausible explanation of how it can create such reasons as a matter of conceptual necessity.

42As to her final concern, there is nothing in either the book or the Coercion Thesis that “reduce[s] the motives for law-abidance to a single one – the desire to avoid a sanction.” Indeed, I explicitly reject that claim in the very first chapter of the book: “but none of this implies it is a conceptual truth that people whose behavior complies with the law must be motivated, even in part, by a desire to avoid the sanctions judges are authorized to impose on subjects for non-compliance.” What I claim — a few sentences later — is that the prospect of incurring a sanction is normatively relevant even for those who comply for other reasons:

While there are some legally prohibited acts from which I abstain, such as jaywalking in front of a police officer, only out of a desire to avoid the sanctions, the fact that I have never intentionally killed someone is not at all explained by the fact that murder is punishable by a long term of incarceration; however, if I am ever tempted to do so, I would certainly regard the fact that I would likely be sentenced to prison as normatively relevant (Himma 2020: 19).

43What law does, on the Coercion Thesis, is provide an incentive to comply in the form of a deterrent to noncompliance for those not antecedently inclined to comply.

6 Reply to Pablo Rapetti

44Pablo Rapetti’s review expresses a number of interesting concerns, but his two main worries seem to be that despite my remarks to the contrary (1) the analysis is positivist in character, and (2) my methodology is normative insofar as I claim the basic function of law is to keep the peace.

  • 20 As discussed above in my replies to Brian Bix and Thomas Bustamante, both Finnis and Dworkin conced (...)

45 As to (1), there is only one place where I make an argument that presupposes a positivist view — i.e., in defence of the claim that only the Coercion Thesis can vindicate the truism that it is a constitutive property of a legal system that some of its norms create reasons to comply.20 In particular, Chapter 6 argues that if law is conceptually normative in that sense, those reasons must be prudential because a wicked legal norm obviously cannot create a moral reason to comply (which presupposes the falsity of natural law theories construed as anti-positivist). The relevant reasons would have to be prudential, as those are the only remaining reasons relevant in explaining law’s conceptual normativity.

46 As to (2), there is nowhere in the book that deploys a normative methodology. Rapetti (2021: 98) grounds his belief to the contrary in my claim that law, like any other artifact, has a basic function, which is to keep the peace:

[Himma’s] account on law’s “conceptual function” raises the first suspicion [that he is making normative claims in addition to purely descriptive claims]…. Himma states that we do not value the regulation of behaviour for its own sake, that his argument borrows a device belonging to normative political philosophy, that the function of keeping the peace is morally valuable, and that such a function grants the law a claim to moral legitimacy. Whereas these two latter statements can be taken as mere side comments, the former two cannot, for they have heavy bearing on the argument he deploys to establish a conceptual connection between law and coercion, i.e. the Coercion Thesis”.

  • 21 See note 7, above.
  • 22 See, e.g., Beardsley 1982.

47 It is crucial to note here that the conceptual claim that a necessary condition for something to count as an artifact is that it is contrived to do certain things is a purely descriptive claim — and one that is uncontentious among artifact theorists.21 Indeed, even art has a basic function: its point, on the prevailing conceptual theory of art, is to induce an aesthetic experience.22 If, for instance, I throw some logs in a pile, the pile counts as artificial but not as artifactual, unless I have created it to perform some task or function.

48 I argued that (1) a normative system cannot count as one of law unless it is reasonably contrived to perform law’s basic function of keeping the peace, which is the function it must succeed in performing, at least minimally, to do anything else it can be used to do, and that (2) a normative system is not reasonably contrived to keep the peace among rational self-interested beings like us who inhabit a world of acute material scarcity, where we must compete for everything we need or want, unless some of its norms are backed by the threat of a sanction.

  • 23 As Oxford English Dictionary defines the term gun, it means a “weapon incorporating a metal tube fr (...)
  • 24 Oxford English Dictionary.

49 Both of these claims are descriptive. The attribution of a basic function to something is wholly descriptive and does not entail that one should use it to perform that function. It is clear that guns have a basic function, namely, to propel a small metallic object at speeds sufficient to pierce bodies and other material objects;23 but that is obviously consistent with the altogether sensible view that the possession of assault weapons by ordinary citizens should be criminalized. While it is equally clear that nuclear bombs have a basic function (“to cause an explosion”24), it is obvious they should not be used except to deter, or defend against, a nuclear attack. These conceptual claims are all purely descriptive.

  • 25 Nozick 1974.

50 Rapetti also argues that I make no argument supporting the claim that the basic function of law is to keep the peace, but that is the point of invoking the state-of-nature device. While Hobbes might have been too pessimistic about how bad a state of nature would be, it would nonetheless be bad enough that the vast majority of us would oppose, and vehemently, just repealing the use of enforcement mechanisms. Even libertarians like Robert Nozick25 do not oppose the existence of the state; they simply claim its only legitimate function, which is a necessary one, is to keep the peace. I see no reason to take a poll to establish something so obvious. I think it fair to say that the evidentiary burden rests with Rapetti to make a case to the contrary if he believes this is false.

51Finally, Rapetti (2021: 101) argues “the conclusion that – as a matter of contingent social fact – we are inclined to do as the law commands if it backs its commands with threat of sanctions is drawn by Himma from the fact … that – as a matter of normative objective rationality – we should do so”, which Rapetti takes to be normative in character.

52There are two problems with this concern: first, I never claim “we are inclined to do as the law commands if … back[ed] … with threat of sanctions.” As I indicate in my response to Pintore, I acknowledge in the book that most people do not refrain from murder only— or even primarily — because they do not want to incur a sanction. What I claim — and this is not only a purely descriptive claim but one that strikes me as obvious — is that rational self-interested beings like us who live in a world of acute material scarcity like ours are, all else being equal, are more likely to comply with norms prohibiting violence and theft if backed by a sanction than if not backed by a sanction. And that claim/prediction, like the others discussed above, strikes me as obvious enough not to need empirical confirmation in the form of a poll.

53Second, the claim that we are more likely to comply with a norm if backed by a sanction than if not backed by a sanction because we converge in believing that we should treat that as an additional reason to comply, has no normative implications. The claim that we converge in believing objective norms of practical reasoning requires us to treat a sanction as an additional reason to comply is also a purely descriptive claim with no normative implications. I am merely describing what I take to be our shared beliefs about the matter; I am not making claims about what we should do because it might be good for us.

54Accordingly, there is nothing in my defence of the purely descriptive Coercion Thesis that relies either on normative claims or presupposes a normative methodology. Indeed, this should surprise no one. One reason many theorists believe conceptual analysis should not be done is that it has no normative implications. As Richard Posner (1996: 3) expresses the complaint:

I have nothing against philosophical speculation. But one would like it to have some pay-off; something ought to turn on the answer to the question ‘What is law?’ if the question is to be worth asking by people who could use their time in other socially valuable ways. Nothing does turn on it…. [T]he central task of analytic jurisprudence is, or at least ought to be, not to answer the question ‘What is law?’ but to show that it should not be asked, because it only confuses matters.

  • 26 Imaginary numbers are formed by taking the square root of -1.
  • 27 Non-Euclidean geometries deny Euclid’s parallel postulate, which holds that given a line and a poin (...)

55Obviously, I disagree, but not because I think conceptual analysis has normative implications. I disagree because I see no reason to believe that the only theories that are legitimately pursued are those with obvious normative implications. If that were true, then mathematicians should not have pursued, for instance, the theory of imaginary numbers26 or non-Euclidian geometries that had no such applications before Einstein invented his theories of relativity.27 It stuns me that Posner’s anti-intellectual views here have gained so much traction among legal theorists trained in philosophy.

7 Reply to Kara Woodbury-Smith

56Woodbury-Smith expresses a number of concerns about the arguments in Coercion and the Nature of Law, one of which pertains to methodology while the others pertain to substantive claims of the book. As she expresses the methodological concern:

  • 28 Woodbury-Smith 2021: 108 (emphasis added).

Engagement with [the book], and with Himma’s other writings on legal normativity, is particularly difficult because … 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 that it can account for all instances of law anywhere – including Twin Earth, or Heaven. Himma, however, argues that such a project cannot be done.28

57 I don’t see anything in MCA that entails this. Though I regard MCA as the only viable approach to conceptual analysis, this is consistent with Woodbury-Smith’s description of the project. Regardless of how the nature of a kind is determined, the locution nature of a kind, as discussed in Chapter 2, refers to those properties that constitute something as an instance of that kind; these properties account “for all instances of law anywhere.” The epistemological claim I make should thus be construed as asserting nothing stronger than that the only conditions explaining all instances of law to which we have epistemic access are those entailed by our conceptual practices.

58

59 Indeed, it is crucial to note in this connection that both Raz and Hart adopt a modest methodology. Since I have already reproduced Hart’s remarks on the matter in my reply to Pintore, I will confine myself here to what Raz has said:

  • 29 Raz 2009: 31.

The notion of law as designating a type of social institution is not, however, part of the scholarly apparatus of any learned discipline. It is not a concept introduced by academics to help with explaining some social phenomena. Rather it is a concept entrenched in our society’s self-understanding. It is a common concept in our society and one which is not a preserve of any specialized discipline …. It occupies a central role in our understanding of society, our own as well other societies. In large measure what we study when we study the nature of law is the nature of our self-understanding …. It is part of our self-consciousness, of the way we conceive and understand our society…. That consciousness is part of what we study when we inquire into the nature of law.29

  • 30 Raz 2002: 159–160 (emphasis added). This not only begs the empirical question of how people would r (...)

60Raz is also clear in the last sentence of his discussion on the society of angels that his analysis is concerned with our conceptual practices. He says of the normative system of the angels, “If such a normative system has all the features of a legal system described above, then it would be recognized as one by all despite its lack of sanctions.”30

61Woodbury-Smith’s second worry has to do with my view of what the conceptual normativity of law amounts to. She argues:

  • 31 Woodbury-Smith 2021: 109.

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.31

  • 32 Woodbury-Smith 2021: 112.

62On her view, all that is needed to explain the conceptual normativity of law is that it “claims to be a legitimate authority and, as such, claims to provide us with objective reasons for action”.32

  • 33 Himma 2019.
  • 34 See Himma 2001.
  • 35 Antonin Scalia was especially aggressive in expressing his views about the legitimacy of decisions (...)

63I have two reactions. First, the idea that law claims legitimate authority as a matter of conceptual necessity is contentious and hence does not count as a truism. As I argued in Chapter 5 of Morality and the Nature of Law33 and elsewhere,34 a legal system is an abstract object metaphysically incapable of making claims. It makes no more sense to attribute communicative acts to a legal system than it does, for instance, to attribute such acts to the abstract object to which the numeral “1” refers. And it is implausible to attribute that claim to individual legislators and judges. The only claim of authority that can plausibly be attributed to them on just the basis of their making and adjudicating rules is that they have authority that counts as legal in virtue of being conferred by law. Indeed, it is worth noting in this regard that judges and legislators commonly express their disagreement with a norm or holding by denying its moral legitimacy — and, lately, in an increasingly strident tone that contributes to the increasing polarization in the U.S. between left and right.35

64Second, just claiming to give us reasons to comply is not enough to vindicate the conceptual truism that legal systems are normative. There is nothing in the fact that some system claims to be morally legitimate that it is reasonably likely to motivate someone to comply because it should motivate her to comply; anyone, after all, can claim to have legitimate authority. To claim my account of law’s conceptual normativity is too strong is to deny that law is actually normative as a matter of conceptual necessity. Claiming to provide reasons might count as purportedly normative but it does not count as actually normative.

65 In closing, I want to thank everyone who contributed to the symposium on my book and to the editors of Revus for publishing it. While my reviewers and I disagree a great deal, I am grateful that each took the time to share their thoughts on my work. I learned much from their reviews.

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Bibliography

Beardsley, M. (1982). The Aesthetic Point of View. Cornell University Press.

Bix, B. H. (2021). Coercion, function, and the “why” of law. Comments on Kenneth Einar Himma’s Coercion and the Nature of Law. Revus. Journal for constitutional theory and philosophy of law, 45, 31–38. https://doi.org/10.4000/revus.7532

Burazin, L. (2023). Law as an Artifact. In Mortimer Sellers & Stephan Kirste (eds.), Encyclopedia of the Philosophy of Law and Social Philosophy (pp. 1845–1850). Springer. https://doi.org/10.1007/978-94-007-6519-1

Bustamante, T. (2021). Should the Coercion Thesis really be defended as a conceptual claim? A Dworkinian rumination on Himma. Revus. Journal for constitutional theory and philosophy of law, 45, 39–56. https://doi.org/10.4000/revus.7565

Di Lucia, P. & Passerini Glazel, L. (2021). The first and the last word. Critical remarks on Himma’s philosophical enterprise. Revus. Journal for constitutional theory and philosophy of law, 45, 57–69. https://doi.org/10.4000/revus.7612

Dworkin, R. (1986). Law’s Empire. Harvard University Press.

Finnis, J. (1996). The Truth in Legal Positivism. In Robert P. George (ed.), The Autonomy of Law (pp. 195–214). Clarendon Press.

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

Himma, K. E. (2001). Law’s Claim of Legitimate Authority. In Jules L. Coleman (ed.), Hart’s Postscript: Essays on the Postscript to the Concept of Law. Oxford University Press.

Himma, K. E. (2019). Morality and the Nature of Law. Oxford University Press.

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

Jackson, F. (2021). Conceptual analysis and the Coercion Thesis. Revus. Journal for constitutional theory and philosophy of law, 45, 71–77. https://doi.org/10.4000/revus.7594

Nozick, R. (1974). Anarchy, State, and Utopia. Basic Books.

Pintore, A. (2021). Which coercion, which method, which normativity? Observations on Kenneth E. Himma’s Coercion and the Nature of Law. Revus. Journal for constitutional theory and philosophy of law, 45, 79–92. https://doi.org/10.4000/revus.7647

Posner, R. (1996). Law and Legal Theory. Clarendon Press.

Preston, B. (2022). Artifact. In Edward N. Zalta & Uri Nodelman (eds.), The Stanford Encyclopedia of Philosophy. <https://plato.stanford.edu/archives/win2022/entries/artifact/>.

Rapetti, P. A. (2021). Law’s function, descriptive conceptual analysis, and legal positivism. Some methodological qualms. Revus. Journal for constitutional theory and philosophy of law, 45, 93–105. https://doi.org/10.4000/revus.7665

Raz, J. (1994). Ethics in the Public Domain. Clarendon Press.

Raz, J. (2002). Practical Reason and Norms. Oxford University Press.

Raz, J. (2009). Can There Be a Theory of Law? In Joseph Raz, Between Authority and Interpretation (pp. 17–46). Oxford University Press.

Stern, M. (Feb. 24, 2015). Scalia on Supreme Court gay marriage ruling: invalid, illegitimate. Slate. https://slate.com/human-interest/2015/09/scalia-on-supreme-court-gay-marriage-ruling-invalid-illegitimate.html

Woodbury-Smith, K. (2021). Legal normativity in Kenneth Einar Himma’s Coercion and the Nature of Law. Revus. Journal for constitutional theory and philosophy of law, 45, 107–119. https://doi.org/10.4000/revus.7699

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Notes

1 I address these criticisms in Section 4 of Chapter 1 of Himma 2019.

2 Himma 2019.

3 Dictionaries are compiled by lexicographers who ground their definitions in scientifically rigorous polls of competent speakers that are designed to identify our semantic conventions regarding the relevant terms. They have epistemic authority over philosophers with respect to the content of our semantic conventions in virtue of having formal training in the empirical methods of the social sciences — which we philosophers lack. Our expertise is relevant in applying philosophical methods to extract the underlying assumptions (and their entailments) that qualify these conventions in hard cases.

4 Bustamante 2021: 39.

5 See above for Finnis’s views on the matter.

6 Dworkin is critical of the view that the criteria of validity are necessarily exhausted by a rule of recognition that counts as conventional; this — and not the idea law is a social artifact — is the target of his semantic sting argument.

7 See, e.g., Preston (2022: sec. 2.3) and Burazin (2023: 1846).

8 They can, of course, help us to identify counterexamples to a claim purporting to be necessarily true. But that is a different matter.

9 Di Lucia & Glazel 2021: 57.

10 Di Lucia & Glazel 2021: 62.

11 Ibid.

12 Di Lucia & Glazel 2021: 63 (emphasis added).

13 Ibid.

14 Jackson 2021: 71.

15 Jackson 2021: 72.

16 Jackson 2021: 73.

17 Ibid.

18 She is not shy about expressing her disdain for the concerns of the “Anglo-American” world of legal philosophers. She writes, “At the risk of seeming to be the proverbial bull in a china shop, I confess that I cannot get excited about the discussion of the normativity of law, which so absorbs the Anglo-American world and also Himma” (Pintore 2021: 87). Her tone certainly invites a reaction, but not because she comes across as a bull in a china shop.

19 She also points out (Pintore 2021: 82), first, that “not all sanctions are penal sanctions” and, second, not all penal sanctions … presuppose culpability”. As to the first point, there is nothing in my explanation of a sanction that presupposes all sanctions are penal in the sense they are intended to punish. I claim only that detriment counts as a sanction if reasonably likely — and thus reasonably contrived — to deter noncompliance to the requisite extent. As to the second, there is nothing in the Coercion Thesis or my analysis of a sanction that entails all penal sanctions presuppose culpability. However, that claim is obviously true: even a law that imposes strict liability presupposes that the commission of some acts are inherently culpable because of the likelihood that they result in grievous harm. It is the law itself that defines standards of legal culpability. If there is an existing system of criminal law that does not require a showing of what it deems culpable intent on the part of a subject to justify imposing a sanction, I would like to see it.

20 As discussed above in my replies to Brian Bix and Thomas Bustamante, both Finnis and Dworkin concede that positivism’s separability thesis is true of the descriptive use of law. See above for quotes.

21 See note 7, above.

22 See, e.g., Beardsley 1982.

23 As Oxford English Dictionary defines the term gun, it means a “weapon incorporating a metal tube from which bullets, shells, or other missiles are propelled by explosive force.”

24 Oxford English Dictionary.

25 Nozick 1974.

26 Imaginary numbers are formed by taking the square root of -1.

27 Non-Euclidean geometries deny Euclid’s parallel postulate, which holds that given a line and a point off that line, there is one and only one line passing through that point parallel to the given line.

28 Woodbury-Smith 2021: 108 (emphasis added).

29 Raz 2009: 31.

30 Raz 2002: 159–160 (emphasis added). This not only begs the empirical question of how people would react, but is also inconsistent with his view that someone counts as having practical authority only if “effective in imposing [her] will on many over whom [she] claims authority.” Raz 1994: 211.

31 Woodbury-Smith 2021: 109.

32 Woodbury-Smith 2021: 112.

33 Himma 2019.

34 See Himma 2001.

35 Antonin Scalia was especially aggressive in expressing his views about the legitimacy of decisions he disagreed with. See, e.g., Stern 2015. But he is far from unique in couching his disagreement in such moral terms.

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References

Electronic reference

Kenneth Einar Himma, “In defence of the Coercion Thesis and modest conceptual methodology”Revus [Online], 51 | 2023, Online since 29 December 2023, connection on 26 February 2024. URL: http://journals.openedition.org/revus/9984; DOI: https://doi.org/10.4000/revus.9984

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About the author

Kenneth Einar Himma

Faculty of Law, University of Zagreb (Croatia). Address: Trg Republike Hrvatske 14 - 10000 Zagreb - Croatia. E-mail: khimma@gmail.com

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