Coercion and the Nature of Law

Kenneth Einar Himma

Oxford Legal Philosophy

A comprehensive examination of the background and arguments for the idea that law is coercive by nature, grounded in ordinary legal and linguistic practices
A defence of the Coercion Thesis that challenges current conventional wisdom in legal philosophy

Coercion and the Nature of Law

Kenneth Einar Himma

Description

The Coercion Thesis has been a subject of longstanding debate, but legal positivist scholarship over the last several decades has concluded that coercion is not necessary for law. Coercion and the Nature of Law is concerned with reviving the Coercion Thesis, presenting a strong case for the inherently coercive nature of legal regulation, and arguing that anything properly characterized as a legal system must back legal norms prohibiting breaches of the peace with the threat of a coercive sanction.

Himma presents the argument that people are self-interested beings who must compete in a world of scarcity for everything they need to survive and thrive. The need to compete for resources naturally leads to conflict that can breach the peace, and threatens the ability to live together in a community and reap the social benefits of cooperation. Law only functions as a system if it can maintain the peace enough for community to continue, and thus systems of law cannot succeed in doing anything that we want systems of law to do unless they back laws prohibiting violent assaults on persons or property with the threat of punishment; without sanctions, we would descend into something resembling a condition of war-of-all-against-all. We adopt coercive systems of regulation precisely to avoid having to live under such conditions.

The book is divided into three parts: (1) a prima facie logical-empirical case for the Coercion Thesis, (2) a study of the "society of angels" and international law counterexamples, and why they do not refute the thesis, and (3) an analysis of how law guides behaviour and the implications of the Coercion Thesis on reasons for action.

Going against the current conventional wisdom in legal philosophy, Himma makes a systematic defence of the Coercion Thesis arguing that coercion or enforcement mechanisms are not only a necessary feature of legal systems, but a conceptually necessary feature of legal systems.

Coercion and the Nature of Law

Kenneth Einar Himma

Oxford Legal Philosophy

Author Information

Kenneth Einar Himma is Continuing Guest Professor at the Faculty of Law of the University of Zagreb. He has taught at the University of Washington in the Philosophy Department, Information School, and the School of Law, as well as in the Philosophy Department at Seattle Pacific University. He has published widely in philosophy of law, philosophy of religion, and information ethics.

Coercion and the Nature of Law

Kenneth Einar Himma

Oxford Legal Philosophy

Reviews and Awards

"Coercion and the Nature of Law is a welcome and needed addition to the jurisprudential literature: it defends the possibility and value of discovering the nature of law, it defends a version of conceptual analysis, it revisits a long-standing debate about the role of coercion in law, and it offers an intriguing merger of conceptual analysis, artifact theory, and functional theory." -- Brian H. Bix, Revus

"Himma has convincingly shown that coercion is fundamental to explaining the role of law in practical reasoning and has provided intelligent responses to the arguments of mainstream philosophers like Hart and Raz. This achievement cannot be understated." -- Thomas Bustamante, Revus

"In addition to the clarity and rare precision with which Himma argues his theses, I greatly appreciated two aspects of his book that I consider fundamental in any good philosophy of law: (1) the conviction that coercion can be adequately addressed only within an overall theory of law, which is indeed the one the author offers; (2) the idea that each conception of law inevitably presumes methodological choices, choices that must be expressed and justified." -- Anna Pintore, Revus

"Kenneth Himma's Coercion and the Nature of Law is a thoughtful and thought-provoking book. It constitutes a landmark in the current trend of renewed interest among Anglo-American legal philosophers in the relationship between law and coercion." -- Pablo A. Rapetti, Revus

"It is best received, I think, as a study in the psychology of law – one that takes claims about law as such ... 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." -- Kara Woodbury-Smith, Revus