Sanctions & Coercion

How does Oberdiek define a sanction? What are the 4 elements?

1. A threat,

2. Made on behalf of a group,

3. Attached to the breach of a norm,

4. With the intention of discouraging breaches of that norm.

How does Lamond define coercion?

Acts involving sufficient pressure brought to bear by one person so as to force or make another person act as the first person wills.

What are the two types of coercion that Lamond distinguishes between?

1. Physical Compulsion → Direct physical manipulation of another person’s body.

2. Rational Compulsion → Forcing another person to choose between an unwelcome consequence and another option, where the choice is deliberately structured to ensure the person chooses the other option.

How does Oberdiek define coercion?

Acts intended to force a person to do something or to refrain from doing something by exposing them to unreasonable incentives.

Are all sanctions necessarily coercive? (3)

• NO — Not every sanction subjects someone to an unreasonable incentive.

• A sanction may be extremely mild while still satisfying Oberdiek’s definition. → It remains a threat made on behalf of a group, attached to a breach, and intended to discourage breach.

• e.g. “Slap on the wrist” is still a sanction but may be too mild to amount to coercion because it doesn’t create unreasonable incentives.

Why is it important that a sanction does not need to be coercive? (2)

• Because even if someone established that every law necessarily has a sanction, it would not follow that every law is necessarily coercive.

• The sanction could be too weak to exert coercive pressure.

Why does coercion not necessarily take the form of sanctions?

Coercion may arise through coercive offers (which make certain choices disadvantageous) rather than threats attached to breaches of norms.

Give an example of a coercive offer that shows that coercion does not need to involve sanctions (4)

1. A suffers from a painful, terminal, and otherwise incurable medical condition.

2. B manufactures the only cure and offers A a dose on the condition that A commits petty theft. → If A refuses, B will withhold the cure.

3. A is coerced into committing theft under the threat of pain and death.

4. BUT B’s offer is not a sanction because it is not a threat attached to breach of a norm, or designed to discourage petty theft.

What is Lamond’s example of coercive law that does not prescribe sanctions? (2)

• A taxation measure may be designed to price a commodity or activity so high that it is effectively priced out of the market.

• Coercive even though there is no sanction imposed for breach of legal duties.

Why does Austin argue that sanctions are necessary to every legal norm? (2)

• Every law is a command backed by a sanction.

• So sanctions are necessary to every legal norm as they provide the threatened consequences that support legal commands.

What are the 2 main objections to Austin’s claim that “every law is a command backed by a sanction”?

1. Hart’s Variety of Laws — Not all laws are commands (secondary laws).

2. Not all laws are backed by sanctions.

How does Hart's distinction between primary and secondary rules challenge Austin?

• Not all laws are commands requiring people to act or refrain from acting.

• Primary Rules = Require humans to do or abstain from certain actions.

• Secondary Rules = Confer powers to introduce, modify, extinguish, determine the incidence of, or control the operation of primary rules.

• Many secondary rules confer powers rather than issue commands, sp Austin’s model is too narrow. → e.g. Laws conferring powers on private individuals to make wills, contracts, marriages = not a command.

Why are sanctions not necessary to every primary legal rule? Give an example

• Some primary rules impose duties without providing sanctions for their breach.

• e.g. In the UK, a Practice Direction establishes a duty to apply precedent. → No provision for a sanction or its imposition if this duty is breached.

Why are sanctions not necessary to secondary, power-conferring rules? (3)

• Power-conferring rules enable individuals to create legal arrangements, e.g. wills and contracts, by satisfying prescribed conditions.

• If individuals fail to satisfy these conditions, their attempted exercise of the power may be legally invalid.

• BUT invalidity or nullity is not necessarily a sanction imposed for breaching a legal duty.

Why does Hart reject the possibly Austinian argument that nullity is a sanction? (2)

• No logical distinction between the conditions required to exercise a legal power and the nullity that follows from failing to satisfy those conditions.

• Nullity is therefore not a separate threatened consequence attached to a breach of a norm.

How do Blue v Ashley and Foakes v Beer support Hart’s idea that it is impossible to see nullity as a sanction? (2)

• Blue v Ashley and Foakes v Beer — Parties failed to demonstrate an intention to create legal relations or to provide consideration for their promise. → BUT did not breach primary legal duties by failing to satisfy these requirements.

• The law’s refusal to recognise a valid contract between the parties is not a ‘response to a breach of a primary norm’ (Oberdiek).

How does Kelsen defend the claim that sanctions are necessary to every legal norm? (3)

1. Kelsen = Every power-conferring norm is merely a fragment of a legal norm.

2. All genuine legal norms are conditional orders directing the application of sanctions.

3. Thus, apparently sanctionless power-conferring rules do not disprove the necessity of sanctions, because they are only fragments of complete legal norms.

How does Duarte, building on Raz, challenge Kelsen's position? (3)

1. Duarte = Legal norms should be individuated according to the acts they permit, disable, require, or prohibit.

2. This challenges Kelsen’s treatment of power-conferring rules as mere fragments of sanction-imposing norms.

3. Instead, legal norms should be identified by their distinct normative functions.

What is the argument from efficacy for the necessity of coercion in legal systems? 2 points and a conclusion

P1 = Legal systems must achieve a minimum level of efficacy to exist.

P2 = Efficacy can only be secured by resorting to coercion.

C = Therefore, all legal systems require coercion to exist.

Why is the first premise of the argument from efficacy sound? (4)

(Argument that legal systems must achieve a minimum level of efficacy to exist)

1. Hart = A system of rules must be "generally obeyed" to constitute a legal system.

2. Raz = A "reasonable degree of conformity to the law" is necessary to prevent a legal system's complete breakdown.

3. e.g. Decrees issued by one individual to a handful of individuals who never obey them would not constitute a legal system.

4. Therefore, some minimum level of efficacy is necessary for legal systems to exist.

What is the distinction between natural necessity and conceptual necessity? Which one is applicable to coercion? (3)

1. Natural Necessity = Something is necessary because of the characteristics of human nature.

2. Conceptual Necessity = Something is necessarily part of the concept of law, independently of human nature.

3. Coercion might be naturally necessary to secure legal compliance without being conceptually necessary to the existence of law.

Why might coercion be naturally necessary for legal systems? (3)

1. Hart = Identifies several trusims about human nature that suggest coercion is needed to secure compliance with law.

2. These include limited altruism, limited resources, differences in strength and goodness of will.

3. These characteristics create incentives for individuals to disobey legal rules, potentially making coercion necessary to secure sufficient compliance.

How does Oberdiek challenge the natural necessity of coercion? (3)

1. Oberdiek = Coercion may be replaced by promotional techniques, such as complex systems of rewards or taxation.

2. These are distinct from sanctions because they are not attached to breaches of legal duties.→ So compliance can be secured without coercive sanctions.

3. BUT whether coercion is naturally necessary cannot be conclusively resolved without sociological and psychological analysis.

Why is coercion not conceptually necessary to the existence of legal systems? Give 2 examples (3)

• Logically possible to conceive of legal systems that achieve sufficient compliance without coercion.

• e.g. Raz’s society of angels, whose members obey the law without sanctions.

• e.g. Miotto’s wounded state, where compliance continues despite the temporary destruction of enforcement mechanisms.

What is Raz's society of angels argument? 2 points and a conclusion

• Raz = Law without sanctions is "humanly impossible but logically possible". → Imagine a society of angels who, according to Adams, possess an "absolute disposition to obey the dictates of their ruler".

P1 = A society of angels would still require a legal system.

P2 = Angels would not require sanctions to ensure conformity with the law.

Conclusion = Therefore, a society of angels could have a legal system without sanctions.

Why would a society of angels still require laws to solve coordination problems? (4)

1. Coordination problems arise where there are good reasons to adopt a common rule, but those reasons do not determine which particular rule should be adopted.

2. e.g. Road users need rules specifying which side of the road to drive on.

3. Even perfectly law-abiding angels would require authoritative rules to coordinate their behaviour.

4. Therefore, law performs functions beyond deterring wrongdoing.

Give 2 reasons why a society of angels would still require courts

1. Factual Disagreements → Angels may disagree about the facts of a particular dispute.

2. Legal Indeterminacy → Existing law may not uniquely determine the outcome of a dispute, requiring adjudicators to exercise discretion.

Why would a society of angels still require remedial rights and remedies? (2)

1. Even angels may cause accidental damage because they misunderstand facts or misinterpret the law. → So would need remedial rights and remedies to address such harm.

2. BUT these civil remedies should not be classified as sanctions because they are not designed to deter breaches of legal duties. → Rather, they respond to failures to perform duties arising through accident or ignorance.

How does Marmor challenge Raz's society of angels? (2)

1. Marmor = Angels may encounter prisoner's dilemma situations.

2. Such situations create problems of opportunism, potentially requiring coercion to secure cooperation. → Thus challenges Raz's second premise that angels would not require sanctions to ensure compliance.

What are Miotto’s 2 responses to Marmor's ‘prisoner’s dilemma’ challenge to Raz’s society of angels?

Miotto offers 2 responses:

1. An angelic legal system could simply enact a law requiring angels to cooperate whenever they encounter a prisoner's dilemma.

2. Even if additional incentives were necessary, the system could rely on non-coercive mechanisms, such as nudges.

What is Himma's first objection to Raz's society of angels? (2)

1. Himma argues that the psychological characteristics of angels are too far removed from what is remotely probable for human beings.

2. Consequently, the thought experiment cannot produce reliable conclusions about the nature of law.

How does Adams respond to Himma's first objection to Raz's society of angels? (2)

1. Adams argues that the purpose of thought experiments is precisely to reveal features of our concepts through artificial scenarios.

2. Therefore, pointing out that a thought experiment is detached from human experience does not undermine its conceptual significance.

What is Himma's second objection to Raz's society of angels? (3)

1. Himma = According to the ordinary usage of the concept, law functions to “keep the peace”. → It does so by deterring socially disruptive behaviour and regulating individuals who may be inclined to act wrongfully.

   
   

2. Because angels are conclusively motivated to comply with the law, they do not require such regulation.

3. Therefore, rules governing angels cannot properly be described as law.

What is the first response regarding ‘inclination to disobey’ to Himma's second objection to Raz's society of angels? (3)

1. Even if law's function is to keep the peace, angels would still require laws to prevent socially disruptive behaviour.

2. e.g. Laws resolving coordination problems prevent disruption despite the absence of any inclination to disobey.

3. Therefore, it does not follow that legal subjects must be inclined to disobey for their system of rules to constitute law.

What is the second response regarding ‘particular purpose’ to Himma's second objection to Raz's society of angels? Kelsen and Gardner (4)

1. It is methodologically unclear whether law must be understood by reference to a single unifying purpose.

2. Kelsen characterises law as a "specific social technique".

3. Gardner describes law as a "modal kind", distinguished not by its goals but by its distinctive means of subjecting conduct to the governance of rules.

4. Therefore, law need not be defined by a particular purpose, such as deterring wrongdoing.

What is the third response regarding ‘defining function of law‘ to Himma's second objection to Raz's society of angels? Finnis and Dworkin (4)

1. Even if law has a unifying purpose, it is unclear that this purpose is necessarily keeping the peace through deterring wrongdoing.

2. Finnis = Law exists to solve coordination problems for the common good.

3. Dworkin = Law exists to justify the state’s use of coercion.

4. Thus, Himma has not established that deterring wrongful conduct is the defining function of law.

What is Miotto's argument from a wounded state?

How does Miotto's wounded state challenge the necessity of coercion?

What is Yankah's argument from distinctiveness? 2 points and conclusion

P1 = Legal systems are distinctive normative systems.

P2 = To deny that legal systems provide coercive sanctions is to deny them their distinctiveness.

Conclusion = Thus, all legal systems provide coercive sanctions.

What are the 2 ways in which the second premise of Yankah's argument can be challenged?

1. Coercion is not distinctive to legal systems because other normative systems may also employ coercion.

2. Law’s distinctiveness may arise from characteristics other than coercion.

So denying that coercive sanctions are necessary does not necessarily deprive legal systems of their distinctive character.

How does Pascal's wager challenge Yankah's argument? (3)

1. Pascal's wager suggests that rational individuals should believe in God because disbelief risks eternal punishment if God exists.

2. The prospect of eternal losses in Hell provides an incentive that can be characterised as coercive.

3. Thus, coercion may also operate within religion. → Challenges Yankah’s claim that coercion is distinctive to legal systems.

What 3 features does Raz identify as distinguishing legal systems?

1. Comprehensiveness → Law claims authority to regulate any type of behaviour, distinguishing it from more limited normative systems, e.g. sports or games.

2. Supremacy → Law claims authority to regulate the establishment and application of other institutionalised normative systems within its community.

3. Openness → Legal systems contain norms that give binding force to norms originating outside the legal system, such as customary rules.

According to Dickson, what must a theory of law achieve?

A theory of law must, at a minimum, develop an accurate and explanatorily adequate account of the character of law.

What is the modal approach to understanding the nature of law? (4)

1. Modal approach identifies law through its distinctive methods or techniques rather than its purposes.

2. Kelsen = Law is a “specific social technique”.

3. Gardner = Law is a “modal kind”, distinguished by its means of governing conduct through rules. → Law’s distinguishing features concern how it operates rather than why it operates.

4. Hart = Law is a “method of social control”.

What is the functionalist approach to understanding law? (3)

1. Functionalism seeks to identify law’s constitutive aim.

2. Green = A functionalist theory must establish:

• That law necessarily possesses the proposed aim.

• That the aim explains why legal systems possess their particular structures.

3. So functionalism tries to explain law’s distinctive features through the purpose that law necessarily serves.

How does Aquinas' saw analogy illustrate functionalism? (3)

1. Law is a saw. → A saw exists for cutting, and its purpose explains its structural features, such as thin blades and jagged teeth.

2. Similarly, a functionalist account of law seeks to identify a purpose that explains why legal systems possess their characteristic structures.

3. The function would therefore partly constitute what law is.

How does Gardner challenge functionalism? (2)

1. Law is capable of serving a wide range of social functions.

2. Because law performs different and potentially contrasting functions, it is difficult to identify one purpose that necessarily defines every legal system.

What are 2 contrasting functions of law that Hart identifies? (2)

1. Getting people to perform or avoid actions irrespective of their wishes.

2. Providing individuals with facilities for realising their wishes.

How does Green object to functionalism? (3)

1. There is no function COMMON to ALL legal systems that explains why they have their particular structural features.

2. There is no function UNIQUE to legal systems.

3. Therefore, functionalism cannot adequately explain law's distinctive nature by identifying a single constitutive purpose.

What are Finnis and Dworkin‘s competing functionalist accounts of law’s central purpose/unifying objective?

1. Finnis = Law's objective is to solve coordination problems for the common good.

2. Dworkin = Law's purpose is to justify the state's use of coercion.

How does Gardner challenge Dworkin's claim that law's purpose is to justify coercion? (2)

1. Gardner argues that some legal systems do not involve coercion. → e.g. Raz's society of angels could possess law without sanctions or coercive enforcement.

2. Therefore, if coercion is not necessary to every legal system, justifying coercion cannot plausibly be law's necessary constitutive purpose.

What is Hart's descriptive approach to legal theory? (3)

1. Hart characterises The Concept of Law as a descriptive, morally neutral theory without justificatory aims.

2. Gardner — It is non-evaluative in the sense that Hart abstains from defending or criticising law.

   
   

3. Hart seeks to explain legal forms and structures without morally justifying or commending them.

What is Dworkin's evaluative or justificatory approach to legal theory? (2)

1. Dworkin seeks to explain how law can provide a justification for the state's use of coercion.

2. Unlike Hart's descriptive approach, Dworkin's theory is concerned with law's normative justification rather than merely describing its character.

What is the objection to an evaluative or justificatory approach to legal theory? (3)

1. An evaluative or justificatory theory presupposes descriptive knowledge of the phenomenon it seeks to justify.

2. Before explaining how law justifies coercion, a theorist must establish what law is and whether coercion is necessarily part of it.

3. Gardner's society of angels objection challenges Dworkin's approach because it suggests that legal systems can exist without coercion.

What is Finnis' central case approach to legal theory? (3)

1. Finnis = Law should be understood by reference to its "central cases".

2. These provide a focal point for understanding the nature of law, rather than treating every instance of law as equally informative.

3. Without reference to central cases, Finnis argues that legal theory risks becoming a "vast rubbish heap of miscellaneous facts".

How does Hart's approach differ from Finnis's central case approach? (3)

1. Hart seeks to identify the unifying and distinctive features of law.

2. For Hart, the foundations of a legal system and its distinguishing characteristics arise from the union of primary and secondary rules.

3. Rather than beginning with central cases, Hart focuses on the structural features that distinguish law from other normative systems.

How does Gardner propose identifying the distinctive nature of law? (3)

1. Gardner = Understanding law requires continually comparing it with neighbouring phenomena that are not law.

2. By identifying the different dimensions along which law differs from these other phenomena, theorists can isolate its distinctive characteristics.

   
   

3. This approach focuses on identifying law's particular features rather than defining it solely by its purposes or central cases.

Are coercion and sanctions conceptually equivalent? (4)

NO

1. Oberdiek — Sanctions = threats attached to breaches of norms, intended to discourage those breaches.

2. Coercion involves forcing conduct through unreasonable incentives.

3. Sanctions need not be coercive because some are too mild to create unreasonable incentives.

4. Conversely, coercion may arise through coercive offers or taxation measures that do not constitute sanctions.

Are sanctions necessary to every legal norm? What do Austin, Hart, Kelsen, Duarte say?

AUSTIN = YES — Every law is a command backed by a sanction.

HART = NO — Legal systems contain power-conferring rules, such as rules governing contracts and wills, that are not commands.

NULLITY OBJECTION = Invalidity might be characterised as a sanction.

HART’S RESPONSE = Nullity is the logical consequence of failing to exercise a legal power validly, not a threatened response to a breach of duty.

KELSEN = Power-conferring norms are fragments of complete sanction-imposing norms.

DUARTE = Norms should instead be individuated according to the acts they permit, disable, require or prohibit.

Are sanctions necessary to every legal system? Give 5 arguments and a conclusion

ARGUMENT FROM EFFICACY = Legal systems require a minimum level of compliance, and coercion is claimed to be necessary to secure it.

HART = Human characteristics such as limited altruism and limited resources suggest coercion may be naturally necessary.

OBDERIEK = Non-coercive promotional techniques may secure compliance instead.

RAZ = A society of angels could require laws for coordination and adjudication without sanctions.

MIOTTO = A wounded state could retain general legal compliance despite the temporary absence of enforcement.

CONCLUSION = Coercion may be practically important, but its conceptual necessity remains unestablished.

Does Raz's society of angels successfully establish that law can exist without sanctions? What do Raz, Marmor, Miotto, Himma, and Adams each say? Also a further response

RAZ = Angels would need law for coordination, adjudication and remedies, despite being perfectly obedient.

MARMOR = Prisoner's dilemma situations might still require coercion.

MIOTTO = Cooperation could be required by law or encouraged through nudges.

HIMMA = Angels are too unlike humans, and their rules would not perform law's function of deterring wrongdoing.

ADAMS = Thought experiments legitimately test conceptual claims through artificial scenarios.

FURTHER RESPONSE = Law may perform other functions, such as solving coordination problems, without deterring disobedience.

Is coercion what distinguishes law from other normative systems? Yankah and 2 objections and Raz

YANKAH = YES — Without coercive sanctions, legal systems would lose their distinctiveness.

FIRST OBJECTION = Coercion is not unique to law. → Religious systems may also employ coercive incentives.

SECOND OBJECTION = Law may possess other distinctive characteristics.

RAZ = Legal systems are comprehensive, supreme and open normative systems.

Therefore, law’s distinctiveness does NOT necessarily depend upon coercion.

Should law be defined by its function or its distinctive methods? (7)

FUNCTIONALISM = Law possesses a constitutive aim that explains its structure.

FINNIS = Law solves coordination problems.

DWORKIN = Law justifies state coercion.

MODAL APPROACH = Law is distinguished by how it governs conduct rather than by one necessary goal.

GARDNER & HART = Law serves multiple social functions, including controlling conduct and facilitating individuals' choices.

GREEN = No single function is both common to all legal systems and uniquely explanatory of their structure.

CONCLUSION = Law's distinctive methods may provide a stronger basis for identifying its nature than a single proposed function.

Should legal theory be descriptive or evaluative? (5)

HART = Legal theory should provide a morally neutral, descriptive explanation of law's characteristic forms and structures.

DWORKIN = Legal theory should explain how law can justify state coercion.

OBJECTION = Justificatory theories require prior descriptive knowledge of the phenomenon being justified.

GARDNER = The society of angels challenges the assumption that coercion is necessary to law.

CONCLUSION = An account defining law through the justification of coercion may fail to capture all possible legal systems.

Should legal theory begin with central cases or identifying law's distinctive features? (3)

FINNIS = Legal theory should begin with central cases to avoid becoming an unstructured collection of facts.

HART = Theorists should identify law's unifying structural features, particularly the union of primary and secondary rules.

GARDNER = Law should be compared with nearby phenomena that are not law to isolate the dimensions along which it differs.