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Wendt, Fabian 2015. Justice and political authority in left-libertarianism. Politics, Philosophy & Economics, Vol. 14, Issue. 3, p. 316.
State power is widely thought to be coercive. The view that governments must wield force or that their power is necessarily coercive is widespread in contemporary political thought. John Rawls is representative in claiming that (political power is always coercive power backed up by the government(s use of sanctions, for government alone has the authority to use force in upholding its laws.( This belief in the centrality of coercion and force plays an important but not well appreciated role in contemporary political thought. I wish to challenge this belief and the considerations that motivate it. States are not necessarily coercive or coercive (by definition.( Their claimed authority is prior to the force they wield. Legitimate states should need to resort to coercion and force much less than other states, and that fact seems unappreciated in contemporary political thought.
1 Hobbes Thomas, Leviathan, ed. Tuck Richard (Cambridge: Cambridge University Press, 1991 ), chap. XVII, 117.
2 Rawls John, Political Liberalism (New York: Columbia University Press, 1996 ), 136.
3 Ibid., 136.
4 Ibid., 137.
5 Nozick Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974), xi.
6 See Sartwell Crispin, Against the State: An Introduction to Anarchist Political Theory (Albany, NY: State University of New York Press, 2008) and virtually all of the authors in Long Roderick T. and Machan Tibor R. eds., Anarchism/Minarchism: Is Government Part of a Free Country? (Ashgate, 2008). Michael Taylor's useful characterization of anarchy is in terms of the dispersal of coercion and force, not its absence: “a minimum test, a necessary condition, for the existence of a state is that there is some concentration of the means of using force, or equivalently some inequality in its distribution … Conversely, in a pure anarchy force is perfectly dispersed, not concentrated at all.” Taylor Michael, Community, Anarchy, and Liberty (Cambridge: Cambridge University Press, 1982), 5–6.
7 Nagel Thomas, Equality and Partiality (New York: Oxford University Press, 1991), 159.
8 Nagel Thomas, “Moral Conflict and Political Legitimacy,” Philosophy and Public Affairs 16, no. 3 (1987): 215–16, 218.
9 Dworkin Ronald, Law's Empire (London: Fontana Press, 1986), 188, 190–1.
10 Nozick argues that “the state may not use its coercive apparatus for the purpose of getting some citizens to aid others, or in order to prohibit activities to people for their own good or protection.” Nozick, Anarchy, State, and Utopia, ix.
11 He goes on to argue that “It is in this light that we should understand the traditional liberal concern for the protection of individual liberty.” Charles Larmore, “Political Liberalism” (1990), reprinted in Larmore , The Morals of Modernity (Cambridge: Cambridge University Press, 1996), 123.
12 Blake Michael, “Distributive Justice, State Coercion, and Autonomy,” Philosophy and Public Affairs 30, no. 3 (2002): 257–96.
13 Ibid., 258.
14 Ibid., 263.
15 Levine Andrew, The End of the State (London: Verso, 1987), 176.
16 Wolff Jonathan, An Introduction to Political Philosophy (Oxford: Oxford University Press, 1996), 39.
17 Weber Max, “Politics as a Vocation,” in From Max Weber: Essays in Sociology, Gerth Hans H. and Mills C. Wright, trans. and eds. (New York: Oxford University Press, 1946 ), 78.
18 Weber , The Theory of Social and Economic Organization (Part I of Wirtschaft und Gesellschaft), Henderson A. M. and Parsons Talcott trans. (New York: Oxford University Press, 1947), 156.
19 See my Essay on the Modern State (Cambridge: Cambridge University Press, 1998), 45–46, where I characterize a state in terms of a number of interrelated features. See also my “How (not) to Define the State” (unpublished manuscript).
20 Nietzsche Friedrich, Beyond Good and Evil, trans. Hollingdale R. J. and Kaufman Walter ( New York: Random House, 1967) II, 13.
21 Force can also be used to seize assets or close routes of escape. We are focusing on the uses of force directly against persons.
22 Persuasion normally presupposes that the persuader may not resort to coercion or force, lest his or her offers be those that cannot be refused. This point is important for the discussion at the end of this essay about the possibility that resorting to coercion or force is always available to states, even if rarely resorted to. I owe this point to James Taggart.
23 We may also trick, manipulate, or deceive others into doing as we wish.
24 A specialized physician offers to save a dying infant if its mother agrees to marry him. Is this a coercive proposal?
25 See, for instance, Dowding Keith, Power (Minneapolis: University of Minnesota Press, 1996).
26 See Feinberg Joel, “Coercion,” in Routledge Encyclopedia of Philosophy, Craig Edward, ed. (New York and London: Routledge, 1998), vol. 1, 387–90; Wertheimer Alan, “Coercion,” in Lawrence and Becker Charlotte, eds., Encyclopedia of Ethics, 2d ed. (New York and London: Routledge, 2001), 172–75; and Anderson Scott, “Coercion,” Stanford Encylopedia of Philosophy, http://plato.stanford.edu/entries/coercion/.
27 See Edmundson William A., Three Anarchical Fallacies (Cambridge: Cambridge University Press, 1998), chap. 6, and Wertheimer Alan, Coercion (Princeton: Princeton University Press, 1987), chap. 14.
28 My formulation, in terms of legitimate states, just laws, and the like is intended to sidestep a number of debates about obligations and reasons to obey.
29 I owe this point to Leslie Green.
30 Anscombe G. E. M., “On the Source of the Authority of the State,” in Ethics, Religion and Politics: Collected Philosophical Papers, vol. 3 (Minneapolis: University of Minnesota Press, 1981), 147.
31 See Morris, An Essay on the Modern State, 203–4. As I shall argue later, the state's claimed monopolization of coercion is merely an instance of its claimed authority, specifically, its “comprehensive” authority.
32 Austin John, The Province of Jurisprudence Determined (Cambridge: Cambridge University Press, 1995 [1st ed. 1832, 5th ed. 1885]), Lecture II, 21–22.
33 Hart H. L. A., The Concept of Law, 2d ed. (Oxford: Clarendon Press, 1994 ), chap. 3.
34 Ibid., 82–83.
35 Ibid., 80.
36 Ibid., 84.
37 In addition to Hart, see Oberdiek Hans, “The Role of Sanctions and Coercion in Understanding Law and Legal Systems,” American Journal of Jurisprudence 71 (1976): 71–94. I regret not being able to discuss Schauer Frederick, “Was Austin Right After All? On the Role of Sanctions in a Theory of Law,” Ratio Juris vol. 23, no. 1 (2010): 1–21, which I came across too late to include here.
38 Of course, in common law systems there are principles for treating laws that have not been applied for a long time as no longer being in force. It should be noted that sanctions can function to signal that a rule is a genuine law. And they sometimes can also express the compulsory nature of the state and the status of the state, a point I owe to Alon Harel.
39 See my “The Trouble with Justice,” in Morality and Self-Interest, ed. Bloomfield Paul (New York: Oxford University Press, 2008), 15–30.
40 I formulate this claim in terms of just laws but could weaken it to refer only to valid laws of a legitimate state. The point is that even if the laws in question are valid, just, and reasonable, there may still not be reasons for action for everyone. If one does not accept this controversial thesis and one thinks that valid, just, and reasonable laws always are reasons of the right sort for everyone, one will have one less reason to want states to attach sanctions to laws.
41 Hart, Concept of Law, 198. (The following is a note for those familiar with elementary game theory.) Suppose that everyone in a political society has Assurance Game preferences (i.e., they prefer mutual cooperation to unilateral defection); then information about people's preferences will increase cooperation. Suppose that some people have Assurance Game preferences, but many others have Prisoners' Dilemma preferences (i.e., they prefer unilateral defection to mutual cooperation). Then coercion may be necessary to secure the cooperation of all.
42 Ibid., 20.
43 Hobbes, Leviathan, chap. xxvi, 183, and chap. xxv, 176.
44 Hart , “Commands and Authoritative Legal Reasons,” in Essays on Bentham (Oxford: Clarendon Press, 1982), 244, 253.
45 Raz Joseph, The Authority of Law, 2d ed. (Oxford: Oxford University Press, 2009 ), chaps. 1–2, and The Morality of Freedom (Oxford: Clarendon Press, 1986), chaps. 2–3. See also Raz , Practical Reason and Norms (Oxford: Clarendon, 1999 ) and Green Leslie, The Authority of the State (Oxford: Clarendon Press, 1988).
46 The position I have defended elsewhere is that legitimacy is conferred by justice and efficiency. See Morris, An Essay on the Modern State, chaps. 4–6. Justice may, of course, require consent, or consent may be an independent requirement. I am sidestepping these controversial questions by talking simply of “just states.” See my “State Legitimacy and Social Order,” in Political Legitimization without Morality, ed. Kühnelt Jörg (Heidelberg: Springer, 2008), 15–32. The starting point for contemporary discussions of these questions should be Simmons John, “Justification and Legitimacy,” reprinted in his Justification and Legitimacy (Cambridge: Cambridge University Press, 2001), 122–57.
47 As Rawls 's account of justice does; see A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), 145, 176ff.
48 Famously, Rawls and Nagel do not think outsiders have a right to be consulted. See Rawls , The Law of Peoples (Cambridge, MA: Harvard University Press, 1999), and Nagel , “The Problem of Global Justice,” Philosophy and Public Affairs 33, no. 2 (2005): 113–47.
49 Handcuffs may be put on the criminal when apprehended and after sentencing. Force, of course, is also used by state officials in matters unrelated to the enforcement of the law and the application of sanctions, e.g., in restraining someone who is mentally ill or at risk of spreading contagious disease. See Lamond Grant, “The Coerciveness of Law,” Oxford Journal of Legal Studies 20 (2000): 39–62, and “Coercion and the Nature of Law,” Legal Theory 7 (2001): 35–57.
50 It is worth remembering that power-conferring laws lack sanctions and do not involve force; if one fails to comply with the legal conditions for valid contracts or wills, one's acts will lack the desired legal effect, but one will incur no sanction.
51 We may count these as coercive in certain respects depending on how we understand people's prior property rights. On some views, taxation is always coercive. But note that this would only be the case when taxation was unjust and thus a form of theft. If a state is justified or legitimate and has a (limited) right to tax, then imposing taxes would not itself be coercive, even if threatening noncompliers would be.
52 Mill John Stuart, Principles of Political Economy, Riley J. ed. (Oxford and New York: Oxford University Press, 1994 [1848; 1871]), Bk. V, chap. 11, p. 325.
53 Raz , The Concept of a Legal System (Oxford: Clarendon Press, 1980 ), 232–34.
54 Europeans are often surprised when they come to understand that the United States federal government could not, even if it wished to, disarm the American public.
55 See Kavka Gregory S.'s discussion of “rule by fear” in Hobbesian Moral and Political Theory (Princeton: Princeton University Press, 1986), chap. 6.2.
56 It is, of course, an implication of the received theory of practical reason that all reasons for following a norm must be forward-looking. Even this need not, however, entail that sanctions are needed for reasons for obedience, as other forward-looking considerations could provide these.
57 He continues: “And yet we can imagine other rational beings who may be subject to law, who have, and who would acknowledge that they have, more than enough reasons to obey the law regardless of sanctions. Perhaps even human beings may be transformed to become such creatures.” Raz, Practical Reason and Norms, 158–59.
Some think that were humans such that they could do well with sanctionless political systems, then they would most likely not need much, if any, government in the first place. In such a world, “[s]tate interference in social relations becomes, in one domain after another, superfluous, and then dies out of itself; the government of persons is replaced by the administration of things…. The state is not ‘abolished.’ It dies out.” Engels Friedrich, “Socialism: Utopian and Scientific” , in The Marx-Engels Reader, Tucker R. ed., 2d ed. (New York: W.W. Norton, 1978), 713. This is mistaken as we presumably would need states—e.g., legislative, judicial, and administrative agencies—in order to make general principles determinate and specific and to apply them to new cases. This is an important point that I cannot pursue here.
58 “The state rests ultimately on force, of course….” Sartwell, Against the State, 18.
59 Geuss Raymond, History and Illusion in Politics (Cambridge: Cambridge University Press, 2001), 14, 17.
60 See my Essay on the Modern State, chap. 7 and Raz, The Concept of a Legal System, 138–40.
61 As argued in my Essay on the Modern State, chap. 7.
62 Rational choice theory is a special case of the more general balance-of-reasons account.
63 It is not easy establishing that a consideration is decisive. Suppose one is deliberating buying a multi-attributive object, such as a car. One hesitates, and the salesperson throws in a great stereo. That is not evidence that the stereo is decisive. If something “tips the balance,” then removing many other things will tip it back. Are they also decisive?
64 Ripstein Arthur, “Authority and Coercion,” Philosophy and Public Affairs 32 (2004): 2.
65 See Ripstein Arthur, Force and Freedom: Kant's Legal and Political Philosophy (Cambridge: Harvard University Press, 2009).
66 Here our understanding of legitimacy and the ways it is different from justification matter. Only the laws of states that meet certain standards will have the normative power relevant here, and I think the standards are those of legitimacy.
67 I did not see the significance of this point when Mahesh Ananth, Marvin Belzer, Wade Maki, and Sangeeta Sangha pressed it against the predecessor of this essay. Michael Pace more recently also suggested to me that the mere retention of this right could threaten (and, perhaps, could thus be coercive).
68 Grant Lamond argues in the essays cited earlier that the law's claim to authority includes the right to authorize coercion. I regret not having read these essays until recently.
69 See my Essay on the Modern State, 205–6, and the references in note 80 (on p. 205).
70 Hart's “rule of recognition,” central to his account of the constituting of a legal system, depends on agreement; see Hart, The Concept of Law. See also Hardin Russell, “Why a Constitution?” in Grofman Bernard and Wittman Donald, eds., The Federalist Papers and the New Institutionalism (New York: Agathon Press, 1989), and Liberalism, Constitutionalism, and Democracy (Oxford: Oxford University Press, 1999), chap. 3; and Weingast Barry, “The Political Foundations of Democracy and the Rule of Law,” American Political Science Review 91, no. 2 (1997): 245–63.
71 See my Essay on the Modern State, especially chap. 2.
72 I bypass questions about the distinction between justification and legitimacy here. See my essay on legitimacy referred to above, as well as Simmons, “Justification and Legitimacy.”
73 See my Essay on the Modern State, as well as the works of Leslie Green, Joseph Raz, and John Simmons cited.
* The predecessor of this essay, entitled “Is the State Necessarily Coercive?” was discussed at Bowling Green State University, George Mason University, Georgetown University, the University of Maryland, the University of Virginia, and the 20th World Congress of the International Association for Philosophy of Law and Social Philosophy (Amsterdam). I am grateful to these audiences for comments, as well as to Marvin Belzer, Alon Harel, and Arthur Ripstein for helpful written remarks. Drafts of this version of the essay were presented at Chapman University and the University of Arizona, and I am grateful to these audiences as well as to the other contributors to this volume for comments. Lastly, Ellen Paul and James Taggart have provided me with valuable comments on the penultimate draft of the essay.
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