Is Law Coercive?

Abstract:     
That law is coercive is widely assumed. The assumption has important consequences. What we regard as coercive we view as at least prima facie illegitimate, and we hold it to an accounting. What is not coercive, in contrast, is presumed to be in order. To be able to cast the law (or the free market) as a coercive force is to be able to throw upon its defenders a burden of persuasion which, even if carried, leaves what has had to be defended under a cloud. Where, as in morality and politics, so much is uncertain, to be able to cast a burden of persuasion upon one's opponent is a significant rhetorical advantage.

In recent decades, the concept of coercion has been subjected to rigorous analysis. This article applies that analytical work to the question that forms the title. The answer that it reaches is not a reassuring "Of course!" but a surprising - some would say, repugnant - "No; except in extraordinary circumstances law is not coercive."

Keywords: coercion, legitimacy, Robert Nozick, John Rawls, Alan Wertheimer

JEL Classifications: K00

Accepted Paper Series