Three Conceptual Problems of Legal Normativity: The Logical Space of Reasons

Chapter 5 continues with the second step of a modest analysis of the concept of a legal system. As a prelude to showing how only the Coercion Thesis can explicate law’s presumed conceptual normativity, this chapter is concerned to explicate the concept of normativity and distinguish among several classes of reasons that might be thought to figure into the problems associated with explicating law’s conceptual normativity. It proceeds to identify the class of reasons that the practices constituting something as a system of law must be presumed equipped to provide. The chapter ends with a description of three conceptual problems of legal normativity that must be solved to vindicate the very rationality of adopting legal systems to regulate behavior.

What Law Must Be Able to Do: The Coercion Thesis and the Need to Keep the Peace

Chapter 4 begins the second step of the modest analysis undertaken in this volume with an argument grounded in a claim about the function something must be able to perform to be properly characterized as a system of law. It argues that it is a conceptually necessary condition for something to count as a system of law that it is reasonably contrived to keep the peace among rationally competent self-interested subjects like us in worlds of acute material scarcity like ours by regulating behavior through the governance of norms metaphysically capable of guiding behavior. But the only way that an institutional normative system could be reasonably contrived to do this is by backing some mandatory norms prohibiting assaults on persons and property with the threat of a coercive sanction.

Can There Be Law in a Society of Angels?

Chapter 10 rejects the society-of-angels argument against the Coercion Thesis on the ground that the psychological features of the “angels” are too far removed from what is remotely probable for rationally competent self-interested subjects like us who live in worlds of acute material scarcity like ours to tell us anything of theoretical significance about the content of our concept of law. There is nothing that counts as a legal system in the society of angels because our conceptual practices presuppose that the practices constituting something as a system of law are intended and reasonably contrived to regulate the behavior of rationally competent self-interested subjects like us who would never, as a descriptive matter of contingent fact, conclusively defer to the dictates of a purely institutional authority the way the angels do because we should not do so, as an objective matter of normative practical rationality.

The Coercion Thesis

Chapter 1 fleshes out the content of the Coercion Thesis, according to which it is a conceptually necessary condition for something to count as a legal system that it backs some mandatory norms governing non-official behavior with the threat of a coercive sanction. It begins with an analysis of the compound concept-term coercive sanction, distinguishing the deterrence and punitive functions they are reasonably contrived to perform, as a conceptual matter. The chapter then situates the Coercion Thesis with respect to the demands of morality and ends by explicating what the Coercion Thesis presupposes and implies with respect to what considerations characteristically motivate rationally competent self-interested subjects like us.

The Coercion Thesis and the Content Problem of Legal Normativity

Chapter 8 addresses the Content Problem of Legal Normativity, arguing that the content of the only first-order motivating reason to which the practices constituting something as a system of law are reasonably contrived to give rise is an objective motivating reason to obey law as a means of avoiding being subject to coercive sanctions. It rejects one possible solution to the Content Problem, arguing that there is nothing in objective norms of practical rationality that would encourage us, even presumptively, to obey a norm simply because it has the status of law. Since there is nothing else in these practices reasonably contrived to give rise to an objective motivating reason with different content, neither the How Problem nor the Content Problem can be solved without assuming it is a conceptual truth that some mandatory legal norms governing non-official behavior provide objective motivating reasons to comply in virtue of being backed with the threat of a coercive sanction.

A Prima Facie Case for the Coercion Thesis: Sanctions as a Paradigmatic Feature of Municipal Law

Chapter 3 undertakes the first of the two steps of the modest approach explicated in Chapter 2 by showing that the Coercion Thesis better coheres than its negation with the canons of ordinary usage as they reflect our experience with systems of municipal law. It begins with an explanation of the canons of ordinary usage with respect to using the term law as it pertains to legal systems. It then argues that every existing system of municipal regulation we characterize as law backs some mandatory legal norms governing non-official behavior with the threat of incarceration. Since our experience with respect to distinguishing things counting as law from things not counting as law conforms to what one would expect given dictionary reports of the relevant canons of usage, these reports accurately express the linguistic conventions we adopt for using law and define a prima facie case for the Coercion Thesis.

Coercive Sanctions and International Law

Chapter 9 argues that, regardless of whether it is properly characterized as law, the U.N. Charter system of international regulation authorizes the imposition of economic and diplomatic measures that count as coercive sanctions, as I have explicated the notion in this volume, because they are reasonably contrived to deter and punish non-compliance. While these measures differ in salient ways from the coercive sanctions authorized by systems of municipal law, they nonetheless count as coercive sanctions; all that is required for something to count as a coercive sanction, as I have explicated the notion, is that it imposes non-trivial detriment that rationally competent self-interested subjects are likely to experience as something that deters and punishes non-compliance. The Charter system is thus consistent with the Coercion Thesis and not a counterexample to it.

The Coercion Thesis and the Order Problem of Legal Normativity

Chapter 7 addresses the Order Problem of Legal Normativity, arguing that there is no reason to think that the practices constituting something as a system of law must be reasonably contrived to give rise to objective exclusionary motivating reasons to comply with mandatory legal norms governing non-official behavior. It argues that there are three basic sources of objective motivating reasons and that there is nothing in these constitutive practices reasonably contrived to give rise to objective exclusionary motivating reasons from any of these sources. It then argues that these constitutive practices are equipped to do everything that a legal system can be non-idiosyncratically used to do simply in virtue of providing objective motivating prudential reasons to comply with mandatory legal norms governing non-official behavior; the claim that these constitutive practices can produce objective exclusionary motivating reasons explains nothing about legal normativity that needs to be explained.

The Coercion Thesis and the How Problem of Legal Normativity

Chapter 6 addresses the How Problem of Legal Normativity, arguing that the only practices plausibly thought to be conceptually necessary features of a legal system that are minimally equipped to explain how the practices constituting something as a system of law are reasonably contrived to give rise to the right kind of motivating reasons to comply are those that back mandatory legal norms governing non-official behavior with the threat of a coercive sanction. Apart from the existence of the legal norms authorizing courts to impose coercive sanctions for non-compliance with the relevant mandatory legal norms, there is nothing in the practices constituting something as a system of law with the logical resources to explain law’s conceptual normativity. The Coercion Thesis is essential to vindicating both law’s conceptual normativity and the rationality of adopting systems of law to regulate behavior.

Methodology and the Nature of Law

Building on the author’s analysis in MORALITY AND THE NATURE OF LAW (OUP 2019), Chapter 2 explicates and defends the philosophical methodology deployed throughout the book. It argues, to begin, that a conceptual theory of a thing can be properly grounded only in an analysis of the canons of ordinary usage governing the associated concept-term together with the assumptions about the metaphysical nature of the thing to which the concept-term refers that help to determine the content of these canons. It goes on to explain how conceptual analysis, thus conceived, can tell us something about the objective world despite being wholly grounded in intersubjective conventions. The chapter ends by describing a two-step methodology for explicating the metaphysical nature of a thing as it is determined by the canons governing the use of the associated concept-term.