Kara Woodbury-Smith

In Coercion and the Nature of Law (CNL), Kenneth Einar Himma defends his Coercion Thesis, which states: the authorisation of coercive enforcement mechanisms is a conceptually necessary feature of law qua legal system. In this discussion, I engage with Himma’s writings on legal normativity, on which he relies to support his Coercion Thesis. The conclusions in CNL regarding legal normativity are established in Himma’s earlier writings where he defends what I call the Strong Normativity Thesis. This thesis claims that legally valid norms necessarily provide their subjects with objective reasons for action. It stands in contradiction to what I call the Weak Normativity Thesis, which maintains that legally valid norms claim to provide their subjects with objective reasons for action. Himma’s account of legal normativity may support his Coercion Thesis, but, as I will argue, it should not be wholly embraced. I will first give a brief account of the claims that ground Himma’s Coercion Thesis. Then I will unpack Himma’s account of legal normativity and explain how it supports his Coercion Thesis. I will finally explain why I am hesitant to accept Himma’s account of legal normativity.

In this discussion of Emad Atiq's article "There are No Easy Counterexamples to Legal Anti-Positivism" I pose three challenges to his construction of an Inclusive Anti-positivism. I firstly argue that, contra Atiq, the moral facts that both ground IAP and allow it to satisfy the extensional challenge are sometimes reducible to social facts. In Section II, I briefly discuss internal- and external-to-practice appraisals of legal norms. Finally, in Section III, I touch upon the divergent explanations of legal normativity IAP and positivism offer.

This paper argues for a novel understanding of the relationship between law and coercion. It firstly refutes Kenneth Himma’s claim that the authorisation of coercive enforcement mechanisms is a conceptually necessary feature of law. It then claims that the best way to understand the law is as coercion-apt. The “coercion-aptness” of law is clarified, in part, by appealing to an essential distinction between law and morality: Whereas it can be reasonable for the law to appeal to coercive means in order to motivate compliance, it seems decidedly unreasonable for morality to do so.