PPPS: “Coercion as Enforcement”

I thank Bill for his comments, and wish to note that due to a difficulties beyond his control, he was called upon to produce them very quickly. This provides extra grounds for my appreciation.

That said, I must admit disappointment that I failed (it seems) with respect to the main purpose of my paper, which is to prompt readers to look at the topic of coercion anew, in a way that is different from that of recent theorists. This paper tries to describe a category of acts—roughly speaking, many but not all of those acts we ordinarily describe as coercive in common speech—in a way that allows us to grasp their significance, and thereby provides a way to reason about such acts more usefully than we might otherwise. Bill clearly wants to read the paper charitably. His worries about the paper focus on the political implications of how we conceive of coercion, and he faults me for failing to appreciate those implications adequately. A bit of loose writing of mine (which he quotes) on the state’s justified monopoly to the right to use coercion may have helped cloud the picture, so I will attempt later to clarify this particular claim. But these difficulties aside, it seems to me that Bill doesn’t see what the paper is trying to do in its main thrust—its attempt to distinguish recent approaches to coercion, and in particular to explain the enforcement approach in a way that sets it apart from the approach that has figured in his own writing. Hence, I’m not sure whether his complaints about my (lack of) appreciation of recent political philosophy are justified by what I actually say about coercion, nor am I sure whether our disagreements in this area are shallow or profound. Of course Bill’s failure (if in fact he has failed) is really my failure as a writer. So I will attempt to say here what I think Bill misses in the paper, and clarify, as best as I can, the difference between my approach to coercion and the one Bill relies on (and even reads into my paper, I think). I will then turn to discuss the value to political philosophy of my preferred approach to coercion.

The “enforcement approach to coercion” attempts to depict coercion by highlighting some of the key features in a few central cases of coercion, in particular, the kinds of powers coercers need to possess in order to coerce, and the demonstrated willingness to lever those powers in order to constrain the ability of others to act. In pointing to these powers and intentions, I claim, the enforcement approach is able to describe coercion usefully and identify the clearest, most significant instances of it, without requiring one to make any “specially contentious moral judgments.” I treat the back-alley armed robber as paradigmatic of coercion (which Bill accepts) as well as the state’s use of its police powers to back the criminal law (which Bill rejects, I think). His reasons for denying that states (typically) use coercion is not unprincipled, yet it is based on a different understanding of coercion than the enforcement approach offers. He does not, so far as I can tell, reject the depiction of the state’s use of power that the enforcement approach points to in declaring it coercive. So one might think that our dispute here is merely verbal: the “enforcement approach” defines coercion one way; Bill prefers another way.

But the real difference here is, I think, methodological, and so it is worth being clear about why these definitions diverge, and then why this matters for political philosophy.

Our differences with respect to how we understand “coercion” show up in differences in how we understand what is going on in the workings of parking regulations and enforcement, as they occur in modern American towns and cities (among other places). In the paper I argue in support of our ordinary view that parking regulations, backed by fines, etc., are coercive. But I do so in the course of arguing that it makes sense to regard them as coercive only in light of the much larger system of legal enforcement states and municipalities use to ensure that people cannot blithely disregard fines, etc. Absent a powerful enforcement system that can inhibit scofflaws from scoffing (or at least a credible bluff of such enforcement), the threat of (e.g.) a $50 fine (or as large a fine as you like) cannot reasonably be regarded as coercive: in general, if a would-be coercer lacks the power and will to enforce its threats by preventing the target from evading, deflecting, circumventing, compensating, or retaliating afterwards, then we cannot explain why coercees would have reason to accede to such threats. Conversely, when a would-be coercer manifests such powers and intentions, then the threat of a small fine can be regarded as coercive, in that such a threat amounts to a use (a leveraging) of these much greater powers to constrain or inhibit the coercee’s ability to act quite broadly.

In Bill’s comment on this example, he writes:

Most would agree that the coerciveness of the municipality’s threat is, like coercive threats generally, at least prima facie wrongful. So, it is fair to say that calling the municipality’s threat coercive involves making a moral judgment. (p. 2)

I have no clear sense of whether “most” would agree that the municipality’s threat is “prima facie wrongful,” but none of my reasons for thinking that such fines are coercive hinge on such a determination. The use of the state’s enforcement powers to back up such fines is what matters. Moreover, the facts that one would need to cite to show that such power is required and is at work in the functioning of parking regulations does not, so far as I can see, require any “specially contentious moral judgments.” Though Bill takes issue with this perhaps too artful phrase, my claim is that we can understand the workings of enforcement power in my paradigm cases (back-alley gunmen, law enforcement by means of force/violence/imprisonment) without calling upon moral judgments about its justice, goodness, propriety, etc. Since I thought these cases were clear enough, I didn’t worry that I might be suspected of hair-splitting.

[At this point in Bill’s comments, he indicates that I have misread his stated position on whether laws, such as parking regulations and criminal prohibitions, are coercive, and if so why. Though I am chagrined that I may have misstated his views, I don’t think I have. This disagreement is not germane to the points I want to make here, so I have crafted a separate response on this issue, and have posted it separately.]

My analysis of state coercion misses Bill’s boat (and his misses mine) in that he seems to hold that coercion, by definition, involves the making of a “prima facie wrongful” threat. Hence, when I write about the moral significance of state uses of power to enforce laws against citizens, he takes me to be making an argument for the “prima facie moral wrongness” of such uses of power. He then (reasonably) suggests that it would be contentious to claim that all leveraging of such power is wrongful. But again, my analysis doesn’t hinge on whether such uses of power are wrongful, prima facie or tout court. If we can distinguish the kind of power the state uses when it makes threats to broadly inhibit the activities of its citizens, we can (I say) recognize it as using coercion. And I do indeed think that this use of power is morally significant. On the question of whether it is wrongful (prima facie or tout court), I think Bill and I can agree that it will depend on more precise facts about how the state uses it.

This then brings us to the question of what significance coercion has in political philosophy. Admittedly, I did not explain my position as clearly as I should have when I wrote, “I am here assuming that states do legitimately hold a monopoly on the use of coercive force, an assumption which is sometimes questioned, and which would require defense to be fully justified” (25-26). Bill is justified in criticizing this assertion, as stated, since plainly many states do not exercise such power legitimately. Still, I might suggest that the underlying thought is not so obscure: expressed more precisely, it is that if a state is to exercise legitimate authority, in addition to being well-ordered and just, it must also hold a monopoly on the right to the use of coercive force within its boundaries. This view is subject to dispute, of course. The question I would press, however, is: how can those who advocate such a view engage most fruitfully with those who would deny it? It is here that I think the enforcement approach to coercion helps, relative to the alternative that Bill seems to advocate.

If I understand Bill’s view here, a law, demand, whatnot is coercive iff it is conditioned by a threat to bring about a “prima facie wrongful” consequence. Bill has argued in the article I cite that when just criminal laws (say, prohibiting robbery and murder) are backed by proportionate, regularly enforced penalties against violators, such penalties fail to count as prima facie wrongs, and thus these laws are not coercive (or, as he says in the comment here, “not coercive in any sense that renders [them] prima facie wrongful”). The upshot of this analysis seems to be that the burden of persuasion shifts away from those who would defend states as protectors of equality and other liberal values. This then levels the playing field between, say, liberals on the one hand and libertarians or anarchists on the other.

This is not an unappealing position, and so my objections to it aren’t that I think it is badly misguided. Rather, I think that it fails to make good sense of the power relations that are at work in coercion, and their significance, and hence fails to make it possible to evaluate the disputable claim about the relationship of the state to coercion in a way that will placate either side of the dispute.

If one considers the import of a law backed by sanctions in terms of the prospective costs and benefits it proposes to impose on those subject to it, one may be able to form an estimate of whether those consequences are morally justified, relative to the good that the law may bring. Suppose one determines that the costs imposed on subjects are not disproportionate, given the goods at stake. This would imply that such threatened costs are not “prima facie wrongful,” and thus that the law at issue would fail to count as coercive. Yet I still think it makes sense to have a concept that differentiates the possibility of a state achieving (apparently) good ends via this use of its power from other possible ways of doing so. Such other means might include promoting voluntary adherence to a norm; paying rewards to those who adhere to a standard of conduct; conducting an educational campaign; engineering ways to mitigate harm without altering common behavior; or holding individuals more stringently liable for the costs their behavior may impose on others. States regularly ban various forms of conduct such as the using drugs, smoking, selling unsafe or inferior products, engaging in non-normative sexual conduct, using contraception or abortion, engaging in various significant political or social speech acts, disclosing or withholding various forms of sensitive information, or engaging in some child-rearing practices or omitting others. They also regularly create various forms of enforceable rights, such as tangible and intangible property, or licenses to use public property or goods, or rights to non-interference in certain aspects of human life (a right to privacy, non-discrimination, or due process, say). The concept of coercion I develop provides a tool for distinguishing certain ways that states (among other powerful entities) can implement their goals—namely, by wielding their power to broadly interdict the activities of their citizens—from other means of accomplishing social objectives that do not rest on this ability.

Why is this of value? There is much that can be said about this, but the following few points will have to suffice here. First, it seems to me that abuse of this power is a more serious social and political problem than abuse of other means states (or others) may employ. Contrast coercion (as understood by the enforcement approach) to deceit (another tool states might use). While state duplicity may be hard to combat, in principle, citizens can respond to false information from the state by engaging in their own research and sharing of information. State prestige may make it difficult to correct most people’s beliefs, but there seem to me to be clearer limits on how much a state can achieve by lying: it risks losing credibility if its lies are too frequent or too egregious. Hence, ordinary people are better able to check the state’s ability to lie than they are to check its ability to coerce. If we accept that legitimate states need to monopolize the use of force, violence, etc., then the prospects for curbing determined state abuse of coercive power are much more limited and more costly (such as Satyagraha and civil disobedience). Hence we have reason to pay special attention to how states use this sort of power, and to build extra safeguards against its capture and self-interested deployment.

Second, there is a reasonable argument to be made that, all things considered, less coercion in a society is better than more. Insofar as coercion gives some powerful agents a significant degree of control over the activities of less powerful agents, coercion has a direct, negative effect on freedom. Successful use of coercion also tends to multiply the difference in power between coercer and coercee. Now, if coercion amounts to making prima facie wrongful threats, then I suppose that a formally similar argument can be made using that definition. But I think it will miss the aspect of power involved in coercion. After all, on Bill’s view (I think), two basically just, well-ordered states may equally avoid the use of “coercion” (on his definition), even though one of them regulates considerably more aspects of life than the other, so long as each refrains from issuing prima facie wrongful threats to enforce its laws. Using the enforcement approach to coercion, it will be easier to say whether one of them employs more or less coercion than the other. Ultimately, we may end up favoring a more intrusive to a less intrusive state (for reasons of equity, efficiency, stability, or whatnot), but at least it seems to me useful to have a way of expressing the different extents to which states use what I’m calling coercion, in order to make arguments on this head fruitful.

Lastly, the tendentious claim that legitimate states must exercise a monopoly on the right to use coercion seems to me both true and explicable on the enforcement theory. If we regard coercion as a use of a power suitable to interdict broadly a target’s ability to act, then it is easy enough to see how two independent users of such power in a society could give rise to a competition for the loyalty of those subject to such powers. Consider a state in which there also exists a thoroughly moral mafia, which operates independently of the state: it uses the techniques of a state to impose its own values on those within its reach (which we may assume are at least as good as the values the state aims to promote). If these two entities issue contradictory edicts, someone who is subject to both will face a serious dilemma. A subject in such a dilemma can rightly accuse the state of lacking legitimacy if it tries to enforce its own edict, since it has failed to shield its subjects from contradictory coercive powers.

By contrast, the tendentious claim does not seem to me to be true using any variety of the pressure theory of coercion, or the idea that coercion is distinguished by the use of prima facie wrongful threats. I’ll focus here on the latter theory of coercion. If both the state and the mafia issue reasonable demands backed by proportionate sanctions, then I’m not sure that Bill’s view of coercion can explain what’s wrong with such a situation. Anyone may rightly issue commands to others when they are not backed by sanctions. The apparent problem with the moralistic mafia, we may assume, is that it backs its commands with sanctions, yet lacks the right to do so. So when it sanctions violators it will thereby violate their rights. Yet if it only issues commands that accord with morality, and backs them up with proportionate sanctions, then it’s hard to understand why its subjects have a cause for complaint. They only face sanctions if they do something that is (per hypothesis) morally unacceptable. The right to avoid such sanctions seems to depend on the legitimacy of the state, and the priority of its edicts over those of the mafia. But if the mafia issues commands that are at least as good as the state, why should the state have such privilege? My suspicion is that we can’t answer this question unless we can understand why it is necessary for states to have centralized authority to use coercion over their particular territory. (They may of course delegate that authority to smaller units, but serious conflicts need to be resolved by the central authority.) This is not, however, a view that Bill’s concept of coercion can support, since it doesn’t see states as (in general) using coercion.

In sum, I hold that the enforcement view of coercion captures something that is very important about an aspect of social power, and that traditional dictums from political theory regarding coercion make sense and are important in light of this approach to coercion. I have not here argued systematically against the approach to coercion Bill favors, but hopefully I have given a sense as to how such an argument might go. What I am most adamant about, however, is that there is a difference of approach here, and that we can sort out the implications of different views of coercion only once we are well sure of what these views are about.

Bill states in his comment that I mischaracterize his views on whether law is coercive. I want to make a brief response to this claim, admitting in part that I do oversimplify his views a bit. But even though I overlook some of the nuances he introduces, the oversimplification is nonetheless fair to the main thrust of at least the one paper I cite, especially when it comes to categorizing the bulk of criminal law in a place like the U.S. as coercive or non-coercive.

The question arises in the context of a discussion of my claim that a regime of parking fines is coercive—a claim I expect most readers would agree with (though perhaps for different reasons than mine). In a footnote to this part of the paper, I write, “one might deny that coercion is at play here, on the grounds that such laws are just, and therefore the threat of enforcement of these laws is rendered non?coercive, according to certain recent theories of coercion.” I then claim that Bill is an “exponent” of this view, citing his essay “Is Law Coercive?” while noting that it is “recondite and divergent from our longer?standing views of the coerciveness of the state.”

Bill corrects me, and says,

“I am dismayed that the view attributed to me is not one I ever expounded. … The “ground” for denying that coercion is uncontroversially in play in the example is not that the law at issue may be just. The category “coercive, but, on balance, just” is not an empty one. What I have doubted is that the law per se is coercive in any sense that renders it prima facie wrongful.” (Emphasis in the original.)

There are two matters here I want to discuss: first, what grounds Bill gives in support of his claim in his article that, “except in extraordinary circumstances, law is not coercive” (which he sometimes refers to as “the repugnant conclusion”); and second, the characterization of his views that he offers in his response to me to correct my characterization.

Bill’s “repugnant conclusion” flows from the particular understanding of coercion he adopts. His analysis of coercion here begins by rehearsing Alan Wertheimer’s work on this concept. On Wertheimer’s account, a proposal is coercive if it meets two tests:

“A coerces B to do X if and only if (1) A’s proposal creates a choice situation for B such that B has no reasonable alternative but to do X and (2) it is wrong for A to make such a proposal to B.” (Wertheimer, cited in Edmundson, p. 82).

When is it wrong for A to make a proposal to B? On Bill’s view,

“Establishing whether A acts wrongly in making a proposal to B requires that we first establish B’s moral baseline, that is, the moral rights and entitlements against which we must judge A’s proposal.” (p. 83)

So, when a well-ordered, basically just state passes a law, we may say that it makes a “proposal” to its citizens that it will punish them if and only if they violate that law. Does it then coerce its citizens to follow that law? Bill says “no”:

“[C]an anyone seriously argue that the State acts immorally, or contrary to a moral duty, by proposing to punish the highway robber? The answer must be, no. But this in turn seems to commit us to saying that [robbery statutes are] not a case of coercion, after all.” (p. 85)

Edmundson then cites following passage from Vinit Haksar, saying he “embraces precisely this conclusion”:

“[T]he state is not making a coercive proposal when it proposes fairly and justly that it will not put [anyone] in jail if he is law abiding … [p]enal laws, when fair and just, do not involve coercion….” (Edmundson, p. 85, citing Vinit Haksar, “Coercive Proposals: Rawls and Gandhi,” Political Theory 4 (1976), p. 65, 68.)

Stringing together a few sentences later where Bill summarizes this argument, he says:

“We have proceeded on the assumption that the law’s proposals are not wrongful. This assumption, when plugged into a moralized account of coercion, propelled us toward the repugnant conclusion that law is not coercive. … The assumption that the law’s proposals are not wrongful seems eminently reasonable in many cases. … When the law proposes to punish what is in itself wrongful, as in the case of [a law that threatens to punish robbers], its proposal seems not wrongful for two reasons: one, the putative coercee has no moral right to engage in the forbidden conduct and, two, the law makes a coordinate promise to make the putative coercee better off than she would be in a world of moral self-help. (pp. 102-03)

In describing Bill’s position, I used the term “just” as the quality that law must have in order to count as non-coercive, where he tends to use the terms “moral” and “not wrongful.” While there are reasons to distinguish these concepts, my sense is that this is not the ground of his complaint. But except for that, it would seem that the above argument would lead one to believe that Bill’s view in “Is Law Coercive” is that in general, law is not coercive because law, in general, is just.

Now, later in this same article, Bill does proceed to suggest at least two different ways that a law might count as just and yet be coercive. If a law is enforced only sporadically, and at the discretion of its agents rather than on principle, this might render those cases where it is enforced coercive (since a violator might come to expect the law not to be enforced against her). Or, if the punishment for a violation is out of proportion to the punishment actually required to generate widespread compliance, this too might be coercive. Insofar as these qualifications are not captured in requiring a law to be “just,” Bill’s view is more complicated than I have described. But I’m not sure that these qualifications wouldn’t come into consideration of a law’s justice, so I’m not yet convinced that I have mischaracterized his view, as expressed in this article.

I’ll turn now to say just a bit about the view Bill says one should find in his writing, viz, “What I have doubted is that the law per se is coercive in any sense that renders it prima facie wrongful” (emphasis in the original). What Bill aims at, I believe, it to show that those who favor using law to solve social problems should not bear a special burden of justification due to the supposed fact that law is coercive. Coercion, it is generally agreed, requires special justification, so if law is in general coercive, then those in favor of using law face a justificatory burden evaded by those opposed to using law. In “Is Law Coercive?” Bill argues that there is no good reason to assume that law is in general coercive. In his response to me, he appears to revise slightly this view, suggesting that law might be coercive, but not, therefore, prima facie wrongful. And this view, it seems, would similarly shift the burden of justification off of those who argue in favor of more law, leveling the playing field between liberals and libertarians or anarchists.

I have several worries about (both versions of) Bill’s attempt to lighten the burden of justification on law. But not because I think that coercion is prima facie wrongful. For reasons that are too involved to go into here, I’ve never found it useful to put much weight on “prima facie” moral judgments; prima facie being an epistemic qualification which seems to me neither very reliable nor robust. On my view, when we understand the way power figures in coercion, it is possible to recognize certain dangers and impositions unavoidable in its use, which should give rise to heightened scrutiny, and a special burden of justification, even in cases where its use is well justified. But I say enough about that in my previous reply, so I’ll leave that matter aside here.

But assuming for the time being that we understand what is meant by “prima facie wrongful,” one thing I’m dubious of is Bill’s suggestion that his approach to coercion might support the view that law is, in general, coercive, though not prima facie wrongful (or worse). Given the moralized baseline of his sort of account, it would seem that any just law that is enforced regularly and proportionately will fail to be coercive in any sense. I have cited Bill’s essay in my writing on this subject because, as I see things, it has the merit of being willing to carry through the implications of its starting points to the “repugnant conclusion.” Whereas this conclusion is one Bill embraces (or embraced), I take it as striking enough and implausible enough to ground an ad hominem objection to those starting points. Be that as it may, an account of coercion that relies on a normative baseline will find it hard to support any version of the view that law in general is coercive. If a law does not make someone worse off than she has a right to be, she is not coerced. Given the largely just character of most law (in these parts, anyway), there would seem to be no way a moralized account of coercion could regard it as by and large coercive. Hence I’m unclear on how Bill means us to understand the corrective to my characterization of his earlier views.

I may well be missing something, so I would be grateful for a suggestion on how to read Bill’s account more constructively.