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Subject Area: Political Theory

Legal Justice and Coercion - Leonard P. Liggio, Literature of Liberty, April/June 1978, vol. 1, No. 2 [1978]

Edition used:

Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Legal Justice and Coercion

Hans Oberdiek

  • Swarthmore College

“The role of Sanctions and Coercion in Understanding Law and Legal Systems.” American Journal of Jurisprudence 21 (1976): 71–94.

Philosophers of law have traditionally regarded coercive sanctions as an essential feature of legal systems. While coercive sanctions may be, to use H.L.A. Hart's phrase, “pragmatic necessities,” conceptually they seem an unnecessary feature of legal systems.

Necessary features of a legal system are those which must hold true if legal systems are “to have a point.” Although it is a complex task to spell out what it means for a legal system “to have a point,” one essential point or purpose of legal systems is to provide an authoritative way of resolving or regulating disputes. In this view, the traditional philosophers of law err when they conceive of laws as requiring enforcement by coercive sanctions. But a legal system is basically a framework to regulate human conduct by means of settling disputes. As such, all that is really required to have a functioning legal system is that it be supported. Law enforcement by coercive sanction is merely one way to support a legal system.

Alternative means of legal support are inducements, popular feeling, and nonlegal institutions such as churches or clans. It may be true that present legal systems rely heavily on coercive sanctions and, given human nature, may always rely on them to some extent. But the presence of such sanctions is not an essential and defining characteristic of law.

The “sanctionist” view of law is some-what linked to the social theories and “hard social realities” of eighteenth and nineteenth century industrial societies. But, hopefully, future theories of law will place less stress on coercion. This change in emphasis may encourage men to think of legal systems as structures which they can use to refine, develop, and augment their capacities. In short, such a change of perspective would lead men to see law as a liberating force that promotes freedom rather than as something which restricts it.

Coercive sanctions do not appear to be a necessary part of the concept of law. We can envision a society that maintains social order less by coercive sanctions than is now the case. Although there is no conceptual reason why legal systems should rely on coercion to the extent they do now, it remains for legal theorists to show how the conceivable can in fact work.