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Coercion, Ideology and the Law
by Brian Risman, Publisher and Founder, The Law Journal UK and Consultant in International Law
Coercion. A difficult topic. Yet, an integral tool in the legal universe. How do we deal with Coercion, both in theory and in practice?
The word and concept invokes a negative connotation in the legal universe. Legal Philosophers tend to shy away from dealing with such a difficult concept.
Yet some Legal Philosophers, such as F.A. Hayek in his work The Constitution of Liberty, do focus their discussion of the Law on the issue of Coercion.
The definition of Coercion by Hayek is as follows:
“Coercion occurs when one man's actions are made to serve another man's will, not for his own but for the other's purpose.”[i]
This definition is quite wide, leaving virtually any government or private action susceptible to definition as Coercion.
Hayek then tries to restrict the definition of Coercion. But this restriction is more of a re-defining of the nature of Coercion, rather than limiting its applicability. Hayek simply goes into detail about Coercion, as follows:
“Coercion implies, however, that I still choose but that my mind is made someone else's tool, because the alternatives before me have been so manipulated that the conduct that the coercer wants me to choose becomes for me the least painful one. Although coerced, it is still I who decide which is the least evil under the circumstances. …
…Coercion implies both the threat of inflicting harm and the intention thereby to bring about certain conduct.
Though the coerced still chooses, the alternatives are determined for him by the coercer so that he will choose what the coercer wants. He is not altogether deprived of the use of his capacities; but he is deprived of the possibility of using his knowledge for his own aims.”
Yet, other views of Coercion exist, some taking a positive view. Blackstone, in his famous Commentaries, saw Coercion as a tool for redress and correction of abuse of power, not as the abuse of power itself. As Blackstone states:
“FOR, as to such public oppressions as tend to dissolve the constitution, and subvert the fundamentals of government, they are cases which the law will not, out of decency, suppose; being incapable of distrusting those, whom it has invested with any part of the supreme power; since such distrust would render the exercise of that power precarious and impracticable. For, wherever the law expresses its distrust of abuse of power, it always vests of superior coercive authority in some other hand to correct it; the very notion of which destroys the idea of sovereignty.”[ii]
Blackstone continues with an example:
“If therefore (for example) the two houses of parliament, or either of them, had avowedly a right to animadvert on the king, or each other, or if the king had a right to animadvert on the king, or each other, or if the king had a right to animadvert on either of the houses, that branch of the legislature, so subject to animadversion, would instantly cease to be part of the supreme power; the balance of the constitution would be overturned; and that branch or branches, in which this jurisdiction resided, would be completely sovereign. The supposition of law therefore is, that neither the king nor either house of parliament (collectively taken) is capable of doing any wrong; since in such cases the law feels itself incapable of furnishing any adequate remedy. For which reason all oppressions, which may happen to spring from any branch of the sovereign power, must necessarily be out of the reach of any stated rule, or express legal provision: but, if ever they unfortunately happen, the prudence of the times must provide new remedies upon new emergencies.”[iii]
Strangely, though, Coercion is seen as only a product of Government. Private sector actions, say by Corporations, do not qualify as Coercion. Hayek focuses on the view that impersonal independence allows people to free themselves from public sector domination. However, he also sees the need for public sector involvement in society that may result in a degree of coercion. Taking care of the poor and infirm, for example, would need to be funded by taxes. And collecting taxes may constitute Coercion.
What is particularly mystifying is that Coercion is defined by Hayek strictly as a product of the Public Sector.
Can there be Private Sector Coercion? Many multinational corporations are larger than many countries, have a larger Gross Domestic Product than many countries, and can flout the taxation powers and policies of many of these governments. Can we say, then, that the Private Sector does not engage in Coercion? That would be suspending disbelief.
At the same time, those on the left, such as Marxists, see Coercion from the Private Sector, but see the solution as Coercion from the Public Sector. It is not clear to me why Public Sector Coercion is superior to Private Sector Coercion.
The reality is that Ideology defines this discussion. Free-enterprisers focus against Public Sector Coercion and ignore Private Sector Coercion, while Marxists, Socialists and Social Democrats focus against Private Sector Coercion and ignore Public Sector Coercion.
It is clear that there is Coercion no matter what Sector it emanates from.
So is Coercion a negative action, as Hayek feels?
Or is Coercion a positive action, as Blackstone states?
Maybe both views of Coercion are valid. What then, is the distinction? Maybe Coercion is in itself not a negative, nor a positive. Rather, it is a tool that can be used for good and bad purposes. A gun can be used by the authorities to stop a killer in his or her tracks; that is a good purpose, using coercion to stop evil. That same gun, in contrast, can be used as a tool for armed robbery; that is a bad purpose, using coercion to commit evil.
Hence, the nature of Coercion is predicated on its purpose, not its use. Therefore, government coercion can be used for good purposes. As Milton Friedman notes in Capitalism and Freedom[iv], Government needs to be involved in certain positive aims. Government would need, with this involvement, to invoke tools such as Coercion[v]. As Friedman states:
In both games and society also, no set of rules can prevail unless most participants most of the time conform to them without external sanctions…
…But we cannot rely on custom or on this consensus alone to interpret and to enforce the rules; we need an umpire.
These, then, are basic roles of government in a free society…to enforce compliance with the rules on the part of those few who would otherwise not play the game.”[vi]
Friedman then makes a clear statement regarding absolute freedom and that reality on the actions of government:
“The need for government in these respects arises because absolute freedom is impossible…[anarchy] is not feasible in a world of imperfect men.”[vii]
But, the mere use of Coercion by Government would be unacceptable to many ideologies, for example, that of Libertarians. Yet the proper working of the society needs, to some extent, a degree of coercion. Further, it seems that the issue for many ideologies is centered on the purpose of the Coercion. For example, those on the US Democratic Left-Wing would support Government Coercion for purposes that they support, for examples measures to ensure Equality in Society; but they hesitate to support Coercion on a military basis. The US Republican Right-Wing, in contrast, takes the opposing view on each object. The Right-Wing opposes Government Coercion for purposes of ensuring Equality; yet they will support Coercion by the use of the military.
Hence both support Coercion for their ideological purposes; and vehemently oppose for purposes running counter to their ideology.
Coercion, then, is not the issue. The ideological purpose is what matters.
Coercion, then, is not an evil. Nor is it a good deed. It is a tool for use when appropriate; and not for use when it is inappropriate.
But how do we determine what is appropriate? And, how do determine what is inappropriate? As Friedman points out:
“The major problem in deciding the appropriate activities of government is how to resolve such conflicts among the freedoms of different individuals.”[viii]
As Friedman notes, sometimes the decision is an easy one. A person cannot murder their neighbour. Almost all people agree on that point.[ix]
But sometimes, the issue is not easily resolved. In the Victorian era, Contract Law was viewed as the private negotiation between two equal parties. That view, while in many cases a myth due to the unequal bargaining power of the parties, held until the 20th century, when Contract Law cases between parties started to recognise the unequal bargaining power situation. The realisation of unequal bargaining powers precipitated government intervention in the previously private domain of Contract Law. Some felt that such intervention was a Coercive use of Government power. Yet others felt that such Coercive intervention was a necessity to protect the weaker party in Contract negotiations.
Coercion, then, is a difficult concept to resolve. Unlike concepts such as Liberty or Democracy, which project positive images, Coercion is a source of controversy. It is no wonder, as noted at the beginning of this essay, that Coercion, while inevitably part of the legal landscape, is rarely handled.
Yet clearly, Coercion needs to be understood and defined within any legal system.
[i] Hayek, F. A. (2011-06-15). The Constitution of Liberty: The Definitive Edition (The Collected Works of F. A. Hayek) (Kindle Locations 5082-5083). University of Chicago Press. Kindle Edition.
[ii] Blackstone, Sir William (2013-04-04). Commentaries on the Laws of England: All Books (Kindle Locations 3800-3801). Waxkeep Publishing. Kindle Edition.
[iv] Friedman, Milton, Capitalism and Freedom (40th Anniversary Edition), (University of Chicago Press, 2002), xvi+208 pages
[v] Ibid., pp. 25-27
[vi] Ibid., p. 25
[viii] Ibid., p.26
Brian Risman, Publisher and Founder, The Law Journal UK and The Law Student UK
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