Max Webers Concept Of Law Overemphasises Coercion Philosophy Essay

The extent to which Coercion is an essential element in the definition of law is controversial, some philosophers, social theorists and sociologists have regarded coerciveness as a key feature of law. Generally, coercion appears central to our understanding of law, the merits of the legal system rests upon enforcing obligations and duties, in which coercion plays a part. Undoubtedly, Weber’s theory of law that encompasses the necessity of coercion in the definition of law has led him to profoundly influence sociology and social theory. Nonetheless, some academics and social theorists have been critical about his work, some theorists have gone as far as to deny coercion as an element of law in fact. In this essay I will proceed to critically assess the extent to which coercion is necessary in law, by looking at theorists who prescribe that law simply is coercion to definitions of law that preclude the necessity of coercion. In doing so I will be able to evaluate whther or not Weber’s definition of law in fact overemphasises coercio, and conclusively advocate that coercion isn’t crucial for the actual functioning of the legal system but it is necessary for distinguishing legal norms from non-legal social conventions. However first I must delineate Weber’s theory of law and the meaning of coercion before proceeding to critically assess it.

Max Weber’s famous account of the sociology of law draws upon ‘the influence of politics, religion and economics, on the development of law, without disregarding the work of lawyers, jurists and legal honoratiores’ [1] . In doing so, he proposes a rational theory of law that emphasises four explicit necessities; coercion, authority, legitimation and legal rationality. Law is a subcategory of Weber’s notion of order, these are rules of conduct. In other words, people consciously or unconsciously take into consideration some stable set of commonly accepted assumptions and rules of behavior. Law is just one form of legitimate order, together with affectual, religious, value oriented, etc. Weber stated that ‘an order will be called […] law if it is externally guaranteed by the probability that physical of psychological coercion will be applied by a staff of people in order to bring about compliance or avenge violation’ [2] Thus, by defining law by a system of coercive commands, noted as ‘coercive apparatus’ [3] Weber appears to present coercion to not only be an constituent, but fundamental for defining law.

Weber has been attacked for implying that law is simply commands backed by threats, he states that ‘The means of coercion may be physical or psychological, they may be direct or indirect in their operation, and they may be directed. As the case may require, against the participants in the consensual group’ [4] . He appears to draw upon John Austin and Jeremy Bentham’s models, who ‘erroneously described law as little more than state sponsored coercion’. Bentham’s best known aphorism in the field of legal analysis was, however: “Obey punctually, censure freely.” That is, do what the law commands you to do, if you wish to avoid something nasty, unpleasant or untoward happening to you; but you do not have to like that law’s content. In essence Bentham sees enforcement of sanctions as cog in laws endeavour. Furthermore, Austin’s idea of law as a set of commands backed by threats of sanctions in the event of their breach ‘ has been criticised as “the gunman situation writ large”. Austin stated that ‘that the predictive interpretation obscures the fact that, where rules exist, deviations from them are not merely grounds for prediction that hostile reactions will follow…. but are also a reason or justification for such reaction and for applying the sanctions.’ [5] This reductionist approach appears to fail on the ground that it allows any threat backed by sanction to be given the name “law”, this would allow both bullies and muggers that force one to obey to quote that what they are enforcing is law; quite obviously this is mistaken; ‘The mere ability to force others to do as one wishes can not be enough to make something law’ [6] . It may be innate to be misled by Weber’s emphasis on coercion in his definition and to attack his theory on the same grounds that both Austin and Bentham were; for delineating coercion as being the most important, significant or salient aspects of law.

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However, Webers theory is not as reductionist as that of Austin and Bentham, his more constructive approach advocate a system of norms of which nonconformity to would result in sanctions. Law can be said to be coercive because it is the necessary link between duties and sanctions, thus, sanctions involve a disadvantage or a loss due to a breach of duty imposed by law. Ultimately sanctions involve breach of duty, still it would be hasty to conclude that a breach of duty will result in sanction as this does not always hole true; ‘the breach of a duty is sometimes a reason or a justification for the imposition of a sanction’. [7] Much of the law or arguably legal coercion exists without sanctions and operates to guide and assist how to arrange ones lives through laws of contract and will. Inevitable, not all sanctions are coercive, and not all coercion involves sanction, ‘while sanctions and coercion are related neither are a subset of the other’, [8] therefore coercion does not exist in law merely by threat of sanction.

Nevertheless whether the coercive measure is a threat of sanction or take some other form, there is no doubt that Weber stressed the coercive quality of law, However, Weber misunderstood ‘why men might accept legal obligations as binding without specifically being threatened by sanctions’, [9] implying that coercion is fundamental for the efficacy of law, disregarding any view that men might confirm without the necessity of coercion. Thus, coercion operates to motivate certain behaviour and restrict socially destructive behaviour. Conversely, this argument is ‘grounded in very weak generalizations about the nature of human social life’. [10] Conformity of law is arguably achieved through means other than coercion within a society. Firstly through socialisation, ‘people may have sufficient respect for the law to generally abide by it irrespective of force and sanctions’ [11] and secondly through social pressure. Many adhere to a set of social norms due to social pressure, in recognition of the social stigma to not conforming. A member may conform to rules and principles that are inherent in law in order to maintain a reputation, to avoid ‘exclusion from his religious or social group’ and bring about shame on friends, family or colleagues. Therefore law coexsists with other norms in society, the fact that these normative systems may infact bring about the coercion, does not denote that law itself is coercive.

Furthermore often societies willingly adhere to rules or norms that impose duties without the element of coercion, for example moral principles, such as the correct way to act in a restaurant, or even religious doctrines claim universal authority and determine the way in which people act. If we take the example of the church, religious norms are often abided by its followers however the church can not ‘coercively enforce obedience to its religious norms’. [12] In this example law can locate support in adherence throughmeans of religious or social principles.

As a result the argument for coercion to preserve efficacy of law is not as compelling as first contemplated. Due to non-conformists who violate legal norms, no society has gone without coercions, yet this does not mean to say that coercion is necessary to maintain efficiency; the resistant need for coercion does not make law inherently coercive.

Weber also shows that coercion is necessary for authority, which weber identifies as “specialist staff”. However this prescribes that one must act in a certain manner because the authoritive institution has declared to do so. Authority is the social power withholding the ability to alter ones beahour. Weber requires the “specialist staff” to coerce member to comply to law and avenge violation. However, such conformity can be bought about through means other than coercion, ‘Loyalty, and the acceptance of one’s right to decide, are far more efficient means of enjoying power’ and bring about conformity.

Furthermore, ‘acceptance of the authority of the law can play a significant role in supporting the legal system. [13] Joseph Raz legal positivist theory of the “rule of law” elucidates that laws are necessary to co-ordinate the rules of the society but not to coerce its members. Therefore law is determined by its authorative position; ‘marking a rule as legally binding is marking a rule as authorative’. [14] Raz recognises that law ‘does not contain all justifiable standards (moral or other) nor does it necessarily comprise all social rules and conventions. It comprises only a subset of these, only those standerds having the proper institutional connection’. Authority of law helps conduct the outcome of disputes and settlement yet does not coerce its member. Therefore for Raz the identification of an authorative position denotes that the rule becomes law and this authority is sufficient to sustain the efficacy of law, without the need of coercion. Therefore if Weber’s theory of law recognizes the need of “specialized staff” it may be unnecessary to emphasizes a need of coercion.

Consequently, Weber’s need of coercion can not be legitimately made if it is needed for efficacy or authority, there must in fact be another means for which coercion is essential in his definition of law. We can elucidate the strongest argument in his recognition of legitimacy. He describes law as a subclass of legitmate or normative orders. ‘Social action which involves a social relationship may be guided by the belief in the existence of a legitimate order’ [15] . A legitimate order has been described as,

‘socially constructed systems which contain bodies of normative propositions that to some degree are subjectively accepted by member of a social group as binding for their own sake, wihtout regard for purely utalitarian calculations of the probability of coercion’ [16] 

Therefore as a form of order, law requires the same prerequisites as custom and convention, that is the normative system ‘that seeks to guide human activity by establishing how one “ought” to act. For Weber it is coercion that distinguishes convention form law, only orders with coercive power are to be called law. As a result Weber’s theory law needs to be both normative and authorative, however coercion is necessary also distinguish law form all other social norms and conventions. This makes coercion essential in defining law; ‘quite simply law must have to consist of three features: establishing a system of norms, laying claim to global authority and possessing coercive power’. [17] 

Hart argues that there is no logical necessary link between law and coercion, he denotes that to describe all laws as coercive orders is to mischaracterize the purpose and function of some laws and is to misunderstand their content, mode of origin, and range of application. In Harts “rule of recognition” not all laws may be regarded as coercive orders, because some laws may confer powers or privileges on individuals without imposing duties or obligations on them. Hart recognises “primary rules” that confer legal rights and duties, which are valid if the follow what hart has called “secondary rules” consisting or rule of recognition, change and adjudication to not possess the same coercive properties as the former. Primary rules must be combined with secondary rules in order to advance from the pre-legal to the legal stage of determination. Therefore his primary/secondary rule analysis is essential in distinguishing law form other normative systems. However, this is arguably ineffective, as it can be difficult to distinguish between the two conceptions of law stated; only highlighting the need for coercion to differentiate between the two.

It is evident that without the element of coercion it is unfeasible to make a distinction between law as a system of norms and other normative systems such as religion, morality and household rules that all purport to bin us.

Weber argues that Law needs to be authorative, legitimate and rational, however these features alone can not distinguish legal orders form other social norms. This ultimately lies in Weber’s recognition of coercion. For Weber law is more than coercion, thus, it is more than threats backed up by force. Therefore Weber can not be said to overemphasize coercion as Autsin and Benthem both did. Although Weber notices this he still requires that coercion plays a dominant role in law. However I have presented my argument for why coercion is not a necessary component for laws efficacy or its authority, although coercion may justify laws efficacy and authority it is not a salient aspect of the law. However, coercion is necessary when decide what order or social norms are laws and which ones are not. This I have argued is coercions primary and crucial role. To conclude, to state coercion as essential for efficacy or authority would overemphasize the need of coercion, however Webers distinctive recoginition for coercions rols played in defining what is law, cannot be said to overemphasise coercion.