The Nature of Law and Potential Coercion

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.     

The Relevance of Coercion: Some Preliminaries*

Many philosophers take the view that, while coercion is a prominent and enduring feature of legal practice, its existence does not reflect a deep, constitutive property of law and therefore coercion plays at best a very limited role in the explanation of law's nature. This view has become more or less the orthodoxy in modern jurisprudence. I argue that an interesting and plausible possible role for coercion in the explanation of law is untouched by the arguments in support of the orthodox view. Since my main purpose is to clear the ground for the alternative, I spell out the orthodox view in some detail. I then briefly sketch the alternative. Finally, I turn to Jules Coleman's discussion of the alternative.     

The Forces of Law: Duty,Coercion, and Power

This paper addresses the relationship between law and coercive force. It defends, against Frederick Schauer's contrary claims, the following propositions: (a) The force of law consists in three things, not one: the imposition of duties, the use of coercion, and the exercise of social power. These are different and distinct. (b) Even if coercion is not part of the concept of law, coercion is connected to law many important ways, and these are amply recognized in contemporary analytic jurisprudence. (c) We cannot determine how important coercion is to the efficacy of law until we know what counts as coercive force. The question of what counts as coercion is not a matter for generalization or stipulation. It requires an explanation of the concept of coercion.     

行政强制立法的几个问题

一、关于行政强制 根据<行政强制法(草案)>的规定,在我国,行政强制法中所称的行政强制,是行政强制措施与行政强制执行的合称,这很有中国特色.前者是指为预防或制止违法行为和危害事件发生,行政机关在获得法律授权的情况下而采取的强制措施,如对财产和金钱的查封、扣押、冻结;后者是指为实现行政决定的内容,在法律授权的情况下,有关国家机关实施的强制手段,如将扣押的财产拍卖,将银行冻结的存款划拨.     

Policing By Command: Enhancing Law Enforcement Capacity Through Coercion

This article addresses the numerous ways command or coercion is used by the state to enhance law enforcement, ways that involve creative interactions with both the targets of law enforcement and third parties. Coercive measures encompass both mandatory reporting and mandatory action. Examples are given and the benefits of using coercion in such circumstances discussed. However, coercion may also have unintended consequences and impose unreasonable costs. With these effects in mind, the authors suggest a set of guidelines for evaluating the appropriateness of coercive measures.     

关于《行政强制法》三个问题的看法和主张

<中华人民共和国行政强制法>(草案)已于2005年12月提交十届全国人大常委会第十九次会议审议.为了制定好这部法律,笔者就<草案>的一些问题谈点个人看法和主张,谨供修改时参考.     

《行政强制法》的基本原则和行政强制设定权研究

《行政强制法》设计和体现的行政强制基本原则共有六项：平衡原则、比例原则、行政强制法定原则、教育与强制相结合原则、正当法律程序原则、救济原则。这些基本原则既指导该法整体法律制度的设计和具体法律规则的制定,也将在该法正式施行后指导执法者对该法所确立的规范和制度的实施。《行政强制法》遵循平衡原则、比例原则和行政强制法定原则的要求,对法律、行政法规和地方性法规的行政强制设定权进行了科学的配置,此种科学配置有利于最大限度保障行政强制法立法目的的有效实现。     

英美刑法辩护理由中的“胁迫”及其启示

胁迫是英美法系各国刑法普遍承认的一种犯罪辩护理由。传统意义的胁迫是指胁迫者以紧迫的死亡或严重伤害身体相威胁,迫使行为人实施某种被刑法禁止的行为。胁迫是一种犯罪的可宽恕事由,其根据在于,当一个人面临一般人都无法抗拒的严重威胁,主观上难以作出合法的选择时,缺乏刑事归责的可能性。我国刑法中没有胁迫的概念,司法中按照紧急避险处理被胁迫犯罪案件,这既不符合被胁迫犯罪的本质,也限制了胁迫的适用范围。我国刑法应当引入胁迫的概念,将其视为一种独立的阻却责任事由。我国刑法对胁迫的适用,应当采取形式与实质相结合的标准。胁迫不能适用于故意杀人犯罪。     

From Angels to Humans: Law,Coercion, and the Society of Angels Thought Experiment

Law and Philosophy - Whether legal systems are necessarily coercive raises normative concerns. Coercion carries a presumption of illegitimacy and a special justificatory burden. If legal systems...     

Rebutting the Presumption: Rethinking the Common Law Principle of Marital Coercion in Eighteenth- and Nineteenth-Century England

While many historians refer to the legal presumption of marital coercion when discussing patterns of lenient judicial treatment of women in eighteenth-and nineteenth-century English criminal trials, few have analyzed the presumption in enough detail to ascertain the impact it genuinely had. This article undertakes close legal analysis of marital coercion. It argues that the presumption was not frequently referred to in nineteenth-century Old Bailey criminal trials for receiving stolen goods because of increasing judicial strictness as to the application of the presumption. A defendant had to prove her marriage, her husband’s presence at the crime scene, and, by the nineteenth century, evidence of her husband’s actual control. The presumption may have shifted from an irrebuttable presumption to one rebuttable upon proof that any of these requirements were absent. Therefore, women’s lenient court treatment during the modern period cannot be straightforwardly attributed to frequent successful recourse to marital coercion.     

我国《行政强制法》的法律地位、价值取向和制度逻辑

《行政强制法》是规范政府共同行为的一部重要法律,是中国特色社会主义法律体系的支架性法律,其出台是我国行政法治建设历程中的又一个里程碑。本文从法律地位、价值取向和制度逻辑三方面结合的视角,依次探讨了《行政强制法》的地位、所涉重要关系、行政强制的界定、原则、设定、种类、程序、执行体制和法律责任等九个基本问题,以期对准确把握该法的立法精神,正确理解和实施该法有所裨益。     

State Nationality and Religious Family Law: Some Notes

Most States are ‘secular’ States. Freedom of religion allows religious communities to organize themselves within the framework of the law of the State. In some other States organized religion has a dominant position enabling it to have a major impact on the law of the State. Private International Law (PIL) of secular States is characterized by a large extent of openness to the law of other States. The extrovert character is missing on the side of non-secular States. The difference should not pass unnoticed. Nationality loses attractiveness as a connecting factor in family law, though it persists as a pointer to the cultural frame of reference for many persons. In Western countries this development is enhanced by libertarian ideas on family law. In PIL a parallel development can be registered. The scope of conflicts of laws rules tends to lose effect on the recognition of acts and facts that are situated abroad. This new ‘method of recognition’ appears to have some effect on the case law of superior courts. The European Union has had to deal with recognition issues in the field of family law.

     

On Compromise and Coercion*

Abstract. This essay addresses the concepts of compromise and coercion. When compromise takes place between two or more parties, reciprocity must be present; that is, the concessions are mutual. A relevant distinction is between principled and tactical compromise. A principled compromise refers to a mutual recognition by each side of the other's rights, which leads them to make concessions to enable them to meet on a middle ground. It is genuinely made in good faith and both sides reconcile themselves to the results. On the other hand, the notion of tactical compromise reflects a temporary arrangement reached as a result of constraints related to time. Here, in fact, agents do not give up any of their aims. They do not act in good faith and do not intend to meet their counterpart on a middle ground. Instead, they simply realize that the end could not be achieved at a given point of time, and they aim to reach it stage by stage. The essential component of compromise, namely, mutuality, is lacking. Next, the paper draws a further distinction between internalized coercion and designated coercion. Internalized coercion relates to the system of manipulation to which members of a certain sub‐culture are subjected, which prevents them from realizing that they are being coerced to follow a certain conception that denies them basic rights. Designated coercion is individualistic in nature, aimed at a certain individual who rebels against the discriminatory norm. Unlike the internalized coercion it is not concerned with machinery aiming to convince the entire cultural group of an irrefutable truth; instead it is designed to exert pressure on uncertain, “confused” individuals so as to bring them back to their community. Ever since I assumed my present office my main purpose has been to work for the pacification of Europe, for the removal of those suspicions and those animosities which have so long poisoned the air. The path which leads to appeasement is long and bristles with obstacles. The question of Czechoslovakia is the latest and perhaps the most dangerous. Now that we have got past it, I feel that it may be possible to make further progress along the road to sanity. (Neville Chamberlain, “Peace in Our Time”, October 3, 1938) **     

Spontaneous Order and the Rule of Law: Some Problems

Abstract. Two conservative theorists, F. A. Hayek and Michael Oakeshott, have advanced theories of law with important and plausible central theses focusing on the rule of law. The author argues, however, that in each case the theorist - or at least some of his followers on the contemporary British and American political scene - have wrongly inferred strong conclusions from these theories which are inimical to the welfare state. In conclusion, the author points to possible ways of reconciling rule of law to social justice.     

法律的"概念"澄明——评H.L.A.哈特《法律的概念》

日常语言分析哲学家并新分析实证主义法学的创始人哈特,在《法律的概念》一书中,从语词用法的日常语言分析入手,通过法律"游戏"中第一性规则与第二性规则之结合作为关键的"法律"概念纵向语境把握,以及"主权者"、"命令"、"正义"、"道德"诸概念讨论之"法律"概念横向比较,成功地将法律"概念"的理解由对于某种具有确定客观属性的法律实体的认识转向了日常语言层面的澄明,开创了一个全新的日常语言分析法学流派.     

欧洲竞争法故事中的某些德国角色

在为我的挚友和著名学者———沃尔夫冈·费肯舍尔的纪念文集选择论文题目的时候 ,我选择了一个和他一起多次讨论过并且关涉他抱有很多兴趣的领域的题目。我知道 ,如果由他撰写这篇文章 ,他对这一题目的认识毫无疑问要比我深刻得多。本文目的是简要论述德国人以其思想和实践影响欧洲竞争法的某些方式。〔 1〕 因为这些影响对欧洲竞争法的发展起着关键的作用 ,而竞争法对欧洲一体化的进程是至关重要的 ,对这些影响即便作一个简单的探讨 ,也是很有价值的。〔 2〕一　故　事为了评论德国人的角色 ,我首先得简要概括一下这个故事。如果说有一个…     

多式联运：关于当代法律的评论

德国运输法的改革法案于 1998年 7月 1日生效。新法最主要的变化是为国内的各种货物运输方式 ,包括公路、铁路、内水和航空运输 ,制定了一套相同的法律规则 ,同时第一次为多式联运制定了规则。本文主要以德国法为对象 ,同时比较中国、荷兰和法国法 ,论述多式联运合同的定义 ,适用法律 ,责任限制等问题。