On Force, Effectiveness, and Law in Kelsen

Abstract

Th e relationship between law and coercion is perhaps one of the most controversial topics in legal philosophy – a topic that has made quite a comeback in legal discussion in recent decades aft er a period of apparent abandonment. 1 On the basis of various analytical criteria, a broad, complex spectrum of positions on this relationship can be reconstructed. For example, if one analyses the necessary or essential conditions of concepts, positions on the question of whether ‘ coercion ’ is an essential or necessary element of ‘ law ’ range from a strong affi rmative 2 to a strong negative, 3 including positions that question the way the question is posed. 4 Furthermore, if one analyses the nature or type of element, the positions range from coercion as an instrumental element (function or use) 5 to coercion as a substantive element (content or object) 6 of law. Finally, leaving aside the analysis in terms of essential or necessary conditions, the positions include law as a type of coercion, coercion as the distinctive feature of law qua social normative order, coercion as the most prominent or salient feature of law qua social normative order, 7 and coercion as one of the central or paradigmatic features of law.