From Angels to Humans: Law, Coercion, and the Society of Angels Thought Experiment
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The Author(s) 2020
LUCAS MIOTTO*
FROM ANGELS TO HUMANS: LAW, COERCION, AND THE SOCIETY OF ANGELS THOUGHT EXPERIMENT
(Accepted 16 November 2020) ABSTRACT. Whether legal systems are necessarily coercive raises normative concerns. Coercion carries a presumption of illegitimacy and a special justificatory burden. If legal systems are necessarily coercive, coerciveness necessarily taints our legal institutions. Traditionally, legal systems have been regarded as contingently coercive. This view is mainly supported by the society of angels thought experiment. For the past few years, however, this traditional view has been under attack. Critics have challenged the reliability of the thought experiment and have urged us to centre the discussion on typical legal systems: legal systems made by humans to address human needs. Once we do so – they claim – we would inevitably reject the traditional view. This paper argues that the critics are wrong. After discussing key features of the society of angels thought experiment and responding to objections, it is argued that even typical legal systems are contingently coercive. Coerciveness is a feature that our legal systems can and should strive to get rid of. I. INTRODUCTION
Whether legal systems are necessarily coercive raises normative concerns. Coercion carries a presumption of illegitimacy and a special justificatory burden. If legal systems are necessarily coercive, the ‘taint of coerciveness’1 befalls our legal institutions wherever and whichever way they occur. Traditionally, legal philosophers see coerciveness as a mere contingent feature of legal systems. For them, legal systems are not the type of institution that necessarily carries a presumption of illegitimacy or has the everlasting need to discharge this presumption with a special justification. For the past few years, however, this traditional view has been under attack. The challenge 1 William A. Edmundson, Three Anarchical Fallacies: An Essay on Political Authority (Cambridge: Cambridge University Press, 2007), p. 74.
LUCAS MIOTTO
is motivated by methodological doubts about the reliability of the main thought experiment that supports the traditional view: the society of angels thought experiment. Critics have argued that we should not make claims about legal systems based on scenarios depicting institutions designed to deal with angelic needs; we should focus instead on typical legal systems: legal systems made by humans to address human needs.2 Once we do so – they claim – we should abandon the traditional view and acknowledge that typical legal systems are necessarily plagued by coerciveness and its stains.3 This paper argues that the critics are wrong. Sections II and III discuss the society of angels thought experiment’s main features, its role, and respond to two objections against its reliability. Section IV moves away from the society of angels and presents two new arguments for the traditional view. According to these arguments, even typical legal systems are not necessarily coercive. Coerciveness i
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