COERCION AND COERCIBILITY. — The generic and ordinary concept of coercion is the opposite of spontaneity, and denotes that which is contrary to the subject’s natural inclination. In man, every action extorted from him against his will is coerced. In the legal sphere, coercion is of particular importance, because the law resorts to it in order to secure the execution of its commands. Legal coercion is therefore “a mode of enforcing the law, consisting in securing its execution notwithstanding the contrary disposition of the subject.”
Depending on the manner in which it is exercised, coercion may be merely legal, physical, or psychological. Merely legal coercion is that which obtains the desired effect through the sole operation of the law, without the need for the concurrence of any will. Such is the coercion exercised by all invalidating and incapacitating laws, insofar as the law alone then suffices to deprive an act performed against it of all validity, so that the contrary will and action of any subject are rendered ineffectual. Coercion is physical when the execution of the legal precept is obtained through the action of a third party, that is, of a subject other than the person initially obligated, as, for example, the payment of a debt carried out by the creditor himself against the debtor’s unshakable will, or a criminal act forcibly prevented by a public official. Coercion is psychological when compliance with the legal command is obtained by exerting pressure on the will of the obligated subject, seeking to overcome his reluctance; this usually occurs through the threat of penalties in the event of transgression. If the subject then yields and performs the prescribed action, the result will be an act in which voluntariness is combined with a certain involuntariness, effectively overcome but not affectively destroyed. The act is then expressed by the ancient formula: coactus volui, coactus feci.
The concept of coercibility is modeled on that of coercion, but indicates only its possibility; and this possibility may be considered in relation to a given legal order, to the entire complex of ethical laws, or to the circumstances of fact. Hence a distinction is made between legal, moral, and effective coercibility.
The foundation of coercibility and coercion in the sphere of law is twofold: social necessity and the externality of the legal order. Law does not regulate all human activity, and in particular it does not deliberately regulate the forms of activity intended to promote the subjective perfection of the individual; rather, it confines itself to laying down the norms indispensable to social coexistence. The necessity of these norms authorizes compulsion to observe them even on the part of rebels; thus the common good remains safeguarded notwithstanding the subject’s ill will. On the other hand, it would be impossible to compel man to perform internal acts; hence anyone who wishes to extort any act whatsoever must be content with the externality of the act itself.
Two consequences follow from this: a) not all matters are equally suited to being regulated in legal form; they are more or less so according as external execution is possible in them and retains a social value even when unaccompanied by inward assent; b) coercibility is one of the most visible distinctive characteristics of the legal order, especially in relation to morality, because morality aims directly at the perfection of the subject, and therefore the execution of its precepts has value only insofar as it is voluntary.
Among philosophers and jurists, especially from the time of Kant onward, the degree of intimacy of the bond linking law with coercion and coercibility has been much debated. Some would identify the two terms; others, on the contrary, go so far as to deny any relation between them. These are two opposite exaggerations, which also arise from poorly defined concepts. In order to clarify a discussion that is often confused, the following propositions must be set forth:
a) merely legal coercion is not necessary to law; that is, there may be genuinely legal laws even though they entail neither nullity nor incapacity; in certain matters this would be entirely impossible: the nullity of a contract may be established, but not that of a homicide;
b) as a matter of fact, neither physical nor psychological coercion is necessary to law; indeed, it is always desirable that the legal command be executed spontaneously, not only because the perpetual use of force and punishment would be a sign of the lack of internal social cohesion, but also because no society can put into operation a coercive apparatus capable of compelling everyone, always, to observe the laws if everyone were to refuse spontaneous obedience;
c) effective coercibility, that is, the real possibility of compelling, is not necessary to law; and if we were to call it necessary, it would follow that the weak could never have any right against the armed strong—a conclusion that is inadmissible;
d) legal coercibility, that is, the juridical possibility of compelling, is inseparable from law, insofar as every legal order, while not making the existence of law dependent on the effective availability of coercive means, cannot fail to authorize the compulsory enforcement of its precepts;
e) the relation between moral coercibility and law gives rise to problems of very difficult solution. The difficulties arise not only from the practical impossibility of a perfect conformity between the legal and moral orders, but also from the distinction moralists draw between the norms of pure justice and those of integral morality. Thus they themselves admit the existence of certain actions which, while violating some moral virtue in relations with one’s neighbor, do not offend justice, and therefore do not offend law either. This amounts to admitting that some divergence may occur between moral correctness and legal rigor, even with regard to resorting to coercion.