COERCION AND COERCIBILITY. - The generic and common concept of coazione (coercion) is the opposite of spontaneity, and indicates what is contrary to the natural tendency of the subject. In man, every action that is extorted from him against his will is coerced. In the juridical field, coercion has special importance, because the law has recourse to it in order to obtain the execution of its commands. Juridical coercion is therefore "a mode of execution of the law, which consists in obtaining that execution despite the contrary disposition of the subject."
Depending on the mode of exercising it, coercion can be merely juridical, physical, or psychological. Merely juridical is that which obtains the desired effect through the action of the law alone, without the need for the concurrence of any will. Such is the coercion exercised by all invalidating and disqualifying laws, inasmuch as the law then suffices by itself to remove all value from an act performed against it, so that the will and the contrary action of any subject remain frustrated. Physical is coercion when the execution of the juridical precept is obtained through the action of a third party, that is, of a subject other than the one originally obligated, as, for example, the payment of a debt carried out by the creditor himself against the unyielding will of the debtor, or a criminal action prevented by force by a public official. Psychological is coercion when the fulfillment of the juridical command is obtained by exerting pressure on the will of the obligated subject, seeking to overcome his reluctance; which usually occurs through the threat of penalties in the event of transgression. Then if the subject yields and performs the prescribed action, there will be an act in which voluntariness is mixed with a certain involuntariness, effectively overcome but affectively not destroyed. The act is then expressed by the ancient formula: coactus volui, coactus feci.
The concept of coercibilità (coercibility) is modeled on that of coercion, but indicates only its possibility; and this can be considered in relation to a given juridical order, or in relation to the whole complex of ethical laws, or in relation to the circumstances of fact; whence it is distinguished into legal, moral, and effective coercibility.
The foundation of coercibility and of coercion in the field of law is twofold: social necessity and the exteriority of the juridical order. The law does not regulate all human activity, and in particular does not deliberately regulate the forms of activity destined to promote the subjective perfection of the individual, but limits itself to dictating the norms indispensable to social coexistence. The necessity of the norms authorizes the constraining of even the rebellious to observe them; and thus the common good remains guaranteed despite the ill will of the subject. On the other hand, it would be impossible to constrain man to internal acts; whence whoever wishes to extort any act whatsoever must content himself with the exteriority of the act itself.
From this two consequences are deduced: a) not all matters are equally suited to being regulated in juridical form; and they are so more or less according to whether in them external execution is possible and preserves a social value even when unaccompanied by the inner adherence of the mind; b) coercibility is one of the most visible distinguishing characteristics of the juridical order, especially in relation to morality, because the latter aims directly at the perfection of the subject, and therefore the execution of its precepts has no value except insofar as it is voluntary.
Among philosophers and jurists, especially from the time of Kant onward, the degree of intimacy of the bond that unites law to coercion and coercibility is much discussed. Some would identify the two terms; others instead go so far as to deny any relationship between them. These are two opposite exaggerations, which also arise from poorly defined concepts. To clarify an often confused discussion, the following propositions must be laid down: a) merely juridical coercion is not necessary to law; that is, there can be truly juridical laws, although they entail neither nullity nor incapacity; which in certain matters would be altogether impossible; one can establish the nullity of a contract, but not of a homicide; b) neither physical coercion nor psychological coercion is necessary to law, in point of fact; indeed it is always desirable that the execution of the juridical command occur spontaneously, not only because the perpetual use of force and penalty would be a sign of the lack of internal social cohesion, but also because no society succeeds in putting into operation a coercive apparatus capable of constraining everyone and always to the observance of the laws, in the event that all refused spontaneous obedience; c) effective coercibility, that is, the real possibility of constraining, is not necessary to law; and if we called it necessary it would follow that the weak would never have any right against the strong who is armed; which is inadmissible; d) legal coercibility, that is, the juridical possibility of constraining, is inseparable from law, inasmuch as every juridical order, while not making the existence of the law depend on the effective availability of coercive means, cannot fail to authorize the compulsory execution of its precepts; e) the relationship 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 adequation of the juridical order with the moral one, but also from the distinction that moralists make between the norms of pure justice and those of integral morality, whence 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 not even the law; which is equivalent to admitting that between moral correctness and juridical rigidity some divergence may occur also with regard to recourse to coercion.
Bibliography
Giuseppe Graneris