COERCION and COERCIBILITY. – The generic and popular concept of coercion is the opposite of spontaneity, and indicates that which is contrary to the natural tendency of the subject. In man, every action that is urged upon him against his will is coercive. In the juridical sphere, coercion has special importance, because law resorts to it in order to secure the execution of its commands. Juridical coercion is therefore “a mode of executing the law, which consists in securing such execution despite the contrary disposition of the subject.”
According to the manner in which it is exercised, coercion may be purely juridical, physical, or psychological. It is purely juridical when it achieves the desired effect solely through the operation of the law, without any need for the concurrence of any will. Such is the coercion exercised by all laws that annul or incapacitate, inasmuch as the law alone then suffices to deprive of all value the act performed contrary to it, so that the will and the contrary action of any subject are frustrated. It is physical when the execution of the juridical precept is secured by the action of a third party, that is, of a subject other than the one originally obliged, as, for example, the payment of a debt carried out by the creditor himself against the irrevocable will of the debtor, or a delinquent act prevented by force by a public official. It is psychological when the fulfillment of the juridical command is secured by exerting pressure upon the will of the subject bound, seeking to overcome his reluctance; this usually occurs by threatening penalties in case of transgression. If the subject yields and performs the prescribed action, the act will be one in which voluntariness is mixed with a certain involuntariness, actually overcome but affectively not 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 it indicates only the possibility of coercion; and this possibility may be considered in relation to a given juridical system, or to the entire complex of ethical laws, or to factual circumstances; hence one distinguishes legal, moral, and effective coercibility.
The foundation of coercibility and of coercion in the field of law is twofold: social necessity and the externality of the juridical system. Law does not regulate all human activity, and in particular it does not deliberately regulate those forms of activity intended to promote the subjective perfection of the individual, but limits itself to prescribing the norms indispensable to social coexistence. The necessity of the norms authorizes compelling their observance even from the rebellious; and thus the common good is guaranteed despite the ill will of the subject. On the other hand, it would be impossible to compel man to internal acts; hence whoever wishes to exact any act must be content with the externality of the act itself.
From this two consequences are deduced:
a) not all matters are equally suited to be regulated in juridical form; and they are more or less suited according as external execution is possible and retains a social value even if dissociated from the internal adhesion of the spirit;
b) coercibility is one of the most visible distinguishing features of the juridical order, especially in comparison with morality, because the latter 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 since the time of Kant, the degree of intimacy in the bond uniting law to coercion and coercibility has been much debated. Some would identify the two terms; others go so far as to deny any relation between them. These are two opposite exaggerations, which also arise from poorly defined concepts. To clarify a discussion often confused, the following propositions should be set forth:
a) law does not require purely juridical coercion; that is, there may be truly juridical laws even though they involve neither nullity nor incapacity; which in certain matters would be altogether impossible: one may establish the nullity of a contract, but not of a murder;
b) law does not in fact require either physical or psychological coercion; indeed, it is always desirable that the execution of the juridical command occur in a spontaneous manner, 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 could operate a coercive apparatus capable of compelling all and always to observe the laws, in the event that all refused spontaneous obedience;
c) law does not require effective coercibility, that is, the real possibility of compelling; and if this were necessary it would follow that the weak would never have any right against the strong, which is inadmissible;
d) inseparable from law is legal coercibility, that is, the juridical possibility of compelling, inasmuch as every juridical system, even if it does not make the existence of law depend upon the actual availability of coercive means, cannot but authorize the coercive execution 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 perfect adequation of the juridical order with the moral order, but also from the distinction that moralists make between the norms of pure justice and those of integral morality, whereby they themselves admit the existence of certain actions which, although violating some moral virtue in relations with one’s neighbor, do not offend justice, and therefore neither do they offend law; which is equivalent to admitting that between moral correctness and juridical rigidity there may occur some divergence even with regard to recourse to coercion.