Coercion and the Grounds of Legal Obligation: Arthur Ripstein's Force and Freedom

Draft - July 27 2010

Coercion and the Grounds of Legal Motivation. A Reviewof A Ripstein: Force and Freedom

(For book symposium in Jurisprudence Vol. 1(2010), issue 2)

George Pavlakos, Antwerp and Glasgow

With Force and Freedom, Professor Ripstein has givenus a far-reaching monograph that goes beyond theconfines of Kantian scholarship and is likely tobe of significance for many contemporary debatesin legal and political philosophy. Anticipatingthe problem of ‘the squaring of the circle’ thatpertains to an attempt to tackle anything assubstantial as Ripstein’s book in such shortspace, my focus on criticism merely reflects whatseems customary practice in book symposia such asthis one. That said, it would have taken severalpages, if not an entire book, to explore in fullthe ideas that this thought-provoking workdevelops with admirable philosophical acumen.Finally, I should warn the reader that whatfollows, in line with the spirit of the book underdiscussion,1 does not aim at either exegetical orhistorical accuracy with respect to Kant’swritings, but understands itself as a contributionto normative philosophy in a broadly Kantianspirit.

I would like to thank Katrin Flikschuh and Stanley L.Paulson for their most insightful comments and suggestions,which led to a significant improvement of the argument.1 A Ripstein, Force and Freedom (Cambridge Mass. HarvardUniversity Press, 2009), x-xi.

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A prominent theme in Ripstein’s book, and one thatI shall be focussing on, is the significance ofcoercion for legal obligation. Ripstein’sinterpretation of Kant’s legal and politicalphilosophy builds prominently on the importance ofcoercion for the grounding of legal obligation andthe explanation of its workings. Agents, in beingrational legislators of their own reasons foracting, are, as a consequence, exposed to coercionby others whenever they act together with them(which, naturally, is de facto unavoidable)2. Thusthe puzzle arising is how to explain the fact thatoften the deeds and words of others give rise togenuine obligations (call these relationalobligations) as opposed to being acts of coercion,even though they originate in someone other thanthe agent herself. Given that law is theparadigmatic source of such obligations, thepuzzle hits directly at the heart of legalobligation, its nature and possibility. Ripsteinargues, with Kant, that what grounds legalobligation is a set of publicly authorised legalinstitutions (rightful condition), which renderthe exercise of the capacity for freedom of eachagent compossible against the background ofpositive laws that enjoy omni-lateral authorization:‘Rather than trying to reduce the public to theprivate, Kant’s argument shows that the private isrightful in the context of the public’.3 It wouldseem then that legal institutions areconstitutive, in some sense of the word, of legalobligations. Moreover, this line of reasoningwould offer the most complete explanation of

2 For the unavoidable character of interaction betweenagents as a result of the spacio-temporal limitations of theenvironment see Ripstein, n 1, Ch. 3 Ripstein, n 1, 156. Also see chapter 2 more generally.

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Kant’s claim that the possibility of coerciveenforcement exhausts the content of legalobligation (whereas moral obligation requires inaddition that one make the duty the content ofone’s own motivation).4

My contention in this brief comment is thatProfessor Ripstein has not fully proven theprominent role that legal institutions (therightful condition) play for the grounding oflegal obligation. I am not claiming that no suchrole exists. In fact I myself would very much wishto uncover one. However as things stand in hisaccount I do not think Ripstein has made asufficient case for it. On the other hand, Ibelieve that the type of Kantian argument whichRipstein puts forward for demonstrating therelevance of coercion for legal obligation doesnot leave any room for a prominent role for publicinstitutions. In other words, it seems to me thatif this is the best reconstruction of the Kantianaccount of political authority, and it might well

4 The importance of the claim goes far beyond a mereexegetical point: to mention but one of its importantconsequences, the entire debate on the effects ofglobalization on law is largely determined by the positionone takes with respect to the normative role legalinstitutions play: if institutions of public law are assumedto be constitutive of obligation, then there is little pointin trying to reconstruct a post-national system of legality.Conversely, an account that regards institutions merely asenablers of relational obligations would be much moreaccommodating about the possibility of a post-national legalorder, without relying on any utopian assumption of a globalstate. For a proposal along the latter lines see G Pavlakosand J Pauwelyn, ‘Principled Monism and the NormativeConception of Coercion under International Law’ in M Evansand P Koutrakos (eds), Beyond the Established Legal Orders: SubstantiveInterconnections Between the EU and the Rest of the World (Oxford, HartPublishing, forthcoming).

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be, then the authority of legal institutions wouldrely entirely on Kant’s account of moralobligation, even though it could not be reduced toit.5 In that case, it would follow that publiclegal institutions are not constitutive for legalobligation but may, at most, function as enablersfor it.

I shall first give an account of the role ofcoercion in Ripstein’s reconstruction of Kant’slegal philosophy and subsequently engage with hisexplanation of legal obligation as one that isdistinct from moral obligation. There I shallargue that the primacy of coercion in Ripstein’saccount is undermined unless the moral law and theprinciple of right are taken to stand in the sameline of a unified account of normativity, eventhough each exemplifies a different level ofgenerality. The division of labour entailed bythis arrangement would look like this: whereas theCategorical Imperative (the Moral Law) would beoffering a definition of what makes it the casethat something is a genuine normative reason foraction, the principle of right would merely, butimportantly, be specifying how sound normativereasons play out when we do things together. I amnot putting forward this account as the best, letalone the only possible of the relation betweenmoral and legal reasons. Yet, I think that itmight better capture the spirit of Ripstein’sanalysis or for that matter of any analysis thatrelies on the centrality of coercion. If true,then my contention demonstrates why the spirit ofProfessor Ripstein’s analysis is incompatible with

5 In this case it might be more helpful to take on board therelation of supervenience to capture the relation betweenmoral and legal obligation.

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his (as it turns out merely wishful) claim thatpolitical institutions are constitutive of legalqua relational obligations.

1. The Normative Significance of Coercion

Ripstein re-imports forcefully into currentdebates the importance of coercion as a signifierof the special moral role that legal authority hasin people’s lives.6 In virtue of what do the actsof officials create obligations for individuals?Or ‘why focus on the coercive actions of thestate?’7

What makes coercion relevant to legal obligationis its special relation to the moral status ofagents as persons. In a sense coercion becomes thecurrency for evaluating the moral impact orsignificance of what legal officials do or saybecause it selects what is normatively significantin the deeds or words of legal officials in virtueof the impact those have on the capacity of agentsto set their own ends free of externalinterference.8 Incidentally the argument worksbecause the latter capacity is assumed (at leastwithin the confines of Kant’s practical6 See Ripstein, n 1, numerous passages and especially theoverview of the first chapter, pp. 1-29. It should be notedthat there is a recent revival of this question in the workof authors beyond those mentioned by Ripstein: See, A JJulius, ‘Nagel’s Atlas’ in (2006) 34 Philosophy and Public Affairs176-192; N Stavropoulos, ‘The Relevance of Coercion: SomePreliminaries’ (2009) 22 Ratio Juris 339-58; Also, for a morenarrow application of the significance of coercion for legalobligation in international law, see G Pavlakos and JPauwelyn, n 4.7 Ripstein, n 1, 10.8 Ripstein, n 1, 148-159, on the problem of firstacquisition and political authority.

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philosophy) to instantiate the content ofautonomy.

Such a reading moves well beyond traditionalaccounts of coercion, such as those focusing onbrute force or the harm caused to agents. In suchoutcome-oriented accounts coercion comes too late topoint to the morally or normatively significantelements that contribute to the genesis of legalobligation.9 There coercion assumes the role of anadditional incentive for compliance to a norm, butfails to explain what it is in virtue of which afact that takes place in the external environmentacquires normative significance (that is, becomesobligatory) for the agent. Instead, Ripstein’s isa full-blooded account, which understands coercionas constituting a constraint on agent autonomythat is antecedent10 to any loss of welfare or theapplication of brute force to the agent (call thisthe normative account of coercion – for shortNCC).11

NCC, in moving beyond physical enforcement and itseffects, treats the behaviour of officials only asa special case of the deeper and more far-reachingquestion ‘how can anyone’s act place others underan obligation where there were none before?’12

Ripstein traces this question back to Kant’s

9 Stavropoulos, n 6, 347, where he points out, in connectionwith Raz’s understanding of the role of coercion, that‘coercion is a philosophical distraction’.10 It is antecedent in the sense that it determines thenormative significance of any loss of welfare or causing ofharm as wrongdoing rather than vice-versa. 11 Ripstein, n 1, 42-47; 81-85. Other ‘full-blooded’accounts of coercion are to be found in Julius andStavropoulos, above n 4. The term Normative Conception of Coercionis coined by Pavlakos and Pauwelyn, above n 4.

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discussion of the original acquisition ofproperty, which he suggests is the proto-case forall relational obligations, including thosearising from public right. 13 He asks: ‘Why isn’tit the case that at the moment of firstacquisition of property, the one who acquires isnot coercing but instead he or she places othersunder an obligation?’ The NCC, in pointing torequirements of autonomy aims to ascertain thedeterminants of the obligations that originate inthe deeds of others. Conversely, failing toproject those deeds in the light of NCC wouldeschew their normative significance.

Ripstein’s answer to that question presents uswith one of the most challenging parts of hisreconstruction of Kant’s legal philosophy.14 Hisaccount explains the structure of relationalobligations against the backdrop of Kant’s accountof autonomous agency, which constitutes thecornerstone of the philosopher’s theory of action.The account of autonomy focuses on the concept ofinterference, which it renders crucial for

12 Ripstein seems to me to be viewing public authority as aspecial case of that more general question rather thantreating it as an answer to it (see Ripstein, n1, p 153ff.). The reason is that he is considering innate right asthe flip-side of persons’ capacity for purposiveness, thatis their capacity to set their own ends free ofintervention. To that extent, there emerges a source oflegal obligation that is non-relational and independent ofpublic institutions. Consequently the question about how ourdeeds and sayings obligate others acquires a generalitywhich escapes the realm of public institutions. I owe thisinterpretation of Ripstein’s view to K Flikschuh, ‘InnateRight and Acquired Right in Arthur Ripstein’s, Force andFreedom. Kant’s Legal and Political Philosophy. This issue.13 Ripstein, n 1, 148-159 (at 154-5).14 Ibid.

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identifying under what conditions an actoriginating in another may amount to a validobligation from the point of view of the agent.Here interference is the property that divides allacts that originate outside the agent into thosethat ground obligation and those that constitutewrongdoing.

Up to this point the structure – if not thecontent – of interference can be fully determinedfrom within the resources of the agent’s rationalcapacities: anything that has not been authorisedby the agent’s own reflective endorsement wouldcount as interference in the sense that is crucialto NCC.15 However, and this is the rub, Ripsteinargues that a complete account of interference inKant’s legal philosophy requires the inclusion ofa further dimension, a collective dimension as itwere, which extends beyond the confines of theagent’s reflective endorsement. It is the aspectof onmilateral authorisation (I would be reluctantto call it endorsement, even though this actuallyis the role it purports to play), which isexclusively rooted in the public institutions of alegal system (the rightful condition).16 Trueenough, the structure of interference can bedetermined through the elements of autonomousagency that render it in the first place ill-15 Ripstein’s account seems to be in line with the accountof rational agency familiar from C Korsgaard, The Sources ofNormativity (Cambridge, Cambridge University Press, 1996), 90-130.16 Ripstein, n 1, ch 7 (at 190ff). As one would assume, suchinstitutions cannot take any possible form but need to be inconformity with the outer limits set by individual autonomy:no omni-lateral authorisation could validate obligationswhich would have been rejected by the reflective authorityof the agent (Force and Freedom, pp 202) – the implications ofthis caveat will re-emerge in the last part of my comment.

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suited for obligation. However a fully-fledgedaccount of interference and the requirements forlegitimate obligation that originates in others’actions calls for some institutional arrangementsthat ensure omni-lateral authorisation, forotherwise any interference that remains unilateralwould constitute coercion. Let me try to shed somelight on the need and added value of onmilateralauthorisation and the institutional edifice thatgrounds it.

It seems to me that Ripstein wishes to argue thatthe notion of interference, which is key to theNCC and its function as determinant of thedeterminants of legal obligation, becomes richerwhen we move from the agent’s point of view toconditions of interaction between plural agents,who of course are symmetrically endowed withreflective capacities for autonomy.17 The enrichednotion of interference circumscribes an array ofnew possibilities for the content of obligation,on which we would be missing out if we were torestrict our query only to Kant’s account ofindividual autonomy (even though the lattersuffices for pointing to the structure ofinterference)18. Such a loss would be fatal to acomplete understanding of the workings ofobligation in conditions of acting in concert withothers. How so?

Interference is rendered the litmus test forwrongdoing owing to the structure of autonomy,17 Ripstein, n 1, chs 3 and 4.18 Cf Ripstein: ‘[the] structure [of private rights] can bearticulated without reference to legal institutions, butthey do not apply to particulars outside a rightfulcondition’, Force and Freedom, 224. Also see the appendix ofthe book, pp 373-387.

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that much we have established.19 To generate thisconclusion one needs, as Ripstein does, merely torefer to Kant’s conception of autonomy as isadvanced through the discussion of the Moral Lawin Kant’s two major works of practical philosophy(the Groundwork of the Metaphysics of Morals and theCritique of Practical Reason). There autonomy is fleshedout as the ability to choose one’s own reasons foraction unhindered by anything that wouldconstitute heteronomous interference with theability of the agents to choose under conditionsof freedom. Along these lines Kant’s account ofthe Moral Law as the condition of autonomy spellsout as it were conditions of ‘purity’20 for whatmay count as valid practical reason: nothing thatis imposed from sources external to the agent’sown reflective endorsement can constitute validpractical reason for that agent.21 The upshot ofthis argument is that practical reasons, in linewith the commands of the Moral Law, ought toassume the form of general propositions whose19 I take ‘interference’ to incorporate wrongful instancesof intervention with the freedom of others, that isintervention that is not covered by consent.20 ‘Purity’ in this context purports to point out that whenwe are looking to identify reasons for action we areinterested in the right kind of reason and not just any item thatmight impact upon the behaviour of the agent, but it mightfail to constitute a genuine reason for the actionperformed. The authoritative source for what constitutes theright kind of reason, see P Hieronymi, ‘The Wrong Kind ofReason’ (2005) 112 The Journal of Philosophy, 437-57.21 Such external sources include also internal psychologicalstates (impulses). What appears as a paradox, namely toexplain something that is internal to the agents’ psychologyas being at the same time external to them, is explainedaway when we consider externality in a normative rather thanexplanatory light. That is not, not as referring to thesource but to its relation to agent’s capacity for autonomy.For a thorough discussion, see Korsgaard, n 13, ch 3.

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validity does not depend on particularcircumstances or the substantive aims of theagent, but remain valid simpliciter. Suchpropositions are laws (norms), not unlike laws ofphysics, which can provide a complete answer tothe question of whether any ‘p’ is a genuinereason for action. Thus, on this account, it isnot possible that ‘p’ be a reason to Φ for agent Aand that there still be room left for A to wonder:‘is ‘p’ a valid reason to Φ?’

Resting on this formal notion of practical reasonswe arrive at a rather abstract understanding ofthe structure of what counts as hindrance with aagent’s autonomous choice. However, Ripsteinpoignantly argues that in conditions of reciprocalinteraction between agents, an additionaldimension is added to what might count as ahindrance of that kind. Here an agent will behindered when she is constrained by another’schoice on either of two occasions: ‘one person […]interfere(s) with the independence of another,either by drawing that person into purposes thatshe has not chosen or by depriving her of hermeans’.22 These additions to the account ofhindrances to autonomy lead to an enrichment ofour understanding of interference in many ways:items or events that would constitute interferenceunder the formal account of the Moral Law mightturn out not to be instances of interference inconditions of spacio-temporal interaction betweenagents. And vice versa: there might existoccurrences, which normally would not qualify asinterference under the formal account of autonomy,but which do whenever we act together with

22 Ripstein n 1, 15.11


others.23 Leaving out a lot of detail andcertainly failing to do justice to the subtlety ofthe discussion in the book, the enriched accountmay be meaningfully reduced to the following threegeneral categories of interference:

a. For a start, apparent interference: an act or eventmay appear as interfering with someone’s autonomybut, on closer inspection, it does not. The reasonis that under conditions of interaction, autonomyis relevant to what can be chosen or intended butnot to anything that can be wished or desired.24 Imay desire that no one buys the last pack ofcigarettes from the corner shop, but this is notanything I can impose on others. Conversely, noone who would be buying the pack would actually beinterfering with my autonomy. 25 It follows that,at least on Ripstein’s interpretation, Kantianfreedom comes with constraints set by what others

23 Ripstein, n 1, 372-3.24 For the distinction between wishing (desiring) andchoosing (intending) in Kant see Ripstein, n 1, 40-42.25 To be precise, these instances would constituteinterference if one were to stay only within the account ofindividual autonomy (innate right), but cease to do so assoon as the dimension of collective action is introduced. Icannot discuss further objections in this context; however,it seems to me that some of the cases identified by Ripsteinas instances of non-interference are not as clear-cut. Inparticular: would I be interfering with someone else’sautonomy if I, continuously, succeeded in buying the lastpacks of anything and simply piled them up in my storage,never making any use of them? Or if I destroyed an orchardthat belonged to no one, simply with an eye to gettingpeople to buy my own fruits? What I mean to point out isthat the limits of what constitutes subjection of others asmeans to my own ends will vary significantly, if oneoccupies a more distributive position about what constitutesa legitimate reason for collective action. Along theselines, cf with Julius, n 6.

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are doing: not just any alteration in theenvironment is an infringement on the freedom ofothers.26

b. Illegitimate interference, which fails to groundobligation vis-à-vis the person at whom it isdirected. This is the case akin to something likeHart’s gunman scenario: when handing over mywallet to a gunman I am not acting under anobligation; I am merely being coerced.

c. Legitimate interference, which grounds genuineobligation. This is the most important case forlegal obligation. In virtue of what isinterference with anyone’s capacity for choicecovered by genuine obligation? The answer has twoprongs: for one part, what determines whethersomething constitutes interference with someone’sability to set one’s own ends derives from Kant’saccount of the Moral Law. However, on the otherhand, what renders such interference legitimateseems to hinge on the institutional structure ofthe law: we need, Ripstein argues, publicinstitutions of law such that are omni-laterallyauthorised in order to render interferences onautonomy legitimate.27 That said, an importantqualification on the need for institutions ofomni-lateral authorisation is introduced. Theaccount of individual autonomy can by itselfground an obligation on everyone not to interferewith my body. This obligation corresponds to whatKant labels innate right and which is groundedirrespective of institutional arrangements or theexistence of other agents. 28 However, everything

26 Ripstein, n 1, 15;17. 31-39.27 Ripstein, n 1, Ch. 7.28 Ibid, Ch. 2.

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else I do (from appropriating objects for mypurposes, to putting others at my service throughcontract, or exercising relations of status) canonly obligate others ‘to play along’ if there is alegal system in place.29

It would appear that the significance of coercion,which lies in its capacity to connect deeds andsayings in the environment with the normativestatus of agents as persons, requires theintervention of public legal institutions in orderto ground genuine obligations.30 But is that so?It seems to me that despite Ripstein’scontentions, what grounds legal obligation – atleast under the account of NCC, which I takeRipstein to endorse in some form – is antecedentto any institutional arrangements and may beaccounted for from within the resources ofindividual autonomy. To be more precise, I believethat even if public institutions do play animportant role in shaping or enabling legalobligations, it is the Kantian account ofindividual autonomy which ultimately determinesthe extent to which institutions contribute, when

29 Ibid, Chs. 3-5. Interestingly Kant views the grounding,albeit not the enforcement, of property rights asindependent of institutions: ‘…the form of interaction inwhich property rights constrain the conduct of others doesnot depend on positive law’, ibid, 87.30 Not only for securing or enabling the exercise of privateright but also for introducing genuine obligations addressedto the public at large (e.g. taxation, redistribution and soon). See Ripstein, Ch. 9. As Ripstein submits ‘… public lawobligations are grounded on their capacity to facilitate therealisation of the innate right of humanity: ‘These novelobligations are grounded in the public character of arightful condition, rather than in either human needs or theprivate duties of human beings among themselves.’ (Ibid,299).

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they do, to the grounding of legal obligation.Moreover, Ripstein himself relies upon the accountof individual autonomy with an eye to spelling outrequirements for the design of public institutionsas well as delimiting the outer limits of whatthose institutions may legitimately impose.31

Hence, institutions are not the final determinantsof the grounds of legal obligation.

2. Grounds and Motives

I suspect that the key reason as to why Ripsteintakes such great pains in arguing for therelevance of institutions for the grounding oflegal obligation is an important difference in themanner in which legal and moral reasons32 involvethe motivation of the agent. The thinking stemmingfrom my suspicion might run as follows: moralobligation, on the one hand, requires that theagent make the Moral Law (or, which is moreaccurate, the moral reasons that pass thereflective endorsement test of the Moral Law) thecontent of her motivation. It would follow that inthe realm of morality one could rely upon someform of authorisation of reasons on the part ofthe agent, with an eye to discharging any questfor legitimacy. Conversely, in law motivationplays no role at all: the agent need not endorsewhat counts as legal obligation, for legal reasonsconcern entirely and purely the external behaviourof agents. Owing to this asymmetry – whichincidentally is held by many scholars to provide astrong proof for the separation of law and morals

31 Ripstein, n 1, 202-3.32 In what follows I shall take ‘legal reason’ and ‘reasonfrom right’ to be coextensive.

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in Kant’s philosophy33 – a remedy is called forwith an eye to the authorisation of reasons fromright. In addition, the asymmetry seems to explainwhy, as we saw earlier, the formal account ofautonomy fails to capture the richness of theinterference between agents acting in concertshunning, as a consequence, the need for anenriched account of relational obligations.34

Because moral reasons motivate differently thanreasons from right, an extension of the account ofthe grounding of legal obligation is required. Theidea of omni-lateral authorisation is called uponprecisely to fill that gap: it caters for theauthorisation of legal reasons by the collectivein a manner that preserves individual autonomy ofits members under conditions of co-existence andscarcity.35

33 See instead of others, M Willaschek, ‘Which Imperativesfor Right? On the Non-Prescriptive Character of JuridicalLaws in Kant’s Metaphysics of Morals’ in M Timmons (ed), Kant’sMetaphysics of Morals. Interpretive Essays (Oxford, Oxford UniversityPress, 2002), 65-87.34 It is not clear to me (not the least so because of mywant for the detail of Kantian scholarship) whether there isa further link between the difference between legal andmoral reasons and the requirements of political authority,enforcement and determinacy which Kant (and Ripstein) takesas reasons for the transition from moral to legalobligation. I will assume that the difference in thestructure of moral and legal obligation is - if not fullyexhaustive of those other requirements - at least co-extensive with them when one employs the vocabulary ofmetaethics.35 Yet, even on this construction some considerable overlapbetween the two kinds of reasons, moral and legal, must beretained given the prominence Kant attributed to the idea ofindividual autonomy in his practical philosophy. Inparticular omni-lateral authorisation cannot lead to lawsthat autonomous agents could never have chosen themselves.Cf with n 14 and 28 above.

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If this is the rationale underlying Ripstein’sspecial emphasis on public institutions, I wish toargue that questions of motivation ought to bekept distinct from questions about the grounds ofobligation, not just in law but first and foremostin morality. I think that one of the great virtuesof Kant’s meta-ethical account of practicalreasons, and one that is mainly responsible forits groundbreaking character within the history ofideas, is the contention that those are groundednot on the motivational states of agents but on auniversal test of reflective endorsement. Thus,the motivational states of agents, regarded notonly in isolation but also in the aggregate, whenthose act in concert, are irrelevant to thegrounding of obligation. Let this stand as anearly suggestion that when it comes to thegrounding of obligations moral reasons and reasonsfrom right might share more than is commonlyassumed.

Ripstein offers in an appendix of admirablesophistication and philosophical subtlety his ownaccount of how it is possible to retain continuitybetween law and morality without collapsing legalinto moral reasons.36 I am not going to discusshis ideas, primarily because I do not feel up tograppling with the arguments he puts forward – butnot just for that. I also have the impressionthat, while his thoughts strive for (and to theextent I can judge, fully succeed in delivering)systematicity between Kant’s theoretical andpractical philosophy37, at the same time they

36 Ripstein, n 1, 356ff.37 Roughly put Ripstein argues that the difference betweenthe moral law and the principle of right is grounded in the

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might fall short of seeing the difference, interms of the role played by incentives, betweenlegal and moral reasons for what it actually is:as a difference between motivation and thegrounding of reasons.

On a plausible interpretation, Kant’s keymetaethical contention is that motivation isirrelevant to the grounding of practicalobligation if motivation is conceived of as anoperation that is additional to or distinct fromthe universal test of reflective endorsement,which is prescribed by the Moral Law.38 To put itin more instructive vocabulary: what makes it thecase that I ought to, say, repay my debts is notmy desire to repay my debts but the (normative) factthat I ought to repay my debts.39 My desire torepay my debts is not antecedent to that fact butconsequent to it, at least to the extent that I donot suffer any additional pathology in my moralpsychology. Along these lines the Kantian idea ofmoral obligation entails that I am acting morallywhen I make the (normative) fact that I ought to

distinction (in Kant’s first Critique) between concept andObject. As concepts cannot deliver substantive knowledge ofobjects, but need the categories which organise sensoryperception in order to do so, likewise in kant’s practicalphilosophy The Moral Law offers merely a conceptualframework which cannot ground relational obligations withoutthe input of the principle of right.38 Admittedly, this requirement concerns primarily moralreasons. However, to the extent at least, that the Moral Lawis placed at the foundation of practical reason in itsentirety, as I believe Ripstein’s would agree with, the waymoral reasons work is decisive for all other kinds ofreasons.39 Talk of facts is perfectly compatible with the Kantianphilosophy to the extent that we take facts to beconstituted through the test of the Moral Law.

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pay my debts the content of my motivating state.However this is significantly different fromsaying that the one or the other motivating stategrounds the truth of the fact that I ought torepay my debts. Even though the operation ofreflective endorsement involves as its startingpoint subjective states of the will, whicheventually are scrutinised in the light of therequirements of the moral law, the final stage ofthe reflective endorsement test is a state of thewill only in name, for it coincides with thatwhich would have been willed by an ideal agent.The content of such idealised or counterfactualstates of the will is given by propositions thatare truth-evaluable, as opposed to actual statesof the will, which do not admit of truth-values.To speak with Michael Smith, such idealised orcounterfactual states are no longer psychologicalstates but (normative) facts.40

Yet, it seems to me that Ripstein assumes that theexistence of legal public institutions isnecessary for legal obligation because moralobligation requires that the right reasons (thatis, those maxims of the will that have passed thetest of the Moral Law) become part of theincentive of the agent. If we did not supplementthe legal realm with a distinct type ofauthorisation a disabling asymmetry would saddlelegal obligation. Let me unpack this a little bit.In the case of moral obligation there exists acertain authorisation on behalf of agents. AsKant, however, is arguing that law purports tocapture external behaviour and not the motives ofagents, a certain asymmetry emerges between moral

40 M Smith, ‘Internal Reasons’ (1995) 55 Philosophy andPhenomenological Research 109-131 (at 122-3).

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and legal obligation. To bridge this asymmetryRipstein assumes that something additional iscalled for in order to authorise reasons fromright, which are not under the requirement toconstitute the incentive of agents. Thisadditional element is omni-lateral authorisation,which is delivered by public institutions. It is,I think, against the backdrop of this idea thatRipstein also argues that institutional acts arecapable of rendering certain deeds or sayings ofothers the sources of valid obligation, eventhough they display prima facie the structure ofinterference with the free choice of the agent.41

But does institutionalisation bestow specialauthority to the deeds of others that isindependent of what makes any reason authoritativeanyway? I think it would bestow special authority,if two conditions obtained. First, if moralobligation would, in the first place, requireauthorisation from the subjective states of thewill of individual agents. Second, if institutionswere to function as substitutes for the states of

41 On the standard picture the key difference between moraland legal obligation is that in the first case I bind myself(legislate the moral law to myself), whereas in the secondcase I put others under an obligation by my actions. Mycontention of this picture is that the two stages areclosely intertwined: the operation of binding myself is nota solipsistic or subjectivist undertaking, but rests ongrounds that any rational agent ought to endorse (norms).Relatedly, the normative impact of my deeds on others’agency does not rest on some sui generis normative basis, buton norms that are normatively binding on any rational agent.To that extent the grounds of moral and legal obligationare, to say the least, co-original. I am indebted to KatrinFlikschuh for prompting me with her comments to drive homethis point.

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will of individual agents under conditions ofcollective action. Neither, in my view, obtains.

To assume that institutions are substitutes forindividual states of the will in a process ofcollective authorisation is not satisfactory. Tobegin with, for the reasons considered earlier,what determines the grounds of moral obligationare not any psychological states of the will.Second, since the Kantian account of the groundsof moral obligation does not involve anypsychological states, there is no need to look fora symmetric structure in the realm of right.Rushing through some of the more obvious steps ofthe argument, it would follow that omni-lateralauthorisation cannot generate distinct grounds forobligation.42 Conversely, if my analysis iscorrect, and grounds ought to be kept distinctfrom motives, there emerges an altogetherdifferent understanding of what might constituteomni-lateral authorisation. Omni-lateralauthorisation would rather refer to therequirement of taking into account others aspersons whenever agents (individually or42 Interestingly Ripstein seems to assume something like theinterpretation I am proposing when he argues that the pointof coercive enforcement is not to impose sui generisobligations but merely to set things right simpliciter (Force andFreedom, 87). I think it is consistent here to suggest thatthat which determines what is right is not introspectionabout anyone’s actual incentives but instead those normativefacts (norms) which, from the point of view of morality, arecapable of grounding an obligation. With respect to thosenorms agents have an obligation of virtue to make them thecontent of their motives (e.g. incentives), as Ripsteinhimself contends (ibid, 358). For a similar view attainingto the continuity between moral and legal obligation cf withP Guyer, ‘Kant’s Deductions of the Principles of Right’ in MTimmons, Kant’s ‘Metaphysics of Morals’. Interpretive Essays (Oxford,Oxford University Press, 2002), 23-64 (at 26).

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collectively) engage in the reflective enterpriseof establishing the reasons they have.43

Where, then, to look for the role of institutionalarrangements? Painting with a broad brush,institutions seem to play the role of bridging thegap between obligations that are valid simpliciterand their instantiations in particular contexts ofinteraction between agents.44 A principle effectof this interplay between the universal and theparticular is the fact that the same obligationmay admit of distinct instantiations in differentinstitutional contexts. However, and this is keyin my opinion, difference or diversity in contentdoes not necessarily entail difference in thegrounds of obligation. As a consequence, the sameobligation may find different institutionalexpressions, without any need to suppose that itsgrounds change too. To that extent, institutionsmay be regarded as enablers rather than grounds ofobligations.

Enablers behave toward grounds in a differentmanner than motivating states. Different enablersmay correspond to the same ground even if theylead to obligations that are distinguishable intheir content. The ground remains the same because43 To that extent I would be tempted to argue in a Kantianspirit, albeit not in the spirit of Kantian exegesis, thatpractical reasoning about moral and legal obligations isunified on the grounds that it includes an omni-personaldimension. Such a contention would bestow a ‘cosmopolitanbias’ to our understanding of the normative impact ofglobalisation on legal and political institutions in recentyears. See also n 4, above.44 For a more thoroughgoing discussion of the distinctionbetween reasons simpliciter and reasons in a domain see G Pavlakos,‘Practice, Reasons and the Agent’s Point of View’ (2009) 22Ratio Juris 74-94.

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the function of the ground does not compete withthat of the enabler on the same level: the groundcontinues to determine the normative or practicalforce of the obligation even though its‘direction’ might take a different turn dependingon the enabler that is at play. However, and thisis crucial, it is the ground that still has thelast word even about which enablers are relevant(and to which extent) on each occasion.45

But if the function of the enabler is all that thealleged difference between moral and legalobligation boils down to, then Kant’s account ofobligations of right is seen to be only a specialcase of his general account of moral obligation.For want for a more thoroughgoing argumentation,which would demonstrate that institutionalauthorisation is capable of generating distinctgrounds for obligation, it is safe to say thatthere exist obligations simpliciter which in spite,or rather because, of interacting with the variousenablers that come their way, determine thegrounds of every other obligation that ariseswithin the various domains of what we together do.

45 Things are different when we move to motivating states.If psychological states of the will are assumed to play adistinct role in the grounding of obligations then theycompete with anything else that purports to be a ground – infact they carry the grounding role. Now, if a case could bemade successfully that there exist collective states of thewill, or states of the will that exist over and above theirindividual constituents, then a genuine difference in termsof grounds could be introduced between moral and legalobligation. If however no such case is likely to succeed, asI think Ripstein would also agree, then all states of thewill can do is to function anew as enablers.

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Coercion and the Grounds of Legal Obligation: Arthur Ripstein's Force and Freedom

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Transcript of Coercion and the Grounds of Legal Obligation: Arthur Ripstein's Force and Freedom