Democratic Legitimacy and State Coercion: A Reply to David Miller

For the significance of the "presumptively" qualification, see note 16.

Miller subjects all three claims to the qualification that, if imposing negative obligations or issuing prevention-threats fails to leave intact an adequate range of valuable options, then they too require democratic legitimation, subject persons to coercion, and invade autonomy.

I define physical force as physically acting on a person’s body or restricting the physical space in which her body can move, and follow Scott A. Anderson in defining violence as a subset of force geared to injuring, incapacitating, or inflicting pain on a person’s body. "Coercion as Enforcement," November 3, 2008, http://ssrn.com/abstract=1294669.

Grant Lamond , "The Coerciveness of Law," Oxford Journal of Legal Studies 20, no. 1 (2000): 39-62.

Noncommunicative coercion thus includes the direct deployment of physical force and the authorization of such deployment. It may seem that laws authorizing the use of force are coercive in the communicative sense, perhaps implicitly articulating a standing coercive threat. But the coercion involved here does not intrinsically depend, as threats do, on communication: a secret directive authorizing the use of force against someone by a standing coercive apparatus subjects that person to coercive invigilation just as much as a published law. But a threat, unless successfully communicated, itself exerts no pressure on anyone. Note also that, although here I focus on physical force, I acknowledge that noncommunicative coercion is not restricted to the deployment or authorization of physical force: other preemptive techniques may also qualify as coercive.

My use of "invigilation" follows Philip Pettit, "Freedom and Probability," Philosophy & Public Affairs 36, no. 2 (2008): 206-20.

Friedrich A. Hayek , The Constitution of Liberty (Chicago: University of Chicago Press, 1960), 133-34 (cf. 137-38) and 142.

Ronald Hamowy , "Freedom and Rule of Law in F.A. Hayek," Il Politico 36, no. 2 (1971): 349-76; Murray N. Rothbard , The Ethics of Liberty (New York: New York University Press, 1998), chapter 28.

Hayek , Constitution of Liberty, 142-43.

Which leads to highly counterintuitive results. As Hamowy points out, it implies that the threat to kill someone if he buys anything from so-and-so, when he has other shopping options, is not coercive ("Freedom and Rule of Law," p. 358). Miller himself noted Hayek’s conceptual error in earlier works (Market, State and Community [Oxford: Clarendon Press, 1989], chap. 1, and "Introduction," in Liberty [ Oxford: Oxford University Press, 1991], 14).

Miller, Market , State and Community, 28.

References are to Arash Abizadeh, "Democratic Theory and Border Coercion," Political Theory 35, no. 1 (2008): 37-65. Miller is quite right to say that my claim that a threat is coercive only if it invades autonomy is a substantive claim. My original formulation was misleading in this respect: I should have said that conditions 1-4 are necessary for a proposal to count as a coercive threat, and that specifying the further condition S (or S2, or S3, etc.), which jointly with 1-4 is sufficient for the proposal to be coercive, requires showing that 1-4 plus S (etc.) (presumptively) invades autonomy.

Since condition S is where our disagreement lies, and since this is also where my account of coercive threats departs from the Nozick-Raz account, it is not wholly accurate for Miller’s critical purposes to assimilate my account to theirs. Scott A. Anderson argues that Nozick-type accounts are "coercee-focused" and lose track of the techniques of coercion (such as the deployment of physical force) that largely animate normative concerns about state coercion. "Of Theories of Coercion, Two Axes, and the Importance of the Coercer," Journal of Moral Philosophy 5, no. 3 (2008): 394-422.

The independence condition is closely mirrored by the nondomination condition championed by neo-republicans like Philip Pettit, A Theory of Freedom (Oxford: Oxford University Press , 2001).

Isaiah Berlin, Four Essays on Liberty (Oxford : Oxford University Press, 1969), xxxviii. The second Razian condition can be met solely by adapting preferences: if a person’s values change, preexisting options may thereby become valuable. This means that autonomy is susceptible to adaptive preferences. I believe that this is as it should be, but not so for independence-but there is no room to argue that here.

I say "presumptively" because I wish to leave the following possibility open for the specific case of a threat (or authorization) that leaves intact an adequate range of valuable options, but is nonetheless coercive by virtue of threatening (or authorizing) physical force. If such a threat consists in a law, then one might argue that, although the law subjects persons to coercion, the presumptive invasion of their independence is overcome if the law has been democratically justified by and to the very persons subject to it. This interpretation of the relation between independence and democratic justification (which mirrors the neo-republican view [see Pettit, Theory of Freedom] about the relation between nondomination and democratically forcing the power-holder to track the subject’s common avow-able interests) of course leaves intact the demand for democratic justification. Raz himself equivocates on this: he says that "all coercive interventions invade autonomy," but that in a liberal state with "guaranteed adequate rights of political participation . . . its coercive interventions do not express an insult to the autonomy of individuals." Joseph Raz, The Morality of Freedom ( Oxford: Clarendon Press, 1986), 156-57.

I hesitate because I have trouble believing that Miller, a staunch democratic theorist, really wants to say this. But he does say that "the person who is being prevented" from entering my house "does not necessarily have a right to be included in the institution or practice from which the prevention emerges."