Washington University Jurisprudence Review
Critics of international law argue that it is not really law because it lacks a supranational system of coercive sanctions. International legal scholars and lawyers primarily refute this by demonstrating that international law is in fact enforced, albeit in decentralized and less coercive ways. I will focus instead on the presumption behind this skeptical view—the idea that law must be coercively enforced. First, I argue that coercive enforcement is not conceptually necessary for law or legal obligations. Second, I consider the claim that coercive enforcement is nonetheless necessary for instrumental reasons. I argue that while physical coercion is instrumentally useful for increasing compliance in the domestic case, this is less effective and more problematic in the international case. What then is essential and distinctive about law, and what would increase the effectiveness of international law? First, international law needs to be generally accepted as binding by states, officials, and other agents; and second, international legal rules should be determinatively interpreted and applied by authoritative, adjudicative, and administrative institutions.
Is Coercion Necessary for Law? The Role of Coercion in International and Domestic Law,
8 Wash. U. Jur. Rev. 35
Available at: http://openscholarship.wustl.edu/law_jurisprudence/vol8/iss1/2