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Alan Wertheimer
Copyright Date: 1987
Pages: 340
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  • Book Info
    Book Description:

    Wertheimer attempts to move beyond previous theories of coercion by conducting a fairly extensive survey of the way in which cases involving coercion have been treated by American courts. This impressive project occupies the first half of the book, where he makes a convincing case that there is a fairly unified 'theory of coercion' at work in adjudication, past and present. This legal theory, however, is not entirely adequate for the purposes of social and political philosophy, and the last half of the book develops Wertheimer's more comprehensive philosophical theory.

    Originally published in 1990.

    ThePrinceton Legacy Libraryuses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These paperback editions preserve the original texts of these important books while presenting them in durable paperback editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

    eISBN: 978-1-4008-5929-0
    Subjects: Philosophy, Political Science

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-x)
    (pp. xi-xii)
    (pp. xiii-2)
    (pp. 3-16)

    The distinction between voluntary and involuntary actions is an essential feature of our moral, political, and legal discourse. ʺHe made me do it.ʺ ʺI was forced into doing it.ʺ ʺI did it under duress.ʺ ʺHe coerced me.ʺ ʺI didnʹt act of my own free will.ʺ ʺI had no choice.ʺ Sometimes we accept (what I shall call)coercion claimsquite readily. At other times, we demur. ʺWhat do you mean—you had no choice?ʺ ʺYou didnʹt have to do it.ʺ ʺYour situation was tough, but you werenʹtcoerced.ʺ It is not, of course, what wesaythat is important. Coercion claims...

  6. Part One: Law

      (pp. 19-53)

      The law is always more complicated than one would suppose, whether or not, as some say, lawyers designed it that way. One assumes that contract law is rooted in the obligation to keep a promise, only to find that some lawyers disagree. They maintain that the obligation to keep a contract is based on notions of mutual benefit, fairness, or efficiency.¹ On one such view, a contract must be honored because the other party has reasonably relied to his detriment on oneʹs performance; the obligation to keep a contract is derived from the general obligation not to inflictharm. Indeed,...

      (pp. 54-70)

      Although contracts and torts are closely related, there is this structural difference between them. Incontracts, B undertakes an obligation that he otherwise would not have. If Bʹs contract is made under duress, B is released from his obligation. Intorts, A begins with an obligation not to harm B (or impose ariskof harm on B), an obligation which B can waive. If B waives Aʹs obligation not to harm him under duress, A is still under an obligation and B can recover should he be injured.¹

      A priori, there is no reason why B should not be...

      (pp. 71-89)

      In this chapter I consider three legal contexts which are loosely related in that all are predominantly matters of family law. The law of marital duress, it should be said, is arguably and strikingly anachronistic. Nonetheless, for that very reason, it serves to demonstrate the extent to which thestructureof the two-pronged theory of coercion has remained remarkably stable even as our moral views have changed. In the case of adoptions, we encounter a context in which circumstantial pressures are often particularly acute, but where the object of and parties to the agreement have important independent interests. In the...

      (pp. 90-103)

      In most legal contexts, coercion claims have a negative function; they serve to block what would otherwise be the normal legal effect of oneʹs act. If the coercion claim is successful, one will be returned to thestatus quo ante, where one is not bound by oneʹs agreement, where oneʹs right has not been waived, or where one is not liable for punishment. Put somewhat differently, coercion claims do not ordinarily serve as a basis forindependentlegal action.¹

      Extortion and blackmail appear to be exceptions to this generalization, as cases in which the very making of a coercive proposal...

      (pp. 104-121)

      The Constitution grants several rights to suspects or defendants in criminal cases. The Fourth Amendment grants citizens the right to be free from ʺunreasonable searches and seizures,ʺ the Fifth Amendment states that ʺ[n]o person … shall be compelled in any criminal case to be a witness against himself,ʺ the Sixth Amendment gives all criminal defendants the ʺright to a speedy and public trial, by an impartial jury,ʺ and the Fourteenth Amendment extends and reinforces these principles by adding that nostateshall ʺdeprive any person of life, liberty, or property, without due process of law.ʺ Now these constitutional rights are...

      (pp. 122-143)

      A defendant can waive his right to a trial by jury by pleading guilty—if the guilty plea is not coerced.¹ The problem is this. A guilty plea is typically the product of a plea bargaining process in which the state offers the defendant a choice between (1) standing trial and risking a (relatively) severe sentence and (2) pleading guilty and accepting a certain but (relatively) lenient sentence. It is at leastplausibleto argue that the structure of this choice situation coerces the defendant into pleading guilty.²

      Here the stakes are particularly large. In most legal contexts, a successful...

      (pp. 144-169)

      In Anglo-American criminal law, an act that would ordinarily constitute a punishable offense can bejustifiedorexcusedunder one of several accepted conditions, for example, self-defense, necessity, duress, or insanity. Although a great deal of theoretical ink has been spilled attempting to define the precise contours and underlying basis (or bases) of these technical legal defenses, they are, in a sense, ʺbut extensions of homely, routine apologies for causing harm.ʺ¹ ʺI had to do it,ʺ ʺI didnʹt mean to do itʺ—these are everyday claims. Their mundane analogues notwithstanding, the most famous cases of duress and necessity are anything...

      (pp. 170-176)

      Although we have covered a good deal of ground, we have not covered it all. Coercion claims arise in several legal contexts we have not begun to consider. When, for example, a trial judge stated that it was the juryʹs ʺdutyʺ to reach a verdict, it was held, on appeal, that he had coerced the jury, and the verdict was set aside.¹ When a defendant claimed that he stopped his crime in midstream, the court held that to abandon a criminal attempt ʺout of fear that the police might be coming cannot reasonably be considered voluntary,ʺ and therefore does not...

  7. Part Two: Philosophy

      (pp. 179-191)

      I have argued that, in most legal contexts, the law adopts a two-pronged theory of coercion and that both prongs are moralized. Let us assume that this account is roughly correct. It is not clear what this shows. That the law adopts a particular theory of coercion settles nothing, in and of itself. The law is interested in a special (although not unique) set of problems, and there is no reason to assume that its interests are coextensive with all the interesting questions about coercion, or that its account of coercion is philosophically defensible.

      Indeed, it may be objected that...

      (pp. 192-201)

      It is frequently said, particularly by those who advocate empirical theories of coercion, that the crux of coercion is that there are some choice situations in which B has ʺno choiceʺ but to do what A proposes. In other cases, B supposedly does have a choice. In this chapter I shall argue that there is something to this notion, but that it is of little help to a theory of coercion. In my view, the core of coercion lies elsewhere. It will, however, be useful to see what is and is not entailed in the argument that some situations involve...

      (pp. 202-221)

      I argued in the previous chapter that little of normative significance can be read off structural features of Bʹs choice situation. Perhaps the key to coercion is not in the choice situation itself, but in its genesis, in the sorts of proposals that create Bʹs choice conditions. The dominant philosophical view about coercion is to be found along these lines. That view maintains that threats coerce whereas offers do not. In this chapter I shall argue that this view, properly understood, is correct and that despite appearances to the contrary, it is consistent with the two-pronged theory of coercion we...

      (pp. 222-241)

      Some say that tennis is all in the follow-through. Or is it the footwork (or the grip, or the knees)? Actually, in tennis, it may not all be in anything. But I have argued, in effect, that the coerciveness of proposals is all in the baseline. And relative to that baseline, only threats are coercive. Some disagree. They argue that offers as well as threats can coerce. In this chapter I consider several versions of that claim.

      It is sometimes said that moderately attractive offers are not coercive, but thatextremelyattractive offers are different. As Virginia Held puts it,...

      (pp. 242-266)

      I have argued that only threats are coercive and that the distinction between threats and offers is rooted in a moral account of oneʹs baseline. There is more work to be done. Although all threats are coercive, not all threats coerce—at least in the sense that they nullify the normal moral and legal effects of oneʹs acts. A (relatively) complete theory of coercion should indicate what further conditions are necessary if Aʹs coercive proposal is to genuinely coerce B. I shall take up that task in the next chapter.

      But before proceeding further down what some maintain is an...

      (pp. 267-286)

      I have argued that receiving a coercive proposal is a necessary condition of being coerced, and that the distinction between coercive and noncoercive proposals is defined by Bʹs moral baseline. I have also suggested that receiving a coercive proposal is not asufficientcondition of being coerced, that some coercive proposals do not coerce in a way that nullifies Bʹs responsibility for the normal moral or legal effects of his act. In this chapter, I return to a theme that emerged both in our discussion of the law and in our discussion of the claim that a coercive situation is...

      (pp. 287-306)

      If the account of coercion developed in the previous chapters is roughly correct, it explains a lot. By translating moral threats into offers, the moral baseline account of coercive proposals explains why it is (ordinarily) not legally recognizable coercion to threaten to do something one has a right to do. The account of the choice prong as a justification explains how a proposal could constitute contractual duress, while a similar proposal would not establish duress as a defense to a crime. At the broadest level, the moralized account of coercion does much to explain the underlying logic (if not the...

    (pp. 307-310)

    An old chestnut in jurisprudence concerns a statute that prohibits the use of vehicles in a public park. The following question arises: does this statute apply to roller skates (or bicycles or toy automobiles)?¹ What would answering this question involve? We know what it does not involve. Certainly, we do not need additional factual information about roller skates. We know all that we need to know. Nor do we need a conceptual analysis of ʺvehicle.ʺ The question is not whether roller skates are ʺvehiclesʺ insomeplausible sense of that term (surely they are), but how this statute should be...

  9. INDEX
    (pp. 311-318)
  10. Back Matter
    (pp. 319-319)