1. Alexander Rosenberg, The Structure of Biological Science (Cambridge University Press, 1985) at 186, 188. The other classic example is the biological classification system pioneered by Carl Linnaeus. Although Linnaeus did not, by modern standards of phylogenetics, get everything right, the correspondence between his taxonomy and what we now understand about evolutionary relationships is remarkable.

2. Ibid at 186.

3. Raz, Joseph, Authority of Law, 2nd ed (Oxford University Press, 2009) at ch 2 [Raz, Authority of Law].Google Scholar

4. Austin, John, The Province of Jurisprudence Determined (John Murray, 1832) Lecture I, especially at 5–7.Google Scholar

5. Hart, HLA, The Concept of Law, 2nd ed (Clarendon Press, 1994) at 79–99.Google Scholar

6. Gillian K Hadfield & Barry R Weingast, “Microfoundations of the Rule of Law” (2014) 17 Annual Rev Political Science 21.

7. E.g., Finnis, John, Natural Law and Natural Rights, 2nd ed (Oxford University Press, 2011) at 14-15. Or (defining the term very differently) Austin, supra note 4 at 7–12.Google Scholar

8. This limitation is evoked by Robert Nozick’s caricature of a methodology in which “One brick is piled upon another to produce a tall philosophical tower, one-brick wide,” for others then to seek to topple, thereby “burying even those insights that were independent of the starting point.” Nozick, Robert, Philosophical Explanations (Belknap Press of Harvard University Press,1981) at 3.Google Scholar

9. I will not seek to offer a justification here for the selection of these four questions. The usefulness or otherwise of classificatory criteria can only really emerge “on the job”, as it were. As has been noted, taxonomy-formation is necessarily a bootstraps exercise.

10. Hart, supra note 5 at 60-61.

11. Leslie Green, “General Jurisprudence: A 25th Anniversary Essay” (2005) 25:4 Oxford J Legal Stud 565 at 573 [Green, “General Jurisprudence”]. A further example of the same dichotomy being drawn, albeit by a writer who places himself outside of the consensus referenced by Green, is provided in Frederick Schauer, The Force of Law (Harvard University Press, 2015). Schauer announces that he intends to probe the existence of the person who “discovers the law requires not-ϕ, and who then, because of the law, proceeds to do not-ϕ …without regard to the possibility of punishment or any other form of legal coercion”. Ibid at 52. This much is fine. Although the notion of acting ‘because of the law’ is vague, here it can be understood as a residual category (all instances of law making a difference other than via coercion). But in the next paragraph this residual category is, without warning, liquidated to that of treating the law as authoritative: “The question now before us is whether there are people, and if so in what quantity, who take the law qua law, and without the prudential reasons that threats of sanctions for violation may provide, as a reason for action… [I]f those who take the very fact of law as a reason for action … are few and far between, then coercion resurfaces as the likely most significant source of law’s widespread effectiveness.”

12. Raz, Joseph, Practical Reason and Norms, 2nd ed (Oxford University Press, 1999) at 64.CrossRefGoogle Scholar The quoted statement needs parsing a little. Since the feat of getting people not to act on (their own assessment of) the balance of reasons is for Raz definitional of authority, to avoid tautology the statement must be interpreted something like: “Persons or institutions (such as law) that aspire to secure coordination can only do so by exercising authority.” Finnis, at any rate, is clear in affirming that coordination requires authority: Finnis, supra note 7 at 232. Coordination is also invoked in this context in Jeremy Waldron, Law and Disagreement (Oxford University Press, 1999) at 105-08 [Waldron, Law and Disagreement]. The approaches of Finnis and Waldron are discussed further in Section IV.D.

13. One could, alternatively, define ‘mere conformity’ in terms that would exclude cases where the historical intervention of the law is a cause of S’s behaviour. If one did so, the scope of this category would be smaller. A somewhat lower proportion of the trillions of acts of compliance that take place each year within a given legal system would fall under this head of explanation and a correspondingly larger proportion would be apportioned to other explanations.

14. More formally, a statement (or advice, request, order, and so on) can be said to provide a content-dependent reason where the force of that reason depends on one’s assessment of the situation that the statement speaks to, and a content-independent reason to the extent that the force depends on something else. That something else might be the identity or status of the issuer of the statement (or, as in the case of coercion, their likely next move). Advice, for example, is generally content-dependent. Whatever reasons it provides are liable to be invalidated if the facts of the matter are different to what the advice-giver understood. An order, though, has the force that it has because of the status, or capacity to inflict punishment, of the person issuing it. Note that the concept of content-independence is only intelligible in the context of reasons provided by statements, particularly speech acts (orders, laws). See NP Adams, “In Defense of Content-Independence” (2017) 23:3 Legal Theory 143. As Adams puts it, it can apply only to reasons that have ‘containers’. For example, it would make little, if any, sense to ask whether the desire to increase profits is a content-independent reason for reducing costs (content of what?). A failure to grasp this aspect fatally undermines Paul Markwick’s argument that either the law cannot provide content-independent reasons or else all reasons are content-independent. P Markwick, “Law and Content-Independent Reasons” (2000) 20:4 Oxford J Legal Stud 579.

15. Schauer, supra note 11 at 52-54.

16. Raz, Authority of Law, supra note 3 at 233-34.

17. Leslie Green, “The Forces of Law: Duty, Coercion, and Power” (2016) 29:2 Ratio Juris 164 at 170.

18. Grant Lamond, “The Coerciveness of Law” (2000) 20:1 Oxford J Legal Stud 39 at 56-57. Lamond would, however, reserve the concept of a “sanction” for a disadvantage prescribed for a breach of a duty. Ibid at 59.

19. Hart, supra note 5 at 33-35.

20. See text to note 11.

21. Bentham, Jeremy, An Introduction to the Principles of Morals and Legislation (Clarendon Press, 1823)Google Scholar at 24: “pleasures or pains … capable of giving a binding force to any law or rule of conduct … may all of them be termed sanctions.” Austin disagreed with Bentham on this conceptualization, on the ground simply that it involved “a wide departure from the established meaning of the terms.” Austin, supra note 4 at 10.

22. Schauer, supra note 11 at 110-23.

23. Such an unsophisticated analysis of willingness might be inadequate in other contexts—for example, if it were applied to the question of the moral responsibility of a person coerced into committing a crime. But it is adequate, I suggest, for the present purpose. That purpose is the yielding of some meaningful grounds of distinction between the various forms of law-subject relationship considered in this article (i.e, mere conformity, coercion, authority and coordination). If it succeeds in this, then I would pray in aid of Occam’s Razor.

24. Lamond, supra note 18 at 44.

25. Ibid at 49.

26. Jeremy Waldron, “Torture and Positive Law: Jurisprudence for the White House” (2005) 105:6 Colum L Rev 1681 at 1727 (here quoting Hannah Arendt) [Waldron, “Torture and Positive Law”].

27. Ibid at 1726.

28. See discussion, supra note 14.

29. Raz, Joseph, The Morality of Freedom (Oxford University Press, 1986) at 36.Google Scholar Oddly, though, Raz here describes threats as reasons “for belief” that the unwelcome eventuality will occur. They are surely reasons for action too [Raz, Morality of Freedom].

30. Plato, Republic, 2:359c-2:360d. Glaucon, the character who invokes the myth, asks whether we would take advantage of the invisibility to steal and make havoc as we pleased. The text to this note posits the converse possibility, namely the use of the ring to fulfil duties from which one would otherwise be excused.

31. Raz, Authority of Law, supra note 3 at 26.

32. Raz, Morality of Freedom, supra note 29 at 42-47, 57-62.

33. Schauer, supra note 11 at 55.

34. On one view, even Raz’s own theory might need to avail of such tolerance, ironically enough. For Emran Mian contends that Raz’s account of how authority is to be justified implies a weighing up of the reasons for according authority in the balance with other reasons, contrary to the pre-emption thesis: Emran Mian, “The Curious Case of Exclusionary Reasons” (2002) 15:1 Can JL & Jur 99.

35. A similar observation is made in Kenneth Einar Himma, “Just ’Cause You’re Smarter than Me Doesn’t Give You a Right to Tell Me What to Do: Legitimate Authority and the Normal Justification Thesis” (2007) 27:1 Oxford J Legal Stud 121 at 128. However, the relevant passage is focused on the somewhat narrower question of whether we give legal directions pre-emptive weight in our purely prudential (non-moral) deliberations.

36. Weber, Max, “Politics as a Vocation” in Gerth, HH & Wright Mills, C, eds and translators, From Max Weber: Essays in Sociology (Oxford University Press, 1946) 77 at 79–80.Google Scholar

37. “Men do not obey him by virtue of tradition or statute, but because they believe in him”. Ibid at 79.

38. For the canonical formulation see Raz, Morality of Freedom, supra note 29 at 53.

39. It is beyond the intended scope of this article to examine the validity of NJT. Instead, I ask the more limited, conceptual question: if one believes NJT to be valid and to justify obedience to a directive to ϕ, does this entails a belief that one was already obliged to ϕ prior to the directive being issued? Still, attempting to answer this apparently straightforward question exposes certain issues as to the coherence of Raz’s account. See the following paragraph of the main text. For wider-ranging comments on NJT, see, e.g., Mian, supra note 34; Himma, supra note 35; Margaret Martin, “Raz’s The Morality of Freedom: Two Models of Authority” (2010) 1:1 Jurisprudence 63.

40. One reason for thinking that Raz means to exclude reasons that are themselves standing, complete reasons for obedience is his contention that NJT is the corollary of his dependence thesis—the proposition that authorities should base their directives on reasons that apply to their subjects (Raz, Morality of Freedom, supra note 29 at 55). For it would be nonsensical for an authority to depend on its subjects’ reasons to obey its directives in formulating the content of those directives. On the other hand, Raz has also claimed that NJT is satisfied where one has reason to obey on democratic or religious grounds. That suggestion is surely compatible only with the trivial/tautological, all-encompassing interpretation of NJT. Joseph Raz, “The Problem of Authority: Revisiting the Service Conception” (2006) 90 Minn L Rev 1003 at 1030.

41. In target here: Finnis, supra note 7 at 231-33, 255; Gerald Postema, “Coordination and Convention at the Foundations of Law” (1982) 11 J Legal Stud 165; and Waldron, Law and Disagreement, supra note 12 at 106-108. Hadfield & Weingast, supra note 6 displays the second feature, universalising ambition, in its conclusion that a “legal order” as a whole can be seen as a game-theoretic “equilibrium” (singular). However, that conclusion does not, if fact, seem to be warranted by the substance of their article. That substance consists of the construction of a model of the interaction between legal rules and individual decision-making in which the law would seem to play the kind of situationally contingent, albeit frequent, role in solving strategic problems (equilibria, plural) argued for by me here.

42. A Prisoner’s Dilemma situation will occur when all participants would prefer an outcome where all take certain action over the one where nobody does, yet each realises that it would be in their interest to “defect” by failing to take that action whatever the other decides to do. See Ullmann-Margalit, Edna, The Emergence of Norms (Oxford University Press, 1977) at 18-29.Google Scholar

43. On interpreting such matrices in the context of a multi-participant game, see note 55 below.

44. Postema, supra note 41 at 192.

45. Waldron, Law and Disagreement, supra note 12 at 108.

46. Ibid at 108.

47. Plausibly, most people appreciate that empowering the courts to deal with rape necessitates agreed answers to controversial questions about where the lines of criminal responsibility should be drawn. But few would ever use those agreed answers to guide their own conduct. The idea using one’s knowledge on the law surrounding mistakes as to consent so as to calibrate one’s actions is obviously disturbing. Waldron would presumably concur with this last statement; elsewhere he has argued eloquently against the assumption that law must always provide the sort of precise guidance that would allow people more easily to push up against the limits of what is permissible. Waldron, “Torture and Positive Law”, supra note 26 at 1698-703.

48. Finnis, supra note 7 at 231-33, 255.

49. Unless this is a situation where Finnis would regard the putative stipulation (mandatory attendance at a rain dance) as sufficiently against the principles of practical reason as to rob it of moral force. On this escape valve, see ibid at 359-60. It is unclear what the consequences are of such escape valve being invoked for Finnis’s analysis of social coordination, beyond releasing the subject from the obligation to comply. Are we to suppose that the unjust nature of the majority’s desires means that there is no problem of social coordination (again, by stipulation), or is there a problem of coordination that must simply remain unresolved?

50. Ibid at 255.

51. Leslie Green, “Law, Coordination and the Common Good” (1983) 3 Oxford J Legal Stud 299. See also Theodore M Benditt, “Acting in Concert or Going It Alone: Game Theory and the Law” (2004) 23:6 Law & Phil 615.

52. Ullmann-Margalit, supra note 42 at 93-96.

53. Finnis, supra note 7 at 232.

54. Ullmann-Margalit, supra note 42 at 98.

55. This illustration involves a pair of classes of participants rather than a pair of individuals because the realistic sort of situations that it seeks to model will involve (many) more than two individuals. This aspect does not ultimately affect the structure of the problem, for it can be conceived as a “generalised” version of an equivalent 2-person problem. Ibid at 22-25. To avoid the objection that one cannot represent a situation where each A and each B is an individual decision-maker on a 2-by-2 grid, one can perhaps view the matrix as representing the pay-offs of an individual A and an individual B in light of a homogenised choice by all (or, say, most) other A’s and B’s.

56. Note that the structure of the dilemma does not change if the B’s are entirely phantasmic, i.e., if their existence is a figment of the As’ imagination. Indeed, the problem remains if the B’s are phantasmic to, as it were, a second (or nth) degree. That is, suppose the participants all surmise (correctly) that all participants are A’s but (incorrectly) that a number of them will incorrectly surmise that a number of others are B’s (and so on). Such possibilities must significantly increase the practical opportunities for such dilemmas to present themselves in real life.

57. Hart, supra note 5 at 198: “except in very small closely-knit societies, submission to the system of restraints would be folly if there were no organization for the coercion of those who would then try to obtain the advantages of the system without submitting to its obligations. ‘Sanctions’ are therefore required not as the normal motive for obedience, but as a guarantee that those who would voluntarily obey shall not be sacrificed to those who would not.” See also Raz, Authority of Law, supra note 3 at 247-49. There, Raz refers to the kind of scenario under discussion, where “it is the existence of the practice that matters”, in arguing that there is no general obligation to obey the law. This comes tantalizingly close to the conclusion that in such situations the law does not need to rely on (or claim?) authority to get its business done, but Raz does not say this. And elsewhere he (like Finnis) runs together the notion of coordination and authority. See supra note 12.

58. For an empirically based case for such a proposition as applied to human history in general, see Pinker, Steven, The Better Angels of Our Nature: A History of Violence and Humanity (Penguin, 2011).Google Scholar

59. The willingness will be greater in a situation akin to the example above where S’s preferred outcome is that all comply with the putative norm in question. It will be lesser where S considers the norm is somewhat inapt or inefficient, but nonetheless, S would derive some real benefit from the compliance of others and would not wish to free-ride. The assumption is that there is some margin of appreciation, some level of disproportion between benefit and burden, beyond which S would cease to comply. If, however, S goes further and treats the mere fact of others’ anticipated compliance as a benefit to S in itself, even in the context of a law that S considers pointless—perhaps on the (questionable) assumption that a general disposition to blind obedience to the law is socially beneficial—one perhaps can regard this as obedience to authority. For S would in practice then be treating the law as a content-independent reason.

60. Such intuition appears to be shared in Hadfield & Weingast, supra note 6 at 23. That article identifies the “microfoundations” of the rule of law—the conditions that cause it to emerge and to strengthen—not in “particular institutions, beliefs, or behaviors” but in an “equilibrium arising from the interaction” of those things. Ibid.

61. Green, “General Jurisprudence”, supra note 11 at 573.

62. Thomas Hobbes, Leviathan (Penguin, 1985) at 190: “It is a precept, or generall rule of Reason, That every man, ought to endeavour Peace, as farre as he has hope of obtaining it; and when he cannot obtain it, that he may seek, and use, all helps, and advantages of Warre. The first branch of which Rule, containeth the first, and Fundamentall Law of Nature; which is, to seek Peace, and follow it. The Second, the summe of the right of Nature; which is, By all means we can, to defend our selves.”

63. “[In a state of nature]… there is no way for any man to secure himselfe, so reasonable, as Anticipation; that is, by force, or wiles, to master the persons of men he can, so long, till he see no other power great enough to endanger him: And this is no more than his own conservation requireth, and is generally allowed.” Ibid at 184. Again: “Justice and Injustice … are Qualities, that relate to men in Society not Solitude.” Ibid at 188.

64. For instance, Karl Popper states (somewhat offhand) that the basis of Hobbes’s theory was “an ethical nihilism.” Popper, KR, The Open Society and Its Enemies, Volume 1, The Spell of Plato, 5th ed (Routledge, 1966) at 118.Google Scholar Raz, meanwhile, is prepared to allow that (no more than) “rational enlightened self-interest” is at the basis of the covenant that Hobbes proposes between sovereign and subject: Raz, Morality of Freedom, supra note 29 at 80.

65. See, e.g., Ullmann-Margalit, supra note 42 at 62-73.

66. Green, “General Jurisprudence”, supra note 11 at 573.