That law is coercive is something we all more or less take for granted. It is an assumption so rooted in our ways of thinking that it is taken as a given of social reality, an uncontroversial datum. Because it is so regarded, it is infrequently stated, and when it is, it is stated without any hint of possible complications or any need of qualifications. I will call this the “pre-reflective view,” and I want to examine it with the care it deserves.

To call the view that law is coercive a pre-reflective view is not to say that it is not held by thoughtful people. On the contrary, the prereflective view is a pervasive assumption of modern legal and political theory. It is an assumption made by many Marxists, as well as those in the political center and on the right. It is not an idle assumption: What we regard as coercive we regard as prima facie illegitimate and we hold it to an accounting; what is not coercive, in contrast, is presumed to be in order. To be able to cast the law, or the free market, as a coercive force is to be able to cast upon its defenders a burden of persuasion, which, even if carried, leaves what has to be defended under a cloud. Where, as in morality and politics, so much is uncertain, claiming the benefit of a presumption may be the decisive rhetorical advantage – the beneficiary of the presumption winning, as it were, by default.