Beyond Liberty: Toward a History and Theory of Economic Coercion

66 Pages Posted: 27 Jun 2017 Last revised: 22 Sep 2017

See all articles by Hiba Hafiz

Hiba Hafiz

Boston College Law School

Date Written: December 11, 2016

Abstract

The concept of economic coercion — that a relationship or transaction can be economically exploited for the benefit of some over others — is elaborated at the intersection of economic theory and economic realities, moral and political understandings of freedom, jurisprudence and the lived application of the law to facts. As a category of criminal and civil wrong, it has been directly and indirectly adjudicated in a breathtaking array of contexts of private and public ordering. Theories of economic coercion are decisive in drawing the line between what constitutes labor market competition and forced labor, which federal programs constitutionally encourage state action and which unconstitutionally commandeer it, and whether theft of natural resources violates international criminal law. But what informs legal theories and conceptualizations of economic coercion? How are economic theories and theories of freedom written into the law through assessments of economic coercion? How is economic coercive “force” understood? Despite the central significance of the category of economic coercion in the judicial regulation of society, no single scholarly account provides a comprehensive assessment of the evolution and scope of the concept in law. Nor have contemporary theorists of economic rights adequately dealt with it.

Attempting the first broad, theoretical overview of its kind, this Article draws from the strengths and limitations of three competing philosophical and legal accounts of economic coercion in order to elaborate a more robust conceptualization of economic coercion, but also to integrate economic coercion claims within the broader evolution and theorization of economic rights. Part I evaluates philosophical theories of coercion in public and private law to hone a minimal set of requirements for a theory of economic coercion. Part II then evaluates legal accounts of coercion — specifically, the extensive analysis of mutual coercion in the Legal Realist tradition — to supplement those requirements and elaborate a model for incorporating background conditions and distributional concerns. After outlining the strengths and deficiencies of these existing accounts, Part III turns to a third framework for conceptualizing economic coercion within the international economic rights tradition. It highlights its strengths in attending to systemic economic coercion and establishing a framework for protecting economic rights as well as its limitations in enforcing those rights through the progressive realization model. Drawing from each of these accounts, Part IV proposes that rights against economic coercion be viewed as relational and distributional rights critical to the enforcement of economic rights protections. It argues for the benefits of integrating economic coercion claims so understood within an economic rights framework, moving beyond both liberty-focused and progressive realization models of coercion towards a model of benchmarking protections from coercion in horizontal, or private law, adjudication.

Suggested Citation

Hafiz, Hiba, Beyond Liberty: Toward a History and Theory of Economic Coercion (December 11, 2016). Tennessee Law Review, Vol. 83, 2016, Available at SSRN: https://ssrn.com/abstract=2992978

Hiba Hafiz (Contact Author)

Boston College Law School ( email )

885 Centre Street
Newton, MA 02459-1163
United States
617-552-4340 (Phone)

HOME PAGE: http://www.bc.edu/bc-web/schools/law/academics-faculty/faculty-directory/hiba-hafiz.html

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