What is coercion?

Drawing the Line: Pressure vs. Coercion

My research explores these questions, through the lens of contract law but with implication that reach far beyond that. One of the outcomes, for example, is that shows under what circumstances consent to work in a sweatshop is valid. People sometimes choose to work these jobs, knowing that the conditions are horrendous. Does their choice show real consent, or does the absence of alternatives make their agreement meaningless?

Consider another example: people smuggling. These deals are illegal because they facilitate breaches of immigration law, so contracts for smuggling cannot be enforced. Yet a deeper moral question arises: do smugglers wrong the people they transport? One might say yes—they exploit desperate people. But one could also argue that if migrants freely choose to be smuggled, then they are better off than if they had stayed behind.

These cases show a tension. Every transaction involves some form of pressure. If I buy a pencil, I do so under the pressure of wanting one, while the shopkeeper feels the pressure of needing money. But we distinguish this from ‘your money or your life,’ which we regard as illegitimate. Oddly, neither contract law nor economic theory offer much guidance on where to draw that line. Economic theory does not have a concept of ‘free’ consent. Indeed, one could argue that, even a robbery leaves both sides better off—the thief gets money, the victim gets to live.

Why Illegality Is Not Enough to Define Coercion?

One way to distinguish legitimate from illegitimate pressure is to say that the latter uses unlawful means. But this runs into two problems. First, the law itself recognises that pressure may be illegitimate even if technically lawful. Second, if legality is the only test, then consent itself loses its power. Consent would not determine legitimacy; instead, legitimacy would determine whether consent existed in the first place. Put differently: before deciding if workers consent to sweatshop labour, we would need to decide if the transaction itself is legitimate. That undermines one of the supposed virtues of markets: that legitimacy flows from voluntary choices, not from external judgments of fairness.

This makes the question of free versus coerced consent crucial—not only for judging sweatshop labour or people smuggling, but also for understanding the merits and limits of the free market itself.

Rethinking Consent: Beyond Social Convention

Most scholars believe the only difference between free and coerced consent is whether the pressure applied is socially acceptable.[1] My research suggests otherwise. I argue there are factual circumstances where genuine consent is impossible.

To see why, consider why consent has normative force in the first place. The standard answer is that consent signals choice: if I consent to you entering my house, I have chosen that outcome, and so cannot complain when you enter. But some scholars,[2] myself included, argue that consent is not just another kind of choice. One clue is that consent must be communicated to count, while choices matter even if never expressed.

In my account, consent is about joint action. When one person consents, the act becomes something both parties do together. That explains why it carries moral weight: in liberal systems, we generally cannot complain about actions we ourselves performed.

But here’s the twist: in some circumstances, joint action is impossible. The argument is a quite lengthy but consider this intuitive example: imagine I order you to consent to selling me your car. If you later complain about the sale and I argue that you consented, you can reply that your ‘consent’ was given only because you were ordered to comply. Whether the order itself legitimises the sale is a separate issue. The point is that when consent is given under orders, it adds nothing to the normative situation. You cannot both ‘follow orders’ and ‘give consent’—the two exclude one another.

Likewise, I show that in market settings, if one side (person A) insists on trading only on terms above its ‘reserve price’ (the minimum or maximum they would accept), while the other side (person B) would have traded even at that reserve price, genuine consent can only be given if the price is A’s reserve price.

Applying the Theory: Sweatshops

Applied to sweatshops, this means: if workers are already willing to sell their labour at their lowest acceptable wage, and employers offer less than their own reserve price (the highest wage they can afford while staying in business), then genuine consent exists only at the employer’s reserve price—not at the depressed wages typically offered. This does not show that the sweatshop operators committed a wrong, but it does show that there was no consent. Hence, they need to provide another justification for their actions of using the workers’ labour. 

Implications: Market Fairness and Competition Law

What follows? First, there is a real difference between free and coerced consent, and it can be identified as a matter of fact. This challenges the prevailing view that the line is purely a social convention. Second, the distinction helps us understand difficult cases such as sweatshop labour and people smuggling. Third, it provides a more rigorous foundation for discussions of fairness in transactions.

Competition law sometimes refers to the concept fairness (e.g., unfair business practices), but the concept of fairness is notoriously vague. My research shows that in many cases we intuitively regard as unfair, the real problem is that consent was factually impossible. By grounding the analysis in whether joint action was possible, we can move toward a clearer, more analytical standard of fairness—one that could eventually influence how competition law evaluates suspect transactions.

In short, not all “yeses” are created equal. Distinguishing free consent from coerced agreement is not just a philosophical puzzle; it matters for how we think about markets, labour, and even migration. If we can sharpen our understanding of when consent is real, we may also sharpen our sense of what counts as a fair deal.

[1] For an overview of the sol called ‘illegitimate pressure theory’ in contract law, see e.g., Morgan Jonathan, Great Debates in Contract Law 210–212 (2020).

[2]See e.g., David Owens, Shaping the Normative Landscape 165–172 (1 (ebook) ed. 2012).