Law Beyond Coercion? Positive Sanctions: Normative and Expressive Functions to Guide Behaviour

This chapter examines the concept of ‘positive sanctions’, or what may be termed the ‘promotional function’ of law. Silvia Zorzetto argues that normative phenomena based on incentives, public information and awareness campaigns, recommendations issued by authorities, policies, symbolic norms, and standards unrelated to coercion, persuasive and symbolic mechanisms are assuming an increasingly significant role in contemporary legal systems. Among these, she identifies three paradigmatic examples that are particularly relevant today: precedent, better regulation, and nudging. On this basis, she contends that such instruments provide both authorities and citizens with alternative means for achieving their legal objectives. However, she concludes that while these instruments are effective as complements to traditional legal enforcement, they can never serve as a complete substitute unless one moves beyond the conventional understanding of law as grounded in common sense. Indeed, these and other non-binding or non-compulsory mechanisms derive their effectiveness precisely from their operation within the framework of a coercive legal system.