essay definition of law

The Concepts of Law

Thanks to John Gerring, Brian Leiter, Saul Levmore, Simone Sepe, and Lawrence Solum for superb comments.

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Concepts are the building blocks of legal doctrine. All legal rules and standards, in fact, are formed by combining concepts in different ways. But despite their centrality, legal concepts are not well understood. There is no agreement as to what makes a legal concept useful or ineffective—worth keeping or in need of revision. Social scientists, however, have developed a set of criteria for successful concepts. Of these, the most important is measurability: the ability, at least in principle, to assess a concept with data. In this Essay, we apply the social scientific criteria to a number of concepts and conceptual relationships in American constitutional law. We show that this field includes both poor and effective concepts and conceptual links. We also explain how the examples of poor concepts could be improved.

I.  A Primer on Conceptualization and Measurement

A.    Concepts and Conceptualization

Concepts provide the mental architecture by which we understand the world and are ubiquitous in social science as well as law. Conceptualization involves the process of formulating a mental construct at a particular level of abstraction. 10 A large debate in the philosophy of cognitive science grapples with different views of concepts. 11 Some regard concepts as essentially nominal in character, meaning that they are about definitions of phenomena rather than the phenomena themselves. Some see concepts as marking mental representations of phenomena. 12 Others see concepts as ontological claims or “theories about the fundamental constitutive elements of a phenomenon.” 13

“Concept” itself is a tricky concept. For our purposes, concepts can be distinguished from other phenomena of interest to law such as words or rules. Law is composed of words or labels, but these are different from the concepts that are the building blocks of law. To see why, consider that a single label can refer to multiple concepts: a right means one thing when giving directions, but quite another when discussing the legal system. Even within the law, the concept of a right is different when thinking about an individual’s freedom from torture than when talking about Mother Nature’s right to remediation. 14 Conversely, a similar concept can be represented by different words.

Concepts are also distinct from rules . Rules provide decision procedures to categorize behavior as, for example, legal or illegal. A legal rule is composed of multiple concepts put together in a particular kind of relationship: if someone engages in murder , she shall be subject to a penalty of imprisonment . Each of these concepts might have subconcepts: murder , for example, is killing with malice aforethought or intent . The rule provides the criteria for decision, but relies on abstract ideas—concepts—with more or less intuitive appeal. This simple example demonstrates that law is built of concepts and subconcepts, structured together in particular ways.

Some concepts are developed through necessary, or necessary and sufficient, attributes. It is necessary that a mammal be an animal; it is necessary and sufficient that it be an animal that secretes milk to feed its young. Another way of approaching attributes is to list all the desirable ones, and perhaps to treat them additively, so that more of them will get one closer to the ideal of the particular concept. This is sometimes called a maximal strategy of conceptualization and is exemplified at the extreme by Max Weber’s concept of an ideal type, which may never be met in practice. 15 A third approach relies on the “family resemblance” of phenomena, so that even if no single attribute is necessary or sufficient, the presence of enough attributes will suffice to mark the presence of the concept. 16 Bearing live young, possessing fur, and secreting milk are common or typical attributes of mammals, even though the platypus, a mammal, does not have all of these features. Finally, and most relevant to our project here, some believe that concepts are always embedded in a broader theory, so that their essential features may not be observable at all, but instead are defined as part of the background theory. This is known as the “theory theory” of concepts. 17

Many legal tests are formulated as having necessary and sufficient attributes. If one has a duty to behave in a particular way, has breached this duty, and has caused damage to another, then one has, by definition, committed a tort. But some legal concepts are formulated as multipart tests in which factors are added and weighed, with an eye toward seeing if the ideal is met. In deciding if an attorney in a prevailing ERISA claim is to be awarded fees, for example, courts apply a five-factor test:

(1) the degree of culpability or bad faith attributable to the losing party; (2) the depth of the losing party’s pocket, i.e., his or her capacity to pay an award; (3) the extent (if at all) to which such an award would deter other persons acting under similar circumstances; (4) the benefit (if any) that the successful suit confers on plan participants or beneficiaries generally; and (5) the relative merit of the parties’ positions. 18

The implicit concept here is an ideal type of what might be called appropriate fee-shifting. None of the five elements is absolutely necessary, but if all five are plainly met, the ideal type will be achieved. The closer one gets to the ideal type, the more likely one is to get an award. The internal participant within the legal system, in this case a judge, will engage in the process of running through the attributes to see if they are met.

Legal concepts come in different levels of abstraction, often nested within one another. Private law is more encompassing than tort, which in turn encompasses negligent infliction of emotional distress. Unlike in social science, however, there is not much explicit legal work on concept formation, and few of the rich definitional debates that mark social scientific literatures on, say, democracy or even the rule of law. Our argument is that paying attention to legal concepts can improve the structure of the law.

B.    What Makes a Good Concept?

There are several different social scientific conceptualizations about what it is that makes a good concept. A common approach is a listing of attributes, such as parsimony, explanatory power, and distinction from other concepts. These lists vary from scholar to scholar, but we rely on a recent contribution from the prominent social scientist Professor John Gerring, who argues that a good social scientific concept can be evaluated on several dimensions. 19 It should have resonance, in that it should “make[ ] sense” to observers; it should have a stipulated domain over which it applies; it should be consistent, in the sense of conveying the same meaning in different contexts; it should be “fecund,” meaning that it has richness and depth; it should be differentiated from other neighboring concepts; it should have causal utility, meaning that it is useful; and it should in principle be measurable, that is, capable of being operationalized within social scientific frameworks. 20 Let us describe each of these in a bit more detail, with an application to law.

Resonance is a quality that is essentially linguistic in character, and can easily be applied to law. For example, we can ask whether a legal test is resonant with the relevant audience. Does the framework of examining tiers of scrutiny “make sense” to observers? Is proportionality an intuitive concept in terms of advancing ideas about justice? Is it faithful to established definitions? 21 We can also compare legal concepts for linguistic resonance: For example, in considering instances when a government diminishes an investment’s value, is “indirect expropriation” or “regulatory taking” a better concept? Resonance is essentially about labels and how well they communicate an idea to an audience.

Many legal concepts are clearly resonant. However, it is an interesting feature of some legal concepts that they are in fact distinct from the ordinary meaning attached to the same terms. Only in law does “intent” include reckless disregard as well as intending the outcome; “statutory rape” adds the adjective precisely because the conduct it condemns is consensual. There is thus some variation across legal concepts in terms of resonance.

Domain simply refers to the realm in which a concept applies, and is fairly clear when applied to law. 22 The domain of legal concepts is, in fact, the legal system, and is not meant to encompass anything outside it. Thus, specialized language within the law is deployed internally. Common-law marriage refers to the idea that the marriage is legal, even if not formally recorded.

Consistency requires that a concept carry the same meaning in different empirical contexts. 23 If the concept of felony murder is different in Louisiana and California, this would violate the requirement of consistency. Observe that the legal definitions in the two states might diverge, maybe even dramatically, but this does not mean that the concept would differ. But it is also the case that, for example, multipart tests may put pressure on conceptual consistency across contexts. To use the fee-shifting example described above, if an award were based primarily on the wealth of the losing party, it would imply a different purpose than if it were based on deterrence considerations. These might be seen as internally inconsistent applications of the test, ultimately based on different concepts.

Fecundity is defined by Gerring as referring to “coherence, depth, fruitfulness, illumination, informative-ness, insight, natural kinds, power, productivity, richness, or thickness.” 24 This collection of descriptors has to do with a concept’s ability to describe reality in a rich way, and in some sense to reveal a structure that might not be apparent without the concept. 25 It is a desirable feature of social science, though not so important in law in our view, because some legal concepts can be limited to very narrow technical applications. For example, in social science, in thinking about different types of political “regimes,” one might distinguish authoritarian regimes from democracies, or might alternately look at particular subtypes within each category: electoral authoritarians, totalitarians, military regimes, and absolute monarchies, 26 or presidential and parliamentary democracies. 27 An ana­logously fecund legal concept might be “rights,” which has generated many subtypes. But other legal concepts can be narrow and yet still effective within their specific domain: a lien or a stay, for example, reveals no deep structure.

Differentiation refers to the distinction between a concept and a neighboring concept. 28 Sometimes concepts are defined by their neighboring concepts. As Gerring notes, nation-states are defined in contrast with empires, political parties in contrast with interest groups. 29 It is thus the case that new concepts are best when they fit within existing concepts. When a new legal idea is created—sexual harassment, for example—it is helpful to mark how it differs from existing concepts. 30

Causal utility refers to the usefulness of a concept. 31 Obviously, this is domain specific. Professor Gary Goertz focuses on the utility of concepts for social scientific methods. 32 But in law we might ask how easy the concept is for courts to apply, and how effective it is in differentiating lawful from unlawful behavior.

The requirement that a concept be measurable is a frequent desideratum in social scientific accounts of concepts (in which it is sometimes called operationalizability). The idea here is not that there must be available data or indicators that meet the standard tests of social science. Instead, the point of measurability is that in principle there ought to be data that could be deployed to test theories that use the concept. 33 For legal tests, it may be prudent to consider whether measures can be developed in principle. This might help to ensure that the analyst is proposing a workable test that is capable of achieving its aims.

Consider an example of an internal legal doctrine, drawn again from the five-part test for attorney’s fees in the ERISA context. 34 Some of the elements are more amenable to empirical verification than others: the wealth of the losing party and the potential deterrent effect of an award are, in principle, quantifiable. The other elements—culpability, benefits, and relative merit—are less so. To successfully deploy this conceptual test, courts will thus have to aggregate, by an unknown weighting formula, five different elements that are fairly discrete, possibly incommensurable, and difficult to operationalize. To the extent that the elements are measurable, this exercise could be more precise, transparent, and ultimately legitimate. Our view is that measurability, even in principle, can bring precision and discipline to law.

C.    Relationships among Concepts

Many of the central questions in social science involve relationships among different concepts. Does democracy increase economic growth? Does race correlate with voting behavior? Do people behave rationally in their investment decisions? Are military alliances stable across time? Each of these questions features at least two different concepts, which might in theory take on different meanings and surely could be measured in many different ways. Each also features a relationship among concepts, whether causal or correlative.

Examining these relationships among concepts also requires operationalizing them. This means we must come up with tractable indicators or measures that can then be deployed into a research design. Indeed, some argue that this is the central criterion of a good social scientific concept. If a concept is not capable of being operationalized, then it is lacking a central characteristic, and even the presence of many other desirable features may not be able to save it. 35

Law, too, is centrally concerned with relationships among concepts. The variety of conceptual relationships in law is very large. The multipart tests mentioned above aggregate a variety of concepts into a single framework, which is fundamentally an additive approach to linking concepts. In contrast, the famous framework of Professor Wesley Hohfeld distinguished between conceptual correlates and conceptual opposites. 36 Correlative relationships are exemplified by the binary of right and duty, which co-occur so that if someone has a right, someone else has a duty. Opposites, on the other hand, are conceptually distinct. For example, someone with no duty has a privilege to do something or not; privilege and duty are opposites in Hohfeld’s framework. 37 In other cases, concepts are nested within one another in fields: tort includes intentional infliction of emotional distress. Still other concepts can cut across fields: the concept of intent is used in multiple fields of law, sometimes in different ways. Many further types of semantic relationships are conceivable as well.

Rather than try to exhaustively categorize all possible relationships, we are most concerned here with a particular kind of connection among legal concepts: that of a causal character. Causal relationships are very common in legal concepts. At the most basic level, law often seeks to advance particular interests. Some of these interests, such as efficiency, justice, or fairness, are external to the law itself. Others may themselves be defined by the law, and so can be characterized as internal concepts. Either way, there is an assumption that legal rules have some causal efficacy in advancing interests. This is what is sometimes called an instrumental view of law. 38 While it is not the only view on offer, we adopt it for present purposes. We need not offer an absolute defense of the instrumental view, even if we are partial to it; the reader need accept only that it is a common view.

Causation is a good example of a concept that is used in both law and social science, in slightly different ways. Causation in social science is essentially conceived of in probabilistic terms. 39 If we say that X causes Y , we are saying that a change in the value of X will likely be associated with a change in the value of Y , holding all else constant. The tools of social science, and the rules of inference, are designed to help identify such relationships. In contrast, legal causation is more normative, focusing on the kinds of responsibility for harms that warrant liability and the kinds that do not. 40

Other examples of causal legal relationships abound. When we ask if a regulation constitutes a taking of property (or an indirect expropriation, to use the international law term), we want to know whether a change in the level of regulation would lead to a change in one’s ability to use the property to the point that the owner should receive compensation. 41 When we ask whether a policy has a discriminatory impact on a group under the Fair Housing Act 42 or Title VI of the Civil Rights Act of 1964, 43 we need to identify baseline levels of demographic concentration, and then ask whether a different policy would lead to a different level of treatment for the group. 44 We also want to compare alternative policies. Is it the case that once a particular level of impact is reached, one can stop the inquiry? Or is it a matter of cost-benefit analysis, such that increases in the impact may be outweighed by benefits on the other side? If so, does the disparate impact increase in a linear way with increments of the policy? These types of questions are rarely considered by lawyers or judges, who use causal language in a more heuristic way.

As these examples suggest, recognizing that legal concepts often involve relationships implies that we ought to favor concepts whose connections can in fact be identified and established. This is because such concepts can in principle be applied in consistent and precise ways across cases. While we know that not every concept can be captured by a real-world indicator or variable, we still think it valuable for lawyers and judges to focus on relationships for which the basic logic of X and Y holds.

Of course, the fact that not every relationship between concepts can be measured poses challenges for certain analyses. For instance, legal philosophers have wrestled with the idea of incommensurability, “the absence of a scale or metric.” 45 When values are not capable of being arrayed on a single scale, we think of them as incommensurable. Thinking about relationships that in principle can be ordered and tested on the same scale will, ceteris paribus, make the law more tractable. Similarly, the idea of outright necessity is subtly different from the more feasible notions of causation and correlation. Proving that only X can achieve Y is much more difficult—in fact, impossible in many contexts—than showing that X is one of the factors that drive Y .

II.  Conceptualizing Constitutional Law

To reiterate the discussion to this point: Social scientists have developed reasonably determinate criteria for distinguishing between effective and ineffective concepts, and between conceptual relationships that can and cannot be demonstrated. In brief, the hallmarks of effective concepts are resonance, domain specificity, consistency, fecundity, differentiation from other concepts, causal utility, and, above all, measurability. Similarly, conceptual relationships involving correlation or causality are more easily established than ones involving necessity or the weighing of incommensurable quantities.

How well does law perform under these criteria? Are its concepts and conceptual relationships satisfactory or in need of improvement? These questions are far too broad to be answered fully here, but we begin to address them using a series of examples from American constitutional law. These examples include both poor concepts and relationships (for which we suggest improvement) and effective ones (for which we explain why they are useful). Constitutional law also strikes us as an unusually fertile field to plow for illustrations. It is a subject that brims with concepts and complex linkages among them. These concepts and linkages are largely (though not entirely) judicially created, meaning that they can be revised by the courts as well. And, not unimportantly for a project that potentially implicates law’s entire empire, constitutional law is a discrete domain with which we are relatively familiar.

A.    Poor Concepts

Before labeling any concept as poor, we must note a number of caveats. First, our tags are based not on a rigorous examination of all constitutional concepts (a daunting task to say the least), but rather on an impressionistic survey of several high-profile areas. In other words, we do not claim to have identified the worst (or best) concepts, but only a few concepts that mostly fail (or satisfy) the social scientific criteria for conceptualization. Second, our treatment of each concept is necessarily brief. We hit what we see as the essential points, but we cannot grapple here with each concept’s full complexity. And third, though our mode is diagnostic, criticizing certain concepts and praising others, our ultimate aim is prescriptive. That is, we are interested in contemplating how constitutional law might look if its concepts were more effective—and in finding ways to push the doctrine in that direction.

Having disposed of these preliminaries, corruption is our first example of a concept that we regard as unhelpful. The prevention of corruption is the only justification the Supreme Court has recognized for burdening First Amendment rights by restricting the financing of political campaigns. 46 Corruption is also unquestionably a resonant and fecund concept, in that it is intuitively undesirable to most observers and conveys a rich array of negative meanings. This rich array, though, is part of the problem. Precisely because corruption can mean many different things, the term can be—and has been—defined in many different ways. 47 The Court, in particular, has toggled back and forth between three conceptions: a narrower version limited to explicit quid pro quos, or overt exchanges of money for official governmental acts; 48 a broader version covering funders’ access to and influence over officeholders; 49 and a still more expansive version extending to the distortion of electoral outcomes due to corporate spending. 50

In terms of the social scientific criteria, these shifting notions mean that corruption lacks domain specificity, consistency, and differentiation from other concepts. Domain specificity is missing because the narrower version applies to only the restriction of campaign contributions, while the two broader versions justify the limitation of campaign expenditures as well. 51 Consistency is absent for the obvious reason that the Court has adopted three in consistent definitions of corruption in the span of just a single generation. And depending on how it is construed, corruption bleeds into bribery (whose trademark is the quid pro quo exchange), skewed representation (responsive to funders rather than voters), or inequality (in electoral influence). 52

One might respond that most of these difficulties would be avoided if the Court could only settle on a single notion of corruption. But there is no easy way in which the Court could do so because, as several scholars have pointed out, corruption is a derivative concept that becomes intelligible only through an antecedent theory of purity for the entity at issue. 53 With respect to legislators, for example, one can say they are corrupt only if one first has an account of how they should behave when they are pure. One thus needs a model of representation before one can arrive at a definition of legislative corruption—a definition that would correspond to deviation from this model. Of course, the Court could choose to embrace a particular representational approach, but this is hardly a straightforward matter, and it is one in which the Court has evinced no interest to date.

Moreover, even if the Court somehow managed to stick to a single notion of corruption, it would run into further issues of measurability and causal utility. These issues stem from the covert nature of most corrupt activities. When politicians trade votes for money, they do so in secret. When officeholders merely offer access or influence to their funders, they again do so as furtively as possible. Precisely for these reasons, social scientists have rarely been able to quantify corruption itself, resorting instead to rough proxies such as people’s trust in government 54 and the volume of public officials convicted of bribery. 55 Unsurprisingly, given the crudity of these metrics, no significant relationships have been found between campaign finance regulation and corruption. 56 Greater regulation seems neither to increase people’s faith in their rulers nor to reduce the number of officials taken on perp walks.

Thanks to its poor performance on almost every criterion, we consider corruption to be an unsalvageable concept. It has not been, nor can it be, properly defined or measured. If it were abandoned, though, what would take its place in the campaign finance case law? We see two options. Less controversially, corruption could be swapped for one of the concepts into which it blurs, such as bribery. More provocatively (because further doctrinally afield), campaign finance regulation could be justified based on its promotion of distinct values such as electoral competitiveness, voter participation, or congruence with the median voter’s preferences. 57 This is not the place to defend these values, though offhand all seem more tractable than corruption. Our point, rather, is that when a particular concept is unworkable, it is often possible to replace it with a more suitable alternative.

We turn next to our second example of a flawed constitutional concept: political powerlessness , which is one of the four indicia of suspect class status under equal protection law. 58 Like corruption, powerlessness is a self-evidently resonant and fecund concept. To say that a group is powerless is to say something important about it, to convey a great deal of information about the group’s position, organization, and capability. Also, as with corruption, the amount of information conveyed is a bug, not a feature. The many inferences supported by powerlessness give rise to many definitions of the term by the Court, including a group’s small numerical size, inability to vote, lack of descriptive representation, low socioeconomic status, and failure to win the passage of protective legislation. 59

And again as with corruption, these multiple notions of powerlessness sap the concept of consistency and differentiation from other concepts. The inconsistency is obvious; the notions of powerlessness are not just multiple, but also irreconcilable. 60 Depending on how it is defined, powerlessness also becomes difficult to distinguish from concepts such as disenfranchisement, underrepresentation, and even poverty. And while the different conceptions of powerlessness do not directly undermine its domain specificity, this criterion is not satisfied either, due to the uncertainty over how powerlessness relates to the other indicia of suspect class status. It is unclear whether powerlessness is a necessary, sufficient, or merely conducive condition for a class to be deemed suspect. 61

However, unlike with corruption, a particular definition of powerlessness may be theoretically compelled—and is certainly not theoretically precluded. The powerlessness factor has its roots in United States v Carolene Products Co ’s 62 account of “those political processes ordinarily to be relied upon to protect minorities.” 63 “Those political processes,” in turn, refer to pluralism: the idea that society is divided into countless overlapping groups, from whose shifting coalitions public policy emerges. 64 And pluralism implies a specific notion of group power: one that is continuous rather than binary, spans all issues, focuses on policy enactment, and controls for group size and type. 65 Thus, powerlessness not only can, but arguably must, be conceived of in a certain way if it is to remain true to its pluralist pedigree.

Furthermore, if powerlessness is so understood, it becomes possible to measure and apply it. Social scientists have compiled extensive data on both the policy preferences of different groups and whether these preferences are realized in enacted law. 66 Combining this information, a group’s odds of getting its preferred policies passed can be determined, adjusted for the group’s size, and then compared to the odds of other groups. 67 This method yields the conclusions that blacks and women (both already suspect classes) are relatively powerless compared to whites and men. 68 Interestingly, it also indicates that the poor (not currently a suspect class) have far less clout than the middle class and the wealthy. 69

Because powerlessness can be—even though it has not been—defined and measured properly, we come to a different verdict for it than for corruption. That is, we recommend discarding the Court’s various notions of it and replacing them with the pluralist conception outlined above. Considering corruption and powerlessness in tandem also allows us to hazard a guess as to why the Court sometimes adopts faulty concepts. In both of these (potentially unrepresentative) cases, the Court borrowed complex ideas from democratic theory without fully grasping the ideas’ internal logic. At best (as with powerlessness), this approach leads to the circulation of numerous definitions of the concept, one of which is eventually found to be theoretically and practically defensible. At worst (as with corruption), the approach causes multiple definitions to be bandied about, none of which is theoretically legitimate or capable of being operationalized. Plainly, this is a far cry from textbook concept formation.

B.    Effective Concepts

We doubt that the Court ever complies perfectly with any social scientific textbook. But the Court does, on occasion, recognize constitutional concepts that are significantly more effective than the ones analyzed to this point. As a first example of a successful concept, take partisan symmetry , which five justices tentatively endorsed in a recent case as a potential foundation for a test for partisan gerrymandering. 70 Partisan symmetry “requires that the electoral system treat similarly-situated parties equally,” so that they are able to convert their popular support into legislative representation with approximately equal ease. 71 The Court cautiously backed symmetry only after struggling for decades with—and ultimately rejecting—a host of other possible linchpins for a gerrymandering test: seat-vote proportionality (inconsistent with single-member districts), predominant partisan intent (too difficult to discern), district noncompactness (not itself a meaningful value), and so on. 72

Partisan symmetry performs suitably well along all of the relevant dimensions. It is resonant and fecund because it captures the core harm of gerrymandering: a district plan that enables one party to translate its votes into seats more efficiently than its rival. 73 It is limited to the domain of electoral systems. It is defined identically in both the case law and the academic literature. 74 It is distinct from the other concepts the Court has considered in this area—including proportionality, which is a property that symmetric plans may, but need not, exhibit. 75 It is measurable using easily obtained electoral data and well-established statistical techniques. 76 And it is useful in that it conveys in a single figure the direction and extent of a plan’s partisan skew.

However, we do not mean to claim that partisan symmetry is a flawless concept. It does not take into account odd district shape or partisan motivation, both aspects of gerrymandering as the practice is commonly understood. Its calculation requires fairly strong assumptions about uncontested races and shifts in the statewide vote. 77 Two different symmetry metrics exist, which usually but not always point in the same direction. 78 And to form a workable test for gerrymandering, symmetry must be combined with other prongs, thus somewhat diminishing its utility. Somewhat , though, is the key word here. Symmetry is not a perfect concept; no concept is. But symmetry can be defined, measured, and applied coherently, which is the most the law can ask of a concept.

Our second example of an effective concept, racial polarization in voting , has had a doctrinal history similar to that of partisan symmetry. Between the early 1970s and the mid-1980s, the Court struggled to identify the exact problem with racial vote dilution (the reduction of minorities’ electoral influence through means other than burdening the franchise). 79 Unable to crystallize the issue, the Court instead laid out a dozen factors that were meant to be analyzed in unison to determine liability. 80 This unwieldy doctrinal structure finally collapsed in 1986, when the Court held that plaintiffs had to prove racial polarization in order to prevail. 81 The Court also carefully defined polarization as “the situation where different races . . . vote in blocs for different candidates.” 82

Like partisan symmetry, racial polarization in voting complies reasonably well with all of the social scientific criteria for conceptualization. It is resonant and fecund because it reflects the reality that racial vote dilution is possible only under polarized electoral conditions. If polarization does not exist, then neither can a minority group prefer a distinct candidate, nor can the majority thwart a minority-preferred candidate’s election. 83 It is limited to the field of vote dilution, not even extending to the adjacent area of vote denial. 84 It is understood in the same way by both judges and scholars. 85 It is different from other important vote dilution concepts like a minority group’s geographic compactness and elected officials’ responsiveness to the group’s concerns. 86 It is measurable by applying ecological regression techniques to election results and demographic data. 87 And it is useful because it is both the mechanism that drives vote dilution and a metric reducible to a single number.

But also like partisan symmetry, racial polarization in voting has its warts too. Not all commentators agree that it is troublesome when it is caused by forces other than racial prejudice, such as differences in partisanship or socioeconomic status. 88 Nor is there consensus that polarization in voting is the quantity of interest, as some scholars emphasize polarization in policy preferences instead. 89 Furthermore, courts have never resolved how extreme polarization must be to establish liability. And almost from the day polarization became a requirement, it has been clear that its measurement is complicated by residential integration, the presence of more than two racial groups, and the inevitable endogeneity of election results (above all, to the particular candidates competing). 90 All of these shortcomings, though, strike us as fixable rather than fatal. This also has been the judgment of the judiciary, which has productively analyzed polarization in hundreds of cases since 1986. 91

As before, we are wary of generalizing based on only a pair of cases. But considered together, partisan symmetry and racial polarization in voting suggest that the Court does better when it turns for concepts to empirical political science than to high democratic theory. Before they ever appeared in the Court’s case law, symmetry and polarization had been precisely defined and then measured using large volumes of data as well as methods that steadily improved over time. 92 These properties meant that when the ideas came to the Court’s attention, they were ready for prime time. They were not lofty abstractions that had yet to be made concrete, but rather practical concepts whose scope and calculation were already established. Our view is that this approach—adopting concepts previously formulated and refined by empirical social scientists—is generally advisable. It lets the Court benefit from the efforts of other disciplines, while avoiding reliance on concepts articulated at too high a level of generality to be legally useful.

C.    Poor Relationships

We turn next to examples of poor and effective conceptual relationships in constitutional law. We also reiterate our earlier caveats: that the cases we highlight are not necessarily representative, that our discussion of each case is relatively brief, and that we mean for our descriptive analysis to have normative implications for the structure of constitutional doctrine.

That said, the narrow tailoring requirement of strict scrutiny is our first example of an unhelpful constitutional relationship. As a formal matter, this requirement states that, to survive review, a challenged policy must be “necessary” 93 or “the least restrictive means” 94 for furthering a compelling governmental interest. In practice, the requirement is implemented sometimes in this way and sometimes by balancing the harm inflicted by a policy against the degree to which it advances a compelling interest—with a heavy thumb on the harm’s side of the scale. 95 Narrow tailoring is ubiquitous in constitutional law, applying to (among other areas) explicit racial classifications, 96 policies that burden rights recognized as fundamental under the Due Process Clause, 97 and measures that regulate speech on the basis of its content. 98

The fundamental problem with narrow tailoring is that there is no reliable way to tell whether a policy is actually necessary or the least restrictive means for promoting a given interest. Social scientific techniques are very good at determining whether a means is related (that is, correlated) to an end. They are also reasonably adept at assessing causation, though this is a more difficult issue. Other variables that might be linked to the end can be controlled for, and all kinds of quasi-experimental approaches can be employed. 99 But social scientific techniques are largely incapable of demonstrating necessity. A mere correlation does not even establish causation, let alone that a policy is the least restrictive means for furthering an interest. Even when causation is shown, it always remains possible that a different policy would advance the interest at least as well. Not every conceivable control can be included in a model, and the universe of policy alternatives is near infinite as well. In short, the gold standard of social science is proving that X causes Y —but this proof cannot guarantee that some other variable does not drive Y to an even greater extent. 100

A somewhat different critique applies to the balancing that courts sometimes carry out instead of means-end analysis. Here, the trouble is that the quantities being compared—the harm inflicted by a policy, either by burdening certain rights or by classifying groups in certain ways, and the policy’s promotion of a compelling governmental interest—are incommensurable, in the sense we outlined earlier. Social science has little difficulty with the comparison of quantities that are measured using the same scale. Familiar techniques such as factor analysis also enable quantities measured using different scales to be collapsed into a single composite variable. 101 But there is little that social science can do when the relevant quantities are measured differently, cannot be collapsed, and yet must be weighed against each other. This kind of inquiry, as Justice Antonin Scalia once wrote, is akin to “judging whether a particular line is longer than a particular rock is heavy.” 102 Instinct and intuition may assist in answering the question, but more rigorous methods are unavailing.

These faults of narrow tailoring seem irremediable to us. It is simply infeasible to have to determine a policy’s necessity or whether its harms are offset by its incommensurable benefits. Fortunately, an obvious alternative exists: the means-end analysis that courts conduct when they engage in intermediate scrutiny. In these cases, courts ask whether a policy is “substantially related” to the achievement of an important governmental objective. 103 A substantial relationship means either a substantial correlation or, perhaps, a causal connection. 104 Either way, the issue is squarely in the wheelhouse of social science, whose forte is assessing correlation and causation. We therefore recommend exporting this aspect of intermediate scrutiny to the strict scrutiny context—perhaps with an additional twist or two to keep the latter more rigorous than the former. For instance, a strong rather than merely substantial relationship could be required, or a large impact on the relevant governmental goal.

Our second example of a poor constitutional relationship is the undue burden test that applies to regulations of abortion, voting, and (when enacted by states) interstate commerce. 105 In all of these areas, a law is invalid if it imposes an undue burden on the value at issue: the right to an abortion, 106 the right to vote, 107 or the free flow of interstate commerce. 108 An initial problem with this test is the ambiguity of its formulation. It is unclear whether “undue” contemplates a link between a challenged policy and a governmental interest and, if so, what sort of link it requires. Precisely because of this ambiguity, no consistent definition exists of an undue burden. Instead, courts use different versions of the test, even within the same domain, of varying manageability.

For example, an undue burden is sometimes treated as synonymous with a significant burden. “A finding of an undue burden is a shorthand for the conclusion that a state regulation . . . plac[es] a substantial obstacle in the path of a woman seeking an abortion,” declared the joint opinion in Planned Parenthood of Southeastern Pennsylvania v Casey . 109 If an undue burden is understood in this way, we have no quarrel with it. The magnitude of a burden is measurable, at least in principle, and does not involve a policy’s connection with a governmental interest. It is a concept rather than a conceptual relationship.

On the other hand, an undue burden is sometimes construed as one that is unnecessary to achieve a legitimate governmental objective. The Casey joint opinion articulated the test in these terms as well: “Unnecessary health regulations that . . . present[ ] a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.” 110 So conceived, an undue burden falls victim to our earlier criticism of narrow tailoring. That is, there is no good way to tell whether a policy is the least restrictive means for accomplishing a given goal, meaning that there is also no good way to tell whether the burden imposed by the policy is undue.

On still other occasions, the undue burden test devolves into judicial balancing, with the severity of a policy’s burden weighed against the degree to which the policy promotes governmental interests. The burden is then deemed undue if it fails this cost-benefit analysis. As the Court has stated in the Dormant Commerce Clause context, where it “has candidly undertaken a balancing approach in resolving these issues,” a policy “will be upheld unless the burden imposed on such commerce is [ ] excessive in relation to the putative local benefits.” 111 Plainly, this formulation is also vulnerable to our challenge to narrow tailoring. Burdens on abortion, voting, or interstate commerce are no more commensurable with gains in governmental interests than are other types of rights burdens or the harms of racial classifications. Balancing under narrow tailoring is indistinguishable from balancing under an undue burden test.

Because several notions of an undue burden percolate in the case law, doctrinal progress is possible here without wholesale rejection of the status quo. 112 Instead, courts need discard only the versions that entail least-restrictive-means or balancing analyses, leaving them with the approach that equates an undue with a significant burden. Judicial scrutiny could then vary based on a burden’s magnitude, with a severe burden leading to more stringent review and a lighter imposition prompting a more relaxed appraisal. This is already the method that courts most commonly use in the voting context, 113 and it could be extended to the abortion and Dormant Commerce Clause domains—preferably with our amendment to strict scrutiny stripping it of its narrow tailoring prong.

D.    Effective Relationships

In still other areas, no doctrinal revisions seem necessary because the existing conceptual relationships work well enough already. As a first example of effective relationships, take the traceability and redressability elements of standing. After appearing intermittently in the case law for years, these elements were constitutionalized in Lujan v Defenders of Wildlife . 114 A plaintiff’s injury must be “fairly traceable to the challenged action of the defendant,” meaning that “there must be a causal connection between the injury and the conduct complained of.” 115 Additionally, “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” 116

Traceability and redressability are often analyzed together; in fact, “[m]ost cases view redressability as an essentially automatic corollary of [traceability].” 117 Both relationships are also highly tractable because they explicitly require causation, which is precisely the kind of link that social science is able to demonstrate. The essential traceability issue is whether the defendant’s challenged action caused the plaintiff’s harm. Similarly, the crux of redressability is whether the plaintiff’s desired remedy will cause her harm to be cured. These are pure matters of causation, undiluted by any hint of means-end necessity or incommensurable balancing.

Given that standing doctrine is often deemed “[e]xtremely fuzzy and highly manipulable,” 118 some readers may be surprised by our favorable account. We do not mean to suggest that the causal questions posed by the doctrine—what impact certain measures have had or will have on a plaintiff—are easy to answer. The data needed to address these issues is often unavailable (or uncited), forcing courts to rely on their qualitative judgment. Even when rigorous evidence exists, there is no guarantee that courts will take it into account. Our claim, then, is only that the traceability and redressability elements are appealing in principle because of their emphasis on causation. In practice, the necessary causal inquiries may be difficult to conduct, or overlooked even when they are feasible.

Fewer of these caveats are required for our second example of a successful constitutional relationship: the Necessary and Proper Clause , which authorizes Congress to enact any laws that are “necessary and proper for carrying into Execution” its enumerated powers. 119 At first glance, the Clause appears to exemplify a poor relationship because it stipulates that a law must be “necessary” to be permissible. But the Court has held that “‘necessary’ does not mean necessary” in this context. 120 Instead, it means “convenient, or useful or conducive to the authority’s beneficial exercise.” 121 Under this standard, a law will be upheld if it “constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.” 122

So construed, the Necessary and Proper Clause essentially demands that a statute be correlated with the promotion of a textually specified goal. That is, the statute must make the goal’s achievement at least somewhat more likely, or must lead to at least a somewhat higher level of the goal. Needless to say, it is relatively straightforward to identify a correlational link between a means and an end. Doing so, in fact, is one of the simpler tasks that can be asked of social science. This is why we approve of the sort of relationship that must be demonstrated under the Clause; it is the sort whose existence can be proven or rebutted with little room for debate.

However, we note that the Court has recently begun to revive the “Proper” in “Necessary and Proper”—and to infuse into it requirements other than a means-end correlation. In National Federation of Independent Business v Sebelius , 123 in particular, the Court held that the Clause authorizes neither the exercise of “great” (as opposed to “incidental”) powers, nor the passage of “laws that undermine the structure of government established by the Constitution.” 124 We regard these developments as unfortunate. Both the significance of a power and a law’s consistency with our constitutional structure are normative matters that are poorly suited to empirical examination. The insertion of these issues into the doctrine has blurred what was previously an admirably clear relational picture.

Our inquiry into the social scientific disciplines of conceptualization and measurement suggests that they may have rich payoffs for lawyers. (To use a recurring term from our discussion, they are fecund.) Examining legal doctrines through the lens of conceptualization, we argue, allows us to evaluate what are good and bad concepts and relationships in law. We draw on one set of social science criteria for good concepts, which includes that they are resonant, have a stipulated domain, can be applied consistently, are fecund, are distinct from neighboring concepts, are useful, and can in principle be measured. Similarly, good relationships are those that involve causation or correlation, but not necessity or the weighing of incommensurable values.

We emphasize the criterion of potential measurability, which is another way of saying that courts should recognize concepts and relationships that are in principle verifiable. While in many cases this would be difficult to achieve in practice, the discipline of thinking in terms of whether X and Y can be reliably assessed, and whether X is linked to Y , would, we suspect, lead courts to greater consistency and thus predictability. In particular, our analysis suggests that courts should shy away from complex multipart tests that involve the ad hoc balancing of incommensurables. 125 Just as social scientists require dependable measures across cases, legal doctrines that are measurable can be subjected to productive scrutiny, potentially leading to more coherent application of the law. In short, important rule-of-law values can be advanced through an approach to law that draws on what some might see as an unlikely source—social scientific thinking.

• 10 See Goertz, Social Science Concepts at 28–30 (cited in note 5); Gerring, Social Science Methodology at 112–13 (cited in note 5).
• 11 The debate goes back to Aristotle. See Gerring, Social Science Methodology at 114–15 (cited in note 5). See also Eric Margolis and Stephen Laurence, Concepts (Stanford Encyclopedia of Philosophy, May 17, 2011), online at http://plato.stanford.edu/archives/ win2012/entries/concepts (visited Dec 28, 2016) (Perma archive unavailable).
• 12 See Margolis and Laurence, Concepts (cited in note 11).
• 13 Goertz, Social Science Concepts at 5 (cited in note 5).
• 14 See Ecuador Const Art 71, translation archived at http://perma.cc/DKJ5-E3K8 (“Nature, or Pacha Mama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes.”).
• 15 See Gerring, Social Science Methodology at 136–37 (cited in note 5), citing Max Weber, The Methodology of the Social Sciences 90 (Free Press 1949) (Edward A. Shils and Henry A. Finch, eds and trans).
• 16 Goertz, Social Science Concepts at 36 (cited in note 5).
• 17 Margolis and Laurence, Concepts (cited in note 11).
• 18 Cottrill v Sparrow, Johnson & Ursillo, Inc , 100 F3d 220, 225 (1st Cir 1996).
• 19 See Gerring, Social Science Methodology at 117–19 (cited in note 5). See also John Gerring, What Makes a Concept Good? A Criterial Framework for Understanding Concept Formation in the Social Sciences , 31 Polity 357, 367 (1999) (offering a slightly different set of criteria).
• 20 See Gerring, Social Science Methodology at 117 (cited in note 5) (listing Gerring’s criteria of conceptualization).
• 21 See id at 117–19.
• 22 See id at 119–21.
• 23 See id at 121–24.
• 24 Gerring, Social Science Methodology at 124 (cited in note 5).
• 25 See id at 124–26.
• 26 See Barbara Geddes, Paradigms and Sand Castles: Theory Building and Research Design in Comparative Politics 50–53 (Michigan 2003).
• 27 See José Antonio Cheibub, Presidentialism, Parliamentarism, and Democracy 26–48 (Cambridge 2007).
• 28 See Gerring, Social Science Methodology at 127–30 (cited in note 5).
• 29 See id at 127.
• 30 See Catharine A. MacKinnon, Sexual Harassment of Working Women: A Case of Sex Discrimination 57–59 (Yale 1979) (discussing whether sexual harassment fits neatly into the sex discrimination category).
• 31 See Gerring, Social Science Methodology at 130–31 (cited in note 5).
• 32 See Goertz, Social Science Concepts at 4 (cited in note 5) (noting that the key features are relevance “for hypotheses, explanations, and causal mechanisms”).
• 33 See Gerring, Social Science Methodology at 156–57 (cited in note 5).
• 34 See Cottrill , 100 F3d at 225.
• 35 See Goertz, Social Science Concepts at 6 (cited in note 5).
• 36 See Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning , 26 Yale L J 710, 710 (1917).
• 37 See id at 710, 716–17.
• 38 See Alon Harel, Why Law Matters 46 (Oxford 2014).
• 39 See Ellery Eells, Probabilistic Causality 34–35 (Cambridge 1991).
• 40 But see Antony Honoré, Causation in the Law (Stanford Encyclopedia of Philosophy, Nov 17, 2010), online at http://plato.stanford.edu/archives/win2016/entries/causation-law (visited Jan 23, 2017) (Perma archive unavailable) (noting the complexity of the relationship between causing harm and legal responsibility).
• 41 See Lucas v South Carolina Coastal Council , 505 US 1003, 1027 (1992) (discussing under what circumstances a state “may resist compensation” for “regulation that deprives land of all economically beneficial use”).
• 42 Pub L No 90-284, 82 Stat 81 (1968), codified as amended at 42 USC § 3601 et seq.
• 43 Pub L No 88-352, 78 Stat 252, codified as amended at 42 USC § 2000d et seq.
• 44 See Metropolitan Housing Development Corp v Village of Arlington Heights , 558 F2d 1283, 1290–91 (7th Cir 1977).
• 45 Matthew Adler, Law and Incommensurability: Introduction , 146 U Pa L Rev 1169, 1170 (1998).
• 46 See McCutcheon v Federal Election Commission , 134 S Ct 1434, 1450 (2014) (Roberts) (plurality).
• 47 See, for example, Thomas F. Burke, The Concept of Corruption in Campaign Finance Law , 14 Const Commen 127, 128–35 (1997) (discussing three academic and three judicial definitions of corruption); Yasmin Dawood, Classifying Corruption , 9 Duke J Const L & Pub Pol 103, 106–32 (2014) (going through ten separate notions of corruption).
• 48 See, for example, McCutcheon , 134 S Ct at 1450 (Roberts) (plurality) (“Congress may target only a specific type of corruption[,] . . . large contributions that are given to secure a political quid pro quo from current and potential office holders.”) (quotation marks and brackets omitted).
• 49 See, for example, McConnell v Federal Election Commission , 540 US 93, 150 (2003) (“Congress’ legitimate interest extends beyond preventing simple cash-for-votes corruption to curbing undue influence on an officeholder’s judgment, and the appearance of such influence.”) (quotation marks omitted).
• 50 See, for example, Austin v Michigan State Chamber of Commerce , 494 US 652, 660 (1990) (recognizing “a different type of corruption in the political arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form”).
• 51 Compare Citizens United v Federal Election Commission , 558 US 310, 361 (2010), with McConnell , 540 US at 203, and Austin , 494 US at 660.
• 52 As should be clear from this discussion, our critique is not that the Court has used inconsistent words to describe the same underlying concept . Rather, each of the Court’s definitions of corruption corresponds to an entirely different notion of what it means for elected officials to be corrupt.
• 53 See, for example, Burke, 14 Const Commen at 128 (cited in note 47) (“When corruption is proclaimed in political life it presumes some ideal state.”); Deborah Hellman, Defining Corruption and Constitutionalizing Democracy , 111 Mich L Rev 1385, 1389 (2013) (“[C]orruption is a derivative concept, meaning it depends on a theory of the institution or official involved.”).
• 54 See, for example, Nathaniel Persily and Kelli Lammie, Perceptions of Corruption and Campaign Finance: When Public Opinion Determines Constitutional Law , 153 U Pa L Rev 119, 145–48 (2004). See also Corruption Perceptions Index 2015 (Transparency International, Feb 1, 2016), archived at http://perma.cc/C4XQ-6CE3.
• 55 See, for example, Adriana Cordis and Jeff Milyo, Do State Campaign Finance Reforms Reduce Public Corruption? *11–16 (unpublished manuscript, Jan 2013), archived at http://perma.cc/9KRP-FC9C.
• 56 See id at *21–28; Persily and Lammie, 153 U Pa L Rev at 148–49 (cited in note 54).
• 57 As to the last of these values, see generally Nicholas O. Stephanopoulos, Aligning Campaign Finance Law , 101 Va L Rev 1425 (2015).
• 58 Political powerlessness was first recognized as a factor in San Antonio Independent School District v Rodriguez , 411 US 1, 28 (1973).
• 59 See Nicholas O. Stephanopoulos, Political Powerlessness , 90 NYU L Rev 1527, 1537–42 (2015) (discussing the various judicial versions of powerlessness).
• 60 See id at 1540 (“The crucial point about these definitions is that they are entirely inconsistent with one another.”). Accordingly, these are not just different ways of expressing the same underlying idea; rather, they are divergent accounts of what it means to be powerless in the first place. See note 52.
• 61 See, for example, Varnum v Brien , 763 NW2d 862, 888 (Iowa 2009) (pointing out “the flexible manner in which the Supreme Court has applied the four factors [relevant to suspect class status]”).
• 62 304 US 144 (1938).
• 63 Id at 152 n 4.
• 64 See Bruce A. Ackerman, Beyond Carolene Products, 98 Harv L Rev 713, 719 (1985) (“[G]enerations of American political scientists have filled in the picture of pluralist democracy presupposed by Carolene ’s distinctive argument for minority rights.”).
• 65 See Stephanopoulos, 90 NYU L Rev at 1549–54 (cited in note 59) (making this argument at length).
• 66 See, for example, Martin Gilens, Affluence and Influence: Economic Inequality and Political Power in America 57–66 (Princeton 2012).
• 67 See, for example, id at 77–87.
• 68 See Stephanopoulos, 90 NYU L Rev at 1583–84, 1590–92 (cited in note 59).
• 69 See, for example, Gilens, Affluence and Influence at 80–81 (cited in note 66); Patrick Flavin, Income Inequality and Policy Representation in the American States , 40 Am Polit Rsrch 29, 40–44 (2012).
• 70 See League of United Latin American Citizens v Perry , 548 US 399, 420 (2006) (Kennedy) (plurality) (“LULAC”); id at 466 (Stevens concurring in part and dissenting in part); id at 483 (Souter concurring in part and dissenting in part); id at 492 (Breyer concurring in part and dissenting in part).
• 71 Id at 466 (Stevens concurring in part and dissenting in part).
• 72 See Vieth v Jubelirer , 541 US 267, 285–86 (2004) (Scalia) (plurality).
• 73 See id at 271 n 1 (Scalia) (plurality) (noting that gerrymandering has been defined as “giv[ing] one political party an unfair advantage by diluting the opposition’s voting strength”).
• 74 Compare LULAC , 548 US at 466 (Stevens concurring in part and dissenting in part), with Bernard Grofman and Gary King, The Future of Partisan Symmetry as a Judicial Test for Partisan Gerrymandering after LULAC v. Perry, 6 Election L J 2, 6 (2007).
• 75 See Grofman and King, 6 Election L J at 8 (cited in note 74) (“Measuring symmetry . . . does not require ‘proportional representation’ (where each party receives the same proportion of seats as it receives in votes).”).
• 76 See id at 10 (noting that symmetry is measured using “highly mature statistical methods [that] rely on well-tested and well-accepted statistical procedures”).
• 77 See LULAC , 548 US at 420 (Kennedy) (plurality) (criticizing partisan bias because it “may in large part depend on conjecture about where possible vote-switchers will reside”); Nicholas O. Stephanopoulos and Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap , 82 U Chi L Rev 831, 865–67 (2015) (discussing the imputation of results for uncontested races).
• 78 These are partisan bias, which is the divergence in the share of seats that each party would win given the same share of the statewide vote, see Grofman and King, 6 Election L J at 6 (cited in note 74), and the efficiency gap, which is “the difference between the parties’ respective wasted votes, divided by the total number of votes cast,” Stephanopoulos and McGhee, 82 U Chi L Rev at 851 (cited in note 77) (emphasis omitted).
• 79 See Samuel Issacharoff, Polarized Voting and the Political Process: The Transformation of Voting Rights Jurisprudence , 90 Mich L Rev 1833, 1844 (1992) (noting the “absence of an overriding conception of the precise constitutional harm the courts were seeking to remedy” in this period).
• 80 See White v Regester , 412 US 755, 765–70 (1973); Zimmer v McKeithen , 485 F2d 1297, 1305–07 (5th Cir 1973).
• 81 See Thornburg v Gingles , 478 US 30, 51 (1986). Importantly, while the pre- Gingles vote dilution cases were brought under the Fourteenth Amendment, dilution cases from Gingles onward have generally been launched under § 2 of the Voting Rights Act, codified at 52 USC § 10301.
• 82 Gingles , 478 US at 62 (Brennan) (plurality).
• 83 See, for example, Growe v Emison , 507 US 25, 40 (1993).
• 84 Minority voters can be disproportionately burdened by an electoral regulation (say, a photo identification requirement) whether or not they are polarized from the white majority.
• 85 The Gingles Court noted that “courts and commentators agree that racial bloc voting is a key element of a vote dilution claim,” Gingles , 478 US at 55, and endorsed the district court’s use of “methods standard in the literature for the analysis of racially polarized voting,” id at 53 n 20.
• 86 Geographic compactness is also a prerequisite for liability for vote dilution, while responsiveness is a factor to be considered at the later totality-of-circumstances stage. See id at 45, 50.
• 87 See id at 52–53 (referring to “two complementary methods of analysis—extreme case analysis and bivariate ecological regression analysis”).
• 88 See, for example, League of United Latin American Citizens, Council No 4434 v Clements , 999 F2d 831, 854 (5th Cir 1993) (en banc).
• 89 See, for example, Christopher S. Elmendorf and Douglas M. Spencer, Administering Section 2 of the Voting Rights Act after Shelby County, 115 Colum L Rev 2143, 2195–2215 (2015).
• 90 See, for example, Christopher S. Elmendorf, Kevin M. Quinn, and Marisa A. Abrajano, Racially Polarized Voting , 83 U Chi L Rev 587, 611–19 (2016); Nicholas O. Stephanopoulos, Civil Rights in a Desegregating America , 83 U Chi L Rev 1329, 1386–87 (2016).
• 91 See Ellen Katz, et al, Documenting Discrimination in Voting: Judicial Findings under Section 2 of the Voting Rights Act since 1982 , 39 U Mich J L Ref 643, 663–75 (2006).
• 92 See, for example, Andrew Gelman and Gary King, Enhancing Democracy through Legislative Redistricting , 88 Am Polit Sci Rev 541, 545–46 (1994); Bernard Grofman, Michael Migalski, and Nicholas Noviello, The “Totality of Circumstances Test” in Section 2 of the 1982 Extension of the Voting Rights Act: A Social Science Perspective , 7 L & Pol 199, 202–09 (1985).
• 93 Adarand Constructors, Inc v Pena , 515 US 200, 230 (1995).
• 94 Ashcroft v American Civil Liberties Union , 542 US 656, 666 (2004).
• 95 See Richard H. Fallon Jr, Strict Judicial Scrutiny , 54 UCLA L Rev 1267, 1330 (2007). It is also worth clarifying how narrow tailoring fits into the terminology of words, concepts, and rules that we introduced earlier. We see it as a conceptual relationship , linking a challenged policy and an asserted governmental interest, that forms part of the doctrine of strict scrutiny.
• 96 See, for example, Adarand , 515 US at 227.
• 97 See, for example, Roe v Wade , 410 US 113, 155 (1973).
• 98 See, for example, Ashcroft , 542 US at 666.
• 99 See Lee Epstein and Gary King, The Rules of Inference , 69 U Chi L Rev 1, 2 (2002).
• 100 See Mark A. Graber, Unnecessary and Unintelligible , 12 Const Commen 167, 167 (1995) (“No necessary means exist in many cases for realizing certain purposes.”).
• 101 See Nicholas O. Stephanopoulos, Spatial Diversity , 125 Harv L Rev 1903, 1938 (2012).
• 102 Bendix Autolite Corp v Midwesco Enterprises, Inc , 486 US 888, 897 (1988) (Scalia concurring in the judgment).
• 103 United States v Virginia , 518 US 515, 533 (1996).
• 104 See, for example, id at 573–74 (Scalia dissenting).
• 105 Using our earlier terminology, the conceptual relationship here, between a challenged policy and an asserted governmental interest, essentially is the legal rule. This is not a problem for our analysis; it simply reflects the fact that doctrine is sometimes reducible to a single conceptual relationship.
• 106 See, for example, Planned Parenthood of Southeastern Pennsylvania v Casey , 505 US 833, 874 (1992) (O’Connor, Kennedy, and Souter) (plurality) (“Only where state regulation imposes an undue burden on a woman’s ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause.”).
• 107 See, for example, Crawford v Marion County Election Board , 472 F3d 949, 950, 952–54 (7th Cir 2007) (applying a constitutional test assessing whether a law constitutes “an undue burden on the right to vote”).
• 108 See, for example, Granholm v Heald , 544 US 460, 493 (2005) (Stevens dissenting) (“[A] state law may violate the unwritten rules described as the ‘dormant Commerce Clause’ [ ] by imposing an undue burden on both out-of-state and local producers engaged in interstate activities.”).
• 109 505 US 833, 877 (1992) (O’Connor, Kennedy, and Souter) (plurality). See also Burdick v Takushi , 504 US 428, 434 (1992) (focusing on “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments”).
• 110 Casey , 505 US at 878 (O’Connor, Kennedy, and Souter) (plurality). See also Burdick , 504 US at 434 (inquiring into whether the policy imposing the burden is “narrowly drawn to advance a state interest of compelling importance”).
• 111 Pike v Bruce Church, Inc , 397 US 137, 142 (1970). See also Storer v Brown , 415 US 724, 730 (1974) (commenting that there is “no litmus-paper test” for voting regulations, and that “[d]ecision in this context . . . is very much a matter of degree”) (quotation marks omitted).
• 112 By “doctrinal progress,” we simply mean articulating a more effective conceptual relationship. Of course, improvement on this axis may result in trade-offs along other dimensions.
• 113 See, for example, Burdick , 504 US at 434 (“[T]he rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights.”).
• 114 504 US 555 (1992).
• 115 Id at 560 (brackets and ellipsis omitted).
• 116 Id at 561 (quotation marks omitted).
• 117 Richard M. Re, Relative Standing , 102 Georgetown L J 1191, 1217 (2014). See also Massachusetts v Environmental Protection Agency , 549 US 497, 543 (2007) (Roberts dissenting) (“As is often the case, the questions of causation and redressability overlap.”).
• 118 Cass R. Sunstein, What’s Standing after Lujan ? Of Citizen Suits, “Injuries,” and Article III , 91 Mich L Rev 163, 228 (1992).
• 119 US Const Art I, § 8, cl 18. Here too, the conceptual relationship essentially is the legal rule itself. See note 105.
• 120 Graber, 12 Const Commen at 170 (cited in note 100). See also, for example, United States v Comstock , 560 US 126, 134 (2010) (“[T]he word ‘necessary’ does not mean ‘absolutely necessary.’”).
• 121 Comstock , 560 US at 133–34 (quotation marks omitted). See also National Federation of Independent Business v Sebelius , 132 S Ct 2566, 2591–92 (2012).
• 122 Comstock , 560 US at 134.
• 123 132 S Ct 2566 (2012).
• 124 Id at 2591–92 (quotation marks omitted).
• 125 For further discussion of this point, see Richard A. Posner, Divergent Paths: The Academy and the Judiciary 117–21 (Harvard 2016).

Thanks to Jake Gersen, Todd Henderson, Daryl Levinson, Jens Ludwig, Richard McAdams, Tom Miles, Matthew Stephenson, David Strauss, Adrian Vermeule, Noah Zatz, and participants at a workshop at The University of Chicago Law School for helpful comments.

We are grateful to Susan Bandes, Elizabeth Foote, Jacob Gersen, Brian Leiter, Anup Malani, Richard McAdams, Elizabeth Mertz, Jonathan Nash, Eric Posner, Adam Samaha, Larry Solum, David Strauss, Noah Zatz, and participants in a work-inprogress lunch at The University of Chicago Law School for valuable comments. We are also grateful to the Chicago Judges Project, and in particular to Dean Saul Levmore, for relevant support.

We thank Eric Posner, Richard Posner, Peter Strauss, and Adrian Vermeule for helpful comments. We are also grateful to Rachael Dizard, Casey Fronk, Darius Horton, Matthew Johnson, Bryan Mulder, Brett Reynolds, Matthew Tokson, and Adam Wells for superb research assistance.

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How to Write a First-Class Law Essay

Studying law at university entails lots of essay writing. This article takes you through the key steps to writing a top law essay.

Writing a law essay can be a challenging task. As a law student, you’ll be expected to analyse complex legal issues and apply legal principles to real-world scenarios. At the same time, you’ll need to be able to communicate your ideas clearly and persuasively. In this article, we’ll cover some top tips to guide you through the process of planning, researching, structuring and writing a first-class law essay with confidence. 

1. Start In Advance

Give yourself plenty of time to plan, research and write your law essay. Always aim to start your law essay as soon as you have the question. Leaving it until the last minute does not only create unnecessary stress, but it also leaves you insufficient time to write, reference and perfect your work.

2. Understand The Question

Do not begin until you fully comprehend the question. Take the time to read the question carefully and make sure that you understand what it’s asking you to do. Highlight key terms and annotate the question with definitions of key concepts and any questions that you have have. Think about how the question links back to what you’ve learned during your lectures or through your readings.

3. Conduct Thorough Research

Conducting thorough research around your topic is one of the most fundamental parts of the essay writing process. You should aim to use a range of relevant sources, such as cases, academic articles, books and any other legal materials. Ensure that the information you collect is taken from relevant, reliable and up to date sources. Use primary over secondary material as much as possible.

Avoid using outdated laws and obscure blog posts as sources of information. Always aim to choose authoritative sources from experts within the field, such as academics, politicians, lawyers and judges. Using high-quality and authoritative sources and demonstrating profound and critical insight into your topic are what will earn you top marks.

4. Write A Detailed Plan

Once you’ve done your research, it’s time to plan your essay. When writing your plan, you’ll need to create an outline that clearly identifies the main points that you wish to make throughout your article. Try to write down what you wish to achieve in each paragraph, what concepts you want to discuss and arguments you want to make.

Your outline should be organised in a clear, coherent and logical manner to ensure that the person grading your essay can follow your line of thought and arguments easily.  You may also wish to include headings and subheadings to structure your essay effectively This makes it easier when it comes to writing the essay as starting without a plan can get messy. The essay must answer the question and nothing but the question so ensure all of your points relate to it.

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5. Write A Compelling Introduction

A great introduction should, firstly, outline the research topic.  The introduction is one of the most crucial parts of the law essay as it sets the tone for the rest of the paper. It should capture the readers attention and provide the background context on the topic. Most importantly, it should state the thesis of your essay.

When writing your introduction, avoid simply repeating the given question. Secondly, create a road map for the reader, letting them know how the essay will approach the question. Your introduction must be concise. The main body of the essay is where you will go into detail.

6. Include A Strong Thesis Statement

Your thesis should clearly set out the argument you are going to be making throughout your essay and should normally go in the introduction. Your thesis should adopt a clear stance rather than being overly general or wishy-washy. To obtain the best grades, you’ll need to show a unique perspective based upon a critical analysis of the topic rather than adopting the most obvious point of view.

Once you’ve conducted your research and had a chance to reflect on your topic, ask yourself whether you can prove your argument within the given word count or whether you would need to adopt a more modest position for your paper. Always have a clear idea of what your thesis statement is before you begin writing the content of your essay. 

7. Present the Counter-argument

To demonstrate your deeper understanding of the topic, it’s important to show your ability to consider the counter-arguments and address them in a careful and reasoned manner. When presenting your counterarguments, aim to depict them in the best possible light, aiming to be fair and reasonable before moving on to your rebuttal. To ensure that your essay is convincing, you will need to have a strong rebuttal that explains why your argument is stronger and more persuasive. This will demonstrate your capacity for critical analysis, showing the reader that you have carefully considered differing perspectives before coming to a well-supported conclusion.

8. End With A Strong Conclusion

Your conclusion is your opportunity to summarise the key points made throughout your essay and to restate the thesis statement in a clear and concise manner.  Avoid simply repeating what has already been mentioned in the body of the essay. For top grades, you should use the conclusion as an opportunity to provide critical reflection and analysis on the topic. You may also wish to share any further insights or recommendations into alternative avenues to consider or implications for further research that could add value to the topic. 

9. Review The Content Of Your Essay

Make sure you factor in time to edit the content of your essay.  Once you’ve finished your first draft, come back to it the next day. Re-read your essay with a critical perspective. Do your arguments make sense? Do your paragraphs flow in a logical manner? You may also consider asking someone to read your paper and give you critical feedback. They may be able to add another perspective you haven’t considered or suggest another research paper that could add value to your essay. 

10. Proofread For Grammatical Mistakes

Once you’re happy with the content of your essay, the last step is to thoroughly proofread your essay for any grammatical errors. Ensure that you take time to ensure that there are no grammar, spelling or punctuation errors as these can be one of the easiest ways to lose marks. You can ask anyone to proofread your paper, as they would not necessarily need to have a legal background – just strong grammar and spelling skills! 

11. Check Submission Guidelines

Before submitting, ensure that your paper conforms with the style, referencing and presentation guidelines set out by your university. This includes the correct font, font size and line spacing as well as elements such as page numbers, table of content etc. Referencing is also incredibly important as you’ll need to make sure that you are following the correct referencing system chosen by your university. Check your university’s guidelines about what the word count is and whether you need to include your student identification number in your essay as well. Be thorough and don’t lose marks for minor reasons!

12. Use Legal Terms Accurately

Always make sure that you are using legal terms accurately throughout your essay. Check an authoritative resource if you are unsure of any definitions. While being sophisticated is great, legal jargon if not used correctly or appropriately can weaken your essay. Aim to be concise and to stick to the point. Don’t use ten words when only two will do.

12. Create a Vocabulary Bank

One recurring piece of advice from seasoned law students is to take note of phrases from books and articles, key definitions or concepts and even quotes from your professors. When it comes to writing your law essay, you will have a whole range of ideas and vocabulary that will help you to develop your understanding and thoughts on a given topic. This will make writing your law essay even easier!

13. Finally, Take Care of Yourself

Last but certainly not least, looking after your health can improve your attitude towards writing your law essay your coursework in general. Sleep, eat, drink and exercise appropriately. Take regular breaks and try not to stress. Do not forget to enjoy writing the essay!

Words by Karen Fulton

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The Limits of Law

A central—perhaps the central—question of the philosophy of law concerns the relationship between law and morality. The concern breaks down into many issues, both conceptual and evaluative. Among the evaluative issues is the question of obedience to law: does the fact that some norm is a legal norm provide any reason to obey it? (Green 2004 [2012]; Delmas & Brownlee 2021). By contrast, conceptual or analytical issues include the identification of conditions necessary for the existence of a legal system, irrespective of the system’s goodness or otherwise. Must some reference to morality enter into an adequate definition of law or legal system? (Hart 1963 [1982]; Dickson 2012). And so on.

The present topic, the question of the limits of law, is widely understood to be one of the important evaluative questions, revolving around the legal enforcement of morality. In the nineteenth century John Stuart Mill proposed “the harm principle” as his answer; in the late twentieth century H.L.A Hart adopted a significantly modified version of Mill’s principle and further important versions of the harm principle followed in the hands of Joel Feinberg and Joseph Raz (Sections 4–6 below). The harm principle in all its manifestations has encountered strong resistance, most notably from “legal moralists” (Sections 1–3) and remains in the eyes of many the focus of debate, the view to adopt, supplement or modify (as some would say), or to beat and replace (as others would say).

A more recent strand to the question of the legal enforcement of morality is Rawlsian in origin, most notably the claim that constitutional essentials and matters of basic justice should be subject to a constraint of public reason (Section 7). An alternative perspective challenges the assumption that the limits of law is simply an evaluative question focussed on law as a neutral instrument put to good ends and bad. It takes the limits of law as in part a conceptual question. Law of its nature has an internal morality of its own, so it is claimed, with its own built-in limits (Section 8). A further question relates to the deployment by the law of techniques beyond coercion (Section 8).

1. Legal Moralism: Formulation and Structure

2.1 privacy, 2.2 liberty, 2.3 the crime tariff, 2.4 self-defeat and other forms of defeat, 3. the morality of legal moralism, 4. the harm principle, 5.1 other-regarding conduct, 5.2 a setback to interests, 5.3 a setback to autonomy/prospect harm, 6.1 utilitarian/consequentialist foundations, 6.2 perfectionist/value-pluralist foundations, 7. public reason, 8. other directions: legality, a “modal kind” and coercion, 9. conclusion, other internet resources, related entries.

Legal moralism is an initially simple and natural position to take in delineating the legitimate boundaries of the legal use of coercion. At its heart is a strong link between moral wrongdoing and legal (especially criminal) wrongdoing. In the 1960s Herbert Hart applied the label “legal moralist” to his intellectual sparring partner, Lord Patrick Devlin, and the label stuck (Hart 1963; Devlin 1965). Devlin’s account, which we come to below, has led to numerous responses; beyond Hart himself a sample might include: Rostow (1960), Ronald Dworkin (1965), Ten (1972), Feinberg (1987), Kane (1994), Jeffrie Murphy (1999), Gerald Dworkin (1999), Kekes (2000), Nussbaum (2004, 2010), Wall (2013). While many of the responses to Devlin have been heavily critical, the approach is alive and well and continues to develop in the hands, among others, of self-declared legal moralists, such as Michael Moore and Antony Duff (Duff 2016: 96, 2018; Moore 1997, 2014) and in writers who seem at least broadly favourably disposed (Tadros 2016a: 169–170). Something akin to it is also found implicit in a vast range of legal writing.

Legal Moralism is often formulated in terms of immorality as a sufficient condition for legal coercion. Hart asks whether the fact that conduct is immoral is “sufficient to justify making that conduct punishable by law?” (Hart 1963 [1982:4]). Larry Alexander similarly defines legal moralism as “the position that immorality is sufficient for criminalization” (Alexander 2003: 131). Joel Feinberg—mindful of the possibility that a legal moralist might want to excise from the picture certain kinds of immorality—defines legal moralism without mention of sufficient conditions:

it can be morally legitimate to prohibit conduct on the ground that it is inherently immoral, even though it causes neither harm nor offence to the actor or to others. (Feinberg 1984: 27, emphasis added)

However, Hart’s and Alexander’s formulations are at best misleading as characterizations of legal moralism; [ 1 ] and Feinberg’s is incomplete by the measure of his own formulations of rival positions. What both leave out is the important point that immorality or wrongdoing is generally taken by legal moralists to be a prima facie or pro tanto ground for the imposition of legal coercion, subject to potential defeat by other factors. [ 2 ] That certain conduct is by common standards immoral gives the society, in Devlin’s view, “prima facie right to legislate” (Devlin 1965: 11). The immorality is certainly a valid reason for criminalization, but such a reason will fail to be conclusive if unable to override a series of potential defeating factors that Devlin outlines. Accordingly, the

appointed law makers of society have the duty to balance conflicting values…and to form a judgement according to the merits of each case. (Devlin 1965: 117)

Devlin identifies a series of “factors which should restrict the use of the criminal law”, even where an immorality or moral wrong has been identified (Devlin 1965: viii). Balances must be struck as between “factors of principle” and “factors of expediency” (we examine some of these in the next section). Hence it will often be the case that the posited wrongness or immorality will not be a sufficient ground for legal coercion.

As far as Feinberg’s formulation is concerned, it is perhaps revealing to contrast his formulation of the harm principle (which we discuss below in section 4 ) with his formulation of legal moralism cited above.

Harm to others : It is always a good reason in support of penal legislation that it would be effective in preventing (eliminating, reducing) harm to persons other than the actor (the one prohibited from acting) and that there is probably no other means that is equally effective at no greater cost to other values . (Feinberg 1984: 26, emphasis added)

In formulating his harm principle, Feinberg is careful to qualify his central claim with conditions relating to what would be “effective” and of what the “cost” may be to “other values”. Not so, however, when he formulates legal moralism. This may be no more than an oversight. However, considerations of the sort—potential “effectiveness”, “cost to other values”—are central to legal moralists as will be seen in the next section (Devlin 1965; Moore 1997: 663–665). Stressing these, as regards the harm principle, but omitting them, as regards legal moralism, leaves the unfair impression that the former has a subtlety and a realism that the latter lacks. Furthermore, Feinberg’s formulation makes wrongdoing or immorality sound like something of an afterthought or a factor of only marginal importance to the criminalization question. The legal moralist by contrast sees wrongdoing or immorality not as marginal or in play only after harm and offence have had their due, but as central or pivotal. Wrongs, as Devlin would have it, “shape” crimes. Of the best known—murder, rape, battery, theft, fraud, arson—so called mala in se —we should say “a moral idea shapes the content of the law” (Devlin 1965: 27). It is true, the moralist will say, that while these crimes are shaped by morality, the criminal offence of, say, murder is not identical to the moral wrong of murder as law will import various other requirements, of legality and so on; for example the law

must trim the edges so that they present a line sharp enough for the clear acquittal or condemnation which the administration of justice requires. (Devlin 1965: 27)

The wrongdoing is, however, essential. Hence the legal moralist takes murder, fraud etc as ripe for criminalization because they are wrongful. They may (or may not) be wrongful because harmful; but from the fact that harms form a significant subset of wrongs, we should not be tempted to put the cart before the horse. Harms matter a great deal, but this is because they are often a kind of wrong. As Devlin’s fellow legal moralist Michael Moore puts it

we care about harm to non-consenting victims because to cause such harms (and sometimes, to fail to prevent them) breaches our moral obligations. (Moore 1997: 649)

If one were to revise Feinberg’s definition of legal moralism so as to be symmetrical with his definition of the harm principle one would get something closer to the essence of the position: It is (always or sometimes) a good reason in support of penal legislation that it would be effective in preventing (eliminating, reducing) wrongs and that there is probably no other means that is equally effective at no greater cost to other values. [ 3 ]

Legal moralism, then, broadly comes in two parts, first, a wrong or immorality is identified and, second, a set of countervailing factors are considered; and considered with the aim of reaching an all-things-considered-judgement on whether legal coercion should be deployed. The wrong may be strong enough to see off the countervailing factors, as the case may be, or the factors may be powerful enough to defeat the wrong, all things considered. Thus, some wrongs will be tolerable, according to this position, and some will be intolerable. Beyond this core of the position, legal moralist accounts diverge significantly. Moore takes a specific philosophy of punishment, a form of retributivism, as an essential component of his account (Moore 1997). Duff argues that only a subset of moral wrongs should be criminalizable—public, not private wrongs (Duff 2016, 2018). Tadros, whose relationship to legal moralism is complex, also excludes a subset of moral wrongs as potentially criminalizable, for example “less serious wrongs committed in families” (Tadros 2016a: 131). Against this Moore accepts there is initially reason to criminalize all kinds of morally wrongful conduct—even breach of contract or treachery among friends—and leaves it to the second part of the structure mentioned above, the countervailing factors, to block the absurdity of criminalizing such conduct (Moore 1997, 2016). There is also considerable variation between legal moralists as to how “morality” is to be understood. Notably, Devlin’s understanding of morality is widely rejected by his successors. Below the flexibility of the approach will be emphasized. We return to the question of how the “morality” in “legal moralism” is to be understood in section 3 .

2. Legal Moralism: Restrictive Factors that Can Defeat Prima Facie Wrongs

The defeating factors most heavily stressed by Devlin and Moore are privacy and liberty (Devlin 1965: 16–20; Moore 1997: 76–78). As far as privacy is concerned, consider adultery and fornication. Adultery remains a criminal offence in parts of the world including certain US states (Rhode 2016). Devlin takes the wrongfulness of adultery for granted, but nevertheless holds it inappropriate to criminalize it. Jeffrie Murphy reaches the same conclusion despite saying, along the same lines as Devlin:

It does not strike me as absurd…to suggest that the sexual revolution of the 60s, and the resulting freedom many men felt to abandon their marriages and family responsibilities for sexual and other forms of so-called self-fulfilment, generated considerable social harm—particularly for women and children. (J. Murphy 2006 [2012: 70])

From considerations like this there may be a prima facie ground to criminalize in some circumstances such moral wrongs, but the conduct—all things considered—should not be criminal in Devlin’s view or Murphy’s. The clumsy tool of legal coercion is hardly likely to help remedy any wrongs here, not to mention the undesirability of official surveillance of intimate relationships.

The privacy concerns defeat any prima facie right. A legal moralist position must attend closely to what is known about the potential effects on privacy of the criminal law. Such a view would find pertinent Lawrence Tribe’s suggestion as to what the question should be in Bowers v Hardwick —that is: not the question of what Hardwick “was doing in the privacy of his bedroom, but what the State of Georgia was doing there” (quoted in Suk 2009a: 689). [ 4 ] More recently Jeannie Suk has explored the relationship between the criminal law and the value of privacy and intimate relationships. Though not writing from any self-declared legal moralist perspective the ideas illustrate the kind of balanced exploration that the legal moralist seeks. The criminal law in many jurisdictions—Suk’s focus is largely on New York County—showed, historically, a reluctance to enter the intimate space of the home at the heavy cost of enabling domestic abuse against women. This has been replaced in many jurisdictions, such as New York County, by the criminalization in various guises of domestic abuse. An improvement to be sure. However, Suk points to some complex resulting tensions “between protecting women from intimate violence” and respecting their “self-determination” (Suk 2009a: 690). Certain criminal law techniques, such as protection orders that seek the end of an intimate relationship can amount, she claims, to “state-imposed de facto divorce” (Suk 2009a: 685; 2009b) and to various contexts in which “the particular desires of individual women” do not “control” a particular area of their intimate lives (Suk 2009a: 690). Suk’s aim is not to deny that the criminal law should be used to criminalize and enforce specific laws against domestic abuse; the wrong (and harm) of domestic abuse remains a ground for such intervention. It is rather to focus on the delicate balances implied by legal enforcement of such wrongdoing against the value of privacy, intimacy, and self-determination and to evaluate certain specific legal techniques in the light of such a focus. It has led to numerous responses (see Suk 2009a, which contains reactions from eight commentators; on domestic abuse see also Friedman 2003, Dempsey 2009).

This approach to privacy is not one accepted by all legal moralists. The usual two-part structure of legal moralism—the wrongs and the countervailing factors—was noted above. Devlin and Moore treat privacy as a potentially defeating countervailing factor, an aspect of the second part of that structure as we have just seen. Duff, however, treats it as a criterion to determine what counts as a wrong before even reaching the question of countervailing factors, in other words as an aspect of the first part of that structure. For Duff, the criminal law is, or should be, limited to the definition and declaration of public wrongs; wrongness, for him, “is a reason for criminalization—but only if it is committed within the public realm” (Duff 2018: 100). In insisting on this, Duff is departing from Devlin’s claim:

that it is not possible to set theoretical limits to the power of the State to legislate against immorality. It is not possible to settle in advance exceptions to the general rule or to define inflexibly areas of morality into which the law is in no circumstances to be allowed to enter. (Devlin 1965: 12–13)

The “private realm” for Duff—which he aspires to define in advance, albeit not “inflexibly”—is precisely an area of morality into which the (criminal) law is not to be allowed to enter.

As for liberty, “there must be”, says Devlin, “toleration of the maximum individual freedom that is consistent with the integrity of society” (Devlin 1965: 16). “Toleration” only arises in relation to conduct of which one disapproves: toleration is not approval (Devlin 1965: 18; cf. Oberdiek 2001; Green 2008). He gives two examples—cruelty to animals and –the issue with which his view is most famously associated—homosexual sex and, as he puts it, the “general abhorrence of homosexuality” in the UK in the late 1950s and early 1960s (Devlin 1965: 17). As regards both, his question is: are they beyond toleration by the criminal law? Devlin’s answer is yes to the first and—although there is a widespread erroneous view on this in the literature [ 5 ] —no to the second. In other words, liberty or freedom of human choice cannot defeat the prima facie right of society to criminalize cruelty to animals on grounds of its wrongfulness, but, in the case of consensual homosexual sex in private, it can (Devlin, Birmingham et al. 1965; cf. Devlin 1965: ix). On the latter issue, one might certainly disagree (to put it mildly) with the claim that the reason gay sex ought not to be criminalized is that it is within the bounds of toleration, for that implies that such conduct is morally wrongful in the first place. And one might also strongly doubt the plausibility of Devlin’s means of discerning where the boundary of maximum individual freedom lies—turning both on how widespread a moral belief is and on how intensely it is felt and believed. [ 6 ] We will return below to these points when we consider how “morality” should be best understood in legal moralism ( section 3 ). The point for now is to illustrate the structure of a legal moralism such as that of Devlin. In short Devlin took both animal cruelty and homosexuality to be prima facie morally wrong, but took the former all things considered to hold firm against liberty as a potential defeating condition, and the latter to be defeated by liberty (and other factors) when all things are considered. Moore in his brand of legal moralism also stresses the place of liberty. In his view, “there is always some reason not to legally coerce behaviour, namely, that to do so diminishes the opportunities of those coerced, diminishes the likelihood of autonomously chosen rightful behaviour etc.” (Moore 1997: 749; 2014).

There is a controversy here as to whether the negative liberty which Moore explicitly invokes (and which Devlin assumes) can ground the requisite prima facie reason against legal coercion (for scepticism see Tadros 2016b: 79–82 and the response in Moore 2016: 352). [ 7 ] This raises the issue much explored in the philosophical literature of the extent to which liberty should be understood as “negative liberty” or “positive liberty” or some combination of the two (Carter 2019). Negative liberty, as Ian Carter puts it,

is the absence of obstacles, barriers or constraints. One has negative liberty to the extent that actions are available to one in this negative sense. Positive liberty is the possibility of acting—or the fact of acting—in such a way as to take control of one’s life and realize one’s fundamental purposes. (Carter 2019)

Amy Baehr blocks out how the negative/positive liberty distinction takes shape in liberal feminist writing, labelling approaches of the former kind “classical-liberal feminism”, and approaches of the latter kind as “egalitarian-liberal feminism” (Baehr 2021). As we saw in the previous subsection in relation to privacy, it is a sign of the potential flexibility of a broad legal moralist approach, that liberal-feminist accounts of freedom could potentially be deployed so as to yield potential defeating conditions for all-things-considered determinations in given cases of whether legal coercion can legitimately be deployed to counter an identified wrong. We touch on this issue again below ( section 6.2 ).

The legal moralist notion of defeaters—the conditions that can potentially defeat a prima facie reason to impose legal coercion on the basis of moral wrongdoing—should not be thought of as closed, but rather as flexible and subject to evolution or change. The notion fits comfortably with an established set of considerations that have been developed since the 1960s, based on the “crime tariff” and other mechanisms at work in the criminal law (Packer 1964, 1968; Moore 1997: 664). The idea of the crime tariff is that certain kinds of (perceived) wrongful behaviour will be engaged in, one way or another, whether it is criminal or not. That, of course, is not a conclusive objection to criminalization. If it were, the criminalization of murder or theft would be ruled out. However, if one looks at the predictable effects of criminalization of given wrongful conduct, it may make matters still worse than staying the hand of the criminal law. For one effect of criminalization is that the price of products (for example dangerous drugs) or services (for example sex work) will go up and will attract suppliers willing to break the law systematically and introduce a plethora of criminal gangs into societies, among other effects. The result may be worse than leaving well (or quite bad) alone. Michael Moore, for example, writes:

Prostitution… does not go away by being legislated against, as the experience of all societies has shown. By making it criminal, however, the supply is artificially restricted to those willing to engage in criminal behaviour, so that prices and profits are such as to draw in organized criminal activity. (Moore 1997: 664; cf. Flanigan & Watson 2020).

Devlin appeared to be anticipating this argument when pointing out a factor that needed to be weighed in considering whether abortion (which he appeared to assume was morally wrongful) should be, or should remain, criminal. Abortions, in certain circumstances, will be sought irrespective of whether the conduct is criminal. But, if criminal, they will be performed by amateur, unskilled “backstreet” practitioners, operating outside of legal regulation. This renders the procedure dangerous in a way it would not be if properly attested professionals were undertaking the procedure; and punishment may seem appropriate for anyone causing or risking such danger. However, the dangerousness of this conduct, said Devlin, is “largely” based on the facts that “it is illegal and therefore performed only by the unskilled” (Devlin 1965: 24). This again yields a factor of potential relevance—even to those who, like Devlin, believe abortion to be morally wrong. Whatever the conclusion, such a consideration is a factor to be weighed in the balance.

There has been much research in the intervening decades on how norm-subjects will respond to any potential use of the criminal law. Will they endorse it, ignore it, seek to undermine it? All of this can make a difference to the wisdom of criminalizing in the first place. Tom Tyler has argued that to a large extent obedience to the law is based on what is perceived by people to be legitimate and to be respected. The extent to which people obey because threatened by legal sanctions is, by contrast, exaggerated (Tyler 2006). Paul Robinson stresses the need for laws to be made that do not stray too far from the norms already accepted by the people. For if they do, the people will not stigmatize the conduct, which may blunt or compromise the effectiveness of the norms in question (Robinson 2000). Similarly, legal officials may find various ways of underenforcing norms if they stray too far from those generally accepted, again blunting their efficacy. Bill Stuntz points to the phenomenon of “self-defeating crimes” (Stuntz 2000). A series of factors of the sort have most recently been examined by Jacob Barrett and Gerald Gaus (Barrett & Gaus 2020). The idea of potential defeating conditions is a highly flexible one, not a once-for-all set of conditions with any rigidity; the list will inevitably change and develop. A further issue of potential relevance to the question of what conduct should be criminalized (and how) focusses on the consequences of applying the criminal law in given areas. There is, for example, a differential impact of the criminal law on some races in many jurisdictions (Yankah 2019). One might add to a list of potential defeaters the problem that enforcement of a given proposed or current offence is not possible under current conditions in any tolerably fair way. In the United Kingdom, for example, the politician David Lammy has written a report on racial disparities across the criminal justice system and proposed a principle for government of “explain or reform”: if governments cannot provide an evidence-based explanation for apparent disparities, then reforms should be introduced to address them (Lammy 2017).

The above discussion emphasized the legal moralist’s defeating factors because of their importance to the position and because, as we have seen, legal moralism is sometimes misleadingly characterized without reference to them. It was also noted that Feinberg holds such factors to be of crucial importance to the version of the harm principle he endorses. Such factors will surely be largely ecumenical as between the rival approaches.

As we have seen, Devlin took homosexuality and animal cruelty to be morally wrongful and therefore his reason for supporting the decriminalization of the first and the continued criminalization of the second was that they, respectively, ought to be tolerated and ought not to be tolerated (see footnote 5). Notably neither Devlin nor Hart addressed the question of why—in virtue of what—can it be asserted or denied that homosexuality is morally wrongful. For Devlin that is hardly to the point, for “what the law maker has to ascertain is not the true belief but the common belief”(Devlin 1965: 94). By contrast Devlin’s fellow legal moralist, Moore, would take Devlin’s support for decriminalization of homosexual sex to be the right result for the wrong reason; homosexuality, not being in any way morally wrong, should not be criminalized for that straightforward reason; the question of toleration should never arise (Moore 1997: 756; Corvino 2013; Pickett 2020).

Devlin’s account is a moral relativist one. He relativizes what is morally good to the beliefs of a given society (where “deeply felt and not manufactured”; Devlin 1965: 17). The attraction for Devlin of moral relativism was his belief that it would yield a morality generally of the society subject to it, without conceding “moral expertise” to any (elite) group of persons. He seemed to assimilate the “rationalist morality” he rejected to the views of an educated elite (Devlin 1965: 91–92). [ 8 ] Since Hart’s critique, few have found the relativist aspect of Devlin’s account convincing (Hart 1963 [1982: 17–24]). Devlin’s view appears to exemplify what Bernard Williams styled as “vulgar and unregenerate” relativism (B. Williams 1972: 34, cf. Fricker 2013). Such relativism—as Williams paints it—is composed of three propositions:

1. “right” means … “right for a given society” [also presumably by the same token: “wrong” means “wrong for a given society”]; 2. right[/wrong] “for a given society” is to be understood in the functionalist sense’ [i.e., for the persistence of that society]; and that 3. (therefore) it is wrong for people in one society to condemn, interfere with, etc., the values of another society.   (B. Williams 1972: 34–39, numbering added; cf. the distinction between “positive morality” and “critical morality” in Hart 1963 [1982: 17–24])

As noted above, Devlin affirmed the first of William’s propositions. In industrialized societies, Devlin tells us, it is generally true that monogamy “is built into the house in which we live and could not be removed without bringing it down” (Devlin 1965: 10). But this is merely a contingent truth and if our houses were built differently—around polygamy—the content of the law to be enforced could legitimately be the opposite of what it is (Devlin 1965: 114). As for the second, it is equally clear that Devlin understood wrongness “for a given society” in “the functional sense” of what threatened the persistence of that society. A society is constituted by its “common morality” or “moral structure” or “public morality” and its morality is as necessary to it as “a recognised government”, If a society’s morality is not sufficiently enforced the society will “disintegrate”; and the society accordingly has a right to defend itself against attacks on that morality (Devlin 1965: 10).

Devlin’s “disintegration argument” appears fatally wounded by Hart’s initial criticism of it. As Hart puts it, Devlin moves

from the acceptable proposition that some shared morality is essential to the existence of any society to the unacceptable proposition that a society is identical with its morality as that is at any given moment of its history, so that a change in its morality is tantamount to a destruction of society. (Hart 1963 [1982: 51])

The former claim is plausible if restricted to what Hobbes and Hume characterized as the moral minimum essential for social life:

rules restraining the free use of violence and minimal forms of rules regarding honesty, promise-keeping, fair dealing, and property. (Hart 1967 [1983: 258])

If these ceased to be enforced, it is likely that a different and more dangerous state-of-affairs would ensue; one might well say the original society had disintegrated. Hart can afford to concede this. Such a Hobbesian-Humean minimum is accounted for by the harm principle Devlin rejects. Devlin’s argument, however, needs the disintegration thesis to apply more widely, potentially to every crime of a community, be that to homosexuality, animal cruelty, bigamy, incest etc (to “every jot and tittle” as Hart puts it: Hart 1967 [1983: 258]). These need to be protected on pain of the disintegration of society. Since Devlin gives no empirical evidence linking the destruction of past societies with the non-enforcement of their rules, this appears not to be an empirical claim. [ 9 ] But as a conceptual argument it is highly dubious. For as Hart says

Taken strictly, it would prevent us saying that the morality of a given society has changed, and would compel us instead to say that one society had disappeared and another one taken its place (Hart 1963 [1982: 51–52])

Only a claim of this strength seems able to support Devlin’s belief that any deviation from a society’s shared morality is an existential threat to it.

A different objection is this: to assimilate right and wrong with the question of a society’s survival assumes that the survival of a specific society is necessarily good. It may be true that if certain steps are not taken, the society will disintegrate. Apartheid in South Africa disintegrated. What if by a more sustained enforcement of its central racist elements it had managed to persist longer? Would this continued existence be underwritten by a moral right? Does anyone now owe the society the duty to restore the system or did such a duty lie for a period after its disintegration? The suggestions are absurd. The point of course is that some societies are so lacking in legitimacy that it may be for the best that they disintegrate and are replaced. Devlin goes too far when he says “What is important is not the quality of the creed but the strength of the belief in it” (Devlin 1965: 114). While his concern was the use of legal coercion within a specific society rather than with criticism of other societies, Devlin also appeared to hold to the third of Williams’ propositions above in seeking to exclude standards external to the beliefs of the society. Legal moralism, then, surely needs foundations other than those Devlin sought to provide.

This impression is buttressed by another concern about his account. For what is the status and basis of liberty and privacy, for example, in Devlin’s account? As we have seen he took them to be powerful enough to override certain immoralities in determining what should be criminalized. But what if the ordinary jury member or person on the Clapham omnibus just does not care that much about privacy or liberty? What if, say, they take the view that adultery should be criminalized never mind the very high cost to privacy? Should privacy and liberty be simply downgraded as a result? There is no indication that Devlin would accept such a conclusion or even that the possibility occurred to him. Similarly, Devlin took it that the law should be “perfectly impartial in matters of religion” and this seems in no way sensitive to whether or not the ordinary member of society endorses such impartiality (Devlin 1965: 62). He appears to take liberty and privacy and other defeaters as safeguards applicable independently of whether ordinary people would accept their validity. In this he appears to have been simply inconsistent.

What alternative foundations could legal moralism have if Devlin’s brand of moral relativism is to be rejected? In the light of Devlin’s stress on wrongdoing as a prima facie ground for legal coercion, one possibility might be an ethics of prima facie duty associated with W.D Ross (Ross 1930; Skelton 2012). And of course, any of the other numerous theories of what makes wrong action wrong—consequentialist, Kantian, natural law, rights-based, virtue ethics—could potentially form such a foundation (Timmons 2013). [ 10 ] Michael Moore combines his legal moralism with a strong version of metaphysical realism (Moore 1997). Presumably, however, such strong metaethical commitments can be bracketed for the more specific questions raised by legal moralism. Jeremy Waldron for example suggests that an anti-realist or quasi-realist view, positing moral truth, albeit based ultimately on subjective sources “inside our own attitudes, desires, and natures”, could serve as well as an out-and-out realist view of Moore’s variety (Waldron 1999: 171). Again, while a legal moralist must surely reject a “vulgar” relativist view of Devlin’s stripe, it may not follow that a more sophisticated moral relativist grounding for legal moralism could not be attempted (Wong 2006; Rovane 2013; Velleman 2015; cf. Fricker 2013). Indeed Duff’s legal moralism is alleged by others to contain moral relativist commitments, a claim he himself rejects (Moore 2014: 199; Tadros 2016a: 121–128; Duff 2018: 232)

Far and away the best-known proposal for a principled limit to the law is the “harm principle” from John Stuart Mill’s On Liberty. The pivotal sentence of its most famous passage reads:

the only purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others. (Mill On Liberty , Ch. 1, para 9)

Harm to others , can be contrasted with moral wrongfulness or immorality—the legal moralist’s starting point; with offence to others; and with harm to persons choosing to engage in, or consenting to, the relevant conduct (anti-paternalism). At least as far as Mill’s canonical statement is concerned, moralism, offence and paternalism are ruled out as legitimate bases for legal coercion. The State may legitimately stop A from beating up B, thereby limiting his freedom of action, because this prevents harm to B. And it may stop A from stealing from B for the same reason. But the State oversteps its proper limits on this view if it purports to stop A smashing up his own property; or to protect C from the distaste she will feel knowing that A is doing this. And it may not treat the wrongfulness of conduct, in the absence of any unconsented-to harm, as a basis for legal coercion: it may not for example prevent “bloody gladiatorial contests presented by voluntary performers before consenting audiences” (Feinberg 1984: 13). For the harm principle, says Mill, is “entitled to govern absolutely the dealing of society with the individual in the way of compulsion and control” (Mill On Liberty , Ch. 1, para 9)

In his four-volume work, the Moral Limits of the Criminal Law Joel Feinberg sets out to defend a version of the harm principle that he takes to be firmly in the spirit of Mill (Feinberg 1984, 1985, 1986, 1990).

The Liberal Position : The harm and offense principles, duly clarified and qualified, between them exhaust the class of good reasons for criminal prohibitions.

This is compounded, first, of Feinberg’s “harm to others” principle stating, as we saw in section 1 :

Harm to others : It is always a good reason in support of penal legislation that it would be effective in preventing (eliminating, reducing) harm to persons other than the actor (the one prohibited from acting) and that there is probably no other means that is equally effective at no greater cost to other values. (Feinberg 1984: 26)

But Feinberg goes beyond Mill’s officially stated position in adding, secondly, the offense principle:

Offense to others : It is always a good reason in support of a proposed criminal prohibition that it is probably necessary to prevent serious offense to persons other than the actor and would probably be an effective means to that end if enacted. (Feinberg 1984: 26)

Though this “offense to others principle” goes beyond Mill’s canonical position, Feinberg believed there to be support in Mill’s writings for the addition of offense as a ground and in any case argued that there are independent grounds for thinking the addition of the offense principle strengthens the Millian position. The place of offense and relatedly “moral distress” remains controversial and has inspired an extensive literature (Feinberg 1985; Hart 1963 [1982: 46]; Waldron 1987 [1993]; Simester & von Hirsch 2011: 99–140; Edwards 2019)

There is an important qualification to be made to Feinberg’s “harm to others” principle. One reason why one might want to treat harm as special is the yearning for a concept for practical use that is “simple, determinate” and “purely empirical” (Feinberg 1984: 214). Such a determinate empirical concept, if it exists, could function free of the controversies that usually attend normative concepts. Everyone, from vastly diverse cultures, philosophies and opinions could get behind it, without fear of compromising what they hold dear. It is clear, however, that Feinberg abandons any hope, if this ever was a feasible ambition, of blocking out any such purely empirical notion. Instead he builds into his harm principle a strong element of moral wrongfulness. As we have observed, his harm principle is designed to reject moral wrongfulness as a legitimating ground for legal coercion, but the crucial qualification here is that it rejects wrongfulness without more as a legitimate basis for legal coercion. Moral wrongs, however, remain highly significant to the account. For harms “produced by justified or excused conduct (‘harms that are not wrongs’)” are said by him not to count as “harms” for the sake of his harm principle. It is thus not any harm to others that constitutes a good reason in support of legal coercion. It is the harms that are produced by “morally indefensible conduct” that matter (Feinberg 1984: 215). In other words, the proponent of Feinberg’s harm principle must be highly concerned with moral wrongs and immorality, perhaps almost as concerned as the legal moralist.

On the one hand, this allows Feinberg to deal satisfyingly with a raft of potential counterexamples. Since, for him, a good reason for coercion will present itself only if the harm in question is wrongful, he can avoid designating as harmful setbacks to persons of the order of losing a professional tennis competition or of being driven out of business by a rival’s superior product, even if the consequences feel like, and are, terrible events in the lives of the individuals concerned. Be they so terrible they are not harms in the relevant sense for Feinberg, as they do not spring from any wrongdoing. On the other hand, the necessity of a moral wrong in his account of harms opens him up to potential criticism. For example, it might be claimed that it is the wrongs that are doing the essential explanatory work, while harm is a redundant or near-redundant addition. Or the strong moral wrongness element in the account might be taken as a tacit admission that the reason the relevant harms matter in the first place is that they are morally wrongful; and if that point goes through, the next question may be: why, then do wrongs that are not harms not also matter enough to form, on occasion (and subject to potential defeating conditions), a valid reason for legal coercion?

Feinberg, however, is clearly Millian in his rejection of paternalism.

Paternalism : It is always a good reason in support of a prohibition that it is probably necessary to prevent harm (physical, psychological, or economic) to the actor himself and that there is probably no other means that is equally effective at no greater cost to other values. (Feinberg 1984: 26–27; Feinberg 1986)

His strong anti-paternalism is not equally hostile to everything that might be described as legal paternalism. He distinguishes “soft paternalism” from “hard paternalism”. In many cases the forcible implementation of a person’s will can accord with his personal autonomy. Feinberg describes such cases as involving “soft paternalism” and contrasts them with those involving “hard paternalism” (Feinberg 1986: 26). It is the “hard” variety that Feinberg sets himself against, the forcible coercion of a person against her will for her own good. This he rules out on grounds of legitimacy. In fact, he does not believe that “soft” paternalism is really paternalism at all properly so-called and so stops short of adding it to his list of potentially legitimating reasons for legal coercion (G. Dworkin 2020).

Whether or not Feinberg broke significantly with Mill on the question of offense, a much larger break with Mill is evident in the respective defences of the harm principle offered by H.L.A Hart and Joseph Raz. Speaking of Hart, Devlin observed that he “mutinied” against Mill and “ran paternalism up the mast” (Devlin 1965: 132). Hart indeed accuses Mill of carrying “his protests against paternalism to lengths that may now appear to us fantastic” (Hart 1963 [1982: 32]). Furthermore, anticipating parts of the “Nudge” movement that emerged fully this century (Sunstein 2014), Hart speaks of

a general decline in the belief that individuals know their own interests best, and to an increased awareness that a great range of factors which diminish the significance to be attached to an apparently free choice or consent. (Hart 1963 [1982: 32–33])

Raz in turn speaks of his “ready embrace of various paternalistic measures”, asserting it is “senseless to formulate either a general pro- or a general anti-paternalistic conclusion” (Raz 1986: 422: Simester & von Hirsch 2011: Part IV; Stanton-Ife 2020: 211–220). The issue of paternalism is of considerable importance to the limits of the law, but for a deeper discussion beyond the brief remarks just made see the entry on paternalism (G. Dworkin 2020; cf. Hurd 2018; De Marneffe 2018; Conly 2018).

Hence Hart and Raz defend a “harm principle”, not a “harm to others” principle. Both nevertheless argue that it will often be the case that the state should not act paternalistically, only not in such a way that an exclusionary principle is merited. The dramatic differences between major proponents of the harm principle makes it misleading to speak of the harm principle as one principle, although one suspects the term is too far embedded in the debate to be dislodged. Therefore we continue to speak of the harm principle, though strictly speaking, there is more than one. The table below illustrates the divergence in the views of the leading thinkers associated with the harm principle. No one of them has an account with conclusions identical to any of the others (see also Edwards 2014). What unites them all is the rejection of legal moralism.

5. What is Harm?

Proponents of the harm principle often proceed without supplying any definition or understanding of “harm”. Mill himself gives no explicit general definition of what he means by the word, satisfying himself with various examples, contextual stipulations and hints:

he seems throughout to think no further explanation is necessary, and to count on any literate speaker of English to accept his application of the word or of some proxy for it. (Brown 2017: 411)

As we will see, other writers consider they can detect in Mill one or more ways to define or understand the term. Perhaps, as well as relying on general linguistic intuitions, one can simply cite paradigm cases. These come easily to mind; harm as “broken bones and stolen purses” as Joel Feinberg puts it (Feinberg 1984: 214). Certainly, one harms others, on any folk understanding of the term, by killing, raping, beating, defrauding, or stealing. But the ordinary sense of harm may also suggest that a transitory pain is a harm and may also have rather porous borders with other normative concepts such as “wrong”, May there, then, be trouble ahead developing a sufficiently determinate, discriminating, and workable conception of harm for purposes of applying the harm principle?

Various definitions and understandings of “harm” have been offered. One derived from Mill takes harmful conduct to be “other-concerning” or “other-regarding conduct” and, conversely, harmless conduct is “self-regarding” (Mill On Liberty , ch. 1, para 9). Accordingly, if some actions have no social consequences, they affect only the actor and are therefore harmless. Hart seems discomforted enough by “critics” of this Millian suggestion to have been unwilling to adopt it himself across the board. He surely had James Fitzjames Stephen’s critique of Mill in mind among others (Stephen 1873 [1993]). These critics, he says,

have urged that the line which Mill attempts to draw between actions with which the law may interfere and those with which it may not is illusory. “No man is an island”; and in an organised society it is impossible to identify classes of actions which harm no one or no one but the individual who does them. (Hart 1963 [1982: 5])

Despite seeming to take Stephen’s point against Mill, however, Hart goes on to adopt the other-regarding/self-regarding understanding in a limited context: so far, he says, as the “special topic of sexual morality” is concerned there may exist a realm or area of conduct that is harmless; here it does seem, “prima facie plausible that there are actions immoral by accepted standards and yet not harmful to others” (Hart 1963 [1982: 5]). It is not, however, clear how this understanding of harm is to be reconciled with Hart’s other uses of the term. For example, he discusses (sceptically) whether the “moral distress” of persons occasioned by the moral wrongdoing of others should count as harm to them (Hart 1963 [1982: 46]); cf. Waldron 1987 [1993]); and he asserts that animal cruelty should be criminal, not pace Devlin to “enforce a moral principle”, but on account of animal suffering. If there is a coherent way of bringing these various understandings of harm together, Hart does not himself supply it.

Another understanding of “harm” again takes its cue from Mill, this time from his many references to the “interests” of persons—for example: “insofar as these concern the interests of no person but himself” and “such actions as are prejudicial to the interests of others” (Mill On Liberty , ch. 5, para 2). The important distinction is not that which regards others versus that which regards oneself. It is that which is in the interests of others versus that which is in the interests of oneself. The seminal essay for this reading is from 1960 by John Rees (Rees 1960; cf. Saunders 2016), though Hart appears not to have been aware of it. Rees paved the way for Feinberg’s development of harm as “the setback of interests”. Hence, in addition to Feinberg’s addition of wrongfulness commented on above, Feinberg’s defines harm as “those states of set-back interest that are the consequence of wrongful acts or omissions by others” (Feinberg 1984: 215).

This Mill-inspired move of Rees and Feinberg, of defining harm in terms of interests, smacks of defining one unclear concept in terms of another unclear concept (Miller 2010: 119). The question of what is in a person’s interests—what is at stake for her—is itself a question that requires considerable elucidation. In Derek Parfit’s terms should we understand “interests” in “desire-fulfilment” terms, in “hedonistic” terms, or in accordance with an “objective list” which holds

certain things are good or bad for people, whether or not the people would want to have the good things, or to avoid the bad things? (Parfit 1984: 499)

Might one reasonably think that adjudicating the conflict between hedonistic, desire-fulfilment and objective list understandings of interests is an undertaking no less complex than the harm principle/legal moralism conflict itself? Take an “objective list” understanding of a person’s interests. According to Parfit this might include—as good for a person—“moral goodness, rational activity, the development of one’s abilities” and so on; and it might include—as bad for a person—being “deprived of dignity” (Parfit 1984: 499). If this is always or sometimes the best account of interests, the whole question of “moral harm” that the harm principle aims to expel is potentially reintroduced. The question of which account, or combination of accounts, is the most compelling is very much a live issue (Fletcher 2016).

Another influential understanding of “harm” is that initially proposed by Raz: “To harm a person is to diminish his prospects, to affect adversely his possibilities” (Raz 1986: 414; Gardner & Shute 2000; Simester & von Hirsch 2011; Edwards 2014, 2019). Harm is essentially understood not as a setback to interests, but a setback to autonomy. Autonomy is essentially understood as the ability to choose between an adequate range of valuable options, while in possession of the appropriate capacities to make such choices and while sufficiently independent of others. There are plainly numerous ways one can set back such autonomy. The problem of explaining why pain is harmful raises its head again. Many would take the infliction of pain on another to be harmful, without waiting to ask if the victim has suffered any setback in her ability to choose between an adequate range of valuable options, which surely, she will often not have done. And what of Devlin’s case of harm to animals? Devlin is likely to pop up at this point to repeat his view that the reason we criminalize cruelty to animals is that it is morally wrong and no potential defeating factor is strong enough to overturn that judgement for purposes of criminalization. There is no need to establish any harm in the first place. Hart, as touched on above, while accepting harm must be part of the story, offered the avoidance of “suffering” as the ground for criminalizing animal cruelty. Setback to autonomy or prospect-harm, however, looks like a non-starter, for animals, though beings that can be harmed, are not autonomous beings, at least on any standard account. Similarly, severely mentally disordered persons may in some cases lack the capacity for autonomy, but it is plain as day that they can be harmed, something the “setback to autonomy” or “prospect harm” conception seems ill equipped to account for (Stanton-Ife 2010: 157–162; Tadros 2011).

One upshot of the varying, sometimes implicit, understanding of harm is surely that anyone propounding an argument based on the harm principle needs to be clear about how they are using the term “harm”. For the term may hide a host of questions that themselves need to be resolved.

6. Foundations of the Harm Principle

Moving on from questions of definition, what are the foundations of the harm principle? Mill, together with Jeremy Bentham and Henry Sidgwick, was one of three giants of nineteenth century utilitarianism. He declared utility to be the ultimate appeal on all ethical questions. Speaking of his harm principle, he also declared:

I forego any advantage which could be derived to my argument from the idea of abstract right, as a thing independent from utility. (Mill On Liberty , ch. 1.11 [1993: 79])

The harm principle sounds rather like the (foregone) stuff of abstract right, so how is utility to give any support to the harm principle? At first sight, the principle of utility looks like a straightforward rival to the harm principle, not its sturdy foundation. Mill held of the principle of utility that

actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness. (Mill Utilitarianism , ch. 2.2 [1993: 7]

This last formulation seems to counsel states to keep their options open in their law-making. “Do what you can to reverse unhappiness”, the advice seems to be, “and do what you can to promote happiness”,

Coerce to prevent harm to others if that will reverse unhappiness; coerce for some other end if that will equally do the trick.

But as we have just seen, coercion to prevent harmless wrongdoing is ruled out by Mill, irrespective of whether such an action is the state’s best bet for reversing unhappiness.

The path to reconciling the harm principle with utilitarianism is often thought to be some form of indirect utilitarianism (Gray 1996; Mulgan 2007: 117–119). The distinction is drawn between a criterion of rightness and a decision procedure (Mulgan 2007: 117–119). Thus, on this indirect view the words “actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness” is not any part of a decision procedure; it is a criterion of rightness. Sometimes, perhaps often, a criterion of rightness will itself feature heavily in a decision procedure. But at other times a decision procedure will not contain the supreme criterion of rightness. Acting always to promote happiness or minimize unhappiness may be self-defeating for various reasons or impossible in the practical circumstances of ignorance that ordinary people face. Over the course of a lifetime and across all the activities of a legal system, more utility will be produced and disutility avoided if the harm principle has the place Mill argues it has, despite the fact that this will repeatedly require the sacrifice of some utility in day to day legal dealings. Much of this, for Mill, relates to the importance of human liberty to happiness (Gray 1996: 136). Demonstrating that one can really derive something as strong as the harm principle (“to govern absolutely”) in this way is a formidable challenge. It is subject, among other things, to scepticism about the workability of the distinction between criterion of rightness and decision procedure (Griffin 1994; Mulgan 2007). John Gray’s book-long attempt to spell out how the harm principle can be underpinned by indirect utilitarianism came to be repudiated by Gray himself (Gray 1996: postscript) . Contemporary consequentialism, however, continues to flourish (Sinnott-Armstrong 2019); and many accounts of the harm principle still see a form of utilitarianism as the best grounding for the harm principle (Sumner 2004, 2011). Moreover, there are non-utilitarian writers making related arguments in support of the harm principle. Les Green for example argues that

There can be reasons to promulgate, and attempt to conform to, an absolute norm even if the reasons that justify having a norm in that field are defeasible. (Green 2013: 191 )

Other accounts of criminalization maintain utilitarianism or a broad consequentialism but conclude the harm principle must be rejected (Petersen 2020a,b).

In recent years, value-pluralist perfectionism has been more influential than utilitarianism as a foundation for the harm principle, whether argued for explicitly or assumed (Raz 1986; Gardner & Shute 2000; Simester & Von Hirsch 2011; Edwards 2014, 2018 [2021]). Joseph Raz’s classic work The Morality of Freedom contains a defence of the harm principle (Raz 1986; cf. Raz 1989—other leading accounts of perfectionism include Hurka 1993 and Sher 1997). Raz claims that

the autonomy-based principle of freedom is best regarded as providing the moral foundation for the harm principle. (Raz 1986: 400)

At first sight this may be surprising, given the openness of perfectionists to moral reasons in general, an openness that might suggest legal moralism is its natural home so far as the limits of law are concerned. Raz asserts that there is “no fundamental principled inhibition on governments acting for any moral reason” (Raz 1989: 1230, emphasis added). Even reasons that are not “neutral”, or not “public” or some such are not in principle excluded by perfectionism (cf. G. Dworkin 2007). Again: “It makes no sense to say of a state of affairs that it is good, but that fact is no reason to do anything about it” (Raz 1989: 1230). By the same token, presumably, one could substitute the word “bad” for “good” in the previous sentence and the proposition would remain accurate. Thus our starting point is that the law should have available to it any moral reason and has the function to promote the quality of life, including the moral quality of life, of those whose lives and actions the government can affect (Raz 1986: 415). This aspect of perfectionism is apt to make some fear the oppressive imposition of styles of life on unwilling individuals (Sher 1997: 106).

However, such alarmism cannot fairly be applied to a perfectionist view such as Raz’s. It is not that anything one might describe, rightly or wrongly, as a moral reason will do. Raz’s concern is limited to states with “autonomy-respecting cultures” and with what it is to live a good life in such societies. The key, as the phrase “autonomy-respecting culture” would suggest, is autonomy. It is a state’s primary duty in the relevant kind of society to promote, protect and foster the autonomy of all citizens . This requires—on Raz’s account—furnishing all with, or preserving for all, an “adequate range of valuable options”. It also requires seeing to it that persons have the appropriate mental and other capacities to be genuine choosers in conditions of freedom and independence (Raz 1986: 372–373).

Given, then, that Raz’s starting point is that there is no principled inhibition to the law deploying any valid moral reason, an account is plainly needed of how that can be reconciled with his support for the harm principle, a large part of the point of which is to rule out certain moral reasons. But before coming to that, it will be helpful to dwell on autonomy a little longer. In section 2.2 above, the familiar distinction between two kinds of liberty, negative and positive, and a similar distinction within liberal feminist writing, were noted. Autonomy-based accounts plainly go beyond negative liberty as the absence of obstacles, barriers or constraints, and embrace the notions of positive liberty, in terms of authorship (or part-authorship) of one’s own life, ability to choose between options, realize purposes within bounds as the case may be. Furthermore, autonomy is often contrasted with heteronomy. As Marilyn Friedman puts it,

heteronomy…involves behaving or living in accord with what is in some important sense not , or other than , one’s own. (Friedman 2005: 155, author’s emphasis)

There are at least two senses, as she continues, of heteronomy, one whose sources “arise within the self, considered in abstract social isolation;” the other whose sources “derive from interpersonal relations and the treatment of a self by others” (Friedman 2005: 155). The first sense is of course important. It relates, for one thing, to the very real problems that can emerge when an agent’s “desires, emotions, passions, inclinations, drives” are not in good order, or where the agent is addicted or in the grip or a compulsion (Friedman 2005: 155). However, for all its importance, Friedman argues that heteronomy in this sense has been the “almost exclusive” focus in mainstream philosophy. The sorts of heteronomy that are by contrast based on interpersonal relations and the way some agents are treated by others, has been largely neglected outside of liberal feminist circles, where “relational autonomy” has received considerable attention (Friedman 2005: 171; cf. Mackenzie & Stoljar 2000; Friedman 2003; Stoljar 2018). This has led to the underplaying of such phenomena of considerable importance to autonomy as male dominance. Interestingly, Friedman explicitly cites Raz’s account of autonomy as a rare exception to the neglect by the mainstream of the social or interpersonal aspects of autonomy ((Friedman 2005: 171).

Thus the criticism sometimes levelled at perfectionist accounts of the good life, government or law, that they imply the oppressive imposition of styles of life, looks unlikely to get much traction on a form of liberal perfectionism, such as Raz’s, with autonomy for all so embedded in it. This, however, does not explain how an account such as Raz’s can explain its adoption of an anti-moralist harm principle in tandem with its in-principle openness to all valid moral reasons. In other words, how can one derive an anti-moralist harm principle from a position that takes any valid moral ground as in principle available to the state and the law?

Raz’s answer focusses on the coercive means at the law’s disposal:

• There are no principled limits to the pursuit of moral goals by the law or the enhancement of the well-being of individuals on the part of the law.
• There are (nevertheless) limits to the means that can legitimately be adopted in promoting the well-being of people and in the pursuit of moral ideals (Raz 1986: 420; George 1993: 161–188).

His autonomy principle “permits and even requires governments to create morally valuable opportunities, and to eliminate repugnant ones ” (Raz 1986: 417). It must, however, respect the harm principle in doing this. It must not use coercion to eliminate repugnant, wrongful opportunities if they are not also harmful in the relevant sense. Coercive interference is a special threat to autonomy. It often violates autonomy in two ways:

First it violates the condition of independence and expresses a relation of domination and an attitude of disrespect for the coerced individual. Second, coercion by criminal penalties is a global and indiscriminate invasion of autonomy. (Raz 1986: 418)

Let us consider both points, beginning with the second. In what sense is the use of coercion a “global and indiscriminate invasion of autonomy”? There is no doubt that sometimes it is. “Depriving a person of opportunities or of the ability to use them is”, as Raz says, “a way of causing him harm”. Again “frustrating [a person’s] pursuit of projects and relationships he has set upon” can cause harm (Raz 1986: 413). Raz alludes to the most common context for the invocation of the harm principle, namely the criminal law. Much behaviour that is criminalized is done under the threat of imprisonment and imprisonment can cut off a very large range of options; or it can reduce them considerably by various forms of disruption or destruction: of family life, deep personal relations, work opportunities, pursuit of valuable outdoor activities, political participation and so on. Richard Lippke distinguishes between the material and the symbolic dimensions of imprisonment. The symbolic dimensions relate to what message the fact of imprisonment conveys to the public and to the prisoner. The material dimensions break down into

• restrictions on freedom of movement,
• low levels of comfort and amenity
• idleness, especially a paucity of opportunities for labour,
• relative isolation from family members, friends, and the larger community,
• significant diminution of autonomy especially insofar as prisons subject their inhabitants to a degree of bureaucratic control which might be categorised as the “subservience of youth” and
• diminishment of privacy (Lippke 2008: 408; cf. Lippke 2007).

Though only one of Lippke’s six material dimensions explicitly mentions autonomy, all have some significant effect on it. Moreover, a similar point applies to the compulsory detention in certain circumstances of mentally disordered persons under the civil law. All of Lippke’s material dimensions can be present there too; and, while the symbolic dimensions of a criminal conviction and punishment are absent, the often-attendant stigma can compromise the autonomy of the detained mentally disordered person in question still further (Stanton-Ife 2012).

Raz, then, is right that coercion by criminal penalties can be “a global and indiscriminate invasion of autonomy”, However, there seem to be two problems with this as a basis for reconciling perfectionism and the harm principle. First, the scope of the justification seems significantly limited; while the criminal penalties can have such an effect, they often will not. For there are many more forms of criminal law coercion in regular use than imprisonment: fines, community service orders and electronic tagging orders are three examples. These methods short of imprisonment can affect options, without necessarily leaving the convicted criminal short of an adequate range of valuable options—in Raz’s terminology; the assault on autonomy will not in most be total or near-total. Take the last-mentioned example: the mandatory wearing of electronic tagging devices. There have been several high-profile cases of sports stars and other celebrities being required to wear such devices. An early example is the English soccer player, Jermaine Pennant. He broke into the first team of a top professional team—the stuff that most English lads’ dreams are made of!—but, soon after, was convicted of a drunk-driving offence. His sentence required him to wear an electronic tag but allowed him to play in top division games with his tag under his sock. [ 12 ] Despite the cloud he was under he certainly did not appear to have an inadequate range of valuable options. The argument at best seems to support the deployment of the harm principle only where lengthy periods of incarceration are deployed or threatened.

Raz does acknowledge that “other forms of coercion may be less severe”. However, he adds that

they all invade autonomy, and they all, at least in this world, do it in a fairly indiscriminate way. That is, there is no practical way of ensuring that the coercion will restrict the victims’ choice of repugnant options but will not interfere with their other choices. (Raz 1986: 418–419)

Leaving the criminal law to one side, there are other legal contexts where Raz intends the harm principle to apply where this argument appears overstated. Consider tax. Of the operation of the harm principle in relation to taxation, Raz writes:

the measures I [support] avoid direct coercion for perfectionist causes. The coercion that they involve can be fully justified on the grounds of protecting and promoting individual autonomy. The simplest example is that of taxation. Taxation is coercive. It is justified in my view only inasmuch as it is useful for the promotion and protection of autonomy for all. (Raz 1989: 1232)

Raz takes taxation to be coercive (indirectly) and argues it should be raised only subject to the terms of the harm principle. But the derivation of a perfectionist harm principle here cannot be based on any “global and indiscriminate” invasion of autonomy, because tax—except in extreme cases where imposed oppressively—does not attack autonomy that hard and, if suitably progressive, should leave the person taxed with her abilities to choose between an adequate range of valuable options intact (Stanton-Ife 2017). Of course, taxation, conceived in this way, does not imply what Raz elsewhere describes as “a coercive imposition of a style of life” (Raz 1986: 161). This seems to reveal that a much more nuanced account of coercion, in its various manifestations, is required, not that coercion “in this world” is always “global and indiscriminate”,

The second problem with Raz’s (correct) observation that coercion by criminal penalties can on occasion be “a global and indiscriminate invasion of autonomy”, is summarized in the question “what follows when it is?” What does follow, surely, is that such coercion must shoulder a large burden of justification. What does not appear to follow is anything to do with what kind of valid moral reason—be it harm-based or wrong-based—should be doing the needed justificatory work. The perfectionist starting point, as we have seen, is that there are no principled limits to the pursuit of moral goals by the law. It is the job of the harm principle to provide them if the harm principle can be successfully derived. Pointing to global and indiscriminate coercion points us to something that requires justification, but not yet to what kind of justification is needed.

As noted above Raz has another argument for liberal perfectionism’s right to claim the harm principle for its own: namely coercion

violates the condition of independence and expresses a relation of domination and an attitude of disrespect for the coerced individual. (Raz 1986: 418)

Might this argument make up the slack? Gerald Dworkin counters that coercing someone based on their wrongful or immoral behaviour need not show disrespect for such a person, “but merely for his conduct” (G. Dworkin 2007: 447). Alternatively, if it be accepted that coercion is disrespectful and expresses a relation of domination, one might again ask why that is not true of someone one coerces out of harming others as much as it is true of coercing someone out of some morally wrongful conduct? In both cases, does the legitimacy of the coercion not turn on the presence of sufficient justification, be that harm-based or wrong-based? Furthermore, if the key argument for the harm principle is really based on respect for independence and opposition to domination, it may seem particularly puzzling to identify how it is really a harm -based argument at all. It is true that independence, is for Raz, part and parcel of his understanding of autonomy (Raz 1986: 377–378); and it is also true that he understands harm in terms of setbacks to autonomy. However, if the argument turns on independence alone, the question arises of whether it does not collapse into—or keep sufficient distance from—certain principles devised in explicit opposition to the harm principle, such as Arthur Ripstein’s “sovereignty principle”? Ripstein argues that conduct should not be legally coerced if it does not wrongfully interfere with the sovereignty of others (Ripstein 2006: 231; for critique, see Tadros 2011).

Raz’s “one simple reason” why “the harm principle is defensible in the light of the principle of autonomy”, viz. that “the means used, coercive interference, violates the autonomy of its victim” (Raz 1986: 418) runs into the difficulty that often coercion does not do that or does not do that very significantly, let alone globally and indiscriminately. Furthermore, where coercion does violate autonomy globally and indiscriminately, it is either wrongful all things considered or justifiable only on the basis of strong valid reasons, which may include (exclusively) wrongness-based reasons for all that is as yet established. Finally, to the extent that the argument turns on independence it is not clear that harm is really doing the work.

As we have seen, several leading legal writers—be they in favour or against—continue to take Mill’s harm principle in original or modified form to be “the dominant theory as to what limits on criminal legislation should be observed by liberal democratic states” (Moore 2017: 461). Katrina Forrester’s post-war history of liberal political thought, however, emphatically puts John Rawls, rather than Mill, at the centre (Forrester 2021); and Piers Norris Turner, in an essay on Mill and modern liberalism, opines that public reason liberalism—whose leading light is Rawls—has become the dominant tradition within liberal thought “over the past three decades” (Turner 2017: 576; cf. Turner and Gaus 2017; Rawls 1999; Quong 2018; Hartley & Watson 2018; Freeman 2020). However, the growing and highly sophisticated literature on public reason among specifically political philosophers has not yet—at least not to the extent that it has in relation to legal moralism and the harm principle—received the sustained study of writers as heavily steeped in the law as Feinberg, Hart or Devlin. Specific legal applications of the public reason approach are, however, already in existence (for example Flanders 2016) and the approach continues to develop.

The approach suggests a different limit of the law: that laws must in some sense be based on public reasons , not reasons harvested from, or based on, comprehensive moral, ethical or religious theories. We saw above that while Devlin, Moore and Hart all supported the decriminalization of gay sex, they did so on very different understandings. Devlin did not rule out circumstances, admittedly extreme ones, in which criminalization might be justifiable in virtue of the intensity and comprehensiveness of the beliefs of ordinary persons in a society. Moore and Hart, by contrast, did implicitly rule out criminalization in such circumstances. Moore because the moral truth of the matter is highly pertinent, indeed decisive —there being nothing morally wrong with gay sex—Hart, despite assuming the moral truth of the matter to be irrelevant— gay sex is not harmful, so the conclusion goes through whether such conduct is wrongful or not. Rawls for his part would no doubt agree with all three on the correctness of decriminalization. But he would seek to exclude, as did Hart and Devlin, any Moore-style or perfectionist appeal to a comprehensive moral understanding to determine the issue. Devlin for his part would have had Moore down as one of the “moral rationalists” whose views he wanted side-lined in favour of the reasonable citizen.

In one way, then, Devlin anticipates a major preoccupation of Rawls. Rawls did not, to be sure, take Devlin’s apparent view that the moral beliefs of a society constitute (its) moral truth. His was not a scepticism about the existence of moral truth, merely a determination to avoid “the zeal to embody the whole truth in politics” (Rawls 1999: 132–133, emphasis added). But both Devlin and Rawls demanded that political power and legal coercion should be justifiable to those subject to them, provided they are reasonable. Thomas Nagel similarly insists a state’s law must do better than just tell those with certain conceptions of the good that they are mistaken, which seems the implication of Moore’s and of the perfectionist view; something more must be offered to them relating, he argues, to the point of view of such persons. According to him we must support:

… the exclusion of certain values from the admissible grounds for the application of coercive state powers. We must agree to refrain from limiting people’s liberty by state action in the name of values that are deeply inadmissible in a certain way from their point of view. (Nagel 1991: 155)

Devlin and Rawls, however, differed in how justification to reasonable citizens should be spelt out and it is here that Rawls develops much of his account. Devlin’s model of the reasonable person was the jury. To the question how the lawmaker is to ascertain the moral judgements of society, Devlin answered,

the moral judgement of society must be something about which any twelve men or women drawn at random might after discussion be expected to be unanimous. (Devlin 1965: 15).

To insist, as both do, that justification must be targeted at the reasonable citizen is to idealize the agreement on which their views were based (Raz 1990 [1994]; Enoch 2013; Billingham & Taylor forthcoming), since neither is saying one should simply seek the acceptance of (all) the citizens as they are, reasonable or not. Insisting on the actual agreement of citizens as they actually are is likely to prove excessively demanding, since too much of the rough must be taken with the smooth, accommodating misanthropic, misogynistic, egotistical, anarchic etc views. Devlin does not idealize a great deal, or at least he does not spell out in any detail how he understands what “reasonable” means, beyond insisting the reasonable jury-member must not hold “irrational” beliefs, such as “homosexuality is the cause of earthquakes” (Devlin 1965: viii). In stating one can notionally pick “twelve men or women at random” he appeared to think that a sample of the population is an adequate pointer to the appropriate morality. Here there is a stark contrast with Rawls. For taking a random sample of the population is to underemphasise moral disagreement, as Rawls would see it. It is not reasonable to think that moral disagreement will disappear in the medium- or even the long-term. And much of this disagreement cannot simply be blamed on the bloody-mindedness of some or on those biased in favour of themselves, their families, or groups. Some of the disagreement is based, rather, on differences over what evidence is appropriate, how much weight should be given to the evidence where it can be agreed upon, how priorities and choices should be made among the vast range of possible values and so on. Rawls describes factors such as these as “the burdens of judgment” (Rawls 1993: 56–57). Hence Rawls idealizes the constituency to whom legal coercion must be justified inter alia as the persons who accept the burdens of judgement and the resulting fact of reasonable pluralism.

The idealization involved in the public reason approach is controversial. There is scepticism in some quarters that there really is any genuine “middle way” between “actual (including implied) agreement and rational justification” (Raz 1990: 46). If too many constraints are built in, the very idea of justification-to a given constituency disappears. The leading natural law theorist John Finnis, writes:

Natural Law theory is nothing other than the account of all the reasons-for-action which people ought to be able to accept, precisely because these are good, valid and sound as reasons. (Finnis 1996: 10–11).

Natural law, theory, is a paradigm “comprehensive” doctrine, however, precisely what is to be avoided in Rawls’ view. If justification-to ends up meaning only giving good reasons to a certain constituency, the idea has all but evaporated.

Another contrast with Devlin’s members of the jury, is that Rawlsian public reason is not simply a matter of getting a sample of the people into a notional room and waiting for them to agree, however that is to be done. Public reason is itself a substantive framework to be shared by everyone, a module, “a complete political conception” whose principles and ideals are to be elaborated and whose arguments are to be deployed in legal argument (Rawls 1999: 138). It has content, in other words, “given by a family of reasonable conceptions of justice” (Rawls 1999: 132). While, as we have just noted, a natural law or Roman Catholic world view cannot itself be adopted under public reason, its conception of the common good or solidarity when “expressed in terms of political values” can be one grounding for a political conception that gives content to public reason (Rawls 1999: 142). For interesting explorations of the relationship between religious comprehensive doctrines and public reason, see, e.g., An-Na’im 2015, Billingham 2021.

Two kinds of issue of special concern to questions of the limits of law concern, first, the scope of public reason and, secondly, its capacity to account convincingly for certain apparently easy cases of legitimate legal coercion. As for the first, Rawls restricts public reason to “constitutional essentials and matters of basic justice” (Rawls 1999: 133). Is it convincing to thus limit public reason? In the eyes of some Rawls is too permissive about important matters of (non-basic) justice and fairness beyond the constitutional essentials and the basic aspects of justice. Jonathan Quong for example objects to Rawls’ openness to perfectionist values so far as “large resources to grand projects in the arts and sciences” are concerned (Quong 2011: 281; Stanton-Ife 2020).

Secondly, how well does the public reason view handle certain obviously legitimate uses of legal coercion, such as the criminalization of murder and rape? While there is no doubt that a Rawlsian public reason module, duly developed, would straightforwardly deliver the bare bones of coercive laws against murder and rape, can this be done fully and satisfactorily without the sort of recourse to comprehensive moral and metaphysical doctrines Rawls wishes to rule out? Take murder as an example. Standardly murder requires proof of at least causation of death with an intention to kill and penalties are among the severest, stretching in various jurisdictions to mandatory life imprisonment or, in some, to capital punishment. But how is “death” in “causation of death” to be understood? It is common to understand it in terms of the cessation of brain stem functioning. But why this understanding? For some putative victim may have irrevocably lost the capacity for consciousness while his or her brain stem continues to function. Is not the wrong of murder truly captured not only when the brain stem ceases functioning, but (possibly before that) when there is such “irrevocable loss of the capacity of consciousness” (Persson 2002; De Grazia 2017: 4.3)? For, one might say, it is the latter that explains what is horrific about murder. Someone who intentionally brings about the permanent cessation of the brain stem functioning of another should not be thought of as a murderer, the argument goes, where the capacity for consciousness of the victim is already known to have been irrevocably lost. Perhaps such conduct ought still to be criminal and labelled as such, only not as murder meriting the mandatory life sentence. The point for present purposes is not to settle the question of what the best understanding of murder should be, or whether the imaginary case should count as murder, only to suggest that these issues are likely to turn, implicitly or explicitly, on comprehensive moral and metaphysical understandings. Public reason will be insufficient-or so the challenge would run (Tadros 2012: 77). Somewhat relatedly is Rawls’ account of abortion—he argues for a “duly qualified right” on the part of a woman “to decide whether or not to end her pregnancy during the first trimester” (Rawls 1993: 243). Whether Rawls is entitled to this conclusion on the basis of public reason has been hotly contested (see the varying perspectives of George 1997 [1999: 209–213]; J. Williams 2015; Kramer 2017: 92–155; Laborde 2018; Chambers 2018; Arrell 2019).

In the Introduction a distinction was drawn between conceptual and evaluative questions about the relationship between law and morality; and it was said that the limits of law is generally taken to be a strictly evaluative question. The term “law” is generally left largely unanalysed, with the emphasis on the law’s coercive means and the extent to which it may legitimately be deployed in the pursuit of moral ends. But will be seen, there are some approaches sceptical of the distinction’s importance to our understanding of the limits of law.

It is uncontroversial to say that a (further) kind of limit of law is that contained in the idea of legality. Lon Fuller famously identified eight “desiderata” for laws. Laws should be general; they should be promulgated to their norm-subjects; and they should be prospective. They should be understandable (perhaps with professional help); the obligations they impose should be susceptible to being jointly fulfilled; and they should not require anything beyond the capacities of their norm-subjects. Laws should be tolerably stable and, finally, they should actually be upheld by the relevant legal officials, rather than ignored, bypassed or replaced by what the officials applying them consider more congenial standards (Fuller 1964; Rundle 2012: Ch. 4; Waldron 2016 [2020]; Sunstein & Vermeule 2020). Kristen Rundle and Jeremy Waldron both argue that the legal positivism of Hart and Raz, as well as a broader instrumentalism that would take in Devlin, [ 13 ] is too casual and accommodating in allowing the designation “legal system” and “law” to systems and norms that fall short on the criteria of legality (Waldron 2008: 14; Rundle 2012: 202). This implies that one cannot simply take the question of the limits of law to be an evaluative question. This would underestimate the extent to which supposedly conceptual questions about the existence of legal systems and laws are themselves evaluative questions. Hence the limits of the law should be seen squarely as both an evaluative and a conceptual question. Against this, while granting that conceptual questions matter and are themselves a large focus in the philosophy of law, one might wonder how far they matter to the specific issue of the limits of the law. If it is accepted for example that Fuller’s desiderata for legality or something close to them are indeed desiderata as well as to some extent conceptual features of the law (as does Raz 1977), does it greatly matter that one might conceive of such features as conceptual to a still greater extent ?

It is widely said by those sympathetic to the instrumentalist understanding of law that law is a “modal kind” rather than a “functional kind”, distinguished by its means (or techniques) rather than its ends; the moral legitimacy of such ends being contingent (Green 1996: 1711). In the words of John Gardner:

[T]o say that law is a modal as opposed to a functional kind is merely to say that law is not distinguished by its functions—by the purposes it is capable of serving. It is distinguished rather by the distinctive means that it provides for serving whatever ends it serves. Law is what Kelsen memorably called a “specific social technique” (Gardner 2012: 195–220, 207; cf. Kelsen 1941; Summers 1971).

The idea of the legal techniques , developed by Robert Summers, from both the positivism of Hans Kelsen and the anti-positivism of Fuller, points however to a line of thought about the limits of the law that is surely due a revival. The debate as it is mostly prosecuted is too dominated by the one “technique” of coercion. While giving coercion its due Summers also emphasized

educational effort, rewards and other incentives, symbolic deployment of legal forms, publicity (favourable or adverse), continuous supervision, public signs and signals, recognized statuses and entities

grants with strings attached. (Summers 1977: 126)

There is also growing awareness at a theoretical level of the importance of expressive values in the law (McAdams 2015). It is something of a loss that the schema developed by Summers and his collaborators, dividing legal techniques into “grievance-remedial”, “penal-corrective”, “administrative-regulatory”, “public-benefit conferral”, “facilitator of private arrangements”, appears to have fallen largely into disuse (Summers et al. 1986). For it allowed various areas of potential legal concern to be examined against a background of various legal techniques, coercive and beyond. Rawls’ question of how far such techniques should be subject to public reason is a further issue that might helpfully be pressed.

The law’s task, put abstractly, is to secure a situation whereby moral goals which, given the current social situation in the country whose law it is, would be unlikely to be achieved without it, and whose achievement by the law is not counter-productive, are realized. (Raz 2003 [2009: 178])

This remark could be taken as the essence of legal moralism. The basic core of legal moralism, as we have seen, is a two-part structure, compounded of a wrong and a set of countervailing and potentially defeating factors, such as liberty and privacy. From within legal moralism there are controversies over how morality should itself be conceived and controversies over how the first part of the structure should be conceived—all moral wrongs or only a subset of them?—and the second part—which countervailing factors, for example, make the list? And what, if anything, unifies them? While Raz’s remark may serve as a pithy statement of legal moralism, Raz himself rejected legal moralism, in favour of a version of the harm principle. Mill’s original harm principle was based on a monistic utilitarianism. There remain adherents of such a utilitarianism, but more influential today is some version of value-pluralism, such as Raz’s liberal perfectionism. The derivation of the harm principle from such pluralistic premises, is as we have seen, a far from straightforward task. Adherents of the harm principle also manifest a strong divide between those who broadly inherit Mill’s principled anti-moralism without his anti-paternalism, such as Hart and Raz and those who inherit both Mill’s principled anti-moralism and his anti-paternalism, such as Feinberg. Into the mix comes Rawlsian public reason. Like one kind of legal moralist, there is an emphasis on steering the justification of legal coercion to the citizens subject to the coercion themselves and from this an aspiration to develop a “module” of political practical reasoning, the public reason of all subjects of a given legal system independent of the comprehensive ethical or religious commitments of some of their number. For the proponent of public reason it is the “zeal to embody the whole truth” that is anathema (Rawls 1999: 132–133). To legal moralists such as Moore, the moral truth, with due sensitivity to the countervailing factors, should rather be the point. The idea that the law has sometimes no limits to hold back the moral truth—which of necessity must lie in the mouth of some (fallible) human—can induce a feeling of vertigo. Perhaps the question ultimately turns on whether there is a genuine alternative.

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• Stanton-Ife, John, “The Limits of Law”, Stanford Encyclopedia of Philosophy (Winter 2021 Edition), Edward N. Zalta (ed.), URL = < https://plato.stanford.edu/archives/win2021/entries/law-limits/ >. [This was the previous entry on this topic in the Stanford Encyclopedia of Philosophy — see the version history .]

civil disobedience | coercion | consequentialism | constitutionalism | criminal law, theories of | death: definition of | feminist philosophy, interventions: liberal feminism | feminist philosophy, topics: perspectives on autonomy | homosexuality | justification, political: public | legal obligation and authority | liberalism | liberty: positive and negative | Mill, John Stuart | Mill, John Stuart: moral and political philosophy | nature of law: legal positivism | paternalism | perfectionism, in moral and political philosophy | pornography: and censorship | public reason | republicanism | Ross, William David | rule of law and procedural fairness | torture

Acknowledgments

I am very grateful to Les Green, Julie Dickson and the SEP editors for various kinds of invaluable help and to Joseph Raz, Liam Murphy, Grant Lamond, Dori Kimel and Alan Bogg for their helpful comments on the original version.

Copyright © 2022 by John Stanton-Ife < john . stanton-ife @ kcl . ac . uk >

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A Dictionary of Law (7 ed.)  

Jonathan law  and elizabeth a. martin.

‘Precision for the professional is combined with a layman's enlightenment’ Times Educational Supplement

This online-only edition has been thoroughly revised and updated in 2013.

This best-selling dictionary is an authoritative and comprehensive source of jargon-free legal information. It contains over 4,200 entries that clearly define the major terms, concepts, processes, and the organization of the English legal system. Entries have been fully updated for this new edition to reflect the very latest legislation, including the substantial new Companies Act that affects company law, and the Constitutional Reform Act that affects the positions of the Lord Chancellor, Lord Chief Justice, and the Law Lords. This edition also includes expanded coverage of criminology and law enforcement.

Feature entries discuss key topics in detail, for example adoption law, the appeals system, statement of terms of employment, and terrorism acts, and there is a useful Writing and Citation Guide that specifically addresses problems and established conventions for writing legal essays and reports. Now providing more information than ever before, this edition features recommended web links for many entries.

Described by leading university lecturers as ‘the best law dictionary’ and ‘excellent for non-law students as well as law undergraduates’, this classic dictionary is an invaluable source of legal reference for professionals, students, and anyone else needing succinct clarification of legal terms. Focusing primarily on English law, it also provides a one-stop source of information for any of the many countries that base their legal system on English law.

Bibliographic Information

Affiliations are at time of print publication..

Jonathan Law, author

Elizabeth A. Martin, author

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Abandonment, absent parent, absent-mindedness, absente reo, absolute assignment, absolute discharge, absolute interest, absolute privilege, absolute right, absolute theory of sovereign immunity, front matter, publishing information, general links for this work, abbreviations, online legal resources.

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date: 21 August 2024

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The Rule of Law: Its Origins and Meanings (A Short Guide for Practitioners)

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I The Demystification of the Law

• Published: November 1982
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This chapter focuses on Bentham's general theory of law. Bentham contemplated and elaborately documented the abuses of the English law of his day, the fantastic prolixity and obscurity of its statutes, the complexity and expense of its court procedure, the artificiality and irrationality of its modes of proof. Bentham was, of course, constantly preoccupied with the abuse of language to cloud the issues in controversy, especially political controversy. But the point which he made about the mystifying force of imposter terms such as ‘the maintenance of order’ is really part of something much wider. For it is just a particular manifestation of a very fundamental and original feature in Bentham's whole austere approach to the philosophy of law and politics.

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• Various Definitions of Law

Definition of law is a rule of conduct developed by the government or society over a certain territory. Law follows certain practices and customs in order to deal with crime, business, social relationships, property, finance, etc. The Law is controlled and enforced by the controlling authority. Let us explore the various definitions of law by different authors in detail.

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There are broadly five definitions of Business Law. Let’s walk through each of them briefly.

1. Natural School  

In the natural school of thought, a court of justice decides all the laws. There are two main parts of this definition. One, to actually understand a certain law, an individual must be aware of its purpose. Two, to comprehend the true nature of law, one must consult the courts and not the legislature.

2. Positivistic Definition of Law

John Austin’s law definition states “Law is the aggregate set of rules set by a man as politically superior, or sovereign to men, as political subjects.” Thus, this definition defines law as a set of rules to be followed by everyone,  regardless of their stature.

Hans Kelsen created the ‘pure theory of law’. Kelsen states that law is a ‘normative science’. In Kelson’s law definition, the law does not seek to describe what must occur, but rather only defines certain rules to abide by.

3. Historical Law Definition

Friedrich Karl von Savigny gave the historical law definition. His law definition states the following theories.

• Law is a matter of unconscious and organic growth.
• The nature of law is not universal. Just like language, it varies with people and age.
• Custom not only precedes legislation but it is superior to it. Law should always conform to the popular consciousness because of customs.
• Law has its source in the common consciousness (Volkgeist) of the people.
• The legislation is the last stage of lawmaking, and, therefore, the lawyer or the jurist is more important than the legislator.

Are you aware of   Principle Sources of Indian Law – Customs

 4. Sociological Definition of Law

Leon Duguit states that law as “essentially and exclusively as a social fact.”

Rudolph Von Ihering’s law definition . – “The form of the guarantee of conditions of life of society, assured by State’s power of  constraint.”

This definition has three important parts. One, the law is a means of social control. Two, the law is to serve the purposes of the society. Three, law due to its nature, is coercive.

Roscoe Pound studied the term law and thus came up with his own law definition. He considered the law to be predominantly a tool of social engineering.

Where conflicting pulls of political philosophy, economic interests, and ethical values constantly struggled for recognition.

Against a background of history, tradition and legal technique. Social wants are satisfied by law acting which is acting as a social institution.

5.Realist Definition of Law

The realist law definition describes the law in terms of judicial processes. Oliver Wendell Holmes stated – “Law is a statement of  the circumstances in which public force will be brought to bear upon through courts.”

According to Benjamin Nathan Cardozo who stated “A principle or rule of conduct so established as to justify a prediction with reasonable certainty that it will be enforced by the courts if its authority is challenged, is a principle or rule of law.”

As the above law definitions state, human behavior in the society is controlled with the help of law. It aids in the cooperation between members of a society. Law also helps to avoid any potential conflict of interest and also helps to resolve them.

now know more about  Secondary Sources of Indian Law

 Solved Question on Law definition

Question: What is the ‘pure theory of law’ and who proposed it? 

Answer: Hans Kelsen was the who proposed the ‘pure theory of law’. The pure theory of law states that the law does not seek to describe what must occur, but rather defines rules that individuals have to abide by. He states that the law is a ‘normative science’.

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Introduction to Law

• Principle Sources of Indian Law – Customs
• Understanding Case Citation
• Secondary Sources of Indian Law
• Principle Sources of Indian Law – Judicial Decisions
• Principle Sources of Law – Mercantile Law
• Principle Sources of Indian Law – Personal Law
• Principle Sources of Indian Law – Statute and Legislation

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Law: meaning, features, sources and types of law.

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Law: Meaning, Features, Sources and Types of Law!

State is sovereign. Sovereignty is its exclusive and most important element. It is the supreme power of the state over all its people and territories. The State exercises its sovereign power through its laws. The Government of the State is basically machinery for making and enforcing laws.

Each law is a formulated will of the state. It is backed by the sovereign power of the State. It is a command of the State (sovereign) backed by its coercive power. Every violation of law is punished by the State. It is through its laws that he State carries out its all functions.

I. Law: Meaning and Definition:

The word ‘Law’ has been derived from the Teutonic word ‘Lag, which means ‘definite’. On this basis Law can be defined as a definite rule of conduct and human relations. It also means a uniform rule of conduct which is applicable equally to all the people of the State. Law prescribes and regulates general conditions of human activity in the state.

1. “Law is the command of the sovereign.” “It is the command of the superior to an inferior and force is the sanction behind Law.” —Austin

2. “A Law is a general rule of external behaviour enforced by a sovereign political authority.” -Holland

In simple words, Law is a definite rule of behaviour which is backed by the sovereign power of the State. It is a general rule of human conduct in society which is made and enforced by the government’ Each Law is a binding and authoritative rule or value or decision. Its every violation is punished by the state.

II. Nature/Features of Law:

1. Law is a general rule of human behaviour in the state. It applies to all people of the state. All are equally subject to the laws of their State. Aliens living in the territory of the State are also bound by the laws of the state.

2. Law is definite and it is the formulated will of the State. It is a rule made and implemented by the state.

3. State always acts through Law. Laws are made and enforced by the government of the State.

4. Law creates binding and authoritative values or decisions or rules for all the people of state.

5. Sovereignty of State is the basis of law and its binding character.

6. Law is backed by the coercive power of the State. Violations of laws are always punished.

7. Punishments are also prescribed by Law.

8. The courts settle all disputes among the people on the basis of law.

9. In each State, there is only one body of Law.

10. Legally, Law is a command of the sovereign. In contemporary times laws are made by the representatives of the people who constitute the legislature of the State. Laws are backed by on public opinion and public needs.

11. The purpose of Law is to provide peace, protection, and security to the people and to ensure conditions for their all round development. Law also provides protection to the rights and freedoms of the people.

12. All disputes among the people are settled by the courts on the basis of an interpretation and application of the laws of the State.

13. Rule of law, equality before law and equal protection of law for all without any discrimination, are recognised as the salient features of a modern legal system and liberal democratic state.

III. Sources of Law:

Custom has been one of the oldest sources of law. In ancient times, social relations gave rise to several usages, traditions and customs. These were used to settle and decide disputes among the people. Customs were practiced habitually and violations of customs were disapproved and punished by the society. Initially social institutions began working on the basis of several accepted customs.

Gradually, the State emerged as the organised political institution of the people having the responsibility to maintain peace, law and order; naturally, it also began acting by making and enforcing rules based upon customs and traditions. In fact, most of the laws had their birth when the State began converting the customs into authoritative and binding rules. Custom has been indeed a rich source of Law.

2. Religion and Morality:

Religion and religious codes appeared naturally in every society when human beings began observing, enjoying and fearing natural forces. These were accepted as superior heavenly forces (Gods and Goddesses) and worshiped.

Religion then started regulating the behaviour of people and began invoking “Godly sanction”, “fear of hell”, and “possible fruits of heaven”, for enforcing the religious codes. It compelled the people to accept and obey religious codes. Several religions came forward to formulate and prescribe definite codes of conduct. The rules of morality also appeared in society. These defined what was good & what was bad, what was right and what was wrong.

The religious and moral codes of a society provided to the State the necessary material for regulating the actions of the people. The State converted several moral and religious rules into its laws. Hence Religion and Morality have also been important sources of Law.

3. Legislation:

Since the emergence of legislatures in 13th century, legislation has emerged as the chief source of Law. Traditionally, the State depended upon customs and the decrees or orders of the King for regulating the behaviour of the people. Later on, the legislature emerged as an organ of the government. It began transforming the customary rules of behaviour into definite and enacted rules of behaviour of the people.

The King, as the sovereign, started giving these his approval. Soon legislation emerged as the chief source of law and the legislature got recognition as the Legal Sovereign i.e. law-making organ of the State. In contemporary times, legislation has come to be the most potent, prolific and direct source of law. It has come to be recognized as the chief means for the formulation of the will of the State into binding rules.

4. Delegated Legislation:

Because of several pressing reasons like paucity of time, lack of expertise and increased demand for law-making, the legislature of a State finds it essential to delegate some of its law-making powers to the executive. The executive then makes laws/rules under this system. It is known as Delegated Legislation. Currently, Delegated Legislation has come to be a big source of Law. However, Delegated Legislation always works under the superior law-making power of the Legislature.

4. Judicial Decisions:

In contemporary times, Judicial Decision has come to be an important source of Law. It is the responsibility of the courts to interpret and apply laws to specific cases. The courts settle the disputes of the people in cases that come before them. The decisions of the courts – the judicial decisions, are binding on the parties to the case. These also get accepted as laws for future cases. But not all judicial decisions are laws.

Only the judicial decisions given by the apex court or the courts which stand recognized as the Courts of Record, (like the Supreme Court and High Courts of India) are recognized and used as laws proper. Lower Courts can settle their cases on the basis of such judicial decisions.

Equity means fairness and sense of justice. It is also a source of Law. For deciding cases, the judges interpret and apply laws to the specific cases. But laws cannot fully fit in each case and these can be silent in some respects. In all such cases, the judges depend on equity and act in accordance with their sense of fair play and justice. Equity is used to provide relief to the aggrieved parties and such decisions perform the function of laying down rules for the future. As such equity acts as a source of law.

6. Scientific Commentaries:

The works of eminent jurists always include scientific commentaries on the Constitution and the laws of each state. These are used by the courts for determining the meaning of law. It helps the courts to interpret and apply laws.

The jurists not only discuss and explain the existing law but also suggest the future possible rules of behaviour. They also highlight the weaknesses of the existing laws as well as the ways to overcome these. Interpretations given by them help the judges to interpret and apply Laws to specific cases.

The works of jurists like, Blackstone, Dicey, Wade, Phillips, Seeravai, B.Pi. Rau, D.D. Basu and others have been always held in high esteem by the judges in India. Scientific commentaries jurists always help the development and evolution of law. Hence these also constitute a source of law. Thus, Law has several sources. However, in contemporary times law-making by the legislature constitutes the chief source of Law.

IV. Types of Law:

Broadly speaking there are two main kinds of Law:

(i) National Law i.e. the body of rules which regulates the actions of the people in society and it is backed by the coercive power of the State.

(ii) International Law i.e. the body of rules which guides and directs the behaviour of the states in international relations. It is backed by their willingness and consent that the states obey rules of International Law. It is a law among nations and is not backed by any coercive power.

National Law is the law by which the people are governed by the state. It stands classified into several kinds:

1. Constitutional Law

2. Ordinary Law:

It is stands classified into two sub types:

2 (a) Private Law

2(b) Public Law:

It stands again sub-divided into two parts:

2(b) (i) General Public Law

2(b) (ii) Administrative Law

1. Constitutional Law:

Constitutional Law is the supreme law of the country. It stands written in the Constitution of the State. The Constitutional Law lays down the organisation, powers, functions and inter-relationship of the three organs of government. It also lays down the relationship between the people and the government as well as the rights, freedoms (fundamental rights) and duties of the citizens. It can be called the Law of the laws in the sense all law-making in the State is done on the basis of powers granted by the Constitutional Law i.e. the Constitution.

2. Statute Law or Ordinary Law:

It is also called the national law or the municipal law. It is made by the government (legislature) and it determines and regulates the conduct and behaviour of the people. It lays down the relations among the people and their associations, organisations, groups and institutions. The legislature makes laws, the executive implements these and judiciary interprets and applies these to specific cases.

Ordinary Law is classified into two parts:

2 (a) Private Law and

2 (b) Public Law.

2 (a) Private Law:

Private Law regulates the relations among individuals. It lays down rules regarding the conduct of the individual in society and his relations with other persons. It guarantees the enjoyment of his rights. It is through this law that the State acts as the arbiter of disputes between any two individuals or their groups.

2 (b) Public Law:

The law which regulates the relations between the individual and the State is Public Law. It is made and enforced by the State on behalf of the community.

Public Law stands sub divided into two categories:

2(b)(i) General Law, and

2(b)(ii) Administrative Law.

2(b) (i) General Law:

It lays down the relations between the private citizens (Non-officials or who are not members of the civil service) and the State. General Public Law applies to all the citizens in their relations with the State.

2(b) (ii) Administrative Law:

It lays down the rules governing the exercise of the constitutional authority which stands delegated by the Constitution of the State to all the organs of government. It also governs the relations between the civil servants and the public and lays down the relations between the civil servants and the State. In some States like France, Administrative Law is administered by Administrative Courts and General Law is administered by ordinary courts. However in countries like India, Britain and the USA the same courts administer both the General Law and Administrative Law.

Clarifying the distinction between Public law and Private law, Holland writes: “In Private Law the parties concerned are private individuals alone and between whom stands the State as an impartial arbiter. In Public Law also the State is present as an arbiter although it is at the same time one of the parties interested.”

Related Articles:

• Rights: Meaning, Features and Types of Rights
• Judicial Review in India: Meaning, Features and Other Details

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• Introduction

The nature of constitutional law

• Characteristics of constitutions
• The distinction between unitary and federal states
• Federal and semifederal states
• Unitary states
• International unions of states
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constitutional law

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• Academia - Constitutional Law
• Cornell University Law School - Legal Information Institute - Constitutional Law
• constitutional law - Student Encyclopedia (Ages 11 and up)
• Table Of Contents

constitutional law , the body of rules, doctrines, and practices that govern the operation of political communities . In modern times the most important political community has been the state . Modern constitutional law is the offspring of nationalism as well as of the idea that the state must protect certain fundamental rights of the individual. As the number of states has multiplied, so have constitution s and with them the body of constitutional law, though sometimes such law originates from sources outside the state. The protection of individual rights, meanwhile, has become the concern of supranational institutions, particularly since the mid-20th century.

Constitutions and constitutional law

In the broadest sense a constitution is a body of rules governing the affairs of an organized group. A parliament, a church congregation, a social club, or a trade union may operate under the terms of a formal written document labeled a constitution. Not all of the rules of the organization are in the constitution; many other rules (e.g., bylaws and customs) also exist. By definition the rules spelled out in the constitution are considered to be basic, in the sense that, until they are modified according to an appropriate procedure, all other rules must conform to them. Thus, the presiding officer of an organization may be obliged to declare a proposal out of order if it is contrary to a provision in the constitution. Implicit in the concept of a constitution is the idea of a “higher law” that takes precedence over all other laws.

Every political community, and thus every state, has a constitution, at least insofar as it operates its important institutions according to some fundamental body of rules. By this conception of the term, the only conceivable alternative to a constitution is a condition of anarchy . Nevertheless, the form a constitution may take varies considerably. Constitutions may be written or unwritten, codified or uncodified, and complex or simple, and they may provide for vastly different patterns of governance. In a constitutional monarchy , for example, the sovereign’s powers are circumscribed by the constitution, whereas in an absolute monarchy the sovereign has unqualified powers.

A political community’s constitution articulates the principles determining the institutions to which the task of governing is entrusted, along with their respective powers. In absolute monarchies, as in the ancient kingdoms of East Asia , the Roman Empire, and France between the 16th and 18th centuries, all sovereign powers were concentrated in one person, the king or emperor, who exercised them directly or through subordinate agencies that acted according to his instructions. In ancient republics, such as Athens and Rome, the constitution provided, as do the constitutions of most modern states, for a distribution of powers among distinct institutions. But whether it concentrates or disperses these powers, a constitution always contains at least the rules that define the structure and operation of the government that runs the community.

A constitution may do more than define the authorities endowed with powers to command. It may also delimit those powers in order to secure against them certain fundamental rights of persons or groups. The idea that there should be limits on the powers that the state may exercise is deeply rooted in Western political philosophy . Well before the advent of Christianity, Greek philosophers thought that, in order to be just, positive law—the law actually enforced in a community—must reflect the principles of a superior, ideal law, which was known as natural law . Similar conceptions were propagated in Rome by Cicero (106–43 bc ) and by the Stoics ( see Stoicism ). Later the Church Father s and the theologians of Scholasticism held that positive law is binding only if it does not conflict with the precepts of divine law. These abstract considerations were received to a certain extent in the fundamental rules of positive legal systems. In Europe during the Middle Ages , for example, the authority of political rulers did not extend to religious matters, which were strictly reserved to the jurisdiction of the church. Their powers also were limited by the rights granted to at least some classes of subjects. Disputes over the extent of such rights were not infrequent and sometimes were settled through solemn legal “pacts” between the contenders , such as Magna Carta (1215). Even the “absolute” monarchs of Europe did not always exercise genuinely absolute power. The king of France in the 17th or 18th century, for example, was unable by himself to alter the fundamental laws of the kingdom or to disestablish the Roman Catholic Church .

Against this background of existing legal limitations on the powers of governments, a decisive turn in the history of Western constitutional law occurred when political philosophers developed a theory of natural law based on the “inalienable rights ” of the individual. The English philosopher John Locke (1632–1704) was an early champion of this doctrine. Others followed Locke, and in the 18th century the view they articulated became the banner of the Enlightenment . These thinkers asserted that every human being is endowed with certain rights—including the rights to worship according to one’s conscience , to express one’s opinions in public, to acquire and possess property, and to be protected against punishment on the basis of retroactive laws and unfair criminal procedures—that governments cannot “take away” because they are not created by governments in the first place. They further assumed that governments should be organized in a way that affords effective protection for individual rights. Thus, it was thought that, as a minimal prerequisite, governmental functions must be divided into legislative, executive , and judicial; executive action must comply with the rules laid down by the legislature; and remedies, administered by an independent judiciary , must be available against illegal executive action.

The doctrine of natural rights was a potent factor in the reshaping of the constitutions of Western countries in the 17th, 18th, and 19th centuries. An early stage of this process was the creation of the English Bill of Rights (1689), a product of England’s Glorious Revolution . All these principles concerning the division of governmental functions and their appropriate relations were incorporated into the constitutional law of England and other Western countries. England also soon changed some of its laws so as to give more-adequate legal force to the newly pronounced individual freedoms.

In the United States the doctrine of natural rights was even more successful. Once the American colonies became independent states (1776), they faced the problem of giving themselves a fresh political organization. They seized the opportunity to spell out in legal documents, which could be amended only through a special procedure, the main principles for distributing governmental functions among distinct state agencies and for protecting the rights of the individual, as the doctrine of natural rights required. The federal Constitution —drafted in 1787 at a Constitutional Convention in Philadelphia to replace the failing Articles of Confederation —and its subsequent Bill of Rights (ratified 1791) did the same at the national level. By formally conferring through these devices a higher status on rules that defined the organization of government and limited its legislative and executive powers, U.S. constitutionalism displayed the essential nature of all constitutional law: the fact that it is “basic” with respect to all other laws of the legal system. This feature made it possible to establish institutional controls over the conformity of legislation with the group of rules considered, within the system, to be of supreme importance.

The American idea that the basic rules that guide the operations of government should be stated in an orderly, comprehensive document quickly became popular. From the end of the 18th century, scores of countries in Europe and elsewhere followed the example of the United States; today nearly all states have constitutional documents describing the fundamental organs of the state, the ways they should operate, and, usually, the rights they must respect and even sometimes the goals they ought to pursue. Not every constitution, however, has been inspired by the individualistic ideals that permeate modern Western constitutional law. The constitutions of the former Soviet Union and other communist countries subordinated individual freedoms to the goal of achieving a classless society . Notwithstanding the great differences between modern constitutions, however, they are similar at least in one respect: they are meant to express the core of the constitutional law governing their respective countries.

Intro.7.4 Individual Rights and the Constitution

Another important area of constitutional law is individual rights that should be protected from government interference. While the Constitution limits and diffuses powers of the federal and state governments to check government power, it also expressly protects certain rights and liberties for individuals from government interference. 1 Footnote See Laurence H. Tribe , American Constitutional Law 10 (3d ed. 2000) . Most of these individual rights are found in the Bill of Rights, including the First Amendment 's prohibition on congressional enactments that abridge the freedom of speech 2 Footnote U.S. Const. amend. I . and the Second Amendment 's right to keep and bear arms. 3 Footnote Id. amend. II . Other rights, however, reside elsewhere in the Constitution, such as Article III’s right to trial by jury in criminal cases 4 Footnote Id. art. III, § 2, cl. 3 . and the protections found in the Civil War Era Amendment s, such as the Fourteenth Amendment 's Due Process and Equal Protection Clauses. 5 Footnote E.g. , id. amend. XIV, § 1 . Many of the individual rights protected by the Constitution relate to criminal procedure, such as the Fourth Amendment 's prohibition against unreasonable governmental searches and seizures; 6 Footnote See, e.g. , id. amend. IV ( The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. ). the Fifth Amendment 's right against self-incrimination; 7 Footnote See, e.g. , id. amend. V ( No person shall . . . be compelled in any criminal case to be a witness against himself . . . . ). and the Sixth Amendment 's right to trial by jury. 8 Footnote See, e.g. , id. amend. VI ( In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . . ). While the text of the Constitution specifically enumerates many individual rights, 9 Footnote See, e.g. , id. amend. V ( [N]or shall private property be taken for public use, without just compensation. ); id. art. I, § 10, cl. 1 ( No State shall . . . pass any . . . Law impairing the Obligation of Contracts . . . . ). other rights are anchored in the Court’s interpretations of broadly worded guarantees in the founding document. 10 Footnote See, e.g. , Obergefell v. Hodges , 135 S. Ct. 2584, 2604–05 (2015) ( [T]he right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. ).

During the twentieth and twenty-first centuries, the Court’s constitutional jurisprudence on individual rights focused on how the Fourteenth Amendment 's Due Process Clause protects certain fundamental constitutional rights found in the Bill of Rights from state government interference. 11 Footnote See generally McDonald v. Chicago , 561 U.S. 742, 764–65 (2010) (noting that, during the 1960s, the Court shed any reluctance to hold that rights guaranteed by the Bill of Rights met the requirements for protection under the Due Process Clause. The Court eventually incorporated almost all of the provisions of the Bill of Rights. Only a handful of the Bill of Rights protections remain unincorporated. ); see, e.g. , Duncan v. Louisiana , 391 U.S. 145, 161–62 (1968) (holding that the Due Process Clause of the Fourteenth Amendment incorporates the Sixth Amendment right to trial by jury and makes it applicable to the states). Although the Civil War Era Amendment s have served as the textual basis for the Court’s decisions protecting these rights from state interference, the Court did not recognize that much of the Bill of Rights was applicable to the states until the mid-twentieth century. 12 Footnote See McDonald , 561 U.S. at 764–65 .

•   Jump to essay-1 See Laurence H. Tribe , American Constitutional Law 10 (3d ed. 2000) .
•   Jump to essay-2 U.S. Const. amend. I .
•   Jump to essay-3 Id. amend. II .
•   Jump to essay-4 Id. art. III, § 2, cl. 3 .
•   Jump to essay-5 E.g. , id. amend. XIV, § 1 .
•   Jump to essay-6 See, e.g. , id. amend. IV ( The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. ).
•   Jump to essay-7 See, e.g. , id. amend. V ( No person shall . . . be compelled in any criminal case to be a witness against himself . . . . ).
•   Jump to essay-8 See, e.g. , id. amend. VI ( In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . . ).
•   Jump to essay-9 See, e.g. , id. amend. V ( [N]or shall private property be taken for public use, without just compensation. ); id. art. I, § 10, cl. 1 ( No State shall . . . pass any . . . Law impairing the Obligation of Contracts . . . . ).
•   Jump to essay-10 See, e.g. , Obergefell v. Hodges , 135 S. Ct. 2584, 2604–05 (2015) ( [T]he right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. ).
•   Jump to essay-11 See generally McDonald v. Chicago , 561 U.S. 742, 764–65 (2010) (noting that, during the 1960s, the Court shed any reluctance to hold that rights guaranteed by the Bill of Rights met the requirements for protection under the Due Process Clause. The Court eventually incorporated almost all of the provisions of the Bill of Rights. Only a handful of the Bill of Rights protections remain unincorporated. ); see, e.g. , Duncan v. Louisiana , 391 U.S. 145, 161–62 (1968) (holding that the Due Process Clause of the Fourteenth Amendment incorporates the Sixth Amendment right to trial by jury and makes it applicable to the states).
•   Jump to essay-12 See McDonald , 561 U.S. at 764–65 .

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Legally Speaking | Rape, outrage, and the legal system: Tracing the evolution of India's rape laws

Rape laws in india have evolved in response to public outcry and civil society movements..

The brutal rape and murder of a postgraduate trainee doctor at Kolkata’s RG Kar Medical College has once again highlighted issues surrounding violence against women, the role of the legal system, and societal attitudes. The history of rape laws in India reveals that public outrage following heinous crimes has often served as a catalyst for legal reforms. This article examines how rape laws in India have evolved in response to public outcry and civil society movements.

The term "rape" was introduced into the Indian legal system by Thomas Babington Macaulay through the Indian Penal Code in 1860. Initially, the definition was limited to non-consensual peno-vaginal intercourse, with no distinction made regarding the nature or gravity of the offence. The first significant amendment to these laws occurred in 1983, sparked by public outrage over what is now known as the Mathura case.

On March 26, 1972, a 14- to 16-year-old Adivasi girl named Mathura was summoned to a police station along with her husband following a kidnapping complaint filed by her brother. After recording statements around 10:30 PM, the police officers sent the male members away but detained Mathura, subsequently gang-raping her. The trial court acquitted the police officers, claiming that Mathura had falsely accused them of rape to protect her virtue. The Bombay high court overturned this verdict, convicting the assailants and noting, "Mere passive or helpless surrender of the body and its resignation to the other's lust induced by threats or fear cannot be equated with the desire or will, nor can furnish an answer by the mere fact that the sexual act was not in opposition to such desire or volition."

However, the Supreme Court later reversed the high court's decision, citing the absence of injuries on Mathura's body and her failure to cry out for help as evidence that she had consented to the intercourse. The Supreme Court’s judgment was widely criticized, leading to an open letter from a group of law professors condemning the Court's prejudiced and misogynistic perspective. Although the Supreme Court’s acquittal stood, the public outcry resulted in legal changes. A rebuttable presumption in favour of the survivor was introduced in Section 114(A) of the Evidence Act, and custodial rape was recognized as a distinct offence, carrying a minimum punishment of seven years. The burden of proof shifted from the survivor to the offender, and provisions for in-camera trials and the protection of the survivor’s identity were also enacted.

Despite these legal changes, data from the National Crime Records Bureau (NCRB) showed that the incidence of rape did not decrease. On the contrary, rape cases increased by 12.1% between 1983 and 1984.

In 1996, the Supreme Court delivered the landmark judgment in State of Punjab v. Gurmit Singh , stating, "If the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars." This judgment established that a survivor’s reliable testimony could be sufficient for conviction without the need for corroboration.

The next major legal reform followed the horrific Nirbhaya case in December 2012, in which a young woman was brutally gang-raped and mutilated while returning home. The woman succumbed to her injuries, and the barbaric nature of the crime triggered widespread protests and demands for changes to rape laws. In response, the government formed the Justice Verma Committee in 2013, which invited suggestions from across the country and drafted recommendations. Most of these recommendations were incorporated into an amendment in 2013. The amendment broadened the definition of rape to include oral sex, penetration by objects, and manipulation of a woman's body to cause penetration. It also introduced a range of sexual offences, including stalking, voyeurism, and sexual harassment. The definition of consent was expanded to require "unequivocal voluntary agreement," and the age of consent was raised to 18 years. A mandatory minimum sentence of seven years for rape was also established.

The public outcry also led to changes in the Juvenile Justice Act, enabling courts to try 16- to 18-year-olds as adults for "heinous crimes." However, despite these legal reforms, rape cases continued to rise, from 24,157 in 2012 to 34,530 in 2014. Violent crimes that shocked society, such as the Unnao rape in 2017 and the Kathua rape in 2018, continued unabated.

In response, further amendments were made to the rape laws in 2018, introducing more stringent punishments. The mandatory minimum sentence for rape was increased to ten years, and the death penalty was introduced for the rape of children under 12 years old.

Despite these harsher laws, the frequency of heinous crimes has not decreased. Whether it be the brutal rape in Hathras in 2020, the gang rape of a Spanish tourist in Jharkhand, the recent RG Kar rape and murder case, or the gang rape and murder of a 14-year-old Dalit girl in Muzaffarpur, Bihar, legal amendments alone have not created a safer environment for women.

Preeti Pratishruti Dash, in her analysis of 1,635 rape judgments from 2013 to 2018, argued that the mandatory minimum sentence, which removed judicial discretion, might be counterproductive. She suggested that judges who previously invoked sexist stereotypes under older laws might be less likely to convict defendants if the conviction carried a mandatory minimum of seven years.

Several judgments reveal how the behaviour of the survivor is closely scrutinized to see if she fits the mould of the "perfect victim." If she slept after the assault, her behaviour is deemed unbecoming of an Indian woman. Her feeble "no" might be interpreted as a "yes," her clothing might be considered sexually provocative, implying she "asked for it," or she might be disbelieved if she failed to promptly report the crime despite being educated, did not sustain injuries, or smiled after the incident.

The reality is that the legal system is deeply entrenched in societal values. Until society learns to respect women and their agency, no legal change will have a lasting impact. The need of the hour is not to mould women into "perfect victims" but to hold perpetrators accountable.

Parijata Bharadwaj, a lawyer and researcher based in New Delhi, co-founded the Jagdalpur Legal Aid Group that offered legal services to adivasis in Chhattisgarh. The views expressed are personal.

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