characteristics of legal essay

Teaching & Learning

Legal writing in focus.

As a lawyer, teacher, and director for the past 14 years of Harvard Law School’s First-Year Legal Research and Writing Program, Susannah Barton Tobin ’04 sees a lot of legal writing, some good, some less good. But she doesn’t entirely agree with the framing of a recent article in The Economist titled, “Why legal writing is so awful,” discussing a study published in the Proceedings of the National Academy of Sciences in which the authors blamed the continuing use of “arcane” and “archaic” legal lingo, in part, on what they perceived as lawyers’ tendency to imitate their predecessors’ poor prose.

Armed with two degrees in classics, a J.D. from Harvard Law, and years of writing and teaching experience, Tobin recently spoke to Harvard Law Today about the study and offered a few tips for new law students, long-time legal practitioners, and aspiring writers of all stripes. Above all, she says, before you open your laptop or pick up your pen, know your audience and what you are trying to achieve.

Harvard Law Today: Is legal writing as bad as The Economist and the study argue, or does it get a bad rap?

Susannah Barton Tobin: Legal writing has had a bad rap for as long as I can remember being involved in it, as a reader, as a student, and as a practitioner. But as a teacher, I think legal writing is writing. There’s good writing, and there’s bad writing, and there’s middling writing. And what we’re trying to do when we teach students how to write is to help them communicate as effectively as possible with the audience they’re trying to reach and with the particular purpose they have in mind.

I agree with the hypothesis that there’s path dependency bound up in legal writing, and particularly in the United States, where our common law tradition makes us want to stick with what has worked. But a simpler reason why some legal writing is bad is the same reason why some non-legal writing is bad: Writing well takes a lot of time and patience, particularly when you’re trying to explain complicated ideas, which lawyers almost always are trying to do.

HLT: Does it matter if legal writing is good writing ?

Tobin: I teach legal writing, so of course I think it matters. It is advantageous for students and young attorneys to be known as good legal writers. Being able to explain what the law says and how it works in a clear and honest way is an essential skill to being a good lawyer and a good citizen in the democracy. From a professional perspective, you advance further, faster if you’re known to be a reliably strong legal writer.

HLT: Where do you see bad legal writing the most?

Tobin: The two categories the study emphasized were contracts and statutory language. And it makes sense why those would be where you would start. They’re both notably long and complicated. A lot of cooks are involved, particularly with legislation, where you have lawmakers and lobbyists and all kinds of feedback and last-minute changes. There’s a great quote from [former U.S. Senator from Wisconsin] Russ Feingold ’79, after he was the only senator to vote against the Patriot Act. When they asked him why he had voted no, he said “Because I read it.” That was a particularly political point. But it speaks to the fact that nobody’s able to sit down and read these legislative documents start to finish. Is Congress trying to create something that people are going to read and be able to understand? I’m not sure that’s really what is happening anymore with legislation. So, is that a feature or a bug? It may be a feature for the people trying to pass the law, but it’s a huge bug for people who are trying to figure out what’s going on.

HLT: Where do you see the best legal writing?

Tobin: Brief writing, particularly at the highest levels of the federal courts, is where you see some of the best writing, partially because the stakes of the disputes are so high and so publicly salient. When my students are looking for good legal writing, I encourage them to read briefs that are coming out of the Office of the Solicitor General, briefs that are coming out of nonprofits and firms that practice regularly before the Supreme Court.

HLT: So, it sounds like a lot of this comes down to, as most writing does, a question of audience?

Tobin: I think that’s exactly right. And that’s why I’m not a big fan of the idea that legal writing is a totally separate animal from any other writing. If you haven’t thought about your audience, then why are you doing the writing? A former editorial writer for The New York Times, Verlyn Klinkenborg, wrote this really helpful book called “Several Short Sentences About Writing.” And he’s got this particularly memorable point about composing a sentence: Once you write a sentence, it’s an orphan that you send out into the world and you can’t accompany it to help explain it, or to say “This is what I meant. You didn’t understand what I meant. But here’s what I meant.” And that’s the conversation I regularly have with students.

HLT: Has the amount of writing that practicing lawyers do changed over time?

Tobin: That’s an empirical question. I had a conversation with a judge I clerked for in the early 2000s, who wondered why opinions were getting so long: “Why can’t we write an Oliver Wendell Holmes, Jr. style short opinion?” Part of it is the common law tradition, in which we’re always accumulating more precedent, more statutory language, new sources, and more context for any dispute that arises. If you want to be thorough, you have to trace that evolution. So perhaps there’s more writing being done. On the other hand, lawyers are writing shorter pieces, maybe less formal contributions, than they did 30 or 40 years ago. What used to be a formal memo might now be a quick email with bullets outlining the most important points. So, I’m not sure that there is more or less writing being done, but the form of it and the speed with which it’s being requested may be changing.

HLT: Does the law still need to use Latin, which is a dead language, other than in the Vatican? Or does it just serve as a barrier to entry for non-Latin speakers?

Tobin: This is a fraught topic for me because I was fortunate to study Latin at the Vatican with the papal Latin secretary, the late Father Reginald Foster. So, I’ll have to fight the premise that Latin is bad as an absolute matter. Good writing often comes from a deep understanding of etymology, which comes in large part from a deep understanding of the Latin origins of English and of Latin rhetoric. We have learned a great deal, for example, from Cicero’s powerfully persuasive writing, including his legal arguments, or from the sharp clarity of Seneca. Of course, Latin is not the only influence on English language and law.

One of my favorite quotes on writing is from George Orwell’s “Politics and the English Language”: ”What is above all needed is to let the meaning choose the word and not the other way about.” One of the reasons writing takes time is that word choice matters. It’s good advice to remind students not to use $10 words when a 50-cent word will do. I don’t want my students going out of their way to use a polysyllabic word to show that they are smart. I know that they are smart. But I think the advice also runs the risk of proving too much, because English is a phenomenally rich language, influenced by Latin and other languages. And some words thought to be synonyms don’t mean exactly the same thing as other words. So sometimes, if you’re looking for a synonym, or you’re trying to be simple and direct, you can run the risk of losing nuance, and you run the risk of losing precision. And — maybe this is going too far — losing the chance for poetry in your writing, if you keep the vocabulary too narrow. And so, I guess I would have a plea for a middle ground, as Orwell suggests — choose the right word for the meaning you want.

But I also think Latin is used less today than it used to be in legal writing. Some Latin terms of art are, from our common law tradition, embedded in the law. Our students need to know what those words mean, so they can appreciate the meaning of a judicial opinion or the way a statute is constructed. But if you’re going to use Latin, you need to explain what it means. You don’t use it just as a bomb that you throw in the middle of a sentence to impress people or confuse readers.

So, should we be using Latin to gatekeep, to make it harder for people to understand? Absolutely not. But should we get rid of it entirely? Also no.

HLT: Do you have any legal writing tips for new students, upper-level students, or even practicing lawyers?

Tobin: My best advice for good writing is to read good writing. And so, even though they have many, many pages of required reading for class, I recommend to my students that they also keep reading narrative nonfiction, like articles in The New Yorker, because it’s like listening to music. If you have good rhythmic sentences in your head, if you hear the way someone puts together varied lengths of sentences and uses transitions well, and explains complicated concepts well, that sound will stay with you. I don’t know that I’ve convinced everybody to carry Ta-Nehisi Coates, Joan Didion, John McPhee, or Toni Morrison (not just her novels but essays) around with them, but I wish they would. I will give a shout-out to Chief Justice John Roberts ‘79 and Justice Elena Kagan ‘86, two of the best practitioners of legal writing. Their sentence-level writing is superb. Bryan Garner’s “ Legal Writing in Plain English ,” Third Edition is a particularly helpful guide. And if you’re having trouble figuring out what’s good legal writing, ask your faculty what they recommend.

HLT: So, improve your writing by reading good writing. Any other tips?

Barton Tobin: Justice Kagan likes to say that good writing is hard. It takes a lot of time. It takes multiple drafts. I think that advice can be frustrating to hear when time is limited. But it’s profoundly true. Certainly, when you’re learning a new genre, your work is not going to come out perfectly the first time. But sadly, or perhaps encouragingly, as a practitioner of legal writing, you’re never going to be done practicing. You’re always going to be working to get better. And so, we do drafts and revisions, and we receive feedback, from peers and from instructors. On the peer editing point, sometimes my students will say to me, “Well, we’re not lawyers yet. So how can we possibly give good advice to our peers about their drafts?” I say, “But you are readers, and you know how to respond to something if it doesn’t make sense. And the fact that it doesn’t make sense, actually isn’t your problem. It’s the writer’s problem. It’s not that you’re confused, but that the writing is confusing.” And so, being able to give constructive feedback, and to feel justified in giving that feedback, I think helps you become a good reader of your own prose and a good editor. You’re ultimately your own editor. At the end of the day, you’re responsible for what you submit. Whatever feedback you get, you’re developing the skill of incorporating multiple suggestions and making judgments about which changes you’re going to accept.

Finally, as a lawyer, and particularly as a litigator, you are a professional writer. And there is pleasure to be taken in crafting prose that is powerful and persuasive. As busy as lawyers are, the benefits of taking care with your words is professionally and psychologically huge. And so, I hope people remember that truth.

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Legal writing is any type of writing within the legal profession that seeks to confer legal information to others that is usually clear, concise, and above all, accurate. In many legal settings, specialized forms of written communication are required. In many others, writing is the medium in which a lawyer must express their analysis of an issue and seek to persuade others on their clients' behalf. Some of the most common forms of legal writings include briefs , memoranda , client letters, and even judicial opinions .

There are generally two types of legal writing.

The first type requires a balanced analysis of a legal problem or issue. Examples of the first type are interoffice memoranda and letters to clients. To be effective in this form of writing, the lawyer must be sensitive to the needs, level of interest and background of the parties to whom it is addressed. A memorandum to a partner in the same firm that details definitions of basic legal concepts would be inefficient and an annoyance. In contrast, their absence from a letter to a client with no legal background could serve to confuse and complicate a simple situation.

The second type of legal writing is persuasive. Examples of this type are appellate briefs and negotiation letters written on a client’s behalf. The lawyer must persuade his or her audience without provoking a hostile response through disrespect or by wasting the recipient's time with unnecessary information. In presenting documents to a court or administrative agency he or she must conform to the required document style.

The drafting of legal documents, such as contracts and wills , is yet another type of legal writing. Guides are available to aid a lawyer in preparing the documents but a unique application of the "form" to the facts of the situation is often required. Poor drafting can lead to unnecessary litigation and otherwise injure the interests of a client.

The legal profession has its own unique system of citation . While it serves to provide the experienced reader with enough information to evaluate and retrieve the cited authorities , it may, at first, seem daunting to the lay reader. Court rules generally specify the citation format required of all memoranda or briefs filed with the court. These rules have not kept up with the changing technology of legal research. Within recent years, online and disk-based law collections have become primary research tools for many lawyers and judges. Because of these changes, there has been growing pressure on those ultimately responsible for citation norms, namely the courts, to establish new rules that no longer presuppose that a publisher's print volume (created over a year after a decision is handed down) is the key reference. Several jurisdictions have responded and many more are sure to follow.

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LII: Basic Legal Citation

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Whether or not you’re a confident writer, legal writing is an important skill for any lawyer, in any practice area. From court documents like motions, discovery documents, briefs, and memoranda, to in-office communication like letters, client emails, internal memos, and more—there’s a whole lot of writing.

Lawyers also need to ensure their writing style, tone, and voice in legal documents and communication are appropriate for a wide range of audiences such as courts, judges, and clients.

Documents filed at court, including briefs and memoranda, involve researching facts and cases, analyzing situations, presenting information, and making an argument. To be a skilled legal writer, lawyers need to be authoritative, credible, and persuasive in their writing. The following legal writing tips will help you improve your writing.

What is legal writing?

Legal writing involves crafting documents related to legal affairs, including briefs, contracts, memorandums, and motions. Its primary aim is persuasion, adapting tone and style according to the audience, whether for a judge with specialized legal language or a client with clear, understandable prose.

Whether you consider yourself a writer or not, legal writing is a necessary and important skill required for all legal professionals. From paralegals to lawyers to secretaries, legal writing is applicable to every legal professional (see, for example, our guide on communication and writing for paralegals ).

Legal writing tips to help you get started

Tip 1: Understand your purpose

What is the first and arguably most important legal writing tip? Understand the purpose of your writing.

Ask yourself: Why are you writing this? What are you hoping to accomplish? What is the outcome you wish to achieve?

Writing a contract may serve to inform, while court documentation may serve to persuade, and client intake documentation may serve to evaluate. The structure, tone, and voice of the document will change depending on the purpose of your legal writing. Understanding that purpose will help you write better.

Tip 2: Understand your audience

Knowing who you’re writing for will help shape the structure and tone of your piece. A judge, another attorney (including an opposing attorney), or client will have different experiences and expectations that inform how they read your work.

When it comes to your audience, keep the following in mind: their role and relationship to you, age, income, economic status, level of education, values, and how much they already know about what you’re writing about. This will help you determine the tone, style, and level of detail to include in your writing.

Tip 3: Do your research

Good legal writing requires researching and incorporating relevant legal precedents into your documents. Before you start writing, thoroughly read any material provided to better understand the legal issues.

Every case and document is different, but keeping some basic rules for legal research in mind will set you up for success. Some helpful legal research tools include FastCase , Legal Information Institute (LII), and CourtListener .

Depending on the piece you’re writing, you may also find secondary sources such as legal dictionaries , law reports, and academic journals helpful in your research. For example, you’ll need both the primary and secondary sources to establish mandatory and persuasive authority .

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Tip 5: Put words on the page

Even with a detailed outline, getting started can be difficult. Writer’s block is a real thing that even the most seasoned legal writers suffer from. But don’t worry about getting it perfect on the first try—that’s what editing and proofing are for.

On your first draft, focus on capturing the right information. Make sure the information is complete and sufficient, and the content flows nicely from one section to the next. Give yourself as many drafts as you need before your deadline. Also, give your writing some room to breathe by taking a break and coming back to it with fresh eyes.

Always remember that you can clean your writing up in the editing stage—you don’t have to get the formatting perfect on your first try.

Tip 6: Be aware of content structure

The best way to structure any piece is by writing from the top down. Start by showing the reader what you’re writing about and why, then provide the arguments to support your case.

Pick your best or most persuasive arguments to focus your writing on, then filter additional, supporting arguments thereafter. Use headings to break up sections and transition from one argument to the next, and start new sections with summary sentences. Where appropriate, it also may be helpful to use lists and bullets to make your writing scannable for the reader.

Tips to help you write better

Tip 7: Be clear

When writing any type of legal document, state your point directly and clearly within the first few sentences to help guide the reader along. Assume the reader has very little time or patience, that they hate to read, and that they’re only going to read the first 200 words. What you say in those 200 words will help them decide to continue reading.

A few other legal writing tips to keep in mind:

Active voice: The subject did something, rather than something was done to them. E.g., “Wendy consulted with her lawyer” is an example of active voice, whereas “The lawyer was consulted by Wendy” is an example of passive voice.
Avoid double-negatives: For example, “This is not, not the best way to write.”
The Oxford comma : When listing items like judges, magistrates, and clients.
Use adverbs and adjectives sparingly: Clearly, this is an exaggerated example.
Consistent tenses: Past tense is most commonly used but sometimes present tense makes the most sense.
Avoid split infinitives : For example, Gently push vs. push gently.
Avoid gender-specific terminology: When in doubt, “they” is universal.
No slang and hyperbole : This is inappropriate and unnecessary.
Be accurate and specific: For example, use a specific date instead of “recently.”

Tip 8: Use jargon only when appropriate

Using jargon, including legal terms, is only appropriate in some contexts. For example, using too much “legalese” with a client who is not well-versed in specific legal matters may end up confusing them and muddling the conversation with unnecessary questions.

While in court documents, it’s completely appropriate (and sometimes even necessary) to use the correct jargon and terminology, since another attorney, judge, or magistrate will be your reader.

When appropriate, strive to use plain language in your legal writing while showing that you understand jargon and can present it in easy-to-understand ways for the reader.

Tip 9: Edit and proofread

The legal writing process doesn’t just stop when the piece is finished. One of the most common mistakes writers make is not budgeting for the editing phase—a thorough editing and review process takes time.

It’s always helpful to have somebody else edit and proofread your work, but you should be able to take care of the basics yourself. Master spelling and grammar basics—lawyers who present documents with spelling and grammatical errors will be seen as less credible and lacking in attention to detail.

Understandably, it can be difficult to catch spelling and grammatical errors immediately. Once you’ve read your document several times, you’ll usually glaze over your own mistakes. Some other helpful legal writing tips for the editing process include reading your writing aloud or reading it backward to help hone your focus and spot errors you’d otherwise miss.

Tips to level up your legal writing

Tip 10: use helpful tools and apps.

No matter what medium or document you’re writing, all good writers should always use spell check at a minimum. Advances in writing technology have also made legal writing much easier. For example, writing apps like Grammarly and Ginger can help you catch grammar, spelling, and other language mistakes.

If you don’t have an editor always available to help proofread your legal writing (which most usually don’t), text-to-speech apps such as Natural Reader can help read your documents out loud. This will help spot errors and awkward passages.

While some of these services are free, many of them will have a paid version to unlock extra features. Consider investing in some of these paid versions if your job requires a lot of writing—it’s worth it to bring your legal writing skills to the next level.

Tip 11: Read other writers’ work

The most common piece of advice writers give to those looking to improve their writing skills is to read—this rings true for any kind of writing. To improve your legal writing skills specifically, find good legal and business writers and read their work. This could be legal documents, but also books , blogs , and articles .

By studying and understanding how others write and structure their pieces, you’ll get a feel for the general format of a legal document. You can then incorporate your unique ideas and writing style. You could also ask colleagues for examples of their work or join communities and forums .

Routinely review legal writing examples

Beyond reviewing others’ work, you can further your legal writing skills by reading writing examples. Below are some legal writing examples to support you:

Closing letter
Engagement letter
Demand letter examples
Non-engagement letter

Utilizing a legal document template is another way to maintain consistency and have a blueprint for your writing.

Legal writing is an ongoing journey

As you embark on this legal content writing journey , remember, no one becomes a great legal writer overnight. Like with any craft, good legal writing is a skill and ongoing process that you build the foundation for and improve on.

The writing process is complex and extends beyond just putting words to paper. Researching, writing, and editing are all important skills for good legal writing. The more you practice writing, the easier it gets and the better your work will be over time.

Use the above writing tips as your starting point. Remember, always be open to and use feedback and constructive criticism.

What makes a good legal writer?

The best legal writers know their audience and craft their words for the reader. Sometimes, the reader is a judge; other times, it’s your client. Understanding your audience and striving to write in their preferred style will serve one well in their career.

What are the three steps of legal writing?

In its most basic form, legal writing involves three steps: drafting, rewriting, and revising. Though, it’s common to add additional editing and revision stages depending on the document and writer’s experience/preferred working style.

We published this blog post in April 2021. Last updated: April 24, 2024 .

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Legal Writing Basics

Read on for ideas about how to approach your Legal Research and Writing class , some must-know legal writing basics , and more advanced content on using different legal research options and on the specifics of constructing legal arguments .

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The Nature of Law

Lawyers are typically interested in the question: What is the law on a particular issue? This is always a local question and answers to it are bound to differ according to the specific jurisdiction in which they are asked. In contrast, philosophy of law is interested in the general question: What is Law? This general question about the nature of law presupposes that law is a unique social-political phenomenon, with more or less universal characteristics that can be discerned through philosophical analysis. General jurisprudence, as this philosophical inquiry about the nature of law is called, is meant to be universal. It assumes that law possesses certain features, and it possesses them by its very nature, or essence, as law, whenever and wherever it happens to exist. However, even if there are such universal characteristics of law—which is controversial, as we will later discuss—the reasons for a philosophical interest in elucidating them remain to be explained. First, there is the sheer intellectual interest in understanding such a complex social phenomenon which is, after all, one of the most intricate aspects of human culture. Law, however, is also a normative social practice: it purports to guide human behavior, giving rise to reasons for action. An attempt to explain this normative, reason-giving aspect of law is one of the main challenges of general jurisprudence. These two sources of interest in the nature of law are closely linked. Law is not the only normative domain in our culture; morality, religion, social conventions, etiquette, and so on, also guide human conduct in many ways which are similar to law. Therefore, part of what is involved in the understanding of the nature of law consists in an explanation of how law differs from these similar normative domains, how it interacts with them, and whether its intelligibility depends on other normative orders, like morality or social conventions.

Contemporary legal theories define these two main interests in the nature of law in the following terms. First, we need to understand the general conditions that would render any putative norm legally valid. Is it, for example, just a matter of the source of the norm, such as its enactment by a particular political institution, or is it also a matter of the norm’s content? This is the general question about the conditions of legal validity. Second, there is the interest in the normative aspect of law. This philosophical interest is twofold: A complete philosophical account of the normativity of law comprises both an explanatory and a justificatory task. The explanatory task consists of an attempt to explain how legal norms can give rise to reasons for action, and what kinds of reasons are involved. The task of justification concerns the question of whether people ought to comply—morally speaking or all things considered—with law’s demands. In other words, it is the attempt to explain the moral legitimacy of law and the subjects’ reasons for complying with it. A theory about the nature of law, as opposed to critical theories of law, concentrates on the first of these two questions. It purports to explain what the normativity of law actually consists in. Some contemporary legal philosophers, however, doubt that these two aspects of the normativity of law can be separated. (We will return to this later.)

Thus, elucidating the conditions of legal validity and explaining the normativity of law form the two main subjects of any general theory about the nature of law. In section 1, we will explain some of the main debates about these two issues. In section 2, we will discuss some of the methodological debates about the nature of general jurisprudence. In the course of the last few centuries, two main rival philosophical traditions have emerged about the nature of legality. The older one, dating back to late mediaeval Christian scholarship, is called the natural law tradition. Since the early 19th century, natural law theories have been fiercely challenged by the legal positivism tradition promulgated by such scholars as Jeremy Bentham and John Austin . The philosophical origins of legal positivism are much earlier, though, probably in the political philosophy of Thomas Hobbes . The main controversy between these two traditions concerns the conditions of legal validity. Basically, legal positivism asserts, and natural law denies, that the conditions of legal validity are purely a matter of social facts. In contrast to positivism, natural law claims that the conditions of legal validity are not exhausted by social facts; the moral content of the putative norms also bears on their legal validity. As the famous dictum, commonly attributed to Saint Augustine, has it: lex iniusta non est lex (unjust law is not law). (Augustine, De Libero Arbitrio, I, 5; see also Aquinas, Summa Theologica, I-II, Q. 96, Art. 4.)

1.1 The Conditions of Legal Validity

1.2 the normativity of law, 2.1.1 conceptual analysis views, 2.1.2 investigating law itself, 2.1.3 the metanormative inquiry view, 2.1.4 the prescriptive view, 2.1.5 constructive interpretation of legal practice, 2.2.1 preliminaries, 2.2.2 is legal theory evaluative in the relevant sense, other internet resources, related entries, 1. general jurisprudence.

The main insight of legal positivism, that the conditions of legal validity are determined by social facts, involves two separate claims which have been labeled The Social Thesis and The Separation Thesis. The Social Thesis asserts that law is, profoundly, a social phenomenon, and that the conditions of legal validity consist of social—that is, non-normative—facts. Early legal positivists followed Hobbes’ insight that the law is, essentially, an instrument of political sovereignty, and they maintained that the basic source of legal validity resides in the facts constituting political sovereignty. Law, they thought, is basically the command of the sovereign. Later legal positivists have modified this view, maintaining that social rules, and not the facts about sovereignty, constitute the grounds of law. Most contemporary legal positivists share the view that there are rules of recognition, namely, social rules or conventions which determine certain facts or events that provide the ways for the creation, modification, and annulment of legal standards. These facts, such as an act of legislation or a judicial decision, are the sources of law conventionally identified as such in each and every modern legal system. One way of understanding the legal positivist position here is to see it as a form of reduction: legal positivism maintains, essentially, that legal validity is reducible to facts of a non-normative type, that is, facts about people’s conduct, beliefs and attitudes.

Natural lawyers deny this insight, insisting that a putative norm cannot become legally valid unless it passes a certain threshold of morality. Positive law must conform in its content to some basic precepts of natural law, that is, universal morality, in order to become law in the first place. In other words, natural lawyers maintain that the moral content or merit of norms, and not just their social origins, also form part of the conditions of legal validity. And again, it is possible to view this position as a non-reductive conception of law, maintaining that legal validity cannot be reduced to non-normative facts. See the entry on natural law theories .

The Separation Thesis is an important negative implication of the Social Thesis, maintaining that there is a conceptual separation between law and morality, that is, between what the law is, and what the law ought to be. The Separation Thesis, however, has often been overstated. It is sometimes thought that natural law asserts, and legal positivism denies, that the law is, by necessity, morally good or that the law must have some minimal moral content. The Social Thesis certainly does not entail the falsehood of the assumption that there is something necessarily good in the law. Legal positivism can accept the claim that law is, by its very nature or its essential functions in society, something good that deserves our moral appreciation. Nor is legal positivism forced to deny the plausible claim that wherever law exists, it would have to have a great many prescriptions which coincide with morality. There is probably a considerable overlap, and perhaps necessarily so, between the actual content of law and morality. Once again, the Separation Thesis, properly understood, pertains only to the conditions of legal validity. It asserts that the conditions of legal validity do not depend on the moral merits of the norms in question. What the law is cannot depend on what it ought to be in the relevant circumstances.

Many contemporary legal positivists would not subscribe to this formulation of the Separation Thesis. A contemporary school of thought, called inclusive legal positivism , endorses the Social Thesis, namely, that the basic conditions of legal validity derive from social facts, such as social rules or conventions which happen to prevail in a given community. But, inclusive legal positivists maintain, legal validity is sometimes a matter of the moral content of the norms, depending on the particular conventions that happen to prevail in any given community. The social conventions on the basis of which we identify the law may, but need not, contain reference to moral content as a condition of legality (see, for example, Waluchow 1994).

The natural law tradition has undergone a considerable refinement in the 20th century, mainly because its classical, popular version faced an obvious objection about its core insight: it is just difficult to maintain that morally bad law is not law. The idea that law must pass, as it were, a kind of moral filter in order to count as law strikes most jurists as incompatible with the legal world as we know it. Therefore, contemporary natural lawyers have suggested different and more subtle interpretations of the main tenets of natural law. For example, John Finnis (1980) views natural law (in its Thomist version) not as a constraint on the legal validity of positive laws, but mainly as an elucidation of an ideal of law in its fullest, or highest sense, concentrating on the ways in which law necessarily promotes the common good. As we have noted earlier, however, it is not clear that such a view about the necessary moral content of law is at odds with the main tenets of legal positivism. To the extent that there is a debate here, it is a metaphysical one about what is essential or necessary to law, and about whether the essential features of law must be elucidated in teleological terms or not. Legal positivists do not tend to seek deep teleological accounts of law, along the lines articulated by Finnis, but whether they need to deny such metaphysical projects is far from clear.

The idea that the conditions of legal validity are at least partly a matter of the moral content or merits of norms is articulated in a sophisticated manner by Ronald Dworkin’s legal theory. Dworkin is not a classical natural lawyer, however, and he does not maintain that morally acceptable content is a precondition of a norm’s legality. His core idea is that the very distinction between facts and values in the legal domain, between what the law is and what it ought to be, is much more blurred than legal positivism would have it: Determining what the law is in particular cases inevitably depends on moral-political considerations about what it ought to be. Evaluative judgments, about the content law ought to have or what it ought to prescribe, partly determine what the law actually is.

Dworkin’s legal theory is not based on a general repudiation of the classical fact-value distinction, as much as it is based on a certain conception of legal reasoning. This conception went through two main stages. In the 1970s Dworkin (1977) argued that the falsehood of legal positivism resides in the fact that it is incapable of accounting for the important role that legal principles play in the law. Legal positivism envisaged, Dworkin claimed, that the law consists of rules only. However, this is a serious mistake, since in addition to rules, law is partly determined by legal principles. The distinction between rules and principles is a logical one. Rules, Dworkin maintained, apply in an “all or nothing fashion.” If the rule applies to the circumstances, it determines a particular legal outcome. If it does not apply, it is simply irrelevant to the outcome. On the other hand, principles do not determine an outcome even if they clearly apply to the pertinent circumstances. Principles provide judges with a legal reason to decide the case one way or the other, and hence they only have a dimension of weight. That is, the reasons provided by the principle may be relatively strong, or weak, but they are never “absolute.” Such reasons, by themselves, cannot determine an outcome, as rules do.

The most interesting, and from a positivist perspective, most problematic, aspect of legal principles, however, consists in their moral dimension. According to Dworkin’s theory, unlike legal rules, which may or may not have something to do with morality, principles are essentially moral in their content. It is, in fact, partly a moral consideration that determines whether a legal principle exists or not. Why is that? Because a legal principle exists, according to Dworkin, if the principle follows from the best moral and political interpretation of past judicial and legislative decisions in the relevant domain. In other words, legal principles occupy an intermediary space between legal rules and moral principles. Legal rules are posited by recognized institutions and their validity derives from their enacted source. Moral principles are what they are due to their content, and their validity is purely content dependent. Legal principles, on the other hand, gain their validity from a combination of source-based and content-based considerations. As Dworkin put it in the most general terms: “According to law as integrity, propositions of law are true if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community’s legal practice” (Dworkin 1986, 225). The validity of a legal principle then, derives, from a combination of facts and moral considerations. The facts concern the past legal decisions which have taken place in the relevant domain, and the considerations of morals and politics concern the ways in which those past decisions can best be accounted for by the correct moral principles.

Needless to say, if such an account of legal principles is correct, the Separation Thesis can no longer be maintained. But many legal philosophers doubt that there are legal principles of the kind Dworkin envisaged. There is an alternative, more natural way to account for the distinction between rules and principles in the law: the relevant difference concerns the level of generality, or vagueness, of the norm-act prescribed by the pertinent legal norm. Legal norms can be more or less general, or vague, in their definition of the norm-act prescribed by the rule, and the more general or vague they are, the more they tend to have those quasi-logical features Dworkin attributes to principles. More importantly, notice that if you make the legal validity of norms, such as legal principles, depend on moral argument, you allow for the possibility that an entire legal community may get its laws wrong. Any moral mistake in the reasoning leading to a legal principle might render the conclusion about the principle unsound, and the principle itself thus not legally valid. Since there is nothing to prevent judges and other legal actors from making moral mistakes, there is nothing to prevent a result whereby an entire legal community, and for a long time, gets its laws wrong (Marmor 2011, chapter 4). Perhaps Dworkin would have not found this problematic, but others might; the idea that an entire legal community can be systematically mistaken about its own laws might strike legal theorists as deeply problematic.

In the 1980s Dworkin radicalized his views about these issues, striving to ground his anti-positivist legal theory on a general theory of interpretation, and emphasizing law’s profound interpretative nature. Despite the fact that Dworkin’s interpretative theory of law is extremely sophisticated and complex, the essence of his argument from interpretation can be summarized in a rather simple way. The main argument consists of two main premises. The first thesis maintains that determining what the law requires in each and every particular case necessarily involves interpretative reasoning. Any statement of the form “According to the law in $S$, $x$ has a right/duty etc., to $y$” is a conclusion of some interpretation or other. Now, according to the second premise, interpretation always involves evaluative considerations. More precisely, perhaps, interpretation is neither purely a matter of determining facts, nor is it a matter of evaluative judgment per se , but an inseparable mixture of both. Clearly enough, one who accepts both these theses must conclude that the Separation Thesis is fundamentally flawed. If Dworkin is correct about both theses, it surely follows that determining what the law requires always involves evaluative considerations.

Notably, the first premise of Dworkin’s general argument is highly contestable. Some legal philosophers have argued that legal reasoning is not as thoroughly interpretative as Dworkin assumes. Interpretation, according to this view, long maintained by H.L.A. Hart (1961, chapter 7), is an exception to the standard understanding of language and communication, rendered necessary only when the law is, for some reason, unclear. However, in most standard instances, the law can simply be understood, and applied, without the mediation of interpretation (Marmor 2011, chapter 6).

Dworkin’s legal theory shares certain insights with the inclusive version of legal positivism. Note, however, that although both Dworkin and inclusive legal positivists share the view that morality and legal validity are closely related, they differ on the grounds of this relationship. Dworkin maintains that the dependence of legal validity on moral considerations is an essential feature of law that derives from law’s profoundly interpretative nature. Inclusive positivism, on the other hand, maintains that such a dependence of legal validity on moral considerations is a contingent matter; it does not derive from the nature of law or of legal reasoning as such. Inclusive positivists accept the Social Thesis; they claim that moral considerations affect legal validity only in those cases where this is dictated by the social rules or conventions which happen to prevail in a given legal system. The relevance of morality is determined in any given legal system by the contingent content of that society’s conventions. As opposed to both these views, traditional, or as it is now called, exclusive legal positivism maintains that a norm’s legal validity is never dependent on its moral content. Legal validity, according to this view, is entirely dependent on the conventionally recognized factual sources of law.

It may be worth noting that those legal theories maintaining that legal validity partly depends on moral considerations must also share a certain view about the nature of morality. Namely, they must hold an objective stance with respect to the nature of moral values. Otherwise, if moral values are not objective and legality depends on morality, legality would also be rendered subjective, posing serious problems for the question of how to identify what the law is. Some legal theories, however, do insist on the subjectivity of moral judgements, thus embracing the skeptical conclusions that follow about the nature of law. According to these skeptical theories, law is, indeed, profoundly dependent on morality, but, as these theorists assume that morality is entirely subjective, it only demonstrates how the law is also profoundly subjective, always up for grabs, so to speak. This skeptical approach, fashionable in so-called post-modernist literature, crucially depends on a subjectivist theory of values, which is rarely articulated in this literature in any sophisticated way.

Throughout human history the law has been known as a coercive institution, enforcing its practical demands on its subjects by means of threats and violence. This conspicuous feature of law made it very tempting for some philosophers to assume that the normativity of law resides in its coercive aspect. Even within the legal positivist tradition, however, the coercive aspect of the law has given rise to fierce controversies. Early legal positivists, such as Bentham and Austin, maintained that coercion is an essential feature of law, distinguishing it from other normative domains. Legal positivists in the 20th century have tended to deny this, claiming that coercion is neither essential to law, nor, actually, pivotal to the fulfillment of its functions in society. Before we unpack the various issues involved in this controversy, it might be worth noting that the debate about law’s coercive aspect is one good example of debates in jurisprudence that focus on what might be an essential or a necessary feature of law, regardless of its particular manifestations in this or that legal system. How to understand these claims about the essence of law, and the question of whether these claims are about metaphysics or something else, perhaps about morality, will be discussed in section 2.1.

Returning to law’s coercive aspect, there are several issues entangled here, and we should carefully separate them. John Austin famously maintained that each and every legal norm, as such, must comprise a threat backed by sanction. This involves at least two separate claims: In one sense, it can be understood as a thesis about the concept of law, maintaining that what we call “law” can only be those norms which are backed by sanctions of the political sovereign. In a second, though not less problematic sense, the intimate connection between the law and the threat of sanctions is a thesis about the normativity of law. It is a reductionist thesis about law’s normative character, maintaining that the normativity of law consists in the subjects’ ability to predict the chances of incurring punishment or evil and their presumed desire to avoid it.

In addition to this particular controversy, there is the further question, concerning the relative importance of sanctions for the ability of law to fulfill its social functions. Hans Kelsen, for instance, maintained that the monopolization of violence in society, and the law’s ability to impose its demands by violent means, is the most important of law’s functions in society. Twentieth century legal positivists, like H.L.A. Hart and Joseph Raz, deny this, maintaining that the coercive aspect of law is much more marginal than their predecessors assumed. Once again, the controversy here is actually twofold: is coercion essential to what the law does? And even if it is not deemed essential, how important it is, compared with the other functions law fulfills in our lives?

Austin’s reductionist account of the normativity of law, maintaining that the normative aspect of law simply consists in the subjects’ desire to avoid sanctions, was discussed extensively, and fiercely criticized, by H.L.A. Hart. Hart’s fundamental objection to Austin’s reductionist account of law’s normativity is, on his own account, “that the predictive interpretation obscures the fact that, where rules exist, deviations from them are not merely grounds for prediction that hostile reactions will follow…. but are also deemed to be a reason or justification for such reaction and for applying the sanctions” (Hart 1961, 82). This emphasis on the reason-giving function of rules is surely correct, but perhaps not enough. Supporters of the predictive account could claim that it only begs the further question of why people should regard the rules of law as reasons or justifications for actions. If it is, for example, only because the law happens to be an efficient sanction-provider, then the predictive model of the normativity of law may turn out to be correct after all. In other words, Hart’s fundamental objection to the predictive model is actually a result of his vision about the main functions of law in society, holding, contra Austin and Kelsen, that those functions are not exclusively related to the ability of the law to impose sanctions.

It is arguable, however, that law’s functions in our culture are more closely related to its coercive aspect than Hart seems to have assumed. Contemporary use of “game theory” in the law tends to show that the rationale of a great variety of legal arrangements can be best explained by the function of law in solving problems of opportunism, like the so called Prisoner’s Dilemma situations. In these cases, the law’s main role is, indeed, one of providing coercive incentives for the mutual benefit of all parties concerned. Be this as it may, we should probably refrain from endorsing Austin’s or Kelsen’s position that law’s only function in society is essentially tied to its coercive aspects. Solving recurrent and multiple coordination problems, setting standards for desirable behavior, proclaiming symbolic expressions of communal values, resolving disputes about facts, and such, are important functions which the law serves in our society, and those have very little to do with law’s coercive aspect and its sanction-imposing functions.

The extent to which law can actually guide behavior by providing its subjects with reasons for action has been questioned by a very influential group of legal scholars in the first half of the 20 th century, called the Legal Realism school. American Legal Realists claimed that our ability to predict the outcomes of legal cases on the basis of the rules of law is rather limited. In the more difficult cases which tend to be adjudicated in the appellate courts, legal rules, by themselves, are radically indeterminate as to the outcome of the cases. The Legal Realists thought that lawyers who are interested in the predictive question of what the courts will actually decide in difficult cases need to engage in sociological and psychological research, striving to develop theoretical tools that would enable us to predict legal outcomes. Thus Legal Realism was mainly an attempt to introduce the social sciences into the domain of jurisprudence for predictive purposes. To what extent this scientific project succeeded is a matter of controversy. Be this as it may, Legal Realism paid very little attention to the question of the normativity of law, that is, to the question of how the law does guide behavior in those cases in which it seems to be determinate enough.

A much more promising approach to the normativity of law is found in Joseph Raz’s theory of authority, which also shows how such a theory about the normativity of law entails important conclusions with respect to the conditions of legal validity (Raz 1994). The basic insight of Raz’s argument is that the law is an authoritative social institution. The law, Raz claims, is a de facto authority. However, it is also essential to law that it must be held to claim legitimate authority. Any particular legal system may fail, of course, in its fulfillment of this claim. But law is the kind of institution which necessarily claims to be a legitimate authority.

According to Raz, the essential role of authorities in our practical reasoning is to mediate between the putative subjects of the authority and the right reasons which apply to them in the relevant circumstances. An authority is legitimate if and only if it helps its putative subjects to comply better with the right reasons relevant to their actions—i.e., if they are more likely to act in compliance with these reasons by following the authoritative resolution than they would be if they tried to figure out and act on the reasons directly (without the mediating resolution). For example, there may be many reasons that bear on the question of how fast to drive on a particular road—the amount of pedestrian traffic, impending turns in the road, etc.—but drivers may comply better with the balance of those reasons by following the legal speed limit than if they tried to figure out all the trade-offs in the moment. The legitimacy of the legal speed limit would thus be derived from the way in which it aids people in acting in better compliance with the balance of the right reasons.

Now, it follows that for something to be able to claim legitimate authority, it must be of the kind of thing capable of claiming it, namely, capable of fulfilling such a mediating role. What kinds of things can claim legitimate authority? There are at least two such features necessary for authority-capacity: First, for something to be able to claim legitimate authority, it must be the case that its directives are identifiable as authoritative directives, without the necessity of relying on those same reasons which the authoritative directive replaces. If this condition is not met, namely, if it is impossible to identify the authoritative directive as such without relying on those same reasons the authority was meant to rely on, then the authority could not fulfill its essential, mediating role. In short, it could not make the practical difference it is there to make. Note that this argument does not concern the efficacy of authorities. The point is not that unless authoritative directives can be recognized as such, authorities could not function effectively. The argument is based on the rationale of authorities within our practical reasoning. Authorities are there to make a practical difference, and they could not make such a difference unless the authority’s directive can be recognized as such without recourse to the reasons it is there to decide upon. In other words, it is pointless to have an authoritative directive if, in order to discover what the directive is, you have to engage in the same reasoning that reliance on the directive is supposed to replace. Secondly, for something to be able to claim legitimate authority, it must be capable of forming an opinion on how its subjects ought to behave, distinct from the subjects’ own reasoning about their reasons for action; authority requires some authorship.

Raz’s conception of legal authority provides very strong support for exclusive legal positivism because it requires that the law, qua an authoritative resolution, be identifiable on its own terms, that is, without having to rely on those same considerations that the law is there to resolve. Therefore a norm is legally valid (i.e., authoritative) only if its validity does not derive from moral or other evaluative considerations that the law is intended to replace. Notably, Raz’s theory challenges both Dworkin’s anti-positivist legal theory, and the inclusive version of legal positivism. This challenge, and the controversies it gave rise to, form one of the main topics discussed in contemporary general jurisprudence.

Explaining the rationale of legal authority, however, is not the only component of a theory about the normativity of law. If we hold the legal positivist thesis that law is essentially founded on social conventions, another important question arises here: how can a conventional practice give rise to reasons for action and, in particular, to obligations? Some legal philosophers claimed that conventional rules cannot, by themselves, give rise to obligations. As Leslie Green observed, Hart’s “view that the fundamental rules [of recognition] are ‘mere conventions’ continues to sit uneasily with any notion of obligation,” and this Green finds troubling, because the rules of recognition point to the “sources that judges are legally bound to apply” (Green 1996, 1697). The debate here is partly about the conventional nature of the rules of recognition, and partly about the ways in which conventions can figure in our reasons for action. According to one influential theory, inspired by David Lewis (1969) conventional rules emerge as solutions to large-scale and recurrent coordination problems. If the rules of recognition are, indeed, of such a coordination kind, it is relatively easy to explain how they may give rise to obligations. Coordination conventions would be obligatory if the norm subjects have an obligation to solve the coordination problem which initially gave rise to the emergence of the relevant convention. It is doubtful, however, that the conventions at the foundations of law are of a coordinative kind. In certain respects the law may be more like a structured game, or an artistic genre, which are actually constituted by social conventions. Such constitutive conventions are not explicable as solutions to some pre-existing recurrent coordination problem. The conventional rules constituting the game of chess, for example, are not there to solve a coordination problem between potential players. Antecedent to the game of chess, there was no particular coordination problem to solve. The conventional rules of chess constitute the game itself as a kind of social activity people would find worthwhile engaging in. The constitutive conventions partly constitute the values inherent in the emergent social practice. Such values, however, are only there for those who care to see them. Constitutive conventions, by themselves, cannot ground an obligation to engage in the practice they constitute.

From a moral point of view, the rules of recognition, by themselves, cannot be regarded as sources of obligation to follow the law. Whether judges, or anybody else, should or should not respect the rules of recognition of a legal system, is ultimately a moral issue, that can only be resolved by moral arguments (concerning the age old issue of political obligation). And this is more generally so: the existence of a social practice, in itself, does not provide anyone with an obligation to engage in the practice. The rules of recognition only define what the practice is, and they can say nothing on the question of whether one should or should not engage in it. But of course, once one does engage in the practice, playing the role of judge or some other legal official, as it were, there are legal obligations defined by the rules of the game. In other words, there is nothing special in the idea of a legal obligation to follow the rules of recognition. The referee in a soccer game is equally obliged to follow the rules of his game, and the fact that the game is conventional poses no difficulty from this, let us say, “internal-player’s” perspective. But again, the constitutive rules of soccer cannot settle for anyone the question of whether they should play soccer or not. Similarly, the rules of recognition cannot settle for the judge, or anyone else for that matter, whether they should play by the rules of law, or not. They only tell us what the law is . Unlike chess or soccer, however, the law may well be a kind of game that people have an obligation to play, as it were. But if there is such an obligation, it must emerge from external, moral, considerations, that is, from a general moral obligation to obey the law. The complex question of whether there is such a general obligation to obey the law, and whether it depends on certain features of the relevant legal system, is extensively discussed in the literature on political obligation. A complete theory about the normativity of law must encompass these moral issues as well. (See the entries on political obligation and legal obligation .)

More recently, however, a number of philosophers have started to question the idea that there is something unique to the normativity of law, inviting us to see how laws might affect our reasons for action in ways that are not closely tied to the nature of law (Greenberg 2014, Enoch 2011, Marmor 2016 [2018]). Some of these views (e.g., Enoch, Marmor) purport to show that there are different ways in which the existence of various norms bear on people’s reasons for action, present in law as elsewhere, without denying that the law often makes a difference; these views only deny that there is something unique to the way law changes its subjects’ reasons for action, compared with other types normative demands. Others challenge law’s normativity from an opposite angle (Greenberg 2014, Hershovitz 2015), arguing that the only aspect of law that is of normative significance is the moral difference that it makes to people’s reasons for action.

In the last two decades of the 20th century, new challenges to general jurisprudence, and particularly to legal positivism, have taken an interesting methodological turn. This methodological turn gained momentum with the publication of Dworkin’s Law’s Empire (1986), arguing that not only the law, as a social practice, is a profoundly interpretative (and thus partly, but necessarily, evaluative in nature), but that any theory about the nature of law is also interpretative in a similar way, and thus, equally evaluative. Many of those who do not necessarily share Dworkin’s views about the interpretative nature of legal practice, or the specifics of his theory of interpretation, have joined him in this methodological skepticism about the traditional aims of general jurisprudence, that is, about the possibility of developing a theory about that nature of law that would have general application and remain morally neutral. These, and other resultant methodological challenges to traditional general jurisprudence are taken up in the next section.

It would be fair to say, however, that in the last few years, many legal philosophers have expressed a growing frustration with these traditional debates about the nature of law, calling for legal philosophy to move beyond the Hart-Dworkin debates and explore new avenues of research. Some of these new critics are content to abandon the project altogether, declaring the death of general jurisprudence (Hershovitz 2015). Others, however, are engaged in exploring new challenges. One emerging area of research concerns the artifact nature of law, aiming to learn something about the nature of law from the fact that law seems to be an artifact, created and sustained by humans for particular purposes. (See, for example, Burazin et al. eds., 2018.) Others explore connections between law’s features as artifact and fictionalism, suggesting that their underlying logic and metaphysics share a great deal in common (Marmor 2018). Another new and potentially fruitful area of research focuses on applications of philosophy of language to law, brining new developments in philosophy of language, particularly in pragmatics, to bear on questions of legal interpretation and understanding of legal content (Asgeirsson forthcoming, Asgeirsson 2015, Marmor 2014). This linguistic direction is not uncontroversial, however; some legal philosophers express skepticism about the idea that legal content is determined by linguistic factors (Greenberg 2011) and there is an ongoing debate about these issues. Finally, there also seems to be a growing interest in recent developments in metaphysics that might bear on a theory about the nature of law, and even debates about meta-metaphysics are beginning to emerge in the context of general jurisprudence, purporting to show that ways in which we think about the tasks of metaphysical inquiry may bear on ways we think about the law (Rosen 2010). For example, if the main task of metaphysics is to determine what really exists in the world, irrespective of what we think about it or ways in which we represent the world, metaphysics may not have much to say about the nature of law or, perhaps, it may indicate that only a scientific approach to jurisprudence can yield metaphysically respectable results. If, however, the task of metaphysical inquiry is also to figure out what is more foundational than something else, giving us a hierarchical structure of the world, where some things ground others, then metaphysics might be a very fruitful framework to work with in trying to elucidate the foundations of legality and legal phenomena more generally. This potential metaphysical interest in jurisprudence is at its infancy presently, and time will tell if this new approach gets us interesting results.

2. The Methodology of Jurisprudence

When it comes to the methodology of jurisprudence, we find two main issues. While one is not directly concerned with normativity, the second is. The first asks about the aims and success criteria for philosophical theories about the nature of law:

What is the target that first-order theories of law aim to capture, and when do they succeed in doing so?

The second asks about the role of evaluation in jurisprudential methodology:

Are first-order legal theories inherently or necessarily evaluative or can they be purely descriptive?

Each of these questions will be discussed in turn.

2.1 The Target of a Theory of Law

The first important class of methodological questions in jurisprudence concerns the target of first-order theories of law—that is, what phenomenon such theories aim to provide an account of. In taking a stand on what the proper target of a first-order legal theory is, one incurs a number of other methodological commitments. These include adopting a view about when such theories are successful, taking a stand on what sort of data such theories aim to systematize and explain, and determining what sorts of arguments are legitimately used in deciding between one of these theories and its competitors.

There are five main families of views on this question. One view takes jurisprudence to be a form of conceptual analysis, which is to say that theories of law aim to provide an account of some concept of law. This approach is often associated with Hart’s influential work, The Concept of Law (1994). A second sort of view adopts a more skeptical stance towards the methodology of conceptual analysis and takes theories of law to be in the business of offering a reductive explanation of law itself, not some concept of it. Another recent view sees general jurisprudence as just another branch of metanormative inquiry, which renders it continuous with other philosophical fields like metaethics. Fourth, the prescriptive view takes it that the aim of a theory of law is to specify the notion of law that it would be most desirable for us to adopt. A fifth kind of view, associated with Dworkin’s work, takes it that legal theories are in the business of offering a constructive interpretation of legal practice. In what follows, each of these five views, as well as some of the main issues they face, will be discussed in more depth.

On conceptual analysis views, theories of law aim to capture the concept of law and they succeed to the extent that they provide a coherent account of the relevant data about that concept and related concepts. In particular, the data to be systematized are taken to be people’s intuitions involving some shared concept of law (or cognate concepts like legal validity or legal obligation). In their simplest form, such intuitions can be thought of as judgments about whether the relevant concept does or does not apply to particular cases. Accordingly, on this sort of view, a theory of law aims to provide an account of the conditions under which the target concept of law (or one of its cognates) applies.

What’s more, such a theory can be arrived at by employing the method of conceptual analysis, undertaken from the proverbial armchair. The idea is that the theorist starts with a putative set of criteria for the correct application of the target concept, and then she tests this account against her intuitions about that concept. If the account entails that the concept applies to particular cases that it intuitively does not apply to, then this provides reason to reject or revise the account in question. By contrast, if the account entails that the target concept applies to certain cases and this is the intuitively correct result, this tends to provide affirmative support for the account. The account successfully captures the target concept to the extent that it yields intuitively correct results about particular cases, and does so in an explanatorily satisfying way (as opposed to an ad hoc manner). (For a more in depth discussion of the methodology of conceptual analysis as applied to the concept of law, see Shapiro 2011, 16–22.)

Jurisprudence has been influenced by two main ways of understanding the relevant intuitions (or data) that theories of law aim to systematize. This, in turn, is due to the fact that one might understand concepts themselves, and our intuitions about them, in two different ways. Accordingly, we find two main varieties of the conceptual analysis view of methodology.

The first understanding of concepts takes concept possession to be mainly a matter of linguistic competence. That is, to possess the concept of law is to know when the word “law” as used in its juridical sense (not the scientific sense) applies. Thus, intuitions about the concept of law are to be understood as linguistic intuitions about how to use the word “law.” On the present view, then, conceptual analysis is a mode of linguistic analysis. This sort of view was famously discussed in chapters 1 and 2 of Dworkin’s Law’s Empire (Dworkin 1986, 32, 43–46). It arguably traces back to the kind of ordinary language philosophy associated with J.L. Austin and Gilbert Ryle (Marmor 2013, 210–212).

However, this understanding of concept possession has drawbacks. Perhaps the biggest source of concern in the present context is that this sort of view fuels a version of Dworkin’s “semantic sting” argument (Dworkin 1986, 43–46). The argument may be summarized as follows. Suppose legal theories aim to capture the concept of law and that concept possession just is a matter of knowing when the word “law” applies. If so, the argument runs, legal theories cannot explain disagreement about the grounds of law, that is, about the conditions of legal validity. After all, if legal theories are in this way semantic in nature, then disagreement about what the grounds of law are must boil down to disagreement about when the word “law” applies—at least assuming the parties to the disagreement are not merely talking past one another. But now a dilemma arises. Either legal practitioners possess the same concept of law or they do not. If they do possess the same concept, then it seems they cannot fail to agree about what it takes for a norm to count as law. After all, they all know when the word expressing their shared concept of law applies. But this is implausible, since legal practice in fact is rife with disagreement about what the grounds of law are (and thus, what counts as law or as legal). On the other hand, if legal practitioners do not share the same concept of law, then their disagreement about what the grounds of law are must just be due to the fact that they are talking past one another. But that, too, is implausible. Legal practice, as Dworkin puts it, is not “a grotesque joke” (Dworkin 1986, 44). Accordingly, there must be something wrong with construing legal theories as mere semantic accounts of when the word “law” applies.

If, in light of this argument, we are to abandon the idea that first-order legal theories are semantic theories, there are two obvious ways to proceed. First, one might simply abandon the idea that legal theories are exercises in conceptual analysis. This was Dworkin’s preferred response, though, as we’ll see, one can reject conceptual analysis without adopting Dworkin’s own favored methodology. (More on that in sub-section 2.1.2.) Second, if one wants to still say that legal theories are in the business of analyzing the concept of law, then the obvious response to the semantic sting argument is to deny that concept possession just is a matter of knowing how the word “law” in its juridical sense is to be applied. This suggests a second, richer form of conceptual analysis that legal theorists might be engaged in.

The basic idea behind the richer view is to take it that concept possession, rather than merely being a matter of knowing when words apply, involves something meatier: namely, the possession of a wide range of substantive beliefs or intuitions about the concept, its essential features and its proper application. The assumption is that the intuitions one is disposed to have in virtue of possessing the concept of law will be fertile enough to constitute a particular substantive conception of what the law is and how it functions. The aim of a theory of law, then, would be to systematize these pre-theoretic judgments about the concept of law in order to provide an account of some substantive conception of law. (This sort of richer view of concept possession is discussed, e.g., in Raz 2004, 4–7; Stravopoulos 2012, 78–79; Shapiro 2011, 16–22. It is perhaps also the sort of view presupposed by Hart.) On this view, legal disagreement remains possible because while practitioners might all be using the same concept of law, the richness of the concept allows that they nonetheless might not possess the concept determinately enough, or understand its application conditions thoroughly enough, to guarantee consensus on theoretical questions about what the grounds of law actually are.

However, also this richer understanding of concept possession, and the meatier picture of conceptual analysis it gives rise to, has been widely criticized (Marmor 2013, 215–217; Raz 2004, 10; Leiter 2007, 177–79). One question that immediately arises is which concept of law, exactly, constitutes the proper target of a theory of law. Is it the concept of law that is possessed by the legal practitioners in a particular jurisdiction? Or is it some universally shared concept of law? Worries loom either way. If a legal theory only aims to capture the concept of law employed in a particular jurisdiction, then that would render the theory parochial and it might lose its interest for those who are not concerned with that particular jurisdiction. On the other hand, one might doubt that there really is a universally shared concept of law that is employed by practitioners in all jurisdictions—or if there is one, it is doubtful that it is anything more than the sort of thin concept that one possesses in virtue of knowing what the word “law” in its juridical sense means.

A deeper worry about all forms of conceptual analysis is the question of why we should care about anybody’s concept of law in the first place (Marmor 2013, 216–217; Leiter 2007, 177–79). After all, as philosophers, it seems that it is the nature of law itself that we care about understanding (Raz 2004, 7, 10). Granted, there are interesting sociological questions to be asked about what various groups of people believe to be the case about how law functions. But it is not obvious that there is anything distinctively philosophical about such questions. Insofar as philosophers (qua philosophers) are interested in what people believe about a given concept, this would be because understanding people’s beliefs about the concept is a route to understanding that which it is a concept of (Raz 2004, 4, 10). Accordingly, one might think that what theories of law aim to capture is not anybody’s concept of law in particular, but rather the nature of law itself. (See also the entry on concepts , section 5.2.)

A possible response to this objection is to assert that since law is a social phenomenon and is in part constituted by practitioners’ own understanding of the practice they are engaged in, collecting evidence about the concept of law possessed by legal practitioners is an especially useful way to investigate law itself (Stravopoulos 2012, 79). Still, one might wonder whether this route to investigating the nature of law itself would be the most effective strategy to employ, given its indirectness. Why limit ourselves to asking questions about concepts if law can be studied directly?

A very different response would be to adopt a Platonist account of concepts, according to which they are not mental representations at all, but rather abstract objects akin to the objects of mathematical inquiry. The concept of law, then, would be the abstract object one must grasp in order to think about law. Accordingly, it is this abstract object— the concept of law—that philosophers care about and aim to investigate using the method of conceptual analysis (cf. Bealer 1998). Nonetheless, this view of concepts faces familiar objections. For one, an account is needed of how we can have access to the concept of law, conceived of as an independently existing abstract object. Moreover, even if we can access it, a puzzle arises about how different people who all determinately grasp the concept of law could possibly end up disagreeing about its nature (Sarch 2010, 468–73). Finally, while it might be plausible that a priori disciplines like mathematics and logic aim to investigate abstract objects (see the entry on platonism in the philosophy of mathematics ), it is not clear that the investigation of a social phenomenon like the law, which is heavily dependent on human beliefs, attitudes and behavior, can be understood analogously. While mathematicians might be investigating the nature of abstract objects like numbers or sets, it seems more doubtful that legal philosophers are investigating the abstract object law .

Given the above doubts about conceptual analysis, several views have been suggested according to which first-order legal theories are primarily in the business of describing and explaining the nature of law itself , not any concept of it. Reductionist and naturalistic views fall into this category. (As noted below, such views need not completely eschew the armchair methods just sketched, but to the extent these methods remain viable, a very different explanation of their defensibility would have to be given.)

In particular, reductionist views take it that illuminating the nature of law is a matter of explaining what the law is, and how it operates, in terms of more foundational facts. As a result, first-order theories of law succeed to the extent that they accomplish this in an explanatorily powerful way (Marmor 2013). The goal of a first-order theory, on this sort of view, is to offer a metaphysical reduction of law: that is, to show that the phenomenon of law is actually constituted by, and fully reducible to, some other more foundational type of phenomenon (in the way that chemistry could in principle be reduced to particle physics). Thus construed, positivism, for example, would seek to explain the nature of law by reducing facts about what the law is, how it functions and what it requires, to more foundational social facts—e.g., about people’s behavior, beliefs and dispositions. By providing a reduction of this kind, a theory like positivism purports to illuminate the phenomenon of law itself by breaking it down into its constituents and explaining how they together make up the complex social practice that is the law. (For more on metaphysical reduction in general, see Schroeder 2007, 61–83; see also the entry on scientific reduction .)

One well-known type of reductionist view is naturalized jurisprudence. Brian Leiter has been the most prominent defender of this position (Leiter 2007). Like other reductionist views, naturalized jurisprudence takes the aim of legal theories to be to explain the nature of law itself (not anybody’s concept of it). But what is characteristic of naturalized jurisprudence is that it also insists that a purely empirical methodology should be used in doing so (Leiter 2007, 180–81, 183–99). (See also the entry on naturalism in legal philosophy .)

Naturalists might part company with adherents of other reductionist views over whether or not the armchair methods of philosophers, and related appeals to intuitions, thought experiments and the like, are misguided. The naturalist is likely to reject this mode of inquiry, while other reductionists may be more amenable to using it. A reductionist could in principle defend this sort of inquiry, for instance, by claiming that our particular-case intuitions involve a concept that we have acquired from experience with legal practice, and so such intuitions can be one useful source of information about the nature of law itself. Moreover, if legal practice (as a social phenomenon) is partially constituted by practitioners’ own beliefs and attitudes towards the practice they are engaged in, then evidence about legal practitioners’ concept of law might prove especially relevant as evidence about the law itself (Stravopoulos 2012, 79).

By contrast, naturalists tend not to endorse the armchair method of testing theories of law against intuition, given their aim of making “philosophical theorizing continuous with and dependent upon scientific theorizing” (Leiter 2007, 35). Leiter argues that our intuitions about law are too unreliable to be afforded much epistemic weight (as others have argued with respect to intuitions in other areas of philosophy) (Leiter 2007, 180, 184; cf. Cummins 1998). On Leiter’s view, philosophers generally should aim to unpack the “concepts that have been vindicated by their role in successful explanation and prediction of empirical phenomena” (Leiter 2007, 184). Thus, he suggests a methodology that “tak[es] seriously the…social scientific literature on law…to see what concept of law figures in the most powerful explanatory and predictive models of legal phenomena such as judicial behavior” (Leiter 2007, 184). This methodological view, however, raises questions about why the legal philosopher should study only judicial behavior and not something else. More generally, the naturalist owes an account of what features of law are most in need of explication and why.

A different sort of concern that arises for reductionist views (and perhaps naturalistic views as well) is that it may pose particular problems for positivism. Specifically, if law is a normative phenomenon that gives rise to legal obligations, one might worry that it is not possible to reduce legal facts (i.e., facts about what our legal obligations are) to a set of purely non-normative facts, e.g., social ones. One might think that this would impermissibly transgress the familiar (though not uncontroversial) is-ought gap. (For a discussion of this sort of worry about positivism, see Shapiro 2011, 47–49.)

In response, one route that positivists who want to be reductionists could take is to maintain that legal facts really are descriptive in nature, not genuinely normative. In particular, such positivists might claim that facts about what legal obligations we have simply are descriptive facts about what the law holds that we ought to do—not normative facts about what we really ought to do (Shapiro 2011, 188; see also Hart 1994, 110).

Another recent methodological view developed by Plunkett and Shapiro (2017) takes general jurisprudence to be just another branch of metanormative inquiry. The latter kind of inquiry as a general matter aims to explain how normative thought, talk, and entities (if any) fit into reality. Metaethics is another branch of metanormative inquiry, which focuses on how ethical thought, talk and entities fit into reality. Thus, on the present view the subject of inquiry in general jurisprudence would be legal thought, talk and entities (if any), and the aim of the field would be to explain how such thought and talk about law—as well as legal structures and legal properties (if any)—are best accounted for in one’s general philosophical view of reality. On this view, jurisprudential inquiry would be continuous with—and methodologically quite similar—to the work done in other areas of normative inquiry, especially ethics and aesthetics.

One question that arises for this position, however, concerns the extent to which this is a distinct methodology from those discussed above. If the focus of one’s metanormative inquiry is legal thought and talk, we seem to get rather close to the conceptual analysis picture of how jurisprudence should proceed. On the other hand, if the focus of inquiry emphasizes how legal entities or properties fit into reality in general, then the view ends up seeming rather close to the naturalist position that the topic of jurisprudential inquiry is phenomenon of law itself. Nonetheless, perhaps a particular attraction of the metanormative view is that it can show how both the conceptual analysis picture and the naturalist picture capture distinct pieces of the bigger enterprise of the task that jurisprudence is engaged in. Thus, rather than purporting to replace the other methodologies discussed above, the metanormative view, if sound, would do away with there being a privileged starting point for jurisprudential inquiry (such as metaphysics of legal content, the semantic analysis of legal statements, or the nature of legal obligations).

A different sort of approach to methodology in jurisprudence takes it that the proper aim of a legal theory is to specify a substantive conception of law that it would be especially desirable for people to adopt. Moreover, even if the conception of law that this inquiry ends up supporting departs radically from our pre-theoretical understanding of law, then the resulting theory would recommend abandoning that prior understanding of law. Accordingly, if jurisprudence is chiefly a prescriptive endeavor, then theories of law might end up being radically revisionist in nature (though, of course, not necessarily).

As explained in the next sub-section, Dworkin’s methodological view incorporates some prescriptive elements. But one prominent advocate of an exclusively prescriptive project is Neil MacCormick (MacCormick 1985; see also Campbell 1996; Murphy 2001; Postema 1989; Schauer 1996; Waldron 2001). MacCormick argues that there are compelling normative arguments in favor of adopting a positivist conception of law. In particular, he suggests that values like autonomy and freedom of conscience demand that the law not regulate with a heavy hand “the sphere of aspirational values, of duties of self-respect and of duties of love,” a sphere that concerns “questing for the good beyond duty, or for the right lines of development of a self, or for the proper regard to bestow upon one’s family, friends or neighbors” (MacCormick 1985, 35–36). Values like autonomy and freedom of conscience, McCormack thinks, support the claim that at least within this sphere of conduct, it is desirable to keep the question of what the law requires entirely separate from the question of what morality requires. (However, MacCormick also allows that the law properly can regulate the sphere of “duties of justice,” as these duties are in some sense weightier (MacCormick 1985, 35).) Accordingly, at least in some spheres of conduct, the question of what the law is ought to be held distinct from the question of what morality requires. Thus, MacCormick seems to be offering a normative argument for a claim that has often been associated with positivism, namely a version of the Separation Thesis. (Though, as seen earlier, it is not clear that all positivists must be committed to a strong version of this thesis.)

While the question of what conception of law it is most desirable that people adopt is surely a significant one, it is important to note that the prescriptive view of methodology in jurisprudence is not genuinely in competition with either the conceptual analysis view or the reductionist approach. After all, it might turn out, for example, that positivism provides the best account of our concept of law, or perhaps is the best reductive account of the phenomenon of law itself, even though there are compelling normative arguments for changing the practice or adopting a new concept of it that, say, comports with natural law theory. Accordingly, accounts of the concept of law, or reductive theories of law, are not necessarily inconsistent with prescriptive accounts of what legal theory it would be most desirable from the moral point of view to adopt.

A final methodological view, which deserves separate treatment both because of its influence and sophistication, is Dworkin’s (Dworkin 1986). This view takes it that (i) the target of a first-order theory of law is existing legal practice and (ii) these theories succeed to the extent that they offer a defensible constructive interpretation (in Dworkin’s sense) of that practice. According to the constructive interpretation view, the aim of a first-order theory of law is not to analyze any concept or to reduce legal facts to other more foundational facts. Rather, the aim of a legal theory is to reconstruct the behavior and self-understandings of participants in legal practice and, moreover, to do so in a way that casts this practice in its best moral light. As a result, a theory of law is more successful the better it both fits with the data about how legal practitioners understand the practice they are engaged in, while also normatively justifying that practice (Dworkin 1986; Perry 1995, 129–31; see also the entry on legal interpretivism ).

One concern about the constructive interpretation view of methodology in jurisprudence is that it may not be in genuine competition with either the conceptual analysis or reductive views of methodology. After all, one sort of project is to explain what law actually is and how it operates (perhaps according to our concept of it). But it is a very different sort of project to explain how we should conceive of the law in order for legal practice to be normatively justified. It seems possible that our account of what law actually is tells us one thing (e.g., that certain features of it are essential and others not), while our account of what law should be like in order for the practice to be as justified as possible tells us to think of law in a rather different way (e.g., as having different essential features). Accordingly, some have argued that the constructive interpretation view engages with the other methodological views mentioned above only if it denies what they assert: viz., that legal theories attempt to provide an explanation (perhaps of some particular kind—e.g., reductive) of the actual nature of law (or perhaps our concept of it).

One way that adherents of the constructive interpretation view might deny what certain other methodological views assert is by denying that it is even possible to give a reductive explanation of law. (For discussion, see Marmor 2013, 218.) The thought would be to claim that law is a normative practice, and normative facts cannot be reduced to purely non-normative facts without losing something essential. In response, the reductionist might either deny that legal facts are genuinely normative (in which case the sought-after reduction would be unproblematic), or she might assert that any successful reduction will have to reduce legal facts to a set of facts that includes normative facts (in which case a version of natural law theory might appear attractive).

2.2 Is Legal Theory Inherently Evaluative?

A second widely-discussed question about jurisprudential methodology is whether first-order legal theories are inherently evaluative. The above views about the proper target of first-order theories of law have different implications about this second question. But before explaining that, we must first get the relevant question more clearly in view.

To begin with, one might wonder where the interest in the question of whether legal theory is inherently evaluative comes from. Some of this interest likely traces to the skeptical worry that legal theories purporting to be purely descriptive in fact are pushing some hidden ideological or political agenda. (For more on this, see, e.g., John Gardner’s introduction to Dickson 2004.) A second source of the interest in this question may be the suspicion (or hope) that if legal theory proves to be inherently evaluative, that would be an independent reason to adopt some version of natural law theory. Whether this is so remains doubtful, however, since meta-questions about the methodology of legal theory prima facie seem to be independent of questions in first-order legal theory like what the determinants of the content of law are. What is more, legal scholars might be drawn to the present issue through consideration of Dworkin’s argument that there is a very tight connection between the evaluative nature of theorizing about the law and the evaluative nature of law itself, rendering the content of law inevitably dependent, at least in part, on moral-political considerations. Regardless of the motivations for engaging in the debate about whether legal theory is inherently evaluative, however, this debate has taken on independent significance and has been a fruitful source of insight in its own right.

To avoid confusion, the question we are concerned with here must be clarified in several ways. For there are a number of uncontroversial ways in which legal theory plausibly is or might be evaluative, and these do not go to the heart of the methodological debates in jurisprudence.

First, there are several trivial ways in which legal theory, like theories about any topic , plausibly cannot be entirely value-free. In particular, it seems that one cannot engage in the business of theorizing about law without evaluating the extent to which various theories are coherent, simple, clear, elegant, comprehensive, and so on (Dickson 2004, 32–33). Granted this means that legal theorists must engage in a form of evaluation. But there is nothing special about legal theory in this regard. After all, these meta-theoretical virtues are criteria for the success of theories about any subject matter.

A second seemingly uncontroversial way in which legal theory is evaluative is that one cannot begin to develop a theory of law without determining which of its central features are to be accounted for (Dickson 2001, 38–45). John Finnis, for example, argues that one cannot do first-order legal theory without taking a stand on what the important features of law are that adequate theories must explain (e.g., the law’s claim to authority). However, this seems to require evaluation (Finnis 1980, 9–15).

Nonetheless, it is not likely to be especially controversial that legal theory is evaluative in this way. To see why, distinguish between (a) thick evaluative claims , which predicate some kind of moral goodness, or perhaps all-things-considered value, of an item and (b) thin evaluative claims , which do not. (This distinction roughly tracks Julie Dickson’s distinction between directly evaluative propositions and indirectly evaluative propositions. See Dickson 2001, 51–55.) Thus, the simplest thick evaluative claims have the form: $X$ is morally [all-things-considered] good [bad] . Such claims might also be comparative in nature, such that they have the form: $X$ is morally [all-things-considered] better [worse] than $Y$. By contrast, thin evaluative claims judge how well some item fares relative to a standard that is neither moral nor all-things-considered normative. Such claims do not entail any thick evaluative claims either. Examples of thin evaluative claims thus would include “$X$ is important” and “$X$ is interesting”. Accordingly, even if legal theorists must make thin evaluative claims in order to be able to begin the project of developing a first-order legal theory, this does not mean that they must make thick evaluative claims in order to do so. After all, one might construct a theory that captures a range of legal phenomena that are deemed central or important, while still remaining agnostic about whether these phenomena are themselves valuable.

A third way in which legal theory could in principle be evaluative, though uncontroversially so, is suggested by the prescriptive view discussed in section 2.1.3. If the job of a first-order theory of law is to identify the concept of law it would be most desirable for us to employ, then there is a sense in which the resulting theory of law would of course be evaluative. Nonetheless, as seen above, prescriptive theories aim to answer a different question from theories in the conceptual analysis, reductive or interpretive categories. Thus, what matters to the debate about whether legal theory is evaluative is not whether legal theory in principle could be evaluative, but whether it is inevitably or necessarily so.

Now we are in a position to fully appreciate the question of primary interest here. In particular, it is whether theories about the nature of existing legal practice (or perhaps our concept of it) necessarily involve or entail thick evaluative claims about the law. That is, does offering a first-order theory of law of either the conceptual analysis, reductive or constructive interpretation varieties require one to accept claims about how valuable the law, or some feature of it, is? This is the question to be discussed in the remainder of this entry.

Some answers to the question that was discussed in section 2.1 suggest that theories of law are inherently evaluative in the sense of committing advocates of these theories to thick evaluative claims about the law. As we will see, this is most plausibly the case on the constructive interpretation view of methodology. By contrast, other answers to the question discussed in section 2.1 do not obviously entail that first-order legal theories commit their proponents to thick evaluative claims. In particular, this is the case for the conceptual analysis and reductive views of jurisprudential methodology. At least on their face, both these views seem to allow that there can be purely descriptive accounts of law—i.e., accounts that capture the central features of law without being committed to any moral or all-things-considered evaluation of the law. After all, one might think that a particular account does a good job of capturing some widely shared concept of law, but this does not obviously commit one to saying that law, on this concept of it, is good . Likewise, one might endorse a reduction of legal facts to some more foundational set of facts (e.g., certain social facts) without this committing one to thinking that the law is valuable or morally justified.

As a result, at least on their face, both the conceptual analysis and reductive views seem to allow that there can be first-order theories of law that are purely descriptive. Some argument would be needed if one is to endorse the opposite conclusion. Accordingly, let us consider some prominent arguments for thinking that legal theory must be inherently evaluative in nature. (For an overview, see Marmor 2011, 122–35.)

The argument from legal functions

One central argument to the effect that legal theory must be evaluative in the relevant sense begins from the idea that understanding what the law is requires taking a view about what functions it serves (Finnis 1980, 12–17; Perry 1995, 114–20). Moreover, one might think that functions are evaluative in the sense that attributing a function to something is to endorse a standard by which that thing may be judged as successful or unsuccessful. In this way, one might think that legal theory, too, is inherently evaluative.

While this line of thinking plausibly shows that legal theory requires accepting some evaluative claims, it does not obviously show that legal theory necessarily involves thick evaluative claims (Dickson 2001, 114–125). Claims of the form “the function of $X$ is $F$” are naturally classified together with “$X$ is important” (or more precisely, “$X$ is important for some purpose $Y$”) as thin evaluative claims. Accordingly, asserting that the function of law is $F$ does not obviously entail any thick evaluative claims about law. After all, it is not obvious why attributing a function to something requires believing that performing that function is either all-things-considered or morally good . Thus, attributing a function to law need not entail any thick evaluative claims.

The argument from the internal point of view

A second natural argument in favor of seeing legal theory as inherently evaluative in the relevant sense relies on the idea that any adequate theory of law must take account of the internal point of view that legal practitioners tend to adopt towards the law. More specifically, taking the internal point of view towards the law is a matter of adopting some kind of attitude of endorsement towards it, seeing it as in some sense justified or as providing reasons for action (Shapiro 2011, 96–97; Perry 1995, 99–100; see also the entry on legal positivism ). Moreover, it is common to think that a critical mass of the participants in legal practice must adopt the internal point of view towards the practice in order for the practice to genuinely count as law. This is a fact that any adequate theory of law must account for, one might think. Accordingly, since the internal point of view involves a positive evaluation of the law, and since any adequate legal theory must account for this point of view, one might infer that any adequate theory of law must itself be inherently evaluative. (One finds versions of such an argument, e.g., in Perry 1995, 121–25; Waldron 2001, 423–28.)

It is unclear whether this argument succeeds, however. After all, it seems in principle possible to explain what kinds of considerations legal practitioners endorse, and why, without oneself endorsing those considerations. Similarly, a first-order legal theory might be able to plausibly explain the truism that legal practitioners tend to take the internal point of view towards (i.e., endorse) the law in their respective jurisdictions without the theory thereby being committed to the claim that the law in any particular jurisdiction (or the law in general) is valuable or justified. Accordingly, it is not obvious why a theory of law cannot in principle capture the internal point of view taken by legal practitioners towards the law without itself being committed to any thick evaluative claims about the law.

The argument from interpretation

Probably the most influential argument for thinking that legal theory is inherently evaluative proceeds from the idea that legal theory is an interpretive endeavor in Dworkin’s sense (Dworkin 1986; for criticism, see Dickson 2001, 105; Marmor 2011, 126–30). To say that legal theory is an interpretive project is to claim that fully understanding what the law is requires construing it as the best instance it can be of the type of thing that it is. Moreover, one might think that in order to construe legal practice as the best instance of the kind of thing that it is requires making thick evaluative claims about the law. (See the entry on legal interpretivism .)

One might attempt to respond to this argument in two ways. A natural, though ultimately unsuccessful, reply is that construing something as the best instance of its kind that it can be does not require taking that kind to be good . Saying that Bernie Madoff was (for a time) the best fraudster in history does not entail that one approves of fraud. As a result, saying that the law must be thus-and-so in order to be a good instance of its kind does not commit one to any thick evaluative claims. Nonetheless, there is a deeper or more interesting sense in which Dworkin’s view renders legal theory inherently evaluative. For Dworkin, legal theory is an interpretive enterprise, and offering a constructive interpretation of legal practice requires construing it in its best moral light . Thus, offering an interpretation of legal practice would require taking a stand on which of the available ways of construing that practice is morally better than the others. Of course, this does not necessarily require asserting that the law, on any particular construal, is good —full stop. But it does seem to require at least saying that some construals of legal practice are morally better than other construals would be. This looks to be a thick evaluative claim, albeit a comparative one. Moreover, one cannot make such comparative judgments without having a view about what would make one construal of legal practice morally better than another. Thus, in at least this sense, taking legal theory to be an endeavor that is interpretive in Dworkin’s sense would make legal theory count as inherently evaluative in the sense we are concerned with here.

Accordingly, if one wants to maintain the possibility of purely descriptive first-order legal theories, a more promising strategy for responding to the argument from interpretation would be to question its key premise—viz., that legal theory necessarily is an interpretive endeavor in Dworkin’s sense. In order for a proponent of the argument from interpretation to assert this premise, some rationale would have to be given for it. That is, some argument would be needed to explain why we should think that understanding law requires giving a constructive interpretation of it. A critic of the argument from interpretation, then, might claim that the argument’s proponents have not carried their burden of providing a rationale for this premise, on which the argument crucially depends.

One possible rationale that might be offered here is that since social practices essentially involve communication, and understanding any form of communication necessarily involves interpreting speakers’ claims, understanding the social practice of law necessarily involves interpreting it. However, this rationale is too quick. Even if it is true that understanding any social practice requires interpretation of some kind or other , it does not follow that doing so requires a constructive interpretation in Dworkin’s sense —i.e., identifying a construal of the practice that casts it in its best moral light (Marmor 2011, 127–28). But the latter claim, of course, is what proponents of the argument from interpretation need to establish in order to reach their desired conclusion that legal theory is inherently evaluative.

Accordingly, we seem to be left in the following dialectical situation. Whether or not legal theory is inherently evaluative in the relevant sense depends on whether the argument from interpretation succeeds. Whether that argument succeeds, in turn, depends on its key premise, i.e., the claim that understanding the law necessarily requires giving a constructive interpretation of it. If a non-question begging argument can be given for this claim, then there would be reason to think that legal theory necessarily is evaluative in nature. By contrast, if no non-question begging argument can be given for thinking that understanding law requires a constructive interpretation, then one would be free to maintain that there can be purely descriptive first-order legal theories.

Of course, even if the argument from interpretation fails and purely descriptive legal theories remain possible , it could still be a worthwhile project to attempt to give a constructive interpretation of legal practice, and the output of this project would indeed be a partially evaluative theory. Nonetheless, these two types of theory would not genuinely be in conflict, as they would be addressed to answering different questions. In the end, therefore, “methodological pluralism” may be the most apt characterization of the state of play in jurisprudence.

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How To Write Law Essay?

23 October, 2020

8 minutes read

Author: Elizabeth Brown

If you are a law student, you have probably already faced the question of how to write an essay on this discipline. This is not an easy task because the requirements for a law essay often differ. In addition, you need to state your position and back it up with arguments clearly for others to understand. And to help you facilitate this process, we offer some preparation tips and tricks so that you could craft a decent work.

First things first, let’s discuss the legal essay scheme. It is rightly similar to the social science essay scheme. In both papers, it is necessary to explain a position on a particular issue or comment on a statement. For university law essay, especially in cases of specialties, it’s more complicated. There are several legal essay types :

essay on quote explanation . Like in a school essay, the task here is to reveal the meaning of the expression and give a reasoned agreement or disagreement with it.
essay on legal theory. The essence of this task is to describe one of the theories of law or any jurisprudence. This can be anything – for example, the theory that touches the Fifth Amendment.
jurisprudence essay. In this assignment, you should review a specific case study or analyze the given document. Here, it’s important to adhere to special structure: first read the case, comprehend it, and only then give a critical account of this or that piece.

Law Essay Outline

The outline is one of the essential parts of law essay writing. At the point of creating it, you should jot down the structure of the main argument for each and every statement you deem appropriate for a text. This way, it’ll be much easier for you to organize the legal paper and facilitate its readability .

For example, if you need to comment on the quotation, it’s better to start an essay with brief information about the author. Then, consider the meaning of the citation in the context of his time and compare it to current conditions, as well as note whether you agree with the statement or not. Remember – the main task is to have a solid opinion in which you’re 100% confident. If not, switch the quote.

In the essay on legal theory, state the history of the issue, highlight the advantages and disadvantages of the case you are analyzing. Try to draw a parallel with the present, to indicate how relevant it is now for contemporary law students.

While reviewing a specific legal case or document, you should not be distracted by elements irrelevant or unrelated to the subject and give descriptions of similar situations. Consistently assess the actions of subjects or conduct an in-depth analysis of the provided regulation.

Write all of the crucial points in a short plan and shorten the above information into a couple of sentences. Afterward, you’ll be ready to use the crafted outline and write a law essay according to its key points .

Law Essay Structure

1. Introduction

Like any other type of writing, law essays start with introduction. A successful lead in is the one that captures attention instantly and forces readers to become interested in the law topic. In the beginning, you’ll need to clearly and precisely formulate a thesis statement of the entire piece, which you will then reveal in the following text. A great way to elaborate mediocre introduction with engaging filling is to state a concrete problem, controversy or issue that needs to be resolved.

2. Main part

This is the main element of the whole legal essay. It should contain an analysis of the quotation, legal theory, specific case, or document. Plus, your opinions about this or that aspect should be argued: for example, by references to other papers or practices. Another beneficial way to develop the main body of your essay is to use specific examples from law classes, including activities and important discussions , if applicable. Also, don’t forget that your law essay should always follow the thesis and develop it throughout the legal paper. This is a critical point to consider, as any departure from the established scheme will distort your work’s content.

3. Conclusion

Your finishing remarks should formulate the outcome of what was written above. A reasonable conclusion should be brief and powerful , as well as connected to the introduction. Besides, a good ending should contain a thesis of the whole law essay. However, don’t try to repeat your thesis word by word. Consider rephrasing it instead of mentioning the same statements so that the information is more easily digested for readers. Plus, you’ll need to provide a critical analysis of your work. For this, explain why your main argument backed up by primary and secondary sources is the highest point of conviction. Hence, your readers will see explicit reasoning and be more inclined to believe the truth you outlined in the paper.

4. Bibliography

A bibliography is a mandatory part of the work, and also the last one. At the end of your essay, you should list the documents (laws and other regulations) and books that were used in preparation for the article. Works cited page will help you validate the credibility of work and show readers that all statements and opinions are proven with relevant evidence. However, it doesn’t mean that your bibliography ought to be inserted just after you’ve written the entire text. To have a better vision of what source to pick for citing, include the list of used materials before writing the final version of your law essay. Accordingly, you’ll see sources in their entirety and easily cite them whenever needed.

The sayings of influential and famous people imbue any work with an air of authority . This is especially true for essays on law: professors appreciate it when students reinforce their considerations with the opinion of leaders and experts in their field.

Quotes for an essay on law are quite easy to find on the Internet or specialized digests.

If you choose to close the paper with a quote, it’ll be a great hook which will keep readers impressed by the essay long after they digest it. But feel free to add meaningful sayings also in the introduction or in the middle of a paper. Either way, quotes are a tool that helps make your reading highly impactful and appreciated.

These were the top advice on how to create a distinct law paper. We hope our advice will help you prepare an interesting and informative essay for college or university studies that’ll be graded with the highest mark. Once you manage to operate on the subtle art of legal essay writing, you’ll adjust to the complexities of its realization without difficulties. If you’re in doubt questioning your writing abilities, use custom essay writer service – we will create the best law essay tailored specifically for you.

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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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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.”

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

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Article Contents

1. introduction, 3. discussion, 4. relationship to the literature, 5. conclusion.

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What Is Law? A Coordination Model of the Characteristics of Legal Order

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Gillian K. Hadfield, Barry R. Weingast, What Is Law? A Coordination Model of the Characteristics of Legal Order, Journal of Legal Analysis , Volume 4, Issue 2, Winter 2012, Pages 471–514, https://doi.org/10.1093/jla/las008

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Legal philosophers have long debated the question, what is law? But few in social science have attempted to explain the phenomenon of legal order. In this article, we build a rational choice model of legal order in an environment that relies exclusively on decentralized enforcement, such as we find in human societies prior to the emergence of the nation state and in many modern settings. We demonstrate that we can support an equilibrium in which wrongful behavior is effectively deterred by exclusively decentralized enforcement, specifically collective punishment. Equilibrium is achieved by an institution that supplies a common logic for classifying behavior as wrongful or not. We argue that several features ordinarily associated with legal order—such as generality, impersonality, open process, and stability—can be explained by the incentive and coordination problems facing collective punishment.

What is law? What distinguishes legal order from spontaneous social order? How can we identify when a community is governed by the rule of law? What institutions support the effort to pattern behavior on the basis of deliberately chosen legal rules?

These questions lie at the heart of numerous projects in economics and politics—explaining the evolution of social order in human communities, building markets to support economic growth in poor and developing countries, establishing the necessary architecture for stable democratic governance, managing the increasingly integrated transactions of a globalized web-based economy. Nonetheless, economists and positive political theorists to date have had almost nothing to say about these questions. 2 Most work in economics and positive political theory (PPT) simply presumes that legal order is defined by the existence of the institutions that characterize modern western democracies; namely, centralized production of legal rules by legislatures and courts combined with centralized coercive enforcement of those rules by duly constituted governments. The vast majority of economic and positive political theory focuses on the substance of legal rules but not the characteristics of distinctively legal order per se.

In this article, we initiate the project of filling the gap in law and economics and PPT by developing a rational choice model of legal order. The principal goal of our work is to develop an account of legal order that does not presume that legal order is characterized, necessarily, by the types of institutions we see today in modern developed nation states: courts, legislatures, police, and so on. Legal order arises in so many different environments, ranging from early human societies prior to the development of the nation state to a globalized interdependent civil society that in many ways transcends the nation state. Developing a systematic social scientific account of law that identifies the conditions under which legal order emerges and is stabilized requires that we abstract from the particular institutions embodying law in modern nation states.

In particular, we claim that it is critical that a social scientific account of law does not presume that law is necessarily characterized by centralized punishment—delivered by a formal institution with coercive power, such as a government. Our framework thus allows for the possibility that law is enforced by decentralized mechanisms and the model we present in this article demonstrates that we can achieve legal order exclusively on the basis of decentralized enforcement, without any centralized coercive authority. This possibility marks a major departure from the implicit definition of law employed in most economic and positive political theory. As Dixit (2006, 3) observes, “conventional economic theory… assumes that the state has a monopoly over the use of coercion”. Ellickson (1994, 127) defines law as rules that are enforced by governments rather than social forces.

By decentralized enforcement, we mean that the imposition of penalties results from individual decisionmaking among ordinary agents acting independently, not the decisionmaking of official legal actors such as police or judges nor the result of express pacts for collective action. Decentralized enforcement may also include voluntary compliance (in the sense that the individual “punishes” himself or herself for engaging in wrongful conduct), individual punishment (as occurs when someone plays a tit-for-tat strategy in a repeated game [ Axelrod 1984 ], for example), or collective punishment (as when a set of individuals, acting independently, collectively refuse to deal with someone who has done something wrong). As we discuss in a companion paper ( Hadfield & Weingast 2011a ), a wide range of examples exist of settings in which legal order is apparently achieved without the existence of a centralized coercive enforcement body; including, medieval Iceland, Gold Rush California, medieval Europe under the Law Merchant and merchant guilds, and modern international trading and collaboration regimes.

Our reason for excluding the existence of a centralized enforcement body from our model is to develop a framework capable of analyzing a range of questions concerning if and when centralized enforcement of law is necessary or sufficient to secure legal order. These are critical questions if we seek to explain the emergence of legal order prior to the organization of states with a monopoly over legitimate force, the potential for establishing the rule of law in environments with weak or corrupt governments, or the feasibility of establishing legal order in exclusive reliance on centralized coercive force (i.e., a system that ignores the role of decentralized mechanisms in structuring legal order). Analysis of these questions is not possible if we follow the dominant assumption in economics and political science that law is, by definition, a set of rules enforced by government.

We therefore propose a different definition of legal order to guide the development of a positive framework for analyzing the emergence and characteristics of law. We will say that an environment can be said to be organized on the basis of legal order if (i) there is an identifiable entity (an institution) that deliberately supplies a normative classification scheme that designates some actions as “wrongful” (punishable, undesirable) and (ii) actors, as a consequence of the classification scheme, forego wrongful actions to a significant extent. We propose these criteria as indicia of legal order for the purposes of positive analysis because they capture the fundamental policy role of law that makes the study of law of interest to economists and political theorists: law is a purposeful vehicle for shaping behavior to achieve desired ends. Many mechanisms and institutions shape behavior, of course: social norms guide conduct in all human societies, for example. What makes law of interest to economists and positive political theorists, however, is the capacity for deliberately changing behavior patterns in order to achieve normative goals such as economic growth, the security of individual freedoms, or the redistribution of wealth. Our proposed criteria for identifying legal order aim to distinguish a system in which norms are emergent, arising as a matter of practice from repeated interactions, and one in which norms are deliberately articulated and systematically implemented.

Our approach thus tracks a basic distinction drawn by H.L.A. Hart (1961/1997) : between a regime in which there are only primary rules of behavior, and one in which there are also secondary rules that can introduce or change primary rules. Hart called the system with both primary and secondary rules “law”. As Hart recognized, a system without secondary rules is dependent on slow adaptation to respond to changes in the environment or desired outcomes; a system with secondary rules is capable of deliberate effort to change behavior.

As with Hart's definition, our definition has to be understood as minimal: there may well be other systems of achieving behavioral order that could be said to be characterized by secondary rules or an identifiable entity that deliberately supplies a normative classification scheme. We leave open, then, the challenging task of fully distinguishing legal order from other forms of deliberate social order. (For further discussion of this point, see Section 3, below.)

In this paper, we take up instead the more focused task of showing that an equilibrium that meets our minimal criteria for a legal order can be secured in a setting in which penalties for wrongful behavior are delivered exclusively by decentralized collective punishment. That is, we demonstrate the possibility of legal order without a third-party centralized enforcement mechanism, such as the state or some other powerful actor with an effective monopoly of force. Moreover, we demonstrate that the equilibrium displays several attributes that are often associated with our intuitions about the nature of law or the rule of law. The legal order in our model is characterized, for example, by the existence of general rules and impersonal abstract reasoning implemented by open, public, and neutral procedures. These are attributes that many legal philosophers (e.g., Fuller 1964 ; Raz 1977 ) associate with the concept of law or the rule of law. (We discuss this literature in more depth in Sections 3 and 4 .) In our model, these attributes are directly attributable to sustaining the efficacy of decentralized collective punishment. This is in contrast to the conventional focus in legal theory on the relationship between the attributes of law and the capacity of an individual to be guided by rules or the normative limits on the exercise of force by a coercive power such as a government.

The challenge of sustaining decentralized collective punishment is the challenge of coordinating individual decisions to participate in delivering costly penalties to those who engage in wrongful conduct. Our model therefore presumes that effective punishment—which deters wrongful conduct in equilibrium—requires coordination among multiple agents who must make simultaneous decisions about whether to punish a wrongdoer. Clearly, such coordination requires that a sufficient number of agents identify a particular act as wrongful. We demonstrate that this coordinating function can be served by what we call a common logic , a system of reasoning that generates unique common knowledge classifications of conduct. We argue that such common knowledge classifications can be provided by a third-party institution that supplies a system of public and impersonal reasoning by exercising what we call authoritative stewardship .

We do not assume, however, that there is an inherent incentive to participate in collective punishment based on these common knowledge classifications. That is, we do not presume that coordination is sufficient to support an equilibrium, as does the existing literature analyzing the role of coordination and convention in law. Because punishment is costly to individuals, we must explain why individuals participate in a system that relies on collective punishment. In this regard, we track a growing literature on collective punishment that investigates the puzzle of why people, in many cultures ( Henrich et al. 2006 ) and in experimental settings ( Fehr & Gachter 2002 ) are willing to incur positive costs to inflict penalties on those who behave wrongfully without any immediate material benefit. (We canvas the literatures on coordination and collective punishment in more detail in Section 4 .)

We link the resolution of the incentive problem to the characteristics of the coordinating institution—that is, to the attributes of a legal order. The incentive to punish that we identify is the incentive to alter beliefs—held by those who may engage in wrongful conduct and those who might participate in punishment—about the likelihood that wrongful acts will be met with an effective punishment. More precisely, an individual punishes in order to signal to other agents that an equilibrium with punishment based on the common logic is or continues to be in the individual's private interest. In our model, the participation of all agents is necessary for effective punishment. The failure by any individual to carry through on punishment in the event of wrongful conduct leads other agents to infer that collective punishment is no longer sustainable. This inference destroys both the incentive of others to punish and the deterrence of wrongful conduct.

We show that equilibrium with effective collective punishment then depends on the generality, stability, openness, and impersonality of the common logic. These attributes secure, in our model, the incentive of individual agents to participate in collective punishment. Universality and impersonality—in the particular sense of being addressed to the interests of all and independent of the reasoning of a particular entity—ensure that an individual can expect that a system of collective punishment will be of personal benefit. Stability ensures that today's decision to punish based on a common logic conveys information about future benefits under that same logic. Openness assures heterogeneous individuals, who possess what we call an idiosyncratic logic for classifying wrongs against them, that they will have access to a mechanism for integrating their personal classifications into the common logic.

An important implication of our model is that it provides a link between the attributes of legal order that many intuitively associate with law and the resolution of the coordination and incentive problems that underpin effective collective punishment. This raises a question of whether a legal system that relied exclusively on centralized punishment to deliver penalties, as the great majority of work in economics and PPT assumes, would display the attributes generally associated with the rule of law.

Our framework, therefore, makes a contribution to three literatures. Law and economics, and PPT and the law, both fail to explain why law has various legal attributes, such as those identified in the legal philosophy literature. Law and economics typically defines law exclusively in terms of its capacity to coercively enforce a result. Indeed, law and economics treats law as another form of regulation; that is, constraints enforced by the government. PPT and the law largely treats law as just another source of politics and policymaking. Work in both fields focuses on efficiency, distribution, or other policy characteristics of the outcomes generated by legal institutions. Neither field attempts to explain why legal institutions possess the attributes that mark them as legal. Conversely, although legal philosophers focus on identifying the attributes that distinguish legal systems from other normative systems, they do not address the positive question of how a system of law characterized by these attributes can be generated or sustained. Our approach addresses all these issues.

Our article is organized as follows. Section 2 presents the model and Section 3 extracts the attributes of the equilibrium institution that generates legal order in that model. In Section 4 , we relate our approach to the existing literature. Section 5 provides some concluding observations.

Our goal in this model is to demonstrate that a third-party institution that supplies a common logic for classifying behavior can, if the institution possesses certain characteristics, effectively coordinate decentralized enforcement efforts to deter behavior that reduces social welfare. We therefore model a setting in which other means of deterring welfare-reducing behavior—such as changes in organizational or transactional terms or unilateral or centralized punishment—are either unavailable or exhausted. This sets up our problem of determining if it is possible to deter the residual welfare-reducing behavior with decentralized collective punishment alone.

We first provide an overview of the model and our modeling strategy, and then put the model into formal terms.

2.1. Overview

The setting we consider is one in which there is an actor, S , engaged in repeat and independent interactions with two individuals, A and B . In each interaction with A , there is some probability that S has an opportunity to take an action that benefits S but may harm A . Whether the action harms A depends on A 's private reasoning. B faces the same risk in each period as A : suffering what it judges privately to be a reduction in welfare because of an action S has taken. A and B engage in independent relationships with S : an action that S takes in its relationship with A has no impact on B and vice versa. Nor do A and B care about what happens to the other; they do not hold preferences over how the other is treated. The only available means of deterring S is a decentralized collective punishment, in which A and B make simultaneous decisions to incur some personal cost to inflict loss on S when one of them suffers a loss. Delivering this punishment, therefore, requires that both are willing to act what appears to be altruistically: punishing S for harming someone else, despite the absence of pro-social preferences.

We make this setup concrete by assuming that S is a seller of goods and A and B are buyers. 3 The actions S can take in its relationships with a buyer are cost-cutting measures. Some of these cost-cutting measures will be judged by the buyer, according to the buyer's private system of classification—what we call the buyer's idiosyncratic logic —to be wrongful. In the contracting setting, this means that the buyer judges that the seller's actions reduce the buyer's expected profits below the level that the buyer believes to be promised by the contract.

We do not make any a priori assumption about whether the buyer's classification of actions as wrongful is objectively valid. A key feature of this model is that we pay close attention to the potential for a diversity of views about what it means for the seller's performance to be wrongful. This diversity of views makes the determination of what is wrongful inherently ambiguous. Moreover, we assume that each buyer's idiosyncratic logic is fully private and inaccessible to others at reasonable cost. This rules out the possibility that the various actors can simply deduce how individual buyers will classify conduct. By designating individual classification schemes as “idiosyncratic”, we emphasize that the classification is conditional on the buyer's particular circumstances and that the buyer's decision to buy is based on its own evaluation of the circumstances in which the deal is valuable. We posit idiosyncrasy not as a form of odd or unusual preferences but rather as a source of value-generating diversity in an economy ( Hong and Page 2001 ). 4 Idiosyncratic assessment is particularly likely to arise in dynamic environments where individuals are discovering and inventing new possibilities for transactions. This is true over significant periods of human economic history. For example, a buyer may discover ways to reduce production costs by using just-in-time inventory in an environment in which all others use conventional inventory practices. This innovation will lead the innovating buyer to assess the value of delayed deliveries differently than a conventional buyer and, at least initially, this assessment will be unknown and perhaps inscrutable to others. We do not model the buyer's logic as private information, although it may depend on private information. Rather, the buyer's logic is a system of private reasoning to organize and analyze information and to make judgments about how to classify behavior. 5

In addressing our questions, we drastically simplify the relationship with and the role of the seller: we assume the price at which the buyer and seller transact is fixed and that the seller's only decisions concern the choice of how to perform the contract with each buyer in each period. We recognize that there are transactional adjustments that the parties can and are likely to make as the efficacy of deterrence shifts, but so long as any such adjustments nonetheless leave residual risks that the seller will engage in behavior that the buyers individually would prefer to deter, our results continue to hold. We emphasize that our goal is not to predict the attributes of the transactions between buyer and seller but rather the attributes of a mechanism by which the buyers can secure some deterrence through collective punishment in the absence of a centralized enforcement authority.

We focus on collective punishment because in many interesting settings unilateral punishment is ineffective. More generally, collective punishment will often be less costly and/or generate greater benefits than unilateral punishment. A two-buyer one-period boycott, for example, inflicts a higher cost on the seller than a one-buyer two-period boycott (because the 2nd period loss is discounted by the seller). Moreover, a threat of collective boycott can deter (as we will show) wrongful performances vis-à-vis both buyers; a lone boycotter's threat can deter at best wrongful conduct vis-à-vis that buyer. In a more general model, in which a particular buyer does not interact every period with the seller, a collective punishment scheme would call for a penalty to be delivered by buyers who interact sooner with the seller and thus can deliver a more immediate and hence more costly punishment. We discuss examples of historical and contemporary settings in which legal order depends on collective punishment in Hadfield and Weingast (2011a,b) . Theorists in evolutionary game theory (see, eg., Boyd, Gintis & Bowles 2010 ), behavioral economics (see, e.g., Fehr and Gachter 2002 ; Henrich et al. 2006 ) and institutional economics (see, e.g., Milgrom, North, & Weingast 1990 ) have also emphasized the importance of collective punishment schemes in the evolution and diversity of social order. (For further discussion of this literature, see Section 4 .)

We show that it is possible for an institution that provides a public classification scheme (but that lacks any enforcement powers) to coordinate and incentivize the buyers' participation in collective punishment that achieves effective deterrence of the seller in equilibrium. We call the institution that provides this classification scheme a common logic . Examples of institutions supplying a common logic include “English common law”, “the Law Merchant”, “the customs of this village as articulated by the elders”, “rabbinical teachings”, “the Dutch merchants' guild”, “the Archbishop of Hamburg”, and “the United States Supreme Court”. We emphasize that a logic is an institution, not a disembodied classification scheme. The classifications reached by a logic depend in part on the procedures used to implement classification. For example, the English common law includes a set of rules about what counts as valid evidence and who may present arguments to persuade a group of individuals known as judges about how to classify performance; the elders of a particular village are likely to have a different set of characteristics regarding process, evidence, and so on that affect the classification system.

We show that a common logic capable of coordinating and incentivizing collective decentralized punishment to deter wrongful seller behavior possesses characteristics that are usefully identified as characteristic of legal order. We do not model the process by which legal order emerges or by which legal order can be created. Our focus in this article is only on the characteristics of the equilibrium legal order we model. The proof we offer is in the form of an existence proof. We leave the question of the conditions under which legal order can be predicted to emerge to future work. We turn now to the formal setup of the model.

2.2. Formal Model

We assume an institutional environment as follows. No third-party institution exists that is capable of enforcing a penalty against the seller for a wrongful performance. This assumption rules out, for example, a state enforcement agency. It also rules out the capacity for the buyers to join forces in a private organization that they fund for the imposition of penalties. Any penalties imposed on the seller must therefore be imposed by the buyers acting independently. Thus, the environment is one in which only decentralized enforcement is possible.

A buyer acting independently might inflict on a seller a wide variety of losses in response to wrongful conduct. For example, a buyer might inflict reputational harm on the seller or engage in physical retaliation. We model the penalty available to buyers as a boycott: depriving the seller of profits. The insights of our model, however, do not depend on this form of penalty; any penalty that is costly to both the buyers and the seller and that the buyers can inflict independently will serve the purpose.

We then ask the question, is there an equilibrium in which a two-buyer one-period boycott serves as a threat that can increase both buyers' payoffs by deterring the performances each judges to be wrongful?

2.2.1. Coordinating boycotts

There are two reasons why we should not expect this equilibrium to emerge in practice, however. First, on a theoretical level, Nash equilibrium is not an appealing equilibrium concept because it is not subgame perfect: put more simply, the buyers' threat to boycott is not credible if the seller in fact engages in a wrongful performance. Once the seller has cheated in this way, the loss to the cheated buyer is effectively a sunk cost. Boycotting is costly to the buyers (who forego the preferred payoff of purchasing even on the assumption that the seller will choose a wrongful performance whenever an opportunity arises, see Equation ( 1 )). And boycotting does not in fact change the seller's expected payoffs after the boycott ends, so it does not alter the probability of a buyer being cheated in the future; the seller's payoff was only affected by the threat of a boycott. The buyers are better off responding to the wrongful performance by absorbing the loss and continuing to purchase as before. Formally, because the seller is not better off in the equilibrium of the repeated game with deterrence of wrongful performances (this follows from our assumptions that buyers strictly prefer to buy even if the seller cannot be deterred and that prices are fixed 6 ), the seller cannot be incentivized to participate in strategies that punish buyers for failing to punish wrongful performance when punishment is called for in the equilibrium strategy. 7

We are interested in a second reason for thinking that the proposed boycotting strategy above will not support an equilibrium: as a practical matter, even if it was judged to be credible, the boycotting threat is not implementable. This is because the seller and buyer j do not know, and cannot at reasonable cost learn, I i ( X i ), buyer i 's idiosyncratic classification of alternative performances. 8 As a result, buyer j cannot condition its boycotting behavior on what buyer i judges to be wrongful. Nor can the seller condition its choice of how to respond to an opportunity for cost-cutting on the potential for the choice to trigger a boycott from the buyers. This latter constraint also rules out the possibility that the buyers could simply announce when they judge they have received a wrongful performance: the seller cannot be deterred if the seller cannot predict those announcements and this lack of predictability is what the inaccessibilty of I i ( X i ) to actors other than buyer i implies.

This objection to an equilibrium supported by strategy I is a more general critique of the literature on relational contracting and informal enforcement mechanisms. Most game-theoretic models of reputation and coordinated punishment—of which Milgrom, North & Weingast (1990) is an example—assume a unique common classification of actions as “cheating” or not. In fact, what constitutes “cheating” will often be difficult to determine and vary from agent to agent. This is the reason we begin with the assumption that our agents employ idiosyncratic logic to decide what, for each of them individually, constitutes “cheating”. This then points up the essential challenge of enforcement in the absence of a third-party coercive force.

2.2.2. Common Logic: R

2.2.3. sequence of play.

The sequence of play for S and buyer A in each period t is as follows (the sequence for S and B is the same and happens simultaneously):

A decides whether to purchase and pay P .

If A purchases, S learns if it has the option of taking a cost-cutting action; the probability that an option arises to take a cost-cutting action that would also be judged wrongful by A is θ A .

Observe that the classification institution is only asked to publicly announce a classification of a performance if a buyer judges the performance to be wrongful on the basis of its idiosyncratic logic. 9

2.2.4. Equilibrium strategies and beliefs

We want to show that if R possesses certain characteristics, then it is capable of supporting an equilibrium in which the buyers coordinate on boycotting the seller when the seller engages in performances that are wrongful according to R . (We call these performances R -wrongful.) In this equilibrium, both buyers are better off than if they failed to coordinate boycotts.

We will say that R is sufficiently convergent for buyer i if buyer i has an incentive to engage in a one-period boycott given the buyer's beliefs about the extent to which boycotts will deter R -wrongful performances in the future. That is, for the cost of the boycott to be justified, R must sufficiently often classify as wrongful the performances that buyer i , using its idiosyncratic logic, judges to be wrongful. Inequality (8) establishes the criterion for sufficient convergence when buyer i believes that a boycott will fully deter all R -wrongful performances in all future periods.

Now suppose both buyers were known to be playing strategy R . The above analysis tells us that by both playing strategy R the buyers can secure a Nash equilibrium in a repeated game if r i satisfies (8) for both of them. Unlike the proposed Nash equilibrium supported by strategy I , strategy R is implementable in the sense that both buyers and the seller can determine whether a particular performance does or does not trigger a boycott. R supplies a common definition of “cheating”, although it does not necessarily align with either buyer's idiosyncratic logic. But does strategy R support a subgame perfect Nash equilibrium, in which it would be rational to boycott if a wrongful performance was observed (out of equilibrium)? We argue that it does, and precisely because the buyers hold idiosyncratic–and hence private–assessments of what counts as wrongful “cheating” vis-à-vis their own contracts.

Formally, we propose equilibrium beliefs as follows:

B1 All agents believe that a buyer will boycott an R-wrongful performance in period t if and only if the buyer evaluates R to be sufficiently convergent in period t .

B2 Buyer j and the seller believe that R is sufficiently convergent for buyer i with probability (1 − ρ i ), ρ i > 0, in period 1 and in period t > 1 if buyer i has played strategy R in all periods τ < t and with probability otherwise 0.

Buyers' strategy: Play strategy R in any period t unless the other buyer has failed to play strategy R in some period τ < t .

For these strategies and beliefs to support a perfect Bayesian Nash equilibrium—in which the threat to boycott is credible off-equilibrium—we need to show that the strategies of all players are sequentially rational and that beliefs are consistent with the equilibrium strategies. Most of the proof of this proposition follows directly from our analysis above showing that a buyer who entertains beliefs B 1 and B 2 is better off boycotting than not so long as R is sufficiently convergent as defined in (10). Failure to boycott in the off-equilibrium event that an R -wrongful performance occurs prompts both the seller and the other buyer to update B 2 to a belief that R is definitely not sufficiently convergent for the non-boycotting buyer. Given this updated belief, it is optimal, as strategy R prescribes, for the other buyer not to boycott in the future. This shows that the proposed equilibrium strategies are sequentially rational. It remains just to check that the proposed beliefs are consistent with the equilibrium strategies. This is straightforward: in equilibrium a buyer will boycott if and only if R is sufficiently convergent and so it is consistent for the other buyer and the seller to infer from a failure to boycott that the buyer has reached a judgment that R is not sufficiently convergent.

We have shown that a common logic R can support an equilibrium in which wrongful conduct that destroys value is effectively deterred by decentralized collective punishment, that is, in the absence of a centralized coercive body. The common logic—an institution that implements a system for classifying actions as wrongful or not—achieves this by doing two things. First, it coordinates expectations about how performances will be classified. Second, it supports a buyer's incentive to participate in boycotts of performances that the logic deems wrongful, even when those are wrongs suffered by the other buyer.

Our claim is that the equilibrium coordinated by R can be usefully interpreted as a legal order , despite the absence of a centralized coercive force. As a starting point, we suggest that for an equilibrium to be characterized as a legal order it should, at a minimum, have the following characteristics, all of which are displayed by the equilibrium coordinated by R . First, the equilibrium must display order: behavior systematically follows a designated pattern. In our equilibrium, we observe this: buyers enter into contracts with sellers, pay them up front and receive deliveries of goods. Second, the patterning of behavior must be based on a normative classification. By this we mean that there is an evaluative framework that values the elicited behavior more highly than alternative behavior. In the equilibrium organized by R , the buyers collectively prefer the behavior elicited by the system—punishment and hence avoidance of R -wrongful performances—to the alternative. Third, the content of the classification system must be capable of being deliberately articulated by a third-party institution.

These criteria for a legal order identify legal order as a form of deliberate, as opposed to spontaneous or emergent, order. This distinguishes legal order from, for example, the emergence-in-fact of an equilibrium set of property norms such as those analyzed by Sugden (1996) . Order in these spontaneous cases is the result of repeat interaction and the confluence of individual decisionmaking exercised in the absence of external coordination; any normative classification is limited to the classification supplied by individuals acting independently.

We suggest that a legal order requires the capacity for an individual or entity to announce a classification system. The capacity to deliberately articulate, and hence clarify or change, the content of R satisfies H.L.A. Hart's concept of law, which he defines as the presence of secondary rules that determine the validity of primary rules ( Hart 1961/1997 ). The capacity to articulate, clarify, and adapt the content of a classification system is fundamental to a concept of law that serves the needs of economists and political theorists, we suggest, because these social scientists are interested in the distinctive role of law as a vehicle for policy and politics.

We do not claim that all deliberate social orders are legal orders. A tyrant can establish a deliberate social order, for example, and most such orders are not usefully called legal orders. Our claim is that a legal order is a species of deliberate social order, and in particular a deliberate social order that possesses several attributes that are commonly associated with the existence of law or the rule of law. Fuller (1964) , for example, defines law as “the enterprise of subjecting human conduct to the governance of rules.” His concept of law as an “enterprise” is consistent with our notion that the classification on which legal order is based must be one that is capable of being deliberately chosen and changed. Fuller then goes on to identify eight characteristics that rules must possess in order to be properly called “legal” rules. These are: generality, stability, prospectivity, promulgation, clarity, non-contradiction, congruence (between rules as announced and rules as applied), and possibility (the rules do not call for actions that are not feasible for the subjects of the rules). Other legal philosophers (e.g., Raz 1977 ) see these characteristics as definitive of, if not legal order per se, the existence of the rule of law. Still others urge that the list of legal attributes should be expanded to include process characteristics such as the availability of open courts that engage in formal argument, processes, and practices to apply public-oriented rules ( Waldron 2008 ). The equilibrium order secured by R in our model possesses several of the features these philosophers emphasize as definitive of “law”.

3.1. Generality, Stability, Prospectivity, and Congruence

A rule is general if it is articulated in terms of categories or principles that can be applied to specific factual circumstances not fully described by the rule itself. A statement of the form “all deliveries made more than 4 days after the contract date shall be deemed to be late” is general: we do not need all the details about who the buyer and seller are, what is being sold, other terms in their agreement, the date of their delivery, and so on to classify a delivery as wrongful or honorable. A classification scheme might be general without containing articulate general rules of this form, however. A collection of classifications reached in the past, for example, will be general if those classifications are generalizable: if by studying those classifications and analyzing the reasons for them and the decisionmaking rules of the classification entity a person can make a reasonable prediction about how a comparable but as-yet-unobserved performance vector would be classified. This is how the common law works, for example. According to traditional Anglo-American legal concepts, the common law is found and not made: its rules and principles are immanent , it contains all of its principles even if they are not articulated until a specific case is adjudicated. 11 Decisions that cannot be reached until after specific circumstances arise are considered to be law-like and not ad hoc because of this understanding of what it means for the law to be generalizable in a principled way.

3.2. Universality

Scholars writing in contexts related to law use the term “universality” in a number of different ways. Some, following Kant, use the term to describe an obligation that, if it applies to person A in circumstances X, applies to all persons in circumstances X. A legal rule might be described as “universal” if it applies to all persons within some jurisdiction, although the rule may itself designate specific attributes that a person must have in order to be covered by the rule. (A rule for vendors who supply a particular product or are located in a particular location or attain a certain market share, for example.) This concept of universality thus overlaps with ideas of equal treatment of persons who are in relevantly similar circumstances and of the impersonal application of rules, that is, without regard to (irrelevant) personal characteristics.

We use the term universal in this article in a different way, distinguishing it from concepts of equal treatment and impersonal application of rules. First, we use the term to describe an attribute of a system of logic, rather than particular rules in that system. Then, borrowing from the idea of a universal tool or procedure that can help to resolve all problems in a particular class, we say that a logic is universal if it addresses (one way or another) the rights and obligations of all individuals. A universal logic, then, is like a book of rules that includes entries for all the possible configurations of persons and relationships. A system of universal logic need not contain rules that call for equal treatment of persons or that treat personal characteristics as irrelevant. The rules in a universal logic that apply to the circumstances of person A need not be the same as those who apply to person B, even if A and B are in similarly situated. (We do not mean to say that it would not be more likely as an empirical matter for a universal logic to treat A and B the same; just that this is not formally implied by our definition of universality.)

Universality in our model derives from the equilibrium requirement that the common logic must be sufficiently convergent with both A and B 's idiosyncratic logic to attract both to participate in a coordinated boycott triggered by the application of the common logic. If, for example, R only classifies actions when they involve A , B will refuse to participate in the boycott.

Whether a logic that is universal in our sense would also display equal treatment is then a function of how a particular equilibrium R emerges and remains stable, something we have not modeled here. We conjecture, however, that the chances of establishing R as a stable equilibrium will be greater if R is addressed to abstract persons or entities, rather than specific individuals. Relatedly, to the extent that even heterogeneous agents can face similar circumstances which they judge in similar ways (both buyers, for example, are likely to judge a complete failure to deliver any goods as wrongful), we conjecture that, with little ability to predict the particular content of each buyer's idiosyncratic logic, the classification institution can increase the likelihood that both buyers find R to be sufficiently convergent by designating a common logic that does not discriminate between A and B in its classification of some performances.

It is important to emphasize that our analysis of universality is not based on an assumption that agents prefer fair or equal treatment per se. Our buyers derive utility only from the transactions they engage in with the seller. They do not enjoy community benefits or good feelings about themselves or the goods associated with conformity to norms per se. Similar to Binmore's (1994, 1998) effort to ground the Rawlsian “justice as fairness” principles in game theory, our analysis grounds the emergence of “general” rules on the interaction of self-interested agents who do not possess an inherent set of values over their relative treatment by the rules.

It is also important to note that universality in our model serves to support the punishment incentives of agents whose participation in punishment is necessary for effective deterrence. In this sense, it is a qualified universality. If we were to add a third buyer C , and continue to suppose that effective deterrence still only required a two-buyer boycott by A and B , then there would be no need for R to cover C 's interests. So if A and B are members of the elite, for example, and C is a peasant, nothing in our result would rule out a “universal” common logic that deemed performances wrongful only if the injured buyer is a member of the elite. Conversely, if effective punishment requires C to boycott as well (if, for example, there is an equal probability that the seller will only have an opportunity to sell to any two of the three buyers in the next period), then an equilibrium R will be universal with respect to C as well.

3.3. Clarity, Non-contradiction, Uniqueness: Authoritative Stewardship

The model assumes that it is common knowledge that, once R has been established in equilibrium, all agents agree on what constitutes an R -wrongful performance and hence all reach the same prediction about the likelihood of an effective boycott in response to a given performance in the future. R is thus assumed to produce unambiguous classifications—which requires that R produce classifications that are both clear and unique. Implicitly, it also requires that R itself be unique, that is, that all agents are consulting the same common logic to assess wrongfulness.

Clarity and uniqueness impose constraints on the structure of the reasoning employed by the logic when accurately applied: There must be, at least in theory, a “right” answer to the question of whether a particular performance is wrongful or not. The logic must be coherent and not contradictory. Unique classification does not imply that the rules and principles that make up the logic produce an obvious classification. The set of rules and principles that comprise the logic could be complex and ambiguous and capable of producing multiple answers, although this would make it more costly. (Our simple model assumes all logics are costless to use.) Agents may make errors in applying the logic. What is important is that there be a recognized process for determining a unique answer among a set of possible answers implied by the rules and principles. This observation gives content to our original definition of a logic not merely as a set of rules or principles but rather as the product of a third-party institution. Achieving a unique common knowledge classification necessitates that there be an authoritative steward of the classifications reached by the logic: a unique arbiter able to resolve complexities, ambiguities, and gaps. This sheds light on why we generally find that an established legal system in a complex environment usually has a single Supreme Court, for example.

Although we have not modeled a process by which R is developed or proposed, it seems clear that the probability that R succeeds in establishing a deterrence equilibrium is higher the more effectively R reduces ambiguity. Similarly, if institutions are competing for selection, the stewards controlling a common logic will be more likely to secure selection of their institution if they more effectively achieve unique and clear classifications.

3.4. Impersonal, Neutral, and Independent Reasoning

Our model has only two buyers and one seller. It may therefore seem reasonable to suppose that an equilibrium could be supported even if R classifies performances on the basis of an idiosyncratic logic, using reasoning that cannot be reproduced by the buyers and the seller. The model would only require that the buyer and seller be able to query the institutional agent to learn the classification for a particular performance. But a query-based system in practice is likely to be costly; it will also involve disclosing to the institution private information that a buyer may prefer to keep private unless and until there is a need for a public classification. Moreover, in a more general model with a large number of buyers and sellers, the capacity for a single agent to respond to queries is likely ultimately to be exhausted.

We therefore interpret the model to suggest the importance of a logic based on impersonal reasoning . By impersonal reasoning, we mean that the operation of the logic on a set of facts regarding a performance produces a classification that is invariant to the identity of the person or entity engaged in the operation. 12 Impersonal reasoning implies that the institution providing the logic must be neutral and independent : the agents who provide the classifications of R must have no interest in those classifications. This suggests a strong reason to believe that one of the buyers cannot just propose using its own idiosyncratic logic as the basis for boycotting.

Neutrality and independence are routinely identified by legal philosophers as key attributes of systems that observe the rule of law. These accounts often ground the requirement of neutrality in a normative principle such as fairness. Raz (1977, 201) offers an informal behavioral reason for neutrality: “it is futile to guide one's action on the basis of the law if… the courts will not apply the law and will act for some other reasons”. Our model suggests a different reason for neutrality: neutrality reduces ambiguity. A lack of neutrality undermines the capacity of the law's classification system to coordinate effective deterrence by increasing the cost of and/or variance in classification.

3.5. Public Reasoning and Open Process

Both public reasoning and open process in our model find their root in the heterogeneity and idiosyncrasy that generates the problem of ambiguity and the need for a common logic in the first place. Put differently, agents in a homogeneous world with shared and unambiguous classifications of all performances as “cheating” or not, have no need for an external institution to provide a common logic; in such a world, we can predict, as do Hume (1739–40/1978) and Sugden (1996) , that norms to coordinate behavior will spontaneously emerge. Milgrom, North, & Weingast (1990) find that all that is needed in such a world is an institution that serves to share information across traders separated in time.

The likelihood that a common logic R will be characterized by open and public reasoning follows from our model because the assumption of idiosyncrasy suggests that the classifications reached by the logic must be general, as we discussed earlier. Recall that we have defined each buyer's idiosyncratic logic as an inaccessible reasoning process that maps (potentially private) information into an assessment of the value of a potentially complex set obligations on the seller. 14 Having no access to the idiosyncratic reasoning of individual buyers when it offers its logic as a candidate coordination device, a third-party institution must provide a logic that is capable of integrating, coherently, the information and reasoning from individual buyers through an infinite horizon. The logic, therefore, cannot be (just) a data set collecting classifications already reached by the logic; it requires placeholders for dealing with as-yet-unimagined circumstances. Nor can it be a complete prescription of how all possible circumstances would be classified by the logic. To do we this would require access to the idiosyncratic logic of (possibly as-yet-unknown) buyers who are uniquely able to assess the value and intended content of their transactions with sellers. As we have seen, the logic R must be sufficiently convergent with each buyer's idiosyncratic (ex ante inaccessible) logic in order to attract the buyer's participation in the coordination equilibrium.

In a system in which classifications are based on general principles and/or generalizable decisions, classification requires elaboration in particular circumstances. In our model, those particular circumstances are initially private information. To elect to participate in the boycott equilibrium, each buyer must be able to elaborate the logic privately as it applies to these privately known circumstances and considerations. We have already discussed the requirement that this elaboration produces a unique classification. Ultimately, when this set of circumstances becomes relevant (the seller is contemplating a potentially wrongful performance or the buyers are determining whether to engage in a boycott in response to a potentially wrongful performance), this classification must be capable of becoming public.

Thus we conjecture that in a stable classification system, the elaboration of the reasoning—its application to particular circumstances—will be conducted in public and in a manner open to a presentation from the initially privately informed buyer (more generally, also the seller) of how its idiosyncratic reasoning plays out in the common logic. In our model, buyer A does not care about buyer B 's idiosyncracies unless and until B is the potential victim of a wrongful performance and A has to decide whether to boycott or not. At that point, R is presumed to include an open and public reasoning process to determine, uniquely, whether the performance is R -wrongful or not. More generally, we predict that a classification institution that is open to hearing from individual buyers and sufficiently public is likely to give buyers greater confidence that R will, in practice, converge sufficiently with their idiosyncratic logics.

4.1. Philosophy of Law

Although we have appealed to some legal philosophical concepts in our discussion above, we do not intend our work to be a philosophical contribution to the extensive literature in analytical jurisprudence that has considered the question in depth of “what is law”. The participants in that literature frame their work in terms of the relationship between law and morality, often from the internal perspective of an agent within a legal system. We are not engaged in moral theory, or even normative theorizing, in this article. But, as Kornhauser (2004) has noted, some of those clearly recognized as major contributors in analytical jurisprudence—such as H.L.A. Hart and Lon Fuller—can also be seen as progenitors of the project we take up, of developing a social-scientific concept of law. It is therefore important to sketch out how we think our work relates to legal philosophy.

Modern positivists distinguish between the concept of law per se and the concept of the rule of law. In its sharpest formulation, this distinction emphasizes that the concept of law is devoid of any necessary normative content; it is an effort to capture what, in fact, constitutes “law” regardless of whether the content of a legal system is judged to be good or bad. In contrast, the rule of law is a normative ideal: a legal system may or may not display the desirable qualities of the rule of law. Fuller (1964) , for example, argues that to be recognizable as law, legal rules must be characterized (more or less) by the eight characteristics we listed earlier: generality, promulgation, prospectivity, clarity, non-contradiction, feasibility, stability, and congruence between rules as announced and rules as applied. Raz (1977) , on the other hand, argues that beyond some minimum these features are not necessary to the existence of law per se but rather are virtues displayed by the rule of law.

The distinction between the rule of law and the concept of law takes on special importance for legal philosophers who are engaged in the project of determining the relationship between law and morality and in particular the relationship between the existence of a legal rule and the reasons for action that law gives a person to whom the rule is addressed. This is a largely internal point of view. From this point of view, answering the question of “what is law” is a matter of determining what counts as a valid law for purposes of those within a legal system who seek to be guided by the law—judges, officials, and ordinary citizens. If an unjust law is not a law then it does not give rise to a legal obligation for those who seek to be guided by the law. If a valid law is determined by a system of social validation that depends, for example, exclusively on compliance with particular procedures and not on the substantive content of the law, then whatever reasons law gives for complying with its rules are independent of whatever moral reasons we might have for complying with a rule or acting in any other way.

We do not emphasize the distinction between the concept of law and the rule of law in this article because we adopt an external perspective on law: how are we to understand the phenomenon of law as a mode of social organization? What criteria for distinguishing legal order from other types of order will aid in the effort to predict and identify the emergence or disappearance of distinctively legal order? Most centrally, what are the mechanisms by which law achieves order, how can these mechanisms be structured or modified to achieve particular ends and can these mechanisms sustain legal order as an equilibrium? The definition of law that we work toward is to be judged by its success in helping to frame a theory of law as a form of social organization distinct from other forms of social order.

As Kornhauser (2004) notes, this social-scientific approach to developing the concept of law shares important common ground with the positivist account in analytical jurisprudence. Both Fuller (1964) and Raz (1977) ground several of their arguments for why law, or the rule of law, must possess certain characteristics on an informal model of human behavior. Both presume, for example, that, as a practical matter, people cannot plan on the basis of rules that they cannot discover or ones that they do not expect to govern the application of future penalties and therefore conclude that legal rules must be stable, publicized, and largely prospective. Hart (1961/1997) emphasizes that what counts as valid law in a given community is ultimately a matter of social fact that cannot be determined through moral reasoning or semantic analysis but only through the decidely non-normative analysis of social interaction in practice. Moreover, in what Kornhauser (2004) calls an “abandoned project of descriptive sociology”, Hart motivates his concept of law—which he identifies by the presence of a set of secondary rules that determine the validity and modes of application of primary rules—with an appeal to the challenges that face a society that is under pressure to adapt its primary rules to changes in the environment or increases in complexity or heterogeneity.

Our approach can be seen as an effort to pick up this starting point for a social-scientific theory of the phenomenon of legal order. We share with Hart the intuition that the emergence of legal order is linked to increasing complexity and heterogeneity in human environments and the pressure this puts on spontaneous social order. Our contribution is to take this insight more firmly in the direction of social scientific, particularly rational choice, analysis.

4.2. Coordination Accounts of Law

A large literature in both social science and legal philosophy, going back to Hume (1739–40/1978) , explores the idea that law plays a role in coordinating behavior.

In legal philosophy, coordination accounts have been largely spurred by Hart's (1961/1997) claim that the validity of law is ultimately a matter of social convention: a rule counts as a legal rule if the participants in a given legal community believe and behave as if it were a legal rule. Lewis (1969) although not specifically focused on law, provides a key definition of convention: a regularity of behavior in which an agent perceives him or herself to be better off engaging in the behavior on the expectation that all others will do also. For Lewis, and the legal philosophers who followed him, a convention is a solution to a coordination problem in the sense of economist Schelling (1981) . Postema (1982) argued that the practices of the officials in a legal system who, according to Hart's view, define what is valid law have the characteristics of a coordination problem and in this sense the secondary rules of a legal system can be understood as conventions that resolve this problem. Other philosophers examining the role of convention in understanding the validity, authority, and autonomy of law include Raz (1977) ; Finnis (1980, 1989) ; Gans (1981) ; Marmor (1998, 2009) ; and Green (1983) . Although this literature, in places, appeals to formal game theory, it is largely focused on the relationship between a coordination account of law and the normativity of law in the sense of the capacity of law to generate moral reasons to obey the law.

Positive political theory and the law has long recognized the importance of coordination in one aspect of the law, namely, constitutional law with a focus on constitutional stability. Most new constitutions fail ( Elkins, Ginsburgh, & Melton 2009 ), so why do those few survive? Hardin (1989 , 2006 ), following Hume (1739–40/1978) , argues that the central feature of constitutions is to provide coordination for citizens around various rules (see also Ordeshook 1992; Calvert & Johnson 1999 ). Constitutions, in this view, create focal solutions that allow citizens to create order. In a model closely paralleling that in this paper, Weingast (1997) argues that constitutional stability requires that citizens have the ability to coordinate against governments that seek to transgress constitutional provisions. To do this, citizens must create focal solutions to the problem of what features of the constitution are worth defending. Constitutions that become focal points (typically in moments of crisis) have greater ability to survive then ones that do not. Similarly, Fearon (2011) argues for the coordination effect of elections in democratic (and hence democratic constitutional) stability.

In the economics literature, coordination accounts of law begin with coordination accounts of spontaneous social norms without deliberate design or legal institutions. Sugden (1996) uses focal point equilibria ( Schelling 1960 ) to explain the spontaneous emergence of self-enforcing conventions about coordination, reciprocity and property rights to resolve rival claimants disputes. Binmore (1994, 1998) also approaches the problem of explaining the emergence of conceptions of justice—particularly fairness—as the resolution of a coordination problem in which the equilibrium must be self-enforcing. Dixit (2006) considers multiple settings in which coordination can be achieved by extra-legal conventions, including focal point settings.

Several authors extend the analysis of spontaneous social norms to law by arguing that where there are multiple self-enforcing coordination equilibria, law can serve as a focal institution to deliberately select an equilibrium ( Cooter 1998 ; Basu 2000 ; McAdams 2000, 2005 ; Mailath, Morris & Postlewaite 2001, 2007 ; Myerson 2004 ). Like Sugden (and Hume), both McAdams and Myerson, for example, observe that a rule that deemed the immediate possessor of a piece of property to be its rightful owner can coordinate the strategies of rival claimants so as to avoid wasteful contests over the property. If both claimants expect the other to apply a concept of “rightful” ownership, then the “rightful” owner will rationally claim and the other will rationally recede. Whereas Sugden and Hume look to the spontaneous emergence of this rule, however, McAdams and Myerson consider the role for legal institutions such as a legislative assembly or adjudicator. Myerson (2004) proposes that an assembly can select generally understood principles to coordinate expectations about who will rightfully claim what. McAdams (2005) considers in depth the way in which adjudicators can convey information about facts or the prevalence of community beliefs about the content of a norm to support coordination on a particular equilibrium in the presence of ambiguity about a convention or its application. Myerson (2004) also considers the role for an arbitrator who recommends an equilibrium when general principles do not cover the situation or are ambiguous.

In all of these literatures—legal philosophy, positive political theory, and economic analysis of law and norms—the appeal to coordination is an appeal to a very specific, and probably rare, payoff structure. This is the structure of a coordination game in which coordination is both necessary and sufficient to sustain a Nash equilibrium. The canonical examples used in the literature are Schelling's (1960) Meeting game (M), the Battle of the Sexes (BOS) game, and the Hawk-Dove (HD) game. In M and BOS, both agents enjoy higher payoffs when they choose the same strategy (go to Grand Central Station or go to the Empire State building; attend a play or attend a football game). In the Meeting game, the agents are indifferent about whether they go to Grand Central Station or the Empire State building, so long as they both go to the same place. In BOS, one agent prefers the equilibrium in which both agents attend a play and the other prefers the equilibrium in which they both attend the football game, but both prefer being together to being at different events. In HD, each agent would prefer to play Hawk (claiming a contested object) than to play Dove (conceding the contested object) but each also prefers the equilibrium in which he or she plays Dove and the other plays Hawk to one in which both play Hawk. In all three of these games, coordination of strategies is both necessary and sufficient for equilibrium. Sufficiency comes from the fact that the payoffs in these games are such that an uncoordinated strategy is never preferred to coordination. In this sense, the only role for a third-party institution is to achieve coordination. Once that is done, equilibrium is achieved.

In our model, in contrast, coordination is necessary for equilibrium, but not sufficient. Equilibrium requires more: specifically, equilibrium requires legal attributes that render a coordination equilibrium preferable for all agents to the payoffs that can be achieved without coordination. Put differently, our model does not presume the structure of a classic coordination game of the type that this existing literature assumes. This makes our model far more general as an account of the role of coordination in explaining legal order than anything offered in the existing literature.

A second distinction between our approach and the existing literature is that, with the exception of Basu (2000) and McAdams (2005) , the existing coordination accounts of law focus on the coordination problem facing agents engaged in primary behavior: choosing the side of the road on which to drive, whether to claim contested property, or whether to apply a conventional interpretation of a statute, for example. 15 In our model, in contrast, the problem of coordination is one faced by agents who are potentially engaged in punishing primary behavior: responding to those who drive on the wrong side, take what is not theirs, or adopt unconventional statutory readings. That is, we focus on how the characteristics of legal rules governing primary behavior impact the coordination problem facing enforcers of those rules. This also makes our approach far more general than the existing accounts. As McAdams (2000) is careful to note, the expressive account of law ( Sunstein 1996 ) is a partial account of law, applying only to those settings in which primary behavior happens to be characterized by an overriding incentive to coordinate; that is a setting in which no punishment is required to enforce compliance with a legal rule. In our account, we presume the far more ordinary setting in which a legal rule imposes a penalty on particular conduct and on that basis channels behavior in the direction of compliance.

Last, our approach introduces a level of formal modeling that is missing from the existing coordination accounts. Although this literature sometimes employs game theory, it does so by essentially making the claim that if interactions are structured as coordination games where agents are always better off coordinating than not, then law can provide a focal point to select among multiple coordination equilibria. The objective functions and information states of the agents in these games are not specified and there is no foundational account of when payoffs will be structured in this way. We build a formal model that derives the structure of payoffs based on foundational assumptions about utility and information. Our account therefore demonstrates, rather than presumes, the expected payoffs associated with different strategies.

4.3. Collective Punishment

Cultural anthropologists have observed that in many societies, violations of social norms are punished by ordinary (not official) individuals choosing to impose a costly penalty on the violator. Mahdi (1986) , for example, shows the use of ostracism to punish norm violations among the Pathan Hill tribes in Afghanistan. In a cross-cultural survey, Boehm (1993) identifies several distributed mechanisms—ranging from social disapproval, criticism, and ridicule to disobedience and ultimately assassination—by which members of small-scale autonomous communities maintain egalitarian relationships and a lack of authoritative leadership by punishing those who attempt to dominate others. Wiessner (2005) documents the role of criticism, put-downs, pantomimes, mocking, complaints, and (infrequently) violence in norm enforcement among the Ju/’hoansi Bushmen of northeastern Namibia. Behavioral economists, in experiments conducted with students in university labs ( Fehr & Gachter 2002 ; Fehr & Fischbacher 2004 ) and with individuals in a diverse set of populations in Africa, Asia, Oceania, South, and North America ( Henrich et al. 2006 ) have demonstrated a widespread willingness among humans to incur costs in order to punish those who violate norms.

Behavioral economists have suggested that altruistic punishment is explained by direct preferences over the behavior, payoffs or strategies of others (e.g., Levine 1998 ; Fehr & Fischbacher 2004 ). Fehr & Gachter (2002) suggest that altruistic punishment behavior is mediated by negative emotions such as anger toward rule violators. Evolutionary game theorists, however, have emphasized that it is challenging to explain how preferences for collective punishment—whether biological or cultural—could have evolved. Third-party punishment presents a free-rider problem. Punishment is costly to the punisher. The benefits that flow from punishment—inducing individuals to avoid violating social welfare-enhancing norms—are, however, collective goods enjoyed by punishers and non-punishers alike. Consequently, non-punishers enjoy higher fitness in a population with punishers and thus selection will favor non-punishers. Boyd & Richerson (1992) show that selection can favor third-party punishment strategies if such strategies also include punishment of non-punishers. This is an approach that is rooted in the concept of a subgame perfect equilibrium, and is the approach used, for example, by Milgrom, North, & Weingast (1990) to support an equilibrium in which cheating on contracts is deterred by an information sharing institution—which they call the Law Merchant—that coordinates collective punishment in a community of traders. 16 Bowles & Gintis (2004) use simulations to show that a stable population of strong reciprocators—individuals who incur personal costs to punish norm violations and generate group benefits—can emerge in a community that also includes those who violate norms and those who adhere to norms but fail to punish.

Boyd, Gintis, & Bowles (2010) present an evolutionary model that captures many of the same elements of collective punishment that we consider here. They presume, as we do, that cost-effective punishment requires multiple agents to decide to punish simultaneously; in particular, they assume increasing returns to punishment such that the cost of punishment falls as the number of punishers increases. At some threshold τ, given the (endogenous) likelihood of being in a group that has τ + 1 punishers, punishment promotes the fitness of punishers. Importantly, their model allows punishers, as we do, to signal their inclination to punish and thus save the costs of punishment if there are not enough other punishers around. They demonstrate that in such an environment, a population with punishers and non-punishers can be evolutionarily stable. Moreover, in a key overlap with our model, they demonstrate that in the stable state, the population of punishers will be such that there are likely to be just enough (τ + 1) punishers in a group, but no more, to make punishment worthwhile.

We add to this literature on collective punishment by providing another account of the incentive to participate in costly punishment. We suggest that even with standard materialistic preferences—no preferences directly over other's norm violations or heritable punishment strategies—there is an incentive to punish in order to communicate private information about the willingness to participate in supporting an equilibrium with coordinated punishment. Moreover, we demonstrate how these incentives can be harnessed by an institution that displays many of the characteristics we conventionally associate with law. Our model thus connects the literature on collective punishment and the evolution of cooperation to the analysis of the institutions that support distinctively legal (and distinctively human) order.

We began with the question, what is law? We do not have a complete answer to this question. Undoubtedly, law does involve in many cases the imposition of centralized coercive force and in order for the exercise of such force to constitute governance by law and not arbitrary power, law must have certain characteristics. Our answer to the question, what is law, is therefore that law can be a system of distinctive reasoning used to classify conduct as right or wrong that serves to incentivize and coordinate distributed agents in delivering punishments to deter wrongdoing. Our model is based exclusively on distributed enforcement that achieves effective deterrence of conduct that is deliberately classified as wrongful. It demonstrates that legal order can be sustained by a third-party institution that possesses many of the features that we intuitively associate with the concept or the rule of law: generality, universality, abstract and impersonal reasoning, open and public processes, stability, prospectivity, and clarity. The approach therefore makes a contribution to three literatures. Law and economics treats law like any other constraint and PPT treats law like any other means of chosing policy. Neither law and economics nor positive political theory of the law have an explanation for why law is characterized by distinctively legal attributes. Legal philosophy, on the other hand, has long debated what is distinctive about legal obligations but has not explored an explanation for how the distinctive attributes of law arise or are sustained. Our model addresses all three of these lacunae.

We have shown that centralized coercion need not be present for legal order to emerge. (We provide examples of settings in which this is evident in our companion paper, Hadfield & Weingast [2011a] .) As we show, decentralized enforcement is a possible substitute for centralized enforcement. Moreover, in many and perhaps all countries subject to law and rule of law, both third-party mechanisms are likely to be present.

Our focus on decentralized collective enforcement also brings to the fore a characteristic of legal order that is not as frequently emphasized, namely the role for an authoritative steward of a common logic that coordinates punishment by providing a system of unique classification. We demonstrate that these features of legal order can serve to solve the two key problems facing a community that seeks to deter wrongful conduct through decentralized collective punishment: they help to coordinate punishment decisions and to provide the incentive to incur the personal costs associated with punishment that benefits the larger group. Our positive analysis thus adds a new dimension to our understanding of the normative features of legal order. Most of the existing literature in legal theory looks to normative accounts of these normative characteristics. Open courts, impersonal reasoning and generality, for example, are frequently understood in terms of limits imposed by moral or political theory on the exercise of power by (particularly democratic) governments. We do not discount these normative limits, but we expand the understanding of these limits by showing how they may (also) be rooted in the positive or practical constraints on achieving stable equilibrium order based on law. 17

From a positive perspective, our model sheds important light on fundamental questions of how, when and why distinctively legal order emerges in human societies. We have provided only one example of a legal order and the characteristics that serve to support that order. Our model is a very simple one. But our framework suggests several conjectures and avenues for further research. Here, we consider four key simplifications of our model.

First, our model does not consider how agents—buyers or sellers—will respond to ambiguity in classification. This is why our analysis can only be read to show that an unambiguous classification system is sufficient to support a form of legal order. We have provided intuition for why a less ambiguous classification system would be more likely to emerge in equilibrium, but we have not shown the extent to which ambiguity is disruptive of legal order equilibrium. A key extension of the model, then, is to explore the impact of variance and cost in classification. As we explore in Hadfield & Weingast (2011a) , the emphasis we see in a wide variety of settings on the establishment of an authoritative steward with the capacity to render unique classifications of conduct suggests that the tolerance for ambiguity in a legal order—at least one based on decentralized enforcement—is low. This is not to say that a system cannot tolerate some ambiguity, and a more general model that allowed for noise in a classification system would help to determine how much is too much. This has implications for important policy questions in legal design, such as the balance between open-textured and plain meaning approaches to interpretation of legal documents, the relative values of certainty and flexibility in legal decisionmaking, and the extent of professional or hierachical control over the provision of legal advice.

Second, we have not modeled the supply or selection of the institution that coordinates equilibrium. But particularly in light of our emphasis on the decisionmaking attributes of the institution, such as its commitment to generality, impersonal reasoning and open process, it will be critical to explore the conditions under which an institution can be expected to conduct itself in this way. Here, our emphasis on decentralized enforcement and the need for R to offer benefits to the agents who participate in punishment, suggests new considerations—moving beyond the conventionally normative analysis of the duties of public officers such as judges to uphold the values of neutrality and openness. An institution that depends on the participation of citizens to achieve effectiveness faces incentives, as we have shown, to develop credible methods for ensuring desirable attributes such as impersonality and stable, public reasoning. Moreover, an environment that provides choice over alternative classification systems—such as existed in medieval Europe and in many other settings prior to the emergence of the nation state—creates the conditions for competition among institutions. 18

Third, our model does not address a key challenge for collective punishment, namely the problem of free riding. We have only considered a setting in which participation by both potential victims in punishment is essential to effective deterrence. In a model with a larger number of agents, we would expect that even if multiple agents must participate for punishment to be effective, it will not generally be the case that all agents must punish all wrongs. This sets up the incentive for free riding on the punishment efforts of others, which conceivably could destroy a deterrence equilibrium. It is important to note, however, that the problem of free riding is not the same in our model as in most models of collective punishment. In our model, the incentive to punish is grounded in incentives to communicate information to others about the continued acceptability of the coordinating institution. A free rider in our model would not get a complete free ride: a failure to punish would come at the cost of causing other agents to downgrade their beliefs about the continued viability of a common logic. We conjecture that, particularly if only a subset of agents will be in a position to punish any particular violation, relaxing the constraint that all agents must punish will not destroy completely the potential for a deterrence equilibrium. Following Boyd, Gintis, & Bowles (2010) , we expect that we could still demonstrate the viability of deterrence equilibria in environments in which agents find themselves facing the decision to punish or not in groups small enough that individual actions have a perceptible impact on beliefs about the likelihood of effective coordination in the future.

The risk of free riding as communities grow larger brings us to our fourth and perhaps most important modeling choice. We assumed that enforcement is exclusively achieved through a decentralized enforcement mechanism. Environments in which enforcement is decentralized are not hard to find, particularly prior to the emergence of the nation state ( Hadfield & Weingast 2011a ). But the problem of free-riding may well be a key reason for the state's consolidation of enforcement into a centrally controlled authority with a monopoly over legitimate coercive force. Here, however, our model suggests an intriguing hypothesis. We have shown a link between the normative characteristics frequently associated with the desirable attributes of “governance by law, not men” and the problem of coordinating and incentivizing collective participation in punishment. An institution that hopes to achieve effective legal order in this setting is constrained to ensure that its system is general, open, stable, impersonal, and so on. This suggests the possibility that a regime that relies on centralized coercive force is not similarly constrained. We wonder: does a shift to centralized enforcement come with a shift away from the rule of law? Or put differently: can any system that relies exclusively on centralized coercive enforcement be classified as a legal order? Or does it tend to (or necessarily) shift into a tyrranical or dictatorial order? We suspect that any order we would want to identify as legal must rely at least to some extent, and perhaps to a considerable extent, on decentralized enforcement. This might be true because a regime that depends exclusively on centralized punishment must expend exponentially increasing resources to manage a system of detection and punishment (exponential because delegation of these tasks to employees of the state requires enforcement of the rules governing these enforcers,) or rely on extraordinary, and disproportionate, penalties to compensate for only probabilistic detection ( Becker 1968 ). Our model suggests an additional reason to expect that reliance on exclusively centralized enforcement might be inconsistent with legal order: by relaxing the incentive constraint, a system of centralized legal enforcement is free to enforce rules that are indistinguishable from dictatorial fiat.

We have benefitted from helpful comments and suggestions from numerous colleagues. For particularly detailed suggestions and advice we are grateful to Kenneth Arrow, Sam Bowles, Ryan Bubb, Randall Calvert, Chuck Cameron, Bob Cooter, Mariano-Florentino Cuellar, Giuseppe Dari-Mattiaci, John Ferejohn, Bob Gibbons, Les Green, Carmine Guerriero, Lewis Kornhauser, Antoine Lallour, Shmuel Leshem, Steve Macedo, Andrei Marmor, Richard McAdams, Giorgio Monti, Paul Roemer, Philip Pettit, Josh Ober, Katharina Pistor, Edward Stiglitz, Eric Talley, Brian Tamanaha, Mike Tomz, Joel Trachtman, and John Wallis. We have also benefitted from discussions at workshops at the National Academy of Sciences Sackler Colloquium, the Center for Advanced Study in the Behavioral Sciences, the American Law and Economics Association Annual Meeting, the Annual Meeting of the International Society of New Instituitional Economics, the Comparative Law and Economics Forum, New York University, the University of Toronto, the University of Texas, the University of Paris, the University of Amsterdam, and Harvard University.

2 As we discuss in more detail below, Kornhauser (2004) is a rare exception.

3 Although we explicate the model in concrete terms by describing a sale transaction, nothing in the model is particular to this setting. The model can be interpreted as applying to any setting in which there is a potential wrongdoer who may exploit a community of potential victims who have the capacity to impose some penalty on the wrongdoer. Our seller, for example, could be a feudal lord and our buyers, serfs. Serfs then invest upfront in working the land, at the risk that in the future the lord will extract a wrongful share of the harvest or wrongfully impose additional duties or conditions or hardships. Alternatively, we could interpret the seller as a powerful private individual and our buyers as other private individuals who are at risk of physicial aggression or theft at the hands of the powerful individual. The potential victims make investments each period in building up property, for example, or operating in public spaces, at risk that doing so gives the powerful individual an opportunity for theft or aggression.

4 Hong and Page (2001) present a model in which “collections of agents outperform individuals partially because people see and think about the problems differently” (p. 130). Diversity is captured by characterizing individuals in terms of their individual internal language (used to represent objects) , perspective (a mapping from objects into the internal language) and a heuristic (a set of rules for moving around the space of objects in his or her internal language, a logic).

5 Crawford & Haller (1990) present the idea that agents may lack a common language for representing the structure of a game and thus cannot reproduce the reasoning of others (for purposes of coordination) except on the basis of observed outcomes that can be uniquely associated with a particular action. See also Kramarz (1996) solving an N-player coordination game in the absence of a pre-existing common language. Both Crawford & Haller and Kramarz analyze the dynamic process of reaching coordination through the generation of a common language based on the evolving history of a game.

6 Our restriction on price adjustment is intended to be a device to generate a setting in which transactional terms alone cannot generate perfect performance in the repeated game. Clearly such settings exist in practice, or else we would have no need of third-party punishment to deter some wrongdoing.

7 The generalizations of the Folk Theorem that show that a subgame perfect equilibrium can be achieved ( Fudenberg and Maskin 1986 ) require that players who fail to punish are themselves punished.

8 This does not mean that a buyer cannot convey any of its requirements for adequate performance to the seller. We are focusing on the settings in which there is a problem of deterrence; in the contracting context, this refers to settings where it is hard to express and communicate all of the expected attributes of performance in concrete terms up front. Idiosyncrasy preserves the problem we are interested in, which we expect to arise in settings with diverse and innovative economic relationships. A seller may interpret a buyer's emphasis on precisely on-time delivery, for example, as mere exhortation in a context in which all other buyers are satisfied with delivery within a few days of a contract target date. The model can be interpreted in this particular context as one of incomplete contracting, where incompleteness is driven by the difficulty of articulating or predicting ex ante the wide variety of future conditions that can affect the value of performance. For more discussion of this in the context of contracting and innovation, see Bozovic and Hadfield (2012) .

9 The buyer has no incentive to seek a public classification that deems conduct wrongful and that the buyer judges to be not wrongful: the buyer receives V if the performance is not wrongful and cannot do better than this in our setup. We thus abstract from any strategic incentive that might arise in a system in which a buyer is awarded damages if a performance is judged wrongful.

10 The agents in this model do not treat R as dynamic: they do not have predictions about how R might change in the future. Their estimates of convergence can change over time not because R changes but because their information about R changes.

11 Blackstone held that it was not the judicial function to “pronounce a new law, but to maintain and expound the old one”. 1 William Blackstone, Commentaries 69.

12 This does not necessarily mean that agents do not differ in their competence in employing the logic: although we have assumed that classification is costless, a more general model could sustain some costs to hire the services of an expert interpreter of the logic (such as a lawyer). But the logic would still have to consist of impersonal reasoning in the sense that the classification reached by an expert did not depend on the identity of the expert.

13 “The law must be open and adequately publicised. If it is to guide people, they must be able to find out what it is.” Raz (1977, 198–199)

14 In a world where delivery within four days of a contract date is generally considered acceptable, for example, buyer B may be an innovative manufacturer that has discovered how to employ just-in-time delivery or variations in wholesale packaging to improve the allocation of inventory.

15 Basu (2000) emphasizes that official enforcers such as judges and police must also choose to comply with a given legal norm for the norm to establish an equilibrium. McAdams (2005) notes informally that law might also serve to coordinate punishment strategies to enforce legal rules. In both accounts, however, enforcers are presumed to be engaged in a coordination game in which coordination is necessary and sufficient for equilibrium.

16 Greif (1994) proposes that cultural beliefs that include an expectation of collective punishment, together with cultural mechanisms that share information and coordinate expectations about what constitutes punishable behavior, can support a subgame perfect equilibrium in the absence of formal and centralized legal penalties. Subgame perfection in Greif's model of the Maghribi traders in the 11th Century (as in a version of Milgrom, North, & Weingast's [1990] model of the medieval Law Merchant) is achieved, however, because punishment is not costly for the punisher. A merchant in Greif's model is strictly better off punishing, by refusing to hire, an agent who has cheated a previous merchant in the past because the cheater will, in equilibrium, cheat the new merchant as well.

17 For an example of how the positive model sheds light on Rawls's normative theory of public reason, for example, see Hadfield & Macedo 2012 .

18 There is a significant literature on competition between states that supply regulatory regimes in corporate law, for example. See Hadfield & Talley (2006) for a discussion of this literature and its extension to competition between private providers. Hadfield (2012) discusses the emerging role for private production of legal systems in globalized settings.

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What is the Rule of Law

The rule of law is a term that is often used but difficult to define. A frequently heard saying is that the rule of law means the government of law, not men. But what is meant by “a government of law, not men”?

Aren’t laws made by men and women in their roles as legislators? Don’t men and women enforce the law as police officers or interpret the law as judges? And don’t all of us choose to follow, or not to follow, the law as we go about our daily lives? How does the rule of law exist independently from the people who make it, interpret it, and live it?

The easiest answer to these questions is that the rule of law cannot ever be entirely separate from the people who make up our government and our society. The rule of law is more of an ideal that we strive to achieve, but sometimes fail to live up to.

The idea of the rule of law has been around for a long time. Many societies, including our own, have developed institutions and procedures to try to make the rule of law a reality. These institutions and procedures have contributed to the definition of what makes up the rule of law and what is necessary to achieve it.

This section of the Dialogue offers quotations that define components of the rule of law as it has been understood at different times and in different contexts. It asks Dialogue participants to use these quotations in giving meaning to the concept of the rule of law. It then considers a working definition of the rule of law that has been proposed by the American Bar Association’s World Justice Project.

What makes up the rule of law?

No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land. Article 39 Magna Carta (1215)

In 1215, King John of England signed the Magna Carta (or Great Charter). A group of barons, powerful noblemen who supported the king in exchange for estates of land, demanded that the king sign the charter to recognize their rights.

Article 39 of the Magna Carta was written to ensure that the life, liberty, or property of free subjects of the king could not be arbitrarily taken away. Instead, the lawful judgment of the subject’s peers or the law of the land had to be followed.

So what does this ancient document have to do with the rule of law? Quite a lot. It recognizes that a person’s fate should not be in the hands of a single individual—here, the king. It demands that a judgment against a person be made in accordance with the law. Magna Carta planted the seeds for the concept of due process as it developed first in England, and then in the United States. Due process means that everyone is entitled to a fair and impartial hearing to determine their legal rights.

If men were angels, no government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. James Madison Federalist Paper No. 51 (1788)

James Madison’s quote from the Federalist Papers gets at the heart of the problem that even a government of law is ultimately “administered by men over men.” The framers of the U.S. Constitution addressed this problem by dividing power among the different branches of government (legislative, executive, and judicial). This framework for government, known as the separation of powers, ensures that no one person is able to gain absolute power and stand above the law. Each branch of our government has some level of control or oversight over the actions of the other branches.

The rule of law does not depend upon a U.S.-style separation of powers. In a parliamentary system, for example, the powers of the executive and legislative branches are combined; procedures such as “no confidence” votes and regularly scheduled elections serve as a check on the party that controls the parliament. The key point is that every form of government has to have some system to ensure that no one in the government has so much power that they can act above the law.

To make laws that man can not and will not obey, serves to bring all law into contempt. It is very important in a republic, that the people should respect the laws, for if we throw them to the winds, what becomes of civil government? Elizabeth Cady Stanton (1860)

It is very difficult for a nation to maintain the rule of law if its citizens do not respect the law. Assume that people in your community decided that they didn’t want to be bothered by traffic laws and began to ignore stop signs and traffic signals. The ability of police officers to enforce the laws would be overwhelmed and the streets of your community would quickly become a chaotic and dangerous place. The rule of law functions because most of us agree that it is important to observe the law, even if a police officer is not present to enforce it. Our agreement as citizens to obey the law to maintain our social order is sometimes described as an essential part of the social contract. This means that, in return for the benefits of social order, we agree to live according to certain laws and rules.

Elizabeth Cady Stanton’s quote also highlights another important aspect of the rule of law. People must be asked to obey laws that they can and will obey. If laws become impossible—or even difficult—to follow, the respect of citizens for the law will begin to erode.

There can be no free society without law administered through an independent judiciary. If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny. U.S. Supreme Court Justice Felix Frankfurter United States v. United Mine Workers (1947)

Judicial independence means that judges are independent from political pressures and influences when they make their decisions. An independent judiciary is essential tomaintainingtheruleoflaw. Judgesshouldnotbepressured by a political party, a private interest, or popular opinion when they are called upon to determine what the law requires. Keeping the judiciary independent of these influences ensures that everyone has a fair chance to make their case in court and that judges will be impartial in making their decisions. Judges also must explain their decisions in public written opinions, and their decisions can be appealed to a higher court for review. These elements of judicial decision- making ensure that judges remain accountable to the rule of law.

From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him. Justice Hugo Black Gideon v. Wainwright, 372 U.S. 335 (1963)

The Supreme Court’s opinion in Gideon v. Wainwright secured the right to counsel for indigent criminal defendants unable to afford legal assistance on their own. The decision in Gideon was grounded in the Sixth Amendment to the Constitution, which guarantees criminal defendants “the assistance of counsel.” At issue in Gideon was whether this guarantee of assistance required the state to provide legal counsel if a defendant could not afford to exercise his or her constitutional right.

In a criminal trial, the state has many resources at its disposal, including lawyers who prosecute the state’s case. As Justice Black notes, it is difficult to claim that a defendant has been treated with fairness and impartiality and has been given equal standing before the law if the defendant must face the state without a lawyer of his or her own.

I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law. Martin Luther King, Jr. “Letter from Birmingham Jail” (1963)

The words of Martin Luther King from Birmingham Jail remind us that there is a distinction between law and justice. The law, even if it is uniformly applied, does not in itself guarantee a just result. The rule of law is intended to promote stability, but a society that operates under the rule of law must also remain vigilant to ensure the rule of law also serves the interests of justice. As this quote points out, the continued strength of the rule of law sometimes depends on individuals who are willing to risk punishment in pursuit of justice.

[N]either laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary. U.S. Court of Appeals Judge Diane Wood “The Rule of Law in Times of Stress” (2003)

Judge Wood’s comments highlight the need for, first, an open and transparent system of making laws and, second, laws that are applied predictably and uniformly. Openness and transparency are essential. If people are unable to know and understand what the law is, they cannot be expected to follow it. At the same time, people deserve to know why a particular law has been passed and why they are being asked to obey it.

The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

When we [Americans] talk about the rule of law, we assume that we’re talking about a law that promotes freedom, that promotes justice, that promotes equality. U.S. Supreme Court Justice Anthony Kennedy Interview with ABA President William Neukom (2007)

Justice Kennedy suggests that the rule of law has taken on special meaning for the people of the United States, based on our history of looking to the law to fulfill the promises of freedom, justice, and equality set forth in our nation’s founding documents. As will be further discussed in Part II of the Dialogue, our understanding of the rule of law in the United States did indeed develop around the belief that a primary purpose of the rule of law is the protection of certain basic rights. The United States Constitution represented the first effort by a nation to establish a written constitution of laws that would bind the government and guarantee particular rights to its people. Today, the rule of law is often linked to efforts to promote protection of human rights worldwide.

What does the rule of law mean?

After reading through the preceding quotes and comments on the rule of law, ask Dialogue participants to begin working out the meaning of the “rule of law.” In doing so, ask participants to think about these questions:

Identify what components of the quotes and comments you think are essential to a definition of the rule of law, and which you think are optional or aspirational . Be prepared to explain your reasoning.
Consider any important aspects of the rule of law that you do not see reflected in the quotes and comments. What are they?
Form groups of four to five participants. Members of each group should use their individual understanding of the rule of law to create a shared group definition of the rule of law that all members of the group can agree upon.
Share the group’s definitions with other participants in the Dialogue.
Compare and discuss similarities and differences among the group definitions. Identify components of the rule of law that were shared by all the groups.

The rule of law and the ABA World Justice Project

In 2007, ABA President William Neukom established the World Justice Project. The World Justice Project recognizes the problem that “the ‘rule of law’ is a frequently used term that is rarely defined.” One goal of the World Justice Project is to develop a broadly accepted definition of the rule of law that could be used to measure adherence to the rule of law both in the United States and abroad. Based on the belief that the rule of law is a prerequisite for building societies that offer opportunity and equity to all their citizens, the World Justice Project proposes to use its definition of the rule of law to create an index that will measure how nations around the world are—or are not—following the rule of law.

The World Justice Project has proposed a working definition of the rule of law that comprises four principles:

A system of self-government in which all persons, including the government, are accountable under the law
A system based on fair, publicized, broadly understood and stable laws
A fair, robust, and accessible legal process in which rights and responsibilities based in law are evenly enforced
Diverse, competent, and independent lawyers and judges

Questions for Discussion

The World Justice Project asserts that “the rule of law is the platform for communities of opportunity and equity and is essential to addressing the world’s most persistent and harmful ills.” Do you agree with this statement? Why or why not?
Compare the World Justice Project’s definition of the rule of law to your own definitions of the rule of law that you created individually or in your small group. What similarities and differences do you see between the definitions? Are there elements of the World Justice Project definition that you would add to your own definition of the rule of law? Why or why not?
Think about your own experiences or familiarity with the law in the United States. To what extent do you think the rule of law in the United States adheres to the World Justice Project’s definition of the rule of law? To what extent do you think that the United States fails to live up to this definition?
The World Justice Project suggests that the four principles it has used to define the rule of law are universal principles. Do you think that these principles would be universally accepted by nations around the world? Why or why not? Do you think these principles should be universally accepted? If not, how would you modify this definition to reflect what you think are universal principles of the rule of law?

Policing’s Illusion of Safety

A demonstrator holding a candle and a sign with Justice For

I n the past 10 years, headlines have been dominated by incidents of police violence , from the tragic killing of Michael Brown, George Floyd, Breonna Taylor, and most recently Sonya Massey to the numerous protests that followed. These events have sparked a national conversation about the role and history of policing in the United States. The history of policing in the U.S. is neither linear nor monolithic. Instead, it is fragmented and developed differently in various regions. But one aspect of its history stands out clearly: U.S. policing wasn’t constructed out of a desire for public safety but out of a desire to preserve power and the status quo.

From its inception, policing in the U.S. has been a colonial project, with international dimensions that connect directly to imperialism. Early colonial formations of policing included slave patrols in the South and watchmen policing groups in the North. Slave patrols emerged in the early 1700s, designed to enforce slavery and prevent enslaved people from rebelling or escaping. These patrols were authorized to use violence and terror to control Black populations. In the North, early watch systems began in the 1600s, focusing on protecting property and maintaining public order, which often meant safeguarding the interests of the wealthy and powerful. The Texas Rangers, established in 1835, represent another early form of policing aimed at maintaining the interests of settlers and suppressing Indigenous populations.

The rise of industrial capitalism in the 19th century brought about new forms of policing , including the use of police to break strikes and suppress labor organizing. The first major city police department was established in Boston in 1838, followed by New York City in 1845, and Chicago in 1851. These early police forces were employed to protect capital and maintain the status quo during periods of labor unrest, illustrating how policing has long been a tool of economic control. This trend continued into the 20th century, with police frequently called upon to quell protests and labor strikes, using violence and intimidation to suppress worker demands for better conditions and wages.

Resistance to police violence and legitimacy crises have played significant roles in shaping the history of policing. And historically, the response to dissent against policing has been to strengthen policing and embed it more deeply into the social fabric of everyday life.

Read More: The Tyre Nichols Videos Demand Solemnity, Not Sensationalism

Governments, media, and mainstream social institutions have socialized us to believe that police are the only organizations that can effectively provide public safety. This belief justifies the idea that police need to maintain a monopoly on the legitimate use of violence. For most of modern history, though, police weren’t seen this way. Instead, they were viewed as a violent occupying force serving the interests of those in power. For the communities targeted by police violence, the idea that police weren’t created in the interest of safety isn’t surprising. Police are said to be the stewards of public safety, but across the country, policing emerged in the 17th century as a tool of racial and class domination and control. The professionalization era of police, which began in the early 1900s and sought to address widespread corruption and the problems of policing, transformed policing practices but did not address the problems of policing: police power itself . The police violence we see today is not a fluke or aberration. The criminal-legal system today is not broken; it is operating exactly as it was designed to: as a violent tool of race and class control that protects very few.

The mid-1900s saw significant investments and efforts by politicians and police leaders that set history on a course where policing would swell in ways that few could have predicted. President Lyndon B. Johnson’s war on crime reinforced the public perception that local law enforcement was the only legitimate guardian of public safety. The 1965 Law Enforcement Assistance Act (LEAA) created a federal funding stream that expanded local law enforcement's capacity to acquire military-grade gear and hire more officers. Over the years, billions of dollars have been funneled into local law enforcement, allowing police to acquire more technology and equipment for biased crime control and protest suppression efforts. Despite differences in policing models, the use of policing to control and punish marginalized communities has remained constant.

Internationally, U.S. policing methods have been exported to support colonial and imperial efforts seeking to expand empire . For example, during the Cold War, the U.S. trained police forces in allied countries to suppress Communist movements and maintain control over colonized populations. This exchange of tactics between imperial armies and police forces highlights the interconnectedness of domestic and international strategies of control. The use of counterinsurgency techniques, developed by military forces to manage colonized populations, became a staple in American policing, particularly in managing protests and civil unrest.

Today, police and prison spending consume hundreds of billions of dollars that could be spent developing community infrastructures and nonpunitive alternatives to prisons and policing. The criminal-legal system, with its origins in racial and class control, has evolved to maintain the same functions under the guise of public safety. The police violence we witness today is not an anomaly but a continuation of a historical pattern designed to preserve power and control over marginalized communities.

In the 1960s, as political resistance grew, policing expanded. The violence of policing was widespread, and police used brutal tactics to suppress protests and maintain racial segregation and discrimination. During the civil rights movement, police violence was brought into the national spotlight, shocking the conscience of the nation and galvanizing support for the civil rights cause. Police employed attack dogs, high-pressure water cannons, and tear gas against protestors. These tactics were part of a larger strategy to repress activism and maintain racial segregation and discrimination. Police also enforced racial boundaries at parks, schools, modes of transportation, pools, and entire communities.

As policing expanded, law enforcement was given a large degree of latitude, enabling the mass arrest and incarceration of Black and increasingly Latinx people, a legacy that continues today. The professionalization era of policing that began in the early 20th century and the federal embalming of the 1960s with President Johnson's war on crime began shifting perceptions. This period marked the beginning of rebranding efforts—which some have coined police propaganda, or “ copaganda ”—that have positioned the police as crime stoppers and the stewards of public safety. These efforts, supported by federal funds, facilitated a rebranding of police from enforcers of marginalization and political control to perceived protectors of public safety. The promises of police to expand the category deemed worthy of protection and the idea that police are capable of reform further shifted perceptions. This expansion of policing and rebranding efforts in all areas of society led to the shift in public perception, portraying police as essential crime stoppers rather than instruments of social control.

Despite promises of reform, policing continues to focus on reinforcing power structures. These power structures center largely on capital and profit accrual, which have a history of organizing themselves along racial lines. Understanding the origins and evolution of policing in the United States reveals its true purpose: maintaining social control and protecting the interests of the powerful.

We must reimagine public safety in ways that do not rely on coercion and violence but instead focus on community-based solutions that address the root causes of harm and inequality. The rebranding efforts that have positioned the police as crime stoppers and stewards of public safety, alongside their historical and contemporary roles, underscore the need for a fundamental rethinking of public safety beyond policing.

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Somerset County women admit to defrauding Seton Hall Law School of more than $1.3 million

A Somerset County woman who was formerly assistant dean of Seton Hall Law School and her sister were among the three people who have pleaded guilty in federal court to defrauding the school of more than $1.3 million.

Teresina DeAlmeida, 59, and Silvia Cardoso, 61, both of Warren, have pleaded guilty to wire fraud conspiracy, before U.S. District Judge Julien Xavier Neals in Newark federal court.

Rose Martins, 44, of East Hanover, was the other person who pleaded guilty to wire fraud conspiracy.

All three are no longer employed by the school.

Sentencing for Cardoso is scheduled for Nov. 26, for DeAlmeida Dec. 2, and for Martins Dec. 3.

“Through an elaborate, years-long embezzlement scheme, these defendants violated their obligation to the students and exploited their role at this institution of higher learning to line their own pockets," U.S. Attorney Philip R. Sellinger said in a press release. "Through forgery, fraudulent invoices, unauthorized transactions and phony shell companies, they stole money intended to benefit the school and its student body and abused their positions."

Court papers say DeAlmeida was an assistant dean responsible for the school's financial functions and Martins served as her assistant. Cardoso, DeAlmeida’s sister, was also employed by the school in a support staff role.

Court papers say the trio used a variety of methods to defraud the law school:

Beginning in 2009, DeAlmeida directed a school vendor to pay Martins and Cardoso as though they worked for the vendor, though they did not perform any services. DeAlmeida and Martins then caused the vendor to submit false invoices to the graduate school over four years to reimburse the vendor for the amounts paid to Martins and Cardoso.
From 2010 through 2022, DeAlmeida and Martins directed school vendors to order hundreds of thousands of dollars of gift cards and prepaid debit cards the trio used for their personal benefit, and then to submit fraudulent invoices to the school purporting to be for goods and services that were never provided. The conspirators also misused DeAlmeida’s school-issued credit card to purchase hundreds of thousands of dollars of gift cards and prepaid debit cards from the school’s bookstore. DeAlmeida routinely fraudulently approved these charges and Martins forged the signatures of other employees on internal approvals.
In 2015, Martins opened a shell entity called CMS Content Management Specialist LLC. Although CMS never rendered any services to the graduate school, Martins submitted, and DeAlmeida approved, fraudulent invoices totaling more than $208,000.
The conspirators also used DeAlmeida’s school-issued credit card to make tens of thousands of dollars in unauthorized personal purchases. DeAlmeida and Martins used the card to make more than $70,000 in purchases at an online retailer shipped directly to their homes, including woman’s shoes, smart watches, and bed linens. DeAlmeida and Martins fraudulently altered certain receipts before submitting them to the school for payment.

The wire fraud conspiracy charge carries a maximum prison sentence of up to 20 years in prison.

Email: [email protected]

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DOI: 10.1007/s42452-024-06090-y
Corpus ID: 271390566

Strain characteristics of reinforced soft clay around tunnel under metro loads

Zhongcai Lin , Chunling Yan , +1 author Yiqun Tang
Published in Discover Applied Sciences 20 July 2024
Engineering, Environmental Science
Discover Applied Sciences

16 References

Microscopic experimental analysis of the accumulated plastic strain on a silty soil around a tunnel under a subway loading, the deformation characteristics of saturated mucky clay under subway vehicle loads in guangzhou, evaluation of train-induced settlement for metro tunnel in saturated clay based on an elastoplastic constitutive model, accumulated deformation characteristics of silty soil under the subway loading in shanghai, deformation characteristics of fine-grained soil under cyclic loading with intermittence, dynamic response and long-term settlement of a metro tunnel in saturated clay due to moving train load, orthogonal test and regression analysis of the strain on silty soil in shanghai under metro loading, undrained behavior of clay under cyclic shear stresses, accumulative plastic strain of thawed saturated clay under long-term cyclic loading, a combined method to predict the long-term settlements of roads on soft soil under cyclic traffic loadings, related papers.

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