law definition essay

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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The nature of constitutional law

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constitutional law

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

Constitutions and constitutional law

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

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

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

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

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

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

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

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

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The Rule of Law

The phrase “the Rule of Law” has to be distinguished from the phrase “a rule of law”. The latter phrase is used to designate some particular legal rule like the rule against perpetuities or the rule that says we have to file our taxes by a certain date. Those are rules of law, but the Rule of Law is one of the ideals of our political morality and it refers to the ascendancy of law as such and of the institutions of the legal system in a system of governance.

The Rule of Law comprises a number of principles of a formal and procedural character, addressing the way in which a community is governed. The formal principles concern the generality, clarity, publicity, stability, and prospectivity of the norms that govern a society. The procedural principles concern the processes by which these norms are administered, and the institutions—like courts and an independent judiciary that their administration requires. On some accounts, the Rule of Law also comprises certain substantive ideals like a presumption of liberty and respect for private property rights. But these are much more controversial (see section 1 below). And indeed as we shall see there is a great deal of controversy about what the Rule of Law requires.

1. One Ideal among Others

2. the contestedness of the rule of law, 3.1 aristotle, 3.2 john locke, 3.3 montesquieu, 4. rule of law and rule by law, 5.1 formal aspects, 5.2 procedural aspects, 5.3 substantive theories, 6. the values underlying the rule of law, 7. opposition to the rule of law, 8.1 discretion, 8.2 rules and standards, 8.3 law and social norms, 8.4 emergencies, 8.5 international law, 8.6 development and nation-building, 9. the rule of law and the concept of law, other internet resources, related entries.

The Rule of Law is one ideal in an array of values that dominates liberal political morality: others include democracy, human rights, social justice, and economic freedom. The plurality of these values seems to indicate that there are multiple ways in which social and political systems can be evaluated, and these do not necessarily fit tidily together. Some legal philosophers (e.g., Raz 1977) insist, as a matter of analytic clarity, that the Rule of Law in particular must be distinguished from democracy, human rights, and social justice. They confine the focus of the Rule of Law to formal and procedural aspects of governmental institutions, without regard to the content of the policies they implement. But the point is controversial. As we shall see, some substantive accounts have been developed, which amount in effect to the integration of the Rule of Law with some of these other ideals.

The most important demand of the Rule of Law is that people in positions of authority should exercise their power within a constraining framework of well-established public norms rather than in an arbitrary, ad hoc , or purely discretionary manner on the basis of their own preferences or ideology. It insists that the government should operate within a framework of law in everything it does, and that it should be accountable through law when there is a suggestion of unauthorized action by those in power.

But the Rule of Law is not just about government. It requires also that citizens should respect and comply with legal norms, even when they disagree with them. When their interests conflict with others’ they should accept legal determinations of what their rights and duties are. Also, the law should be the same for everyone, so that no one is above the law, and everyone has access to the law’s protection. The requirement of access is particularly important, in two senses. First, law should be epistemically accessible: it should be a body of norms promulgated as public knowledge so that people can study it, internalize it, figure out what it requires of them, and use it as a framework for their plans and expectations and for settling their disputes with others. Secondly, legal institutions and their procedures should be available to ordinary people to uphold their rights, settle their disputes, and protect them against abuses of public and private power. All of this in turn requires the independence of the judiciary, the accountability of government officials, the transparency of public business, and the integrity of legal procedures.

Beyond these generalities, it is controversial what the Rule of Law requires. This is partly because the Rule of Law is a working political idea, as much the property of ordinary citizens, lawyers, activists and politicians as of the jurists and philosophers who study it. The features that ordinary people call attention to are not necessarily the features that legal philosophers have emphasized in their academic conceptions. Legal philosophers tend to emphasize formal elements of the Rule of Law such as rule by general norms (rather than particular decrees); rule by norms laid down in advance (rather than by retrospective enactments); rule by norms that are made public (not hidden away in the closets of the administration); and rule by clear and determinate legal norms (norms whose meaning is not so vague or contestable as to leave those who are subject to them at the mercy of official discretion). But these are not necessarily what ordinary people have in mind when they call for the Rule of Law; they often have in mind the absence of corruption, the independence of the judiciary, and a presumption in favor of liberty.

Contestation about what the Rule of Law requires is partly a product of the fact that law itself comprises many things, and people privilege different aspects of a legal system. For some the common law is the epitome of legality; for others, the Rule of Law connotes the impartial application of a clearly drafted statute; for others still the Rule of Law is epitomized by a stable constitution that has been embedded for centuries in the politics of a country. When Aristotle ( Politics 1287b), contrasted the Rule of Law with the rule of men, he ventured the opinion that “a man may be a safer ruler than the written law, but not safer than the customary law”. In our own era, F.A. Hayek (1973: 72 ff.) has been at pains to distinguish the rule of law from the rule of legislation, identifying the former with something more like the evolutionary development of the common law, less constructive and less susceptible to deliberate control than the enactment of a statute. There is also continual debate about the relation between law and the mechanisms of government. For some, official discretion is incompatible with the Rule of Law; for others it depends on how the discretion is framed and authorized. For some the final determination of a court amounts to the Rule of Law; for others, aware of the politics of the judiciary, rule by courts (particularly a politically divided court) is as much an instance of the rule of men as the decision of any other junta or committee (see Waldron 2002 for a full account of these controversies).

The fact that the Rule of Law is a controversial idea does not stop various organizations from trying to measure its application in different societies. Groups like the World Justice Project concoct criteria and indexes of the Rule of Law, ranking the nations of the earth in this regard. Countries like Norway and New Zealand rank at the top of the Rule-of-Law league and countries like Zimbabwe and Afghanistan at the bottom (see Other Internet Resources ). The criteria can be hardly be described as rigorous. But people in business value these rankings as part of their estimation of country risk for foreign investments (see Barro 2000: 215ff.)

3. History of the Rule of Law

The Rule of Law has been an important ideal in our political tradition for millennia, and it is impossible to grasp and evaluate modern understandings of it without fathoming that historical heritage. The heritage of argument about the Rule of Law begins with Aristotle (c. 350 BC); it proceeds with medieval theorists like Sir John Fortescue (1471), who sought to distinguish lawful from despotic forms of kingship; it goes on through the early modern period in the work of John Locke (1689), James Harrington (1656), and (oddly enough) Niccolò Machiavelli (1517); in the European Enlightenment in the writings of Montesquieu (1748) and others; in American constitutionalism in The Federalist Papers and (and even more forcefully) in the writings of the Federalists’ opponents; and, in the modern era, in Britain in the writings of A. V. Dicey (1885), F.A. Hayek (1944, 1960, and 1973), Michael Oakeshott (1983), Joseph Raz (1977), and John Finnis (1980), and in America in the writings of Lon Fuller (1964), Ronald Dworkin (1985), and John Rawls (1971). Because the heritage of this idea is so much a part of its modern application, a few highlights need to be mentioned.

The work of Aristotle on the Rule of Law is still influential. Though he formulated the question of whether it was better to be ruled by the best man or the best laws, he approached that question realistically, noting that it depended not only on the type of law one was considering but also on the type of regime that enacted and administered the law in question ( Politics 1282b)

But Aristotle did maintain that law as such had certain advantages as a mode of governance. Laws are laid down in general terms, well in advance of the particular cases to which they may be applied. Moreover,

laws are made after long consideration, whereas decisions in the courts are given at short notice, which makes it hard for those who try the case to satisfy the claims of justice. ( Rhetoric 1354b)

There were, he conceded, some cases so fraught with difficulty that they could not be handled by general rules—cases that required the focused insight of particular judges; he used the term epieikeia (sometimes translated as equity). But these cases should be kept to a minimum and legal training and legal institutions should continue to play a role in the way they are disposed of. Aristotle’s discussion of the general desirability of rules and his treatment of epieikeia continue to influence modern jurisprudence (see Scalia 1989 and Solum 1994).

John Locke in the second of his Two Treatises of Government (1689) emphasized the importance of governance through “established standing Laws, promulgated and known to the People”. He contrasted this with rule by “extemporary Arbitrary Decrees” (Locke 1689: §§135–7). Now the term “arbitrary” can mean many different things. Sometimes it means “oppressive”. But when Locke distinguished the rule of settled standing laws from arbitrary decrees, it was not the oppressive sense of “arbitrary” that he had in mind. In this context, something is arbitrary because it is extemporary: there is no notice of it; the ruler just figures it out as he goes along. It is the arbitrariness of unpredictability, not knowing what you can rely on, being subject, as Locke put it (1689: §137), to someone’s

sudden thoughts, or unrestrain’d, and till that moment unknown Wills without having any measures set down which may guide and justifie their actions.

In Locke’s story, one of the things that people wanted to get away from in the state of nature was being subject to others’ incalculable opinions—even when those others were thinking as hard and rigorously as they could about natural law. Your thinking might be different from my thinking, and it might turn out that your view of the relation between your interests and my interests and your property and my interests might be quite different from my view of the matter and quite different again from the view of the next person I came across. The whole point of moving from a state of nature to a situation of positive law was to introduce some predictability into this picture.

Unfortunately, having laid down this requirement, Locke complicated matters by adding a substantive principle of respect for private property: “The Supream Power cannot take from any Man any part of his Property without his own consent”, and any law that purports to do so is of no validity (Locke 1689: §138). But then there is a difficulty. Though Locke gave us his own theory of prepolitical property rights—the so-called “Labor Theory” in Chapter Five of the Second Treatise —it was itself far from uncontroversial. People in our day, as in his, disagree about the rival claims of labor and occupancy; they disagree about the background of common ownership; and they disagree about how much anyone may appropriate and how sensitive his appropriation must be to the needs of others. We disagree about all that—in ways that were made evident, for example, in the debates about the Lockean theory of Robert Nozick (1974). And Locke and his contemporaries disagreed too; Locke knew, and signaled in a number of places that he knew just how controversial all this was (Tully 1980: 64 ff; for Locke’s awareness of the controversies, see Waldron 1999: 74–5).

By insisting therefore that positive law is subject to this substantive constraint, Locke subjected the legislature to a discipline of uncertainty. Because the natural right of property was controversial, so the administration of any substantive constraint along these lines was bound to be controversial. And because the substantive constraint was supposed to affect the validity of positive law (Locke 1689: §135), the effect would be that some people—let’s say those who disagreed with Locke about the claims of labor over occupancy—would disagree with him about which positive rules of property are valid and which are not.

Montesquieu’s work on the Rule of Law is best known in connection with his insistence on the separation of powers—particularly the separation of judicial power from executive and legislative authority (see Montesquieu 1748: Bk. 11, Ch. 6). The judiciary has to be able to do its work as the mouthpiece of the laws without being distracted from fresh decisions made in the course of its considerations by legislators and policy-makers. Montesquieu’s views on the separation of powers had a profound effect on the American founding, particularly in the work of James Madison ( Federalist Papers , §47).

Elsewhere in The Spirit of the Laws , Montesquieu developed a theory of the value of legalism. Noting that despotic governments tend to have very simple laws which they administered peremptorily with little respect for procedural delicacy, Montesquieu argued that legal and procedural complexity tended to be associated with respect for people’s dignity. He associated this sort of respect with a monarchy ruling by law, as opposed to despotism:

In monarchies, the administering of a justice that hands down decisions not only about life and goods, but also about honor, requires scrupulous inquiries. The fastidiousness of the judge grows as more issues are deposited with him, and as he pronounces upon greater interests. (Montesquieu 1748: Bk. VI, ch. 1, p. 72)

This emphasis on the value of complexity—the way in which complicated laws, particularly laws of property, provide hedges beneath which people can find shelter from the intrusive demands of power—has continued to fascinate modern theorists of the rule of law (e.g., Thompson 1975: 258–69).

In the modern debate we also hear echoes of the doctrine propounded in The Spirit of the Laws (1748: Bk. 26, ch. 15, p.510) that “things that depend on principles of civil right must not be ruled by principles of political right”. “Civil right”—Montesquieu’s word for what we call private law—is, he said, “the palladium of property”, and it should be allowed to operate according to its own logic, not burdened with the principles of public or political regulation. A failure of the Rule of Law in this regard is likely to lead to the impoverishment of an economy, as expectations collapse, and owners’ incentives for production and enterprise are undermined (Montesquieu 1748: Bk. V, ch. 14, p. 61).

Writing in the second half of the 19 th century, Albert Venn Dicey bemoaned what he saw as a decline in respect for the Rule of Law in England. The Rule of Law used to be a proud tradition that distinguished governance in England both from the executive domination of droit administratif in France and also from the fatuous and abstract certainties of paper constitutions in countries like Belgium etc. For Dicey, the key to the Rule of Law was legal equality:

[W]ith us no man is above the law [and] every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. (1992 [1885]: 114)

Attractive as this is in the abstract, it exhibited a certain naivety so far as the legal position of state officials was concerned. Officials are and often need to be treated differently in law than the ordinary citizen: they need certain extra powers and they need to be hemmed in by extra restrictions, so that they can be held accountable for the actions they perform in the name of the community. For the ordinary person, the Rule of Law generates a presumption in favor of liberty: everything which is not expressly prohibited is permitted. But for the state and its officials, we may want to work with the contrary presumption: the state may act only under express legal authorization.

Dicey had a knack of expressing the Rule of Law in terms of principles whose eloquent formulations belied their deeper difficulties. His first principle of the Rule of Law was:

[N]o man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land. (Dicey 1992 [1885]: 110)

This seems fine if we are talking about the imposition of criminal sanctions. But “made to suffer in … goods” can also be read to connote the imposition of restrictions on the use of personal or corporate property, or the giving or withholding of licenses, grants, and subsidies. It can be read as precluding any form of discretionary regulation. Dicey was indeed inclined to disparage all administrative discretion, particularly where it seemed to be superseding what had traditionally been regarded as judicial functions. But can we really do without discretion in modern governance? Some modern scholars of administrative law have denounced Dicey’s account as an “extravagant”, “absurd”, and pernicious version of the Rule of Law (Davis 1969: 27–32).

F.A. Hayek was by training an economist, but he also nurtured an interest in the relation between legal structures and forms of national economy. Hayek’s work on the Rule of Law proceeded in two phases: (1) from his wartime book The Road to Serfdom (1944) through to The Constitution of Liberty (Hayek 1960); and (2) the somewhat different account presented in his trilogy, Law, Legislation and Liberty (1973), an account which is more congenial to the spirit of common law and hostile to the role of legislation.

(1) Governance during wartime necessarily required total mobilization and management of all of the society’s manpower and resources. Hayek warned in 1944 against the retention of anything like this mode of administration in peacetime. He made an eloquent argument that in normal times a society need not be managed but should be governed—and its people largely left to their own devices—within a framework of general rules laid down in advance. These rules would operate impersonally to protect people from one another, not being aimed at any person or situation in particular and not being dependent for their operation on any expectation on the part of government as to what the particular effects of their application would be. But this lack of particular knowledge on the part of the government would be offset by the fact that rules would provide a framework of predictability for ordinary people and businesses. They would know that they would not be molested by the state, provided they operated within the parameters of the general and impersonal rules. Human freedom, on Hayek’s account, did not preclude all state action; but it does require that state action be calculable.

(2) In the 1970s, Hayek began to rethink all this. The attention was still on the implications of Rule of Law for liberty. But now Hayek began to wonder whether the texts of clear general legislated rules would really provide an appropriate framework for freedom. It was, he said, a mistake to think that “by confining the judge to the application of already articulated rules we will increase the predictability of his decisions”. Articulated rules are “often a very imperfect formulation of principles which people can better honour in action than express in words” (Hayek 1973: 118). He favored something more like a common law model of predictability, with principles and solutions emerging from a series of judicial decisions in an almost evolutionary way. [ 1 ] The evolution of principles that distinguished themselves by their reasonableness was superior, Hayek thought, to the deliberate imposition of rules by a legislator. According to Hayek, the legislative mentality is inherently managerial; it is oriented in the first instance to the organization of the state’s own administrative apparatus; and its extension into the realm of public policy generally means an outward projection of that sort of managerial mentality with frightful consequences for liberty and markets.

Lon Fuller believed that government in accordance with the forms and procedures of law had a distinctive value that could help close the gap of separation between positive law, on the one hand, and morality and justice on the other. The conventional wisdom of the legal positivists held that laws could be impeccably drafted and even-handedly administered and still be hideously unjust: antebellum slave law in the United States and apartheid law in South Africa were often cited as examples. But Fuller believed, as a matter of political psychology, that there would be reluctance to use the forms of law—general and public norms—to embody and inscribe injustice. He believed that “coherence and goodness [had] more affinity than coherence and evil”, he thought bad things happened in the dark as opposed to the sunlight of legality, and he maintained that “even in the most perverted regimes there is a certain hesitancy about writing cruelties, intolerances, and inhumanities into law” (Fuller 1958: 636–7).

Fuller acknowledged that this link between legality and justice was tentative. It was certainly controversial. But whether this connection held or not, he also wanted to insist that the complete absence of respect for formal criteria of legality might deprive a system of power of its status as law:

When a system calling itself law is predicated upon a general disregard by judges of the terms of the laws they purport to enforce, when this system habitually cures its legal irregularities, even the grossest, by retroactive statutes, when it has only to resort to forays of terror in the streets, which no one dares challenge, in order to escape even those scant restraints imposed by the pretense of legality—when all these things have become true of a dictatorship, it is not hard for me, at least, to deny to it the name of law. (Fuller 1958: 660)

In his 1964 book The Morality of Law , Fuller formulated principles of what he called “the inner morality of law”—principles requiring that laws be general, public, prospective, coherent, clear, stable, and practicable—and he argued that these were indispensable to law-making. Reviewing Fuller’s book, H.L.A. Hart (1965) asked in what sense these principles could be called a “morality”. They seemed to be more like instrumental principles for effective legislation, and on Hart’s view, they were only as moral as the enterprise they made possible.

Fuller responded by denying that the significance of his eight principles was purely instrumental. They also constituted a morality of respect for the freedom and dignity of the agents addressed by the law: what they made possible was a mode of governance that worked through ordinary human agency rather than short-circuiting it through manipulation or terror. This thesis was separate from the connection between law and morality intimated in Fuller 1958. But the two accounts of the moral significance of law were connected in a way that John Finnis explained:

A tyranny devoted to pernicious ends has no self-sufficient reason to submit itself to the discipline of operating consistently through the demanding processes of law, granted that the rational point of such self-discipline is the very value of reciprocity, fairness, and respect for persons which the tyrant, ex hypothesis, holds in contempt. (1980: 273)

Fuller’s work on the Rule of Law had one last nuance. He understood that law constituted a distinct kind of governance that might not be relevant for every task of the state. He contrasted it not just with a Nazi-style reign of terror, but with the sort of managerial administration that might be necessary for allocative decision-making in a mixed economy like the United States in the 1960s. In modern political economy, said Fuller, we face problems of institutional design “unprecedented in scope and importance”. Focusing more on the procedural side of the Rule of Law, Fuller insisted that we lawyers acknowledge that although “[a]djudication is a process with which we are familiar and which enables us to show to advantage our special talents”, still it may be “an ineffective instrument for economic management” (Fuller 1964: 176).

Some theorists draw a distinction between the Rule of Law and what they call rule by law (see e.g., Tamanaha 2004: 3). They celebrate the one and disparage the other. The Rule of Law is supposed to lift law above politics. The idea is that the law should stand above every powerful person and agency in the land. Rule by law, in contrast, connotes the instrumental use of law as a tool of political power. It means that the state uses law to control its citizens but tries never to allow law to be used to control the state. Rule by law is associated with the debasement of legality by authoritarian regimes, in modern China for example.

Thomas Hobbes may be seen as a theorist of rule by law. In a society whose members disagree about property, he thought it conducive to peace for the sovereign of a society “to make some common Rules for all men, and to declare them publiquely, by which every man may know what may be called his, what anothers” (Hobbes 1647: Bk. II, ch. 6, sect. ix). But Hobbes also thought that it would undermine peace—indeed it would undermine the very logic of sovereignty—for the ultimate law-maker to be bound by the laws he applied to his subjects (Hobbes 1991 [1651]: 184).

However, the distinction may not be so clear-cut. Even rule by law seems to imply that rulers accept something like the formal discipline of legality. Unless the orders issued by the state are general, clear, prospective, public, and relatively stable, the state is not ruling by law. So this thin version of legality does still have moral significance in the respect it pays to the human need for clarity and predictability. Rule by law “can be a way a government … stabilizes and secures expectations” (Goodpaster 2003: 686). Even if its use remains instrumental to the purposes of the state, it involves what Fuller called a bond of reciprocity with the purposes of those who are governed: the latter are assured that the promulgated rules are the ones that will be used to evaluate their actions (see also Winston 2005: 316).

Some jurists who maintain the contrast between the Rule of Law and rule by law have a more ambitious agenda. They take seriously the ancient idea that we might be ruled by laws and not by men. One may ask: how is that supposed to happen? After all, all law is made by people and interpreted by people and applied by people. It can no more rule us by itself, without human assistance, than a cannon can dominate us without an iron-monger to cast it and an artilleryman to load and fire it. The jurists who contrast the Rule of Law with rule by law believe they can make this work by focusing on laws whose human origins are in some way diffuse or immemorial. We are not necessarily talking here about natural law, but perhaps about something like customary law or common law—law that is not so evidently a top-down product of powerful human law-makers (Epstein 2011). Common law grows and develops under its own steam, and need not be conceived as a device by which some identifiable humans rule over others. No doubt there is a lot of mythology in this. A more realistic view of common law identifies it with the deliberate and arbitrary rule of an entity that Bentham (1792) called “Judge & Co”. But it remains true that the human element is diffuse in this sort of system, and at any given time the law that emerges is a resultant of the work of many people rather than the intentional product of a domineering majority ruling us from the legislative center of a state.

As we saw in the discussion of Hayek (1973), the other side of this coin is a disparagement of legislation, precisely because its enactment seems patently and undeniably to represent the rule of powerful officials. Legislation is a matter of will . The legislative process produces law simply by virtue of a bunch of people in an assembly deciding that a given law is to be produced. And this is done by the very men—powerful politicians—to whose power the Rule of Law is supposed to be an alternative.

However, most people who value the Rule of Law do not accept this approach. If a statute is properly drafted (if it is clear, intelligible and expressed in general terms) and prospectively enacted and promulgated, and if it is administered impartially and with due process—they will call this an entirely appropriate exercise under the Rule of Law. Indeed that is what many scholars mean by the Rule of Law: people being governed by measures laid down in advance in general terms and enforced equally according to the terms in which they have been publicly promulgated. The argument that it should be put aside because it does not contrast sufficiently with the rule of men seems perverse.

No one doubts that legislation can sometimes undermine the Rule of Law, by purporting for example to remove legal accountability from a range of official actions or to preclude the possibility of judicial review of executive action. But this is not a problem with legislation as such; this is a concern about the content of particular enactments. Rule by judges, too, can sometimes be seen as the very sort of rule by men that the Rule of Law is supposed to supersede (see Waldron 2002: 142–3 and 147–8).

5. Formal, Procedural and Substantive Requirements

Theorists of the Rule of Law are fond of producing laundry lists of the principles it comprises. These principles are of disparate kinds, which may loosely be divided into principles that address the formal aspects of governance by law; principles that address its procedural aspects ; and principles that embrace certain substantive values.

The best known are the eight formal principles of Lon Fuller’s “inner morality of law”: (1964; see also the lists in Finnis 1980: 270–1; Rawls 1999: 208–10; and Raz 1979 [1977]: 214–18) generality; publicity; prospectivity; intelligibility; consistency; practicability; stability; and congruence. These principles are formal, because they concern the form of the norms that are applied to our conduct.

So for example, the requirement that laws be general in character, rather than aimed at particular individuals, is purely a matter of form. It is compatible with invidious discrimination so far as its substance is concerned, since even a norm like “A person who is of African descent must sit in the back of any public bus that they ride on” applies, universalizably, to everyone. A formal requirement of generality does not guarantee justice; but that partly reflects the fact that justice and the Rule of Law work as separate criteria for evaluating a political system.

Generality is an important feature of legality, reflected in the longstanding constitutional antipathy to Bills of Attainder. Of course law cannot work without particular orders, but as Raz points out (1979 [1977]: 213) the generality requirement is usually taken to mean that “the making of particular laws should be guided by open and relatively stable general rules”. These rules themselves should operate impersonally and impartially.

Besides the form of the rules themselves there is also the nature of their presence in society. The Rule of Law envisages law operating as a relatively stable set of norms available as public knowledge. It requires that laws be public and that they be promulgated well in advance of individuals’ being held responsible for complying with them. These are features that flow partly from the fact that laws are supposed to guide conduct, which they cannot do if they are secret or retroactive. But it is not just a matter of the pragmatics of governance. Laws face in two directions: (i) they impose requirements for ordinary citizens to comply with; and (ii) they issue instructions to officials about what to do in the event of non-compliance by the citizens. Laws that are secret and retroactive so far as (i) is concerned may still operate effectively in respect of (ii). So the Rule-of-Law requirements of publicity and prospectivity have an additional significance: they require that citizens be put on notice of what is required of them and of any basis on which they are liable be held to account.

The requirement of clarity is also important in this regard. Laws must be public not only in the sense of actual promulgation but also in the sense of accessibility and intelligibly. True, much modern law is necessarily technical (Weber 1968 [1922]: 882–95) and the lay-person will often require professional advice as to what the law requires of him. It is also an important part of the Rule of Law that there be a competent profession available to offer such advice and that the law must be such as to make it possible for professionals at least to get a reliable picture of what the law at any given time requires. In the nineteenth century, Jeremy Bentham (1782: ch. 15 and 1792) criticized customary law in general, and common law in particular, for failing to satisfy this requirement: the sources of law were hidden in obscurity and though there were spurious appeals to precedent, much of the law was just made up by the judges as they went along.

We should complement this list of formal characteristics with a list of procedural principles as well, which are equally indispensable to the Rule of Law. We might say that no one should have any penalty, stigma or serious loss imposed upon them by government except as the upshot of procedures that involve (I have adapted this list from Tashima 2008: 264):

• a hearing by an impartial and independent tribunal that is required to administer existing legal norms on the basis of the formal presentation of evidence and argument;
• a right to representation by counsel at such a hearing
• a right to be present, to confront and question witnesses, and to make legal argument about the bearing of the evidence and the various legal norms relevant to the case; and
• a right to hear reasons from the tribunal when it reaches its decision, which are responsive to the evidence and arguments presented before it.

Arguably, such procedural principles matter more in the ordinary person’s conception of the Rule of Law than the formal criteria mentioned in the previous section. When people worried that the American detention facility in Guantanamo Bay from 2003 to the present was a “black hole” so far as legality was concerned, it was precisely the lack of these procedural rights that they were concerned about. What the detainees demanded, in the name of the Rule of Law, was an opportunity to appear before a proper legal tribunal, to confront and answer the evidence against them (such as it was), and to be represented so that their own side of the story could be explained. No doubt the integrity of these proceedings would depend in part on the formal characteristics of the legal norms that were supposed to govern their detention, whose application in their case they could call in question at the hearings that they demanded. It is difficult to make a case at a hearing if the laws governing detention are kept secret or are indeterminate or are constantly changing. Even so, we still miss out on a whole important dimension of the Rule of Law ideal if we do not also focus on the procedural demands themselves which, as it were, give the formal side of the Rule of Law this purchase.

Some procedural requirements are also institutional in character: there must be courts and there must be judges whose independence of the other branches of government is guaranteed. This side of the Rule of Law is connected with the constitutional principle of the separation of powers. That principle is sometimes justified simply on the ground that it is unhealthy for power to be institutionally concentrated in society. But it also has a Rule of Law justification inasmuch as it assigns distinct significance to distinct stages in the making and application of laws (Waldron 2013).

Though many jurists follow Raz 1977 in thinking that the Rule of Law is a purely formal/procedural ideal, others believe in adding a more substantive dimension. They do not think it is possible to sharply separate our political ideals in the way Raz seems to suppose. At the very least, the formal/procedural aspects generate a certain momentum in a substantive direction. Generality—proceeding according to a rule—is often said to contain the germ of justice (Hart 1961: ch. 8). And, stability, publicity, clarity, and prospectivity indicate a pretty fundamental connection between the Rule of Law and the conditions of liberty. We have to be careful, however, to distinguish between allegedly substantive requirements of the Rule of Law and specification of the deeper values that underlie and motivate the ideal even in its formal and procedural requirements.

Some jurists believe that there is a special affinity between the Rule of Law and the vindication and support of private property. Ronald Cass (2004: 131) says that “[a] critical aspect of the commitment to the rule of law is the definition and protection of property rights”.

[T]he degree to which the society is bound by law, is committed to processes that allow property rights to be secure under legal rules that will be applied predictably and not subject to the whims of particular individuals, matters. The commitment to such processes is the essence of the rule of law. Cass (2004: 131)

Others, like Richard Epstein (2011: 10), accept that “[a]nalytically, the rule of law is … a separate conception from private property”. But they think nevertheless that a contingent connection between the Rule of Law and private property can be established by showing that the forms of regulation defenders of private property are concerned about tend to be forms of regulation that the Rule of Law, even on a more austere conception, prohibits.

It is also widely believed—though not necessarily by the same people who associate legality with property—that a system of positive law that fails to respect fundamental human rights should not be dignified with the term “the Rule of Law”. The World Justice Project in 2011 quoted Arthur Chaskalson, former Chief Justice of South Africa, to this effect:

[T]he apartheid government, its officers and agents were accountable in accordance with the laws; the laws were clear; publicized, and stable, and were upheld by law enforcement officials and judges. What was missing was the substantive component of the rule of law. The process by which the laws were made was not fair (only whites, a minority of the population, had the vote). And the laws themselves were not fair. They institutionalized discrimination, vested broad discretionary powers in the executive, and failed to protect fundamental rights. Without a substantive content there would be no answer to the criticism, sometimes voiced, that the rule of law is “an empty vessel into which any law could be poured”. (World Justice Project 2011: 9)

On the other hand, as we have seen, Joseph Raz (1979 [1977]: 211) is famous for insisting that “the rule of law is just one of the virtues which a legal system may possess and by which it is to be judged”, and that we should not try to read into it other considerations about democracy, human rights, and social justice. Those considerations, he said, are better understood as independent dimensions of assessment. Tom Bingham, in his book on The Rule of Law , said this in response to Raz:

While … one can recognize the logical force of Professor Raz’s contention, I would roundly reject it in favor of a “thick” definition, embracing the protection of human rights within its scope. A state which savagely represses or persecutes sections of its people cannot in my view be regarded as observing the rule of law, even if the transport of the persecuted minority to the concentration camp or the compulsory exposure of female children on the mountainside is the subject of detailed laws duly enacted and scrupulously observed. (Bingham 2010: 67)

Lord Bingham’s position has an intuitive appeal in the eyes of many commentators, even if it irritates in its casual rejection of a point whose logic it claims to recognize.

Both Chaskalson and Bingham seem to want to fill out the formal/ procedural conception of the Rule of Law with some human rights component. And many liberals are inclined to follow them in that. But this is not the only possibility. Many associate the Rule of Law with a presumption of liberty or the principle of human dignity. Others—Arthur Chaskalson hinted at this—associate the Rule of Law with a substantive dimension of democracy.

All this sounds an analytic danger signal. Once we open up the possibility of the Rule of Law’s having a substantive dimension, we inaugurate a sort of competition in which everyone clamors to have their favorite political ideal incorporated as a substantive dimension of the Rule of Law. Those who favor property rights and market economy will scramble to privilege their favorite values in this regard. But so will those who favor human rights, or those who favor democratic participation, or those who favor civil liberties or social justice. The result is likely to be a general decline in political articulacy, as people struggle to use the same term to express disparate ideals.

Even if the principles of the Rule of Law are purely formal in their application, we don’t just value them for formalistic reasons. Most fundamentally, people value the Rule of Law because it takes some of the edge off the power that is necessarily exercised over them in a political community. In various ways, being ruled through law, means that power is less arbitrary, more predictable, more impersonal, less peremptory, less coercive even. It establishes what Fuller (1964: 39–40) called a bond of reciprocity—a mutuality of constraint—between the ruler and the ruled, and in that sense it mitigates the asymmetry that political power otherwise involves.

Connected with this, the Rule of Law is valuable and important because it establishes an environment that is conducive to liberty. According to Hayek’s theory of the Rule of Law—particularly in the early phase of his work (see section 3.5 above)—we value requirements like generality and impersonality because they free us from dependence upon others’ wills:

My action can hardly be regarded as subject to the will of another person if I use his rules for my own purposes as I might use my knowledge of a law of nature, and if that person does not know of my existence or of the particular circumstances in which the rules will apply to me or of the effects they will have on my plans. (Hayek 1960: 152)

Hayek also maintained that requirements of clarity, prospectivity and so on make an important contribution to predictability, which he thought was indispensable for individual freedom. Predictability is often cited as a Rule-of-Law virtue. In his well-known recent book on the subject, Tom Bingham indicated that one of the most important things people needed from the law that governed them was predictability in the conduct of their lives and businesses. He quoted Lord Mansfield to the effect that

[i]n all mercantile transactions the great object should be certainty: … it is of more consequence that a rule should be certain, than whether the rule is established one way rather than the other. (Lord Mansfield in Vallejo v. Wheeler (1774) 1 Cowp. 143, p. 153 (cited by Bingham 2010: 38))

Bingham went on to observe in his own voice that

[n]o one would choose to do business … involving large sums of money, in a country where parties’ rights and obligations were undecided. (Bingham 2010: 38)

These conceptions claim to bring a certain air of reality to our discussions of freedom. There may be no getting away from legal constraint in the circumstances of modern life, but freedom is possible nevertheless if people know in advance how the law will operate and how they have to act to avoid its application. Knowing in advance how the law will operate enables one to make plans and work around its requirements (see Hayek 1960: 153 and 156–7). And knowing that one can count on the law’s protecting property and personal rights gives each citizen some certainty about what he can rely on in his dealings with other people. The Rule of Law is violated, on this account, when the norms that are applied by officials do not correspond to the norms that have been made public to the citizens or when officials act on the basis of their own discretion rather than norms laid down in advance. If action of this sort becomes endemic, then not only are people’s expectations disappointed, but increasingly they will find themselves unable to form expectations on which to rely, and the horizons of their planning and their economic activity will shrink accordingly.

So we need a basis for expectation. The best account of the importance of legal expectations was given by the utilitarian philosopher Jeremy Bentham, in a work called “Principles of the Civil Code”. Expectation, said Bentham, is “a chain which unites our present existence to our future existence”.

It is hence that we have the power of forming a general plan of conduct; it is hence that the successive instants which compose the duration of life are not isolated and independent points, but become continuous parts of a whole. (Bentham 1931 [1802, 1864]: 111)

The establishment of expectations, said Bentham, is largely the work of law, and the security of expectations is a vital constraint on the action of law: “The principle of security … requires that events, so far as they depend upon laws, should conform to the expectations which law itself has created…”.

Joseph Raz and Lon Fuller took the point about freedom even further. Raz (1979 [1977]: 221) suggested that securing an atmosphere conducive to freedom was a matter of dignity: “Respecting human dignity entails treating humans as persons capable of planning and plotting their future” (Raz 1979 [1977]: 221). In Lon Fuller’s theory, too, the principles of the inner morality of law were valued for the way they respected dignity:

To embark on the enterprise of subjecting human conduct to rules involves … a commitment to the view that man is … a responsible agent, capable of understanding and following rules…. Every departure from the principles of law’s inner morality is an affront to man’s dignity as a responsible agent. To judge his actions by unpublished or retrospective laws, or to order him to do an act that is impossible, is to convey … your indifference to his powers of self-determination. (Fuller 1964: 162)

What is said here about the connection between dignity and Fuller’s formal principles can be said even more about the connection between procedure and dignity. Procedural principles capture a deep and important sense that law is a mode of governing people that treats them as though they had a perspective of their own to present on the application of norms to their conduct and situation. Applying a norm to a human individual is not like deciding what to do about a rabid animal or a dilapidated house. It involves paying attention to a point of view. As such it embodies a crucial dignitarian idea—respecting the dignity of those to whom the norms are applied as beings capable of explaining themselves.

No account of the Rule of Law is complete if it does not mention the ways in which this ideal is deprecated. The laudatory history of the Rule of Law in the work of thinkers like Aristotle, Locke, Dicey, Hayek and Fuller has been matched by opponents of legality such as Plato (in The Statesman ), Thomas Hobbes (at least if the Rule of Law is supposed to take us beyond rule by law), and Carl Schmitt 1923 (in his attack on parliamentarism and on the liberal assumption that rules can prevail even under conditions of endemic crisis).

The criticism by Plato (c. 370 BC) has been the most enduring. From his perspective, which extolled the application of focused intelligence and insight by those in power, insistence upon the use of law in government was

like a stubborn, stupid person who refuses to allow the slightest deviation from or questioning of his own rules, even if the situation has in fact changed and it turns out to be better for someone to contravene these rules. ( Statesman 294b–c)

Rules themselves were part of the problem: “People and situations differ, and human affairs are characterized by an almost permanent state of instability” ( Statesman 294b). One would use them, only as a (distant) second-best, if one felt one couldn’t discern or trust the appearance of expertise in political life. These concerns are echoed in the work of modern legal pragmatists (like Posner 1995) who place much more faith in insight of judges into new situations than in the application of established rules or strained analogies with ancient precedents.

Echoes of the Platonic critique are also heard in those who privilege decisive executive decision-making in times of crisis, especially if the crises seem to be successive and unending (Schmitt 1923; Posner and Vermeule 2010). Someone’s will has to prevail and, it is said, the Rule of Law does us no service by pretending that the element of will can be eliminated from politics or that decisiveness matters less than the “long deliberation” that was extolled in Aristotle's Rhetoric .

The sense of what good law-making and ordinary legal administration require conveyed by the principles of the Rule of Law is sometimes criticized as archaic. Partisans of the Rule of Law often think in terms of clearly drafted and prospective measures promulgated as norms that can stand in the name of the whole community and form a publicly acknowledged framework for their actions and transactions. But this is not really how law operates in the modern world. As Rubin 1989 points out, a great deal of modern legislation consists simply of a frame-working statute authoring agencies to develop much more detailed rules which are conveyed to the public—to the extent that is necessary—by modes of communication much more complex and nuanced than those envisaged in traditional models of the Rule of Law. For example, the principles comprised in Fuller 1964’s inner morality of law—see section 3.6 above—are recipes perhaps for the production of legislation that looks congenial to legalistic concerns about clarity and predictability. But it has little or nothing to do with the way law actually operates or the way legislatures communicate with agencies and agencies in turn communicate with those whose actions and businesses they supervise (Rubin 1989: 397–408).

At the same time, there are concerns about the mentality that is fostered by an excessive emphasis on the Rule of Law. In its most extreme form, the Rule of Law can have the effect of closing down the faculty of independent moral thought in the officials (the judges, for example: see Cover 1975) or in the ordinary members of a community, making them anxious in the face of uncertainty and distrustful of their own or others’ individual judgments (see Henderson 1990). Sometimes it is important, for the sake of clear and courageous moral judgment, not to exaggerate the importance of something being required by law. Other concerns about the mentality fostered by the Rule of Law include concerns about legalism and the tendency to over-formalize or over-bureaucratize relationships that are more healthily conceived in terms that are more informal. This is not just a matter of legalizing the personal realm; it is also a matter of understanding, for example, the damage that can be done to relations between officials (like social workers) and vulnerable clients by replacing bringing in rigid rules to replace relatively informal professional norms (Simon 1983).

8. Controversies about Application

As well as these debates about the value of the Rule of Law there is, within the camp of those who stand for legality, incessant controversy about what the Rule of Law requires. I have mentioned the general debates between defenders of formal, procedural, and substantive conceptions. There are also a number of particular debates.

How far should it be the mission of the Rule of Law to eliminate or reduce the amount of discretion in the way a society is governed? Some jurists, like Dicey (1885) and to a lesser extent Hayek (1944) insist that official discretion is inherently antithetical to the Rule of Law. Others, like Davis (1969), condemn this as an extravagant position, arguing that discretion is ineliminable in the modern administrative state. The rule of the Rule of Law is not to eliminate discretion, but to ensure that it is properly framed and authorized, and that the application of rules and judicial procedures is preserved for those cases where liberty and well-being are most seriously at stake.

A similar question arises with regard to the use of norms that have the character of standards rather than rules. (A rule is like a numerical speed limit, whereas a standard is like a norm that requires people to drive at a “reasonable” speed.) Legal systems use both types of norm (Sunstein 1994); they use standards for cases where the appropriate decision may vary with ambient circumstances and it seems better to trust the judgment of those who face a particular situation, rather than laying it down in advance. There is an element of respect for individuals’ powers of discernment conveyed in the use of a standard. At the same time standards allow for less certainty in the law, especially when it is difficult for the person attempting to comply with the norm to predict how his judgment will be viewed by an official or by a court. Hayek suggests that

[o]ne could write a history of the decline of the Rule of Law … in terms of the progressive introduction of these vague formulas into legislation and jurisdiction. (1972 [1944]: 78)

Whether he is right depends partly on how far we take the Rule of Law to be wedded to predictability: is predictability the be-all and end-all, or does the Rule of Law also promise a kind of legal system that frames and facilitates reason and thoughtfulness in human affairs?

Sometimes situations can be governed and disputes settled by informal social norms rather than by positive law, formally enacted and enforced (Ellickson 1994). Opinions differ as to whether this should be regarded as something altogether different from the Rule of Law. On the one hand, it looks like a genuine alternative, and little is gained by assimilating its desirable features, such as they are, to Rule-of-Law requirements. On the other hand, it does have something in common with understandings of customary law and conceptions of the Rule of Law (like that of Hayek 1973) that try to separate themselves from enactment and legislation. Also it is sometimes said that the Rule of Law works best when what is enforced in a society can be mapped on to its members’ norms of fairness and common-sense. This makes social participation in the integrity and upholding of law more likely (Cooter 1997). The closer this mapping, the less of an investment there has to be in formal legal promulgation: ordinary know-how can become a reliable guide to legal knowledge. However, one has to be very cautious with this. Modern law is inevitably technical in ways that far outstrip the possibilities of intuitive understanding (Weber 1968 [1922]: 882–95). The best that can be hoped for is some sort of occasional consonance between enacted law and informal understandings, and the sporadic character of that may well heighten rather than reduce unpredictability.

Is it reasonable to use the Rule of Law to evaluate the way a society responds to emergencies? It is often thought that emergencies require forms of state action that are more peremptory and less procedurally laborious than those required in normal times. As a matter of fact, a number of possibilities have been discussed (Scheuerman 2006). One is to insist, in the name of the Rule of Law, that existing constitutional safeguards should remain in force; that, after all, is what they were designed for and these situations are where they are most urgently needed. Alternatively, in emergencies, one might rely on a general spirit of flexibility and circumstantial sensitivity in state action that is encouraged even in normal times. On this second option, the Rule of Law does not present itself as a major constraint on the flexibility of state action in face of danger. As a third option, one might seek to preserve something like the Rule of Law by laying down in advance specific legal rules to govern emergencies—rules that suspend ordinary civil liberties guarantees for example or authorize widespread discretion on the part of officials to undertake action that would normally be governed by general rules of law. (Machiavelli proposed a version of this in his Discourses (1517), extolling the institution of dictator in the Roman republic.) This option has the advantage of predictability; but its disadvantage is that it endorses a sort of Rule-of-Law- lite , which may eventually infect or supersede the conception of the Rule of Law that is supposed to be normally applicable.

The Rule of Law applies not only within national polities but also increasingly between them, but in this arena its use remains under-theorized (for a helpful discussion, see Crawford 2003). Much of the work that has been done on the international Rule of Law simply adopts uncritically the perspective of those who say, at the national level, that the Rule of Law requires determinacy, clarity, and predictability (see Chesterman 2008). But this may be misconceived when we are talking about states rather than individuals as the subjects of law (Waldron 2011b). States are in a much better position to be informed of what their legal requirements are than individual men and women in society, since they are parties to the treaties and practices that establish international law. (Maybe, though, this point does not hold to the same extent when we consider the murky depths of customary international law.)

Anyway, the liberty of an individual state is not such an important value as the liberty of an individual person. It is not clear that national states need protection from international law and the power that it represents in the way that ordinary men and women need protection from the exercise of political power in society. Moreover, in areas like international human rights law, any presumption based on the Rule of Law in favor of the liberty of national states will tend to have detrimental effects on the liberty or well-being of individual men and women. We have to be careful therefore that invocation of the Rule of Law in the international realm does not undermine the values that are supposed to be secured by this ideal within national polities.

One additional point. It remains controversial whether international institutions themselves—like the United Nations and its agencies—should be bound by the Rule of Law. This odd because these agencies are among the most vociferous advocates of the Rule of Law so far as its application to national states is concerned. The reluctance here stems in large part from an estimation of the importance of diplomatic immunity. UN officials worry that if they and their agencies are held legally liable for malfeasances of various kinds associated with peace-keeping activities, there is a danger that the whole basis of international action might unravel. The danger is probably exaggerated, however, and those who make this argument would not for a moment countenance a similar argument in the sphere of national states.

The Rule of Law is often cited as the key to nation-building and to the establishment of new democracies. Indeed it is often argued (e.g., Barro 2000) that a new state needs Rule-of-Law institutions—effective courts and commercial codes that can secure property rights and the enforcement of contracts—more than or even before it needs democratic institutions such as an elected legislature. It is said that a legal system in a developing country dominated by legislative action will neither inspire the confidence nor establish the stability that modern governance and investment require. (For discussion of these arguments, see Carothers 1998 and—more critically—Carothers 2009.) This raises once more the question of relation between the Rule of Law and legislation—only now it takes us also in the direction of considering an rather uncomfortably direct trade-off between Rule of Law values and democracy.

Finally, an analytic question. What is the relation between the Rule of Law and the concept of law? A case can be made—controversial, no doubt—for bringing the two of them together (see Waldron 2008 and also Simmonds 2008). The concept of law could be understood to embrace the fundamental elements of legality, though this identification looks less plausible the more substantive the conception of the Rule of Law is held to be. On this account, a system of governance doesn’t count as law unless it exhibits the characteristic forms and processes that we associate with legality. Otherwise we lose our sense of the institutional distinctiveness of law as a way of ruling a society. We saw earlier that Lon Fuller (1958 and 1964) envisaged a connection along these lines. So, in his later work did Ronald Dworkin. Dworkin (2004) asked us to consider a situation in which judges and lawyers were grappling with hard issues of interpretation or with difficult dilemmas posed by multiple sources of law. He said that in such cases, we might say that what was required as a matter of law might be different from what was required as a matter of justice. That is a familiar separation (even if Dworkin thought it was narrower and more blurred than most legal positivists believed). But he said, it would make no sense to say that what was required as a matter of legality or respect for the Rule of Law was different from what the legal solution was to this case. To figure out the legal solution we have to address the various legal and political materials precisely in light of our commitment to legality.

A conception of legality is … a general account of how to decide which particular claims are true…. We could make little sense of either legality or law is we denied this intimate connection. (Dworkin 2004: 24–5)

However this is not the received position. According to Joseph Raz (1977) and others you cannot understand what the Rule of Law is unless you already and independently understand what law is and the characteristic evils that law is likely to give rise to (which the Rule of Law tries to prevent). On this account, legality represents a particular set of concerns about law that have emerged in our civilization. The fact that these concerns are undoubtedly moral in character (even though they are not comprehensive moral concerns) means that—in Raz’s view—it is better to keep them separate from the concept of law itself, for fear of introducing a moral element into that concept.

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• World Justice Project, 2011, Rule of Law Index , (2011 edition), available online , see also Other Internet Resources below.

How to cite this entry . Preview the PDF version of this entry at the Friends of the SEP Society . Look up topics and thinkers related to this entry at the Internet Philosophy Ontology Project (InPhO). Enhanced bibliography for this entry at PhilPapers , with links to its database.

• American Bar Association Division for Public Education: The Rule of Law
• The United Nations Rule of Law Indicators
• World Justice Project Rule of Law Index ( WJP Rule of Law Index 2015 (static pdf version) )

Bentham, Jeremy | constitutionalism | Hayek, Friedrich | law: and ideology | liberalism | limits of law | nature of law | nature of law: legal positivism

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How to Write a Law Essay: A Comprehensive Guide with Examples

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Let's put it this way: if you are studying law, you will agree that writing a law essay is no easy feat. Whether you’re dealing with case law, statutes, or legal principles, structuring your essay correctly and presenting your arguments effectively are key to achieving a high grade. This guide will walk you through the essentials of writing a law essay, including structure, introduction examples, and practical tips to help you produce a first-class essay.

A Law Essay Structure

What is the basic structure of a law essay? A well-structured essay not only presents your arguments clearly but also demonstrates your grasp of legal concepts. Here’s a typical structure for a law essay:

Introduction

Overview : Briefly introduce the topic and outline the key issues. Thesis Statement : Clearly state your main argument or position. Purpose : Indicate how the essay will address the issues and what the reader can expect.

Issue Identification : Clearly identify and explain the legal issues or questions. Legal Analysis : Discuss relevant case law, statutes, and legal principles. Argument Development : Develop your arguments logically, providing evidence and analysis to support your points. Counterarguments : Consider and address potential counterarguments or alternative viewpoints.

Summary : Recap the main points and arguments. Reinforcement : Restate your thesis in light of the evidence presented. Final Thoughts : Offer any final reflections or implications of your analysis.

Crafting an Effective Introduction

The introduction of a law essay sets the tone for the rest of your work. A strong introduction should provide a clear overview of the topic and establish the context for your argument. Here’s how you can structure it:

• Hook : Start with an engaging statement or question related to the topic. This could be a relevant quote, a brief anecdote, or a provocative question.
• Context : Provide background information to help the reader understand the relevance of the topic.
• Thesis Statement : Clearly outline your main argument or position. This should guide the direction of your essay.
• Roadmap : Briefly outline how you will address the issues and structure your argument.

Example of a Law Essay Introduction:

“The principle of judicial review is a cornerstone of the British legal system, ensuring that all public authorities act within their legal boundaries. This essay explores the scope and limits of judicial review, focusing on recent judicial decisions that have reshaped its application. By analysing key case law and statutory developments, this essay will argue that while judicial review remains a vital check on executive power, recent trends indicate a shift towards more restrained judicial intervention. The discussion will be organised into three main sections: an examination of the historical development of judicial review, an analysis of contemporary judicial approaches, and an evaluation of the implications for future judicial oversight.”

Writing the Body of the Essay

The body of your law essay is where you provide detailed analysis and develop your arguments. Follow these steps to ensure clarity and depth in your writing:

• Identify the Issues : Clearly define the legal issues or questions at hand. This section should set the foundation for your analysis.
• Provide Legal Analysis : Discuss relevant case law, statutes, and legal principles. Be sure to provide brief summaries of relevant cases, discuss any statutes or legislative provisions relevant to the topic and explain any key legal principles or doctrines that apply to the issues.
• Develop Your Arguments : Present your arguments logically, using evidence and analysis to support your points. Ensure that each paragraph transitions smoothly to the next, maintaining a clear and coherent flow.
• Address Counterarguments : Consider potential counterarguments or alternative viewpoints. Address these within your essay to demonstrate a comprehensive understanding of the topic.

Example of Argument Development

“In the landmark case of R (on the application of Miller) v. Secretary of State for Exiting the European Union (2017), the UK Supreme Court reaffirmed the principle that significant constitutional changes require parliamentary approval. The court’s decision highlighted the importance of maintaining parliamentary sovereignty in the face of executive decisions. However, recent judicial trends suggest a cautious approach towards intervening in political matters, reflecting a broader shift towards judicial restraint. This shift raises questions about the future scope of judicial review and its role in holding the executive accountable.”

Crafting a Strong Conclusion

Your conclusion should summarise the key points discussed and reinforce your thesis. Avoid introducing new information; instead, focus on synthesising your arguments and providing a final perspective. Keep in mind the following:

• Summarise Main Points : Briefly recap the key issues and arguments presented in the body.
• Restate Thesis : Reaffirm your thesis statement, demonstrating how it has been supported by your analysis.
• Final Thoughts : Offer any concluding reflections or implications. This could include suggestions for further research or practical implications of your findings.

Example of a Law Essay Conclusion:

“In conclusion, while the principle of judicial review continues to serve as a crucial mechanism for ensuring accountability, recent developments indicate a more nuanced approach by the judiciary. The balance between maintaining judicial oversight and respecting the limits of judicial intervention is delicate. As demonstrated through recent case law and statutory changes, the evolving nature of judicial review reflects broader shifts in constitutional theory and practice. Future developments will likely continue to shape the scope and application of judicial review, underscoring the need for ongoing scholarly and judicial attention.”

Final Tips for Writing a Law Essay

• Use clear and precise language to convey your arguments. Avoid jargon and overly complex sentences.
• Ensure all claims and arguments are well-supported by legal evidence and analysis.
• Always edit and proofread your essay for clarity, coherence, and correctness. Ensure that your writing adheres to legal academic standards.

Read some complete law essay examples here.

Final Remarks

Writing a law essay involves understanding the structure, crafting an effective introduction, developing your arguments, and presenting a clear conclusion. By following the guidelines and examples provided, you can create a well-organised and compelling essay. Remember, the quality of your analysis and the clarity of your arguments are key to achieving a first-class result.

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9 The Functions of Law

• Published: August 1979
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The concept of the functions of law is of major importance. It is needed to explain the nature of law, to explain disciplines associated with law, to correctly interpret and apply law, to pinpoint the interaction of law with social norms and institutions, to determine which general principles to which the law should conform or deviate, and to explain the law within the context of normative philosophy. This chapter aims to contribute to the elaboration of the comprehensive reasoned scheme of the functions of the law. In it, the questions of the social functions of law are distinguished from the question of classifying legal norms into distinct normative types. The four primary functions of law – preventing undesirable behaviour and securing desirable behaviour which is performed in criminal law and torts; providing facilities for private arrangements between individuals, which is found in private law, criminal, and tort law; provisions of services and the redistribution of goods found in legal systems; and settling unregulated disputes found in courts and tribunals – are discussed in the chapter. It also tackles the secondary and indirect functions of the law. The secondary functions of the law include the determination of procedures for changing the law and the regulation of the operation of law-applying organs. The chapter concludes with the discussion of H.L.A. Hart's classification of law.

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How to Write a First-Class Law Essay

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

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

1. Start In Advance

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

2. Understand The Question

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

3. Conduct Thorough Research

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

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

4. Write A Detailed Plan

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

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

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5. Write A Compelling Introduction

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

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

6. Include A Strong Thesis Statement

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

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

7. Present the Counter-argument

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

8. End With A Strong Conclusion

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

9. Review The Content Of Your Essay

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

10. Proofread For Grammatical Mistakes

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

11. Check Submission Guidelines

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

12. Use Legal Terms Accurately

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

12. Create a Vocabulary Bank

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

13. Finally, Take Care of Yourself

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

Words by Karen Fulton

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

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

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

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

I. Law: Meaning and Definition:

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

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

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

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

II. Nature/Features of Law:

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

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

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

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

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

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

7. Punishments are also prescribed by Law.

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

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

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

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

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

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

III. Sources of Law:

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

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

2. Religion and Morality:

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

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

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

3. Legislation:

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

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

4. Delegated Legislation:

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

4. Judicial Decisions:

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

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

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

6. Scientific Commentaries:

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

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

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

IV. Types of Law:

Broadly speaking there are two main kinds of Law:

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

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

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

1. Constitutional Law

2. Ordinary Law:

It is stands classified into two sub types:

2 (a) Private Law

2(b) Public Law:

It stands again sub-divided into two parts:

2(b) (i) General Public Law

2(b) (ii) Administrative Law

1. Constitutional Law:

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

2. Statute Law or Ordinary Law:

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

Ordinary Law is classified into two parts:

2 (a) Private Law and

2 (b) Public Law.

2 (a) Private Law:

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

2 (b) Public Law:

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

Public Law stands sub divided into two categories:

2(b)(i) General Law, and

2(b)(ii) Administrative Law.

2(b) (i) General Law:

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

2(b) (ii) Administrative Law:

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

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

Related Articles:

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

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Overview - Rule of Law

More than 200 years ago, Alexander Hamilton, James Madison, and John Jay published a series of essays promoting the ratification of the United States Constitution now known as Federalist Papers .  In explaining the need for an independent judiciary, Alexander Hamilton noted in The Federalist # 78 that the federal courts "were designed to be an intermediate body between the people and their legislature" in order to ensure that the people's representatives acted only within the authority given to Congress under the Constitution.

The U.S. Constitution is the nation's fundamental law.  It codifies the core values of the people.  Courts have the responsibility to interpret the Constitution's meaning, as well as the meaning of any laws passed by Congress.  The Federalist # 78 states further that, if any law passed by Congress conflicts with the Constitution, "the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents." 

"Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power.  It only supposed that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.  They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental."

The American democratic system is not always based upon simple majority rule.  There are certain principles that are so important to the nation that the majority has agreed not to interfere in these areas.  For instance, the Bill of Rights was passed because concepts such as freedom of religion, speech, equal treatment, and due process of law were deemed so important that, barring a Constitutional Amendment, not even a majority should be allowed to change them.

Rule of law is a principle under which all persons, institutions, and entities are accountable to laws that are:

• Publicly promulgated
• Equally enforced
• Independently adjudicated
• And consistent with international human rights principles.

The courts play an integral role in maintaining the rule of law, particularly when they hear the grievances voiced by minority groups or by those who may hold minority opinions.  Equality before the law is such an essential part of the American system of government that, when a majority, whether acting intentionally or unintentionally, infringes upon the rights of a minority, the Court may see fit to hear both sides of the controversy in court.

DISCLAIMER: These resources are created by the Administrative Office of the U.S. Courts for educational purposes only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on any pending case or legislation.

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

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Law Essay Topics: Medical Law, Policy & More

A law essay is a type of academic writing that requires students to analyze legal concepts, principles, and cases. Law essays can be argumentative, persuasive, or analytical, depending on the assignment's focus. Regardless of the type, every law essay must be well-structured, logically organized, and clearly presented. The arguments should be supported by thorough legal research, drawing on statutes, case law, and academic commentary to provide a solid foundation for the analysis.

This article provides a variety of topics to help you get started. No matter what area of law you're focusing on, these suggestions will give you a strong foundation for your essay. If you're still unsure about your topic or need further guidance, EssayService's law essay writing service is here to help. Our team of experienced writers can assist you in brainstorming a good law essay topic, conducting research, and crafting a well-structured essay!

How to Choose a Good Law Essay Topic?

Here are some tips to help you select a good law essay topic:

1. Consider Your Interests:

• Passion: Choose a topic that genuinely interests you. This will make your research and writing process more enjoyable and engaging.
• Knowledge: Select a topic that you have some background knowledge of or are willing to learn about. This will make your research more efficient and help you understand the complexities of the issue.

2. Evaluate the Scope:

• Narrow it down: Ensure your topic is specific enough to be covered in-depth within the word count limitations of your essay. Avoid overly broad topics that would require extensive research and analysis.
• Avoid overly broad or narrow topics: A topic that is too broad may be difficult to focus on, while a topic that is too narrow may limit your ability to explore different perspectives.

3. Consider the Availability of Sources:

• Research materials: Research the availability of reliable sources on your chosen topic. Ensure there is sufficient information and scholarly literature to support your arguments.
• Primary and secondary sources: Consider using a combination of primary and secondary sources to provide a comprehensive analysis of your topic.

4. Think Critically:

• Controversial topics: Don't shy away from controversial or complex topics. These can often lead to more interesting and thought-provoking essays.
• Multiple perspectives: Consider topics that allow you to explore different perspectives and arguments. This will demonstrate your critical thinking skills and ability to evaluate evidence.

Law Essay Topics on Criminal Justice

• Is the death penalty a deterrent to crime?
• What is the impact of mass incarceration on communities of color?
• Is racial profiling a significant issue in the criminal justice system?
• What are the challenges faced by women in the criminal justice system?
• Is the bail system fair and equitable?
• What is the role of mental health in criminal justice?
• Is police reform necessary to address systemic issues?
• What are the consequences of wrongful convictions?
• Is the juvenile justice system effective in rehabilitating young offenders?
• What are the ethical considerations for law enforcement using facial recognition technology?
• Is the War on Drugs a successful strategy?
• What is the impact of gun control laws on crime rates?
• Is the criminal justice system too punitive?
• What is the role of victim's rights in the criminal justice process?
• Is the use of solitary confinement justified?

Criminal Law Essay Topics

• How has the rise of cybercrime impacted traditional law enforcement methods?
• What are the specific challenges of prosecuting environmental crimes?
• What is the role of international cooperation in addressing transnational crime?
• What are the ethical implications of using facial recognition technology in law enforcement?
• How has the legalization of marijuana in some jurisdictions impacted the criminal justice system?
• What are the specific challenges of prosecuting hate crimes?
• Discuss the potential negative consequences of bail reform, such as increased public safety risks.
• How has the pandemic affected crime rates and the criminal justice system?
• What is the role of restorative justice in addressing the consequences of crime?
• Examine the factors that contribute to sentencing disparities, including race, gender, and socioeconomic status.
• How has the rise of social media impacted the prosecution of crimes related to online harassment and threats?
• Analyze the arguments for and against capital punishment, considering factors such as deterrence, retribution, and human rights.
• Discuss potential reforms to reduce the prison population and address the root causes of crime.
• What are the specific challenges of prosecuting crimes related to intellectual property theft?

Law Essay Topics on Policy

• How does policy influence the evolution of law?
• What are the ethical implications of policy-driven legal changes?
• To what extent should policy be considered in legal interpretation?
• Does the Affordable Care Act effectively balance individual rights and public health?
• How has immigration policy shaped the development of human rights law?
• What are the unintended consequences of gun control policies?
• How do the environmental policies of the United States and the European Union differ?
• What lessons can be learned from the different approaches to healthcare policy in the United States and Canada?
• If a government were to implement a policy of mandatory euthanasia for individuals over the age of 80, would it be considered legal and ethical?
• How might a policy of universal basic income impact the legal system?
• What are the potential costs and benefits of a carbon tax?
• Does the death penalty serve as an effective deterrent to crime?
• Should the law prioritize individual liberty over public safety?
• Is it justifiable for a government to restrict free speech in the name of national security?
• How can sociological and economic theories inform the development of effective legal policy?

Law Essay Topics on Human Rights

• To what extent are human rights universal?
• How effective are international human rights organizations in protecting human rights?
• What are the ethical implications of using drones for targeted killings?
• If a country experiences a humanitarian crisis, what are the obligations of the international community to intervene?
• Should the right to freedom of expression be absolute?
• Is the Universal Declaration of Human Rights more effective than regional human rights treaties?
• Which approach to addressing gender-based violence is more effective: legal measures or social change?
• Does economic inequality contribute to human rights violations?
• What are the long-term consequences of child labor on individuals and societies?
• Has the International Criminal Court been effective in holding perpetrators of war crimes accountable?
• Is the death penalty a violation of the right to life?
• Is the right to privacy more important than the right to security?
• Should governments restrict the use of social media to prevent the spread of hate speech?
• When is the use of torture justified, if ever?
• Is it ethical to detain individuals indefinitely without trial?

Law Essay Topics on Death Penalty

• Is the death penalty a just and effective form of punishment?
• What are the ethical implications of state-sanctioned executions?
• How does the death penalty impact society as a whole?
• Does the death penalty deter crime effectively?
• Should the death penalty be reserved for the most heinous crimes?
• How can sociological and psychological theories inform our understanding of the death penalty?
• Is the death penalty applied fairly and equitably?
• What are the costs associated with the death penalty?
• How does the United States' approach to the death penalty compare to other countries?
• What lessons can be learned from countries that have abolished the death penalty?
• If a new piece of evidence were to exonerate a death row inmate, how would this impact public opinion on the death penalty?
• What would be the consequences of a moratorium on executions in the United States?
• What are the potential costs and benefits of abolishing the death penalty?
• Does the death penalty serve as a deterrent to violent crime?
• Is it morally justifiable for the state to take a human life?

Law Essay Topics on Punishment

• What is the purpose of punishment in modern criminal justice systems?
• How does cultural context influence the perception and application of punishment?
• What are the ethical implications of using corporal punishment in schools?
• How does the principle of proportionality apply to sentencing in cases of white-collar crime?
• To what extent should the concept of restorative justice be integrated into criminal justice systems?
• If a self-driving car were to cause an accident resulting in fatalities, how should the vehicle's manufacturer be punished?
• In a society where crime rates are extremely low, would the abolition of punishment be feasible or desirable?
• How does the intersection of race, class, and gender influence the imposition of punishment?
• What are the long-term social and economic consequences of mass incarceration?
• How have the theories and practices of punishment evolved over time?
• What lessons can be learned from historical examples of excessive or unjust punishment?
• Is the use of solitary confinement a cruel and unusual punishment?
• How should the criminal justice system respond to the challenges posed by cybercrime?
• What are the ethical implications of using artificial intelligence in sentencing and corrections?

Enforcement Law Essay Ideas

• Is the use of force by law enforcement officers justified in all circumstances?
• What are the ethical implications of racial profiling?
• Is the death penalty an effective deterrent to crime?
• How does the Fourth Amendment protect citizens from unreasonable searches and seizures?
• What are the legal consequences of police misconduct?
• How does the Bail Reform Act impact the criminal justice system?
• If a law enforcement officer uses excessive force in an arrest, who is liable for any resulting damages?
• In a scenario where a defendant is wrongfully convicted, what are their options for seeking justice?
• How does the intersection of race, class, and gender influence the enforcement of law?
• What are the challenges and opportunities of community policing?
• How has the role of law enforcement evolved over time?
• What lessons can be learned from historical examples of police brutality?
• Is the use of facial recognition technology by law enforcement ethical?
• How should the legal system address the issue of mass incarceration?
• What are the legal and ethical implications of using drones for law enforcement purposes?

International Law Essay Topics

• Is the doctrine of state sovereignty outdated in the modern world?
• Is the principle of self-determination absolute?
• Should international law regulate the use of outer space?
• When is the use of economic sanctions justified?
• Is it ethical for states to intervene in the internal affairs of other countries?
• To what extent is international law effective in regulating the use of force?
• How can international law address the challenges of climate change?
• What are the ethical implications of using cyber warfare to target civilian infrastructure?
• If a country violates international human rights law, what are the obligations of other states to respond?
• Should the United Nations have the authority to intervene in internal conflicts?
• Is the International Court of Justice more effective than the International Criminal Court?
• Which approach to addressing global poverty is more effective: foreign aid or trade liberalization?
• Does globalization contribute to human rights violations?
• What are the long-term consequences of nuclear proliferation?
• Has the Law of the Sea Convention been effective in protecting marine resources?

Constitutional Law Essay Topics

• How does the concept of judicial review balance the powers of the legislature and the judiciary in a democratic system?
• Discuss the role of constitutional amendments in adapting a nation's fundamental laws to changing societal needs and values.
• Examine the tension between individual rights and the collective good in constitutional law.
• To what extent should the First Amendment protect hate speech and offensive content?
• Analyze the Supreme Court's rulings on the Second Amendment and the right to bear arms.
• Discuss the implications of the Commerce Clause on federalism and state power.
• How has the Fourteenth Amendment's Equal Protection Clause been used to address issues of racial discrimination and gender inequality?
• If a government were to enact a law that prohibited citizens from criticizing the government, would such a law violate the First Amendment's guarantee of freedom of speech?
• Imagine a scenario where a state passes a law that allows police to conduct warrantless searches of homes in certain neighborhoods. Would such a law be constitutional under the Fourth Amendment's protection against unreasonable searches and seizures?
• Compare and contrast the approaches taken by the United States and the United Kingdom in protecting individual rights.
• How does the concept of "rule of law" differ in common law and civil law systems?
• What are the potential consequences of a government's decision to limit access to voting rights?
• Should the death penalty be abolished on constitutional grounds?
• How did the Civil Rights Movement shape the interpretation and application of the Fourteenth Amendment?
• Examine the role of the Supreme Court in shaping constitutional law during the Warren Court era.

Business Law Essay Topics

• What is the significance of contract law in modern business?
• Analyze the differences in labor laws between the United Kingdom and Germany.
• How does corporate social responsibility influence business ethics?
• Discuss the ethical implications of artificial intelligence in business decision-making.
• Analyze the legal framework governing mergers and acquisitions in the European Union.
• Evaluate the effectiveness of international trade agreements in promoting economic growth and development.
• A company is accused of violating consumer protection laws. What defenses can it raise?
• A start-up is considering expanding into a new market. What legal considerations should it take into account?
• Compare and contrast the legal systems of the United States and China in terms of intellectual property protection.
• Discuss the legal issues arising from the Facebook-Cambridge Analytica data scandal.
• What role should governments play in regulating business activities to protect the environment?
• Evaluate the impact of the GDPR on European businesses.
• How has the pandemic affected the global supply chain and its legal implications?
• Analyze the legal challenges and opportunities presented by the rise of cryptocurrency.
• Is it ethical for corporations to prioritize profit maximization over social responsibility?

Contract Law Topics for Essays

• Does the doctrine of privity of contract limit the ability of third parties to enforce contracts?
• What are the long-term consequences of excessive reliance on standard-form contracts?
• Has the Uniform Commercial Code been effective in promoting efficiency in commercial transactions?
• Is the doctrine of implied terms necessary for the fair interpretation of contracts?
• To what extent is the doctrine of consideration necessary for the formation of a valid contract?
• How effective are liquidated damages clauses in mitigating the consequences of breach of contract?
• What are the ethical implications of using boilerplate contracts?
• If a party to a contract makes a unilateral mistake, should the contract be voidable?
• Should the doctrine of frustration apply to unforeseen events that were reasonably foreseeable?
• Is the law of contract more favorable to the party who drafted the contract or to the other party?
• Which approach to remedies for breach of contract is more effective: damages or specific performance?
• Is the doctrine of frustration a fair remedy for unforeseen events?
• Should the law of contract be more flexible in response to changing circumstances?
• When is it ethical to use duress to induce a party to enter into a contract?
• Is it fair to impose liability on a party who made a reasonable mistake of fact?

Employment Law Topics to Write about

• What is the legal definition of an independent contractor?
• How does the Fair Labor Standards Act (FLSA) regulate minimum wage and overtime pay?
• What are the legal consequences of workplace discrimination?
• How does the Americans with Disabilities Act (ADA) protect the rights of employees with disabilities?
• What are the legal requirements for workplace safety?
• How does the Family and Medical Leave Act (FMLA) protect employees' rights to take time off for family-related reasons?
• If an employee is fired for reporting illegal activity, can they claim whistleblower protection?
• In a scenario where an employee is sexually harassed by a supervisor, what are their legal options?
• How does the intersection of race, class, and gender influence employment opportunities?
• What are the legal and ethical challenges of gig economy work?
• How has the concept of employment law evolved over time?
• What lessons can be learned from historical examples of labor disputes?
• Is the use of non-compete agreements fair to employees?
• How should the legal system address the issue of workplace harassment?
• What are the legal and ethical implications of using artificial intelligence in hiring and employment decisions?

Medical Law Topics to Write about

• What are the ethical implications of physician-assisted suicide?
• How should the legal system balance patient autonomy with the duty to protect life?
• What are the legal and ethical considerations surrounding organ donation and transplantation?
• How does the concept of informed consent apply to experimental medical treatments?
• What are the legal consequences of medical malpractice?
• How should the legal system address the issue of medical errors?
• If a patient's medical records are hacked, who is liable for any resulting damages?
• In a scenario where a patient refuses life-saving treatment due to religious beliefs, what are the doctor's obligations?
• How does the intersection of race, class, and gender influence access to healthcare?
• What are the legal and ethical challenges of providing healthcare in developing countries?
• How has the concept of medical professionalism evolved over time?
• What lessons can be learned from historical examples of medical experimentation?
• Is the use of genetic testing in healthcare ethical and legal?
• How should the legal system regulate the use of artificial intelligence in medicine?
• What are the legal and ethical implications of using CRISPR gene editing technology?

A Quick Recap

While law essay topics may rise and fall in popularity, a few classics never go out of style:

• Human Rights: Issues such as the death penalty, abortion, and LGBTQ+ rights continue to be hotly debated.
• Environmental Law: Climate change, pollution, and sustainable development are pressing concerns in today's world.
• Technology Law: Legal implications of artificial intelligence, cybercrime, and data privacy are fascinating areas to explore.

If picking a topic still feels like a challenge, or you need help polishing your essay, EssayService has got your back. Our team of seasoned writers can guide you from brainstorming to the final proofreading, making sure your essay hits the mark!

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Home > VLR > Vol. 42 > Iss. 2 (1989)

Law School Examinations

Philip C. Kissam

This Essay explores the values, limits, and adverse effects of our system of law school examinations. Law school examinations encourage or require students to acquire certain knowledge while measuring a kind of knowledge as well. Importantly, this process occurs within a context of political relationships between law schools, law firms, the legal profession, and the state, as well as between law school administrators, faculty, and students. This system of "power/knowledge"relationships constitutes the law school's basic mechanism of self-regulation or, more generally, a mechanism of social control over legal education. In this era of substantial uncertainty about purposes and methods in legal education, an inquiry into law school examinations and their political contexts is both timely and potentially fruitful. Prior studies have developed important criticisms of law school examinations, but these studies have been partial or limited critiques.

These studies have uncritically accepted conventional beliefs about law school practices and have overlooked certain values and disadvantages of the current examination system. This Essay provides a "systemic analysis" and a "total critique" by assessing the structure, contextual relationships, values, and adverse effects of law school examinations.

This Essay seeks to improve our understanding of law school exams in three basic ways. First, Part II presents a new interpretation of what the modern law school examination requires and measures of student performance. This interpretation emphasizes the reading and grading methods that are used by most contemporary law professors, the implications of these methods for the thought and writing style of examination writers, and the personal attributes that are required for examination success. Second,

Parts III, IV, and V consider the law school examination in context in order to assess the values, limits, and disadvantages of the examination system. This analysis focuses initially on relationships of law school exams with student admissions and faculty recruitment policies, with state licensure exams, and with law firm hiring practices. The analysis also considers the apparent disjunctions between classroom and examination work, the reasons for these disjunctions, and how these disjunctions serve the examination system and social interests. This analysis also discusses the several ways that examination practices influence the lives and work of students and faculty. Third, Part VI describes changes to our examination practices that could improve the quality of legal education without jeopardizing the main values of the present system.

Recommended Citation

Philip C. Kissam, Law School Examinations, 42 Vanderbilt Law Review 433 (1989) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol42/iss2/3

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