essay law definition

How to Write a First-Class Law Essay: Mastering the FIRAC Model

Law essays can be challenging, but they contribute significantly to the mastery of legal principles and enhancing a student’s legal research skills. A first-class law essay does not only demonstrate a thorough understanding of legal principles, but is also clearly structured and incredibly well-written. In this article, we will guide you on how to write a first-class law essay, delve into the FIRAC model of legal writing, and address frequently asked questions on law essay writing.

Below is an outline of the points that will be discussed in detail throughout the article:

Understanding the Essay Question and Planning

Comprehensive legal research, writing techniques for a first-class law essay, common faqs on law essay writing.

Table of Contents

The first step in writing a top-notch law essay is to understand the essay question and planning your response. You should take care to read and analyze the question provided, identifying the main issues, required legal areas, and the keywords that will guide your research. Create a rough essay plan, outlining the main arguments and research resources necessary to address the topic.

Thorough researched is necessary in order to write a first-class law essay.This involves examining relevant cases, statutes, academic articles, and other authoritative sources. It is crucial to:

• Build a strong foundation of understanding for the specific legal topics involved
• Identify any contrary viewpoints and conflicting interpretations of the law
• Familiarize yourself with critical legal developments that may affect your essay’s arguments

It is essential to keep track of your sources and their essential details, as you will need to reference them accurately in your essay.

Structuring a Law Essay: The FIRAC Model

The FIRAC model is a universally recognized method of organizing and presenting legal arguments in writing. It consists of:

Start by providing a concise and relevant summary of the facts and background of the issue beingaddressed. Be objective and neutral in your presentation, ensuring that your readers have a clear understanding of the context.

Clearly identify the specific legal issues that arise from the facts. This may involve direct questions or problems that need to be resolved by referring to legal authorities, such as legislation, case law, or academic commentary.

Set out the relevant legal rules, principles, and precedents that apply to the issues in question. Present a clear and comprehensive explanation of the legal authorities and how they apply to the facts.

d. Analysis:

In this section, critically analyze and weigh the various arguments and approaches concerning the legal issues at hand. Provide a detailed evaluation of the relevant legal authorities,discussing their strengths and weaknesses, and highlighting any ambiguities, disagreements, or gaps in the law that are relevant to the issues being addressed.

e. Conclusion:

Wrap up your essay by summarizing the main points, integrating your key findings and the implications of your analysis. Be sure to address the initial essay question and provide a clear answer or position based on your research and discussion. Finally, offer any recommendations or propose potential legal reforms if appropriate.

To ensure that your law essay stands out as first-class, it is essential to embrace effective writing techniques, such as:

• Clarity and precision: Use clear, concise language and avoid unnecessary jargon or verbosity. 2.Coherent organization: Organize your essay logically, ensuring that each section flows smoothly into the next.
• Strong argumentation: Build well-reasoned arguments supported by solid evidence, authoritative sources, and persuasive analysis.
• Critical thinking: Question assumptions, explore alternative viewpoints, and engage in thoughtful reflection and analysis.
• Proper citation and referencing: Adhere to a consistent citation style and accurately credit all sources used in your essay.
• Proofreading and editing: Always proofread and edit your essay meticulously, eliminating grammatical errors, spelling mistakes, and awkward phrasing.

Here are answers to some frequently asked questions about law essay writing:

How long should my law essay be?

The length of your law essay may vary, depending on the specific requirements and guidelines given by your instructor or institution. Typically, law essays range from 1,500 to 3,000 words, but it is crucial to adhere to the specified word count in your assignment.

How do I choose a citation style for my law essay?

Consult your assignment guidelines or ask your instructor for the preferred citation style used in legal writing at your institution, such as the Bluebook, Oxford Standard, or AGLC. Always use one citation style consistently throughout your essay.

Is it acceptable to use non-legal references in my essay?

While law essays primarily rely on legal authorities, it may be appropriate toinclude non-legal references, such as scholarly articles, reports, or empirical studies, to support your arguments or provide additional context. Always check with your instructor or assignment guidelines if you are unsure about using specific non-legal sources.

Can I use headings and subheadings in my law essay?

Headings and subheadings help organize your essay and guide your readers through your arguments. They are generally acceptable in law essays unless prohibited by your institution’s guidelines or your instructor’s preferences. Be sure to use a consistent formatting style for all headings and subheadings.

How can I avoid plagiarism in my law essay?

To avoid plagiarism, always accurately cite and reference any sources you use in your essay,whether they are direct quotes, paraphrased ideas, or summarized information. Also, ensure that your essay is primarily composed of your own original analysis and ideas, rather than relying too heavily on other sources. Make use of plagiarism-checking tools to identify potential areas of concern and correct them prior to submission.

By adhering to these guidelines and employing effective writing techniques, you can enhance the quality of your law essay and increase the likelihood of earning a first-class grade. Always remain diligent, focused, and committed to delivering thorough and engaging legal analysis throughout your academic writing endeavors.

Common Mistakes to Avoid in Law Essays

In addition to following the guidelines and writing techniques, it’s important to avoid common mistakes when writing your law essay:

• Irrelevant or excessive detail : Stay focused on the essay question and avoid providing unnecessary or excessive details that don’t contribute to your central argument.
• Lack of structure: Ensure that your essay is logically organized, with clearly defined sections and a coherent flow from one section to another.
• Misunderstanding the question: Read the essay prompt carefully, and make sure you clearly understand what is being asked before drafting your response. Seek clarification if needed.
• Unsupported claims or arguments: Back up your claims with solid evidence and credible sources. Avoid makingassertions without sufficient justification or analysis.
• Overly complex language or jargon: Write in a clear and concise manner, using language that is accessible to your readers. Be mindful of using overly technical terms or legal jargon without explanation.
• Plagiarism: Always provide proper citation and referencing for all sources used. Take the necessary steps to ensure your work is original and does not plagiarize from other sources.
• Inadequate proofreading: Thoroughly proofread and edit your essay to correct grammatical errors, spelling mistakes, and clumsy phrasing. Additionally, make sure your citations and references are accurate and formatted correctly.

By avoiding these common mistakes and adhering to the aforementioned guidelines andwriting techniques, you will significantly improve the quality of your law essay and increase your chances of achieving a high grade. Remember that practice makes perfect, and continually refining your skills in legal writing and analysis will contribute to your overall success in your academic and professional pursuits. So, stay committed, diligent, and focused on producing well-reasoned and coherent essays that demonstrate your understanding and mastery of legal principles and concepts. 

Happy writing!

Leave a Comment Cancel reply

Save my name, email, and website in this browser for the next time I comment.

• +44 (0) 207 391 9032

Recent Posts

• What Is an Adjective: Types, Uses, and Examples

How to Write a Reflective Essay

• Abstract vs. Introduction: What’s the Difference?
• How Do AI detectors Work? Breaking Down the Algorithm
• What is a Literature Review? Definition, Types, and Examples
• Why Is Your CV Getting Rejected and How to Avoid It
• Where to Find Images for Presentations
• What Is an Internship? Everything You Should Know
• How Long Should a Thesis Statement Be?
• How to Write a Character Analysis Essay
• Academic News
• Custom Essays
• Dissertation Writing
• Essay Marking
• Essay Writing
• Essay Writing Companies
• Model Essays
• Model Exam Answers
• Oxbridge Essays Updates
• PhD Writing
• Significant Academics
• Student News
• Study Skills
• University Applications
• University Essays
• University Life
• Writing Tips

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

Since 2006, oxbridge essays has been the uk’s leading paid essay-writing and dissertation service.

We have helped 10,000s of undergraduate, Masters and PhD students to maximise their grades in essays, dissertations, model-exam answers, applications and other materials. If you would like a free chat about your project with one of our UK staff, then please just reach out on one of the methods below.

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.

Essay exams: how to answer ‘To what extent…’

How to write a master’s essay, writing services.

• Essay Plans
• Critical Reviews
• Literature Reviews
• Presentations
• Dissertation Title Creation
• Dissertation Proposals
• Dissertation Chapters
• PhD Proposals
• Journal Publication
• CV Writing Service
• Business Proofreading Services

Editing Services

• Proofreading Service
• Editing Service
• Academic Editing Service

Additional Services

• Marking Services
• Consultation Calls
• Personal Statements
• Tutoring Services

Our Company

• Frequently Asked Questions
• Become a Writer

Terms & Policies

• Fair Use Policy
• Policy for Students in England
• Privacy Policy
• Terms & Conditions
• Writing Service Examples
• Editing Service Examples
• Marking Service Examples
• Tutoring Service Examples
• [email protected]
• Contact Form

Payment Methods

Cryptocurrency payments.

Username or email  *

Password  *

Forgotten password?

[email protected]

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.

Start Writing Like A Lawyer

Read our legal writing tips now

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

Free Guides

Our free guides cover everything from deciding on law to studying and practising law abroad. Search through our vast directory.

Upcoming Events

Explore our events for aspiring lawyers. Sponsored by top institutions, they offer fantastic insights into the legal profession.

Join Our Newsletter

Join our mailing list for weekly updates and advice on how to get into law.

Law Quizzes

Try our selection of quizzes for aspiring lawyers for a fun way to gain insight into the legal profession!

PREVIOUS ARTICLE

Legal Writing: Start Writing Like a Lawyer!

NEXT ARTICLE

LLM Jobs for Graduates

Loading More Content

• IMC Library
• Library Guides

Legal Method, Research and Writing

• Academic Writing in Law
• Legal Research Basics
• Law Database Guides
• Referencing in Law
• Other Research Resources for Law

Email Ettiquette

THE BASIC RULES

• Don't use an unprofessional email address
• Start with a new e-mail
• Include an appropriate subject heading
• Write a salutation
• Write well!  
• Provide context and background information
• Write a clear and concise message
• Sign your name
• Proofread the e-mail
• Allow adequate time for a reply
• Writing Professional Emails More detailed advice about how to write emails to academic staff

Academic Writing and Research in Law

• UTS Guide to Writing in Law A highly recommended helpful and comprehensive guide to writing law papers.
• Monash University Guide to Writing in Law Law writing guide with helpful Q&A's and tips for planning out case argumentation.
• University of Queensland Legal Research Essentials Introduction to Legal Research by The University of Queensland, Australia

Other Help:

• Quoting, Paraphrasing, Summarising The basic differences in how to writes quotes, how to write paraphrases, and how to write summaries of the sources you find.

Basic Rules

Academic and professional legal writing requires you to develop an argument and demonstrate relationships between the ideas you are expressing. 

Therefore, the ability to express yourself clearly and accurately is important.  Here you will find information to help you improve your writing for any purpose in your law degree.

Academic writing in law is:

Academic writing in law does not:   

Steps to Writing a Law Essay

Throughout your law degree, you will be expected to write a range of different texts, including research essays, responses to problem questions, and case notes.

Not matter the type of text you are asked to produce for an assignment, make sure you follow these steps:

• Plan :  read the questions carefully and think about how you will answer it
• Research :  read, read and read! Make use of everything available to you - don't forget the library!
• Make thorough notes : include all important (and relevant) details and quotes and take note of the source. Make sure you organise your notes so as to make the writing task easier
• Write the first draft :  before you start writing your first draft, refer back to your initial plan and make any necessary changes now you have done your research and gathered your notes. 
• Review and edit :  remember to proofread your work!

The IRAC Method

IRAC is an acronym that stands for: Issue, Rule, Application, and Conclusion. It functions as a methodology for legal analysis and is used as a framework for organising your answer to an essay question in law school.

[ Open All | Close All ]

In legal writing, issues are the core of the essay.

This part of the essay should:

• Identify and state the issue
• Name those involved (plaintiff and defendant) and briefly describe their individual issues
• Work out what body of law may govern the resolution of the issue (e.g. Contract Law)

The rule describes which law applies to the issue. The rule should be stated as a general principle, and not a conclusion to the particular case being briefed.

• Outline the legal principles that will be used to address to the issue
• Source legal principles from cases and legislation

The application is the most important and longest part of your answer. It involves applying the Rule to the facts of the issue and demonstrating how those facts do or do not meet the requirements laid down by the rules. Discuss both sides of the case when possible.

• Explain why the plaintiff's claims are or are not justified
• Identify how the law will be used by the plaintiff and defendant to argue their case
• Use relevant cases and legal principles to support your writing
• Do not try to strengthen your argument by leaving out elements or facts that will hurt it

As with all essays, the conclusion is a statement that identifies your answer to the issue.

• Identify what the result of your argument ir, or what it should be
• State who is liable for what and to what extent
• Consider how the plaintiff and defendant could have acted to avoid this legal issue

Useful Links:

• UWA IRAC Guide This guide from the University of Western Australia offers examples of how the IRAC method can be applied to different cases.
• Law School Survival: The IRAC Method A useful site that presents a detailed outline of the IRAC method as well as skeleton outlines.

Law Writing Media

Additional Resource

Featured Resource

Further Support

Related Guides

Proofreading Tool

• Last Updated: Jan 17, 2024 3:38 PM
• URL: https://top-au.libguides.com/legal-method-research-and-writing

Copyright © 2019 Australian National Institute of Management and Commerce (IMC) Registered Higher Education Provider TEQSA PRV12059 | CRICOS 02491D Top Education Group Ltd ACN 098 139 176 trading as Australian National Institute of Management and Commerce (IMC) All content is subject to change.

The Concepts of Law

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

• Share The University of Chicago Law Review | The Concepts of Law on Facebook
• Share The University of Chicago Law Review | The Concepts of Law on Twitter
• Share The University of Chicago Law Review | The Concepts of Law on Email
• Share The University of Chicago Law Review | The Concepts of Law on LinkedIn

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.

• Faculty and Staff
• Law School Philosophy
• The Way from Law Student to Lawyer
• Student Reviews
• Fleming's Fundamentals of Law
• Fleming's Siegel Series
• Fleming's Nailing the Bar by Tim Tyler
• Laurie Levenson Books
• Essay - Advanced Analysis for the Bar Exam
• Performance Test Workshop
• MBE Substantive Review - Live via Zoom
• Science of the Multistate Workshop
• California Bar Review
• Bar Review - Premier Tutoring Review
• Bar Review - Repeat Examinee
• Bar Review - Attorney's Test
• Baby Bar Review Workshop
• Baby Bar Bundle
• Baby Bar Final Drill - Free Event
• 1L Boot Camp
• Exam Solutions - Ace Your Finals!
• MBE Substantive Review - Live Via Zoom
• Multistate Workshop - Science of the Multistate
• #1 Legal Exam Writing Workshop
• Performance Test - Harness the Power of the PT!
• Events Calendar
• The Art of Test Taking - TBA
• Baby Bar Final Drill
• Private Tutoring | Bar Exam, Baby Bar, and Law School
• Premier Bar Review & Tutoring

How To Write a First-Class Law School Essay Exam Answer

Every student wants to write a first-class law school essay exam answer.  To excel at law school essay exam writing, you must know and understand the law, spot all the pertinent issues in the exam hypothetical, thoroughly analyze those issues by persuasively applying the law to fact, and provide sound legal conclusions based on your analysis.  These skills are fundamental to writing an outstanding law exam essay answer, and they require extensive law school exam preparation combined with law exam practice.  

Having Knowledge and Understanding of the Law

Knowing the legal rules is foundational to writing a top-notch law school essay exam answer. When working as a law school writing professor, I tested my first-year law students on strict liability involving animals that were the product of crossbreeding domestic and wild animals. When I read all the exam answers submitted, one stood out from the rest because it demonstrated with precision all the essential skills required to produce a superior essay answer. 

The answer demonstrated the student’s ability to state the relevant rules.  The student achieved this knowledge from briefing his cases because briefing assists with not only learning the legal rules but also with the legal reasoning required to apply the rules.  He also attended all his classes, which is important because the class discussions assist with the ability to apply the law.  

This same student utilized the Fleming’s Torts Substantive Law Outline , another important resource in his law school preparation arsenal.  This outline distilled the law and provided him with crisp rule definitions that made their way into his impressive answer.  

By following the law school process and utilizing proper legal resource materials, it was clear this student knew the law and understood which standards to use for what was being tested. As a reader, I did not have to guess at the legal standards when scoring the answer – the content in the exam answer spoke for itself.

It’s Essential to Spot all the Issues In Law School Essay Exams

The next aspect of this student’s first-class law school essay writing was that he spotted all the major and minor issues.  Achieving that put him a cut above the majority of other student examinees who did not.

Many students can spot several of the major issues. However, many miss the minor issues.  Using as an example this strict liability exam, there was a subtle fact that created an intervening factor that arguably could sever liability.  For students who did not spot this issue, their conclusions were flawed.  For the few students who spotted the intervening factor, they set themselves apart from the rest of the class because they recognized the issue, cited the applicable law, analyzed the law to the specific facts, and came to the proper conclusion based on their reasoned analysis. They also received the high score for their effort.

Writing a superior law school essay exam answer is not just about knowing the substantive law – it is about applying the law to facts that raise issues. Thus, a student can know all the law in the world, but if he or she cannot spot issues on a law school exam, there is no chance to demonstrate application, which is the cornerstone to becoming a lawyer. 

Thus, as part of law school exam preparation, I recommend students review practice exams and model answers for issue spotting to increase this necessary issue spotting skill. Integrating law school exam practice into the study process will always lead to higher grades.

Writing Precise and Persuasive Law School Essay Exam Analysis

Knowing the rules and spotting the issues will afford a certain number of points, but in law school essay writing, you can knock it out of the park with precise and persuasive analysis/application of the facts.  

Referring again to the student mentioned above, his outstanding answer utilized all the facts in the exam.  He stated what the facts actually said, and then interpreted the facts within the context of the law. He finished with a reasoned conclusion based on his analysis. 

As a law school professor, I have graded thousands of law school exams. I am always frustrated when I read law exam answers wherein the law student paraphrases the facts because paraphrasing can change the nature of the facts.  It is never a good idea to frustrate the person who is grading the exam answer. Law students must understand that the facts are given as they are for a reason. The facts must be used specifically and in the same language given in the exam hypothetical so they can then be properly interpreted and analyzed when applying the law. 

Another reason why the student referred to above wrote a first-class law school essay exam was because he analyzed the law and facts persuasively.  A problem for most students is writing analysis that is conclusory.  It is conclusory because they are not answering the “why” for each issue.  

To correct conclusory analysis, law students must provide analysis for each element of the rule using the facts in support e.g., “The large goats owned by Mr. Farmer wandered onto Mr. Field’s neighboring property after the lock pulled out from the connector on their pen. The gate then swung open, and the animals entered the neighboring land without that landowner’s knowledge.  Thus, the goats were trespassing livestock.” Here in this example, the student answered why the large goats were trespassing and how it happened.  If you are not writing this way, you must practice by tying the element of the rule and the facts together to answer the “why.” 

When writing a superb law school essay exam, you must analyze the law and facts for each party because the intent of law school essay exams is to train you to think like a lawyer.  As a civil litigation attorney, I not only research the facts and law for my client, but I must do the same for the opposing party because I must be able to anticipate and refute their arguments.  

In the student’s essay exam referred to above, he skillfully argued on behalf of both the plaintiff and defendant. When I read his exam answer, his arguments flowed flawlessly from one issue to the next, addressing the arguments for each party.

Legal reasoning is the method of thought and argument used when applying the rules to the facts. In the crossbred animal case, the neighbor used an electric cattle prod on the animals to try to move them off his property.  The student provided a brief, yet exceptional analysis on behalf of the plaintiff, explaining why an electric cattle prod could incite domestic animals, not only the crossbred animals, to be aggressive.  He had the skill to apply a reasonable argument that extended from the fact pattern in support of the plaintiff’s defense.

Legally Sound Conclusions 

Outstanding law school essay writing requires correct and concise conclusions.  As a grader, I would assign “0” points to a conclusion that began with, “If the court finds . . . ”  or conclusions that did not comport with the reasoning in the analysis.  You are being trained to think like a lawyer, so ultimately you must pick a position and assert it in your conclusion.  Always write conclusions where it’s relevant, as well as an overall conclusion for each call of the question.

Do Not be Afraid to Seek Help Learning to Write Law School Essay Exams

It can be exceedingly difficult for law students to assess their own strengths and weaknesses when developing their essay writing.  Students can also hit roadblocks.  If this is happening to you, I recommend that you discuss your essay exams with your professors because their feedback can be truly enlightening.  They also tend to be very dedicated and enjoy assisting law students, so be courageous and ask for help.  

If you are still having difficulty with exam test-taking after consulting with your professors, private tutors, like those available through Fleming’s Fundamental of Law, are a tremendous resource because they can address and provide direction regarding your specific strengths and weaknesses. 

Work Hard to Master Law School Essay Writing

You must master each aspect of law school essay writing to achieve a first-class exam.  It

takes dedication to learning and applying the facts to the law in a persuasive manner.  It also takes a tremendous amount of practice because you must keep working on developing the skill until you achieve your goal.  Once you do, you will be well on the road to thinking and writing like a lawyer. 

Law School vs. Bar Exam Essay Writing

The law school essay exam principles discussed above are the same for bar exam essays. Bar examiners are looking for the same ingredients in essay exam answers that law professors are looking for in law school exam answers. Thus, when you prepare to take law school essay exams, you are also preparing to take bar exam answers. 

Embrace the law school process because every practice exam you take and every mid-term and final exam you take brings you closer to your goal to pass the Bar Exam and begin your legal career as a lawyer.

Anonymous - September 14, 2022 I need help writing law school exams.

Leave a comment

Comments must be approved before appearing

* Required fields

Be in the know and join our mailing list.

Download Your Free Sample Bar Exam Essay Q&A

Added to your cart:.

• Table of Contents
• Random Entry
• Chronological
• Editorial Information
• About the SEP
• Editorial Board
• How to Cite the SEP
• Special Characters
• Advanced Tools
• Support the SEP
• PDFs for SEP Friends
• Make a Donation
• SEPIA for Libraries
• Entry Contents

Bibliography

Academic tools.

• Friends PDF Preview
• Author and Citation Info
• Back to Top

The Nature of Law

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

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

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

1.1 The Conditions of Legal Validity

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2. The Methodology of Jurisprudence

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

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

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

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

Each of these questions will be discussed in turn.

2.1 The Target of a Theory of Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2.2 Is Legal Theory Inherently Evaluative?

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

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

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

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

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

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

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

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

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

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

The argument from legal functions

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

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

The argument from the internal point of view

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

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

The argument from interpretation

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

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

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

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

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

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

• Asgeirsson, Hrafn, forthcoming, The Nature and Value of Vagueness in the Law , Oxford: Hart Publishing.
• –––, 2015, “On the Instrumental Value of Vagueness in the Law”, Ethics , 125(2): 425–448.
• Aquinas, St. Thomas, Summa Theologica , available online in English translation .
• Augustine, De Libero Arbitrio , On Free Choice of the Will, translated by Thomas Williams, Indianapolis: Hackett Publishing, 1995.
• Austin, John, 1832, The Province of Jurisprudence Determined , London: Weidenfeld & Nicolson, 1954.
• Bealer, George, 1998, “Intuition and the Autonomy of Philosophy”, in M. DePaul and W. Ramsey (eds.), Rethinking Intuition: The Psychology of Intuition and Its Role in Philosophical Inquiry , Lanham, MD: Rowman & Littlefield, pp. 201–239.
• Burazin, Luka, Kenneth Einar Himma and Corrado Roversi (eds.), 2018, Law as An Artifact , Oxford: Oxford University Press.
• Campbell, Tom D., 1996, The Legal Theory of Ethical Positivism , Aldershot: Dartmouth.
• Coleman, Jules, 1998, “Incorporationism, Conventionality, and The Practical Difference Thesis”, Legal Theory , 4: 381–425.
• –––, 2001a, The Practice of Principle , Oxford: Oxford University Press.
• Coleman, Jules (ed.), 2001b, Hart’s postscript: Essays on the Postscript to ‘The Concept of Law’ , Oxford: Oxford University Press.
• Cummins, Robert, 1998, “Reflection on Reflective Equilibrium”, Rethinking Intuition: The Psychology of Intuition and Its Role in Philosophical Inquiry , M. DePaul and W. Ramsey (eds.), Rowman & Littlefield, Lanham, MD, 113–128.
• Dickson, Julie, 2001, Evaluation and Legal Theory , Oxford: Hart Publishing.
• –––, 2004, “Methodology in Jurisprudence: a critical survey”, Legal Theory , 10(3): 117–156.
• Dworkin, Ronald, 1977, Taking Rights Seriously , London: Duckworth.
• –––, 1986, Law’s Empire , Cambridge: Harvard University Press.
• Enoch, David, 2011, “Giving Practical Reasons”, The Philosopher’s Imprint , 11(4): 1–22.
• Finnis, John, 1980, Natural Law and Natural Rights , Oxford: Clarendon Press.
• Gardner, John, 2001, “Legal Positivism: 5 ½ Myths”, American Journal of Jurisprudence , 46: 199–227.
• Green, Leslie, 1996, “The Concept of Law Revisited”, Michigan Law Review , 94(6): 1687–1717.
• Greenberg, Mark, 2014, “The Moral Impact Theory of Law”, Yale Law Journal , 123: 1118.
• Hart, H.L.A., 1961, The Concept of Law , Oxford: Clarendon Press; 2nd edition with postscript by J. Raz & P. Bulloch (eds.), Oxford: Oxford University Press, 1994.
• Hershovitz, Scott, 2015, “The End of Jurisprudence”, Yale Law Journal , 124: 1160.
• Kelsen, Hans, 1945/1961, General Theory of Law and State , translated by Anders Wedberg, New York: Russell & Russell.
• Leiter, Brian, 2007, Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy , Oxford: Oxford University Press.
• Lewis, David. 1969. Convention , Cambridge, MA: Harvard University Press.
• MacCormick, Neil, 1985, “A Moralistic Case for A-Moralistic Law?”, Valparaiso University Law Review , 20(1): 1–41.
• Marmor, Andrei, 1992, Interpretation and Legal Theory , Oxford: Clarendon Press; revised 2nd edition, Hart Publishing, 2005.
• –––, 2001, Positive Law & Objective Values , Oxford: Clarendon Press.
• –––, 2011, Philosophy of Law , Princeton: Princeton University Press.
• –––, 2013, “Farewell to Conceptual Analysis (in Jurisprudence)”, in Waluchow & Sciaraffa (eds.), Philosophical Foundations of the Nature of Law , Oxford: Oxford University Press, pp. 209–229.
• –––, 2014, The Language of Law , Oxford: Oxford University Press.
• –––, 2016 [2018], “Norms, Reasons and the Law”, Cornell Legal Studies Research Paper No. 16-19 ; reprinted in K. Himma et al. (eds.), Unpacking Normativity , Oxford: Hart Publishing, 2018.
• –––, 2018, “Law as Authoritative Fiction”, Law and Philosophy , 37: 473.
• –––, 2019, “What’s Left of General Jurisprudence: On Law’s Ontology and Content”, Jurisprudence , 10: 151–170.
• Moore, Michael, 1998, “Hart’s Concluding Unscientific Postscript”, Legal Theory , 4: 301–327 .
• Murphy, Liam, 2001, “The Political Question of the Concept of Law,” in Coleman, Jules (ed.), Hart’s postscript: Essays on the Postscript to ‘The Concept of Law’ , Oxford: Oxford University Press, Oxford: Oxford University Press, pp. 371–409.
• Perry, Stephen, 2001, “Hart’s Methodological Positivism”, in Coleman, Jules (ed.), Hart’s postscript: Essays on the Postscript to ‘The Concept of Law’ , Oxford: Oxford University Press, pp. 311–354.
• Plunkett, David and Scott Shapiro, 2017, “Law, Morality, and Everything Else: General Jurisprudence as a Branch of Metanormative Inquiry”, Ethics , 128(1): 37–68.
• Postema, Gerald, 1989, Bentham and the Common Law Tradition , Oxford: Clarendon Press.
• Raz, Joseph, 1972, “Legal Principles and the Limits of Law”, The Yale Law Journal , 81 (5): 823–854; reprinted in M. Cohen (ed.), Ronald Dworkin and Contemporary Jurisprudence , Totowa, NJ: Rowman & Allanheld, 1984.
• –––, 1979, The Authority of Law , Oxford: Clarendon Press.
• –––, 1994, “Law, Authority and Morality”, in J. Raz, Ethics In The Public Domain , Oxford: Clarendon Press, Chapter 9.
• –––, 2004, “Can there be a Theory of Law?”, in Golding & Edmundson (eds), The Blackwell Guide to the Philosophy of Law and Legal Theory , Oxford: Blackwell.
• Rosen, Gideon, 2010, “Metaphysical Dependence: Grounding and Reduction”, in B. Hale & A. Hoffman (eds.), Modality: Metaphysics, Logic and Epistemology , Oxford: Oxford University Press, 109–136.
• Sarch, Alexander, 2010, “Bealer and the Autonomy of Philosophy,” Synthese , 172: 451–474.
• Schauer, Fredrick, 1996, “Positivism as Pariah,” in The Autonomy of Law: Essays on Legal Positivism , Robert P. George (ed.), Oxford: Oxford University Press, pp. 31–55.
• Schroeder, Mark, 2007, Slaves of the Passions , Oxford: Oxford University Press.
• Shapiro, Scott, 2011, Legality , Cambridge, MA: Harvard University Press.
• Stavropoulos, Nicos, 2012, “Obligations and the Legal Point of View,” in The Routledge Companion to Philosophy of Law , A. Marmor (ed.), London: Routledge.
• Waldron, Jeremy, 2001, “Normative (or Ethical) Positivism”, in Jules Coleman (ed.), Hart’s postscript: Essays on the Postscript to ‘The Concept of Law’ , Oxford: Oxford University Press, pp. 410–434.
• Waluchow, Wil, 1994, Inclusive Legal Positivism , Oxford: Clarendon Press.

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.

[Please contact the authors with suggestions.]

Austin, John | Bentham, Jeremy | concepts | feminist philosophy, interventions: philosophy of law | Hobbes, Thomas: moral and political philosophy | law: and language | legal obligation and authority | legal reasoning: interpretation and coherence in | legal rights | limits of law | mathematics, philosophy of: Platonism | naturalism: in legal philosophy | nature of law: interpretivist theories | nature of law: legal positivism | nature of law: natural law theories | political obligation | reduction, scientific

Copyright © 2019 by Andrei Marmor < am2773 @ cornell . edu > Alexander Sarch < a . sarch @ surrey . ac . uk >

• Accessibility

Support SEP

Mirror sites.

View this site from another server:

• Info about mirror sites

The Stanford Encyclopedia of Philosophy is copyright © 2023 by The Metaphysics Research Lab , Department of Philosophy, Stanford University

Library of Congress Catalog Data: ISSN 1095-5054

Your Article Library

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

ADVERTISEMENTS:

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

No comments yet.

Leave a reply click here to cancel reply..

You must be logged in to post a comment.

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

Included in

Legal Education Commons

• Journal Home
• About This Journal
• Aims & Scope
• Editorial Board
• Most Popular Papers
• Receive Email Notices or RSS

Advanced Search

Home | About | FAQ | My Account | Accessibility Statement

Privacy Copyright

• History & Society
• Science & Tech
• Biographies
• Animals & Nature
• Geography & Travel
• Arts & Culture
• Games & Quizzes
• On This Day
• One Good Fact
• New Articles
• Lifestyles & Social Issues
• Philosophy & Religion
• Politics, Law & Government
• World History
• Health & Medicine
• Browse Biographies
• Birds, Reptiles & Other Vertebrates
• Bugs, Mollusks & Other Invertebrates
• Environment
• Fossils & Geologic Time
• Entertainment & Pop Culture
• Sports & Recreation
• Visual Arts
• Demystified
• Image Galleries
• Infographics
• Top Questions
• Britannica Kids
• Saving Earth
• Space Next 50
• Student Center
• Introduction

Institutions and legal culture

• Challenges to the rule of law

rule of law

Our editors will review what you’ve submitted and determine whether to revise the article.

• OECD iLibrary - Rule of law
• Foundation for Economic Education - Individual Liberty and the Rule of Law
• United Nations and the Rule of Law - What is the Rule of Law
• Business LibreTexts - Rule of Law
• Brigham Young University - ScholarsArchive - Pareto Optimality and the Rule of Law
• Academia - Rule of law
• Stanford Encyclopedia of Philosophy - The rule of Law
• Table Of Contents

Recent News

rule of law , the mechanism, process, institution, practice, or norm that supports the equality of all citizens before the law , secures a nonarbitrary form of government , and more generally prevents the arbitrary use of power. Arbitrariness is typical of various forms of despotism, absolutism , authoritarianism , and totalitarianism . Despotic governments include even highly institutionalized forms of rule in which the entity at the apex of the power structure (such as a king , a junta , or a party committee) is capable of acting without the constraint of law when it wishes to do so.

Ideas about the rule of law have been central to political and legal thought since at least the 4th century bce , when Aristotle distinguished “the rule of law” from “that of any individual.” In the 18th century the French political philosopher Montesquieu elaborated a doctrine of the rule of law that contrasted the legitimate authority of monarchs with the caprice of despots . It has since profoundly influenced Western liberal thought.

In general, the rule of law implies that the creation of laws, their enforcement, and the relationships among legal rules are themselves legally regulated, so that no one—including the most highly placed official—is above the law. The legal constraint on rulers means that the government is subject to existing laws as much as its citizens are. Thus, a closely related notion is the idea of equality before the law, which holds that no “legal” person shall enjoy privileges that are not extended to all and that no person shall be immune from legal sanctions. In addition, the application and adjudication of legal rules by various governing officials are to be impartial and consistent across equivalent cases, made blindly without taking into consideration the class, status, or relative power among disputants. In order for those ideas to have any real purchase, moreover, there should be in place some legal apparatus for compelling officials to submit to the law.

Not only does the rule of law entail such basic requirements about how the law should be enacted in society, it also implies certain qualities about the characteristics and content of the laws themselves. In particular, laws should be open and clear, general in form, universal in application, and knowable to all. Moreover, legal requirements must be such that people are able to be guided by them; they must not place undue cognitive or behavioral demands on people to follow. Thus, the law should be relatively stable and comprise determinate requirements that people can consult before acting, and legal obligations should not be retroactively established. Furthermore, the law should remain internally consistent and, failing that, should provide for legal ways to resolve contradictions that can be expected to arise.

Despite those basic features, however, there has never been a generally accepted or even systematic formulation of the rule of law (but not for lack of attempts by jurists and political philosophers). The idea that the law should contribute to beneficial ways of channeling and constraining the exercise of public power can be interpreted in different ways; such differences are especially apparent over time and across different polities.

For such reasons, the rule of law is best seen not as a blueprint for institutional design but as a value, or cluster of values, that might inform such a design and that can therefore be pursued in a variety of ways. Nonetheless, several rather simple and generalizable institutional insights follow from the idea that those who judge the legality of exercises of power should not be the same as those who exercise it. For instance, a typical rule-of-law state will institutionalize some means of shielding legal officials from interference, political or otherwise, that threatens their independence. Accordingly, the institutional separation of the judiciary from other branches of government is commonly thought to be an important feature of rule-of-law states. Other measures to ensure fair access to legal institutions may also be important for rule-of-law regimes . In addition, a binding written constitution is widely believed to aid the rule of law and has been adopted by most states of the world.

While certain institutional traditions and conventions, as well as written laws, may be important to ensure that judicial decisions are grounded within plausible interpretations of existing laws, no single institutional character of a state should be seen as necessary or sufficient to the rule-of-law ideal. The rule of law is tied neither to any one national experience nor to any set of institutions in particular, although it may be better served in certain countries and by some institutions. Moreover, the institutional arrangements that ensure the rule of law in one polity might not be easily duplicated in or transplanted to another. Different polities embody their own judgments about how to implement specific rule-of-law ideals given their particular legal and cultural traditions, which naturally influence the character of their institutions. Nonetheless, the initial sociological condition for the rule of law is shared across cultures: for the rule of law to be more than an empty principle, most people in a society, including those whose profession it is to administer the law, must believe that no individual or group should be above the law.