What’s Inside and Outside the Law?

Abstract

Most jurisprudential literature in the current era is devoted to the question,What is law? What are the necessary and sufficient criteria for a norm’s being a legal norm as opposed to a moral norm, a religious norm, or a norm of a bridge club, the Rotary Club, major league baseball, or the Alexander family? Less attention is paid to a related but separate conceptual question, namely, the distinction between “the law” and the behavior the law regulates, or, as I shall call it, the distinction between what is “inside” the law and what is “outside” it. Now one might wonder whether this conceptual question about the boundary between law and what it regulates has any practical consequence. My answer, which I hope to persuade you of, is that it should not, but that some legal doctrines seem to be parasitic on some such conceptual distinction. One such doctrine or set of doctrines concerns the constitutional limits on the delegability of legislative powers. Another is the distinction within the criminal law of attempts between factual and legal impossibility. And a third is the question of when has an actor violated someone’s constitutional rights when he has also acted contrary to the nonconstitutional law governing his conduct. I shall take up these doctrinal areas in that order to illustrate the conceptual issue each raises and explain how the doctrine might or might not escape being hostage to the conceptual controversy.