Stanford Encyclopedia of Philosophy
The Limits of Law
First published Sat Jan 29, 2022
A central—perhaps the central—question of the philosophy of law concerns the relationship between law and morality. The concern breaks down into many issues, both conceptual and evaluative. Among the evaluative issues is the question of obedience to law: does the fact that some norm is a legal norm provide any reason to obey it? (Green 2004 [2012]; Delmas & Brownlee 2021). By contrast, conceptual or analytical issues include the identification of conditions necessary for the existence of a legal system, irrespective of the system’s goodness or otherwise. Must some reference to morality enter into an adequate definition of law or legal system? (Hart 1963 [1982]; Dickson 2012). And so on.
The present topic, the question of the limits of law, is widely understood to be one of the important evaluative questions, revolving around the legal enforcement of morality. In the nineteenth century John Stuart Mill proposed “the harm principle” as his answer; in the late twentieth century H.L.A Hart adopted a significantly modified version of Mill’s principle and further important versions of the harm principle followed in the hands of Joel Feinberg and Joseph Raz (Sections 4–6 below). The harm principle in all its manifestations has encountered strong resistance, most notably from “legal moralists” (Sections 1–3) and remains in the eyes of many the focus of debate, the view to adopt, supplement or modify (as some would say), or to beat and replace (as others would say).
A more recent strand to the question of the legal enforcement of morality is Rawlsian in origin, most notably the claim that constitutional essentials and matters of basic justice should be subject to a constraint of public reason (Section 7). An alternative perspective challenges the assumption that the limits of law is simply an evaluative question focussed on law as a neutral instrument put to good ends and bad. It takes the limits of law as in part a conceptual question. Law of its nature has an internal morality of its own, so it is claimed, with its own built-in limits (Section 8). A further question relates to the deployment by the law of techniques beyond coercion (Section 8).