What’s Inside and Outside the Law?
- Larry Alexander
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In this article I take up a conceptual question: What is the distinction between ‘the law’ and the behavior the law regulates, or, as I formulate it, the distinction between what is ‘inside’ the law and what is ‘outside’ it? That conceptual question is in play in (at least) three different doctrinal domains: the constitutional law doctrines regarding the limits on the delegation of legislative powers; the criminal law doctrines regarding mistakes of law; and the constitutional rights doctrines that turn on the distinction between state action and the acts of non-state actors. I argue that legal doctrines should turn solely on normative considerations and should not turn on answers to conceptual questions. However, the doctrines I discuss appear to turn on the conceptual question regarding what is ‘inside’ and ‘outside’ the law. I show how each of these doctrinal areas appears to raise this conceptual issue, and I explain how the doctrines might or might not escape being held hostage to conceptual controversy.
- What’s Inside and Outside the Law?
Law and Philosophy
Volume 31, Issue 2 , pp 213-241
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- Springer Netherlands
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- Larry Alexander (1)
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- 1. University of San Diego School of Law, 5998 Alcala Park, San Diego, CA, 92110, USA