Law and Philosophy

, Volume 31, Issue 2, pp 213–241

What’s Inside and Outside the Law?


DOI: 10.1007/s10982-011-9121-2

Cite this article as:
Alexander, L. Law and Philos (2012) 31: 213. doi:10.1007/s10982-011-9121-2


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.

Copyright information

© Springer Science+Business Media B.V. 2011

Authors and Affiliations

  1. 1.University of San Diego School of LawSan DiegoUSA