limitations of legal research

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• Indian J Anaesth
• v.60(9); 2016 Sep

Legal and ethical issues in research

Camille yip.

1 Department of Women's Anaesthesia, KK Women's and Children's Hospital, Bukit Timah, Singapore

Nian-Lin Reena Han

2 Division of Clinical Support Services, KK Women's and Children's Hospital, Bukit Timah, Singapore

Ban Leong Sng

3 Anesthesiology and Perioperative Sciences Academic Clinical Program, Duke-NUS Medical School, Singapore

Legal and ethical issues form an important component of modern research, related to the subject and researcher. This article seeks to briefly review the various international guidelines and regulations that exist on issues related to informed consent, confidentiality, providing incentives and various forms of research misconduct. Relevant original publications (The Declaration of Helsinki, Belmont Report, Council for International Organisations of Medical Sciences/World Health Organisation International Guidelines for Biomedical Research Involving Human Subjects, World Association of Medical Editors Recommendations on Publication Ethics Policies, International Committee of Medical Journal Editors, CoSE White Paper, International Conference on Harmonisation of Technical Requirements for Registration of Pharmaceuticals for Human Use-Good Clinical Practice) form the literature that are relevant to the ethical and legal aspects of conducting research that researchers should abide by when conducting translational and clinical research. Researchers should note the major international guidelines and regional differences in legislation. Hence, specific ethical advice should be sought at local Ethics Review Committees.

INTRODUCTION

The ethical and legal issues relating to the conduct of clinical research involving human participants had raised the concerns of policy makers, lawyers, scientists and clinicians for many years. The Declaration of Helsinki established ethical principles applied to clinical research involving human participants. The purpose of a clinical research is to systematically collect and analyse data from which conclusions are drawn, that may be generalisable, so as to improve the clinical practice and benefit patients in future. Therefore, it is important to be familiar with Good Clinical Practice (GCP), an international quality standard that is provided by the International Conference on Harmonisation of Technical Requirements for Registration of Pharmaceuticals for Human Use (ICH),[ 1 ] or the local version, GCP of the Central Drugs Standard Control Organization (India's equivalent of US Food and Drug Administration)[ 2 ] and local regulatory policy to ensure that the research is conducted both ethically and legally. In this article, we will briefly review the legal and ethical issues pertaining to recruitment of human subjects, basic principles of informed consent and precautions to be taken during data and clinical research publications. Some of the core principles of GCP in research include defining responsibilities of sponsors, investigators, consent process monitoring and auditing procedures and protection of human subjects.[ 3 ]

ISSUES RELATED TO THE RESEARCH PARTICIPANTS

The main role of human participants in research is to serve as sources of data. Researchers have a duty to ‘protect the life, health, dignity, integrity, right to self-determination, privacy and confidentiality of personal information of research subjects’.[ 4 ] The Belmont Report also provides an analytical framework for evaluating research using three ethical principles:[ 5 ]

• Respect for persons – the requirement to acknowledge autonomy and protect those with diminished autonomy
• Beneficence – first do no harm, maximise possible benefits and minimise possible harms
• Justice – on individual and societal level.

Mistreatment of research subjects is considered research misconduct (no ethical review approval, failure to follow approved protocol, absent or inadequate informed consent, exposure of subjects to physical or psychological harm, exposure of subjects to harm due to unacceptable research practices or failure to maintain confidentiality).[ 6 ] There is also scientific misconduct involving fraud and deception.

Consent, possibility of causing harm

Based on ICH definition, ‘informed consent is a process by which a subject voluntarily confirms his or her willingness to participate in a particular trial, after having been informed of all aspects of the trial that are relevant to the subject's decision to participate’. As for a standard (therapeutic) intervention that carries certain risks, informed consent – that is voluntary, given freely and adequately informed – must be sought from participants. However, due to the research-centred, rather than patient-centred primary purpose, additional relevant information must be provided in clinical trials or research studies in informed consent form. The essential components of informed consent are listed in Table 1 [Adapted from ICH Harmonised Tripartite Guideline, Guideline for Good Clinical Practice E6(R1)].[ 1 ] This information should be delivered in the language and method that individual potential subjects can understand,[ 4 ] commonly in the form of a printed Participant Information Sheet. Informed consent is documented by means of written, signed and dated informed consent form.[ 1 ] The potential subjects must be informed of the right to refuse to participate or withdraw consent to participate at any time without reprisal and without affecting the patient–physician relationship. There are also general principles regarding risk assessment, scientific requirements, research protocols and registration, function of ethics committees, use of placebo, post-trial provisions and research publication.[ 4 ]

Essential components of an informed consent

Special populations

Informed consent may be sought from a legally authorised representative if a potential research subject is incapable of giving informed consent[ 4 ] (children, intellectual impairment). The involvement of such populations must fulfil the requirement that they stand to benefit from the research outcome.[ 4 ] The ‘legally authorised representative’ may be a spouse, close relative, parent, power of attorney or legally appointed guardian. The hierarchy of priority of the representative may be different between different countries and different regions within the same country; hence, local guidelines should be consulted.

Special case: Emergency research

Emergency research studies occur where potential subjects are incapacitated and unable to give informed consent (acute head trauma, cardiac arrest). The Council for International Organisations of Medical Sciences/World Health Organisation guidelines and Declaration of Helsinki make exceptions to the requirement for informed consent in these situations.[ 4 , 7 ] There are minor variations in laws governing the extent to which the exceptions apply.[ 8 ]

Reasonable efforts should have been made to find a legal authority to consent. If there is not enough time, an ‘exception to informed consent’ may allow the subject to be enrolled with prior approval of an ethical committee.[ 7 ] Researchers must obtain deferred informed consent as soon as possible from the subject (when regains capacity), or their legally authorised representative, for continued participation.[ 4 , 7 ]

Collecting patient information and sensitive personal information, confidentiality maintenance

The Health Insurance Portability and Accountability Act has requirements for informed consent disclosure and standards for electronic exchange, privacy and information security. In the UK, generic legislation is found in the Data Protection Act.[ 9 ]

The International Committee of Medical Journal Editors (ICMJE) recommendations suggest that authors must ensure that non-essential identifying information (names, initials, hospital record numbers) are omitted during data collection and storage wherever possible. Where identifying information is essential for scientific purposes (clinical photographs), written informed consent must be obtained and the patient must be shown the manuscript before publication. Subjects should also be informed if any potential identifiable material might be available through media access.

Providing incentives

Cash or other benefits ‘in-kind’ (financial, medical, educational, community benefits) should be made known to subjects when obtaining informed consent without emphasising too much on it.[ 7 ] Benefits may serve as appreciation or compensation for time and effort but should not result in the inducement to participation.[ 10 ] The amount and nature of remuneration should be compared to norms, cultural traditions and are subjected to the Ethical Committee Review.[ 7 ]

ISSUES RELATED TO THE RESEARCHER

Legal issues pertaining to regulatory bodies.

Various regulatory bodies have been constituted to uphold the safety of subjects involved in research. It is imperative to obtain approval from the appropriate regulatory authorities before proceeding to any research. The constitution and the types of these bodies vary nation-wise. The researchers are expected to be aware of these authorities and the list of various bodies pertinent to India are listed in the article “Research methodology II” of this issue.

Avoiding bias, inappropriate research methodology, incorrect reporting and inappropriate use of information

Good, well-designed studies advance medical science development. Poorly conducted studies violate the principle of justice, as there are time and resources wastage for research sponsors, researchers and subjects, and undermine the societal trust on scientific enquiry.[ 11 ] The Guidelines for GCP is an international ethical and scientific quality standard for designing, conducting, recording and reporting trials.[ 1 ]

Fraud in research and publication

De novo data invention (fabrication) and manipulation of data (falsification)[ 6 ] constitute serious scientific misconduct. The true prevalence of scientific fraud is difficult to measure (2%–14%).[ 12 ]

Plagiarism and its checking

Plagiarism is the use of others' published and unpublished ideas or intellectual property without attribution or permission and presenting them as new and original rather than derived from an existing source.[ 13 ] Tools such as similarity check[ 14 ] are available to aid researchers detect similarities between manuscripts, and such checks should be done before submission.[ 15 ]

Overlapping publications

Duplicate publications violate international copyright laws and waste valuable resources.[ 16 , 17 ] Such publications can distort evidence-based medicine by double-counting of data when inadvertently included in meta-analyses.[ 16 ] This practice could artificially enlarge one's scientific work, distorting apparent productivity and may give an undue advantage when competing for research funding or career advancement.[ 17 ] Examples of these practices include:

Duplicate publication, redundant publication

Publication of a paper that overlaps substantially with one already published, without reference to the previous publication.[ 11 ]

Salami publication

Slicing of data from a single research process into different pieces creating individual manuscripts from each piece to artificially increase the publication volume.[ 16 ]

Such misconduct may lead to retraction of articles. Transparent disclosure is important when submitting papers to journals to declare if the manuscript or related material has been published or submitted elsewhere, so that the editor can decide how to handle the submission or to seek further clarification. Further information on acceptable secondary publication can be found in the ICMJE ‘Recommendations for the Conduct, Reporting, Editing, and Publishing of Scholarly Work in Medical Journals’.

Usually, sponsors and authors are required to sign over certain publication rights to the journal through copyright transfer or a licensing agreement; thereafter, authors should obtain written permission from the journal/publisher if they wish to reuse the published material elsewhere.[ 6 ]

Authorship and its various associations

The ICMJE recommendation lists four criteria of authorship:

• Substantial contributions to the conception of design of the work, or the acquisition, analysis or interpretation of data for the work
• Drafting the work or revising it critically for important intellectual content
• Final approval of the version to be published
• Agreement to be accountable for all aspects of the work in ensuring that questions related to the accuracy or integrity of any part of the work are appropriately investigated and resolved.

Authors and researchers have an ethical obligation to ensure the accuracy, publication and dissemination of the result of research,[ 4 ] as well as disclosing to publishers relevant corrections, retractions and errata, to protect scientific integrity of published evidence. Every research study involving human subjects must be registered in a publicly accessible database (e.g., ANZCTR [Australia and NZ], ClinicalTrials.gov [US and non-US], CTRI [India]) and the results made publicly available.[ 4 ] Sponsors of clinical trials must allow all study investigators and manuscript authors access to the full study data set and the right to use all study data for publication.[ 5 ] Source documents (containing trial data) and clinical study report (results and interpretation of trial) form part of the essential documentation that must be retained for a length of time prescribed by the applicable local legislation.[ 1 ] The ICMJE is currently proposing a requirement of authors to share with others de-identified individual patient data underlying the results presented in articles published in member journals.[ 18 ]

Those who have contributed to the work but do not meet all four criteria should be acknowledged; some of these activities include provision of administrative support, writing assistance and proofreading. They should have their written permission sought for their names to be published and disclose any potential conflicts of interest.[ 6 ] The Council of Scientific Editors has identified several inappropriate types of authorship, such as guest authorship, honorary or gift authorship and ghost authorship.[ 6 ] Various interventions should be put in place to prevent such fraudulent practices in research.[ 19 ] The list of essential documents for the conduct of a clinical trial is included in other articles of the same issue.

The recent increase in research activities has led to concerns regarding ethical and legal issues. Various guidelines have been formulated by organisations and authorities, which serve as a guide to promote integrity, compliance and ethical standards in the conduct of research. Fraud in research undermines the quality of establishing evidence-based medicine, and interventions should be put in place to prevent such practices. A general overview of ethical and legal principles will enable research to be conducted in accordance with the best practices.

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Law Comparison as a Research Method in Legal Studies, and Its Importance in Promoting Uniformity in Legal Systems

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• First Online: 29 March 2024
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• Hiba Al Abiad 13 &
• Ayman Masadeh 13  

Part of the book series: Lecture Notes in Civil Engineering ((LNCE,volume 473))

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The article examines law comparison as a research method and its application in reinforcing legal systems. Comparative legal research methods and challenges will be briefly discussed. Comparative legal research is crucial for identifying effective methods, promoting legal framework uniformity and comprehension, as well as modernising the legal system. This article also discusses comparative law and model laws like the New York Convention (the “NYC”) on the Recognition and Enforcement of Foreign Arbitral Awards. Comparative law investigations ensure fair, efficient, and successful utilisation of legal systems. The author suggests that legal practitioners and scholars utilise it to clarify legal difficulties and find worldwide best practices.

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• Law Comparison
• New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards
• Best Practice

1 Introduction

Law comparison is a well acknowledged approach in legal research that comprises assessing various legal systems of different jurisdictions from several perspectives to identify commonalities and differences. This method is often used to provide a detailed understanding of the global legal structure and to identify areas that may be improved. Comparative law may significantly contribute to maintaining uniformity in the implementation of model laws and conventions such as the NYC, thereby assuring consistency.

Comparative law has gained recognition as a significant analytical tool, taking into account model laws, treaties, and conventions such as the NYC. Through the analysis of how various legal systems interpret and implement certain rules, comparative law may facilitate the identification of areas that need more precision and uniformity. Furthermore, it may provide guidance on the proper understanding and execution of these laws in a way that is consistent with the core concepts and objectives.

This study will examine utilization of comparison as a technique for legal research and explore its distinction from comparisons and analogical reasoning often used by legal professionals and judges in their daily practise. This methodological approach has certain obstacles that will be discussed.

This paper will emphasise various ways and methodologies that may be applied in comparative law study, with each method serving a specific purpose.

Subsequently, the author will analyse the objectives of comparative law research, whether conducted at a national or multinational scale, and assess its significance in discerning optimal methodologies. Consequently, enhancing the consistency and accuracy in enforcing rules and treaties, thus improving overall legal systems.

The author will assert that comparative law is a fundamental study methodology that enhances legal systems and fosters further uniformity in the implementation of laws and conventions. Researchers and legal practitioners should use comparative law methodologies to get a more comprehensive understanding of legal matters and to discern optimal approaches from other jurisdictions. By applying such approach, legal practitioners may contribute to safeguarding equitable, streamlined, and impactful judicial systems.

2 Law Comparison in Legal Research

By using comparison as a logical and inductive approach, an individual can conduct an impartial assessment of the merits and drawbacks inherent in a particular standard, method, framework, process, or establishment in comparison to others. Regarding its significance in legal research, comparison involves analysing the legal experiences of diverse situations and jurisdictions in order to make evaluative judgments (Siems, 2022 ).

At first instance law comparison does not seem arduous; legal practitioners often use comparisons to support their arguments, and judges use analogical reasoning to apply legal rules from comparable situations to new or unregulated situations. Simply put, almost any claim made by legal practitioners the comparison will either explicitly or implicitly involve juxtaposing the situation with another. Furthermore, judges often use analogical reasoning to make decisions in novel or unregulated scenarios by applying guidelines from comparable situations. They compare the situation at hand with others, whether real or hypothetical, to determine a suitable decision (Lundmark & Waller, 2016 ).

However, with the increase in global international trade, legal situations can become more complex when multiple jurisdictions are involved. For example, consider a transaction or trade between a French and an English person taking place in Saudi Arabia for the sale of goods to be shipped on a Cypriot vessel to a port in China. In the event of a dispute, determining the appropriate jurisdiction for the court and which law to apply becomes the first challenge. Should it be the law of France, England, China, or Cyprus?

As globalism continues to shape our world, the need for comparative law has become more apparent. The legal systems of different countries are increasingly interacting with one another, through international trade, investment, and other forms of cooperation. Comparative law provides a framework for understanding these interactions and for resolving conflicts that may arise between different legal systems. According to Sathe, S.P:

“During an era of globalization, if a particular culture is not dominant, the culture stands the risk of losing the features of its legal system that are unique to the culture. Globalism is the latest exigency that emphasizes the need to employ comparative law.” (Sathe, 2002 ).

Consequently, comparative legal research involving various laws is distinct from the comparison used by lawyers and judges to particular situations. Conducting comparative legal research requires a unique approach and specific methods that enable legal scholars to delve into unfamiliar foreign legal systems.

Attempting to comprehend foreign legal systems, or even specific elements within them, in order to compare them with national laws can present significant challenges. This process extends beyond mere fact-finding and requires a different approach to legal interpretation than the one used at the national level.

3 Methods and Methodology of Law Comparison

Method and methodology are often used interchangeably, but they have distinct meanings which is particularly relevant within the domain of comparative law.

Method refers to the specific techniques or approaches used to compare legal systems. Mark Van Hoecke identified six commonly employed approaches in comparative law research: (1) the analytical approach, (2) the functional approach, (3) the historical approach, (4) the structural approach, (5) the law-in-context approach, and (6) the common-core approach. The combination of those techniques represents the complete set of instruments available for conducting comparative research (Van Hoecke, 2011 ).

Each method can be a standalone method in legal research, or combining all of them in the same research is possible. The method's name points to the particular characteristic of that approach, notwithstanding the possibility of the integration of that approach with an additional technique.

3.1 Functional Approach

This approach centres on the roles and purposes that legal principles and establishments fulfil within a community. It seeks to identify the underlying societal needs and goals that legal rules aim to address and compares how different legal systems respond to those needs (Van Hoecke, 2011 ).

This technique includes various elements such as comprehending the law, emphasizing resemblances through comparison, constructing a framework (such as that of “legal families”), identifying what the researcher considers superior law, critically evaluating legal systems, or harmonizing laws (Michaels et al., 2006 ).

The functional method can be useful in identifying areas of legal convergence or divergence and in identifying the underlying values and goals that legal systems seek to achieve (Adams et al., 2017 ).

3.2 Structural Approach

The structural method involves analysing the overall structure and organization of legal systems and comparing the relationships between different legal institutions and rules.

This technique holds significant importance, especially because it is acknowledged that disparities among diverse legal systems in terms of fundamental regulations lose significance if they exhibit adequate structural resemblances to classify them under the same “legal family” when compared to other jurisdictions and families lacking those commonalities. Thus, the process of selecting the most appropriate criteria to identify “similar structures” exerts a critical influence on shaping the outcomes.

This method seeks to identify the hierarchical and organizational patterns that exist in different legal systems (Van Hoecke, 2011 ).

3.3 Analytical Approach

This approach explores legal interpretation by evaluating numerous explanations of a given concept within multiple legal systems. It comprises examining and contrasting legislative theories across these systems. Legal analysts deploy this method to study the origin and use of legal terminology in differing systems and assess the approach they utilised to identical legal situations (Van Hoecke, 2011 ).

3.4 Law in Context Approach

For legal outsiders, contextualising the law clarifies its practicality. However, explaining foreign legislation requires extensive exploration (Orucu, 2006 ).

This approach evaluates legal norms and institutions' social, political, and economic environment for the purpose of understanding the way cultural, political, and economic influences shape legal laws and institutions. This strategy helps comprehend how legal concepts and institutions address social issues (Hantrais, 1999 ).

3.5 Historical Approach

The historical approach explores the law's origins and reasons in specific countries to understand its current state. Although comparative analysis entails knowing current laws' roots, the “law-in-context” approach extends beyond historical methodologies. It correlates and contrasts beyond simple examination to reflect how political, social, and economic pressures have affected legal laws and institutions across time. History in this context can elucidate legal concepts and institutions (Glenn, 2019 ).

3.6 Common-Law Approach

The common law approach evaluates shared legal concepts and standards by analysing a common legal concept or rule across legal systems. To draw meaningful comparisons, comparative law studies would carefully select legal systems dependent on their cultural, historical, and systemic roots (Glenn, 2007 ). Methods ought to coincide with the study question and legal systems' advantages and disadvantages. Comparative study results must be analysed thoroughly while recognizing technique limitations and biases. Research credibility and dependability rely upon well-designed procedures, careful survey, and reliable data from various juridical systems, involving an in-depth evaluation of legislative source accuracy, translations, and case selection biases (Legrand, 2023 ).

4 Comparison-Based Legal Research Challenges and Goals

Legal researchers have acknowledged that comparative legal research, is critical in a multinational economy with interrelated legal frameworks, yet it raises numerous obstacles. Language barriers and access to statutes and research articles are challenges that hinder comparative research in law. International law comparability and cross-jurisdictional police work are made more difficult by legal system design, language, approaches, as well as cultural and socioeconomic distinctions. Legal systems vary; additionally, political pressures tend to render comparisons invalid. When considering cultural diversity, intellectual property rights, and privacy, ethics are essential (Van Hoecke, 2011 ).

Comparative law has various goals. It aids in helping students perceive global legal dynamics by exposing them to other laws and customs (Zweigert & Kötz, 1999 ).

It's particularly valuable in developing nations with minimal legal resources. The comparative legal system addresses justice, equality, and human rights, providing innovative solutions to injustice and disparities in gender (Bhat, 2015 ). Also, it assists in achieving local and global legal targets. It strengthens the understanding of national law, enhances updates legal frameworks, facilitates new legislation, and guides policymakers on forthcoming modifications by comparing other jurisdictions. By recognising best practises across the legal systems, it promotes global legal norms, supports international cooperation, and strengthens human rights protection (Zweigert & Siehr, 1971 ). This approach fosters legal solidarity and reverence amongst legal traditions. (Eberle, 2008 ).

5 The Need for Harmonisation and Uniformity of Transnational Law

Transnational legal practise relies on the comparative law approach to develop transnational commercial law, improve conflict of laws, promote consistency in resolving commercial law disputes, interpret uniform laws, and determine international trade usage. Commerce has always relied on applied comparative law to assess, allocate, and mitigate cross-border transaction risk, mostly through commercial law harmonisation.

The International Convention on the Recognition and Enforcement of Foreign Arbitral Awards (NYC), the UNCITRAL Model Law on International Commercial Arbitration (1985), and the Convention for the Promulgation of International Commercial Arbitration are prime examples of international law harmonisation efforts in international commercial transactions.

The widely recognised NYC, signed and ratified by 172 states, promotes international commercial arbitration and encourages countries to pass laws supporting it. To promote harmonisation, many jurisdictions have adopted the Model Law, which provides a uniform template for arbitration proceedings. The Model Law has been used by 118 jurisdictions in 85 states to adopt civil or common law legislation. At the time of publication, 95 states are CISG signatories.

The ICC has championed NYC harmonisation and global adoption. The NYC is the most respected international legal instrument for international arbitration, according to the ICC.

The ICC's 2020 Statistical Report on International Court of Arbitration shows a steady rise in international arbitration cases worldwide. The NYC's global reach and importance in facilitating international trade and investment through the successful acknowledgment and execution of international arbitration awards are shown by the ICC's 35% caseload increase between 2010 and 2020.

The Model Law on International Commercial Arbitration, GISG, and NYC have helped global trade and investment by providing a framework for resolving cross-border commercial disputes. These conventions can reduce transaction costs and boost international trade and investment confidence by resolving commercial disputes reliably and effectively, boosting economic growth.

6 Application of the NYC in Different Legal Jurisdictions

Article V of the NYC provides a structured approach with seven clearly defined and comprehensive grounds upon which Contracting States may refuse recognition and enforcement of an arbitral award, yet the consistent application of those grounds is often lacking.

Article V use and interpretation in different jurisdictions determine their propensity or hesitancy towards engaging in to arbitrate internationally. Additionally, this phenomenon could significantly impact international arbitration system stability. Consistent enforcement builds arbitration trust. Although national courts generally support enforcement, issues can arise, especially when applying Article V of the NYC and the public policy exception.

US Supreme Court stance is an example. The court interprets Article V grounds for refusing to enforce an arbitration award carefully. In this methodology, the criteria for denial should be narrowly interpreted, with judicial bodies deferring to the arbitrator's decision unless there is conclusive evidence of one of the explicitly stated justifications. In GE Energy Power Conversion France SAS v. Outokumpu Stainless USA, LLC, the court upheld the position. In this case, the NYC does not allow a court to refuse to enforce the Convention's provisions due to the parties' lack of agreement on arbitrators or procedures. The case of GE Energy Power France v. Outokumpu Stainless USA examines their legal dispute. (GE Energy Power France v. Outokumpu Stainless USA).

The U.S. District Court for the District of Columbia refused to enforce a foreign arbitral award against India in Hardy Exploration & Production (India), Inc. v. Government of India, citing public policy violations. The court ruled that a specific performance order would violate India's sovereignty and jurisdiction over its territory and violate public policy of upholding foreign nations' rights. The court also found that investment interest would be indistinguishable from specific performance. The court also found that the punitive interest violated public policy. The interest also violated US foreign sovereign immunity law, which prohibits punitive damages against foreign states. Government of India v. Hardy Exploration & Production (India), Inc.

The London arbitral award in Société PT Putrabali was issued. England invalidated this award under Sect. 69 of the English Arbitration Act 1996, which governs legal appeals. However, the winning party used the French delocalization doctrine to enforce the award in France (Société PT Putrabali v Rena Holding & Ors). The parties then initiated a second arbitration, which favoured the losing party. The second award was enforceable in England but not in France due to the res judicata exception. Thus, France and England had two legitimate but unenforceable awards due to differing views on setting aside and recognition (Thadikkaran, 2014 ).

The London award was not enforced by the Dubai Court of Cassation because the signatory of the arbitration agreement did not authorise arbitration. The Court ruled that the NYC should apply to recognising and enforcing the award. The Court also found that the party seeking to enforce the award had shown the signatory's incapacity. Thus, the Court denied recognition and enforcement of the aforementioned based on NYC Article V(1)(a). DCC Case 400/2014.

In UAE court proceedings, the party responsible for paying a debt The debt-holder claimed in a UAE court that the arbitration agreement was signed by an unauthorised person and that the tribunal notified an unrelated commercial agent. They claimed the award should not be recognised and implemented under New York Convention Articles V.1(a) and (b). The court ordered that capacity and authority be determined by the arbitration seat's legal framework, not the company's jurisdiction. Therefore, the Dubai Court of Cassation dismissed the objection against the foreign award, arguing that the individual who signed the agreement had the authority to legally bind the company and that it must comply with the arbitration agreement. According to this decision, the arbitration seat's legal framework is crucial to the enforceability of an arbitration agreement, regardless of the company's incorporation jurisdiction. DCC Case 693/2015.

The Dubai Court of Cassation rejected a Chinese arbitral award for violating Article 41(3) of the UAE's Arbitration Law. This provision requires the arbitrator's signature on all pages of the award, not just the operative section. The Court ruled that the issue was public policy and could be raised for the first time in the Court of Cassation. (DCC Case 403/2020).

The previous decision was procedural, not substantive. However, the inflexible procedural stance seems to contradict the Convention's main goal of enforcing arbitral awards unless they meet specific grounds for refusal, usually related to more serious issues.

Comparative legal research is needed to harmonise NYC Article V implementation worldwide. The U.S. Supreme Court often interprets Article V provisions restrictively. Due to public policy concerns, the U.S. District Court did not enforce legal measures against India. Award invalidation in England and res judicata in France complicate matters. The Dubai Court of Cassation has held various rulings on arbitration agreement signatories and procedural issues. Comparative legal research helps identify these differences and unify Article V understanding and implementation across legal systems.

7 Conclusion

Despite various inconsistencies in the NYC and Model Law application, both have been adopted and have been broadly implemented worldwide, promoting international trade and investment by providing uniform and predictable systems for recognizing and enforcing foreign arbitral awards and resolving cross-border commercial disputes. This can lower costs and risks, thus benefiting economic growth (Mistelis & Brekoulakis, 2009 ).

There are different proposals for unifying the NYC application in international arbitration which involve:

Clear and unambiguous regulations that are necessary for parties to fully -recognize their rights and duties under the NYC. To reduce the likelihood of misunderstanding and contradiction, national legislation must align with NYC requirements.

Consistent interpretation: NYC interpretation must be comparable across jurisdictions. A unified body can propose binding Convention interpretations. As an alternative, the International Court of Justice might provide NYC interpretation advisory opinions.

Treaty obligations compliance: Governments have to conform to NYC treaty commitments-by recognising and enforcing arbitral judgements according to NYC rules as NYC's efficacy and international arbitration system reliability could be jeopardised -by non-compliance to treaty

Reference Lists

Adams, M., Husa, J., Oderkerk, M.: Comparative Law Methodology. Edward Elgar Pub, Cheltenham, UK (2017)

Book   Google Scholar  

Bhat, P.I.: Comparative method of legal research: nature, process and potentiality. J. Indian Law Inst. 57 (2), 147–173 (2015)

MathSciNet   Google Scholar  

Eberle, E.J.: The method and role of comparative law. SSRN Electron. J. [Preprint] (2008)

Google Scholar  

Fernández Arroyo, D.P.: The curious case of an arbitration with two annulment courts: comments on the YPF saga. Arbitr. Int. 33 (2), 317–344 (2017)

Article   Google Scholar  

Glenn, H.P.: Legal traditions of the World: Sustainable Diversity in law. Oxford University Press, Oxford (2007)

Glenn, H.P.: Comparative legal families and comparative legal traditions. The Oxford Handbook of Comparative Law, pp. 422–441 (2019)

Hantrais, L.: Contextualization in cross-national comparative research. Int. J. Soc. Res. Methodol. 2 (2), 93–108 (1999)

Legrand, Pierre: Comparative Law and the Task of Negative Critique. Routledge, London (2023). https://doi.org/10.4324/9781003161899

Lundmark, T., Waller, H.: Using statutes and cases in common and Civil Law. Transnational Legal Theory 7 (4), 429–469 (2016)

Michaels, R.: ‘Comparative Law and Economics’, in Elgar Encyclopedia of Comparative Law. EDWARD ELGAR PUBLISHING, S.l. (2006)

Mistelis, L.A., Brekoulakis, S.L.: Arbitrability: International and Comparative Perspectives, vol. 19. Kluwer Law International BV (2009)

Orucu, E.: Methodological aspects of comparative law. Eur. JL Reform 8 , 29 (2006)

Sathe, S.P.: Judicial Activism in India: Transgressing Borders and Enforcing Limits. Oxford University Press, New Delhi (2002)

Siems, M.M.: Comparative Law. Cambridge University Press, Cambridge, United Kingdom (2022)

Thadikkaran, M.: Enforcement of annulled arbitral awards: What is and what ought to be? J. Int. Arbitration 31 (Issue 5), 575–608 (2014). https://doi.org/10.54648/JOIA2014028

Van Hoecke, M.: Methodologies of legal research: which kind of method for what kind of discipline? Bloomsbury Publishing (2011)

Zweigert, K., Kötz, H.: An introduction to comparative law. Edinburgh Law Rev. 3 (2), 263 (1999). https://doi.org/10.3366/elr.1999.3.2.263

Zweigert, K., Siehr, K.: Jhering’s influence on the development of comparative legal method. Am. J. Comp. Law 19 (2), 215 (1971)

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Al Abiad, H., Masadeh, A. (2024). Law Comparison as a Research Method in Legal Studies, and Its Importance in Promoting Uniformity in Legal Systems. In: Al Marri, K., Mir, F.A., David, S.A., Al-Emran, M. (eds) BUiD Doctoral Research Conference 2023. Lecture Notes in Civil Engineering, vol 473. Springer, Cham. https://doi.org/10.1007/978-3-031-56121-4_42

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The Limits of Law

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).

1. Legal Moralism: Formulation and Structure

2.1 privacy, 2.2 liberty, 2.3 the crime tariff, 2.4 self-defeat and other forms of defeat, 3. the morality of legal moralism, 4. the harm principle, 5.1 other-regarding conduct, 5.2 a setback to interests, 5.3 a setback to autonomy/prospect harm, 6.1 utilitarian/consequentialist foundations, 6.2 perfectionist/value-pluralist foundations, 7. public reason, 8. other directions: legality, a “modal kind” and coercion, 9. conclusion, other internet resources, related entries.

Legal moralism is an initially simple and natural position to take in delineating the legitimate boundaries of the legal use of coercion. At its heart is a strong link between moral wrongdoing and legal (especially criminal) wrongdoing. In the 1960s Herbert Hart applied the label “legal moralist” to his intellectual sparring partner, Lord Patrick Devlin, and the label stuck (Hart 1963; Devlin 1965). Devlin’s account, which we come to below, has led to numerous responses; beyond Hart himself a sample might include: Rostow (1960), Ronald Dworkin (1965), Ten (1972), Feinberg (1987), Kane (1994), Jeffrie Murphy (1999), Gerald Dworkin (1999), Kekes (2000), Nussbaum (2004, 2010), Wall (2013). While many of the responses to Devlin have been heavily critical, the approach is alive and well and continues to develop in the hands, among others, of self-declared legal moralists, such as Michael Moore and Antony Duff (Duff 2016: 96, 2018; Moore 1997, 2014) and in writers who seem at least broadly favourably disposed (Tadros 2016a: 169–170). Something akin to it is also found implicit in a vast range of legal writing.

Legal Moralism is often formulated in terms of immorality as a sufficient condition for legal coercion. Hart asks whether the fact that conduct is immoral is “sufficient to justify making that conduct punishable by law?” (Hart 1963 [1982:4]). Larry Alexander similarly defines legal moralism as “the position that immorality is sufficient for criminalization” (Alexander 2003: 131). Joel Feinberg—mindful of the possibility that a legal moralist might want to excise from the picture certain kinds of immorality—defines legal moralism without mention of sufficient conditions:

it can be morally legitimate to prohibit conduct on the ground that it is inherently immoral, even though it causes neither harm nor offence to the actor or to others. (Feinberg 1984: 27, emphasis added)

However, Hart’s and Alexander’s formulations are at best misleading as characterizations of legal moralism; [ 1 ] and Feinberg’s is incomplete by the measure of his own formulations of rival positions. What both leave out is the important point that immorality or wrongdoing is generally taken by legal moralists to be a prima facie or pro tanto ground for the imposition of legal coercion, subject to potential defeat by other factors. [ 2 ] That certain conduct is by common standards immoral gives the society, in Devlin’s view, “prima facie right to legislate” (Devlin 1965: 11). The immorality is certainly a valid reason for criminalization, but such a reason will fail to be conclusive if unable to override a series of potential defeating factors that Devlin outlines. Accordingly, the

appointed law makers of society have the duty to balance conflicting values…and to form a judgement according to the merits of each case. (Devlin 1965: 117)

Devlin identifies a series of “factors which should restrict the use of the criminal law”, even where an immorality or moral wrong has been identified (Devlin 1965: viii). Balances must be struck as between “factors of principle” and “factors of expediency” (we examine some of these in the next section). Hence it will often be the case that the posited wrongness or immorality will not be a sufficient ground for legal coercion.

As far as Feinberg’s formulation is concerned, it is perhaps revealing to contrast his formulation of the harm principle (which we discuss below in section 4 ) with his formulation of legal moralism cited above.

Harm to others : It is always a good reason in support of penal legislation that it would be effective in preventing (eliminating, reducing) harm to persons other than the actor (the one prohibited from acting) and that there is probably no other means that is equally effective at no greater cost to other values . (Feinberg 1984: 26, emphasis added)

In formulating his harm principle, Feinberg is careful to qualify his central claim with conditions relating to what would be “effective” and of what the “cost” may be to “other values”. Not so, however, when he formulates legal moralism. This may be no more than an oversight. However, considerations of the sort—potential “effectiveness”, “cost to other values”—are central to legal moralists as will be seen in the next section (Devlin 1965; Moore 1997: 663–665). Stressing these, as regards the harm principle, but omitting them, as regards legal moralism, leaves the unfair impression that the former has a subtlety and a realism that the latter lacks. Furthermore, Feinberg’s formulation makes wrongdoing or immorality sound like something of an afterthought or a factor of only marginal importance to the criminalization question. The legal moralist by contrast sees wrongdoing or immorality not as marginal or in play only after harm and offence have had their due, but as central or pivotal. Wrongs, as Devlin would have it, “shape” crimes. Of the best known—murder, rape, battery, theft, fraud, arson—so called mala in se —we should say “a moral idea shapes the content of the law” (Devlin 1965: 27). It is true, the moralist will say, that while these crimes are shaped by morality, the criminal offence of, say, murder is not identical to the moral wrong of murder as law will import various other requirements, of legality and so on; for example the law

must trim the edges so that they present a line sharp enough for the clear acquittal or condemnation which the administration of justice requires. (Devlin 1965: 27)

The wrongdoing is, however, essential. Hence the legal moralist takes murder, fraud etc as ripe for criminalization because they are wrongful. They may (or may not) be wrongful because harmful; but from the fact that harms form a significant subset of wrongs, we should not be tempted to put the cart before the horse. Harms matter a great deal, but this is because they are often a kind of wrong. As Devlin’s fellow legal moralist Michael Moore puts it

we care about harm to non-consenting victims because to cause such harms (and sometimes, to fail to prevent them) breaches our moral obligations. (Moore 1997: 649)

If one were to revise Feinberg’s definition of legal moralism so as to be symmetrical with his definition of the harm principle one would get something closer to the essence of the position: It is (always or sometimes) a good reason in support of penal legislation that it would be effective in preventing (eliminating, reducing) wrongs and that there is probably no other means that is equally effective at no greater cost to other values. [ 3 ]

Legal moralism, then, broadly comes in two parts, first, a wrong or immorality is identified and, second, a set of countervailing factors are considered; and considered with the aim of reaching an all-things-considered-judgement on whether legal coercion should be deployed. The wrong may be strong enough to see off the countervailing factors, as the case may be, or the factors may be powerful enough to defeat the wrong, all things considered. Thus, some wrongs will be tolerable, according to this position, and some will be intolerable. Beyond this core of the position, legal moralist accounts diverge significantly. Moore takes a specific philosophy of punishment, a form of retributivism, as an essential component of his account (Moore 1997). Duff argues that only a subset of moral wrongs should be criminalizable—public, not private wrongs (Duff 2016, 2018). Tadros, whose relationship to legal moralism is complex, also excludes a subset of moral wrongs as potentially criminalizable, for example “less serious wrongs committed in families” (Tadros 2016a: 131). Against this Moore accepts there is initially reason to criminalize all kinds of morally wrongful conduct—even breach of contract or treachery among friends—and leaves it to the second part of the structure mentioned above, the countervailing factors, to block the absurdity of criminalizing such conduct (Moore 1997, 2016). There is also considerable variation between legal moralists as to how “morality” is to be understood. Notably, Devlin’s understanding of morality is widely rejected by his successors. Below the flexibility of the approach will be emphasized. We return to the question of how the “morality” in “legal moralism” is to be understood in section 3 .

2. Legal Moralism: Restrictive Factors that Can Defeat Prima Facie Wrongs

The defeating factors most heavily stressed by Devlin and Moore are privacy and liberty (Devlin 1965: 16–20; Moore 1997: 76–78). As far as privacy is concerned, consider adultery and fornication. Adultery remains a criminal offence in parts of the world including certain US states (Rhode 2016). Devlin takes the wrongfulness of adultery for granted, but nevertheless holds it inappropriate to criminalize it. Jeffrie Murphy reaches the same conclusion despite saying, along the same lines as Devlin:

It does not strike me as absurd…to suggest that the sexual revolution of the 60s, and the resulting freedom many men felt to abandon their marriages and family responsibilities for sexual and other forms of so-called self-fulfilment, generated considerable social harm—particularly for women and children. (J. Murphy 2006 [2012: 70])

From considerations like this there may be a prima facie ground to criminalize in some circumstances such moral wrongs, but the conduct—all things considered—should not be criminal in Devlin’s view or Murphy’s. The clumsy tool of legal coercion is hardly likely to help remedy any wrongs here, not to mention the undesirability of official surveillance of intimate relationships.

The privacy concerns defeat any prima facie right. A legal moralist position must attend closely to what is known about the potential effects on privacy of the criminal law. Such a view would find pertinent Lawrence Tribe’s suggestion as to what the question should be in Bowers v Hardwick —that is: not the question of what Hardwick “was doing in the privacy of his bedroom, but what the State of Georgia was doing there” (quoted in Suk 2009a: 689). [ 4 ] More recently Jeannie Suk has explored the relationship between the criminal law and the value of privacy and intimate relationships. Though not writing from any self-declared legal moralist perspective the ideas illustrate the kind of balanced exploration that the legal moralist seeks. The criminal law in many jurisdictions—Suk’s focus is largely on New York County—showed, historically, a reluctance to enter the intimate space of the home at the heavy cost of enabling domestic abuse against women. This has been replaced in many jurisdictions, such as New York County, by the criminalization in various guises of domestic abuse. An improvement to be sure. However, Suk points to some complex resulting tensions “between protecting women from intimate violence” and respecting their “self-determination” (Suk 2009a: 690). Certain criminal law techniques, such as protection orders that seek the end of an intimate relationship can amount, she claims, to “state-imposed de facto divorce” (Suk 2009a: 685; 2009b) and to various contexts in which “the particular desires of individual women” do not “control” a particular area of their intimate lives (Suk 2009a: 690). Suk’s aim is not to deny that the criminal law should be used to criminalize and enforce specific laws against domestic abuse; the wrong (and harm) of domestic abuse remains a ground for such intervention. It is rather to focus on the delicate balances implied by legal enforcement of such wrongdoing against the value of privacy, intimacy, and self-determination and to evaluate certain specific legal techniques in the light of such a focus. It has led to numerous responses (see Suk 2009a, which contains reactions from eight commentators; on domestic abuse see also Friedman 2003, Dempsey 2009).

This approach to privacy is not one accepted by all legal moralists. The usual two-part structure of legal moralism—the wrongs and the countervailing factors—was noted above. Devlin and Moore treat privacy as a potentially defeating countervailing factor, an aspect of the second part of that structure as we have just seen. Duff, however, treats it as a criterion to determine what counts as a wrong before even reaching the question of countervailing factors, in other words as an aspect of the first part of that structure. For Duff, the criminal law is, or should be, limited to the definition and declaration of public wrongs; wrongness, for him, “is a reason for criminalization—but only if it is committed within the public realm” (Duff 2018: 100). In insisting on this, Duff is departing from Devlin’s claim:

that it is not possible to set theoretical limits to the power of the State to legislate against immorality. It is not possible to settle in advance exceptions to the general rule or to define inflexibly areas of morality into which the law is in no circumstances to be allowed to enter. (Devlin 1965: 12–13)

The “private realm” for Duff—which he aspires to define in advance, albeit not “inflexibly”—is precisely an area of morality into which the (criminal) law is not to be allowed to enter.

As for liberty, “there must be”, says Devlin, “toleration of the maximum individual freedom that is consistent with the integrity of society” (Devlin 1965: 16). “Toleration” only arises in relation to conduct of which one disapproves: toleration is not approval (Devlin 1965: 18; cf. Oberdiek 2001; Green 2008). He gives two examples—cruelty to animals and –the issue with which his view is most famously associated—homosexual sex and, as he puts it, the “general abhorrence of homosexuality” in the UK in the late 1950s and early 1960s (Devlin 1965: 17). As regards both, his question is: are they beyond toleration by the criminal law? Devlin’s answer is yes to the first and—although there is a widespread erroneous view on this in the literature [ 5 ] —no to the second. In other words, liberty or freedom of human choice cannot defeat the prima facie right of society to criminalize cruelty to animals on grounds of its wrongfulness, but, in the case of consensual homosexual sex in private, it can (Devlin, Birmingham et al. 1965; cf. Devlin 1965: ix). On the latter issue, one might certainly disagree (to put it mildly) with the claim that the reason gay sex ought not to be criminalized is that it is within the bounds of toleration, for that implies that such conduct is morally wrongful in the first place. And one might also strongly doubt the plausibility of Devlin’s means of discerning where the boundary of maximum individual freedom lies—turning both on how widespread a moral belief is and on how intensely it is felt and believed. [ 6 ] We will return below to these points when we consider how “morality” should be best understood in legal moralism ( section 3 ). The point for now is to illustrate the structure of a legal moralism such as that of Devlin. In short Devlin took both animal cruelty and homosexuality to be prima facie morally wrong, but took the former all things considered to hold firm against liberty as a potential defeating condition, and the latter to be defeated by liberty (and other factors) when all things are considered. Moore in his brand of legal moralism also stresses the place of liberty. In his view, “there is always some reason not to legally coerce behaviour, namely, that to do so diminishes the opportunities of those coerced, diminishes the likelihood of autonomously chosen rightful behaviour etc.” (Moore 1997: 749; 2014).

There is a controversy here as to whether the negative liberty which Moore explicitly invokes (and which Devlin assumes) can ground the requisite prima facie reason against legal coercion (for scepticism see Tadros 2016b: 79–82 and the response in Moore 2016: 352). [ 7 ] This raises the issue much explored in the philosophical literature of the extent to which liberty should be understood as “negative liberty” or “positive liberty” or some combination of the two (Carter 2019). Negative liberty, as Ian Carter puts it,

is the absence of obstacles, barriers or constraints. One has negative liberty to the extent that actions are available to one in this negative sense. Positive liberty is the possibility of acting—or the fact of acting—in such a way as to take control of one’s life and realize one’s fundamental purposes. (Carter 2019)

Amy Baehr blocks out how the negative/positive liberty distinction takes shape in liberal feminist writing, labelling approaches of the former kind “classical-liberal feminism”, and approaches of the latter kind as “egalitarian-liberal feminism” (Baehr 2021). As we saw in the previous subsection in relation to privacy, it is a sign of the potential flexibility of a broad legal moralist approach, that liberal-feminist accounts of freedom could potentially be deployed so as to yield potential defeating conditions for all-things-considered determinations in given cases of whether legal coercion can legitimately be deployed to counter an identified wrong. We touch on this issue again below ( section 6.2 ).

The legal moralist notion of defeaters—the conditions that can potentially defeat a prima facie reason to impose legal coercion on the basis of moral wrongdoing—should not be thought of as closed, but rather as flexible and subject to evolution or change. The notion fits comfortably with an established set of considerations that have been developed since the 1960s, based on the “crime tariff” and other mechanisms at work in the criminal law (Packer 1964, 1968; Moore 1997: 664). The idea of the crime tariff is that certain kinds of (perceived) wrongful behaviour will be engaged in, one way or another, whether it is criminal or not. That, of course, is not a conclusive objection to criminalization. If it were, the criminalization of murder or theft would be ruled out. However, if one looks at the predictable effects of criminalization of given wrongful conduct, it may make matters still worse than staying the hand of the criminal law. For one effect of criminalization is that the price of products (for example dangerous drugs) or services (for example sex work) will go up and will attract suppliers willing to break the law systematically and introduce a plethora of criminal gangs into societies, among other effects. The result may be worse than leaving well (or quite bad) alone. Michael Moore, for example, writes:

Prostitution… does not go away by being legislated against, as the experience of all societies has shown. By making it criminal, however, the supply is artificially restricted to those willing to engage in criminal behaviour, so that prices and profits are such as to draw in organized criminal activity. (Moore 1997: 664; cf. Flanigan & Watson 2020).

Devlin appeared to be anticipating this argument when pointing out a factor that needed to be weighed in considering whether abortion (which he appeared to assume was morally wrongful) should be, or should remain, criminal. Abortions, in certain circumstances, will be sought irrespective of whether the conduct is criminal. But, if criminal, they will be performed by amateur, unskilled “backstreet” practitioners, operating outside of legal regulation. This renders the procedure dangerous in a way it would not be if properly attested professionals were undertaking the procedure; and punishment may seem appropriate for anyone causing or risking such danger. However, the dangerousness of this conduct, said Devlin, is “largely” based on the facts that “it is illegal and therefore performed only by the unskilled” (Devlin 1965: 24). This again yields a factor of potential relevance—even to those who, like Devlin, believe abortion to be morally wrong. Whatever the conclusion, such a consideration is a factor to be weighed in the balance.

There has been much research in the intervening decades on how norm-subjects will respond to any potential use of the criminal law. Will they endorse it, ignore it, seek to undermine it? All of this can make a difference to the wisdom of criminalizing in the first place. Tom Tyler has argued that to a large extent obedience to the law is based on what is perceived by people to be legitimate and to be respected. The extent to which people obey because threatened by legal sanctions is, by contrast, exaggerated (Tyler 2006). Paul Robinson stresses the need for laws to be made that do not stray too far from the norms already accepted by the people. For if they do, the people will not stigmatize the conduct, which may blunt or compromise the effectiveness of the norms in question (Robinson 2000). Similarly, legal officials may find various ways of underenforcing norms if they stray too far from those generally accepted, again blunting their efficacy. Bill Stuntz points to the phenomenon of “self-defeating crimes” (Stuntz 2000). A series of factors of the sort have most recently been examined by Jacob Barrett and Gerald Gaus (Barrett & Gaus 2020). The idea of potential defeating conditions is a highly flexible one, not a once-for-all set of conditions with any rigidity; the list will inevitably change and develop. A further issue of potential relevance to the question of what conduct should be criminalized (and how) focusses on the consequences of applying the criminal law in given areas. There is, for example, a differential impact of the criminal law on some races in many jurisdictions (Yankah 2019). One might add to a list of potential defeaters the problem that enforcement of a given proposed or current offence is not possible under current conditions in any tolerably fair way. In the United Kingdom, for example, the politician David Lammy has written a report on racial disparities across the criminal justice system and proposed a principle for government of “explain or reform”: if governments cannot provide an evidence-based explanation for apparent disparities, then reforms should be introduced to address them (Lammy 2017).

The above discussion emphasized the legal moralist’s defeating factors because of their importance to the position and because, as we have seen, legal moralism is sometimes misleadingly characterized without reference to them. It was also noted that Feinberg holds such factors to be of crucial importance to the version of the harm principle he endorses. Such factors will surely be largely ecumenical as between the rival approaches.

As we have seen, Devlin took homosexuality and animal cruelty to be morally wrongful and therefore his reason for supporting the decriminalization of the first and the continued criminalization of the second was that they, respectively, ought to be tolerated and ought not to be tolerated (see footnote 5). Notably neither Devlin nor Hart addressed the question of why—in virtue of what—can it be asserted or denied that homosexuality is morally wrongful. For Devlin that is hardly to the point, for “what the law maker has to ascertain is not the true belief but the common belief”(Devlin 1965: 94). By contrast Devlin’s fellow legal moralist, Moore, would take Devlin’s support for decriminalization of homosexual sex to be the right result for the wrong reason; homosexuality, not being in any way morally wrong, should not be criminalized for that straightforward reason; the question of toleration should never arise (Moore 1997: 756; Corvino 2013; Pickett 2020).

Devlin’s account is a moral relativist one. He relativizes what is morally good to the beliefs of a given society (where “deeply felt and not manufactured”; Devlin 1965: 17). The attraction for Devlin of moral relativism was his belief that it would yield a morality generally of the society subject to it, without conceding “moral expertise” to any (elite) group of persons. He seemed to assimilate the “rationalist morality” he rejected to the views of an educated elite (Devlin 1965: 91–92). [ 8 ] Since Hart’s critique, few have found the relativist aspect of Devlin’s account convincing (Hart 1963 [1982: 17–24]). Devlin’s view appears to exemplify what Bernard Williams styled as “vulgar and unregenerate” relativism (B. Williams 1972: 34, cf. Fricker 2013). Such relativism—as Williams paints it—is composed of three propositions:

1. “right” means … “right for a given society” [also presumably by the same token: “wrong” means “wrong for a given society”]; 2. right[/wrong] “for a given society” is to be understood in the functionalist sense’ [i.e., for the persistence of that society]; and that 3. (therefore) it is wrong for people in one society to condemn, interfere with, etc., the values of another society.   (B. Williams 1972: 34–39, numbering added; cf. the distinction between “positive morality” and “critical morality” in Hart 1963 [1982: 17–24])

As noted above, Devlin affirmed the first of William’s propositions. In industrialized societies, Devlin tells us, it is generally true that monogamy “is built into the house in which we live and could not be removed without bringing it down” (Devlin 1965: 10). But this is merely a contingent truth and if our houses were built differently—around polygamy—the content of the law to be enforced could legitimately be the opposite of what it is (Devlin 1965: 114). As for the second, it is equally clear that Devlin understood wrongness “for a given society” in “the functional sense” of what threatened the persistence of that society. A society is constituted by its “common morality” or “moral structure” or “public morality” and its morality is as necessary to it as “a recognised government”, If a society’s morality is not sufficiently enforced the society will “disintegrate”; and the society accordingly has a right to defend itself against attacks on that morality (Devlin 1965: 10).

Devlin’s “disintegration argument” appears fatally wounded by Hart’s initial criticism of it. As Hart puts it, Devlin moves

from the acceptable proposition that some shared morality is essential to the existence of any society to the unacceptable proposition that a society is identical with its morality as that is at any given moment of its history, so that a change in its morality is tantamount to a destruction of society. (Hart 1963 [1982: 51])

The former claim is plausible if restricted to what Hobbes and Hume characterized as the moral minimum essential for social life:

rules restraining the free use of violence and minimal forms of rules regarding honesty, promise-keeping, fair dealing, and property. (Hart 1967 [1983: 258])

If these ceased to be enforced, it is likely that a different and more dangerous state-of-affairs would ensue; one might well say the original society had disintegrated. Hart can afford to concede this. Such a Hobbesian-Humean minimum is accounted for by the harm principle Devlin rejects. Devlin’s argument, however, needs the disintegration thesis to apply more widely, potentially to every crime of a community, be that to homosexuality, animal cruelty, bigamy, incest etc (to “every jot and tittle” as Hart puts it: Hart 1967 [1983: 258]). These need to be protected on pain of the disintegration of society. Since Devlin gives no empirical evidence linking the destruction of past societies with the non-enforcement of their rules, this appears not to be an empirical claim. [ 9 ] But as a conceptual argument it is highly dubious. For as Hart says

Taken strictly, it would prevent us saying that the morality of a given society has changed, and would compel us instead to say that one society had disappeared and another one taken its place (Hart 1963 [1982: 51–52])

Only a claim of this strength seems able to support Devlin’s belief that any deviation from a society’s shared morality is an existential threat to it.

A different objection is this: to assimilate right and wrong with the question of a society’s survival assumes that the survival of a specific society is necessarily good. It may be true that if certain steps are not taken, the society will disintegrate. Apartheid in South Africa disintegrated. What if by a more sustained enforcement of its central racist elements it had managed to persist longer? Would this continued existence be underwritten by a moral right? Does anyone now owe the society the duty to restore the system or did such a duty lie for a period after its disintegration? The suggestions are absurd. The point of course is that some societies are so lacking in legitimacy that it may be for the best that they disintegrate and are replaced. Devlin goes too far when he says “What is important is not the quality of the creed but the strength of the belief in it” (Devlin 1965: 114). While his concern was the use of legal coercion within a specific society rather than with criticism of other societies, Devlin also appeared to hold to the third of Williams’ propositions above in seeking to exclude standards external to the beliefs of the society. Legal moralism, then, surely needs foundations other than those Devlin sought to provide.

This impression is buttressed by another concern about his account. For what is the status and basis of liberty and privacy, for example, in Devlin’s account? As we have seen he took them to be powerful enough to override certain immoralities in determining what should be criminalized. But what if the ordinary jury member or person on the Clapham omnibus just does not care that much about privacy or liberty? What if, say, they take the view that adultery should be criminalized never mind the very high cost to privacy? Should privacy and liberty be simply downgraded as a result? There is no indication that Devlin would accept such a conclusion or even that the possibility occurred to him. Similarly, Devlin took it that the law should be “perfectly impartial in matters of religion” and this seems in no way sensitive to whether or not the ordinary member of society endorses such impartiality (Devlin 1965: 62). He appears to take liberty and privacy and other defeaters as safeguards applicable independently of whether ordinary people would accept their validity. In this he appears to have been simply inconsistent.

What alternative foundations could legal moralism have if Devlin’s brand of moral relativism is to be rejected? In the light of Devlin’s stress on wrongdoing as a prima facie ground for legal coercion, one possibility might be an ethics of prima facie duty associated with W.D Ross (Ross 1930; Skelton 2012). And of course, any of the other numerous theories of what makes wrong action wrong—consequentialist, Kantian, natural law, rights-based, virtue ethics—could potentially form such a foundation (Timmons 2013). [ 10 ] Michael Moore combines his legal moralism with a strong version of metaphysical realism (Moore 1997). Presumably, however, such strong metaethical commitments can be bracketed for the more specific questions raised by legal moralism. Jeremy Waldron for example suggests that an anti-realist or quasi-realist view, positing moral truth, albeit based ultimately on subjective sources “inside our own attitudes, desires, and natures”, could serve as well as an out-and-out realist view of Moore’s variety (Waldron 1999: 171). Again, while a legal moralist must surely reject a “vulgar” relativist view of Devlin’s stripe, it may not follow that a more sophisticated moral relativist grounding for legal moralism could not be attempted (Wong 2006; Rovane 2013; Velleman 2015; cf. Fricker 2013). Indeed Duff’s legal moralism is alleged by others to contain moral relativist commitments, a claim he himself rejects (Moore 2014: 199; Tadros 2016a: 121–128; Duff 2018: 232)

Far and away the best-known proposal for a principled limit to the law is the “harm principle” from John Stuart Mill’s On Liberty. The pivotal sentence of its most famous passage reads:

the only purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others. (Mill On Liberty , Ch. 1, para 9)

Harm to others , can be contrasted with moral wrongfulness or immorality—the legal moralist’s starting point; with offence to others; and with harm to persons choosing to engage in, or consenting to, the relevant conduct (anti-paternalism). At least as far as Mill’s canonical statement is concerned, moralism, offence and paternalism are ruled out as legitimate bases for legal coercion. The State may legitimately stop A from beating up B, thereby limiting his freedom of action, because this prevents harm to B. And it may stop A from stealing from B for the same reason. But the State oversteps its proper limits on this view if it purports to stop A smashing up his own property; or to protect C from the distaste she will feel knowing that A is doing this. And it may not treat the wrongfulness of conduct, in the absence of any unconsented-to harm, as a basis for legal coercion: it may not for example prevent “bloody gladiatorial contests presented by voluntary performers before consenting audiences” (Feinberg 1984: 13). For the harm principle, says Mill, is “entitled to govern absolutely the dealing of society with the individual in the way of compulsion and control” (Mill On Liberty , Ch. 1, para 9)

In his four-volume work, the Moral Limits of the Criminal Law Joel Feinberg sets out to defend a version of the harm principle that he takes to be firmly in the spirit of Mill (Feinberg 1984, 1985, 1986, 1990).

The Liberal Position : The harm and offense principles, duly clarified and qualified, between them exhaust the class of good reasons for criminal prohibitions.

This is compounded, first, of Feinberg’s “harm to others” principle stating, as we saw in section 1 :

Harm to others : It is always a good reason in support of penal legislation that it would be effective in preventing (eliminating, reducing) harm to persons other than the actor (the one prohibited from acting) and that there is probably no other means that is equally effective at no greater cost to other values. (Feinberg 1984: 26)

But Feinberg goes beyond Mill’s officially stated position in adding, secondly, the offense principle:

Offense to others : It is always a good reason in support of a proposed criminal prohibition that it is probably necessary to prevent serious offense to persons other than the actor and would probably be an effective means to that end if enacted. (Feinberg 1984: 26)

Though this “offense to others principle” goes beyond Mill’s canonical position, Feinberg believed there to be support in Mill’s writings for the addition of offense as a ground and in any case argued that there are independent grounds for thinking the addition of the offense principle strengthens the Millian position. The place of offense and relatedly “moral distress” remains controversial and has inspired an extensive literature (Feinberg 1985; Hart 1963 [1982: 46]; Waldron 1987 [1993]; Simester & von Hirsch 2011: 99–140; Edwards 2019)

There is an important qualification to be made to Feinberg’s “harm to others” principle. One reason why one might want to treat harm as special is the yearning for a concept for practical use that is “simple, determinate” and “purely empirical” (Feinberg 1984: 214). Such a determinate empirical concept, if it exists, could function free of the controversies that usually attend normative concepts. Everyone, from vastly diverse cultures, philosophies and opinions could get behind it, without fear of compromising what they hold dear. It is clear, however, that Feinberg abandons any hope, if this ever was a feasible ambition, of blocking out any such purely empirical notion. Instead he builds into his harm principle a strong element of moral wrongfulness. As we have observed, his harm principle is designed to reject moral wrongfulness as a legitimating ground for legal coercion, but the crucial qualification here is that it rejects wrongfulness without more as a legitimate basis for legal coercion. Moral wrongs, however, remain highly significant to the account. For harms “produced by justified or excused conduct (‘harms that are not wrongs’)” are said by him not to count as “harms” for the sake of his harm principle. It is thus not any harm to others that constitutes a good reason in support of legal coercion. It is the harms that are produced by “morally indefensible conduct” that matter (Feinberg 1984: 215). In other words, the proponent of Feinberg’s harm principle must be highly concerned with moral wrongs and immorality, perhaps almost as concerned as the legal moralist.

On the one hand, this allows Feinberg to deal satisfyingly with a raft of potential counterexamples. Since, for him, a good reason for coercion will present itself only if the harm in question is wrongful, he can avoid designating as harmful setbacks to persons of the order of losing a professional tennis competition or of being driven out of business by a rival’s superior product, even if the consequences feel like, and are, terrible events in the lives of the individuals concerned. Be they so terrible they are not harms in the relevant sense for Feinberg, as they do not spring from any wrongdoing. On the other hand, the necessity of a moral wrong in his account of harms opens him up to potential criticism. For example, it might be claimed that it is the wrongs that are doing the essential explanatory work, while harm is a redundant or near-redundant addition. Or the strong moral wrongness element in the account might be taken as a tacit admission that the reason the relevant harms matter in the first place is that they are morally wrongful; and if that point goes through, the next question may be: why, then do wrongs that are not harms not also matter enough to form, on occasion (and subject to potential defeating conditions), a valid reason for legal coercion?

Feinberg, however, is clearly Millian in his rejection of paternalism.

Paternalism : It is always a good reason in support of a prohibition that it is probably necessary to prevent harm (physical, psychological, or economic) to the actor himself and that there is probably no other means that is equally effective at no greater cost to other values. (Feinberg 1984: 26–27; Feinberg 1986)

His strong anti-paternalism is not equally hostile to everything that might be described as legal paternalism. He distinguishes “soft paternalism” from “hard paternalism”. In many cases the forcible implementation of a person’s will can accord with his personal autonomy. Feinberg describes such cases as involving “soft paternalism” and contrasts them with those involving “hard paternalism” (Feinberg 1986: 26). It is the “hard” variety that Feinberg sets himself against, the forcible coercion of a person against her will for her own good. This he rules out on grounds of legitimacy. In fact, he does not believe that “soft” paternalism is really paternalism at all properly so-called and so stops short of adding it to his list of potentially legitimating reasons for legal coercion (G. Dworkin 2020).

Whether or not Feinberg broke significantly with Mill on the question of offense, a much larger break with Mill is evident in the respective defences of the harm principle offered by H.L.A Hart and Joseph Raz. Speaking of Hart, Devlin observed that he “mutinied” against Mill and “ran paternalism up the mast” (Devlin 1965: 132). Hart indeed accuses Mill of carrying “his protests against paternalism to lengths that may now appear to us fantastic” (Hart 1963 [1982: 32]). Furthermore, anticipating parts of the “Nudge” movement that emerged fully this century (Sunstein 2014), Hart speaks of

a general decline in the belief that individuals know their own interests best, and to an increased awareness that a great range of factors which diminish the significance to be attached to an apparently free choice or consent. (Hart 1963 [1982: 32–33])

Raz in turn speaks of his “ready embrace of various paternalistic measures”, asserting it is “senseless to formulate either a general pro- or a general anti-paternalistic conclusion” (Raz 1986: 422: Simester & von Hirsch 2011: Part IV; Stanton-Ife 2020: 211–220). The issue of paternalism is of considerable importance to the limits of the law, but for a deeper discussion beyond the brief remarks just made see the entry on paternalism (G. Dworkin 2020; cf. Hurd 2018; De Marneffe 2018; Conly 2018).

Hence Hart and Raz defend a “harm principle”, not a “harm to others” principle. Both nevertheless argue that it will often be the case that the state should not act paternalistically, only not in such a way that an exclusionary principle is merited. The dramatic differences between major proponents of the harm principle makes it misleading to speak of the harm principle as one principle, although one suspects the term is too far embedded in the debate to be dislodged. Therefore we continue to speak of the harm principle, though strictly speaking, there is more than one. The table below illustrates the divergence in the views of the leading thinkers associated with the harm principle. No one of them has an account with conclusions identical to any of the others (see also Edwards 2014). What unites them all is the rejection of legal moralism.

5. What is Harm?

Proponents of the harm principle often proceed without supplying any definition or understanding of “harm”. Mill himself gives no explicit general definition of what he means by the word, satisfying himself with various examples, contextual stipulations and hints:

he seems throughout to think no further explanation is necessary, and to count on any literate speaker of English to accept his application of the word or of some proxy for it. (Brown 2017: 411)

As we will see, other writers consider they can detect in Mill one or more ways to define or understand the term. Perhaps, as well as relying on general linguistic intuitions, one can simply cite paradigm cases. These come easily to mind; harm as “broken bones and stolen purses” as Joel Feinberg puts it (Feinberg 1984: 214). Certainly, one harms others, on any folk understanding of the term, by killing, raping, beating, defrauding, or stealing. But the ordinary sense of harm may also suggest that a transitory pain is a harm and may also have rather porous borders with other normative concepts such as “wrong”, May there, then, be trouble ahead developing a sufficiently determinate, discriminating, and workable conception of harm for purposes of applying the harm principle?

Various definitions and understandings of “harm” have been offered. One derived from Mill takes harmful conduct to be “other-concerning” or “other-regarding conduct” and, conversely, harmless conduct is “self-regarding” (Mill On Liberty , ch. 1, para 9). Accordingly, if some actions have no social consequences, they affect only the actor and are therefore harmless. Hart seems discomforted enough by “critics” of this Millian suggestion to have been unwilling to adopt it himself across the board. He surely had James Fitzjames Stephen’s critique of Mill in mind among others (Stephen 1873 [1993]). These critics, he says,

have urged that the line which Mill attempts to draw between actions with which the law may interfere and those with which it may not is illusory. “No man is an island”; and in an organised society it is impossible to identify classes of actions which harm no one or no one but the individual who does them. (Hart 1963 [1982: 5])

Despite seeming to take Stephen’s point against Mill, however, Hart goes on to adopt the other-regarding/self-regarding understanding in a limited context: so far, he says, as the “special topic of sexual morality” is concerned there may exist a realm or area of conduct that is harmless; here it does seem, “prima facie plausible that there are actions immoral by accepted standards and yet not harmful to others” (Hart 1963 [1982: 5]). It is not, however, clear how this understanding of harm is to be reconciled with Hart’s other uses of the term. For example, he discusses (sceptically) whether the “moral distress” of persons occasioned by the moral wrongdoing of others should count as harm to them (Hart 1963 [1982: 46]); cf. Waldron 1987 [1993]); and he asserts that animal cruelty should be criminal, not pace Devlin to “enforce a moral principle”, but on account of animal suffering. If there is a coherent way of bringing these various understandings of harm together, Hart does not himself supply it.

Another understanding of “harm” again takes its cue from Mill, this time from his many references to the “interests” of persons—for example: “insofar as these concern the interests of no person but himself” and “such actions as are prejudicial to the interests of others” (Mill On Liberty , ch. 5, para 2). The important distinction is not that which regards others versus that which regards oneself. It is that which is in the interests of others versus that which is in the interests of oneself. The seminal essay for this reading is from 1960 by John Rees (Rees 1960; cf. Saunders 2016), though Hart appears not to have been aware of it. Rees paved the way for Feinberg’s development of harm as “the setback of interests”. Hence, in addition to Feinberg’s addition of wrongfulness commented on above, Feinberg’s defines harm as “those states of set-back interest that are the consequence of wrongful acts or omissions by others” (Feinberg 1984: 215).

This Mill-inspired move of Rees and Feinberg, of defining harm in terms of interests, smacks of defining one unclear concept in terms of another unclear concept (Miller 2010: 119). The question of what is in a person’s interests—what is at stake for her—is itself a question that requires considerable elucidation. In Derek Parfit’s terms should we understand “interests” in “desire-fulfilment” terms, in “hedonistic” terms, or in accordance with an “objective list” which holds

certain things are good or bad for people, whether or not the people would want to have the good things, or to avoid the bad things? (Parfit 1984: 499)

Might one reasonably think that adjudicating the conflict between hedonistic, desire-fulfilment and objective list understandings of interests is an undertaking no less complex than the harm principle/legal moralism conflict itself? Take an “objective list” understanding of a person’s interests. According to Parfit this might include—as good for a person—“moral goodness, rational activity, the development of one’s abilities” and so on; and it might include—as bad for a person—being “deprived of dignity” (Parfit 1984: 499). If this is always or sometimes the best account of interests, the whole question of “moral harm” that the harm principle aims to expel is potentially reintroduced. The question of which account, or combination of accounts, is the most compelling is very much a live issue (Fletcher 2016).

Another influential understanding of “harm” is that initially proposed by Raz: “To harm a person is to diminish his prospects, to affect adversely his possibilities” (Raz 1986: 414; Gardner & Shute 2000; Simester & von Hirsch 2011; Edwards 2014, 2019). Harm is essentially understood not as a setback to interests, but a setback to autonomy. Autonomy is essentially understood as the ability to choose between an adequate range of valuable options, while in possession of the appropriate capacities to make such choices and while sufficiently independent of others. There are plainly numerous ways one can set back such autonomy. The problem of explaining why pain is harmful raises its head again. Many would take the infliction of pain on another to be harmful, without waiting to ask if the victim has suffered any setback in her ability to choose between an adequate range of valuable options, which surely, she will often not have done. And what of Devlin’s case of harm to animals? Devlin is likely to pop up at this point to repeat his view that the reason we criminalize cruelty to animals is that it is morally wrong and no potential defeating factor is strong enough to overturn that judgement for purposes of criminalization. There is no need to establish any harm in the first place. Hart, as touched on above, while accepting harm must be part of the story, offered the avoidance of “suffering” as the ground for criminalizing animal cruelty. Setback to autonomy or prospect-harm, however, looks like a non-starter, for animals, though beings that can be harmed, are not autonomous beings, at least on any standard account. Similarly, severely mentally disordered persons may in some cases lack the capacity for autonomy, but it is plain as day that they can be harmed, something the “setback to autonomy” or “prospect harm” conception seems ill equipped to account for (Stanton-Ife 2010: 157–162; Tadros 2011).

One upshot of the varying, sometimes implicit, understanding of harm is surely that anyone propounding an argument based on the harm principle needs to be clear about how they are using the term “harm”. For the term may hide a host of questions that themselves need to be resolved.

6. Foundations of the Harm Principle

Moving on from questions of definition, what are the foundations of the harm principle? Mill, together with Jeremy Bentham and Henry Sidgwick, was one of three giants of nineteenth century utilitarianism. He declared utility to be the ultimate appeal on all ethical questions. Speaking of his harm principle, he also declared:

I forego any advantage which could be derived to my argument from the idea of abstract right, as a thing independent from utility. (Mill On Liberty , ch. 1.11 [1993: 79])

The harm principle sounds rather like the (foregone) stuff of abstract right, so how is utility to give any support to the harm principle? At first sight, the principle of utility looks like a straightforward rival to the harm principle, not its sturdy foundation. Mill held of the principle of utility that

actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness. (Mill Utilitarianism , ch. 2.2 [1993: 7]

This last formulation seems to counsel states to keep their options open in their law-making. “Do what you can to reverse unhappiness”, the advice seems to be, “and do what you can to promote happiness”,

Coerce to prevent harm to others if that will reverse unhappiness; coerce for some other end if that will equally do the trick.

But as we have just seen, coercion to prevent harmless wrongdoing is ruled out by Mill, irrespective of whether such an action is the state’s best bet for reversing unhappiness.

The path to reconciling the harm principle with utilitarianism is often thought to be some form of indirect utilitarianism (Gray 1996; Mulgan 2007: 117–119). The distinction is drawn between a criterion of rightness and a decision procedure (Mulgan 2007: 117–119). Thus, on this indirect view the words “actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness” is not any part of a decision procedure; it is a criterion of rightness. Sometimes, perhaps often, a criterion of rightness will itself feature heavily in a decision procedure. But at other times a decision procedure will not contain the supreme criterion of rightness. Acting always to promote happiness or minimize unhappiness may be self-defeating for various reasons or impossible in the practical circumstances of ignorance that ordinary people face. Over the course of a lifetime and across all the activities of a legal system, more utility will be produced and disutility avoided if the harm principle has the place Mill argues it has, despite the fact that this will repeatedly require the sacrifice of some utility in day to day legal dealings. Much of this, for Mill, relates to the importance of human liberty to happiness (Gray 1996: 136). Demonstrating that one can really derive something as strong as the harm principle (“to govern absolutely”) in this way is a formidable challenge. It is subject, among other things, to scepticism about the workability of the distinction between criterion of rightness and decision procedure (Griffin 1994; Mulgan 2007). John Gray’s book-long attempt to spell out how the harm principle can be underpinned by indirect utilitarianism came to be repudiated by Gray himself (Gray 1996: postscript) . Contemporary consequentialism, however, continues to flourish (Sinnott-Armstrong 2019); and many accounts of the harm principle still see a form of utilitarianism as the best grounding for the harm principle (Sumner 2004, 2011). Moreover, there are non-utilitarian writers making related arguments in support of the harm principle. Les Green for example argues that

There can be reasons to promulgate, and attempt to conform to, an absolute norm even if the reasons that justify having a norm in that field are defeasible. (Green 2013: 191 )

Other accounts of criminalization maintain utilitarianism or a broad consequentialism but conclude the harm principle must be rejected (Petersen 2020a,b).

In recent years, value-pluralist perfectionism has been more influential than utilitarianism as a foundation for the harm principle, whether argued for explicitly or assumed (Raz 1986; Gardner & Shute 2000; Simester & Von Hirsch 2011; Edwards 2014, 2018 [2021]). Joseph Raz’s classic work The Morality of Freedom contains a defence of the harm principle (Raz 1986; cf. Raz 1989—other leading accounts of perfectionism include Hurka 1993 and Sher 1997). Raz claims that

the autonomy-based principle of freedom is best regarded as providing the moral foundation for the harm principle. (Raz 1986: 400)

At first sight this may be surprising, given the openness of perfectionists to moral reasons in general, an openness that might suggest legal moralism is its natural home so far as the limits of law are concerned. Raz asserts that there is “no fundamental principled inhibition on governments acting for any moral reason” (Raz 1989: 1230, emphasis added). Even reasons that are not “neutral”, or not “public” or some such are not in principle excluded by perfectionism (cf. G. Dworkin 2007). Again: “It makes no sense to say of a state of affairs that it is good, but that fact is no reason to do anything about it” (Raz 1989: 1230). By the same token, presumably, one could substitute the word “bad” for “good” in the previous sentence and the proposition would remain accurate. Thus our starting point is that the law should have available to it any moral reason and has the function to promote the quality of life, including the moral quality of life, of those whose lives and actions the government can affect (Raz 1986: 415). This aspect of perfectionism is apt to make some fear the oppressive imposition of styles of life on unwilling individuals (Sher 1997: 106).

However, such alarmism cannot fairly be applied to a perfectionist view such as Raz’s. It is not that anything one might describe, rightly or wrongly, as a moral reason will do. Raz’s concern is limited to states with “autonomy-respecting cultures” and with what it is to live a good life in such societies. The key, as the phrase “autonomy-respecting culture” would suggest, is autonomy. It is a state’s primary duty in the relevant kind of society to promote, protect and foster the autonomy of all citizens . This requires—on Raz’s account—furnishing all with, or preserving for all, an “adequate range of valuable options”. It also requires seeing to it that persons have the appropriate mental and other capacities to be genuine choosers in conditions of freedom and independence (Raz 1986: 372–373).

Given, then, that Raz’s starting point is that there is no principled inhibition to the law deploying any valid moral reason, an account is plainly needed of how that can be reconciled with his support for the harm principle, a large part of the point of which is to rule out certain moral reasons. But before coming to that, it will be helpful to dwell on autonomy a little longer. In section 2.2 above, the familiar distinction between two kinds of liberty, negative and positive, and a similar distinction within liberal feminist writing, were noted. Autonomy-based accounts plainly go beyond negative liberty as the absence of obstacles, barriers or constraints, and embrace the notions of positive liberty, in terms of authorship (or part-authorship) of one’s own life, ability to choose between options, realize purposes within bounds as the case may be. Furthermore, autonomy is often contrasted with heteronomy. As Marilyn Friedman puts it,

heteronomy…involves behaving or living in accord with what is in some important sense not , or other than , one’s own. (Friedman 2005: 155, author’s emphasis)

There are at least two senses, as she continues, of heteronomy, one whose sources “arise within the self, considered in abstract social isolation;” the other whose sources “derive from interpersonal relations and the treatment of a self by others” (Friedman 2005: 155). The first sense is of course important. It relates, for one thing, to the very real problems that can emerge when an agent’s “desires, emotions, passions, inclinations, drives” are not in good order, or where the agent is addicted or in the grip or a compulsion (Friedman 2005: 155). However, for all its importance, Friedman argues that heteronomy in this sense has been the “almost exclusive” focus in mainstream philosophy. The sorts of heteronomy that are by contrast based on interpersonal relations and the way some agents are treated by others, has been largely neglected outside of liberal feminist circles, where “relational autonomy” has received considerable attention (Friedman 2005: 171; cf. Mackenzie & Stoljar 2000; Friedman 2003; Stoljar 2018). This has led to the underplaying of such phenomena of considerable importance to autonomy as male dominance. Interestingly, Friedman explicitly cites Raz’s account of autonomy as a rare exception to the neglect by the mainstream of the social or interpersonal aspects of autonomy ((Friedman 2005: 171).

Thus the criticism sometimes levelled at perfectionist accounts of the good life, government or law, that they imply the oppressive imposition of styles of life, looks unlikely to get much traction on a form of liberal perfectionism, such as Raz’s, with autonomy for all so embedded in it. This, however, does not explain how an account such as Raz’s can explain its adoption of an anti-moralist harm principle in tandem with its in-principle openness to all valid moral reasons. In other words, how can one derive an anti-moralist harm principle from a position that takes any valid moral ground as in principle available to the state and the law?

Raz’s answer focusses on the coercive means at the law’s disposal:

• There are no principled limits to the pursuit of moral goals by the law or the enhancement of the well-being of individuals on the part of the law.
• There are (nevertheless) limits to the means that can legitimately be adopted in promoting the well-being of people and in the pursuit of moral ideals (Raz 1986: 420; George 1993: 161–188).

His autonomy principle “permits and even requires governments to create morally valuable opportunities, and to eliminate repugnant ones ” (Raz 1986: 417). It must, however, respect the harm principle in doing this. It must not use coercion to eliminate repugnant, wrongful opportunities if they are not also harmful in the relevant sense. Coercive interference is a special threat to autonomy. It often violates autonomy in two ways:

First it violates the condition of independence and expresses a relation of domination and an attitude of disrespect for the coerced individual. Second, coercion by criminal penalties is a global and indiscriminate invasion of autonomy. (Raz 1986: 418)

Let us consider both points, beginning with the second. In what sense is the use of coercion a “global and indiscriminate invasion of autonomy”? There is no doubt that sometimes it is. “Depriving a person of opportunities or of the ability to use them is”, as Raz says, “a way of causing him harm”. Again “frustrating [a person’s] pursuit of projects and relationships he has set upon” can cause harm (Raz 1986: 413). Raz alludes to the most common context for the invocation of the harm principle, namely the criminal law. Much behaviour that is criminalized is done under the threat of imprisonment and imprisonment can cut off a very large range of options; or it can reduce them considerably by various forms of disruption or destruction: of family life, deep personal relations, work opportunities, pursuit of valuable outdoor activities, political participation and so on. Richard Lippke distinguishes between the material and the symbolic dimensions of imprisonment. The symbolic dimensions relate to what message the fact of imprisonment conveys to the public and to the prisoner. The material dimensions break down into

• restrictions on freedom of movement,
• low levels of comfort and amenity
• idleness, especially a paucity of opportunities for labour,
• relative isolation from family members, friends, and the larger community,
• significant diminution of autonomy especially insofar as prisons subject their inhabitants to a degree of bureaucratic control which might be categorised as the “subservience of youth” and
• diminishment of privacy (Lippke 2008: 408; cf. Lippke 2007).

Though only one of Lippke’s six material dimensions explicitly mentions autonomy, all have some significant effect on it. Moreover, a similar point applies to the compulsory detention in certain circumstances of mentally disordered persons under the civil law. All of Lippke’s material dimensions can be present there too; and, while the symbolic dimensions of a criminal conviction and punishment are absent, the often-attendant stigma can compromise the autonomy of the detained mentally disordered person in question still further (Stanton-Ife 2012).

Raz, then, is right that coercion by criminal penalties can be “a global and indiscriminate invasion of autonomy”, However, there seem to be two problems with this as a basis for reconciling perfectionism and the harm principle. First, the scope of the justification seems significantly limited; while the criminal penalties can have such an effect, they often will not. For there are many more forms of criminal law coercion in regular use than imprisonment: fines, community service orders and electronic tagging orders are three examples. These methods short of imprisonment can affect options, without necessarily leaving the convicted criminal short of an adequate range of valuable options—in Raz’s terminology; the assault on autonomy will not in most be total or near-total. Take the last-mentioned example: the mandatory wearing of electronic tagging devices. There have been several high-profile cases of sports stars and other celebrities being required to wear such devices. An early example is the English soccer player, Jermaine Pennant. He broke into the first team of a top professional team—the stuff that most English lads’ dreams are made of!—but, soon after, was convicted of a drunk-driving offence. His sentence required him to wear an electronic tag but allowed him to play in top division games with his tag under his sock. [ 12 ] Despite the cloud he was under he certainly did not appear to have an inadequate range of valuable options. The argument at best seems to support the deployment of the harm principle only where lengthy periods of incarceration are deployed or threatened.

Raz does acknowledge that “other forms of coercion may be less severe”. However, he adds that

they all invade autonomy, and they all, at least in this world, do it in a fairly indiscriminate way. That is, there is no practical way of ensuring that the coercion will restrict the victims’ choice of repugnant options but will not interfere with their other choices. (Raz 1986: 418–419)

Leaving the criminal law to one side, there are other legal contexts where Raz intends the harm principle to apply where this argument appears overstated. Consider tax. Of the operation of the harm principle in relation to taxation, Raz writes:

the measures I [support] avoid direct coercion for perfectionist causes. The coercion that they involve can be fully justified on the grounds of protecting and promoting individual autonomy. The simplest example is that of taxation. Taxation is coercive. It is justified in my view only inasmuch as it is useful for the promotion and protection of autonomy for all. (Raz 1989: 1232)

Raz takes taxation to be coercive (indirectly) and argues it should be raised only subject to the terms of the harm principle. But the derivation of a perfectionist harm principle here cannot be based on any “global and indiscriminate” invasion of autonomy, because tax—except in extreme cases where imposed oppressively—does not attack autonomy that hard and, if suitably progressive, should leave the person taxed with her abilities to choose between an adequate range of valuable options intact (Stanton-Ife 2017). Of course, taxation, conceived in this way, does not imply what Raz elsewhere describes as “a coercive imposition of a style of life” (Raz 1986: 161). This seems to reveal that a much more nuanced account of coercion, in its various manifestations, is required, not that coercion “in this world” is always “global and indiscriminate”,

The second problem with Raz’s (correct) observation that coercion by criminal penalties can on occasion be “a global and indiscriminate invasion of autonomy”, is summarized in the question “what follows when it is?” What does follow, surely, is that such coercion must shoulder a large burden of justification. What does not appear to follow is anything to do with what kind of valid moral reason—be it harm-based or wrong-based—should be doing the needed justificatory work. The perfectionist starting point, as we have seen, is that there are no principled limits to the pursuit of moral goals by the law. It is the job of the harm principle to provide them if the harm principle can be successfully derived. Pointing to global and indiscriminate coercion points us to something that requires justification, but not yet to what kind of justification is needed.

As noted above Raz has another argument for liberal perfectionism’s right to claim the harm principle for its own: namely coercion

violates the condition of independence and expresses a relation of domination and an attitude of disrespect for the coerced individual. (Raz 1986: 418)

Might this argument make up the slack? Gerald Dworkin counters that coercing someone based on their wrongful or immoral behaviour need not show disrespect for such a person, “but merely for his conduct” (G. Dworkin 2007: 447). Alternatively, if it be accepted that coercion is disrespectful and expresses a relation of domination, one might again ask why that is not true of someone one coerces out of harming others as much as it is true of coercing someone out of some morally wrongful conduct? In both cases, does the legitimacy of the coercion not turn on the presence of sufficient justification, be that harm-based or wrong-based? Furthermore, if the key argument for the harm principle is really based on respect for independence and opposition to domination, it may seem particularly puzzling to identify how it is really a harm -based argument at all. It is true that independence, is for Raz, part and parcel of his understanding of autonomy (Raz 1986: 377–378); and it is also true that he understands harm in terms of setbacks to autonomy. However, if the argument turns on independence alone, the question arises of whether it does not collapse into—or keep sufficient distance from—certain principles devised in explicit opposition to the harm principle, such as Arthur Ripstein’s “sovereignty principle”? Ripstein argues that conduct should not be legally coerced if it does not wrongfully interfere with the sovereignty of others (Ripstein 2006: 231; for critique, see Tadros 2011).

Raz’s “one simple reason” why “the harm principle is defensible in the light of the principle of autonomy”, viz. that “the means used, coercive interference, violates the autonomy of its victim” (Raz 1986: 418) runs into the difficulty that often coercion does not do that or does not do that very significantly, let alone globally and indiscriminately. Furthermore, where coercion does violate autonomy globally and indiscriminately, it is either wrongful all things considered or justifiable only on the basis of strong valid reasons, which may include (exclusively) wrongness-based reasons for all that is as yet established. Finally, to the extent that the argument turns on independence it is not clear that harm is really doing the work.

As we have seen, several leading legal writers—be they in favour or against—continue to take Mill’s harm principle in original or modified form to be “the dominant theory as to what limits on criminal legislation should be observed by liberal democratic states” (Moore 2017: 461). Katrina Forrester’s post-war history of liberal political thought, however, emphatically puts John Rawls, rather than Mill, at the centre (Forrester 2021); and Piers Norris Turner, in an essay on Mill and modern liberalism, opines that public reason liberalism—whose leading light is Rawls—has become the dominant tradition within liberal thought “over the past three decades” (Turner 2017: 576; cf. Turner and Gaus 2017; Rawls 1999; Quong 2018; Hartley & Watson 2018; Freeman 2020). However, the growing and highly sophisticated literature on public reason among specifically political philosophers has not yet—at least not to the extent that it has in relation to legal moralism and the harm principle—received the sustained study of writers as heavily steeped in the law as Feinberg, Hart or Devlin. Specific legal applications of the public reason approach are, however, already in existence (for example Flanders 2016) and the approach continues to develop.

The approach suggests a different limit of the law: that laws must in some sense be based on public reasons , not reasons harvested from, or based on, comprehensive moral, ethical or religious theories. We saw above that while Devlin, Moore and Hart all supported the decriminalization of gay sex, they did so on very different understandings. Devlin did not rule out circumstances, admittedly extreme ones, in which criminalization might be justifiable in virtue of the intensity and comprehensiveness of the beliefs of ordinary persons in a society. Moore and Hart, by contrast, did implicitly rule out criminalization in such circumstances. Moore because the moral truth of the matter is highly pertinent, indeed decisive —there being nothing morally wrong with gay sex—Hart, despite assuming the moral truth of the matter to be irrelevant— gay sex is not harmful, so the conclusion goes through whether such conduct is wrongful or not. Rawls for his part would no doubt agree with all three on the correctness of decriminalization. But he would seek to exclude, as did Hart and Devlin, any Moore-style or perfectionist appeal to a comprehensive moral understanding to determine the issue. Devlin for his part would have had Moore down as one of the “moral rationalists” whose views he wanted side-lined in favour of the reasonable citizen.

In one way, then, Devlin anticipates a major preoccupation of Rawls. Rawls did not, to be sure, take Devlin’s apparent view that the moral beliefs of a society constitute (its) moral truth. His was not a scepticism about the existence of moral truth, merely a determination to avoid “the zeal to embody the whole truth in politics” (Rawls 1999: 132–133, emphasis added). But both Devlin and Rawls demanded that political power and legal coercion should be justifiable to those subject to them, provided they are reasonable. Thomas Nagel similarly insists a state’s law must do better than just tell those with certain conceptions of the good that they are mistaken, which seems the implication of Moore’s and of the perfectionist view; something more must be offered to them relating, he argues, to the point of view of such persons. According to him we must support:

… the exclusion of certain values from the admissible grounds for the application of coercive state powers. We must agree to refrain from limiting people’s liberty by state action in the name of values that are deeply inadmissible in a certain way from their point of view. (Nagel 1991: 155)

Devlin and Rawls, however, differed in how justification to reasonable citizens should be spelt out and it is here that Rawls develops much of his account. Devlin’s model of the reasonable person was the jury. To the question how the lawmaker is to ascertain the moral judgements of society, Devlin answered,

the moral judgement of society must be something about which any twelve men or women drawn at random might after discussion be expected to be unanimous. (Devlin 1965: 15).

To insist, as both do, that justification must be targeted at the reasonable citizen is to idealize the agreement on which their views were based (Raz 1990 [1994]; Enoch 2013; Billingham & Taylor forthcoming), since neither is saying one should simply seek the acceptance of (all) the citizens as they are, reasonable or not. Insisting on the actual agreement of citizens as they actually are is likely to prove excessively demanding, since too much of the rough must be taken with the smooth, accommodating misanthropic, misogynistic, egotistical, anarchic etc views. Devlin does not idealize a great deal, or at least he does not spell out in any detail how he understands what “reasonable” means, beyond insisting the reasonable jury-member must not hold “irrational” beliefs, such as “homosexuality is the cause of earthquakes” (Devlin 1965: viii). In stating one can notionally pick “twelve men or women at random” he appeared to think that a sample of the population is an adequate pointer to the appropriate morality. Here there is a stark contrast with Rawls. For taking a random sample of the population is to underemphasise moral disagreement, as Rawls would see it. It is not reasonable to think that moral disagreement will disappear in the medium- or even the long-term. And much of this disagreement cannot simply be blamed on the bloody-mindedness of some or on those biased in favour of themselves, their families, or groups. Some of the disagreement is based, rather, on differences over what evidence is appropriate, how much weight should be given to the evidence where it can be agreed upon, how priorities and choices should be made among the vast range of possible values and so on. Rawls describes factors such as these as “the burdens of judgment” (Rawls 1993: 56–57). Hence Rawls idealizes the constituency to whom legal coercion must be justified inter alia as the persons who accept the burdens of judgement and the resulting fact of reasonable pluralism.

The idealization involved in the public reason approach is controversial. There is scepticism in some quarters that there really is any genuine “middle way” between “actual (including implied) agreement and rational justification” (Raz 1990: 46). If too many constraints are built in, the very idea of justification-to a given constituency disappears. The leading natural law theorist John Finnis, writes:

Natural Law theory is nothing other than the account of all the reasons-for-action which people ought to be able to accept, precisely because these are good, valid and sound as reasons. (Finnis 1996: 10–11).

Natural law, theory, is a paradigm “comprehensive” doctrine, however, precisely what is to be avoided in Rawls’ view. If justification-to ends up meaning only giving good reasons to a certain constituency, the idea has all but evaporated.

Another contrast with Devlin’s members of the jury, is that Rawlsian public reason is not simply a matter of getting a sample of the people into a notional room and waiting for them to agree, however that is to be done. Public reason is itself a substantive framework to be shared by everyone, a module, “a complete political conception” whose principles and ideals are to be elaborated and whose arguments are to be deployed in legal argument (Rawls 1999: 138). It has content, in other words, “given by a family of reasonable conceptions of justice” (Rawls 1999: 132). While, as we have just noted, a natural law or Roman Catholic world view cannot itself be adopted under public reason, its conception of the common good or solidarity when “expressed in terms of political values” can be one grounding for a political conception that gives content to public reason (Rawls 1999: 142). For interesting explorations of the relationship between religious comprehensive doctrines and public reason, see, e.g., An-Na’im 2015, Billingham 2021.

Two kinds of issue of special concern to questions of the limits of law concern, first, the scope of public reason and, secondly, its capacity to account convincingly for certain apparently easy cases of legitimate legal coercion. As for the first, Rawls restricts public reason to “constitutional essentials and matters of basic justice” (Rawls 1999: 133). Is it convincing to thus limit public reason? In the eyes of some Rawls is too permissive about important matters of (non-basic) justice and fairness beyond the constitutional essentials and the basic aspects of justice. Jonathan Quong for example objects to Rawls’ openness to perfectionist values so far as “large resources to grand projects in the arts and sciences” are concerned (Quong 2011: 281; Stanton-Ife 2020).

Secondly, how well does the public reason view handle certain obviously legitimate uses of legal coercion, such as the criminalization of murder and rape? While there is no doubt that a Rawlsian public reason module, duly developed, would straightforwardly deliver the bare bones of coercive laws against murder and rape, can this be done fully and satisfactorily without the sort of recourse to comprehensive moral and metaphysical doctrines Rawls wishes to rule out? Take murder as an example. Standardly murder requires proof of at least causation of death with an intention to kill and penalties are among the severest, stretching in various jurisdictions to mandatory life imprisonment or, in some, to capital punishment. But how is “death” in “causation of death” to be understood? It is common to understand it in terms of the cessation of brain stem functioning. But why this understanding? For some putative victim may have irrevocably lost the capacity for consciousness while his or her brain stem continues to function. Is not the wrong of murder truly captured not only when the brain stem ceases functioning, but (possibly before that) when there is such “irrevocable loss of the capacity of consciousness” (Persson 2002; De Grazia 2017: 4.3)? For, one might say, it is the latter that explains what is horrific about murder. Someone who intentionally brings about the permanent cessation of the brain stem functioning of another should not be thought of as a murderer, the argument goes, where the capacity for consciousness of the victim is already known to have been irrevocably lost. Perhaps such conduct ought still to be criminal and labelled as such, only not as murder meriting the mandatory life sentence. The point for present purposes is not to settle the question of what the best understanding of murder should be, or whether the imaginary case should count as murder, only to suggest that these issues are likely to turn, implicitly or explicitly, on comprehensive moral and metaphysical understandings. Public reason will be insufficient-or so the challenge would run (Tadros 2012: 77). Somewhat relatedly is Rawls’ account of abortion—he argues for a “duly qualified right” on the part of a woman “to decide whether or not to end her pregnancy during the first trimester” (Rawls 1993: 243). Whether Rawls is entitled to this conclusion on the basis of public reason has been hotly contested (see the varying perspectives of George 1997 [1999: 209–213]; J. Williams 2015; Kramer 2017: 92–155; Laborde 2018; Chambers 2018; Arrell 2019).

In the Introduction a distinction was drawn between conceptual and evaluative questions about the relationship between law and morality; and it was said that the limits of law is generally taken to be a strictly evaluative question. The term “law” is generally left largely unanalysed, with the emphasis on the law’s coercive means and the extent to which it may legitimately be deployed in the pursuit of moral ends. But will be seen, there are some approaches sceptical of the distinction’s importance to our understanding of the limits of law.

It is uncontroversial to say that a (further) kind of limit of law is that contained in the idea of legality. Lon Fuller famously identified eight “desiderata” for laws. Laws should be general; they should be promulgated to their norm-subjects; and they should be prospective. They should be understandable (perhaps with professional help); the obligations they impose should be susceptible to being jointly fulfilled; and they should not require anything beyond the capacities of their norm-subjects. Laws should be tolerably stable and, finally, they should actually be upheld by the relevant legal officials, rather than ignored, bypassed or replaced by what the officials applying them consider more congenial standards (Fuller 1964; Rundle 2012: Ch. 4; Waldron 2016 [2020]; Sunstein & Vermeule 2020). Kristen Rundle and Jeremy Waldron both argue that the legal positivism of Hart and Raz, as well as a broader instrumentalism that would take in Devlin, [ 13 ] is too casual and accommodating in allowing the designation “legal system” and “law” to systems and norms that fall short on the criteria of legality (Waldron 2008: 14; Rundle 2012: 202). This implies that one cannot simply take the question of the limits of law to be an evaluative question. This would underestimate the extent to which supposedly conceptual questions about the existence of legal systems and laws are themselves evaluative questions. Hence the limits of the law should be seen squarely as both an evaluative and a conceptual question. Against this, while granting that conceptual questions matter and are themselves a large focus in the philosophy of law, one might wonder how far they matter to the specific issue of the limits of the law. If it is accepted for example that Fuller’s desiderata for legality or something close to them are indeed desiderata as well as to some extent conceptual features of the law (as does Raz 1977), does it greatly matter that one might conceive of such features as conceptual to a still greater extent ?

It is widely said by those sympathetic to the instrumentalist understanding of law that law is a “modal kind” rather than a “functional kind”, distinguished by its means (or techniques) rather than its ends; the moral legitimacy of such ends being contingent (Green 1996: 1711). In the words of John Gardner:

[T]o say that law is a modal as opposed to a functional kind is merely to say that law is not distinguished by its functions—by the purposes it is capable of serving. It is distinguished rather by the distinctive means that it provides for serving whatever ends it serves. Law is what Kelsen memorably called a “specific social technique” (Gardner 2012: 195–220, 207; cf. Kelsen 1941; Summers 1971).

The idea of the legal techniques , developed by Robert Summers, from both the positivism of Hans Kelsen and the anti-positivism of Fuller, points however to a line of thought about the limits of the law that is surely due a revival. The debate as it is mostly prosecuted is too dominated by the one “technique” of coercion. While giving coercion its due Summers also emphasized

educational effort, rewards and other incentives, symbolic deployment of legal forms, publicity (favourable or adverse), continuous supervision, public signs and signals, recognized statuses and entities

grants with strings attached. (Summers 1977: 126)

There is also growing awareness at a theoretical level of the importance of expressive values in the law (McAdams 2015). It is something of a loss that the schema developed by Summers and his collaborators, dividing legal techniques into “grievance-remedial”, “penal-corrective”, “administrative-regulatory”, “public-benefit conferral”, “facilitator of private arrangements”, appears to have fallen largely into disuse (Summers et al. 1986). For it allowed various areas of potential legal concern to be examined against a background of various legal techniques, coercive and beyond. Rawls’ question of how far such techniques should be subject to public reason is a further issue that might helpfully be pressed.

The law’s task, put abstractly, is to secure a situation whereby moral goals which, given the current social situation in the country whose law it is, would be unlikely to be achieved without it, and whose achievement by the law is not counter-productive, are realized. (Raz 2003 [2009: 178])

This remark could be taken as the essence of legal moralism. The basic core of legal moralism, as we have seen, is a two-part structure, compounded of a wrong and a set of countervailing and potentially defeating factors, such as liberty and privacy. From within legal moralism there are controversies over how morality should itself be conceived and controversies over how the first part of the structure should be conceived—all moral wrongs or only a subset of them?—and the second part—which countervailing factors, for example, make the list? And what, if anything, unifies them? While Raz’s remark may serve as a pithy statement of legal moralism, Raz himself rejected legal moralism, in favour of a version of the harm principle. Mill’s original harm principle was based on a monistic utilitarianism. There remain adherents of such a utilitarianism, but more influential today is some version of value-pluralism, such as Raz’s liberal perfectionism. The derivation of the harm principle from such pluralistic premises, is as we have seen, a far from straightforward task. Adherents of the harm principle also manifest a strong divide between those who broadly inherit Mill’s principled anti-moralism without his anti-paternalism, such as Hart and Raz and those who inherit both Mill’s principled anti-moralism and his anti-paternalism, such as Feinberg. Into the mix comes Rawlsian public reason. Like one kind of legal moralist, there is an emphasis on steering the justification of legal coercion to the citizens subject to the coercion themselves and from this an aspiration to develop a “module” of political practical reasoning, the public reason of all subjects of a given legal system independent of the comprehensive ethical or religious commitments of some of their number. For the proponent of public reason it is the “zeal to embody the whole truth” that is anathema (Rawls 1999: 132–133). To legal moralists such as Moore, the moral truth, with due sensitivity to the countervailing factors, should rather be the point. The idea that the law has sometimes no limits to hold back the moral truth—which of necessity must lie in the mouth of some (fallible) human—can induce a feeling of vertigo. Perhaps the question ultimately turns on whether there is a genuine alternative.

• Adams, Robert Merrihew, 1999, Finite and Infinite Goods: A Framework for Ethics , Oxford: Oxford University Press. doi:10.1093/0195153715.001.0001
• Alexander, Larry, 2003, “The Legal Enforcement of Morality”, in A Companion to Applied Ethics , R. G. Frey and Christopher Heath Wellman (eds.), Oxford, UK: Blackwell Publishing Ltd, 128–141. doi:10.1002/9780470996621.ch10
• –––, 2016, “Review of The New Philosophy of Criminal Law , by Chad Flanders and Zachary Hoskins”, Notre Dame Philosophical Reviews , 2016.02.33. [ Alexander 2016 available online ]
• Alexander, Larry and Kimberly Kessler Ferzan (eds.), 2019, The Palgrave Handbook of Applied Ethics and the Criminal Law , Cham: Springer International Publishing. doi:10.1007/978-3-030-22811-8
• An-Na’im, Abdullahi A., 2015, “Islamic Politics and the Neutral State: a Friendly Amendment to Rawls?”, in Rawls and Religion , Tom Bailey and Valentina Gentile (eds), New York: Columbia University Press, 242–265.
• Arrell, Robbie, 2019, “Public Reason and Abortion: Was Rawls Right After All?”, The Journal of Ethics , 23(1): 37–53. doi:10.1007/s10892-019-09280-8
• Baehr, Amy R., 2021, “Liberal Feminism”, in The Stanford Encyclopedia of Philosophy (Spring 2021 edition), Edward N. Zalta (ed.), URL = < https://plato.stanford.edu/archives/spr2021/entries/feminism-liberal/ >
• Barrett, Jacob and Gerald F. Gaus, 2020, “Laws, Norms, and Public Justification: The Limits of Law as an Instrument of Reform”, in Public Reason and Courts , Silje Langvatn, Mattias Kumm, and Wojciech Sadurski (eds.), Cambridge: Cambridge University Press, 201–228. doi:10.1017/9781108766579.009
• Barry, Brian, 1995, Justice as Impartiality , Oxford: Clarendon Press.
• Billingham, Paul, 2021, “Can Christians Join the Overlapping Consensus?: Prospects and Pitfalls for a Christian Justification of Political Liberalism”, Social Theory and Practice , 47(3): 519–547. doi:10.5840/soctheorpract202169131
• Billingham, Paul and Anthony Taylor, forthcoming, “A Framework for Analyzing Public Reason Theories”, European Journal of Political Theory , first online: 24 June 2020. doi:10.1177/1474885120925381
• Blackburn, Simon, 1994, Oxford Dictionary of Philosophy , Oxford: Oxford University Press.
• Brink, David O., 2013, Mill’s Progressive Principles , Oxford: Oxford University Press. doi:10.1093/acprof:oso/9780199672141.001.0001
• –––, 2018, “Mill’s Moral and Political Philosophy”, in The Stanford Encyclopedia of Philosophy (Winter 2018 edition), Edward N. Zalta (ed.), URL = < https://plato.stanford.edu/archives/win2018/entries/mill-moral-political/ >
• Brown, D.G., 2017, “The Harm Principle”, in A Companion to Mill , Christopher Macleod and Dale E. Miller (eds.), Oxford: John Wiley & Sons, Inc., 407–424. doi:10.1002/9781118736739.ch27
• Carter, Ian, 2019, “Positive and Negative Liberty”, in The Stanford Encyclopedia of Philosophy (Winter 2019 edition), Edward N. Zalta (ed.), URL = < https://plato.stanford.edu/archives/win2019/entries/liberty-positive-negative/ >
• Chambers, Clare, 2018, “Reasonable Disagreement and the Neutralist Dilemma: Abortion and Circumcision in Matthew Kramer’s Liberalism with Excellence ”, The American Journal of Jurisprudence , 63(1): 9–32. doi:10.1093/ajj/auy006
• Chiao, Vincent, 2019, Criminal Law in the Age of the Administrative State , Oxford: Oxford University Press. doi:10.1093/oso/9780190273941.001.0001
• Conly, Sarah, 2018, “Paternalism and the Limits of Liberty”, in The Routledge Handbook of Libertarianism , Jason Brennan, Bas van der Vossen, and David Schmidz (eds), New York: Routledge, 427–435
• Corvino, John, 2013, What’s Wrong with Homosexuality? , (Philosophy in Action : Small Books about Big Ideas), New York, NY: Oxford University Press.
• Curtice, J., E. Clery, J. Perry, M. Phillips, and N. Rahim (eds), 2019, British Social Attitudes 36 , London: The National Centre for Social Research. [ Curtice et al. 2019 available online (pdf) ]
• DeGrazia, David, 2017, “The Definition of Death”, in The Stanford Encyclopedia of Philosophy (Spring 2017 edition), Edward N. Zalta (ed.), URL = < https://plato.stanford.edu/archives/spr2017/entries/death-definition/ >
• Deigh, John and David Dolinko (eds.), 2011, The Oxford Handbook of Philosophy of Criminal Law , Oxford: Oxford University Press. doi:10.1093/oxfordhb/9780195314854.001.0001
• Delmas, Candice and Kimberley Brownlee, 2021, “Civil Disobedience”, in The Stanford Encyclopedia of Philosophy (Summer 2021 edition), Edward N. Zalta (ed.), URL = < https://plato.stanford.edu/archives/sum2021/entries/civil-disobedience/ >
• De Marneffe, Peter, 2018, “Moralism and Moral Paternalism”, in Grill and Hanna 2018: 35–45.
• Dempsey, Michelle Madden, 2009, Prosecuting Domestic Violence: A Philosophical Analysis , New York: Oxford University Press. doi:10.1093/acprof:oso/9780199562169.001.1
• Devlin, Patrick, 1965, The Enforcement of Morals , Oxford: Oxford University Press.
• Devlin, Patrick, along with Leonard Birmingham, et al., 1965, “Law on Homosexuals”, Letter to the editor, The Times (of London), 11 May 1965, p. 13, col. 4, issue number 56318.
• Dickson, Julie, 2012, “Legal Positivism: Contemporary Debates”, in Marmor 2012: 48–64.
• Donner, Wendy, 1991, The Liberal Self: John Stuart Mill’s Moral and Political Philosophy , Ithaca, NY: Cornell University Press.
• –––, 2008, “Autonomy, Tradition, and the Enforcement of Morality”, in Mill’s “On Liberty”: A Critical Guide , C. L. Ten (ed.), Cambridge: Cambridge University Press, 138–164. doi:10.1017/CBO9780511575181.008
• Duff, R. A., 2007, Answering for Crime: Responsibility and Liability in the Criminal Law , Oxford: Hart Publishing.
• –––, 2016, “Legal Moralism and Public Wrongs”, in Ferzan and Morse 2016: 95–110. doi:10.1093/acprof:oso/9780198703242.003.0007
• –––, 2018, The Realm of Criminal Law , Oxford: Oxford University Press. doi:10.1093/oso/9780199570195.001.0001
• Dworkin, Gerald, 1990, “Equal Respect and the Enforcement of Morality”, in Crime, Culpability and Remedy , Ellen Frankel Paul, Fred D. Miller, and Jeffrey Paul (eds), Cambridge, MA: Blackwell, 180–193.
• –––, 1999, “Devlin Was Right: Law and the Enforcement of Morality”, William & Mary Law Review , 40(3): 927–945.
• –––, 2007, “Autonomy”, in A Companion to Contemporary Political Philosophy , second edition, Robert E. Goodin, Philip Pettit, and Thomas Pogge (eds.), Oxford, UK: Blackwell Publishing Ltd, 439–451. doi:10.1002/9781405177245.ch18
• –––, 2011, “The Limits of the Criminal Law”, in Deigh and Dolinko 2011: 3–16.
• –––, 2020, “Paternalism”, in The Stanford Encyclopaedia of Philosophy (Fall 2020 Edition), Edward N Zalta (ed.), URL = < https://plato.stanford.edu/archives/fall2020/entries/paternalism/ >
• Dworkin, Ronald, 1966, “Lord Devlin and the Enforcement of Morals”, Yale Law Journal , 75(6): 986–1005.
• -----, 1977, “Liberty and Moralism”, in his Taking Rights Seriously , Cambridge, MA: Harvard University Press, 240–258.
• –––, 1985a, “Do We Have a Right to Pornography?”, in R. Dworkin 1985c: 335–372.
• –––, 1985b, “Can a Liberal State Support Art?”, in R. Dworkin 1985c: 221–233.
• –––, 1985c, A Matter of Principle , Cambridge, MA: Harvard University Press.
• –––, 1996a, “Pornography and Hate”, in Dworkin 1996c: 214–226.
• –––, 1996b, “MacKinnon’s Words”, in Dworkin 1996c: 227–243.
• –––, 1996c, Freedom’s Law: The Moral Reading of the American Constitution , Oxford: Oxford University Press.
• Edwards, James, 2014, “Harm Principles”, Legal Theory , 20(4): 253–285. doi:10.1017/S135232521500004X
• –––, 2018 [2021], “Theories of Criminal Law”, in The Stanford Encyclopedia of Philosophy (Fall 2021 edition), Edward N. Zalta (ed.), URL = < https://plato.stanford.edu/archives/fall2021/entries/criminal-law/ >
• –––, 2019, “No Offense”, in Alexander and Ferzan 2019: 499–518.
• Enoch, David, 2013, “The Disorder of Public Reason”, Ethics , 124(1): 141–176. doi:10.1086/671386
• 1984, Volume 1: Harm to Others , doi:10.1093/0195046641.001.0001
• 1985, Volume 2: Offense to Others , doi:10.1093/0195052153.001.0001
• 1986, Volume 3: Harm to Self , doi:10.1093/0195059239.001.0001
• 1990, Volume 4: Harmless Wrongdoing , doi:10.1093/0195064704.001.0001
• –––, 1987, “Some Unswept Debris from the Hart-Devlin Debate”, Synthese , 72(2): 249–275. doi:10.1007/BF00413641
• Ferzan, Kimberly Kessler and Stephen J. Morse (eds.), 2016, Legal, Moral, and Metaphysical Truths: The Philosophy of Michael S. Moore , Oxford: Oxford University Press. doi:10.1093/acprof:oso/9780198703242.001.0001
• Finnis, John, 1996, “Is Natural Law Theory Compatible with Limited Government?”, in George 1996: 1–26.
• –––, 1998, Aquinas: Moral, Political and Legal Theory , New York: Oxford University Press.
• –––, 2000, “Abortion, Natural Law and Public Reason”, in Natural Law and Public Reason , Robert P. George and Christopher Wolfe (eds), Washington, DC: Georgetown University Press, pp. 75–106.
• –––, 2011a, Natural Law and Natural Rights , second edition, New York: Oxford University Press.
• –––, 2011b, “Hart as a Political Philosopher”, in J. Finnis, Philosophy of Law: Collected Essays (Volume IV), Oxford: Oxford University Press: 257–279.
• –––, 2013, “Reflections and Responses”, in Keown and George 2013: 459–584. doi:10.1093/acprof:oso/9780199675500.003.0029
• Flanders, Chad, 2016, “Public Wrongs and Public Reason”, Dialogue , 55(1): 45–58. doi:10.1017/S0012217315000074
• Flanigan, Jessica and Lori Watson, 2020, Debating Sex Work , New York: Oxford University Press. doi:10.1093/oso/9780190659882.001.0001
• Fletcher, Guy (ed.), 2016, The Routledge Handbook of Philosophy of Well-Being , London: Routledge. doi:10.4324/9781315682266
• Forrester, Katrina, 2021, In the Shadow of Justice: Postwar Liberalism and the Remaking of Political Philosophy , Princeton: Princeton University Press.
• Fowler, Timothy and Zofia Stemplowska, 2015, “The Asymmetry Objection Rides Again: On the Nature and Significance of Justificatory Disagreement”, Journal of Applied Philosophy , 32(2): 133–146. doi:10.1111/japp.12090
• Freeman, Samuel, 2020, “Democracy, Religion & Public Reason”, Daedalus , 149(3): 37–58. doi:10.1162/daed_a_01802
• Fricker, Miranda, 2013, “Styles of Moral Relativism: a Critical Family Tree”, in The Oxford Handbook of the History of Ethics , Roger Crisp (ed.), Oxford: Oxford University Press, 793–817.
• Friedman, Marilyn, 2003, Autonomy, Gender, Politics , New York: Oxford University Press. doi:10.1093/0195138503.001.0001
• –––, 2005, “Autonomy and Male Dominance”, in Autonomy and the Challenges to Liberalism: New Essays , John Christman and Joel Anderson (eds.), Cambridge: Cambridge University Press, 150–174. doi:10.1017/CBO9780511610325.009
• Fuller, Lon L., 1964, The Morality of Law , New Haven, CT: Yale University Press.
• –––, 1978, “The Forms and Limits of Adjudication”, Harvard Law Review , 92(2): 353–409. doi:10.2307/1340368
• Gardner, John, 2012, Law as a Leap of Faith: Essays on Law in General , Oxford: Oxford University Press. doi:10.1093/acprof:oso/9780199695553.001.0001
• Gardner, John and Stephen Shute, 2000, “The Wrongness of Rape”, in Oxford Essays in Jurisprudence, Fourth Series , Jeremy Horder (ed.), Oxford: Oxford University Press, ch. 10.
• George, Robert P., 1993, Making Men Moral: Civil Liberties and Public Morality , Oxford: Clarendon Press. doi:10.1093/acprof:oso/9780198260240.001.0001
• ––– (ed.), 1996, Natural Law, Liberalism, and Morality: Contemporary Essays , Oxford: Clarendon Press. doi:10.1093/acprof:oso/9780199243006.001.0001
• –––, 1997 [1999], “Public Reason and Political Conflict: Abortion and Homosexuality”, The Yale Law Journal , 106(8): 2475–2504; reprinted in his In Defense of Natural Law . Oxford: Clarendon Press, 1999, 196–227. doi:10.2307/797225
• Gray, John, 1995, Enlightenment’s Wake: Politics and Culture at the Close of the Modern Age , London: Routledge. doi:10.4324/9780203933510
• –––, 1996, Mill on Liberty: A Defence , second edition, London: Routledge. doi:10.4324/9780203432471
• –––, 2000, Two Faces of Liberalism , Cambridge, UK: Polity.
• Gray, John and G. W. Smith (eds.), 1991, J.S. Mill’s On Liberty in Focus , London: Routledge. doi:10.4324/9780203402283
• Green, Leslie, 1996, “The Concept of Law Revisited”, Michigan Law Review , 94(6): 1687–1717.
• –––, 2000, “Pornographies”, Journal of Political Philosophy , 8(1): 27–52. doi:10.1111/1467-9760.00091
• –––, 2004 [2012], “Legal Obligation and Authority”, in The Stanford Encyclopedia of Philosophy (Winter 2012 edition), Edward N. Zalta (ed.), URL = < https://plato.stanford.edu/archives/win2012/entries/legal-obligation/
• –––, 2008, “On Being Tolerated”, in Kramer et al. 2008: 277–298.
• –––, 2010, “Law as a Means”, in The Hart-Fuller Debate in the Twenty-First Century , Peter Cane (ed.), Oxford: Hart Publishing, 169–188.
• –––, 2013, “The Nature of Limited Government”, in Keown and George 2013: 186–203. doi:10.1093/acprof:oso/9780199675500.003.0013
• Green, Leslie and Thomas Adams, 2019, “Legal Positivism”, The Stanford Encyclopedia of Philosophy (Winter 2019 Edition), Edward N. Zalta (ed.), URL = https://plato.stanford.edu/archives/win2019/entries/legal-positivism/ >.
• Green, Leslie and Brian Leiter, 2005, “H.L.A. Hart and The Concept of Law ”, Letters to the Editor, Times Literary Supplement , 11 March 2005, p. 15, issue 5319.
• Greenawalt, Kent, 1995 [2016], “The Legal Enforcement of Morality”, The Journal of Criminal Law and Criminology , 85(3): 710–725; reprinted in his From the Bottom Up: Selected Essays , New York: Oxford University Press, 2016: 135–148. doi:10.2307/1144047
• Griffin, James, 1994, “The Distinction Between Criterion and Decision Procedure: A Reply to Madison Powers”, Utilitas , 6(2): 177–182. doi:10.1017/S0953820800001552
• Grill, Kalle and Jason Hanna (eds.), 2018, The Routledge Handbook of the Philosophy of Paternalism , New York: Routledge. doi:10.4324/9781315657080
• Grimley, Matthew, 2009, “Law, Morality and Secularisation: The Church of England and the Wolfenden Report, 1954–1967”, The Journal of Ecclesiastical History , 60(4): 725–741. doi:10.1017/S0022046908005952
• Hart, H.L.A, 1961 [1994], The Concept of Law , Oxford: Clarendon Press. Second edition, Penelope A. Bulloch and Joseph Raz (eds), 1994.
• –––, 1963 [1982], Law, Liberty and Morality , Oxford: Oxford University Press; reprinted 1982 with a new preface by the author.
• –––, 1967 [1983], “Social Solidarity and the Enforcement of Morality”, University of Chicago Law Review , 35(1): 1–12; reprinted in his Essays in Jurisprudence and Philosophy , Oxford: Clarendon Press, 248–262.
• Hartley, Christie and Lori Watson, 2018, Equal Citizenship and Public Reason: A Feminist Political Liberalism , New York: Oxford University Press. doi:10.1093/oso/9780190683023.001.0001
• Hurd, Heidi M., 2018, “Paternalism and the Criminal Law”, in Grill and Hanna 2018: 277–292.
• Hurka, Thomas, 1993, Perfectionism , New York: Oxford University Press. doi:10.1093/0195101162.001.0001
• Husak, Douglas, 2007, Overcriminalization: The Limits of the Criminal Law , New York: Oxford University Press. doi:10.1093/acprof:oso/9780195328714.001.0001
• Kane, Robert Hilary, 1994, Through the Moral Maze: Searching for Absolute Values in a Pluralistic World , New York: Paragon House.
• Kekes, John, 2000, “The Enforcement of Morality”, American Philosophical Quarterly , 37(1): 23–35.
• Kelsen, Hans, 1941, “The Law as a Specific Social Technique”, University of Chicago Law Review , 9(1): 75–97.
• Keown, John and Robert P. George (eds.), 2013, Reason, Morality, and Law: The Philosophy of John Finnis , Oxford: Oxford University Press. doi:10.1093/acprof:oso/9780199675500.001.0001
• Kleinfeld, Joshua, 2016, “Reconstructivism: The Place of Criminal Law in Ethical Life”, Harvard Law Review , 129(6): 1485–1565.
• Kramer, Matthew H., 2007, Objectivity and the Rule of Law , Cambridge: Cambridge University Press. doi:10.1017/CBO9780511619014
• –––, 2017, Liberalism with Excellence , New York: Oxford University Press. doi:10.1093/oso/9780198777960.001.0001
• Kramer, Matthew H., Claire Grant, Ben Colburn, and Antony Hatzistavrou (eds.), 2008, The Legacy of H.L.A. Hart: Legal, Political, and Moral Philosophy , Oxford: Oxford University Press. doi:10.1093/acprof:oso/9780199542895.001.0001
• Laborde, Cécile, 2018, “Abortion, Marriage and Cognate Problems”, The American Journal of Jurisprudence , 63(1): 33–48. doi:10.1093/ajj/auy007
• Lamond, Grant, 2012, “The Rule of Law”, in Marmor 2012: 495–508.
• Lammy, David, 2017, The Lammy Review: An Independent Review into the Treatment of, and Outcomes for Black, Asian and Minority Ethnic Individuals in the (UK) Criminal Justice System , 8 September 2017. [ Lammy 2017 available online ]
• Lewis, David, 1989 [2000], “Mill and Milquetoast”, Australasian Journal of Philosophy , 67(2): 152–171; reprinted in his Papers in Ethics and Social Philosophy , Cambridge: Cambridge University Press, 2000, pp. 159–186. doi:10.1080/00048408912343741 doi:10.1017/CBO9780511625114.015
• Lippke, Richard L., 2007, Rethinking Imprisonment , Oxford: Oxford University Press. doi:10.1093/acprof:oso/9780199209125.001.0001
• –––, 2008, “No Easy Way Out: Dangerous Offenders and Preventive Detention”, Law and Philosophy , 27(4): 383–414. doi:10.1007/s10982-008-9022-1
• Lukes, Steven and Devyani Prabhat, 2012, “Durkheim on Law and Morality: The Disintegration Thesis”, Journal of Classical Sociology , 12(3–4): 363–383. doi:10.1177/1468795X12453270
• Mackenzie, Catriona and Natalie Stoljar, 2000, Relational Autonomy: Feminist Perspectives on Autonomy, Agency and the Social Self , New York: Oxford University Press.
• Marmor, Andrei (ed.), 2012, The Routledge Companion to Philosophy of Law , New York: Routledge. doi:10.4324/9780203124352
• McGrath, Sarah, 2019, Moral Knowledge , Oxford: Oxford University Press.
• McAdams, Richard H., 2015, The Expressive Powers of Law: Theories and Limits , Cambridge, MA: Harvard University Press.
• Mill, John Stuart, 1859 [1993], On Liberty , London: Parker & Son; reprinted in Mill 1993: 69–185.
• –––, 1861 [1993], “Utilitarianism”, Fraser’s Magazine , in three parts, 64: 391–406, 525–534, 659–673; collected and published as Utilitarianism , London: Parker, Son & Bourn; reprinted in Mill 1993: 1–67.
• –––, 1993, Utilitarianism, On Liberty and Considerations on Representative Government , London: Dent.
• Miller, Dale E., 2010, J.S. Mill , Cambridge, UK: Polity.
• Moffat, Robert C.L., 2005, “‘Not the Law’s Business’: The Politics of Tolerance and the Enforcement of Morality”, Florida Law Review , 57: 1097–1133.
• Moore, Michael S., 1992 [2000], “Law as a Functional Kind”, in Natural Law Theory: Contemporary Essays , Robert P. George (ed.), Oxford: Clarendon Press, 188–242; reprinted in his Educating Oneself in Public: Critical Essays Jurisprudence , New York: Oxford University Press, 2000, pp. 294–332.
• –––, 1997, Placing Blame: A General Theory of the Criminal Law , Oxford: Clarendon Press. doi:10.1093/acprof:oso/9780199599493.001.0001
• –––, 2014, “Liberty’s Constraints on What Should be Criminalized”, in Criminalization: the Political Morality of the Criminal Law , R.A. Duff, Lindsay Farmer, S. E. Marshall, Massimo Renzo, and Victor Tadros (eds), Oxford: Oxford University Press: 182–212.
• –––, 2016, “Responses and Appreciations”, in Ferzan and Morse 2016: 343–427. doi:10.1093/acprof:oso/9780198703242.003.0023
• –––, 2017, “Legal Moralism Revisited”, San Diego Law Review , 54: 441–463.
• Moran, Mayo, 2003, Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard , New York: Oxford University Press. doi:10.1093/acprof:oso/9780199247820.001.0001
• Mulgan, Tim, 2007, Understanding Utilitarianism , Stocksfield, UK: Acumen.
• Mulhall, Stephen and Adam Swift, 1996, Liberals and Communitarians , second edition, Oxford: Blackwell.
• Murphy, Jeffrie G., 1999, “Moral Reasons and the Limitations of Liberty”, William & Mary Law Review , 40(3): 947–957.
• –––, 2006 [2012], “Legal Moralism and Retribution Revisited”, Criminal Law and Philosophy , 1(1): 5–20; reprinted in his Punishment and the Moral Emotions: Essays in Law, Morality, and Religion , New York: Oxford University Press, 2012: 66–93. doi:10.1007/s11572-006-9000-3
• Murphy, Mark C., 2007, Philosophy of Law: the Fundamentals , Malden, MA: Blackwell.
• Nagel, Thomas, 1987, “Moral Conflict and Political Legitimacy”, Philosophy and Public Affairs , 16(3): 215–240.
• –––, 1991, Equality and Partiality , New York: Oxford University Press. doi:10.1093/0195098390.001.0001
• Nussbaum, Martha, 2004, Hiding from Humanity: Disgust, Shame and the Law , Princeton NJ: Princeton University Press.
• –––, 2010, From Disgust to Humanity: Sexual Orientation and Constitutional Law , New York: Oxford University Press.
• Oberdiek, Hans, 2001, Tolerance: Between Forbearance and Acceptance , Lanham, MD: Rowman & Littlefield.
• Packer, Herbert L., 1964, “The Crime Tariff”, The American Scholar , 33(4): 551–557.
• –––, 1968, The Limits of the Penal Sanction , Stanford, CA: Stanford University Press.
• Parfit, Derek, 1984, Reasons and Persons , Oxford: Clarendon Press. doi:10.1093/019824908X.001.0001
• Persson, Ingmar, 2002, “Human Death—A View from the Beginning of Life”, Bioethics , 16(1): 20–32. doi:10.1111/1467-8519.00265
• Petersen, Thomas Søbirk, 2020a, “A Soft Defense of a Utilitarian Principle of Criminalization”, Res Publica , 26(1): 123–141. doi:10.1007/s11158-019-09426-3
• –––, 2020b, Why Criminalize: New Perspectives on Normative Principles of Criminalization , (Law and Philosophy Library, 134), Cham: Springer International Publishing. doi:10.1007/978-3-030-34690-4
• Pickett, Brent, 2020 [2021], “Homosexuality”, in The Stanford Encyclopedia of Philosophy (Spring 2021 edition), Edward N. Zalta (ed.), URL = < https://plato.stanford.edu/archives/spr2021/entries/homosexuality/ >
• Quong, Jonathan, 2011, Liberalism without Perfection , New York: Oxford University Press. doi:10.1093/acprof:oso/9780199594870.001.0001
• –––, 2018, “Public Reason”, in The Stanford Encyclopedia of Philosophy (Spring 2018 edition), Edward N. Zalta (ed.), URL = < https://plato.stanford.edu/archives/spr2018/entries/public-reason/
• Rawls, John, 1993, Political Liberalism , New York: Columbia.
• –––, 1989 [1993], “The Domain of the Political and Overlapping Consensus”, New York University Law Review , 64(2): 233–255; reprinted in The Idea of Democracy , David Copp, Jean Hampton, and John E, Roemer (eds.), Cambridge: Cambridge University Press 1993, 245–269.
• –––, 1999, The Law of Peoples (with “The Idea of Public Reason Revisited”) , Cambridge, MA: Harvard University Press.
• Raz, Joseph, 1973 [1979/2009], “The Functions of Law”, Oxford Essays in Jurisprudence: Second Series , A. W. B. Simpson, Oxford: Clarendon Press; reprinted in Raz 1979 [2009]: ch. 9
• –––, 1975 [1999], Practical Reason and Norms , London: Hutchinson; reprinted Oxford: Oxford University Press, 1999. doi:10.1093/acprof:oso/9780198268345.001.0001
• –––, 1977 [1979/2009], “The Rule of Law and its Virtue”, The Law Quarterly Review , 93(2): 161–211; reprinted in Raz 1979 [2009]: ch. 11.
• –––, 1979 [2009], The Authority of Law: Essays on Law and Morality , Oxford: Clarendon Press. Second edition 2009. doi:10.1093/acprof:oso/9780198253457.001.0001
• –––, 1986, The Morality of Freedom , Oxford: Clarendon Press. doi:10.1093/0198248075.001.0001
• –––, 1989, “Facing Up: A Reply”, Southern California Law Review , 62: 1153–1235.
• –––, 1990 [1994], “Facing Diversity: The Case of Epistemic Abstinence”, Philosophy & Public Affairs , 19(1): 3–46; reprinted in his Ethics in the Public Domain: Essays in the Morality of Law and Politics , Oxford: Clarendon Press, 1994, pp. 60–96.
• –––, 1996, “Liberty and Trust”, in George 1996: 113–130.
• –––, 2003 [2009], “About Morality and the Nature of Law”, The American Journal of Jurisprudence , 48(1): 1–15; reprinted in his Between Authority and Interpretation: On the Theory of Law and Practical Reason , New York: Oxford University Press, 2009: 166–181. doi:10.1093/ajj/48.1.1
• Rees, John C., 1960 [1991], “A Re-Reading of Mill on Liberty”, Political Studies , 8(2): 113–129. 29; reprinted in Gray and Smith 1991: 169–189. doi:10.1111/j.1467-9248.1960.tb01133.x
• Rhode, Deborah L., 2016, Adultery: Infidelity and the Law , Cambridge, MA: Harvard University Press.
• Ripstein, Arthur, 2006, “Beyond the Harm Principle”, Philosophy & Public Affairs , 34(3): 215–245. doi:10.1111/j.1088-4963.2006.00066.x
• Robinson, Paul H., 2000, “Why Does the Criminal Law Care What the Layperson Thinks Is Just? Coercive versus Normative Crime Control”, Virginia Law Review , 86(8): 1839–1869.
• Rovane, Carol, 2013, The Metaphysics and Ethics of Relativism , Cambridge, MA: Harvard University Press.
• Ross, W. D., 1930, The Right and the Good , Oxford: Clarendon Press.
• Rostow, Eugene V., 1960 [1962], “The Enforcement of Morals”, Cambridge Law Journal , 18(2): 174–198; reprinted in E. Rostow, The Sovereign Prerogative: The Supreme Court and the Quest for Law , New Haven, CT: Yale University Press: 45–80.
• Rundle, Kristen, 2012, Forms Liberate , Oxford: Hart Publishing.
• Ryan, Alan, 1965 [1991], “John Stuart Mill’s Art of Living”, The Listener , 74(1908): 16–18; reprinted in Gray and Smith 1991: 162–168.
• –––, 2008, “Hart and the Liberalism of Fear”, in Kramer, et al. 2008: 315–330.
• Ryle, Gilbert, 1958, “On Forgetting the Difference Between Right and Wrong”, in Essays in Moral Philosophy , A. I. Melden (ed.), Washington, DC: University of Washington Press; reprinted in G. Ryle, Collected Essays, 1929–1968 , Oxford: Oxford University Press, 2009: 394–403.
• Sackar, John, 2020, Lord Devlin , Oxford: Hart Publishing.
• Saunders, Ben, 2016, “Reformulating Mill’s Harm Principle”, Mind , 125(500): 1005–1032. doi:10.1093/mind/fzv171
• Scanlon, T. M., 1975, “Preference and Urgency”, The Journal of Philosophy , 72(19): 655–669. doi:10.2307/2024630
• –––, 1998, What We Owe Each Other , Cambridge, MA: Harvard University Press.
• Scheffler, Samuel, 1992, Human Morality , New York: Oxford University Press. doi:10.1093/0195085647.001.0001
• Sher, George, 1997, Beyond Neutrality: Perfectionism and Politics , Cambridge: Cambridge University Press. doi:10.1017/CBO9780511609169
• Simester, Andrew P., 2012, “Enforcing Morality”, in Marmor 2012: 481–494
• Simester, Andrew P. and Andrew [Andreas] von Hirsch, 2002, “Rethinking the Offense Principle”, Legal Theory , 8(3): 269–295. doi:10.1017/S1352325202083015h
• –––, 2011, Crimes, Harms and Wrongs: On the Principles of Criminalisation , Oxford: Hart Publishing.
• Sinnott-Armstrong, Walter, 2019 [2021], “Consequentialism”, in The Stanford Encyclopedia of Philosophy (Fall 2021 edition), Edward N. Zalta (ed.), URL = < https://plato.stanford.edu/archives/fall2021/entries/consequentialism/ >
• Skelton, Anthony, 2012, “William David Ross”, in The Stanford Encyclopedia of Philosophy (Summer 2012 edition), Edward N. Zalta (ed.), URL = < https://plato.stanford.edu/archives/sum2012/entries/william-david-ross/ >
• Stanton-Ife, John, 2010, “Horrific Crime”, in The Boundaries of the Criminal Law , R.A. Duff, Lindsay Farmer, S.E. Marshall, Massimo Renzo, and Victor Tadros (eds.), New York: Oxford University Press, 138–162. doi:10.1093/acprof:oso/9780199600557.003.0006
• –––, 2012, “Preventive Detention at the Margins of Agency”, in Seeking Security: Pre-Empting the Commission of Criminal Harms , G.R. Sullivan and Ian Dennis (eds), Oxford: Hart Publishing, pp. 143–168.
• –––, 2016, “What Is the Harm Principle For?”, Criminal Law and Philosophy , 10(2): 329–353. doi:10.1007/s11572-014-9311-8
• –––, 2017, “Must We Pay for the British Museum? Taxation and the Harm Principle”, in Philosophical Foundations of Tax Law , Monica Bhandari (ed.), Oxford: Oxford University Press, 35–56. doi:10.1093/acprof:oso/9780198798439.003.0003
• –––, 2020, “The Ends and Limits of Law”, in The Cambridge Companion to the Philosophy of Law , John Tasioulas (ed.), Cambridge: Cambridge University Press, 208–234. doi:10.1017/9781316104439.012
• Stephen, James Fitzjames, 1873 [1993], Liberty, Equality, Fraternity , London: Smith, Elder; reprinted Stuart D. Warner (ed.), Indianapolis, IN: Liberty Fund, 1993.
• Stoljar, Natalie, 2018, “Feminist Perspectives on Autonomy”, in The Stanford Encyclopedia of Philosophy (Winter 2018 edition), Edward N. Zalta (ed.), URl = < https://plato.stanford.edu/archives/win2018/entries/feminism-autonomy/ >
• Stuntz, William J., 2000, “Self-Defeating Crimes”, Virginia Law Review , 86(8): 1871–1899.
• Suk, Jeannie, 2009a, “Criminal Law Comes Home”, with commentary from Melissa Murray; Laura A. Rosenbury, Aya Gruber, Jennifer Collins, Cheryl Hanna, Emily J. Sack, Deborah Tuerkheimer, and Alafair Burke, in Criminal Law Conversations , Paul H. Robinson, Stephen Garvey, and Kimberly Kessler Ferzan (eds.), New York: Oxford University Press, 683–712. doi:10.1093/acprof:osobl/9780199861279.003.0031
• –––, 2009b, At Home in the Law: How the Domestic Violence Revolution is Transforming Privacy , New Haven, CT: Yale University Press.
• Summers, Robert S., 1971, “The Technique Element in Law”, California Law Review , 59(3): 733–751.
• –––, 1977, “Naïve Instrumentalism and the Law”, in Law, Morality and Society: Essays in Honour of H. L. A. Hart , P. M. S. Hacker and Joseph Raz, Oxford: Clarendon Press.
• Summers, Robert S., Kevin M. Clermont, Sheri Lynn Johnson, John J. Barcelo III, Doris Marie Provine, 1986, Law, its Nature, Functions, and Limits , third edition, St Paul, MN: West Publishing.
• Sumner, L.Wayne, 2004, The Hateful and the Obscene , Toronto: Toronto University Press.
• –––, 2011, “Criminalizing Expression: Hate Speech and Obscenity”, in Deigh and Dolinko 2011: 17–36.
• Sunstein, Cass R., 2014, Why Nudge? The Politics of Libertarian Paternalism , New Haven, CT: Yale University Press.
• Sunstein, Cass R. and Adrian Vermeule, 2020, Law and Leviathan: Redeeming the Administrative State , Cambridge, MA: Harvard University Press.
• Swift, Adam, 2019, Political Philosophy: A Beginner’s Guide for Students and Politicians , fourth edition, Cambridge, UK: Polity. First edition, 2001.
• Tadros, Victor, 2011, “Harm, Sovereignty, and Prohibition”, Legal Theory , 17(1): 35–65. doi:10.1017/S1352325211000024
• –––, 2012, “Fair Labelling and Social Solidarity”, in Principles and Values in Criminal Law and Criminal Justice , Lucia Zedner and Julian V. Roberts (eds.), Oxford: Oxford University Press, 67–80. doi:10.1093/acprof:oso/9780199696796.003.0005
• –––, 2016a, Wrongs and Crimes , Oxford: Oxford University Press. doi:10.1093/acprof:oso/9780199571376.001.0001
• –––, 2016b, “The Wrong and the Free”, in Ferzan and Morse 2016: 79–94. doi:10.1093/acprof:oso/9780198703242.003.0006
• Tasioulas, John, 2020, “The Rule of Law”, in The Cambridge Companion to the Philosophy of Law , John Tasioulas (ed.), Cambridge: Cambridge University Press, 117–134. doi:10.1017/9781316104439.007
• Ten, Chin Liew, 1972, “Enforcing a Shared Morality”, Ethics , 82(4): 321–329. doi:10.1086/291855
• –––, 1980, Mill on Liberty , Oxford: Clarendon Press.
• –––, 1991, “Mill’s Defence of Liberty”, in Gray and Smith 1991: 212–238.
• Thomson, Judith Jarvis, 1986, “Feinberg on Harm, Offense and Criminal Law”, Philosophy & Public Affairs , 15(4): 381–395.
• Timmons, Mark, 2013, Moral Theory: An Introduction , second edition, Lanham, MD: Rowman and Littlefield.
• Turner, Piers Norris, 2017, “Mill and Modern Liberalism”, in Christopher MacLeod and Dale E. Miller (eds.), A Companion to Mill , Oxford: Wiley Blackwell: 567–582.
• Turner, Piers Norris and Gerald Gaus (eds.), 2017, Public Reason in Political Philosophy: Classic Sources and Contemporary Commentaries , New York: Routledge. doi:10.4324/9781315110868
• Tyler, Tom R., 2006, Why People Obey the Law , Princeton, NJ: Princeton University Press.
• Velleman, J. David, 2015, Foundations for Moral Relativism , second edition, Cambridge: Open Book Publishers.
• Waldron, Jeremy, 1987 [1993], “Mill and the Value of Moral Distress”, Political Studies , 35(3): 410–423; reprinted in his Liberal Rights: Collected Papers, 1981–1991 , Cambridge: Cambridge University Press, 1993, 115–133. doi:10.1111/j.1467-9248.1987.tb00197.x
• –––, 1999, “The Irrelevance of Moral Objectivity”, in his Law and Disagreement , Oxford: Oxford University Press, ch. 8.
• –––, 2008, “The Concept and Rule of Law”, Georgia Law Review , 43(1): 1–62.
• –––, 2012, “How Law Protects Dignity”, Cambridge Law Journal , 71(1): 200–222.
• –––, 2015, “The Rule of Law in Public Law”, in The Cambridge Companion to Public Law , Mark Elliott and David Feldman (eds.), Cambridge: Cambridge University Press, 56–72. doi:10.1017/CCO9781139342551.004
• –––, 2016 [2020], “The Rule of Law”, in The Stanford Encyclopedia of Philosophy (Summer 2020 edition), Edward N. Zalta (ed.), URL = < https://plato.stanford.edu/archives/sum2020/entries/rule-of-law/ >
• Wall, Steven, 2013, “Enforcing Morality”, Criminal Law and Philosophy , 7(3): 455–471. doi:10.1007/s11572-013-9238-5
• Wertheimer, Alan, 2002, “Liberty, Coercion, and the Limits of the State”, in The Blackwell Guide to Social and Political Philosophy , Robert L. Simon (ed.), Oxford, UK: Blackwell Publishers, 38–59. doi:10.1002/9780470756621.ch2
• Williams, Bernard, 1972, Morality: An Introduction to Ethics , Cambridge: Cambridge University Press. doi:10.1017/CBO9781107325869
• –––, 1975 [1981], “The Truth in Relativism”, Proceedings of the Aristotelian Society , 75: 215–228; reprinted in his his Moral Luck: Philosophical Papers 1973–1980 , Cambridge: Cambridge University Press, 1981, 132–143. doi:10.1093/aristotelian/75.1.215
• Williams, Jeremy, 2015, “Public Reason and Prenatal Moral Status”, The Journal of Ethics , 19(1): 23–52. doi:10.1007/s10892-015-9190-9
• Wolfenden Report, 1957, Report of the Committee on Homosexual Offences and Prostitution , Cmd. 247, London: Her Majesty’s Stationery Office.
• Wong, David B., 2006, Natural Moralities: A Defense of Pluralistic Relativism , New York: Oxford University Press. doi:10.1093/0195305396.001.0001
• Yankah, Ekow N., 2019, “Race, Criminal Law and Ethical Life”, in Alexander and Ferzan 2019: 625–648.

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.

• Stanton-Ife, John, “The Limits of Law”, Stanford Encyclopedia of Philosophy (Winter 2021 Edition), Edward N. Zalta (ed.), URL = < https://plato.stanford.edu/archives/win2021/entries/law-limits/ >. [This was the previous entry on this topic in the Stanford Encyclopedia of Philosophy — see the version history .]

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Acknowledgments

I am very grateful to Les Green, Julie Dickson and the SEP editors for various kinds of invaluable help and to Joseph Raz, Liam Murphy, Grant Lamond, Dori Kimel and Alan Bogg for their helpful comments on the original version.

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Researching the Law in the United States for LLM Students

• U.S. Government Structure
• U.S. Legal System
• Secondary Sources: Legal Research

Introduction

Primary legal sources.

• Non-Legal Research
• Studying at Law School

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This page provides an introduction to and suggestions for locating U.S. legal primary source materials: legislative materials (constitutions, statutes, and international treaties); judicial materials (cases and court rules) and administrative materials (rules and regulations).

• Legislative Sources
• Judicial Sources
• Administrative Sources

Legislative materials include sources created by the legislature--either by Congress or by any of the state legislative bodies. They include constitutions, statutes, and international treaties. This section provides an overview of each type of source; and suggestions for locating and expanding (e.g. finding sources that discuss, cite back to, or are similar to) those sources.

For additional information about locating legislative history, see our Federal Legislative History research guide; and for detailed information on locating state legislation, see our State Legislative Information research guide.

Judicial sources are published by the judiciary and include cases and court rules. This section includes information about each type of source, as well as information about how to locate them, expand them (e.g. find other sources that cite to or are related to a specific case), and use case citators (e.g. confirm the cases are still good law). For more detailed information on how to locate cases, see our Case Finding and Advanced Searching Strategies research guide.

Administrative sources are published by the executive branch; most of these sources are referred to as administrative sources, since they are issued by agencies. Administrative sources includes regulations/rules, proposed rules, and administrative decisions and guidance. Additionally, the President (or the Governor, at the state level) often issues statements, orders, and other papers. This section includes information about each type of source, as well as information about how to locate them and expand them (e.g. find other sources that cite to or are related to the source).

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Legal Research Strategy

Preliminary analysis, organization, secondary sources, primary sources, updating research, identifying an end point, getting help, about this guide.

This guide will walk a beginning researcher though the legal research process step-by-step. These materials are created with the 1L Legal Research & Writing course in mind. However, these resources will also assist upper-level students engaged in any legal research project.

How to Strategize

Legal research must be comprehensive and precise.  One contrary source that you miss may invalidate other sources you plan to rely on.  Sticking to a strategy will save you time, ensure completeness, and improve your work product. 

Follow These Steps

Running Time: 3 minutes, 13 seconds.

Make sure that you don't miss any steps by using our:

• Legal Research Strategy Checklist

If you get stuck at any time during the process, check this out:

• Ten Tips for Moving Beyond the Brick Wall in the Legal Research Process, by Marsha L. Baum

Understanding the Legal Questions

A legal question often originates as a problem or story about a series of events. In law school, these stories are called fact patterns. In practice, facts may arise from a manager or an interview with a potential client. Start by doing the following:

• Read anything you have been given
• Analyze the facts and frame the legal issues
• Assess what you know and need to learn
• Note the jurisdiction and any primary law you have been given
• Generate potential search terms

Jurisdiction

Legal rules will vary depending on where geographically your legal question will be answered. You must determine the jurisdiction in which your claim will be heard. These resources can help you learn more about jurisdiction and how it is determined:

• Legal Treatises on Jurisdiction
• LII Wex Entry on Jurisdiction

This map indicates which states are in each federal appellate circuit:

Getting Started

Once you have begun your research, you will need to keep track of your work. Logging your research will help you to avoid missing sources and explain your research strategy. You will likely be asked to explain your research process when in practice. Researchers can keep paper logs, folders on Westlaw or Lexis, or online citation management platforms.

Organizational Methods

Tracking with paper or excel.

Many researchers create their own tracking charts.  Be sure to include:

• Search Date
• Topics/Keywords/Search Strategy
• Citation to Relevant Source Found
• Save Locations
• Follow Up Needed

Consider using the following research log as a starting place: 

• Sample Research Log

Tracking with Folders

Westlaw and Lexis offer options to create folders, then save and organize your materials there.

• Lexis Advance Folders
• Westlaw Edge Folders

Tracking with Citation Management Software

For long term projects, platforms such as Zotero, EndNote, Mendeley, or Refworks might be useful. These are good tools to keep your research well organized. Note, however, that none of these platforms substitute for doing your own proper Bluebook citations. Learn more about citation management software on our other research guides:

• Guide to Zotero for Harvard Law Students by Harvard Law School Library Research Services Last Updated Aug 9, 2024 383 views this year

Types of Sources

There are three different types of sources: Primary, Secondary, and Tertiary.  When doing legal research you will be using mostly primary and secondary sources.  We will explore these different types of sources in the sections below.

Secondary sources often explain legal principles more thoroughly than a single case or statute. Starting with them can help you save time.

Secondary sources are particularly useful for:

• Learning the basics of a particular area of law
• Understanding key terms of art in an area
• Identifying essential cases and statutes

Consider the following when deciding which type of secondary source is right for you:

• Scope/Breadth
• Depth of Treatment
• Currentness/Reliability

For a deep dive into secondary sources visit:

• Secondary Sources: ALRs, Encyclopedias, Law Reviews, Restatements, & Treatises by Catherine Biondo Last Updated Apr 12, 2024 6265 views this year

Legal Dictionaries & Encyclopedias

Legal dictionaries.

Legal dictionaries are similar to other dictionaries that you have likely used before.

• Black's Law Dictionary
• Ballentine's Law Dictionary

Legal Encyclopedias

Legal encyclopedias contain brief, broad summaries of legal topics, providing introductions and explaining terms of art. They also provide citations to primary law and relevant major law review articles.  

Here are the two major national encyclopedias:

• American Jurisprudence (AmJur) This resource is also available in Westlaw & Lexis .
• Corpus Juris Secundum (CJS)

Treatises are books on legal topics.  These books are a good place to begin your research.  They provide explanation, analysis, and citations to the most relevant primary sources. Treatises range from single subject overviews to deep treatments of broad subject areas.

It is important to check the date when the treatise was published. Many are either not updated, or are updated through the release of newer editions.

To find a relevant treatise explore:

• Legal Treatises by Subject by Catherine Biondo Last Updated Apr 12, 2024 5868 views this year

American Law Reports (ALR)

American Law Reports (ALR) contains in-depth articles on narrow topics of the law. ALR articles, are often called annotations. They provide background, analysis, and citations to relevant cases, statutes, articles, and other annotations. ALR annotations are invaluable tools to quickly find primary law on narrow legal questions.

This resource is available in both Westlaw and Lexis:

• American Law Reports on Westlaw (includes index)
• American Law Reports on Lexis

Law Reviews & Journals

Law reviews are scholarly publications, usually edited by law students in conjunction with faculty members. They contain both lengthy articles and shorter essays by professors and lawyers. They also contain comments, notes, or developments in the law written by law students. Articles often focus on new or emerging areas of law and may offer critical commentary. Some law reviews are dedicated to a particular topic while others are general. Occasionally, law reviews will include issues devoted to proceedings of panels and symposia.

Law review and journal articles are extremely narrow and deep with extensive references. 

To find law review articles visit:

• Law Journal Library on HeinOnline
• Law Reviews & Journals on LexisNexis
• Law Reviews & Journals on Westlaw

Restatements

Restatements are highly regarded distillations of common law, prepared by the American Law Institute (ALI). ALI is a prestigious organization comprised of judges, professors, and lawyers. They distill the "black letter law" from cases to indicate trends in common law. Resulting in a “restatement” of existing common law into a series of principles or rules. Occasionally, they make recommendations on what a rule of law should be.

Restatements are not primary law. However, they are considered persuasive authority by many courts.

Restatements are organized into chapters, titles, and sections.  Sections contain the following:

• a concisely stated rule of law,
• comments to clarify the rule,
• hypothetical examples,
• explanation of purpose, and
• exceptions to the rule  

To access restatements visit:

• American Law Institute Library on HeinOnline
• Restatements & Principles of the Law on LexisNexis
• Restatements & Principles of Law on Westlaw

Primary Authority

Primary authority is "authority that issues directly from a law-making body."   Authority , Black's Law Dictionary (11th ed. 2019).   Sources of primary authority include:

• Constitutions
• Statutes 

Regulations

Access to primary legal sources is available through:

• Bloomberg Law
• Free & Low Cost Alternatives

Statutes (also called legislation) are "laws enacted by legislative bodies", such as Congress and state legislatures.  Statute , Black's Law Dictionary (11th ed. 2019).

We typically start primary law research here. If there is a controlling statute, cases you look for later will interpret that law. There are two types of statutes, annotated and unannotated.

Annotated codes are a great place to start your research. They combine statutory language with citations to cases, regulations, secondary sources, and other relevant statutes. This can quickly connect you to the most relevant cases related to a particular law. Unannotated Codes provide only the text of the statute without editorial additions. Unannotated codes, however, are more often considered official and used for citation purposes.

For a deep dive on federal and state statutes, visit:

• Statutes: US and State Codes by Mindy Kent Last Updated Apr 12, 2024 4680 views this year
• 50 State Surveys

Want to learn more about the history or legislative intent of a law?  Learn how to get started here:

• Legislative History Get an introduction to legislative histories in less than 5 minutes.
• Federal Legislative History Research Guide

Regulations are rules made by executive departments and agencies. Not every legal question will require you to search regulations. However, many areas of law are affected by regulations. So make sure not to skip this step if they are relevant to your question.

To learn more about working with regulations, visit:

• Administrative Law Research by AJ Blechner Last Updated Apr 12, 2024 801 views this year

Case Basics

In many areas, finding relevant caselaw will comprise a significant part of your research. This Is particularly true in legal areas that rely heavily on common law principles.

Running Time: 3 minutes, 10 seconds.

Unpublished Cases

Up to  86% of federal case opinions are unpublished. You must determine whether your jurisdiction will consider these unpublished cases as persuasive authority. The Federal Rules of Appellate Procedure have an overarching rule, Rule 32.1  Each circuit also has local rules regarding citations to unpublished opinions. You must understand both the Federal Rule and the rule in your jurisdiction.

• Federal and Local Rules of Appellate Procedure 32.1 (Dec. 2021).
• Type of Opinion or Order Filed in Cases Terminated on the Merits, by Circuit (Sept. 2021).

Each state also has its own local rules which can often be accessed through:

• State Bar Associations
• State Courts Websites

First Circuit

• First Circuit Court Rule 32.1.0

Second Circuit

• Second Circuit Court Rule 32.1.1

Third Circuit

• Third Circuit Court Rule 5.7

Fourth Circuit

• Fourth Circuit Court Rule 32.1

Fifth Circuit

• Fifth Circuit Court Rule 47.5

Sixth Circuit

• Sixth Circuit Court Rule 32.1

Seventh Circuit

• Seventh Circuit Court Rule 32.1

Eighth Circuit

• Eighth Circuit Court Rule 32.1A

Ninth Circuit

• Ninth Circuit Court Rule 36-3

Tenth Circuit

• Tenth Circuit Court Rule 32.1

Eleventh Circuit

• Eleventh Circuit Court Rule 32.1

D.C. Circuit

• D.C. Circuit Court Rule 32.1

Federal Circuit

• Federal Circuit Court Rule 32.1

Finding Cases

Headnotes show the key legal points in a case. Legal databases use these headnotes to guide researchers to other cases on the same topic. They also use them to organize concepts explored in cases by subject. Publishers, like Westlaw and Lexis, create headnotes, so they are not consistent across databases.

Headnotes are organized by subject into an outline that allows you to search by subject. This outline is known as a "digest of cases." By browsing or searching the digest you can retrieve all headnotes covering a particular topic. This can help you identify particularly important cases on the relevant subject.

Running Time: 4 minutes, 43 seconds.

Each major legal database has its own digest:

• Topic Navigator (Lexis)
• Key Digest System (Westlaw)

Start by identifying a relevant topic in a digest.  Then you can limit those results to your jurisdiction for more relevant results.  Sometimes, you can keyword search within only the results on your topic in your jurisdiction.  This is a particularly powerful research method.

One Good Case Method

After following the steps above, you will have identified some relevant cases on your topic. You can use good cases you find to locate other cases addressing the same topic. These other cases often apply similar rules to a range of diverse fact patterns.

• in Lexis click "More Like This Headnote"
• in Westlaw click "Cases that Cite This Headnote"

to focus on the terms of art or key words in a particular headnote. You can use this feature to find more cases with similar language and concepts.  ​

Ways to Use Citators

A citator is "a catalogued list of cases, statutes, and other legal sources showing the subsequent history and current precedential value of those sources.  Citators allow researchers to verify the authority of a precedent and to find additional sources relating to a given subject." Citator , Black's Law Dictionary (11th ed. 2019).

Each major legal database has its own citator.  The two most popular are Keycite on Westlaw and Shepard's on Lexis.

• Keycite Information Page
• Shepard's Information Page

Making Sure Your Case is Still Good Law

This video answers common questions about citators:

For step-by-step instructions on how to use Keycite and Shepard's see the following:

• Shepard's Video Tutorial
• Shepard's Handout
• Shepard's Editorial Phrase Dictionary
• KeyCite Video Tutorial
• KeyCite Handout
• KeyCite Editorial Phrase Dictionary

Using Citators For

Citators serve three purposes: (1) case validation, (2) better understanding, and (3) additional research.

Case Validation

Is my case or statute good law?

• Parallel citations
• Prior and subsequent history
• Negative treatment suggesting you should no longer cite to holding.

Better Understanding

Has the law in this area changed?

• Later cases on the same point of law
• Positive treatment, explaining or expanding the law.
• Negative Treatment, narrowing or distinguishing the law.

Track Research

Who is citing and writing about my case or statute?

• Secondary sources that discuss your case or statute.
• Cases in other jurisdictions that discuss your case or statute.

Knowing When to Start Writing

For more guidance on when to stop your research see:

• Terminating Research, by Christina L. Kunz

Automated Services

Automated services can check your work and ensure that you are not missing important resources. You can learn more about several automated brief check services.  However, these services are not a replacement for conducting your own diligent research .

• Automated Brief Check Instructional Video

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• Last Updated: Sep 21, 2023 2:56 PM
• URL: https://guides.library.harvard.edu/law/researchstrategy

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Research Limitations 101 📖

A Plain-Language Explainer (With Practical Examples)

By: Derek Jansen (MBA) | Expert Reviewer: Dr. Eunice Rautenbach | May 2024

Research limitations are one of those things that students tend to avoid digging into, and understandably so. No one likes to critique their own study and point out weaknesses. Nevertheless, being able to understand the limitations of your study – and, just as importantly, the implications thereof – a is a critically important skill.

In this post, we’ll unpack some of the most common research limitations you’re likely to encounter, so that you can approach your project with confidence.

Overview: Research Limitations 101

• What are research limitations ?
• Access – based limitations
• Temporal & financial limitations
• Sample & sampling limitations
• Design limitations
• Researcher limitations
• Key takeaways

What (exactly) are “research limitations”?

At the simplest level, research limitations (also referred to as “the limitations of the study”) are the constraints and challenges that will invariably influence your ability to conduct your study and draw reliable conclusions .

Research limitations are inevitable. Absolutely no study is perfect and limitations are an inherent part of any research design. These limitations can stem from a variety of sources , including access to data, methodological choices, and the more mundane constraints of budget and time. So, there’s no use trying to escape them – what matters is that you can recognise them.

Acknowledging and understanding these limitations is crucial, not just for the integrity of your research, but also for your development as a scholar. That probably sounds a bit rich, but realistically, having a strong understanding of the limitations of any given study helps you handle the inevitable obstacles professionally and transparently, which in turn builds trust with your audience and academic peers.

Simply put, recognising and discussing the limitations of your study demonstrates that you know what you’re doing , and that you’ve considered the results of your project within the context of these limitations. In other words, discussing the limitations is a sign of credibility and strength – not weakness. Contrary to the common misconception, highlighting your limitations (or rather, your study’s limitations) will earn you (rather than cost you) marks.

So, with that foundation laid, let’s have a look at some of the most common research limitations you’re likely to encounter – and how to go about managing them as effectively as possible.

Need a helping hand?

Limitation #1: Access To Information

One of the first hurdles you might encounter is limited access to necessary information. For example, you may have trouble getting access to specific literature or niche data sets. This situation can manifest due to several reasons, including paywalls, copyright and licensing issues or language barriers.

To minimise situations like these, it’s useful to try to leverage your university’s resource pool to the greatest extent possible. In practical terms, this means engaging with your university’s librarian and/or potentially utilising interlibrary loans to get access to restricted resources. If this sounds foreign to you, have a chat with your librarian 🙃

In emerging fields or highly specific study areas, you might find that there’s very little existing research (i.e., literature) on your topic. This scenario, while challenging, also offers a unique opportunity to contribute significantly to your field , as it indicates that there’s a significant research gap .

All of that said, be sure to conduct an exhaustive search using a variety of keywords and Boolean operators before assuming that there’s a lack of literature. Also, remember to snowball your literature base . In other words, scan the reference lists of the handful of papers that are directly relevant and then scan those references for more sources. You can also consider using tools like Litmaps and Connected Papers (see video below).

Limitation #2: Time & Money

Almost every researcher will face time and budget constraints at some point. Naturally, these limitations can affect the depth and breadth of your research – but they don’t need to be a death sentence.

Effective planning is crucial to managing both the temporal and financial aspects of your study. In practical terms, utilising tools like Gantt charts can help you visualise and plan your research timeline realistically, thereby reducing the risk of any nasty surprises. Always take a conservative stance when it comes to timelines, especially if you’re new to academic research. As a rule of thumb, things will generally take twice as long as you expect – so, prepare for the worst-case scenario.

If budget is a concern, you might want to consider exploring small research grants or adjusting the scope of your study so that it fits within a realistic budget. Trimming back might sound unattractive, but keep in mind that a smaller, well-planned study can often be more impactful than a larger, poorly planned project.

If you find yourself in a position where you’ve already run out of cash, don’t panic. There’s usually a pivot opportunity hidden somewhere within your project. Engage with your research advisor or faculty to explore potential solutions – don’t make any major changes without first consulting your institution.

Limitation #3: Sample Size & Composition

As we’ve discussed before , the size and representativeness of your sample are crucial , especially in quantitative research where the robustness of your conclusions often depends on these factors. All too often though, students run into issues achieving a sufficient sample size and composition.

To ensure adequacy in terms of your sample size, it’s important to plan for potential dropouts by oversampling from the outset . In other words, if you aim for a final sample size of 100 participants, aim to recruit 120-140 to account for unexpected challenges. If you still find yourself short on participants, consider whether you could complement your dataset with secondary data or data from an adjacent sample – for example, participants from another city or country. That said, be sure to engage with your research advisor before making any changes to your approach.

A related issue that you may run into is sample composition. In other words, you may have trouble securing a random sample that’s representative of your population of interest. In cases like this, you might again want to look at ways to complement your dataset with other sources, but if that’s not possible, it’s not the end of the world. As with all limitations, you’ll just need to recognise this limitation in your final write-up and be sure to interpret your results accordingly. In other words, don’t claim generalisability of your results if your sample isn’t random.

Limitation #4: Methodological Limitations

As we alluded earlier, every methodological choice comes with its own set of limitations . For example, you can’t claim causality if you’re using a descriptive or correlational research design. Similarly, as we saw in the previous example, you can’t claim generalisability if you’re using a non-random sampling approach.

Making good methodological choices is all about understanding (and accepting) the inherent trade-offs . In the vast majority of cases, you won’t be able to adopt the “perfect” methodology – and that’s okay. What’s important is that you select a methodology that aligns with your research aims and research questions , as well as the practical constraints at play (e.g., time, money, equipment access, etc.). Just as importantly, you must recognise and articulate the limitations of your chosen methods, and justify why they were the most suitable, given your specific context.

Limitation #5: Researcher (In)experience 

A discussion about research limitations would not be complete without mentioning the researcher (that’s you!). Whether we like to admit it or not, researcher inexperience and personal biases can subtly (and sometimes not so subtly) influence the interpretation and presentation of data within a study. This is especially true when it comes to dissertations and theses , as these are most commonly undertaken by first-time (or relatively fresh) researchers.

When it comes to dealing with this specific limitation, it’s important to remember the adage “ We don’t know what we don’t know ”. In other words, recognise and embrace your (relative) ignorance and subjectivity – and interpret your study’s results within that context . Simply put, don’t be overly confident in drawing conclusions from your study – especially when they contradict existing literature.

Cultivating a culture of reflexivity within your research practices can help reduce subjectivity and keep you a bit more “rooted” in the data. In practical terms, this simply means making an effort to become aware of how your perspectives and experiences may have shaped the research process and outcomes.

As with any new endeavour in life, it’s useful to garner as many outsider perspectives as possible. Of course, your university-assigned research advisor will play a large role in this respect, but it’s also a good idea to seek out feedback and critique from other academics. To this end, you might consider approaching other faculty at your institution, joining an online group, or even working with a private coach .

Key Takeaways

Understanding and effectively navigating research limitations is key to conducting credible and reliable academic work. By acknowledging and addressing these limitations upfront, you not only enhance the integrity of your research, but also demonstrate your academic maturity and professionalism.

Whether you’re working on a dissertation, thesis or any other type of formal academic research, remember the five most common research limitations and interpret your data while keeping them in mind.

• Access to Information (literature and data)
• Time and money
• Sample size and composition
• Research design and methodology
• Researcher (in)experience and bias

If you need a hand identifying and mitigating the limitations within your study, check out our 1:1 private coaching service .

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How to present limitations in research

Last updated

30 January 2024

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Limitations don’t invalidate or diminish your results, but it’s best to acknowledge them. This will enable you to address any questions your study failed to answer because of them.

In this guide, learn how to recognize, present, and overcome limitations in research.

• What is a research limitation?

Research limitations are weaknesses in your research design or execution that may have impacted outcomes and conclusions. Uncovering limitations doesn’t necessarily indicate poor research design—it just means you encountered challenges you couldn’t have anticipated that limited your research efforts.

Does basic research have limitations?

Basic research aims to provide more information about your research topic . It requires the same standard research methodology and data collection efforts as any other research type, and it can also have limitations.

• Common research limitations

Researchers encounter common limitations when embarking on a study. Limitations can occur in relation to the methods you apply or the research process you design. They could also be connected to you as the researcher.

Methodology limitations

Not having access to data or reliable information can impact the methods used to facilitate your research. A lack of data or reliability may limit the parameters of your study area and the extent of your exploration.

Your sample size may also be affected because you won’t have any direction on how big or small it should be and who or what you should include. Having too few participants won’t adequately represent the population or groups of people needed to draw meaningful conclusions.

Research process limitations

The study’s design can impose constraints on the process. For example, as you’re conducting the research, issues may arise that don’t conform to the data collection methodology you developed. You may not realize until well into the process that you should have incorporated more specific questions or comprehensive experiments to generate the data you need to have confidence in your results.

Constraints on resources can also have an impact. Being limited on participants or participation incentives may limit your sample sizes. Insufficient tools, equipment, and materials to conduct a thorough study may also be a factor.

Common researcher limitations

Here are some of the common researcher limitations you may encounter:

Time: some research areas require multi-year longitudinal approaches, but you might not be able to dedicate that much time. Imagine you want to measure how much memory a person loses as they age. This may involve conducting multiple tests on a sample of participants over 20–30 years, which may be impossible.

Bias: researchers can consciously or unconsciously apply bias to their research. Biases can contribute to relying on research sources and methodologies that will only support your beliefs about the research you’re embarking on. You might also omit relevant issues or participants from the scope of your study because of your biases.

Limited access to data : you may need to pay to access specific databases or journals that would be helpful to your research process. You might also need to gain information from certain people or organizations but have limited access to them. These cases require readjusting your process and explaining why your findings are still reliable.

• Why is it important to identify limitations?

Identifying limitations adds credibility to research and provides a deeper understanding of how you arrived at your conclusions.

Constraints may have prevented you from collecting specific data or information you hoped would prove or disprove your hypothesis or provide a more comprehensive understanding of your research topic.

However, identifying the limitations contributing to your conclusions can inspire further research efforts that help gather more substantial information and data.

• Where to put limitations in a research paper

A research paper is broken up into different sections that appear in the following order:

Introduction

Methodology

The discussion portion of your paper explores your findings and puts them in the context of the overall research. Either place research limitations at the beginning of the discussion section before the analysis of your findings or at the end of the section to indicate that further research needs to be pursued.

What not to include in the limitations section

Evidence that doesn’t support your hypothesis is not a limitation, so you shouldn’t include it in the limitation section. Don’t just list limitations and their degree of severity without further explanation.

• How to present limitations

You’ll want to present the limitations of your study in a way that doesn’t diminish the validity of your research and leave the reader wondering if your results and conclusions have been compromised.

Include only the limitations that directly relate to and impact how you addressed your research questions. Following a specific format enables the reader to develop an understanding of the weaknesses within the context of your findings without doubting the quality and integrity of your research.

Identify the limitations specific to your study

You don’t have to identify every possible limitation that might have occurred during your research process. Only identify those that may have influenced the quality of your findings and your ability to answer your research question.

Explain study limitations in detail

This explanation should be the most significant portion of your limitation section.

Link each limitation with an interpretation and appraisal of their impact on the study. You’ll have to evaluate and explain whether the error, method, or validity issues influenced the study’s outcome and how.

Propose a direction for future studies and present alternatives

In this section, suggest how researchers can avoid the pitfalls you experienced during your research process.

If an issue with methodology was a limitation, propose alternate methods that may help with a smoother and more conclusive research project . Discuss the pros and cons of your alternate recommendation.

Describe steps taken to minimize each limitation

You probably took steps to try to address or mitigate limitations when you noticed them throughout the course of your research project. Describe these steps in the limitation section.

• Limitation example

“Approaches like stem cell transplantation and vaccination in AD [Alzheimer’s disease] work on a cellular or molecular level in the laboratory. However, translation into clinical settings will remain a challenge for the next decade.”

The authors are saying that even though these methods showed promise in helping people with memory loss when conducted in the lab (in other words, using animal studies), more studies are needed. These may be controlled clinical trials, for example. 

However, the short life span of stem cells outside the lab and the vaccination’s severe inflammatory side effects are limitations. Researchers won’t be able to conduct clinical trials until these issues are overcome.

• How to overcome limitations in research

You’ve already started on the road to overcoming limitations in research by acknowledging that they exist. However, you need to ensure readers don’t mistake weaknesses for errors within your research design.

To do this, you’ll need to justify and explain your rationale for the methods, research design, and analysis tools you chose and how you noticed they may have presented limitations.

Your readers need to know that even when limitations presented themselves, you followed best practices and the ethical standards of your field. You didn’t violate any rules and regulations during your research process.

You’ll also want to reinforce the validity of your conclusions and results with multiple sources, methods, and perspectives. This prevents readers from assuming your findings were derived from a single or biased source.

• Learning and improving starts with limitations in research

Dealing with limitations with transparency and integrity helps identify areas for future improvements and developments. It’s a learning process, providing valuable insights into how you can improve methodologies, expand sample sizes, or explore alternate approaches to further support the validity of your findings.

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How to Write Limitations of the Study (with examples)

This blog emphasizes the importance of recognizing and effectively writing about limitations in research. It discusses the types of limitations, their significance, and provides guidelines for writing about them, highlighting their role in advancing scholarly research.

Updated on August 24, 2023

No matter how well thought out, every research endeavor encounters challenges. There is simply no way to predict all possible variances throughout the process.

These uncharted boundaries and abrupt constraints are known as limitations in research . Identifying and acknowledging limitations is crucial for conducting rigorous studies. Limitations provide context and shed light on gaps in the prevailing inquiry and literature.

This article explores the importance of recognizing limitations and discusses how to write them effectively. By interpreting limitations in research and considering prevalent examples, we aim to reframe the perception from shameful mistakes to respectable revelations.

What are limitations in research?

In the clearest terms, research limitations are the practical or theoretical shortcomings of a study that are often outside of the researcher’s control . While these weaknesses limit the generalizability of a study’s conclusions, they also present a foundation for future research.

Sometimes limitations arise from tangible circumstances like time and funding constraints, or equipment and participant availability. Other times the rationale is more obscure and buried within the research design. Common types of limitations and their ramifications include:

• Theoretical: limits the scope, depth, or applicability of a study.
• Methodological: limits the quality, quantity, or diversity of the data.
• Empirical: limits the representativeness, validity, or reliability of the data.
• Analytical: limits the accuracy, completeness, or significance of the findings.
• Ethical: limits the access, consent, or confidentiality of the data.

Regardless of how, when, or why they arise, limitations are a natural part of the research process and should never be ignored . Like all other aspects, they are vital in their own purpose.

Why is identifying limitations important?

Whether to seek acceptance or avoid struggle, humans often instinctively hide flaws and mistakes. Merging this thought process into research by attempting to hide limitations, however, is a bad idea. It has the potential to negate the validity of outcomes and damage the reputation of scholars.

By identifying and addressing limitations throughout a project, researchers strengthen their arguments and curtail the chance of peer censure based on overlooked mistakes. Pointing out these flaws shows an understanding of variable limits and a scrupulous research process.

Showing awareness of and taking responsibility for a project’s boundaries and challenges validates the integrity and transparency of a researcher. It further demonstrates the researchers understand the applicable literature and have thoroughly evaluated their chosen research methods.

Presenting limitations also benefits the readers by providing context for research findings. It guides them to interpret the project’s conclusions only within the scope of very specific conditions. By allowing for an appropriate generalization of the findings that is accurately confined by research boundaries and is not too broad, limitations boost a study’s credibility .

Limitations are true assets to the research process. They highlight opportunities for future research. When researchers identify the limitations of their particular approach to a study question, they enable precise transferability and improve chances for reproducibility. 

Simply stating a project’s limitations is not adequate for spurring further research, though. To spark the interest of other researchers, these acknowledgements must come with thorough explanations regarding how the limitations affected the current study and how they can potentially be overcome with amended methods.

How to write limitations

Typically, the information about a study’s limitations is situated either at the beginning of the discussion section to provide context for readers or at the conclusion of the discussion section to acknowledge the need for further research. However, it varies depending upon the target journal or publication guidelines. 

Don’t hide your limitations

It is also important to not bury a limitation in the body of the paper unless it has a unique connection to a topic in that section. If so, it needs to be reiterated with the other limitations or at the conclusion of the discussion section. Wherever it is included in the manuscript, ensure that the limitations section is prominently positioned and clearly introduced.

While maintaining transparency by disclosing limitations means taking a comprehensive approach, it is not necessary to discuss everything that could have potentially gone wrong during the research study. If there is no commitment to investigation in the introduction, it is unnecessary to consider the issue a limitation to the research. Wholly consider the term ‘limitations’ and ask, “Did it significantly change or limit the possible outcomes?” Then, qualify the occurrence as either a limitation to include in the current manuscript or as an idea to note for other projects. 

Writing limitations

Once the limitations are concretely identified and it is decided where they will be included in the paper, researchers are ready for the writing task. Including only what is pertinent, keeping explanations detailed but concise, and employing the following guidelines is key for crafting valuable limitations:

1) Identify and describe the limitations : Clearly introduce the limitation by classifying its form and specifying its origin. For example:

• An unintentional bias encountered during data collection
• An intentional use of unplanned post-hoc data analysis

2) Explain the implications : Describe how the limitation potentially influences the study’s findings and how the validity and generalizability are subsequently impacted. Provide examples and evidence to support claims of the limitations’ effects without making excuses or exaggerating their impact. Overall, be transparent and objective in presenting the limitations, without undermining the significance of the research. 

3) Provide alternative approaches for future studies : Offer specific suggestions for potential improvements or avenues for further investigation. Demonstrate a proactive approach by encouraging future research that addresses the identified gaps and, therefore, expands the knowledge base.

Whether presenting limitations as an individual section within the manuscript or as a subtopic in the discussion area, authors should use clear headings and straightforward language to facilitate readability. There is no need to complicate limitations with jargon, computations, or complex datasets.

Examples of common limitations

Limitations are generally grouped into two categories , methodology and research process .

Methodology limitations

Methodology may include limitations due to:

• Sample size
• Lack of available or reliable data
• Lack of prior research studies on the topic
• Measure used to collect the data
• Self-reported data

The researcher is addressing how the large sample size requires a reassessment of the measures used to collect and analyze the data.

Research process limitations

Limitations during the research process may arise from:

• Access to information
• Longitudinal effects
• Cultural and other biases
• Language fluency
• Time constraints

The author is pointing out that the model’s estimates are based on potentially biased observational studies.

Final thoughts

Successfully proving theories and touting great achievements are only two very narrow goals of scholarly research. The true passion and greatest efforts of researchers comes more in the form of confronting assumptions and exploring the obscure.

In many ways, recognizing and sharing the limitations of a research study both allows for and encourages this type of discovery that continuously pushes research forward. By using limitations to provide a transparent account of the project's boundaries and to contextualize the findings, researchers pave the way for even more robust and impactful research in the future.

Charla Viera, MS

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Challenging the limits of legal research

December 12-13, 2016 - Aarhus University, Department of Law

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Aarhus University, Department of Law

Either because of the chosen research topics, the applied methods, or the utilized sources a large part of contemporary legal scholarship challenges our traditional understanding of legal research as purely ‘the stringent application of legal research methods on sources of law to answer legal questions’.

First of all , in the complex and increasingly globalized world legal research questions can increasingly contain other than legal considerations, e.g. economic, sociological, psychological just to name a few. These new considerations make it necessary to go beyond the interpretation of legal sources and pertain to, for example, the effects of soft law sources, the use of non-legal considerations in law-making, or the use of an interplay between semi-legal instruments and social or market mechanisms in regulation.   Secondly , some legal questions may be better answered using less common legal methods or methods borrowed from other academic areas.   Finally , when we speak of sources of law, it is presumed that we have a clear idea about what law is. However, with the transnationalization of personal and business relationships, among other things, the access to different sources of information online, and the trend towards legal pluralism, the definition of law, and thus also delimitation of legal sources becomes blurred.

The course will thus focus on expanding the boundaries of legal research through considering research questions on or beyond the limits of legal research, through applying less common research methods on traditional legal questions, and through using non-traditional sources of law and information to augment legal research.

The purpose of this course is to:

• engage in an academic discussion and challenge the students’ ideas about the limits of legal research and assess the participants’ projects in relation to those limits;
• introduce the participants to some of the research methods and sources less commonly used in legal research that can help students approach research topics on the limits of legal research and beyond, or that can enhance the quality of their legal research;
• help PhD students to fine-tune and nuance their research questions in the light of what is possible using different traditional and less common methods and sources of law and information;
• help the students make methodological choices that facilitate answering their research questions while maintaining a sound research framework.

Learning objectives

After participating in the course, the students will be able to:

• explain whether and how their projects challenge the limits of traditional legal research;
• choose appropriate methods and sources for projects at the limits of legal research;
• justify the methodological choices they make to answer their research questions; and
• assess the relevance and legal validity of different sources of law and information used in their projects.

Preparation

The participants are required to send a max 3 page summary of their research project by 1st December 2016. As part of the summary students are required to analyze whether and how their project challenges the limits of legal research, the description of the chosen (or contemplated) research methods and justification of those methods.

Ca. 200 pages of reading material will be assigned for the course, including specific questions to some of the readings. These will be discussed in the different sessions.

The students are required to read all the project summaries and the selected reading materials. Each participant is required to analyze and comment on the summary of a peer assigned to them.

Registration

Please register with Cita Kristensen by e-mail [email protected] before November 18/25, 2016.

In case you have questions regarding the content and assignments of the course please contact the course coordinators.

Course organisers

International and Transnational Tendencies in Law (INTRAlaw), Department of Law, Aarhus University ( http://law.au.dk/forskning/forskergrupper/intralaw/ )

Corporate Social Responsibility Legal Research Network ( http://law.au.dk/forskning/projekter/csr-lrn/ )

Course coordinators

Daniel Gergely Szabo, Postdoctoral fellow, Department of Law, Aarhus University, [email protected]

Katerina Peterkova, Postdoctoral fellow/assistant professor, INTRAlaw, Department of Law, Aarhus University, [email protected]

Beate Sjåfjell, Professor, Department of Private Law, Oslo University

Thomas Neumann, Associate Professor, Department of Law, Aalborg University

4-Step Legal Research Process

• The 4-Step Process
• Step 1: Issue Analysis
• Dictionaries
• Encyclopedias
• American Law Reports
• Law Journals
• Restatements
• Practice Aids and Form Books
• Step 3: Codified Law
• Step 4: Case Law

Step 2: Secondary Sources

           Step 2 involves searching for relevant secondary sources , which are sources that provide background information, context, and expert commentary on the legal issues involved. These sources, such as legal encyclopedias, treatises, law review articles, and practice guides, offer insights that help to clarify complex issues and guide researchers toward the primary sources of law, such as statutes and case law, that are most relevant to their inquiry.

Benefits of Secondary Sources

There are multiple reasons legal researchers should seek out relevant secondary sources: 

1. Secondary sources provide background info and help explain the law.

Secondary sources provide an overview of how statutes, regulations, case law, and other authority interface together with your legal issue.

2. Secondary sources lead you to relevant primary sources. 

Secondary sources will include citations to primary authority on which you can rely (but see Limitations below). Depending on the source, you may find citations to primary authority that is binding in your jurisdiction.

Limitations of Secondary Sources

1. Secondary sources generally provide a broad overview and may not include everything you need for your research.

Instead of relying solely on the secondary source as a source, go to the relevant citation's source for more information.

2. Secondary sources can be outdated and may not address all relevant sources. 

Although secondary sources are updated regularly, law can always change before an update. Check the date of any secondary source. Check any primary sources cited to ensure they are still good law.

Do not rely solely on a secondary source. Always check the primary source material!

Evaluating Secondary Sources

Consider what secondary sources may be most helpful in researching your topic. If you are looking at Texas law, make sure you consult Texas encyclopedias, for example. If you are dealing with a long-established area of law, consider consulting Treatises or Hornbooks that will provide you with background into the development of your legal issue.

Each page under the Secondary Sources tabs at left will provide some information on each type of secondary source. Refer to these as you proceed with your research to find new potential sources to consider or when need a refresher on what each source includes.

Ultimately, remember that secondary sources are not law. They discuss and interpret the law, but you should always rely on the actual source material for your research.

Learning Objectives

Students will be able to: 

• Explain the difference between primary and secondary sources 
• Explain the roles and characteristics of various secondary sources 
• Identify which secondary sources are (i) relevant to a legal issue and (ii) may be used to find additional relevant sources
• Find and select relevant secondary sources on Lexis and Westlaw 
• << Previous: Step 1: Issue Analysis
• Next: Dictionaries >>
• Last Updated: Aug 23, 2024 4:06 PM
• URL: https://libguides.law.ttu.edu/c.php?g=1341438

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12 Qualitative Legal Research: A Methodological Discourse

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Qualitative legal research aims to study things in their natural settings, understand and interpret their social realities and provide inputs on various aspects of social life. It focuses on people’s feelings, perceptions, and experiences. It differs from quantitative research in matters of nature of data, theoretical basis, and kinds of tools employed for data collection. The combination of two methods brings synergy. Worthy features of qualitative legal research consist of description of social setting, interpretation of social data, verification of assumptions, and evaluation of policies. Its steps include framing of specific questions, choice of data collection tools, sampling, data collection, analysis, and interpretation. This method allows for a mature understanding of the problematic world.

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Home » Limitations in Research – Types, Examples and Writing Guide

Limitations in Research – Types, Examples and Writing Guide

Table of Contents

Limitations in Research

Limitations in research refer to the factors that may affect the results, conclusions , and generalizability of a study. These limitations can arise from various sources, such as the design of the study, the sampling methods used, the measurement tools employed, and the limitations of the data analysis techniques.

Types of Limitations in Research

Types of Limitations in Research are as follows:

Sample Size Limitations

This refers to the size of the group of people or subjects that are being studied. If the sample size is too small, then the results may not be representative of the population being studied. This can lead to a lack of generalizability of the results.

Time Limitations

Time limitations can be a constraint on the research process . This could mean that the study is unable to be conducted for a long enough period of time to observe the long-term effects of an intervention, or to collect enough data to draw accurate conclusions.

Selection Bias

This refers to a type of bias that can occur when the selection of participants in a study is not random. This can lead to a biased sample that is not representative of the population being studied.

Confounding Variables

Confounding variables are factors that can influence the outcome of a study, but are not being measured or controlled for. These can lead to inaccurate conclusions or a lack of clarity in the results.

Measurement Error

This refers to inaccuracies in the measurement of variables, such as using a faulty instrument or scale. This can lead to inaccurate results or a lack of validity in the study.

Ethical Limitations

Ethical limitations refer to the ethical constraints placed on research studies. For example, certain studies may not be allowed to be conducted due to ethical concerns, such as studies that involve harm to participants.

Examples of Limitations in Research

Some Examples of Limitations in Research are as follows:

Research Title: “The Effectiveness of Machine Learning Algorithms in Predicting Customer Behavior”

Limitations:

• The study only considered a limited number of machine learning algorithms and did not explore the effectiveness of other algorithms.
• The study used a specific dataset, which may not be representative of all customer behaviors or demographics.
• The study did not consider the potential ethical implications of using machine learning algorithms in predicting customer behavior.

Research Title: “The Impact of Online Learning on Student Performance in Computer Science Courses”

• The study was conducted during the COVID-19 pandemic, which may have affected the results due to the unique circumstances of remote learning.
• The study only included students from a single university, which may limit the generalizability of the findings to other institutions.
• The study did not consider the impact of individual differences, such as prior knowledge or motivation, on student performance in online learning environments.

Research Title: “The Effect of Gamification on User Engagement in Mobile Health Applications”

• The study only tested a specific gamification strategy and did not explore the effectiveness of other gamification techniques.
• The study relied on self-reported measures of user engagement, which may be subject to social desirability bias or measurement errors.
• The study only included a specific demographic group (e.g., young adults) and may not be generalizable to other populations with different preferences or needs.

How to Write Limitations in Research

When writing about the limitations of a research study, it is important to be honest and clear about the potential weaknesses of your work. Here are some tips for writing about limitations in research:

• Identify the limitations: Start by identifying the potential limitations of your research. These may include sample size, selection bias, measurement error, or other issues that could affect the validity and reliability of your findings.
• Be honest and objective: When describing the limitations of your research, be honest and objective. Do not try to minimize or downplay the limitations, but also do not exaggerate them. Be clear and concise in your description of the limitations.
• Provide context: It is important to provide context for the limitations of your research. For example, if your sample size was small, explain why this was the case and how it may have affected your results. Providing context can help readers understand the limitations in a broader context.
• Discuss implications : Discuss the implications of the limitations for your research findings. For example, if there was a selection bias in your sample, explain how this may have affected the generalizability of your findings. This can help readers understand the limitations in terms of their impact on the overall validity of your research.
• Provide suggestions for future research : Finally, provide suggestions for future research that can address the limitations of your study. This can help readers understand how your research fits into the broader field and can provide a roadmap for future studies.

Purpose of Limitations in Research

There are several purposes of limitations in research. Here are some of the most important ones:

• To acknowledge the boundaries of the study : Limitations help to define the scope of the research project and set realistic expectations for the findings. They can help to clarify what the study is not intended to address.
• To identify potential sources of bias: Limitations can help researchers identify potential sources of bias in their research design, data collection, or analysis. This can help to improve the validity and reliability of the findings.
• To provide opportunities for future research: Limitations can highlight areas for future research and suggest avenues for further exploration. This can help to advance knowledge in a particular field.
• To demonstrate transparency and accountability: By acknowledging the limitations of their research, researchers can demonstrate transparency and accountability to their readers, peers, and funders. This can help to build trust and credibility in the research community.
• To encourage critical thinking: Limitations can encourage readers to critically evaluate the study’s findings and consider alternative explanations or interpretations. This can help to promote a more nuanced and sophisticated understanding of the topic under investigation.

When to Write Limitations in Research

Limitations should be included in research when they help to provide a more complete understanding of the study’s results and implications. A limitation is any factor that could potentially impact the accuracy, reliability, or generalizability of the study’s findings.

It is important to identify and discuss limitations in research because doing so helps to ensure that the results are interpreted appropriately and that any conclusions drawn are supported by the available evidence. Limitations can also suggest areas for future research, highlight potential biases or confounding factors that may have affected the results, and provide context for the study’s findings.

Generally, limitations should be discussed in the conclusion section of a research paper or thesis, although they may also be mentioned in other sections, such as the introduction or methods. The specific limitations that are discussed will depend on the nature of the study, the research question being investigated, and the data that was collected.

Examples of limitations that might be discussed in research include sample size limitations, data collection methods, the validity and reliability of measures used, and potential biases or confounding factors that could have affected the results. It is important to note that limitations should not be used as a justification for poor research design or methodology, but rather as a way to enhance the understanding and interpretation of the study’s findings.

Importance of Limitations in Research

Here are some reasons why limitations are important in research:

• Enhances the credibility of research: Limitations highlight the potential weaknesses and threats to validity, which helps readers to understand the scope and boundaries of the study. This improves the credibility of research by acknowledging its limitations and providing a clear picture of what can and cannot be concluded from the study.
• Facilitates replication: By highlighting the limitations, researchers can provide detailed information about the study’s methodology, data collection, and analysis. This information helps other researchers to replicate the study and test the validity of the findings, which enhances the reliability of research.
• Guides future research : Limitations provide insights into areas for future research by identifying gaps or areas that require further investigation. This can help researchers to design more comprehensive and effective studies that build on existing knowledge.
• Provides a balanced view: Limitations help to provide a balanced view of the research by highlighting both strengths and weaknesses. This ensures that readers have a clear understanding of the study’s limitations and can make informed decisions about the generalizability and applicability of the findings.

Advantages of Limitations in Research

Here are some potential advantages of limitations in research:

• Focus : Limitations can help researchers focus their study on a specific area or population, which can make the research more relevant and useful.
• Realism : Limitations can make a study more realistic by reflecting the practical constraints and challenges of conducting research in the real world.
• Innovation : Limitations can spur researchers to be more innovative and creative in their research design and methodology, as they search for ways to work around the limitations.
• Rigor : Limitations can actually increase the rigor and credibility of a study, as researchers are forced to carefully consider the potential sources of bias and error, and address them to the best of their abilities.
• Generalizability : Limitations can actually improve the generalizability of a study by ensuring that it is not overly focused on a specific sample or situation, and that the results can be applied more broadly.

About the author

Muhammad Hassan

Researcher, Academic Writer, Web developer

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• Introduction to Secondary Sources
• Legal Encyclopedias
• Textbooks, Treatises, and Other Books
• Journal Literature
• Legal Dictionaries & Words and Phrases
• Non-Traditional Secondary Sources
• How Does GenAI Work?
• Creating Prompts for Legal GenAI
• Using and Citing AI-generated Content
• Introduction to Legislation
• The Legislative Process
• How Laws are Published
• Researching Bills
• Researching Statutes
• Researching Regulations
• Noting Up Legislation
• Introduction to Case Law
• How Cases are Published
• Finding a Known Case
• Finding Cases on a Topic
• Noting Up Case Law
• Introduction to English Law
• Secondary Sources
• English Legislation
• English Case Law
• English Legal Research Guides
• Introduction to American Law
• US Federal and State Legislation
• American Case Law
• American Legal Research Guides
• Introduction to International Law
• Primary Sources
• International Legal Research Guides
• Introduction to Foreign Law
• Foreign Legal Research Guides
• Canadian Legal Research Guides
• Indigenous Legal Research Guides
• Empirical Legal Research Guides
• Other Legal Research Methods
• Citation Style Guides

While Generative AI can be a useful tool, it should never be your  only  tool for legal research and writing.

You should always evaluate and assess AI-generated content to ensure it is accurate before relying on it, and then take additional measures to supplement your research.

Use the following steps:

• Assess system limitations
• Verify all generated information
• Compare with other sources
• Update content for currency
• Take steps to address bias

1. Assess System Limitations

It can be difficult to assess AI-generated output without at least some understanding of how the system works. This will help you assess the strengths and limitations of the output. 

One way to start thinking about a system's limitations is to use the 3 layers method. Output is only the last layer of a system but it is the most obvious one—in reality, the input and analysis layers have major effects on the quality of the output.

►See How Does GenAI Work?  for more about the 3 layers model.

For example, if the input layer is not focused on Canadian jurisdiction (e.g. includes American content, as is the case with most generic tools), the output may reflect a different jurisdiction or blend information from multiple jurisdictions. 

The following questions can help you reflect on the 3 layers of a genAI tool.

►Source: Christa Bracci & Erica Friesen,  Legal Research Online   (eCampus Ontario Open Library, 2024).

2. Verify Information

AI-generated text is not a substitute for reading the primary sources (case law and legislation) on your topic. 

This is true for any secondary source as well, but is especially dangerous for AI-generated content because they can include factually inaccurate information (often called  hallucinations ). 

Each AI system treats source citation differently—some may provide a link to a case, while others may only reference a style of cause. This can make it difficult to track down the source because of the lack of information needed to verify which case it is referencing. Never assume a source exists if you cannot find it.

For any sources referenced by a genAI system:

• Check that the source actually exists by finding a copy (e.g. finding the full-text of a case in Westlaw, Lexis, or CanLII). 
• Read each source carefully to ensure that the genAI tool has accurately summarized it (e.g. not misrepresented the case or summarized a dissent). 
• Take all steps you would normally take when researching case law or legislation, such as noting up. Don't assume the system will do any traditional legal research steps for you. For instance, it may summarize a case that was later overturned by a higher court or received negative treatment. 

►See Legislation Research Stage and Case Law Research Stage  for more information about the steps involved in researching primary sources. 

3. Compare with Other Sources

You should never rely on  only  AI-generated content to answer a legal research question.

Even if you are able to identify and correct any hallucinations, the results may be incomplete. For example, a genAI tool might mislead you by:

• citing a number of relevant cases but not the  leading case on an issue or binding  cases from your jurisdiction;
• citing cases but neglecting to mention that there is applicable legislation; or
• answering your question in a narrow sense without alerting you to additional factors that are relevant.

You should always consult additional, human-authored sources to confirm that you have correct information that represents a fullsome approach to your legal research question.

►See the chapters on Secondary Sources , Legislation , and Case Law for detailed information on finding sources.

4. Update for Currency

In Step 1 , you assessed the genAI tool's limitations, including the crucial question of how  current or  up-to-date the input layer's dataset is.

Some genAI tools have a specific knowledge cut off date, such as ChatGPT's various models. This means that any legal answer provided by the system will not necessarily reflect current law.

Other systems, like Lexis+ AI, are hooked up to a broader platform's dataset, which means that they run on the most recent content available on that platform. However, even these systems have currency limitations. For example, Lexis' case databases are updated on a daily basis, but their legislation can often be a week or two behind the state of the law. The result for the researcher is that any legislative summary generated by Lexis+ AI will need to be updated to ensure no amendments have passed since Lexis last updated that statute in their system.

If you know the currency limitations of your genAI tool's input layer, you can simply note up case law and legislation as you would normally in the course of your research. If currency information is not available, do not assume that it is up-to-date information and focus on conducting additional research.

►See Noting Up Case Law and Noting Up Legislation for more information.

5. Take Steps to Address Bias

Generative AI is necessarily biased in that it reproduces patterns in language that already exist in an underlying dataset. Pattern projection is useful in law because the field relies on precedent, but it can also perpetuate bias in several ways.

Bias has long been a known issue with all types of AI-driven tools. One infamous example is risk assessment software COMPAS, which was found to predict greater recidivism for Black defendants than White defendants.  

►See Julia Angwin et al, "Machine Bias" (23 May 2016)  ProPublica  for more information on COMPAS. 

Think carefully about the following types of bias that may be present in your output:

Bias can be incredibly challenging to counteract in research of any kind, but awareness and reflectivity will allow you to take steps to counteract any biases with additional sources, such as those representing diverse perspectives.

►See the chapters on  Secondary Sources ,  Legislation , and  Case Law  for more information on conducting additional research.

• << Previous: Creating Prompts for Legal GenAI
• Next: Using and Citing AI-generated Content >>

Evaluating GenAI Output

• Last Updated: Aug 20, 2024 11:10 AM
• Subjects: Law
• Tags: case law , common law , law , legal research , legal skills , legislation , regulations , statutes

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August 19, 2024

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Study explains why laws are written in an incomprehensible style

by Massachusetts Institute of Technology

Legal documents are notoriously difficult to understand, even for lawyers. This raises the question: Why are these documents written in a style that makes them so impenetrable?

MIT cognitive scientists believe they have uncovered the answer to that question. Just as "magic spells" use special rhymes and archaic terms to signal their power, the convoluted language of legalese acts to convey a sense of authority, they conclude.

In a study appearing in the Proceedings of the National Academy of Sciences , the researchers found that even non-lawyers use this type of language when asked to write laws.

"People seem to understand that there's an implicit rule that this is how laws should sound, and they write them that way," says Edward Gibson, an MIT professor of brain and cognitive sciences and the senior author of the study.

Eric Martinez Ph.D. is the lead author of the study. Francis Mollica, a lecturer at the University of Melbourne, is also an author of the paper.

Casting a legal spell

Gibson's research group has been studying the unique characteristics of legalese since 2020, when Martinez came to MIT after earning a law degree from Harvard Law School. In a 2022 study , Gibson, Martinez, and Mollica analyzed legal contracts totaling about 3.5 million words, comparing them with other types of writing, including movie scripts, newspaper articles, and academic papers.

That analysis revealed that legal documents frequently have long definitions inserted in the middle of sentences—a feature known as "center-embedding." Linguists have previously found that this kind of structure can make text much more difficult to understand.

"Legalese somehow has developed this tendency to put structures inside other structures, in a way which is not typical of human languages ," Gibson says.

In a follow-up study published in 2023, the researchers found that legalese also makes documents more difficult for lawyers to understand. Lawyers tended to prefer plain English versions of documents, and they rated those versions to be just as enforceable as traditional legal documents.

"Lawyers also find legalese to be unwieldy and complicated," Gibson says. "Lawyers don't like it, laypeople don't like it, so the point of this current paper was to try and figure out why they write documents this way."

The researchers had a couple of hypotheses for why legalese is so prevalent. One was the "copy and edit hypothesis," which suggests that legal documents begin with a simple premise, and then additional information and definitions are inserted into already existing sentences, creating complex center-embedded clauses.

"We thought it was plausible that what happens is you start with an initial draft that's simple, and then later you think of all these other conditions that you want to include. And the idea is that once you've started, it's much easier to center-embed that into the existing provision," says Martinez, who is now a fellow and instructor at the University of Chicago Law School.

However, the findings ended up pointing toward a different hypothesis, the so-called "magic spell hypothesis." Just as magic spells are written with a distinctive style that sets them apart from everyday language, the convoluted style of legal language appears to signal a special kind of authority, the researchers say.

"In English culture, if you want to write something that's a magic spell, people know that the way to do that is you put a lot of old-fashioned rhymes in there. We think maybe center-embedding is signaling legalese in the same way," Gibson says.

In this study, the researchers asked about 200 non-lawyers (native speakers of English living in the United States, who were recruited through a crowdsourcing site called Prolific), to write two types of texts. In the first task, people were told to write laws prohibiting crimes such as drunk driving, burglary, arson, and drug trafficking. In the second task, they were asked to write stories about those crimes.

To test the copy and edit hypothesis, half of the participants were asked to add additional information after they wrote their initial law or story.

The researchers found that all of the subjects wrote laws with center-embedded clauses, regardless of whether they wrote the law all at once or were told to write a draft and then add to it later. And, when they wrote stories related to those laws, they wrote in much plainer English, regardless of whether they had to add information later.

"When writing laws, they did a lot of center-embedding regardless of whether or not they had to edit it or write it from scratch. And in that narrative text, they did not use center-embedding in either case," Martinez says.

In another set of experiments, about 80 participants were asked to write laws, as well as descriptions that would explain those laws to visitors from another country. In these experiments, participants again used center-embedding for their laws, but not for the descriptions of those laws.

The origins of legalese

Gibson's lab is now investigating the origins of center-embedding in legal documents. Early American laws were based on British law, so the researchers plan to analyze British laws to see if they feature the same kind of grammatical construction. And going back much further, they plan to analyze whether center-embedding is found in the Hammurabi Code, the earliest known set of laws, which dates to around 1750 BC.

"There may be just a stylistic way of writing from back then, and if it was seen as successful, people would use that style in other languages," Gibson says. "I would guess that it's an accidental property of how the laws were written the first time, but we don't know that yet."

The researchers hope that their work, which has identified specific aspects of legal language that make it more difficult to understand, will motivate lawmakers to try to make laws more comprehensible.

Efforts to write legal documents in plainer language date to at least the 1970s, when President Richard Nixon declared that federal regulations should be written in "layman's terms." However, legal language has changed very little since that time.

"We have learned only very recently what it is that makes legal language so complicated, and therefore I am optimistic about being able to change it," Gibson says.

Journal information: Proceedings of the National Academy of Sciences

Provided by Massachusetts Institute of Technology

This story is republished courtesy of MIT News ( web.mit.edu/newsoffice/ ), a popular site that covers news about MIT research, innovation and teaching.

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MIT study explains why laws are written in an incomprehensible style

Press contact :.

Previous image Next image

Legal documents are notoriously difficult to understand, even for lawyers. This raises the question: Why are these documents written in a style that makes them so impenetrable?

MIT cognitive scientists believe they have uncovered the answer to that question. Just as “magic spells” use special rhymes and archaic terms to signal their power, the convoluted language of legalese acts to convey a sense of authority, they conclude.

In a study appearing this week in the journal of the Proceedings of the National Academy of Sciences , the researchers found that even non-lawyers use this type of language when asked to write laws.

“People seem to understand that there’s an implicit rule that this is how laws should sound, and they write them that way,” says Edward Gibson, an MIT professor of brain and cognitive sciences and the senior author of the study.

Eric Martinez PhD ’24 is the lead author of the study. Francis Mollica, a lecturer at the University of Melbourne, is also an author of the paper .

Casting a legal spell

Gibson’s research group has been studying the unique characteristics of legalese since 2020, when Martinez came to MIT after earning a law degree from Harvard Law School. In a 2022 study , Gibson, Martinez, and Mollica analyzed legal contracts totaling about 3.5 million words, comparing them with other types of writing, including movie scripts, newspaper articles, and academic papers.

That analysis revealed that legal documents frequently have long definitions inserted in the middle of sentences — a feature known as “center-embedding.” Linguists have previously found that this kind of structure can make text much more difficult to understand.

“Legalese somehow has developed this tendency to put structures inside other structures, in a way which is not typical of human languages,” Gibson says.

In a follow-up study published in 2023, the researchers found that legalese also makes documents more difficult for lawyers to understand. Lawyers tended to prefer plain English versions of documents, and they rated those versions to be just as enforceable as traditional legal documents.

“Lawyers also find legalese to be unwieldy and complicated,” Gibson says. “Lawyers don’t like it, laypeople don’t like it, so the point of this current paper was to try and figure out why they write documents this way.”

The researchers had a couple of hypotheses for why legalese is so prevalent. One was the “copy and edit hypothesis,” which suggests that legal documents begin with a simple premise, and then additional information and definitions are inserted into already existing sentences, creating complex center-embedded clauses.

“We thought it was plausible that what happens is you start with an initial draft that’s simple, and then later you think of all these other conditions that you want to include. And the idea is that once you’ve started, it’s much easier to center-embed that into the existing provision,” says Martinez, who is now a fellow and instructor at the University of Chicago Law School.

However, the findings ended up pointing toward a different hypothesis, the so-called “magic spell hypothesis.” Just as magic spells are written with a distinctive style that sets them apart from everyday language, the convoluted style of legal language appears to signal a special kind of authority, the researchers say.

“In English culture, if you want to write something that’s a magic spell, people know that the way to do that is you put a lot of old-fashioned rhymes in there. We think maybe center-embedding is signaling legalese in the same way,” Gibson says.

In this study, the researchers asked about 200 non-lawyers (native speakers of English living in the United States, who were recruited through a crowdsourcing site called Prolific), to write two types of texts. In the first task, people were told to write laws prohibiting crimes such as drunk driving, burglary, arson, and drug trafficking. In the second task, they were asked to write stories about those crimes.

To test the copy and edit hypothesis, half of the participants were asked to add additional information after they wrote their initial law or story. The researchers found that all of the subjects wrote laws with center-embedded clauses, regardless of whether they wrote the law all at once or were told to write a draft and then add to it later. And, when they wrote stories related to those laws, they wrote in much plainer English, regardless of whether they had to add information later.

“When writing laws, they did a lot of center-embedding regardless of whether or not they had to edit it or write it from scratch. And in that narrative text, they did not use center-embedding in either case,” Martinez says.

In another set of experiments, about 80 participants were asked to write laws, as well as descriptions that would explain those laws to visitors from another country. In these experiments, participants again used center-embedding for their laws, but not for the descriptions of those laws.

The origins of legalese

Gibson’s lab is now investigating the origins of center-embedding in legal documents. Early American laws were based on British law, so the researchers plan to analyze British laws to see if they feature the same kind of grammatical construction. And going back much farther, they plan to analyze whether center-embedding is found in the Hammurabi Code, the earliest known set of laws, which dates to around 1750 BC.

“There may be just a stylistic way of writing from back then, and if it was seen as successful, people would use that style in other languages,” Gibson says. “I would guess that it’s an accidental property of how the laws were written the first time, but we don’t know that yet.”

The researchers hope that their work, which has identified specific aspects of legal language that make it more difficult to understand, will motivate lawmakers to try to make laws more comprehensible. Efforts to write legal documents in plainer language date to at least the 1970s, when President Richard Nixon declared that federal regulations should be written in “layman’s terms.” However, legal language has changed very little since that time.

“We have learned only very recently what it is that makes legal language so complicated, and therefore I am optimistic about being able to change it,” Gibson says. 

Share this news article on:

Press mentions.

Researchers at MIT have found that the use of legalese in writing “to assert authority over those less versed in such language,” reports Noor Al-Sibai for Futurism . “By studying this cryptic take on the English language, the researchers are hoping to make legal documents much easier to read in the future,” explains Al-Sibai.

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Emerging Issues Related to Personal Protective Equipment

The Fire Safety Research Institute (FSRI), part of UL Research Institutes, seeks to investigate emerging issues related to firefighter personal protective equipment (PPE). This project addresses the evolving challenges that firefighters face, particularly in relation to chemical and thermal hazards.

Understanding the Tradeoffs Associated with PPE Technology Advancements

There has been substantial research to understand the chemical and thermal environment of the fireground. Knowledge of the thermal environment firefighters operate in has driven advancements in turnout gear and in the facepiece of their self-contained breathing apparatus (SCBA). Following research characterizing the chemical environment, occupational exposure as a firefighter was officially recognized as carcinogenic in 2022. In response to this knowledge, PPE technology has advanced to better protect firefighters against these exposure risks. These advancements are often aimed at shielding firefighters from burn injuries or improving chemical protection. 

However, these developments in protective properties come with tradeoffs. For example, turnout gear providing better protection against chemicals may lack breathability and lead to heat stress. In addition, if firefighters’ turnout gear protects them from hotter conditions, they may end up operating in environments that exceed the heat tolerance of their SCBA facepiece. Firefighters deserve assurance that their gear can handle the heat, chemicals, and other evolving hazards they encounter on the job. 

Evaluating PPE Technology Advancements

This project aims to understand the benefits and limitations associated with advancements in PPE technology. More specifically, it seeks to:

• further characterize the chemical and thermal hazards that firefighters face; 
• evaluate how well PPE performs under fireground conditions and against emerging hazards like lithium-ion batteries;
• quantify PPE contamination and examine the best methods to clean and return it to service; and
• explore other benefits and potential drawbacks of recent advancements in PPE. 

The project is comprised of four experimental stages to meet these objectives:

• Electric vehicle (EV) fire contamination: Expose turnout gear swatches to EV fires and characterize the chemical contamination of the swatches.
• Laundering and cleaning effectiveness for EV fire contamination: Assess the effectiveness of various cleaning techniques (e.g., traditional laundering versus liquid CO2 cleaning) on the contaminated PPE swatches from the EV fire experiment.
• Traditional fuel-based vehicle fire contamination: Expose PPE swatches to a traditional fuel-based vehicle fire and characterize the resulting chemical contamination.
• Laundering and cleaning effectiveness for traditional vehicle fire contamination: Evaluate the effectiveness of different laundering and cleaning techniques on the contaminated turnout gear swatches from the fuel-based vehicle fire experiment.

The findings of this project aid the fire service in making informed decisions on PPE selection that best suits their needs, and implementing cleaning protocols for optimal performance. Findings also shape design and performance requirements that support further advancements in PPE. 

This project builds on FSRI’s previous research on PPE, including the impact of PPE laundering and hood design and critical health issues faced by the fire service . 

Evaluation of self-contained breathing apparatus (SCBA) weight on firefighter stamina, comfort, and postural stability

Thermal degradation of self-contained breathing apparatus facepiece lenses under radiant thermal loads.

Richard Kesler

Published: August 9, 2024

Experiments Enabling the Analysis of Fire Behavior of Electric Vehicles are Completed

Learn about FSRI’s research to understand electric vehicle fire behavior and exposure risks.

Assessing Risks Faced by Firefighters

Learn how FSRI is examining critical fire service health concerns, led by IFSI in partnership with FSRI and NIOSH.

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Suicide Prevention Effects of Extreme Risk Protection Order Laws in Four States

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More than half of suicide deaths in the United States result from self-inflicted firearm injuries. Extreme risk protection order (ERPO) laws in 21 states and the District of Columbia temporarily limit access to firearms for individuals found in a civil court process to pose an imminent risk of harm to themselves or others. Research with large multistate study populations has been lacking to determine effectiveness of these laws. This study assembled records pertaining to 4,583 ERPO respondents in California, Connecticut, Maryland, and Washington. Matched records identified suicide decedents and self-injury method. Researchers applied case fatality rates for each suicide method to estimate nonfatal suicide attempts corresponding to observed deaths. Comparison of counterfactual to observed data patterns yielded estimates of the number of lives saved and number of ERPOs needed to avert one suicide. Estimates varied depending on the assumed probability that a gun owner who attempts suicide will use a gun. Two evidence-based approaches yielded estimates of 17 and 23 ERPOs needed to prevent one suicide. For the subset of 2,850 ERPO respondents with documented suicide concern, comparable estimates were 13 and 18, respectively. This study’s findings add to growing evidence that ERPOs can be an effective and important suicide prevention tool.

• extreme risk protection orders
• gun violence prevention
• red flag laws

More than 800,000 lives were lost to suicide in the United States in the past two decades, over half of them resulting from self-inflicted firearm injuries. 1 A continuing rise in the nation’s suicide rate has coincided with an increase in the proportion of suicides that involve firearms, the most lethal method of intentional self-injury. 2 Interventions that can effectively keep guns out of the hands of people at imminent risk of harm to themselves or others should be a key component of an effective public health effort to reduce the number of these preventable tragedies. 3 , – , 5 That being said, in a nation where private ownership of firearms is commonplace, culturally rooted, and to some extent constitutionally protected, interventions designed to prevent firearm injuries by limiting at-risk individuals’ access to firearms must carefully balance public safety goals with other considerations. 6

In the context of health care encounters, gun safety interventions for individuals at risk of suicide ideally would be voluntary and would engage these individuals in reducing firearm access as part of their treatment plan; options include implementing safe firearm storage, either in the home or out of the home, so that the person of concern no longer has access. Many individuals at high risk of suicide do not come to the attention of health care providers or would not be open to voluntary approaches to reduce lethal means access. To the extent that extreme risk protection orders (ERPOs) can help ensure safety for individuals who pose a risk of intentional self-injury with a firearm, for whatever reason or motivation, these legal tools offer a versatile and promising intervention to prevent suicides. 7

Specifically, an ERPO is an individualized, risk-based, time-limited civil restraining order that, following due process of law, temporarily makes firearms legally inaccessible for the duration of the order, removing guns and prohibiting their purchase for an individual deemed by a court to pose an imminent risk of harm to self or others. 8 For such a person at a time of high risk, an ERPO is designed to foreclose the most lethal method of injury. The question of whether ERPOs actually save lives is not settled. What follows is a report of new empirical evidence from a study of firearm-related suicide and other suicide outcomes in 4,583 individual respondents to ERPOs in four states (California ( n  = 1,386), Connecticut ( n  = 1,407), Maryland ( n  = 1,347), and Washington ( n  = 443)) using matched death records to address the question of whether ERPOs have been effective in preventing suicide deaths.

• Firearm Suicide and the Rationale for ERPOs

Features of the epidemiology of suicide in the United States provide a compelling rationale for ERPOs as an important suicide-prevention tool. Suicides in the United States were on the wane in the 1980s through the 1990s, but the 21st century marked a disturbing reversal of that trend. 1 Although mortality from most other causes declined, the suicide rate climbed by more than 30 percent for the next two decades, reaching a record annual high of nearly 50,000 deaths in 2022. Suicide increased fastest in nonurban areas and among younger people. 1 Suicide now ranks as the second leading cause of death among those aged 10 to 34. 1 Easy access to firearms has played a significant role in the trajectory of the nation’s suicide epidemic. Between 2019 and 2021, when the nation saw a large increase in firearm sales and the number of first-time gun owners, 9 the nonfirearm suicide rate declined whereas the firearm suicide rate increased by eight percent in the population in the United States overall and increased by 18 percent among adolescent to young adult males living in the nonurban South. 1

Many factors may contribute to suicidal acts (neurobiological vulnerabilities, psychological distress, experiences of loss, social pressures and isolation, peer and social media influences, economic strain, and cultural norms), but the enabling factor of access to lethal means often makes the difference between suicidal behavior and suicide mortality. 10 On average, approximately nine out of ten people who attempt suicide survive nonfirearm methods of self-injury, 11 and those who survive are unlikely to die from suicide in a subsequent attempt. 12 In contrast, firearm-involved suicide attempts are rarely survivable; only about one out of ten people survive, 11 and those few who survive are often left with severe disability. 13 These statistics highlight a remarkable public health opportunity to reduce the suicide rate through policies such as ERPO laws that limit access to firearms specifically for persons known to be at risk of suicide.

In 2021, an estimated 12.3 million adults in the United States had serious thoughts of suicide, 1.7 million made a suicide attempt, 14 and just under 50,000 died. 1 Although firearms are involved in only a small proportion of suicide attempts (about 5%), 15 they account for a large proportion of suicide deaths (about 52%). 1 From a public health perspective, then, although it is a difficult long-term challenge to mitigate the deleterious causal factors, both distal and proximal, that incline people to self-injurious behavior, a more immediate and effective way to stop so many people from dying is to limit access to firearms for people at manifest risk of harm to self, whatever their motivation. Research suggests that only a small minority of individuals who are prevented from suicide through denial of access to a firearm will substitute an alternative method and eventually die from suicide. 12 Also, as already suggested, the large majority of survivors of suicide attempts die of other causes later in life. Risk does not inevitably lead to harm.

ERPOs are designed as a public health-oriented law that does not restrict the rights of law-abiding gun owners unless they are deemed to be a danger to themselves or others. 16 ERPOs fall within a small class of constitutionally permissible, politically tenable, narrowly focused legal or regulatory schemes that can disqualify individuals from purchasing or possessing firearms (for example, having a record of involuntary civil commitment or a felony criminal conviction). 17 A key difference between ERPOs and these other laws is that ERPOs impose a short-term disqualification whereas the others typically confer lifetime disqualifications. These other gun-prohibiting criteria have long been recognized as legitimate constraints on the right to bear arms as set forth in Justice Antonin Scalia’s opinion in District of Columbia v. Heller (2008), to the effect that “the right secured by the Second Amendment is not unlimited” (Ref. 18 , p 626).

As of May 2024, 21 states and the District of Columbia have enacted ERPO laws. All states’ ERPO statutes authorize law enforcement to initiate an ERPO. 19 Some states also authorize family members, clinicians, educators, or other categories of individuals to initiate an ERPO by petitioning a court directly when they observe someone engaging in behaviors demonstrating risk of firearm violence. Most ERPO statutes provide a two-step legal process beginning with an ex parte order for firearm removal in exigent or emergency circumstances, followed by a timely opportunity for a court hearing between seven days and one month following the temporary ERPO, depending on the state. The respondent may be represented by a lawyer in ERPO proceedings, although most states do not pay for a respondent’s lawyer.

At an ERPO hearing, the state has the burden of proving that the individual continues to pose a substantial risk of harming self or others. If a judge finds such evidence sufficient to grant the order according to statutory criteria, a local law enforcement agency or licensed firearm dealer retains the ERPO respondent’s firearms for no longer than a year, in most states. An ERPO also prohibits the respondent from purchasing firearms for the duration of the order. After an ERPO has been issued, a respondent may request a hearing to reconsider the order. The terms of such requests vary among the states.

ERPOs are civil orders that carry no criminal implications unless they are violated. ERPOs were initially designed as a risk-based public safety intervention that could be applied most appropriately to people without criminal legal involvement. In practice, however, ERPOs are being used in different kinds of cases in conjunction with criminal law enforcement and prosecution. Specifically, ERPOs have been used in response to criminal incidents involving firearms, cases where police make an arrest or have probable cause to make an arrest, and where prosecutors exercise discretion in proceeding with a criminal case or withhold or withdraw charges. In this regard, ERPOs can be seen in different contexts as either a form of criminal diversion or enhanced law enforcement. There are legal and public health policy arguments for and against the use of ERPOs in these ways. More research is needed on both their effectiveness and fairness.

ERPO laws were designed to provide robust due process protections, including the requirement for a timely court hearing following an ex parte order, the opportunity for the respondent to be represented by a lawyer, and the state having the burden of proof, typically by the standard of clear and convincing evidence. Such due process protections are considered especially important for ERPOs to the extent that these laws regulate and restrict individuals’ rights based on judgements of future risk and are not a sanction for prior injurious behavior. Legal scholars Joseph Blocher and Jacob Charles examined the features of ERPO laws in relation to constitutional requirements for prehearing deprivation of rights, Supreme Court guidelines for seizures prior to a full hearing, standard of proof principles, and burden of proof in the context of extreme risk; they concluded that ERPOs fit well within the established constitutional due process framework. 16

Subsequently, in the aftermath of the Supreme Court’s 2022 decision in New York State Rifle and Pistol Association v. Bruen , 20 new legal challenges to ERPOs arose, especially regarding due process concerns with gun seizure under an ex parte order prior to a hearing. Following the Bruen opinion, lower courts must now utilize a new method of scrutiny, viewing such challenges solely through the lens of the “text, history, and tradition” of the constitution and thus by appealing to historical analogs or precedents in past laws. This new test and diverging interpretations of its applicability to various firearm restrictions brought a season of uncertainty in gun rights jurisprudence, both with respect to the Second Amendment and due process protections 19 , 21 .

Most recently, in its first post- Bruen gun rights case, United States v. Rahimi , 22 the Supreme Court held that when an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with history and without running afoul of the Second Amendment. The Rahimi decision reaffirmed the constitutionality of federal laws restricting access to firearms for respondents to domestic violence restraining orders issued after notice and a hearing. While the opinion did not explicitly address ERPOs or ex parte proceedings, its reasoning suggests that risk-based restrictions adjudicated in a civil court proceeding can be constitutionally permissible, especially when based on a court’s individualized determination of a credible threat. Although the Rahimi decision also did not address the potential due process concerns that some critics of ERPOs have raised, academic legal analysis has concluded that ERPOs fit comfortably within the constitution’s protections of an individual’s right to a hearing prior to a lasting deprivation of a protected interest. 16

Table 1 summarizes key statutory features of ERPO laws in the four states that were included in the study.

• View inline

Features of ERPO Statutes in California, Connecticut, Maryland, and Washington

By legal design, the qualifying criteria for an ERPO do not require a mental illness diagnosis and with good reason; ERPOs focus on emergent indicators of risk of imminent harm to self or others, irrespective of the cause or source of the risk. Despite stigmatizing public opinion to the contrary, 23 , 24 the large majority of people with diagnosable mental illnesses are not at risk of violent behavior directed at others as a result of their illness. 25 That being said, acute mental illness is a significant risk factor for suicide, and a substantial proportion of ERPO respondents are described in ways that suggest, implicitly or explicitly, that they are experiencing a mental health crisis. A Connecticut study found that law enforcement officers detained and transported 55 percent of ERPO respondents to a hospital emergency department, ostensibly for evaluation and treatment of an acute behavioral health condition. 26 Moreover, 46 percent of respondents in the study had a diagnosable behavioral health disorder recorded in the state’s public behavioral health system; three out of four of those with a matched record had a mental health diagnosis, either alone or co-occurring with a substance use disorder, and the remainder had a substance use disorder only. 26

Critics of ERPOs sometimes lament that an ERPO does nothing to address the underlying causes of dangerous behavior but merely mitigates risk associated with exposure to firearms. For their part, proponents of ERPO laws describe this focus as appropriate; by reducing firearm exposure specifically for people at high risk, the chance of a lethal outcome is lessened and an opportunity opens for other interventions that can address a person’s motivation for self-harm. Evidence from ERPO implementation studies shows that, when law enforcement serves an ERPO and finds the respondent to be in a mental health crisis, they often proceed to deliver the individual to a hospital emergency department for evaluation and continuing treatment, as needed. 26 A longstanding body of state laws, separate from ERPO laws, provides police officers with the authority to detain and transport an individual who shows signs of mental disorder and dangerousness. 27 In many cases, then, ERPOs not only can provide a second chance at life but a window of time and opportunity for respondents in crisis to access therapeutic or other interventions that could address their underlying motivations for suicide.

An emerging body of research has described the implementation of ERPO laws in a handful of states and local jurisdictions, but effectiveness studies have been limited. 28 , – , 32 Early studies examined suicide outcomes in small samples of individuals exposed to risk-based firearm-removal laws in Connecticut ( n  = 762) and Indiana ( n  = 395). 26 , 33 These studies linked ERPO respondent databases to state death records and identified individuals who had later died of suicide, whether by firearm injury or other methods. Using a counterfactual analysis based on case fatality rates (CFRs), these studies estimated that for every 10 to 20 firearm removal actions, one life was saved by averting a suicide.

Kivisto and Phalen later compared trends in population-level suicide rates in Connecticut and Indiana with trends in synthetic control states without ERPO laws. Using a quasiexperimental analysis, these researchers estimated that Indiana’s gun removal law was associated with a 7.5 percent reduction in gun suicides over 10 years and that Connecticut’s law was associated with a 13.7 reduction in the “post-Virginia Tech period.” 34 A commentary by Swanson discussed the uncertainty of this type of study’s conclusions with respect to population-level outcomes, given the relatively small number of individuals actually exposed to the law’s restrictions. 35

Another synthetic control study in San Diego County did not find a significant effect of ERPOs in reducing population rates of violent crime and suicide. 36 Still, given that only a small number of ERPOs had been issued (355 orders over a period of four years in a population of 2.6 million), it is hardly surprising that statistically significant population-level effects could not be detected. 37

For this article, we used the same analytic method that Swanson and collaborators described in their studies conducted in Connecticut and Indiana. 26 , 33 The advantage of the current study is that the estimates of effectiveness of ERPOs are based on a much larger and more diverse sample of ERPO respondents combined across four states.

This study is part of a larger project 32 analyzing ERPO use and outcomes associated with ERPO laws in California (Cal. Penal Code § 18,100–18,205), Connecticut (Conn. Gen. Stat. § 29-38c), Maryland (MD Code, Public Safety § 5–6), and Washington (RCW 7.94). These states were selected to reflect at least some of the geographic and statutory diversity that characterizes ERPO states and to take advantage of access to ERPO data in certain states where academic institutions and prominent researchers in gun violence prevention and policy had existing working relationships with each other and with state entities empowered to provide such data to researchers. Colorado and Florida were included in the larger study but excluded from the current analysis of suicide outcomes owing to limitations of available data. In Colorado, there were not enough ERPO cases to support a valid study of suicide outcomes. In Florida, we were unable to obtain death record data. In California and Washington, public records requests allowed us to obtain ERPO casefiles. The Connecticut data were made available to us through a collaborative arrangement between the site investigators and relevant state agencies. In Maryland, we were granted access to nonpublic ERPO court records. All requests were made for ERPO cases through June 30, 2020, but the start date varied by state, depending on when the law went into effect. 32

We obtained death records from each state’s vital records repository (typically housed in the Department of Health) to identify ERPO respondents who had died. In California, we used Lexis Nexis to identify decedents and then obtained their death certificates to determine cause of death. For decedents who were matched in the search, we merged variables containing the date and cause of death with the larger study database. For suicide cases, we also obtained the specific mechanism of injury.

Trained research associates coded ERPO petitions and the attached supporting affidavits to classify descriptive information about the respondents, including the reasons that an ERPO had been requested from the court. Each research associate double-coded petitions with a lead coder until they reached an interrater reliability score of .80. This study protocol was approved by the institutional review boards at Michigan State University, Johns Hopkins Bloomberg School of Public Health, University of Washington, University of California Davis, Yale University, Duke University, and the Connecticut Department of Mental Health and Addiction Services.

We followed the method of counterfactual analysis that was used in Swanson and collaborators’ previous single-state studies of ERPOs’ effectiveness in preventing suicide. 26 , 33 Specifically, we used published case fatality rates (CFRs) for each method of suicide to extrapolate the number of nonfatal suicide attempts that had likely occurred to produce the corresponding number of recorded deaths among ERPO respondents. Published national CFRs were as follows: ingesting poison or cutting or piercing with a sharp object, one percent fatality; intentional drug overdose, two percent; jumping from a high place or in front of a moving vehicle or object, 28 percent; gas inhalation, 31 percent; hanging, 53 percent; drowning, 56 percent; and self-inflicted firearm injury, 90 percent fatality. 11

We then used the CFR-extrapolated estimates of suicide attempts to create an alternative data array under the counterfactual assumption that these respondents had not been subject to an ERPO and had access to firearms. The analysis also relies on an evidence-based assumption regarding the probability that, in the absence of ERPO, the average ERPO respondent who attempted suicide would have used a firearm rather than some other method of self-injury. For this probability, we applied our previously published estimate of p = .39. 26 That probability estimate was initially calculated from a state-level regression analysis of its linear association with states’ household firearm possession rate.

We applied that result to the counterfactual array to estimate the number of excess fatalities that could have been expected in the absence of gun removal and ultimately the number of granted ERPO petitions needed to prevent one suicide. We conducted the analysis first for the entire pooled study population and then for the subset of 2,850 ERPO respondents with a documented suicide concern as part of their initial ERPO petition.

We also calculated the number of ERPOs needed to prevent one suicide using an alternative estimate of the probability that a male gun owner who attempts suicide will use a gun, an estimate that does not rely on a state-level ecological correlation. In a recent article, Matthew Miller and his colleagues recalculated the probability in question by applying CFRs to a database of suicide death records pertaining to a large number of known handgun owners in California. 38 They calculated the probability to be approximately 28 percent. In what follows, we present the estimate of the number of ERPOs needed to prevent one suicide using both of these probability assumptions (our original 2017 estimate and Miller and colleagues’ updated version) set within a range of possible estimates on a curve.

In addition, we calculated the ratio of firearm-involved suicides to all suicides (FS/S) among ERPO respondents and compared that with an evidence-based counterfactual that could have been expected in the absence of an ERPO. In general, higher proportions of gun suicides are associated with higher absolute suicide rates, because of the high lethality of firearm suicide attempts relative to attempts with other methods. 11 Because the large majority of ERPO respondents are male gun owners, 26 , 30 , 33 , 36 , 39 an informative comparison for the counterfactual can be made to suicide decedents in largely male gun-owning populations. We used data on suicide methods reported by the Centers for Disease Control and Prevention (CDC) for males in five states in the South and Mountain West with the highest rates of firearm ownership: Alabama, Louisiana, Mississippi, Montana, and Wyoming. In those populations, approximately 70 percent of male suicides involve firearms. 1

The study population of ERPO respondents was drawn from California ( n  = 1,386), Connecticut ( n  = 1,407), Maryland ( n  = 1,347) and Washington ( n  = 442), for a total of 4,583 ERPO respondents in the pooled database. The petitioners in these cases were as follows: Connecticut, 100 percent law enforcement; California, 97.6 percent law enforcement; Maryland, 56.8 percent law enforcement, 31.7 percent intimate partner, 7.4 percent other family, 3.6 percent “other”; and Washington, 88.8 percent law enforcement, 5.3 percent intimate partner, 4.4 percent other family.

In the pooled study population, 45 individuals went on to die by suicide, 20 by firearm injury and 25 by other methods. Ninety-one percent of all the suicide decedents were male (44 of 45), and 97 percent of the firearm suicide decedents (24 of 25) were males. The average age of respondents in the study was 43.7 years. By extrapolating from published national case fatality rates (CFRs) for each method of suicide recorded, 11 we estimated that there were approximately 22 firearm suicide attempts (.44% of the study population) at 90 percent lethality resulting in the 20 firearm suicide deaths observed. Using the same method, we estimated that there were 794 suicide attempts by other methods (15.1% of study population), ranging from one percent to 42 percent lethality across methods used, resulting in 25 other suicide deaths (see Table 2 ).

Counterfactual Estimation of Number of ERPOs Needed to Prevent One Suicide Death

Following the method described by Swanson and collaborators, 26 we initially assumed a probability of p = .39 that a male gun owner who attempts suicide will use a gun in his attempt, and we further assumed that, but for the ERPO, the respondent would have had access to firearms. Accordingly, we reassigned 39 percent of counterfactual suicide attempts for each method of suicide to firearms with a CFR of 90 percent and the remaining 61 percent to the less lethal method observed for each case as reported. Recalculating from the counterfactual CFR distribution the number of deaths that hypothetically would have occurred without the ERPO, we estimated 315 hypothetical expected deaths in the counterfactual. Subtracting the 45 observed deaths, we estimated that there were 269 averted suicide deaths attributable to the ERPO intervention. Dividing the total number of ERPOs in the pooled four-state study population by the estimated number of lives saved, we calculated that, for every 17 ERPOs, one potential suicide death was prevented, as shown in Table 2 .

We conducted the same analysis on the smaller group of ERPO respondents in which there had been an indication of suicide ideation or attempt coded in the ERPO petition. Specifically, there were 2,850 ERPO respondents with a baseline suicide concern (with or without violent threats directed at others as well) in the pooled database. Within that subgroup, our death record match identified 19 firearm-involved suicides and 19 suicides by other methods, totaling 38 suicide deaths. Using the aforementioned method, we estimated that there were 21 firearm suicide attempts at 90 percent lethality resulting in the 19 firearm-involved deaths. Likewise, we estimated that there were 630 suicide attempts by other methods combined, with an average of three percent lethality resulting in 19 observed nonfirearm suicide deaths.

Recalculating from the counterfactual CFR distribution the number of deaths that hypothetically would have occurred without an ERPO in the subgroup with a suicide concern, we estimated 252 hypothetical expected deaths in the counterfactual compared with 38 observed deaths in the data, for an estimated 214 averted suicide deaths. As before, we divided the total number of ERPOs in the subgroup by the estimated number of lives saved in this group to calculate our estimate that, for every 13 ERPOs issued in cases involving a known suicide risk, one life was saved.

Using Miller and colleagues’ 38 alternative estimate of the probability that a male gun owner who attempts suicide will use a gun, the estimated number of ERPOs needed to avert one suicide in these data are 24 for the whole sample and 18 for the subset with a suicide concern mentioned in the petition. Figure 1 displays the curvilinear relationship between the assumed probability that a male gun owner who attempts suicide will use a gun and the number of ERPOs needed to prevent one suicide. The higher curve represents all ERPO respondents in the study, and the lower curve represents the subset of ERPO respondents for whom a suicide concern was documented in the ERPO petition.

Figure 1. Association between the probability that a male gun owner who attempts suicide will use a firearm in the attempt and the estimated number of ERPOs needed to prevent one suicide death: evidence from 4,583 ERPOs in four states. ERPO = extreme risk protection order.

As further evidence consistent with ERPO effectiveness in suicide prevention, Figure 2 displays the close correspondence between the state-level firearm possession rate and the proportion of male suicides that involved firearms (FS/S) in five states with the highest rates of gun ownership, 39 compared with ERPO respondents, who are depicted as having 100 percent firearm ownership prior to their ERPO. Even though not every ERPO case resulted in a gun removal, most of them did, and the assumption justifying the ERPO is that the person could have obtained access to a gun without the ERPO. The gap between the assumed pre-ERPO (or without ERPO) gun ownership rate and the post-ERPO FS/S ratio is consistent with the ERPO having an effect by removing firearms from individuals at risk of suicide. That the FS/S ratio was still 44 percent suggests that ERPO respondents, as a group, were not entirely deterred from accessing firearms in making a suicide attempt. There may also have been problems in effectively removing firearms in some cases.

Figure 2. Firearm ownership rate and proportion of male suicides that involve guns in selected high gun ownership states, U.S. adult males, and in ERPO respondents. ERPO = extreme risk protection order; FS/S = firearm suicides to all suicides.

In this study of suicide outcomes for 4,583 ERPO respondents in four states, we identified a pattern in the frequency of methods of self-injury among suicide decedents, suggesting that a substantial number of respondents made nonfatal suicide attempts using other methods instead of a firearm. Our study did not observe or measure nonfatal suicide attempts directly. Still, using established data on case fatality rates for different suicide methods and an evidence-based counterfactual assumption regarding the probability that a firearm would have been used if it had not been removed by the ERPO, we estimated that ERPOs likely contributed to the prevention of approximately 269 suicides over an average observation period of two years per respondent, which translated to one life saved for every 17 ERPOs issued. In the subset of 2,850 ERPO cases with a documented suicide concern in the ERPO petition, we calculated that ERPOs likely contributed to preventing 214 suicides: one life saved for every 13 ERPOs. These estimates are consistent with published findings from our previous research in Connecticut and Indiana. 26 , 33

The parameters of any ERPO policy’s application to any local population at risk (the mix of respondents, the reasons for issuing the order, and the resulting outcomes) are likely to vary across states and local jurisdictions. Larger factors external to the policy could also play a role: factors such as the restrictiveness of complementary state gun laws, the targeting priorities of local ERPO implementers, the prevalence of crime involving firearms, the ambient supply of firearms on secondary and illegal markets, and cultural attitudes about suicide and firearms. Regional ERPO practice may also change and evolve over time. The assumption regarding the probability that a gun owner who attempts suicide will use a gun could vary as well. Hence, the number of ERPOs needed to avert one suicide should not be considered as a single objective quantity discoverable by research but may vary with the features of ERPO programs as they are being implemented in the real world. For this reason, we also present the findings in the form of a curve.

It is important to note that, despite receiving an ERPO, 20 individuals in the study went on to die of suicide with a firearm, accounting for 44 percent of suicide deaths in the study population. There are alternative ways to evaluate the significance of this finding. On the one hand, this percentage is substantially lower than in other predominantly male populations of gun owners, where typically about 70 percent of suicides involve firearms, and thus lower than would be expected had the ERPO not been in place. On the other hand, 20 suicides with guns in a group selected for intervention precisely because of their dangerous behaviors suggests that ERPOs, as currently implemented, do not always work to prevent suicide. It is worth noting that only eight of these gun suicides occurred during the period when the ERPO was active, whereas the rest happened after the respondents became eligible to have their guns returned, suggesting that perhaps ERPOs should have been renewed for these respondents.

Clearly, some individuals who are intent on ending their life can still die of suicide even with an ERPO in place, and this calls attention to the importance of ensuring that firearm dispossession occurs when ERPOs are served and that ERPOs are included in background check systems to prevent new gun purchases. This finding also highlights the need for a person at risk of suicide to receive appropriate social, medical, or psychiatric support; firearm removal alone does not address the underlying problems that drive self-injurious behavior. Also, procedural changes could be instituted, such as a required risk assessment before expiry of the ERPO, with renewal indicated if evidence of risk remains. Finally, these results suggest the need to address the problem of illegal access to firearms; too many individuals who should not have a gun can obtain one on the secondary or illegal market without undergoing a background check at a licensed gun dealer.

Study Limitations

This study’s results should be considered in light of its methodological and data limitations. Many other factors in addition to ERPOs could have contributed to the patterns we observed in the suicide data. Confidence intervals around the estimated number of lives saved could not be calculated. The study population was drawn from four states, which may not be generalizable to all ERPO states. We did not have a direct measure of suicide attempts but relied on estimates calculated by extrapolating from published case fatality rates for each suicide method. Those published rates, in turn, come from selected medical record data on patients who were seen in emergency departments or hospitalized with a diagnosis of an intentional self-inflicted injury; in some cases, it is difficult to determine whether a patient intended to die, and suicide attempts not resulting in an emergency department visit would not contribute to the analysis. 11 Also, our analysis depended on an indirect (albeit evidence-based) estimate of the probability that an average male gun owner who attempts suicide would use a firearm in the attempt. As mentioned earlier, the large majority (80–90%) of ERPO respondents are male, but clearly not all. An error in this estimate based on males, in either direction, would result in a higher or lower estimate of the number of lives saved by ERPOs. Our estimate of ERPO effectiveness in preventing suicides did not account for the benefit that might have accrued to would-be suicide attempters who, as a result of getting help in conjunction with their ERPO, did not make a suicide attempt with any method. Had we been able to include an estimate of the benefit of not attempting suicide at all, rather than merely the benefit of selecting a more survivable method than a firearm, the calculated life-saving effect of ERPO would have been stronger.

ERPOs would work better if more could be done to reduce the ambient supply of firearms to which an ERPO respondent can still gain access, such as guns sold and resold on the secondary or illegal markets, not subject to a background check, or otherwise accessed or stolen from legal firearm owners. ERPOs would have a bigger impact if more people on the frontlines of responding when people are behaving dangerously and at risk of suicide or interpersonal violence (e.g., clinicians, law enforcement) knew about them and used them, so they could be scaled up and applied to a larger proportion of the population at high risk of gun violence and suicide. Further research is needed to assess more directly the impact of ERPOs and the effectiveness of different approaches to their implementation, as ERPOs are increasingly being brought to scale in a number of states and local jurisdictions. 41 , 42 Clearly, ERPOs alone are not a panacea for preventing firearm injury and mortality in the United States, but they are an important piece in the puzzle of gun violence prevention, and this study adds to the evidence suggesting they have saved lives.

• Acknowledgments

The research presented in this article was funded by a grant from the National Collaborative on Gun Violence Research. Dr. Swanson’s work was supported additionally by a grant to Duke University from the Elizabeth K. Dollard Charitable Trust.

Drs. Kapoor and Norko acknowledge the salary support of the Connecticut Department of Mental Health and Addiction Services (DMHAS). The work described in this article was funded in part by the State of Connecticut, DMHAS, but this publication does not express the views of DMHAS or the State of Connecticut. The views and opinions expressed are those of the authors.

Disclosures of financial or other potential conflicts of interest: None.

• © 2024 American Academy of Psychiatry and the Law
• 1. ↵ Centers for Disease Control and Prevention (CDC). Web-based Injury Statistics Query and Reporting System (WISQARS) [Internet]. Available from: http://www.cdc.gov/injury/wisqars/index.html . Accessed January 2, 2024
• Kegler SR ,
• Allchin A ,
• Chaplin V ,
• Delphin-Rittmon ME
• Swanson JW ,
• Rosenberg ML
• 7. ↵ Johns Hopkins Bloomberg School of Public Health . National Extreme Risk Protection Order (ERPO) Resource Center [Internet]. Available from: https://erpo.org . Accessed April 28, 2024
• 8. ↵ Giffords Law Center to Prevent Gun Violence . Extreme risk protection orders [Internet]. Available from: https://giffords.org/lawcenter/gun-laws/policy-areas/who-can-have-a-gun/extreme-risk-protection-orders/ . Accessed January 2, 2024
• Turecki G ,
• Horrocks J ,
• Tofighi B ,
• 14. ↵ National Institute of Mental Health . Suicide. Results from the National Survey of Drug Use and Health (NSDUH), 2021 [Internet]. Available from: https://www.nimh.nih.gov/health/statistics/suicide . Accessed January 2, 2024
• Barber CW ,
• Blocher J ,
• 17. ↵ 18 U.S.C. § 922(g) ( 1968 )
• 18. ↵ District of Columbia v. Heller , 554 U.S. 570 ( 2008 )
• Willinger A ,
• Frattaroli S
• 20. ↵ New York State Rifle and Pistol Association v. Bruen , 597 U.S. 1 ( 2022 )
• 22. ↵ United States v. Rahimi, 602 U.S. ____ ( 2024 )
• McGinty EE ,
• Frattaroli S ,
• Appelbaum PS
• Pescosolido BA ,
• Hedman LC ,
• Petrila J ,
• Wintemute GJ ,
• Schleimer JP
• Molocznik A
• Rowhani-Rahbar A ,
• Bellenger MA ,
• Schleimer JP ,
• Wintemute GJ
• Easter MM ,
• Alanis-Hirsch K
• Kivisto AJ ,
• Jewell NP ,
• Sivaraman JJ ,
• Studdert DM ,
• Schell TL ,
• Peterson S ,
• Vegetabile BG
• 41. ↵ Everytown for Gun Safety and John Hopkins Center for Gun Violence Solutions . Promising approaches for implementing extreme risk laws: A guide for practitioners and policymakers [Internet]; 2023 . Available from: https://publichealth.jhu.edu/sites/default/files/2023-05/2023-may-cgvs-promising-approaches-for-implementing-extreme-risk-laws.pdf . Accessed January 2, 2024

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The Recovery Campaign: Combining Asset Tracing and Judgment Enforcement to Get Results

After years of hard-fought litigation, most claimants are thrilled to obtain a final and enforceable judgment or arbitration award. However, more often than one thinks, this excitement is followed by the disappointing realization that the defendant has little interest in voluntarily satisfying the award.

This article explores how a judgment creditor might consider creating an enforcement strategy by leveraging an asset trace report. While the research focuses on identifying assets, the ultimate strategy requires a thoughtful engagement between asset tracers and counsel—often across multiple jurisdictions—to achieve success.

Benefiting from an Asset Trace Report

Third-party researchers are often terrific at mapping out assets of the defendant in the hopes of identifying a path to recovery, it is however critical to integrate an experienced asset tracing team and dedicated enforcement lawyers to leverage the findings and develop a strategy to execute the campaign.

Upon obtaining an asset report, the first task is to ensure that the judgment debtor is able to pay, the so-called payment capacity analysis. This question ideally would have been asked at the outset of the case, however asset positions and ownerships structures can evolve over time. So even performed at the outset, it will still likely need to be confirmed given the increasing length of litigation proceedings and the ease of manipulating ownership interests. And while the case is pending, it is important to monitor the payment capacity throughout the life of the case. If the defendant’s position deteriorates or the defendant is seen trying to restructure holding structures or insulate assets, a claimant needs to be attentive and consider pre-judgment attachment remedies or applying for other security. Diligent enforcement lawyers not only thrive post judgment, but also in seeking interim relief and looking-around-corners for future risks.

Once the payment capacity concerns are alleviated, it is necessary to analyze the identified assets of the defendant to see where they are and of what they consist of. This may seem obvious, but that is not always the case. A good asset trace report requires significant research and starts with an analysis of the income flows and current asset positions of the defendant. One must verify that the defendant—the actual defendant, not a subsidiary or related entity—is indeed the legal owner of any assets. This is rarely simple given the ease with which structures can be created and manipulated. For instance, sovereign assets are rarely held directly by the state but often by state-owned entities. In addition, many large corporations have paymaster entities responsible for paying day to day bills and overhead, and while those entities hold significant cash sums, they are rarely counterparties in contracts.

Next, a good asset tracing report will not only identify the direct assets of the defendant but also include an overview of any payment obligations third parties may have towards the defendant which can also be attached. For example, if you know who a judgment debtor’s leading customers are and can attach upcoming payments or gum up the cash flow, this could be a pressure point that brings the defendant to the negotiating table. A good report should identify any pressure points like this that may incentivize the defendant to resolve the dispute. Those are not going to be hard assets but leverage points that can enhance and expedite an enforcement campaign. Informing third parties such as banks or rating agencies about the unpaid judgment obligation, or even the threat of such, can pay off. An alternative can also be to seek publicity to pressure the defendant to come to the negotiating table.

A worthwhile asset tracing report will also endeavor to list other creditors pursuing the defendant—especially secured creditors that could seek a foreclosure sale or place the defendant into bankruptcy. Ultimately, however, the asset trace report is a starting point to the enforcement campaign. But with a worthwhile report, a judgment creditor can properly engage with enforcement counsel to piece together the strategy in earnest.

Researchers and Counsel – a Necessary Combination for Success

A first step in leveraging an asset report in conjunction with enforcement counsel should include gaining an understanding of whether or not the judgment or award can be recognized in the jurisdictions where assets have been identified. Is there a treaty—like in many European jurisdictions—that allows for a streamlined recognition process? There can be quirky and antiquated rules that need to be minded in this stage.

Another important issue to research are the time limitations for recognition. Certain jurisdictions only allow a limited time for recognition of arbitral awards, sometimes only two or three years. Indeed, it is not uncommon to seek to convert an award to a judgment and recognize that judgment in a third jurisdiction if the award recognition limitations period has run in that third jurisdiction.

In addition, and specifically for enforcement against sovereigns and many state-owned enterprises, most assets are considered to be immune for enforcement, and this immunity can only be lifted in narrow circumstances.

The specifics of the judgment are equally important, default judgments are usually more difficult to recognize than those where the defendant appeared and participated. The same applies for judgments with a punitive damages, as not every jurisdiction recognizes them.

If multiple claimants have a judgment against the same party, it is useful to check what the distribution regime is for assets between creditors and determine whether it takes place on a pro-rata basis or on a first come, first served basis. If the latter, it is obvious to file any enforcement application sooner rather than later. In addition, it is beneficial to be aware of liquidation regimes, as well as whether judgment creditors can apply to have defendants placed into receivership or bankruptcy.

Where judgment debtor assets are held in the name of related entities or individuals, it is critical to know about veil piercing and alter ego rules in appropriate jurisdictions. Generally, veil piercing has greater acceptance in common law jurisdictions than in civil law jurisdictions. The criteria differ per jurisdiction, hence appropriate legal advice is required in each jurisdiction where this may be a consideration.

In the event the asset report failed to identify any concrete assets, but only some leads, it may make sense to start post-judgment discovery proceedings, especially in the US. Issuing subpoenas to third parties, including banks, can yield significant and favorable information.

The last thing to consider in defining the enforcement strategy are the costs involved. Seeking to attach a low value asset where the costs of the attachment outweigh the asset value, usually makes no sense, unless it puts specific pressure on the defendant or is part of a broader strategy. In addition, the risk of an adverse costs order needs to be taken in consideration. These are all considerations that need to be discussed and decided in close liaison with experienced enforcement counsel.

In sum, the value of an asset trace report is not in only uncovering cash flows and assets, but rather what you can do with the information to bring the matter to a successful resolution. This requires close cooperation with counsel, and often requires third party funding. 

Filed under

• Insolvency & Restructuring
• Omni Bridgeway

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