Law, limits of
- Smith, G.W.
Version: v1, Published online: 1998
Retrieved March 22, 2023, from https://www.rep.routledge.com/articles/thematic/law-limits-of/v-1
Questions concerning the proper limits of law are of particular interest to thinkers in the Western political tradition of individualism. In this tradition the law is regarded primarily as an instrument of coercion and the problem is to define the scope of law in such a way that it fulfils its necessary purposes at minimum cost to individual liberty. Debate therefore centres on the proper ends of legal coercion. Two law-limiting strategies are commonly adopted; the practical and the moral. As the most important ends of human life (salvation of the soul, or its secular equivalent, moral integrity) are taken to require the uncoerced, ’inward’, assent of the individual, the effective scope of the law is significantly limited on practical grounds to the regulation of ’outward’ behaviour. On the moral question concerning which behaviour ought to fall within the purview of the law, conservatives contend that society has a right to enforce its moral values by criminalizing whatever behaviour its members regard as ’sinful’. The characteristic strategy of liberals is to respond by arguing that unorthodox or unpopular activities must clearly be shown to be ’harmful’ before they may properly be outlawed. Much debate focuses upon the interpretation of this principle (the ‘harm principle’), particularly what is to count as ’harm’ for purposes of legislation, and whose harm is properly in question. Dissatisfaction on these crucial issues has led some liberals to reject what they consider to be the fruitless attempt to draw the line between liberty and law by balancing individual against social harm in favour of various theories of individual rights, while it has led others (communitarians and some feminists) to question the individualist assumptions in terms of which the problem of the limits of law gains its especial urgency.
Smith, G.W.. Law, limits of, 1998, doi:10.4324/9780415249126-S037-1. Routledge Encyclopedia of Philosophy, Taylor and Francis, https://www.rep.routledge.com/articles/thematic/law-limits-of/v-1.
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