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A comment on an answer to this question says:

This question fulfills: Legal terms and language, doctrines and theory, because it asks for the reason why this applies and not the motive of those who created it.

I had understood that any question about why a given law is as it is, why it prohibits or penalizes some acts and not others that might seem logically similar is off-topic for law.se, and belong on the politics stack, or perhaps on history or philosophy. Was I correct, or can such questions come in as "legal terminology" or "legal theory"?

Edit: Note that this includes questions that turn on modern legislative intent, but also questions that are mode historical, such as "Why is the distinction between Murder and manslaughter one of intention (in UK and US law)?" or "Why does the distinction between libel and slander turn on writing?" and many similar possible questions.

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  • @StephanS I had in mind questions of the general patern 'Why is there a law agaisnt X and not Y" But in general any question of "Why is the law the way it is, and not some other possible way, which might seem more logical or ethical or in some sense better" is what I am gettign at here Sep 27, 2019 at 16:02
  • It's no problem it's just how I read it at first. my misunderstanding. Sep 27, 2019 at 16:03
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    Possible duplicate of law.meta.stackexchange.com/q/716/10.
    – feetwet Mod
    Sep 27, 2019 at 16:04
  • In the original question the OP quotes a law commentary and the question is trying to get a better understanding of what it means or how it is to be understood. This is reason for my objection to the off-topic claim. A legislative-intent tag would seem to be justified for this type of question. Sep 27, 2019 at 17:41

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This is a general SE problem, that some people think that "why" questions are off topic. I disagree as a general statement, and I disagree with Dale M's assertion that "why" questions are off-topic (stipulates statutes not in existence). Still, questions like "Why weren't there massive class actions lawsuits against X" or "Why is this still legal" are typically (1) invitations to expound personal opinions and (2) typically questions about the political process. That does not obviously apply to the question in question: I believe the individual is aiming for a more subtle legal analysis. I suspect that in this case the statute is the codification of something in the common law, so it is a legitimate legal history question, though perhaps unanswerable on practical grounds.

However much of a textualist one might be, it is undeniable that "legislative intent" exists as a legal concept and is considered by the courts. "Why" questions are therefore on-topic to the extent that they are called "legislative intent" in jurisprudence and have weight in determining what the law is.

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    Agreed: I've argued that legislative intent is on-topic.
    – feetwet Mod
    Sep 27, 2019 at 16:04
  • Very much agreed! The only narrow interpretation I see on what should be on topic is in this: “ "Why" questions are therefore on-topic to the extent that they are called "legislative intent". Not all layman will put it exactly this way and not all layman will have a political angle or intent to invite no more than opinions. Perhaps, this should more be like “[...] that they [seek to understand ]legislative intent[].”
    – kisspuska
    Jan 3 at 5:49
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Absolutely

However, it depends on the question.

Laws are inherently part of the social and political systems, both historical and contemporary, in which they are embedded. As such, on-topic questions either need to be:

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"Why is murder illegal in the UK?"

Is an absolutely valid question. After all, murder wasn't made illegal through any political mechanism. It is a common law offence. That is to say: there is no statute or law passed by parliament that made murder illegal. The fact that murder is a crime is purely a creation of the courts.

Now answering this question may be difficult, as the original cases that established murder as a punishable offence have probably long been forgotten. But for similar questions "Why do people have a duty of care in certain situations?""Why do courts impose resulting trusts on property", they all have answers which are taken from various judgments, and are therefore relevant to law.se.

For example, the judges in donague vs Stephenson explained that duty of care and negligence was a risk shifting exercise to shift the risk of danger from those who are vulnerable (e.g. A schoolboy in a forest) to those who have control and power over their situation (e.g the teacher who brings the boy there on a school trip)

This reasoning as to why the law developed in such a way and why certain crimes exist are absolutely on topic.

Questions which are less appropriate would be questions asking why a specific statute was passed into law. But even then in law school we learn in depth as to the political and social motivations behind the law, especially constitutional law, and for those reasons i think even questions like these should be allowed on a case by case basis

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I was going to ask a new question about this, but then I found this one.

I agree with the point that the word "why" in a question does not make it off-topic. "Why did the judge decide this?" or "Why aren't there more cases like this?" invite explanations based on the relevant law and so should be on topic here. On the other hand "Why is cocaine illegal?" is clearly a question about the political processes driving the creation of law rather than about the law itself.

Since this issue keeps coming up, perhaps we should add some guidance on this to the Tour. I think we should invite questioners to consider whether they want an answer based in law or in politics. If they want to understand the legislative history of a law or the reasoning behind a judgement or legal strategy then this is a good place to ask. On the other hand if they want to know about why a law was passed in the first place, or why one hasn't been passed, then we should suggest that Politics.SE would be a better fit. It might also be useful to put Politics.SE as an explicit migration option in the Close menu.

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I agree the "why" question is relevant because many courts ask it when deciding what the law is. I would add the "why" question does not come up only when judges use legislative intent to help them interpret a law. It also comes up when judges use "purpose" to help them interpret a law.

How and when, if ever, judges should ask the "why" question is very much a live issue in US courts. US judges treat the why question much differently now than they did just 30 years ago. They also give it more attention in their opinions. Both Justice Breyer and Justice Scalia have written several books arguing the superiority of their view of the matter.

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It can be on topic. But generally it's too broad. Asking for a more narrow focus is one of the possible reasons for closing a question.

"Why" includes political, historic and ethical reasons. To make a question more suitable for the site, it would be better to ask (for example) what is the legal distinction between X and Y. This is more specific than asking (again, for example) "why is X legal and Y isn't?"

A good answer would provide a perspective of how this distinction came about if this distinction happens to be relevant.

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It is in Common Law legal systems at least

Deciding what the common law is involves the idea of "discovering" the common law. In many appellate judgements the judges will say "It would make sense if X was the law for the following reasons... but if Y were the law it would have the following disadvantages... I hold that the law is X..."

So why a law is as it is is all part of the this reasoning.

Why a law is, as it is, has traditionally also been used in Common Law systems to interpret statutes.

William Blackstone in Vol. 1 of Commentaries on the Laws of England (1765) - pages 37 and 38 - says:

The fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject-matter, the effects and consequence, or the spirit and reason of the law. Let us take a short view of them all.

  1. Words are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use. Thus the law mentioned by Pufendorf which forbad a layman to lay hands on a priest, was adjudged to extend to him, who had hurt a priest with a weapon. Again; terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science. So in the act of settlement, where the crown of England is limited “to the princess Sophia, and the heirs of her body, being protestants,” it becomes necessary to call in the assistance of lawyers, to ascertain the precise idea of the words “heirs of her body;” which in a legal sense comprise only certain of her lineal descendants.
  2. If words happen to be still dubious, we may establish their meaning from the context; with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus the proeme, or preamble, is often called in to help the construction of an act of parliament. Of the same nature and use is the comparison of a law with other laws, that are made by the same legislator, that have some affinity with the subject, or that expressly relate to the same point. Thus, when the law of England declares murder to be felony without benefit of clergy, we must resort to the same law of England to learn what the benefit of clergy is: and when the common law censures simoniacal contracts, it affords great light to the subject to consider what the canon law has adjudged to be simony.
  3. As to the subject-matter, words are always to be understood as having a regard thereto; for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end.

Thus, when a law of our Edward III. forbids all ecclesiastical persons to purchase provisions at Rome, it might seem to prohibit the buying of grain and other victuals; but when we consider that the statute was made to repress the usurpations of the papal see, and that the nominations to benefices by the pope were called provisions, we shall see that the restraint is intended to be laid upon such provisions only. 4. As to the effects and consequence, the rule is, that where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them. Therefore the Bolognian law, mentioned by Pufendorf, which enacted “that whoever drew blood in the streets should be punished with the utmost severity,” was held after a long debate not to extend to the surgeon, who opened the vein of a person that fell down in the street with a fit. 5. But, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it. For when this reason ceases, the law itself ought likewise to cease with it. An instance of this is given in a case put by Cicero, or whoever was the author of the treatise inscribed to Herennius. There was a law, that those who in a storm forsook the ship, should forfeit all property therein; and that the ship and lading should belong entirely to those who staid in it. In a dangerous tempest all the mariners forsook the ship, except only one sick passenger, who by reason of his disease was unable to get out and escape. By chance the ship came safe to port. The sick man kept possession, and claimed the benefit of the law. Now here all the learned agree, that the sick man is not within the reason of the law; for the reason of making it was, to give encouragement to such as should venture their lives to save the vessel: but this is a merit, which he could never pretend to, who neither staid in the ship upon that account, nor contributed anything to its preservation. From this method of interpreting laws, by the reason of them, arises what we call equity; which is thus defined by Grotius “the correction of that, wherein the law (by reason of its universality) is deficient.” For since in laws all cases cannot be foreseen or expressed, it is necessary, that when the general decrees of the law come to be applied to particular cases, there should be somewhere a power vested of defining those circumstances, which (had they been foreseen) the legislator himself would have expressed. And these are the cases which, according to Grotius, “lex non exacte definit, sed arbitrio boni viri permittit” [“law does not define exactly, but leaves some discretion to the wise judge”]. Equity thus depending, essentially, upon the particular circumstances of each individual case, there can be no established rules and fixed precepts of equity laid down, without destroying its very essence, and reducing it to a positive law. And, on the other hand, the liberty of considering all cases in an equitable light, must not be indulged too far; lest thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge. And law, without equity, though hard and disagreeable, is much more desirable for the public good, than equity without law: which would make every judge a legislator, and introduce most infinite confusion; as there would then be almost as many different rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind.

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