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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.

  • @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 – David Siegel Sep 27 '19 at 16:02
  • It's no problem it's just how I read it at first. my misunderstanding. – User37849012643 Sep 27 '19 at 16:03
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    Possible duplicate of law.meta.stackexchange.com/q/716/10. – feetwet Sep 27 '19 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. – Mark Johnson Sep 27 '19 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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"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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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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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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