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Janet Halley, Does the Law Have an Outside? (Osgoode Hall Comparative Research in Law & Political Econ. Research Paper No. 2/2011, Oct. 22, 2010).

Abstract: I’ve been pondering this problem as I participated in this sparking conference titled “Beyond the Law”: What, if anything, is “beyond the law”? The better parent’s risk aversion, the propertyless man’s hunger: should we insist that these are non-legal attributes about these characters which interact with legal rules to condition legally important decisions? Are they inside or outside of the law? We can think of it either way. Most of the time, to be sure, I’m engaged in descriptive projects that are basically attempts to extend the reach of law. Not that I want it to be big, I’m trying to understand how big it is. But in the rest of my remarks I’d like to spool out my ambivalence about this. Why does it feel more critical, more decisive, to insist on the coercive character of background rules, no matter how far in the background they lurk? And why does the resulting picture of the world seem so narrowed, so reduced, once we have succeeded in drawing it? What’s at stake in positing that law is everywhere – or that there is something beyond it?