Four Questions to use when to think about law

This post spans both my Spotlight on Civics Collection and Law and Policy series. By the end of this post you’ll be able to ask smart questions about the law, understand a little better the difference between what is legal and what we think should be legal, and think about the constraints and opportunities law provides in policy making.

Law sets the rules on what we cannot do, must do, might do, and how much/little you can do. It is also sometimes silent on what we ask. If policy is the art of the possible, then you have to think about how the rules of law structure the universe of choices in your policy.

Temple University’s Legal Epidemiology courses are a stellar resource on this for anyone interested in public health law or policy in general.

What does the law require?

The first question you have to ask is the big one. What does the law require? That is to say, what do you have to do? It’s often easier to talk about law this way because there is a clear command: “you must do [action] or [consequences].”

Understanding the answer to this question will help you understand a legal case or a policy proposal. The law said to do something, someone didn’t, boom there’s your case.

In policy, you start here because the law lets you know if you can move forward with the policy that you want to.

Think about some of the “musts” we know about in society: you must pay taxes, you must be 35 to run for president, you must hold a valid driver’s license to legally drive.

You’ll notice those are all very procedural laws. That’s because “musts” are easier when there’s a specific goal of the law and duty of the person.

What does the law forbid?

But what if the law says your policy is not allowable?

It’s important to know what you can’t do. That’s why question two is: what does the law forbid?

There may be legal guardrails in some areas, and you may have to address them or rework your policy. Likewise, if you’re trying to understand a case on the news, you might see very clearly: the law said no, but the person said, “watch me.” The law usually wins in these instances.

In our government of limited powers, there are limits to what the government can forbid us to do. The law can’t say you must put your money in a bank, but it can tell you that you cannot rob one (without legal consequences). Laws can forbid you from talking on your cell phone while driving, carrying a firearm in certain places, committing arson, or jaywalking.

A commonality I find in these laws is that they tend to stem from a previous problem that law is trying to fix (here we get into the social element of law): you can’t own people, you can’t drive while intoxicated, you can’t dodge the draft.

What does the law allow?

What if the law doesn’t stipulate any musts or can’ts? Sometimes a law allows something but does not require it. This can get tricky when you’re writing policy or looking at thew news and trying to decide who’s right.

If you’re trying to create a policy, what you want may not be forbidden, but if it is not expressly allowed, you’ll probably want to have a plan when someone tries to sue to turn your thing from a maybe to a “can’t.” When you’re listening to cases on TV, listen for whether or not lawyers are talking about what is legally required. This can help you figure it out.  

Some “may” laws include things like owning property (you can’t be forbidden from it, but you’re not required to do it). Also, you may get married, but you don’t have to. If you choose the marriage option, the law has its own musts/can’ts but in general, it’s a may.

Likewise, you may get a drivers’ license and your right to do so cannot be abridged as long as you meet the criteria, but you don’t have to, you can take a Lyft.

What if the law doesn’t say?

Sometimes the law is just not clear enough or does not talk about our thing. This happens especially when you’re dealing with something like an emerging technology or an unprecedented event.

Interestingly, in my research on childbirth, there is plenty of legal silence. The laws for most people say you cannot coerce someone to get a medical procedure they don’t want, but people have been court ordered into cesareans.

The law is also unclear on how people can’t be treated in labor and delivery. Can you force someone not to eat or drink while in labor for 24 hours? They don’t do this in other countries. But in the US, it is very common. There’s no law that specifically allows or disallows it, so institutional policy fills that vacuum.

When you’re trying to change a law, you want to ask yourself is it even a law? Maybe it is just a policy that stepped up to set some rules while the bigger law was silent or unclear.

Policy Implications: Floors and ceilings

We all want law to do just as much as we want it to do, and no more. We all want it to regulate the things we think should be regulated and not regulate the things we think are none of its business. Understanding what the limits of law are is important because it can’t (and I argue, shouldn’t) solve all of our problems. But when you’re arguing with people about what law “should” be doing, consider thinking about it in terms of floors and ceilings.

Laws can constrain by limiting the amount of regulation you can have (a ceiling) or by determining the amount of regulation you must have (a floor).

The floor tells us what the absolute minimum we must have is. For instance, every child in this country has a right to access a K-12 free public education. That’s the floor. States can go above that if they want and offer free pre-K or free college. The ceiling is up to the state. The federal government sets the floor and says, no one falls below free K-12 public ed.

The ceiling on the other hand limits legal involvement and tells us how much law/policy is allowed. To curb teenage drinking, the government cannot re-instate Prohibition. It can set the drinking age, require IDs to purchase, or have harsh punishments for offenders, but it cannot completely ban the sale of alcohol.

What to do with all this

Now that you have these four questions and some idea about floors and ceilings, you’re much better prepared to ask (and answer) smart questions about the law, court cases, and policies that you hear about. Thinking about law in this way will help you start to see law as one of many tools we use to structure our lives. Understanding this tool will help you use it effectively for your own goals.

Good luck!