July 13, 2020


Advocacy. Mediation. Success.

Legal Theory Lexicon: Baselines


Most undergraduates are very likely to come to be acquainted with John Stuart Mill’s famed damage principle at some position.  Here is how he mentioned the principle in On Liberty:

The object of this Essay is to assert just one pretty simple principle, as entitled to govern definitely the dealings of modern society with the individual in the way of compulsion and manage, whether or not the means applied be physical force in the variety of authorized penalties, or the ethical coercion of community feeling. That principle is, that the sole stop for which mankind are warranted, separately or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only intent for which electricity can be rightfully exercised in excess of any member of a civilized group, towards his will, is to avert damage to other individuals. His possess good, either physical or ethical, is not ample warrant. He can’t rightfully be compelled to do or forbear since it will be greater for him to do so, since it will make him happier, since, in the feeling of other individuals, to do so would be clever, or even proper… The only element of the conduct of any person, for which he is amenable to modern society, is that which fears other individuals. In the element which basically fears himself, his independence is, of proper, complete. In excess of himself, in excess of his possess physique and thoughts, the individual is sovereign.

The damage principle is alone a intriguing topic (maybe for a different Lexicon entry), but on this celebration, we are working with it to question the problem: what constitutes damage to other individuals?  Of study course, we can all enumerated examples of damage.  Alice kicks Ben in the shin and bruises him.  Carla steals David’s lunch.  Edwina falsely accuses Frank of plagiarism.  But all of these examples think that we can distinguish what the infliction of damage from a thing else–the denial of a privilege or gain.  Gertrude denies Harry a work.  Ingrid decides not to invite Jim to her party.  Karl refuses to share his collection of MP3 files with Laurie.  Are these harms or not?

The challenge of distinguishing damage from denial of gain or legal rights from privileges requires just one of the most fascinating concepts in authorized idea–the idea of a baseline.  This entry in the Authorized Theory Lexicon introduces to the baseline challenge.  As usually, the Lexicon is aimed at legislation learners, specifically very first-yr learners, with an interest in authorized idea. 

The Purpose of a Baseline

A wide range of essential authorized concepts are relative in the next feeling: an action, function, or condition of affairs falls less than the idea by comparison to some different.  Mill’s plan of “damage” has this house: an function is a “harming” only in comparison to some prior or different condition of affairs.  A similar position could be built about “injuries,” “gain,” “reward,” and similar phrases.

There is the place the idea of a baseline arrives in.  For example, we may well use a temporal baseline to outline damage: action X is a damage to individual P if and only if P is even worse off following X and this alter in welfare is causally generated by X.  This sounds plausible, but it is not challenging to cook dinner up examples the place this components doesn’t match our intuitive being familiar with of damage.  Mary asks Nancy to repay a $10 loan, and Nancy agrees to do so. Nancy is even worse off, but it is not very clear that Mary has harmed Nancy–even though her request for payment is the cause of Nancy’s becoming even worse off (monetarily) than she was before the request for reimbursement. A similar position could be built about gain. Mary forgives Nancy’s credit card debt. Nancy’s economical circumstances are not enhanced relative to a temporal baseline, but we may well imagine that Mary has conferred an gain on Nancy. In both equally examples, the temporal baseline doesn’t seize our intuitive feeling that the relevant baseline should to be described in phrases of Mary and Nancy’s respective entitlements.

Attainable Authorized Baselines

So how could the legislation determine baselines?  Let’s just list a couple alternatives:

Positive Entitlements: The legislation could get one’s present entitlements (as described by the positive legislation) as the baseline for measuring authorized damage or gain.

Widespread legislation: One more alternative would be to get the popular legislation technique of house, deal, and tort legislation as the definition of baseline entitlements.  Formal steps that worsened an individual’s position relative to the popular-legislation baseline could be described as harms, and steps that bettered the popular-legislation baseline could be described as positive aspects.

Organic legal rights: But a different probability would be the the baseline could be described by a idea of organic legal rights.  One this kind of idea is made available by theories of the condition of mother nature and the social deal.  The baseline of organic legal rights could be determined with these legal rights that would be retained by rational folks who agreed to enter into civil modern society from a condition of mother nature.

Human legal rights: One more resource of a baseline may well be the bundle of entitlements determined by global human legal rights legislation.

At this position, I’m sure that Lexicon visitors will have regarded that the identification of a baseline can be crucially essential to answering the problem whether or not an injuries has happened.  If positive legislation identifies the baseline, then there are no accidents until a authorized entitlement is violated.  But if organic proper sets the baseline, then there can be injuries with no violation of the positive legislation.

Contexts in which Baselines Subject

Baselines are essential in a wide range of contexts.  How do we distinguish provides from threats?  Nozick’s intelligent distinction is that a menace is an present you would alternatively not acquire, but underlying his position is the idea of a baseline.

Baselines have performed an specifically prominent part in constitutional idea.  In that context, the baseline challenge is strongly associated with Cass Sunstein, and specifically with his evaluation of the United States Supreme Court’s selection in Lochner v. New York.  As most visitors of the Lexicon will know, the Supreme Court invalidated a New York statute that regulated the number of several hours that could be worked by bakers on the foundation of the thanks procedure clause of the 14th Modification of the United States Constitution.  The statute was challenged on the foundation that it deprived bakery owners of liberty.  The problem is what determines the baseline.  Sustein argued that the Court experienced erroneously assumed that the popular-legislation supplies a organic baseline, when in point the technique of popular-legislation legal rights is alone a products of positive legislation and therefore topic to redefinition by legislative action.  The next passage supplies the flavor of Sunstein’s argument:

The Lochner Court essential authorities neutrality and was skeptical of authorities “intervention” it described both equally notions in phrases of whether or not the condition experienced threatened to change the popular legislation distribution of entitlements and prosperity, which was taken to be a element of mother nature alternatively than a authorized build. As soon as the popular legislation technique came to be found as a products of authorized guidelines, the baseline from which constitutional choices were built experienced to change. When the Lochner framework was deserted in West Coastline Lodge, the popular legislation technique alone appeared to be a subsidy to companies. The West Coastline Lodge Court consequently adopted an different baseline and rejected Lochner period understandings of neutrality and action. (Sunstein, Lochner’s Legacy, p. 917)

Of study course, the technique of popular-legislation legal rights could be applied as a baseline.  Sunstein’s position is that the popular-legislation is not a lot more “organic” than any other baseline derived from the positive legislation.

One can think about a wide range of replies to Sunstein’s argument.  One probability is to argue that the popular-legislation technique of legal rights does have some unique statues.  For example, it may well be argued that popular-legislation house, deal, and tort legal rights instantiate a technique of organic legal rights.  Or it may well be argued that the popular legislation reflects deeply held and large shared social norms that present the written content of a shared social feeling of justice.  Regardless of whether arguments like this will realize success on the merits is undoubtedly contestable, but for your intent the essential position is that baselines will have to be justified–they can’t just be assumed.


Ideas like damage, injuries, gain, and reward are pervasive in authorized idea.  Knowledge these concepts involves an appreciation of the baseline challenge.  The pont of this Lexicon entry is to give the reader a fundamental being familiar with of what baselines are and how they can be challenged and defended.  Of study course, there is much a lot more to be mentioned, and the bibliograph supplies some additional sources to look into.

Related Lexicon Entries

  • Authorized Theory Lexicon 010: Deontology


  • Jack M. Beerman & Joseph William Singer, Baseline Inquiries in Authorized Reasoning: The Case in point of Home in Careers, 23 Ga. L. Rev. 911 (1989).
  • David E. Bernstein, Lochner’s Legacy’s Legacy, eighty two Tex. L. Rev. 1 (2003).
  • Emily Sherwin, A Comment on Cass Sunstein’s Equality, nine Const. Comm. 189 (1992).
  • Cass Sunstein, Lochner’s Legacy, 87 Colum. L. Rev. 873 (1987).
  • Cass Sunstein, Immediately after the Legal rights Revolution: Reconceiving the Regulatory Condition (Harvard College Press 1990).

(This entry was past revised on June 21, 2020. My many thanks to Kenneth Simons for his remarks.)