The judge`s hand expanded the meaning of the word in written statements between 1915 and 1950 by using it to indicate vague boundaries of words or concepts. He used it to emphasize the difficulty of defining and interpreting laws, contracts, trademarks or ideas. Glenn H. Reynolds also observed that courts regularly engage in penumbral reasoning, regardless of their position on the political spectrum. [40] However, former Ninth District Judge Alex Kozinski and UCLA Law School Professor Eugene Volokh note that the courts` use of predatory reasoning „goes both ways“ because it can be used both to expand individual liberties and to expand government powers at the expense of individual liberty. [41] Richard E. Levy also argued that criminal argumentation, fundamental rights analysis, and political process theory may justify judicial intervention in the name of individual liberty, as well as judicial intervention to promote economic interests. [42] The right to privacy is an excellent example of darkness. Many people believe that this right is enshrined in the Constitution of the United States. In fact, this is not the case. Instead, judges and legal scholars argue that clauses such as the First Amendment contain a right to privacy in their dim light, and many legal cases have established jurisprudence to support this belief, making it difficult to challenge.

In Griswold v. Connecticut, a challenge to the ban on the sale of contraceptives, it was argued that this law violated marital privacy and thus the First Amendment. The original and literal meaning of Penumbra is „a space of partial lighting between the perfect shadow. on all sides and full light“ (Merriam Webster`s Collegiate Dictionary, 10th edition, 1996). The term was coined and introduced in 1604 by astronomer Johannes Kepler to describe shadows that occur during eclipses. However, in legal terms, the penumbra is most often used as a metaphor for a doctrine that refers to the implied powers of the federal government. The doctrine is best known in the Supreme Court`s decision in Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct.

1678, 14 L. Ed. 2d 510 (1965), where Justice William O. Douglas used them to describe the concept of an individual`s constitutional right to privacy. In U.S. constitutional law, penumbra includes a group of rights implicitly derived from other rights expressly protected in the Bill of Rights. [2] These rights have been identified through a process of „interpolation argumentation“ in which specific principles are recognized on the basis of „general ideas“ explicitly expressed in other constitutional provisions. [3] Although scholars have traced the origin of the term back to the nineteenth century, the term first came to public attention in 1965 when Justice William O. Douglas` majority opinion in Griswold v. Connecticut has identified a right to privacy in the darkness of the Constitution. [4] The history of the legal use of the penumbral metaphor dates back to a federal decision by Justice Stephen J.

Field in the 1871 Montgomery v. Bevans, 17 F.Cas. 628 (9th C.C.D. Cal.). (At that time, Field was a member of the Supreme Court.) Since Montgomery, the penumbral metaphor has not been used often. In fact, more than half of its original uses can be attributed to just four judges: Oliver Wendell Holmes, Jr., Learned Hand, Benjamin N. Cardozo, and William O. Douglas.

J. Christopher Rideout and Burr Henly note that, according to the majority opinion of Douglas J. in Griswold v. Greely, however, the term refers to the 1871 judgment of Justice Stephen Johnson Field in Montgomery v. Bevans, where Field J. used the term to describe a period of time when it was uncertain whether a person could legally be considered dead. [7] Other commentators, including Glenn H. Reynolds and Brannon P. Denning, point out that elements of penumbra reasoning are found in much older cases that precede the first use of the term penumbra; They trace the origins of criminal reasoning back to cases of the U.S. Supreme Court in the early nineteenth century.

[8] For example, Reynolds and Denning describe the opinion of Chief Justice John Marshall in McCulloch v. Maryland as „the epitome of penumbral thought.“ [9] Although the meaning of the term has changed over time,[11] scholars today generally agree that the term refers to a group of rights that are not explicitly enumerated in the Constitution, but may be derived from other enumerated rights. [12] The definition of the term was originally derived from its primary scientific meaning, which is „a space of partial illumination (like a solar eclipse) between perfect shadow on all sides and full light.“ [10] Similarly, rights that exist in the darkness of the Constitution lie in the „shadow“ of other parts of the Constitution. [13] Moreover, the process of identifying rights in constitutional darkness is called the penumbra argument. [14] Brannon P. Denning and Glenn H. Reynolds described this interpretive framework as the process of „drawing logical conclusions by examining the relevant parts of the Constitution as a whole and their relationship to each other.“ [15] Glenn H. Reynolds also characterized penumbral thinking as a process of „interpolation reasoning,“ in which judges identify the full scope and breadth of constitutional rights. [16] In a legal sense, a penumbra is a logical extension of a legal rule, statute or statement that grants individuals rights that are not expressly set out in the law. This concept comes from the precedents of the 19th century in the United States.

Justice Oliver Wendell Holmes has contributed significantly to the legal debate on this concept and has referred to it in several court cases. One of the most famous invocations of legal darkness took place in 1965 in Griswold v. Connecticut. Douglas` most famous use of penumbra is found in Griswold. In the Griswold case, plaintiffs Estelle Griswold, executive director of the Planned Parenthood League of Connecticut, and Dr. C. Lee Buxton, professor of medicine at Yale Medical School and director of the League`s New Haven office, were convicted of prescribing contraceptives and giving contraceptive counseling to married people in violation of a Connecticut law. They question the constitutionality of the law, which makes it illegal to use drugs or drugs to prevent conception on behalf of married people with whom they have a professional relationship. The Supreme Court ruled that the law was unconstitutional because it violated an individual`s right to privacy. In his statement, Douglas explained that the specific guarantees of the Bill of Rights have penumbra „formed by emanations of those guarantees which help them to give life and substance,“ and that the right to privacy exists in this area. Accordingly, Douglas J.

argued that the Constitution contained „perennial rights to privacy and tranquility.“ [33] Douglas J. also noted that without the „peripheral rights,“ the „specific rights“ enumerated in the Constitution would be „less secure.“ [34] According to Burr Henly, Douglas J.`s majority opinion used this term not to identify artificial limits of language and law, as Holmes J. had done, but to link the text of the Constitution to unenumerated rights. [35] According to the logic of this legal theory, a law can imply rights without expressing them directly. As long as a reasonable interpretation of a statute could provide for a particular statute, a judge could argue that a legal issue falls within the darkness of the law. While the reasoning may be a bit flawed and the legal basis may be difficult to prove, if lawyers and judges can argue the issue convincingly, people can accept it. Jurists, lawyers and judges rely on theories like these to interpret the law and give it meaning and depth over time. When people have to read the law literally, they can find loopholes that make it difficult to judge certain types of cases fairly.

The law often struggles to keep pace with society, and the ability to extend logical rights based on precedent and implications for applicable law is an important legal tool.