Legal fictions are often used to lubricate the machinery of jurisprudence. One of these is the idea that laws created to restrict the liberty of some individuals or class of individuals in order to protect the public good are in effect outcomes of tradeoffs between abstract universals, namely liberty and the public good. A three way relationship is imagined in which law, liberty, and the public good are in creative tension. The role of the law in this three way tension is further imagined to be the mediator where it serves to calibrate this tension in ways that are also assumed to legitimate the intended outcomes in practice. In particular, where the outcome is the prevention of harm, then laws that curtail liberty must be seen not just as measures for the public good, but rather as necessitated by the potential effects of the very harm itself. The justification for this view is often traced back to the views of nineteenth century political philosopher John Stuart Mill, who famously expressed this in terms that have become known as the “harm principle”; specifically that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”

Sometime in early 1434, two northern Italian counts, Francesco Pico della Mirandola and his brother Giovanni, sent a letter to Pope Eugene IV (r. 1431–47). Out of concern for their subjects, who had long suffered from a shortage of credit, Francesco and Giovanni had allowed some Jews to settle in their lands and lend at interest. In addition, the brothers had rented a house to these Jews for the purpose of moneylending. At the time, the noblemen stressed, they had not believed their actions to be unlawful. They had since come to fear, however, that they had inadvertently brought automatic excommunication upon themselves by violating the provisions of Usurarum voraginem, a decree first issued at the Second Council of Lyon in 1274 that called on secular and religious authorities to refuse lodging to foreign usurers and, in addition, to expel such usurers from their lands. The brothers' uncertainty, the petition noted, reflected the varied opinions of contemporary jurists (presumably those at Bologna, a mere 60 kilometers away), who disagreed on whether the decree was to be understood in reference to Jewish as well as Christian moneylenders. Deciding to err on the side of caution, the brothers petitioned the Holy Father to grant them absolution, if they had indeed incurred ecclesiastical censure through their actions. In addition, they asked to be granted a dispensation allowing the Jews to remain in their lands, so as to spare their subjects from even greater economic misfortune.

At the close of World War II (WWII), Winston Churchill suggested summarily executing the remaining Nazi leadership. Franklin Delano Roosevelt disagreed, insisting on prosecuting them in an international military tribunal. This is considered the “birth” of International Criminal Law (ICL), following a consensus that “[t]he Nazi atrocities gave rise to the idea that some crimes are so grave as to concern the international community as a whole.” A few earlier instances of penal action against violators of the laws of war are acknowledged, but they are dismissed as unrelated to current ICL, because (presumably) these cases are sporadic domestic legal actions that lack a common doctrine.

In 1974, gay father Bruce Voeller sought visitation with his three children after divorcing his wife. The New Jersey family court held a six day trial that centered on expert witness testimony as to whether Voeller's homosexuality would be detrimental to his children. Drs. Richard Green and John Money testified on Voeller's behalf, whereas Voeller's ex-wife called Dr. Richard Gardner, who concluded that “‘the total environment to which the father exposed the children could impede healthy sexual development in the future.’” In his opinion, which imposed strict limitations on visitation, the judge focused on the opposition within the American Psychiatric Association (APA) over the decision to declassify homosexuality as a mental illness, reasoning that psychiatrists' inability to agree on how to define or classify homosexuality indicated that it was impossible to know what effect Voeller's homosexuality would have on his children. The court consequently concluded that the medical controversy, combined with “the immutable effects which are engendered by the parent-child relationship, demands that the court be most hesitant in allowing any unnecessary exposure of a child to an environment which may be deleterious.” The court imposed visitation restrictions to prevent the children from being in “any homosexual related activities,” which included prohibiting Voeller from ever introducing his partner to the children.