This chapter discusses the idea that being ‘in transition’ towards a juridical condition impacts or shapes our duties and rights from a Kantian perspective. It analyses the implications of treating juridical duties as if they were duties of virtue, in the absence of or under imperfect juridical institutions. It argues that this introduces a problem for Kant’s account of ethical and legal obligations because respecting the dignity of those to whom a juridical duty is owed requires treating their claims as a matter of right instead of ethics. It also criticizes the way in which Kant’s theory of acquired rights in the state of nature has been reinterpreted as a theory of ‘provisionality’. Recent Kant scholarship has highlighted the ability of Kant’s legal-political theory to guide us through messy political developments in the manner of non-ideal theory. The chapter will object that the way Kant connects provisional rights and permissive laws has little to do with non-ideal theory, and follows instead from Kant’s apagogical argument for acquired rights in the state of nature.

As part of the major premise of the Declaration’s syllogism and of a general theory of rightful government, it is unlikely that the main ideas in the Declaration’s second paragraph exist as separate, free-floating nuggets of indeterminate meaning. My task in this essay is to reconstruct the theory of rightful government contained in that paragraph in order to progress toward fixing meaning for those ideas – equality, rights, liberty, and others – that have been so important to the self-understanding and political aspirations of Americans from 1776 on.

Critics argue that assigning to the courts the authority to resolve certain categories of contested questions of value will lead to judicial overreach and unjustified interference with the majority’s exercise of power. This argument is deeply misleading. The most salient instances of judicial failure have involved judicial restraint and deference to the other branches of government rather than the exercise of judicial power. The cases that constitute paradigm examples of judicial failure—Plessy, Korematsu, Bowers v. Hardwick—involved excessive judicial deference and inaction, not judicial overreach. While critics argue that intervention by the courts to protect rights may produce bad consequences, the consequences of failure to intervene are tangibly more significant than the consequences of intervention. While consequentialist objections to judicial review do not, I have argued, undermine or qualify the arguments for the value and importance of the institution of judicial review, recent instances of judicial overreach point to the need for greater accountability. Nominees must be required to provide full disclosure of their judicial philosophy and approach to judicial reasoning, and members of the Senate must give that information significant weight in their deliberations.

If drainage aimed to free land from the vagaries of floodwater, then enclosure was necessary exclude commoners and transfer management of land to improving landlords and tenants. The development of ‘absolute’ private property in early modern England has often been analysed via legal categories or socio-economic outcomes. Resituating property-making as an environmental act, this chapter argues that the contested exercise of land rights in Hatfield Level relied on the ability to determine how water moved, where cattle could graze, and what kind of plants grew. It traces the words and practices through which commoners and improvers defined their rights, often hinging on disputes about the just distribution of resources. This chapter explores a spectrum of local responses to improvement, including complaints of scarcity, socially fraught adaptation, and action to reinforce customary rights. As disputes over enclosure escalated, physical acts of cultivation and grazing became means by rival groups asserted ‘right’ as jurisdiction and legitimacy. In doing so, they created contrasting environments, generative of different social, economic, and political relations.

A theory that takes seriously Waldron’s intuition that a majority is not "entitled to impose a decision on others, simply on the ground that there are more individuals in favor of the decision than against it" requires an account of the conditions under which majority support does constitute adequate justification for the legitimate exercise of political power. If this claim is true, however, then it would seem that a legitimate democratic form of government must regulate the influence on social choice of preferences inconsistent with the foundational commitments of democracy. Only if political institutions—in particular, rights—perform such a function will it be possible to "mak[e] sense of the democratic quality of public will." It is therefore implicit in Waldron’s own view that regulation of the relation between preferences and the community’s political choices is a constitutive condition of democracy. In offering an account of the institutional arrangements necessary to regulate the relation between preferences and social choice, then, the constitutionalist view is more responsive to the theoretical challenges raised by the fact of pluralism than the interpretation offered by majoritarians.

The majoritarian critique of judicial review asserts that democracies should assign the power to resolve questions regarding the nature and extent of individual rights to the majority and their representatives. The literature addressing these issues, however, suffers from a consistent failure to examine carefully basic questions about the nature of democracy. The western democratic tradition works from the foundational intuition that legitimate power derives from the consent of the governed. That intuition justifies majority rule as an important element of social choice, but it also requires the entrenchment of rights protections as an element of any acceptable set of political institutions. If entrenched rights are to provide effective protections to liberty interests, they must be enforced by an institution that is not subject to majority control. Democratic institutions must therefore include an institution independent of majority control whose purpose is to enforce rights protections against the majority. While this argument does not establish that the judiciary is the only institution appropriate for this role, it does demonstrate the essential role played in democratic institutions by a rights-enforcing institution that is independent of majority control.

By late 1964, peace activists coalesced to oppose US policy on the emerging Vietnam crisis. US government decisions stimulated greater dissent, turning a peace movement trying to stop the war’s escalation into a persistent antiwar movement. The movement had three primary constituencies that differed in fundamental ways: liberals, pacifists, and leftists. Their essential arguments fell into different categories. Practically, the United States could not create a stable representative South Vietnamese government from the outside. Its open-ended commitment to Vietnam did not involve vital US interests, would divert resources from more significant needs, and did not justify the costs. Morally, protesters believed that the destruction and cost of an extended war would be worse for the Vietnamese than communist rule and making the Vietnamese suffer for American objectives was ethically unacceptable. Others claimed that the process of intervention violated US political ideals and threatened its democracy. Pragmatists argued that China was the real Asian threat, and that America’s policy was counterproductive by undermining regional stability.

The Introduction examines the emergence and development of law and literature as an interdisciplinary field, while highlighting the ways in which eighteenth-century studies has contributed to and been shaped by the enterprise. Over the past twenty-five years, scholars have examined numerous connections between the era’s legal and literary discourses, emphasizing the formal complexities of both legal and literary texts. The chapters in this volume build upon and extend this body of work, taking up topics including the nature of legal and literary interpretation, the role of legal rhetoric in Britain’s industrial economy, the desire for and resistance to law during public health crises, the regulation of the legal profession, the emergence of the modern judicial decision, the place of law in Britain’s expanding empire, and the role of law in maintaining and rectifying gendered, racial, religious, and class-based inequalities. The Introduction presents an overview of these case studies, reflects on themes running through the volume, and offers suggestions for future work in the field.

Drawing on an ongoing conflict over hydrocarbon development in a protected area in Southern Bolivia, this chapter explores resource frontiers as key sites of juristocratic reckoning, where international and national discourses of rights are simultaneously invoked and undermined by violent processes of accumulation by dispossession. A leading example of transformative constitutionalism, Bolivia’s 2009 Constitution defined the country as a “Plurinational State” and recognized an array of new rights for Indigenous, originary, and peasant peoples, including in relation to territory and the environment. Yet state dependence on natural gas extraction has produced a widening gap between legal discourse and practice. This chapter asks: What new forms of politics emerge as communities at extractive frontiers reckon with the possibilities and limits of law and rights to confront ongoing processes of environmental dispossession? The arrival of oil companies in the Tariquía Reserve catalyzed a wave of human rights education in remote rural communities, yet a series of failed constitutional challenges have exposed the limits of law and rights as instruments to counter state-led extraction. Rather than turning away from rights, the chapter argues that community activists in Tariquía see themselves as custodians of the 2009 Constitution against the state. Their embodied praxis of territorial defense points to a form of juristocratic politics from below, in which the state’s monopoly on political and legal authority is called into question.