Antecedent Law: The Law of People-Making

Abstract

In our conception of law we have largely presumed the process by which the people whose behavior the law is meant to regulate come to be present and susceptible to the law's influence. As a result, that process is largely outside of our account of the law, and any role the law might have over the matter is relatively ignored. This article introduces a simple and concrete conceptual device, a form of law called antecedent law, which seeks to undo this presumption and refocus our attention on that which can determine the presence of persons in the polity and their susceptibility to law. This article introduces the form antecedent law, describes its role in recreating the polity, begins to identify and advocate for a substantive content for the form - specifically one that maximizes what Joseph Raz has called valuable autonomy - and finally touches on three potential counterarguments, which would reject the form and its contents. In less abstract terms this article invites us to change the way we think about seemingly disparate issues like procreation, immigration, and education, and to reconsider their relation to law and the uniquely compelling common interests we and future generations have in them.

Keywords: Legal theory, constitutional law, reproductive rights, population, immigration, education