Antecedent Law: The Law of People-Making

57 Pages Posted: 10 Mar 2009 Last revised: 7 Jul 2010

See all articles by Carter Dillard

Carter Dillard

Uehiro Centre, University of Oxford ; University of Oxford - Oxford Uehiro Centre for Practical Ethics

Date Written: September 15, 2008

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

Suggested Citation

Dillard, Carter, Antecedent Law: The Law of People-Making (September 15, 2008). Mississippi Law Journal, Vol. 79, No. 4, p. 873, 2010 , Available at SSRN: https://ssrn.com/abstract=1268363

Carter Dillard (Contact Author)

Uehiro Centre, University of Oxford ( email )

Suite 8, Littlegate House
16/17 St Ebbe's Street
Oxford, OX1 1PT
United Kingdom

University of Oxford - Oxford Uehiro Centre for Practical Ethics ( email )

Suite 8, Littlegate House
St Ebbes Street
Oxford, OX1 1PT
United Kingdom

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