Fundamental Illegitimacy

63 Pages Posted: 4 Aug 2020

See all articles by Carter Dillard

Carter Dillard

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

Date Written: July 6, 2020


This article will lay out a theory of political obligation, autonomy and family planning called the zero-baseline model (ZBM). This model is designed to initially orient other theories of obligation and autonomy, specifically accounting for one aspect of those theories that has either been ignored or misunderstood: the creation of the people to whom the theories refer and upon whom they rely. At its core, the ZBM is relatively simple. To be comprehensive, evaluations of political autonomy (versus obligation) or self-determination (versus determination by others), must first orient from a baseline of the absence of any form of human influence or affect (point zero). This baseline is represented by the nexus of: (1) the preexistence of future persons and (2) the outer edge of extant human influence. Properly oriented, the creation of sovereign persons at the nexus should reduce the capacity for self-determination and increase the capacity for determination by others, in linear form, until the particular legality divides. To ensure this simple scale, and the sovereignty (or the capacity to convert power into law via consent) it represents, requires specific thresholds for the maximum quantities, minimum constitutive qualities, and initial relative positioning (both to each other and their ecology) for all new members of any given legality. Given this schema, we can conceptualize of a new liberating grundnorm, or creation norm, comprised of these thresholds that maintain the scale, and are an antecedent and necessary condition of any coherent conception of sovereignty, legitimacy, or freedom.

The ZBM has significant ramifications for law and policy, requiring a full-scale reform of the universal fundamental human right to have children and associated family planning polices, reorienting them from fulfilling what would-be parents want, subjectively, towards a ZBM “Fair Start” standard for what future children need, objectively.

Moreover, under the ZBM these policies become uniquely peremptory because they sit lexically prior in the list of human rights, i.e., we are before we do. By breaking and replacing the private family planning paradigm, the ZBM would allow us to derive new policies for things like the climate and other ecological crises, child poverty, economic inequality, and the realization of human rights and democracy that would act upstream. Further, the ZBM would be exponentially more effective than the current, downstream alternatives presently being considered. These policies would employ the thresholds and scale of the ZBM to, in short, emancipate people by limiting the total quantum of human power and influence, and decentralizing that power intergenerationally. This embodies the realization of negative and positive freedom, or the capacity to be free from others and free to choose among valuable options in life, and as such the unification of the various generations of human rights.

This approach is novel. Impracticalities have blocked the ZBM for centuries, including a lack of reproductive technologies, limited knowledge regarding the impact of early childhood development, the absence of international law mechanisms for cooperative family planning, and, a specific chain of errors in the prior theories of political autonomy, obligation, and legitimacy. How did we ever come to believe the myth of intentional and just systems of social organization without actually accounting for the entry of persons, or the creation (or procreation), development, and consensual integration of the systems’ parts? Some conceptual errors include the use of a static, top-down, and noun-form conception of political constitutions rather than the dynamic, bottom-up, verb-form, thick conception of constituting; using a limited conception of power focused on violence; ignoring the process of meaningfully emancipating children from their parents; basing our constitutions on parental property in future persons; not accounting for the way that sovereigns cannot be included in any system without excluding other sovereigns, or degrading sovereignty; and more recently, adherence to the self-contradictory concept of procreative autonomy, which has created a negative feedback loop that is degrading systems of human rights and democracy at an accelerating rate.

There is no rational account of power, or norms that does not first account for the creation, quantities, qualities, and initial relative positionings of people, both to their ecologies and each other. This article will explain these impracticalities and errors, before turning to the ZBM as a solution, both in theory and in practice, detailing many of the specific policy reforms the model — as a peremptory norm — will require.

Suggested Citation

Dillard, Carter, Fundamental Illegitimacy (July 6, 2020). Willamette Law Review, Forthcoming, Available at SSRN:

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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