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.

Rights are at home in law-courts. In popular understanding, they seem like attributes attached to individuals who are found in isolation. When carefully examined, however, they can be characterised as aspects of relations in the sight of a tribunal (which may, of course, be conscience or public opinion or God). They have their being, it might be said, within a field of vision - the version of reality that the tribunal sees - in which a right apparently located in one person must have a dissimilar correlate located in another. If, when the information that counts as fact in, a court is in principle willing to do X for A against B, it cannot simultaneously have the same willingness to do X for B against A. On the account definitively worked out by Wesley Hohfeld, my claim must have its correlate in someone else’s duty, but even the simplest privilege (my right against the world to take a walk into the park) has correlates in ‘no-rights’ attaching to the indefinite range of other individuals who might take legal action with a view to stopping me.

When authors in the sixteenth and seventeenth centuries wrote about what it meant to have rights, they discussed a great diversity of ways in which that concept could be understood, but they almost always concurred on one point. It was vital, they argued, that right should never be conflated with power. As Hugo Grotius put it, we must never agree with the claim that might is right. The twenty-six essays in this volume show that the idea of rights was widely used in the early modern period to resist and limit power. Accordingly, modern liberals have portrayed the period in terms of a struggle for rights against arbitrary power. However, the authors in this volume question that the story of rights as resistance was the dominant narrative of rights. If there was a dominant discourse of rights in the early modern period at all, it was one in which rights were coextensive with power.

In 1739, the author who wanted to go by the name of Sophia, A Person of Quality, published a text called Woman Not Inferior to Man: Or, A short and modest Vindication of the natural Right of the Fair-Sex to a perfect Equality of Power, Dignity, and Esteem, with the Men. This title gives voice to what has become an established way of thinking about the history of liberation, and of feminism in particular – that is, as a history of the vindication of rights, as Mary Wollstonecraft would go on to echo in her own titles, A Vindication of the Rights of Men in 1790, and then, when it appeared that women were not included in mankind, A Vindication of the Rights of Woman in 1792.

There are many reasons why Roman law probably shouldn’t be included in a study tracing the origin of rights. Roman law, first of all, was the law of an ancient slaveholding civilization, built on a ruthless legacy of war and conquest. As any student of Roman law will know, slavery was interwoven into the fabric of Roman law, making it impossible to understand fully how the Roman legal system operated without recognizing the everyday legal reality of Roman slavery. Practically every aspect of Roman law depended on whether those subject to it were legally free or slave. Given this illiberal legacy of slavery and the basic inequality of status encoded into Roman law, it’s difficult to see how Roman law could plausibly serve as a model for theorizing rights.

Maior dignitas est in sexu virilis - the male sex has more dignity: this aphorism from Justinian’s Digest seems to be the reason why ‘in many parts of our law the condition of women is worse than that of men’, as we can read in a different passage. Affirming the inferior position of women in the law, these passages are often taken as the ‘official, generally consented stance’ of early modern gendered rights discourse. They seem to show that the respective legal conditions of men and women relate to the specific, innate characters of the sexes or, perhaps, their nature. It then might seem to us today that for early modern legal thinkers justifying sexual differentiations of rights was a straightforward undertaking; we might assume that early modern law and rights worked as male instruments of female subjugation that asserted and cemented a ‘natural’ hierarchisation of the sexes, which modernity slowly came to equalise.

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.