The loss of community is often seen as one of the reasons for the alienating experience of modernity. Community seems to allow for a civic-minded solidarity that counteracts the legitimation crisis of democracy by returning agency to citizens. Such a demand for a communitarian correction to liberal constitutional democracy is not without dangers, even when this demand is intended to stand in the service of a more democratic life. This chapter traces the fate of this communitarian desire in a broader transatlantic field, highlighting the uncanny connections among the philosophical debate about communitarianism, the antidemocratic and authoritarian drift in American conservative political and legal thought, and central aspects of European neofascism. These connections should make us suspicious about the democratic potential often ascribed to community. The ease with which arguments for a communitarian correction of democracy can be used against democracy suggests that community lacks an intrinsically democratic and emancipatory potential.

In this chapter I respond to two claims about unborn human beings: first that they have no rights because they have no interests; second that they have no rights because they are not persons.

Federalism, separation of powers, bicameralism, the electoral college, judicial review, constitutionally guaranteed rights, and the relative difficulty of amendment have all helped limit the influence of political factions.

Attempts to register and control the populations of the east left a documentary record that was often extremely local. Provincial subjects proved astute readers and compilers of local documentation, which they rearranged in order to make claims of right. These claims can be mined for their underlying legal ideologies. Provincial subjects imagined law not as an abstract system, but as a running list of privileges and disabilities. Rights emerged from having the most correct or most persuasive hermeneutic for making sense of collections of documents in dialogue with officials, through the process of generating legal paperwork. Archives were not merely repositories of external facts about the world: they were collections of arguments that could be made. Law emerged from the collaborative process of claiming such rights.

Chapter 2 reviews John Merryman’s ‘two ways of thinking’ about cultural property, rooted in an eighteenth-century dispute about the respective merits of particularism and cosmopolitanism, which continues to the present. A new section has been added on material looted from Benin.

Chapter 1 opens with a discussion of values, which frames the volume. It then reviews four well-known works/groups of work to introduce a debate about cultural ownership, beginning with the Bamiyan Buddhas, followed by Guernica, the Parthenon sculptures, and Gilbert Stuart’s portrait of George Washington.

The final chapter opens with a hypothetical debate between cosmopolitan and particularist positions, which is then mapped onto contemporary political philosophy. It concludes with Joseph Raz’s pluralist and perfectionist liberal requirement that states should support culture.

A quick glance through history demonstrates that it has not always been an unbroken chain of human happiness, to put it mildly. Different individuals, groups and peoples have faced persecution for any number of reasons: where they came from, how they looked, their perceived (dis)ability, who or what they believed in, who they loved, how they identified, the family they were born into, or for no reason at all. It is against this backdrop that our current set of human rights has emerged. While this chapter focuses primarily on children’s rights and their relationship with education and educator obligations, it is necessary to understand the history of rights in order to understand why human rights, and particularly children’s rights, are so important to the work that we do as educators.

While debates may rage around issues of sexuality, sexual identity and sexuality-based rights, if we are to believe what we hear from some of our political leaders and sections of the media, concerns over sexuality itself are to be settled outside of schools. Sexuality, they would argue, is too mature, too controversial and quite simply a biological fact that has no relevance to schooling. However, there are disturbing stories and statistics that point to the significant challenges faced by students, and these surely warrant attention. With this in mind, this chapter examines some of the questions that often arise when talking about sexualities: Are gender and sexuality the same thing? Is sexuality ‘all about sex’? And what has school got to do with any of this? By unpacking some of the emergent literature in the field, the chapter suggests that dominant discourses around sexualities – in this case, heteronormativity – are up for challenge.

After the installation of a liberal constitution, the socialist tilt in the aftermath of independence challenged some of the fundamental rights guaranteed by the Constitution, particularly the right to property, culminating in the removal of the right in the 1970s. Apart from noting the consequences of this, the chapter explores the effects of judicial hyperactivity manifest in public-interest litigation, as well as instances of overt judicial deference to the state. The other theme of the chapter follows the market orientation accompanying the 1991 economic liberalization, with the prominent challenge residing in the incapacity of the law and legal structures to govern long-term investment contracts. It is argued that the response – the creation of multiple regulatory bodies – resulted not only in fragmenting the law but also in raising generic social costs. The conclusion reinforces the narratives highlighted over the chapter by looking at arbitral awards imposed on India on account of international investment disputes.

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.