My introduction considers the rhetorical mechanics of Roman legal writing, and isolates three distinct discursive modes in which legal writing represents the world: the normative, the descriptive, and the constructive. I then discuss the ideological valence of law in the Roman imagination, with reference to Cicero’s description of the ideal magistrate as a “talking law.” I finally provide a plan of the work.

International law is a system of rules, institutions and practices that govern the relations of States with one another. It is designed to distribute resources and solve problems that States identify as relevant for creating order in the world. In a world without a centralised government States use international law and its institutions to generate solutions for emerging and complex issues and problems, such as climate change and terrorism. The effectiveness of international law is often called into question when it fails to stop certain kinds of activities that appear abhorrent to most people from around the world. However, it also manages to resolve and address issues and challenges that would otherwise get ignored without international cooperation. A lot of international law is designed to meaningfully contribute to establishing order. States also use it to legitimise disruptions to global relations.

I conclude the book by discussing how later historians used Roman law to imagine legal orders that were more appealing than their own conditions. I use two examples: Bracton, whose treatise on English law used Roman concepts to aggrandize jurists like himself within the legal system of the thirteenth century, and Fritz Schulz, a refugee from Nazi Germany whose writings imagined a Roman rule of law as an implicit counterpoint to the totalitarianism he had fled. I finally argue that this rhetorical feature of Roman law is not unique to the Roman context, but instead reflects a broader aspirational tendency in legal writing and historiography.

This chapter completes the act of setting the stage for the rest of the book by stressing the significance of the relationship between legitimacy and law, at the national level as well as at the international level. Legitimacy and law do not have a simple and straightforward relationship—far from it. Highlighting four features of this relationship helps shed light on the complexity of their relationship and serves as a preview of some of the issues that will be addressed throughout the book. These four features are the paradoxical character of the relationship between legitimacy and law; the unavoidable, yet at times, problematic role of values in the legitimacy–law nexus; the need for legitimacy and law to not be entirely captive of the power on which they depend; and the nature of these features for legitimacy and law at the international level.

A strategic, organized, and coordinated attack on the basic tenets of higher education in the United States was launched in late 2020 when the Executive Order on Combating Race and Sex Stereotyping was issued by Donald Trump, prohibiting most diversity training in federal agencies. Republican-controlled states quickly enshrined laws to limit how public schools, colleges, universities, and even individual faculty members can discuss racism, sexism, and gender identity in educational institutions. Characterized as a “culture war,” this conservative backlash to antidiscrimination inroads actually constitutes a massive resistance movement, the likes of which perhaps has not been seen in the United States since the civil rights era. Black writers and intellectuals have a long history of confronting the massive resistance of whiteness. Black nonfiction writings, in particular, offer revealing critiques and warnings about the impacts of whiteness in the modern world.

In the common law tradition, legal decisions are supposed to be grounded in both statute and precedent, with legal training guiding practitioners on the most important and relevant touchstones. But actors in the legal system are also human, with the failings and foibles seen throughout society. This may lead them to take methodological shortcuts, even to relying on unknown internet users for determinations of a legal source’s relevance. In this chapter, we investigate the influence on legal judgments of a pervasive, but unauthoritative source of legal knowledge: Wikipedia. Using the first randomized field experiment ever undertaken in this area – the gold standard for identifying causal effects – we show that Wikipedia shapes judicial behavior. Wikipedia articles on decided cases, written by law students, guide both the decisions that judges cite as precedents and the textual content of their written opinions. Collectively, our study provides clear empirical evidence of a new form of influence on judges’ application of the law – easily accessible, user-generated online content.

This chapter explores how civil society mobilization in Latin America can undercut a core component of liberal democracy: the experience of universal citizenship rights backed by rule of law. It examines civil society activism around two issue areas: opposition to inclusion on the lines of gender identity and sexuality, and support for militarized approaches to policing. Right-wing civil society groups repurpose rights ideas that are typically associated with the left to contract the citizenship rights of marginalized groups that they depict as existential threats to society, including poor and racialized adolescents, people experiencing homelessness, and sexual minorities. In the process, right-wing groups construct discourses about which kinds of individuals have the rights of citizenship, and which kinds of individuals imperil the rights of truly deserving citizens. The discursive foundations laid by civil society provide rich terrain for illiberal politicians to build on and mobilize political support.

A pragmatic approach to international human rights law involves discussing its premises, principles like human dignity, liberty, equality, and solidarity, and structural principles such as democracy, pluralism, and the rule of law. The chapter also examines the conditions, matters, and actors involved in the discussion. It explores how these principles are applied in practice and the challenges faced in their implementation. The chapter emphasizes the importance of a pragmatic approach that considers the practical realities of applying human rights principles in different contexts. It also discusses the role of various actors, including states, international organizations, and civil society, in promoting and protecting human rights.

The rule of law is a normative political ideal. This chapter presents two approaches to understanding it. The first is the legal essentialist approach, which derives an account of the rule of law from an account of the essence of legality and legal systems. The second is the limited government approach, which derives an account from a normative theory proposing a role for law in opposing and negating the arbitrary power of persons over others. The chapter contends that the latter approach is more persuasive than the former. However, and despite recent refinements, the approach has a legacy of libertarian thinking and has not acknowledged what the author of this chapter refers to as a regulatory conception of the rule of law which has a prominent social dimension. The social dimension entails a duty founded upon the rule of law ideal to legally regulate private arbitrary powers whose exercise allows some to impose coercion as well as non-consensual exploitation on others. The regulatory conception and its social dimension help us understand the appropriate relationship between the rule of law and human rights, the welfare state, and democracy.

The chapter recharacterises the founding instrument of international organisations as constitutions. They function as a legal basis for the organisation, they contain provisions about the mission of the organisation, about the organs/bodies and their competences, and regulate the relationship between the organisation and those who are legally subjected to it. It traces two waves of theories which have espoused different conceptions of constitution: The first wave revolved around the “small c-constitution” in the more neutral sense. The second wave postulated constitutions “with a capital C” that enshrine the constitutionalist trinity: rule of law, human rights, and democracy. In the current constellation of a global shift of power and ideology, a third theory for constitutions of international organisations, more responsive to the global social question and to the demands of the global south, is emerging. This third theory deserves to be pulled out into the light and should be fleshed out further. It should, on the one hand, not fall back on the small-c constitution and, on the other hand, take on board new principles, notably social transnational solidarity and contestatory democracy. This intellectual contribution can provide a basis for responses to the current pushbacks against international organisations.

The separation of powers is not a theory of mechanical checks and balances or counterforce. Any sufficiently complex organization will have competing interests or sub-units; most do not have a separation of powers. This chapter identifies the conceptual and normative core of the separation of powers as a particular kind of institutionalization of the rule of law. It is an attempt to guarantee a separation of general rules from applications to particular persons by keeping them apart not only in time but also in personnel and institutional space. The chapter further argues that the idea of the separation of powers as articulated by Montesquieu joined that understanding of the rule of law to bodies and estates of the mixed constitution, relying in particular on independent and high-status nobles to defend the law against the political demands of the executive monarch equipped with coercive force. The democratization of the separation of powers in the American founding stripped away that social independence, and left the separation of powers weaker than has generally been noticed. The chapter concludes with considerations of the modern executive branch, and suggests that separation of powers reasoning might need to be applied internally to it.

Hobbes posed for modernity what we can think of as the puzzle – even the paradox – of sovereignty. The sovereign of a particular polity is the person or body who wields ultimate authority to make law. It follows, he claimed, that the sovereign is legally unlimited. But for Hobbes, any sovereign is legally constituted in that it must comply with what I call the ‘validity mark’ of sovereignty: Legal change must happen in accordance with the criteria of validity. In addition, there is the ‘fundamental legality mark’: To count as an act of sovereign will, a law must be consistent with the laws of nature, in more contemporary terms with the fundamental legal commitments of the legal order. Hobbes’s idea of sovereignty is thus a legal idea, which contrasts with the figure that haunts politics today, the ‘political idea of sovereignty’. I argue that in order to properly oppose the troubling figure of the political sovereign, one needs to have in place not only both marks of sovereignty, but also a political theory of their value. There is a politics to the legal idea of sovereignty.

Climate change, it is often said, is the greatest challenge of our time. As a global phenomenon with a long temporal reach, the impacts of climate change amplify challenges already faced across social, political, economic and ecological spheres. Similarly, constitutional theory is not immune from the impacts of climate change. Yet scholarly engagements between constitutional theory and climate change have thus far been targeted and disparate. This chapter represents an attempt to face up to the challenge of climate change from the perspective of constitutional theory. It takes seriously the discourse of “climate emergency” to argue that emergency is a theoretically defensible framing of the problem. Using the rule of law, rights and federalism as three examples of the challenges that climate change poses for constitutional theory, it highlights some strengths and limitations of existing literatures on these three concepts. Ultimately, it shows that the climate emergency points us to a theory of constitutionalism that builds on these strengths, responds to these limits and provides a path forward for thinking through the role of constitutional theory in a climate-disrupted world.

How much of a role can human dignity play in constitutional law? It can certainly serve as a foundation of some or all of the rights that a constitution comprises, and it may also figure in the specific content of some of these rights. It may do this explicitly or implicitly – implicitly (as in the US Constitution) when dignity’s role is brought out in legal argument rather than the explicit text. Most rights that protect freedom implicate dignity, but so also do social and economic rights in the constitutions that have them. More generally human dignity may serve as a constitutional value, guiding the interpretation of other provisions: it does this, for example, explicitly in the Constitution of South Africa. It may also underpin the constitutional protection of democracy and the franchise, the rule of law, structures of accountability, the importance of citizenship, and the overall orientation of the provisions of the constitution towards respect for the ordinary people of the country that it governs.

Despite being nearly universally recognised as a virtue, judicial independence has been challenged in almost all parts of the world. Some commentators even consider it to be so open to differing interpretations as to be a useless concept, that should be unpacked to its smaller components to be studied meaningfully. We are less cynical about the idea. According to our theory, judicial independence exists where powerful actors are unable or unwilling to inappropriately interfere with the workings of the judiciary. Judicial independence is thus a relational concept and always results from the interplay between the capacity and willingness of powerful actors to inappropriately interfere with the judiciary, and the capacity and willingness of judicial actors and their allies to withstand such actions. We distinguish three levels of judicial independence: de jure institutional independence, de facto institutional independence, and decisional independence. Courts are thus independent when powerful actors do not consistently impose their preferences in disputes they have a stake in, either by capturing the courts through formal changes of laws governing the judiciary, through rigging these laws in their favour, or by skewing judicial decision-making. By contrast, a dependent judiciary is the one that is captured, rigged, or skewed.

Constitution-making acts of persons and institutions are the primary objects of constitutional interpretation. The primary result of constitutional interpretation is an account of the meaning of those acts. This chapter offers an explanation of the prodigious creativity of constitutional courts that involves two elements. First, we all equivocate concerning the meaning of a constitution, treating it variously (or at the same time) as the signification of constitution-making acts, and/or as the significance of the constitution as a framework of governance. Secondly, creativity results from interpreters’ ways of resolving the tension between the rule of constitutional law (that is, adherence to a rule-governed framework of governance) and the demands of constitutional justice (that is, the array of principles of justice in governance that the constitution ought to secure). The boundaries of constitutional interpretation are put in question by the equivocation between meaning as significance and meaning as signification, and by the tension between the rule of constitutional law and the demands of constitutional justice.

This chapter highlights the centrality of the rule of law to Khatami’s presidential campaign. It then reviews the policies of the heads of the judiciary in the post-Khomeini era, with the most far-reaching reform initiatives occurring during the tenure of Shahroudi (1999–2009). These included trying to phase out special courts, prohibiting the security services from running their own detention and prison systems, ending the death penalty for minors, ending execution by stoning, strengthening the rights of political prisoners, and reforming the Penal Code and the Code of Criminal Procedure. Many of these were reversed or watered down by Sadegh Larijani, head of the judiciary 2009–2019. Ebrahim Raisi (2019-2021) revived some of Shahroudi’s reforms in sentencing and also inaugurated a concerted effort to fight corruption in the judiciary. The chapter illustrates that the judiciary is not a monolith, and much of the quality of the rule of law stands and falls with its leading administrators and professionals.

The quality of rule of law has been anything but static in the Islamic Republic: It has varied from area to area of law and across time, with improvements in some years and regressions in others. Established accounts tend to either discount the dramatic erosion of the rule of law in light of the revolution’s other perceived or real achievements (e.g., in terms of education or the Human Development Index [HDI], for example), or paint an entirely bleak picture with gross human rights violations. Discussions seldom differentiate between different areas of law, or acknowledge fluctuations of the rule of law across time. This chapter reviews some of the key areas covered in the volume such as criminal justice, minority rights, property rights, family law, labor rights, freedom of artistic expression and others, mapping progressions and regressions of the rule of law in these spheres and concludes with reflections on prospects for rule-of-law reform.