Wednesday, September 17, 2008
Carter Dillard on Antecedent Law
Carter Dillard (Westerfield Fellow, Loyola University New Orleans College of Law) has posted Antecedent Law: The Law of People Making on SSRN. Here is the 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 essay introduces a simple and concrete conceptual device, a form of law called antecedent law, that seeks to undue this presumption and refocus our attention on that which determines the presence of persons in the polity and their susceptibility to law. This essay introduces the form antecedent law, describes its role in recreating the polity, begins to identify and advocate for a substantive content for the form - namely that which 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 essay invites us to change the way we think about seemingly disparate issues like procreation, immigration, and education, their relation to law, and the common and uniquely compelling interests we and future generations have in them.