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This chapter develops theoretical perspectives on how the practice of interpretation makes international law. It first rejects orthodox legal positivism’s assumption that law can be found in the norm text and illustrates how semantic change challenges the normative construction according to which subjects can only be bound with their consent. Once they make a commitment, the content of such a commitment is no longer in their hands alone. The chapter identifies shortcomings of theoretical approaches that have shifted their attention towards lawmaking in communicative practices and connects to developments in linguistic theory as well as sociology to introduce a concept of practice that supersedes old divides. The chapter cuts to the core of semantic struggles in law by discussing the exercise of power and authority in legal interpretation and closes by introducing the main actors in international legal discourse.

This chapter examines campaigns for party quotas in Sweden and the United Kingdom. Before quotas, both countries had relatively similar levels of female representation. In Sweden, advocates pressed parties to adopt recommendations and targets in the 1970s and 1980s but radicalized their demands over the course of the 1990s, eventually gaining commitments from most parties to alternate between women and men on their candidate lists. In the UK, a major party adopted a quota in the early 1990s, which was later declared illegal on the grounds that it violated anti-discrimination law. Following a period of legal ambiguity, MPs reformed the law to allow but not require parties to pursue positive action in candidate selection. This has since led to significant variations among parties in terms of their recruitment of women. As such, women now constitute 47% of MPs in Sweden but only 20% of MPs in the UK.

Focusing on the work of the French philosopher Jacques Rancière, Chapter 5 examines the right to have rights in terms of the politics of human rights—of the rightless taking up, claiming, and enacting denied rights. The subject of rights is the limitless subject of politics. This is a performative understanding of the right to have rights in that the excluded confer a ‘place in the world’ on themselves. While Rancière seeks to overcome exclusions from the subject of rights, it is argued that his account is not itself immune from exclusion. Finally, the chapter examines the implications of Rancière’s work for international human rights law.

This chapter returns to the claim adumbrated in Chapter 1, that private law is autonomous and nonpolitical. Turning from substance to process, from specific tort doctrines to the judicial roles, it elucidates the public nature of corrective justice when actualized in an operating system of private law. By considering the relationship between the formalist idea of private law and the concrete particularity of the social life that private law governs, it shows how private law can be autonomous without being detached from social reality, and how corrective justice can become public without being political. The autonomy of private law refers to its self-regulation as it realizes the distinctive rationality immanent to it. Corrective justice is non-political because, unlike distributive justice, it involves the choice of no external purposes. The chapter concludes by discussing the ways in which private law so conceived is both determinate and indeterminate, stable and variable.

Some of the most decisive developments in European human rights law took place in the mid to late 1970s when the ECtHR embarked on crafting what is now known as its dynamic human rights doctrine. Against the background of an analysis of the original development of European human rights as ‘legal diplomacy’, this chapter raises the question of how the considerable change of the Court of the mid to late 1970s came about and which social, political, and legal conditions facilitated it. The chapter addresses both the structure and agency of the ECtHR and their transformations over the period 1959–79. The chapter challenges existing explanations by suggesting a relational and, thus, structural connection between the agency of the ECtHR and its surroundings as a framework for explaining the transformation of the Court.

Constitutions work by constraining, constructing, and constituting politics. Constitutions constrain politics when citizens and governing officials subordinate their policy preferences to constitutional norms. Constitutions construct politics when citizens and governing officials follow the rules that determine whose policy preferences and constitutional understandings at any time are the official law of the land. Constitutions constitute politics when citizens and elected officials are socialized in ways that lead them to internalize constitutional values and regard constitutional processes as the only legitimate means for resolving legal and policy disputes. The common obsessive focus on constitutional constraints ignores alternative means by which the Constitution of the United States works to protect fundamental rights and limit government, disregards entirely how the Constitution of the United States promotes vital constitutional purposes that cannot be reduced to legal norms, and provides an impoverished account of the constitutional crises that have wracked American constitutionalism

The introduction argues for including the study of the ECtHR in general scholarship on international judicial institutions. The ECtHR provides a key case as to understanding the evolution of international law over the last half century. Providing a short overview of the evolution of the ECtHR, the introduction situates the book's individual chapters in respect to the book's overall objectives of answering the key questions related to what made the ECHR system develop in its particular fashion: what facilitated and impeded this process, and how this trajectory will impact on the future development of the Court in light of its current legitimacy crisis.

The roles played by reason, will, and imagination in securing the operation of law vary from legal domain to legal domain. Occasionally, as in certain rules of the road, the very presence of law renders rival courses of action rationally ineligible. More often, as in the case of crimes such as theft, there may well be good reason to do other than the law requires, and enforcement must accordingly be invoked. However, force is rarely sufficient and often inapt. It requires the support of social and political imagination. What is more, these exercises of imagination have a special role to play in the project of creating a life in common in circumstances of diversity. Only through them is it possible to shape attitudes as well as actions. This chapter explores the mechanisms and the politics of imaginative appeals, judicial and legislative; what they make possible; and what price they exact.

This chapter extends the analysis in which David Downes and the author engaged in their joint essay on ‘law and order’ politics over three editions of the Oxford Handbook of Criminology. In doing so, it reflects on developments since the new millennium. It also suggests as the starting point Prime Minister Blair's pronouncement that the excesses to be laid at the door of the liberal 1960s are now to be tackled head on. This represents, it argues, the latest effort by New Labour finally to expel the Old Labour ‘skeletons in the cupboard’, as David and the author termed it, thereby preventing the Tories from recovering their traditional stronghold to the ‘law and order’ right of Labour. It is stated that the rules of the game have indeed changed, and are radically changing. The autumn 2005 ‘rules’ debate has of course been placed on a much more bitter argument about whether the 2003 invasion and subsequent occupation of Iraq was and is justified, and whether those events have made the world and Britain a more dangerous place.

This chapter describes the “crisis of private law” to which the book’s argument responds. The crisis consists partly in the immersion of private in public law, partly in the bifurcation of transactional law into right-based and good-centred legal paradigms. These frameworks compete inconclusively for control of transactional law and, standing in hostile opposition, seem to turn law’s rule into politics by other means. The chapter introduces the idea of dialogic community and suggests that the opposing paradigms of transactional law can be reconciled within it. It also suggests that dialogic community can reconcile a passive description of transactional law’s internal unity with a critical judgment of that unity, thereby avoiding an uncritical deference to transactional law’s special morality, on the one hand, and a reductive justification of that morality, on the other.

This chapter analyzes the politics that led to the passage of the Brady Law. It assays the politics of the Brady Law, illuminating the time, effort, and political circumstances required to pass even modest federal gun control legislation. On the one hand, the Brady Law could be cited for the proposition that reasonable, albeit modest, federal gun control is politically possible. On the other hand, the tortuous road that the Brady Law's proponents had to traverse and the negative political fallout for the Democrats could be cited for the proposition that passage of even modest gun control takes monumental effort plus luck and imposes heavy political costs.

The chapter addresses the origins of the Critical Legal Studies movement with a view to reconstructing the conditions for its emergence as a movement of radical reform. The marked political character of the law, and its unavoidable indeterminacy, are some of the recurrent themes of the movement that have been later imported into international law by a ‘New Stream’ of international law scholars. The questions discussed include: What are the consequences of the indeterminacy thesis? Are there limits to a deconstructivist approach? What is the audience addressed by this particular strand of scholarship? Can a critical project be at the core of a discipline and be turned into its very identity? Issues of style and a certain tendency by its adherents to be self-referential and use cryptic language are also examined. Finally, the impact of critical theory on the self-image of the profession of international lawyers is highlighted.

E pluribus unum, unity amid diversity, matters. Social science describes how deeply polarization affects us, why it matters, the effect on our “social capital,” and the implications for America. We look at the changes in mass media law and the law of politics that contribute to our polarization. We look at changes in the laws affecting our communities, jobs, schools, and the military draft that once pulled us together.