Vol. I  ·  No. 1  ·  Est. MMXXVI

What gives law the right to bind us — and what becomes of that right at its edges?

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Constitutional Theory · Lead Essay

The Authority We Did Not Choose

If no living citizen ever consented to the constitution that binds them, what makes its commands law rather than mere inherited force? The basic-structure doctrine suggests an answer the social-contract tradition missed.

By the Editor  ·  18 min

Every constitution issues a demand before it earns a right to. It speaks in the imperative to people who were not in the room when it was written, and most of whom would not have signed it if they had been. The puzzle is not new, but the usual escapes from it — tacit consent, hypothetical agreement, mere benefit — each fail in a way worth taking seriously.

What India added to this old argument was not a better theory of consent but a theory of constraint: that some commitments are constitutive of the order itself.

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Why the claim that law is genuinely authoritative is harder to vindicate than legal positivists usually let on — and what is left of authority if it fails.

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Private Tribunals, Public Law

An arbitral award binds like a judgment yet issues from a contract. Tracing where, exactly, its authority is supposed to come from — and whether the account holds.

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Constituent Power After Kesavananda

Can a people bind the amending hand of its own future? India answered yes in 1973. The theory of constituent power is still catching up to the doctrine.

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Notes

Shorter takes · published between essays
01On the difference between legitimacy and legality, and why courts keep collapsing the two.
02Finnis, and the trouble with reasoning from "central cases."
03Is investor-state arbitration a constitutional problem wearing commercial clothes?
04Kelsen's Grundnorm, read as a confession rather than a foundation.

Reviews

On recent work in law & legal theory
A review of recent scholarship on constituent power

The People, Pluralised

By the Editor
A review of new work on the rule of law

Authority Without Apology

By A. Contributor
From the Editor

This is a review of one question asked many ways: what gives law the right to bind us — and what happens to that right at its edges.

Law & Reason publishes long-form essays, notes, and reviews on the authority and legitimacy of law, with particular attention to the Indian constitutional tradition and the philosophy of adjudication. It is independent, edited rather than aggregated, and open to scholars and practitioners writing seriously for a serious reader.

— the Editor Founding Editor

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