The first half of the twentieth century saw a veritable industry spring up around Pepys. Three best-selling biographies by Arthur Bryant were influential in establishing Pepys as an English hero, while novels about Pepys’s wife Elizabeth mocked attitudes towards the diary advocated in mainstream historical works. Spurring much of this interest, however, was the experience of two world wars. To trace the roles the diary performed during wartime this chapter looks at three very different productions: the long-running diary parody by R. M. Freeman (1909–46); the war diaries of one of Pepys’s readers, Constance Miles (1939–43); and the post-war BBC drama The Diary of Samuel Pepys (1958). In wartime, Pepys’s portrayal as an ‘ordinary’ Englishman proved more effective than his representation as a heroic figure. The journal and its adaptations legitimated a range of emotional responses to disturbing times.

The chapter considers unwritten constitutional conventions (CCs). They are best known from Westminster systems, where they are embedded in ordinary jurisprudence. They can also be identified in the United States, France (both in the ancien régime and today), and Norway. In these countries their existence and causal efficacy can be shown by historical and current practices. The aim of the chapter is positive (explanatory), not normative. It discusses how CCs arise and evolve and the mechanisms by which they influence decision-makers.

When Roberto Dañino, former World Bank General Counsel, arrived in the institution, he found a department perceived to be at the verge of ‘marginalization’ – a dire state he diagnosed and soon attributed to the rigid ‘culture’ of legal practice. In tracing Dañino’s efforts to ‘make the department relevant again’, we get a glimpse of the situated, material, embodied institutional life of international law: the changes Dañino instilled were not manifested in formal legal sources but in the introduction of new cultural codes, professional prototypes (the ‘how to’ lawyer) and technical routines of risk management. In the domain of international institutional law – often oriented towards abstraction, comparison, or aspiration – such prosaic legal practices tend to be underplayed. This chapter signals two productive entry points for a turn to practice: (i) a focus on the shared and contingent criteria of competence – the ‘social grammar’ – that mark professional postures and performances, and (ii) a heightened attention for the practices of relationality, translation, and materiality through which law is composed – the string of ‘people and things’ that it assembles. This methodological orientation to professional scripts and material routines also offers a perspective on ‘critique’ that differs from familiar structuralist modes of analysis and intervention.

Because plea bargaining is usually about disposition rather than guilt or innocence, the discussion in Chapter 8 transitions nicely into Part III, which is mostly about sentencing. People on both the left and the right acknowledge that our current punishment system is overly dependent on prolonged incarceration and that our astounding imprisonment rates need to be reduced. Chapter 9 argues that the antidote to our hyper-punitiveness is preventive justice, which relies heavily on empirical assessments of recidivism risk and intervention needs. While this type of regime would still depend on retributive criteria to set (broad) sentencing ranges, it replaces the current emphasis on calibrating sanctions according to the culpability of offenders with a focus on whether imprisonment is needed to protect the public. After describing preventive justice in skeletal form, the chapter explains why this approach to sentencing could become a critical tool for reducing incarceration and the harms it causes, without increasing the threat to public safety. The chapter also addresses constitutional and philosophical concerns about a regime focused on prevention. Most importantly, it explains why preventive justice is not Minority Report in disguise.

In the post-World War II era, international lawyers have occupied the front seat in the study of international organisations (IOs). During the past decade, this disciplinary hierarchy has grown to feel increasingly unsatisfying. This chapter offers an anthropological take on the study of IOs building both on the past decade of anthropological work and my ethnography at the UN Human Rights Committee. IOs are frequently accused of ineffectiveness embedded in endless paper-pushing techniques. In this chapter, I engage with these criticisms and ask: can we find another perspective from which to assess effectiveness? What happens if we stop investing our analytical attention in what we think IO operations and their desired ‘impacts’ should be and instead engage in non-normative inquiries into what IOs actually do? I explore what can we learn about IOs’ visions for world improvement by focusing on the legal technicalities and material forms that define their operations. I propose that, instead of a hindrance or distraction, these forms embody ‘standards for a better world’ that are an essential component of IOs’ civilising mission.

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.

The most direct intersection of another right with the right to freedom from torture and other ill-treatment exists in the instance of the right to life. This is most obviously so on the basis that ill-treatment may result in the death of the victim. Where it does so, there will be a violation of both the right to life and the right to freedom from torture and other ill-treatment. The chapter goes on to consider how the right to freedom from torture or other ill-treatment interrelates with the rights to liberty, security, fair trial, and a private life, and the international legal prohibitions on enforced disappearance and slavery.

The United States assumed tribes were conquered after the American Revolution, but tribes refused to submit. Moreover, tribes had the military capacity to hold their own against the Americans. As a result, the United States entered treaties with tribes – agreements between nations. Still, the United States could not prevent its citizens from violating treaties. One of the United States Constitution’s goals was to reduce tribal conflicts. By granting the federal government exclusive authority over Indian affairs, the Constitution prohibited states from developing conflicting Indian policies. The Constitution recognized tribes as distinct and independent sovereigns; indeed, the Constitution drew upon Indigenous influences. Following the Constitution’s ratification, the United States continued entering treaties with tribes, but treaties did not stop Americans from invading tribal land. The United States enacted laws to regulate tribal trade. Unauthorized purchases of tribal land ultimately reached the Supreme Court in the 1823 case of Johnson v. M’Intosh.

The political idea of self-government has a natural elaboration, which is that a society is self-governing when it is ruled by the will of the people of that society. A variety of attempts to vindicate popular will conceptions of self-government exist but I argue that they are fatally flawed. In its place, we need a conception of self-government that is deflationary (that is does not rely on the existence of a popular will) but nevertheless quite demanding. I discuss some deflationary accounts of self-government and I argue for an account that emphasizes an egalitarian collective decision-making process but that also recognizes the importance of outcomes. I argue that attention to the conditions necessary to the achievement of self-government of an egalitarian sort is essential to how we are to think of the proper aims of constitutional institutions. We need to attend to how information is disseminated to citizens and how citizens can have the sophistication necessary to understand information. An egalitarian conception of self-government can show how the constitution of a society should be structured so as to achieve equality in these two dimensions of the information system.

How should a constitutional state – one that respects subjects’ basic rights – treat civil disobedients? This chapter presents and critically engages with some of the most prominent answers legal scholars, political theorists, and philosophers have given to this question. On what I call punitive approaches, which I present in section 1, civil disobedience is first and foremost an act of resistance that threatens the constitutional order, and thus a public wrong worthy of punishment. Theorists of civil disobedience have challenged this approach since the 1960s, especially by conceiving of civil disobedience as a kind of dissent, which liberal democratic societies ought to and can ‘make room’ for. Sections 2 and 3 examine these ‘constitutionalizing’ approaches, with section 2 focusing on the case for leniency, and section 3 on the case for broad accommodation. Section 4 examines the costs of constitutionalizing approaches and reclaims the understanding of civil disobedience as a kind of resistance, alongside its uncivil counterparts, that is sometimes justified and even necessary in constitutional democracies.

In a rights-based legal system, a government may justly condemn property on two main distinct grounds. The eminent domain power authorizes governments to take private property upon payment of just compensation, if the taken property is going to be used by the government or by the public at large. Governments may also condemn and redistribute private property under the police power, primarily when doing so seems clearly likely to secure an average reciprocity of advantage to all the affected owners. If a government action does not satisfy either set of standards, however, it constitutes a violation of property rights. This chapter applies the justifications it studies to familiar disputes about irrigation systems, the creation of dams and mills, the acquisition of land for mining rights of way, urban renewal programs, the redistribution of land in Hawaii to deal with oligopoly, and the redistribution of land to facilitate economic development in Kelo v. New London (2005). This chapter also considers the skeptical view holding that it is impossible to distinguish between police regulation and eminent domain or between public and private uses.