The foundational claim of Kant’s political philosophy is that we each have an innate right to external freedom. But what is external freedom? This chapter contrasts normative and descriptive characterizations of this concept. Arthur Ripstein uses a normative characterization of external freedom in his reconstruction of Kant’s argument for the state, while Kyla Ebels-Duggan uses a descriptive characterization of external freedom in her reconstruction of the same argument. The chapter sets aside the interpretative question of which of these readings is more faithful to Kant and instead focuses on showing how Kant’s argument for the state faces significant problems on either interpretation. But rather than taking these problems to show that Kantian political philosophy is doomed, it is argued that a normative characterization of external freedom can be the basis of a compelling argument for the state, one that draws on some of the key insights in Kant’s political philosophy while departing from his own argument in important respects.

This chapter begins from the proposition that the conventional narrative suggests that there are unwritten constitutional rules and principles that exist adjacent to, or supplementary to, the official written constitution. But the spatial metaphor suggested by this framing of the issue is mistaken, the author says. He notes that we have learned from the enduring jurisprudential contributions of Hans Kelsen and H. L. A. Hart that the status as law of a constitution rests on a necessarily unwritten social practice establishing what counts as the constitution. This unwritten social practice might exclude some of what the official written document includes and might include some rules or principles that are not found in the official written document, but the basic point is that a written document’s status as “the constitution” rests itself on unwritten foundations, making the idea of an unwritten constitution central to the very idea of constitutionalism.

Sovereign States are under a legal obligation to comply with customary international law even though they have not explicitly consented to these norms. How should international courts accommodate both such non-consent-based CIL and a commitment to state sovereignty? The article outlines one strategy that avoids or helps address challenges wrought against other attempts to create more consistency and coherence between CIL and the other sources of international law – whilst securing a central role for state consent. A plausible account of why states have an obligation to honour treaties they consent to also contributes to justify their obligation to honour CIL norms. The shared normative basis for both sorts of obligations may be a ‘Principle of Non-manipulation’, a norm to not violate intentionally created rightful expectations. The account draws much on Scanlon, MacCormick and Hart.