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Preventive Detention and the Democratic State tracks the transformation of preventive detention from an emergency measure into an ordinary law enforcement tool in the democratic world. Historically, democracies used preventive detention only in the extraordinary circumstance in which the criminal justice system was impotent. They preferred criminal prosecution and its strict due process requirements to detaining people for a crime they may never commit. This book shows that major democracies have begun using detention as an insurance policy against dangerous people. In the process, they have embarked on a slippery slope that allows them to use preventive detention to bypass the criminal justice system. Already, detention has established a separate, inferior legal system for certain suspected criminals. Comparing preventive detention in India, England and the United States, the book brings to light its potentially dire consequences for the rule of law, due process rights and democratic principles based on the very real experiences of these countries.

The international human rights movement is facing an existential crisis—a crisis created in part by its continuing failure to adequately address strong criticism that international human rights law (IHRL) is a form of cultural imperialism designed to destroy local religion and culture. While the debate underlying the crisis is not new, the strength of its threat to IHRL and the liberal democratic order is. One of the primary points of friction is over IHRL's seeming rejection of a group right to be governed by religious or cultural law—a right IHRL proponents fear would open the doors to discrimination against women, the LGBT community and nonconformists. Already, populist leaders like President Erdogan of Turkey have been able to capitalize on a combination of demands for a role for religion in governance and frustration with economic inequality to claw back on human rights and democratic guarantees.The debates surrounding group rights have reached an impasse that will do little to promote either human rights or greater respect for religion and culture. This Article seeks to break that impasse. First, it relies on progressive Muslim and African scholarship to tear down the assumptions shared by both IHRL and group rights proponents that make the impasse seemingly intractable: (1) that religious and cultural law are determined from the top down; and (2) that they demand total submission of their followers. Having debunked those assumptions, it then challenges both groups to consider whether a theory of substantive human rights could allow countries to guarantee individuals the right to feely and equally choose whether to be governed by religious or cultural law without risking that this choice will become a ruse for favoring the majority group or for subjugating women and vulnerable groups.

Governments across the world regularly invoke sovereignty to demand that the international community "mind its own business" while they commit human rights abuses. They proclaim that the sovereign right to be free from international intervention in domestic affairs permits them unfettered discretion within their territory. This Article seeks to challenge those proclamations by resort to sovereignty in the people, a time-honored principle that is typically more rhetorical than substantive. Relying on classical interpretations of sovereignty, this Article infuses substance into the concept of sovereignty in the people to recognize that a government is entitled to sovereign rights only as the legitimate representative of the people and only as long as it fulfills its duties to them. The Article then examines the conditions that must be met for a government to claim sovereign rights, as well as how and by whom access to these rights should be determined. Taken to its logical conclusion, sovereignty in the people establishes that (1) sovereign rights can be lost when governments commit less than the most egregious human rights abuses, which differentiates this from the responsibility to protect; and (2) any form of government is at risk of losing these rights, including democracies.