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Document Type

Article

Publication Date

2-15-2020

Publication Citation

27 Indiana J. Global Legal Studies 1 (2020)

Abstract

The aim of this article is descriptive and analytical, rather than

normative. This article aims to contribute to the current understanding

of the ways in which modern legal consciousness builds, and is built by,

the concept of access to justice. This concept, as part of the web of

meanings that structures modern legal culture, provides the context in

which modern subjects make sense of who they are and how they should

interact with the world around them. This article examines the

subjectivities, conceptual geographies, and interpretations of history

created by the right to access to justice. It also examines a part of the

horizon of understanding inhabited by the modern legal subject.

Part I of this article examines the relationship between the right to

access to justice and contractualism, the paradigmatic way of founding

the modern State. 9 Contractualism, of course, is not the only way to

ground this type of State. However, contractualism is one of its

prototypical forms. Consequently, the place that access to justice

occupies in this web of legal meanings allows for an understanding of its

role as part of the modern legal consciousness. This part examines

contractualism through Hobbes's and Locke's versions of social contract

theory. While the theories of these two philosophers are not the only

available interpretations of this form of grounding the modern state,

their models were central to the emergence of contractualism and have

left important traces in its complex and discontinuous genealogy. This

section explores the conceptual geography created by the right to access

to justice-the state of nature versus the civil state-and the role of

access to justice in the decision made by autonomous, rational subjects

to move from the former state to the latter. Access to justice is

fundamental in the modern legal and political imagination for it

motivates subjects to move from pre-political life to political life.

Conceptually, access to justice is relevant not only because it is

considered a fundamental constitutional right by the constitutions of

contemporary liberal democracies, but also because it constitutes one of

the conceptual pillars of the modern State. In this imagined geography,

nature is presented as the opposite of politics and law. In the state of

nature, there is no impartial third party that has the power to solve

conflicts or produce binding decisions; in civil state, the sphere of

politics and the law, however, this collective subject is created as a

consequence of the agreement achieved by individuals. The State is an

instrument constructed to represent and act on behalf of all citizens.

Part II analyzes how the right to access to justice imagines the

subjects that create and exercise the right. 10 In the state of nature,

contractualism imagines a single type of subject: a dual subject that is

formed by both reason and passion. In the state of nature, human

beings privilege their animal side in practice, though they have the

capacity to act autonomously and rationally. Violence, motivated by

passion, is converted into the means by which human beings resolve

their conflicts. The absence of an impartial third party does not leave

individuals with other options to protect their life and property.

Nevertheless, this animal subject recognizes that the only option for

achieving peace and prosperity is the creation of a sovereign who can

solve conflicts and monopolize the capacity to exercise violence in the

political community. The animal subject is then converted into a

political subject. The potential to become a full human being by means

of politics goes hand-in-hand with the creation of an impartial third

party and with the construction of a legal order that the third party

should use to solve conflicts between citizens. Along with the animal

subject and the political subject, a compound collective subject emerges

in the civil state: the State which has the primary objective of creating

the conditions for peace and prosperity of all political subjects.1 1 To

meet this objective, the collective subject must solve conflicts between

citizens and, if necessary, use its coercive power to make political

subjects abide by its decisions.

Part III examines the relationship between access to justice and

legal history in social contract theory. Legal history is the history that

the political subject constructs and experiences. Natural law governs in

the state of nature. Therefore, there is no legal history. The time of

natural law is divine time: eternity. The creation of the State as an

impartial third party marks the start of legal history. The time of access

to justice is the time of the sovereign and the State. As long as the civil

state exists, access to justice will exist. If the State, as an impartial

third party, ceases to exist, there will be a return to nature, a return to

the conceptual space where the animal component of human beings,

(that of passion) is prioritized.

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