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27 Indiana J. Global Legal Studies 15 (2020)


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. 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. 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. 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.