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27 Indiana J. Global Legal Studies 35 (2020)


In the first part, I examine Thomas Hobbes' theory of commonwealth to see how it situates subjects in relation to justice. Hobbes famously founds his commonwealth on the equal subjection of all to the Leviathan, which is the equal subjection of all to law. We need to understand why he nevertheless needs to accommodate the diversity of society-the basic fact that some are weak while others are not-into the operation of the public law machine. As we shall see, the accommodation of social diversity is tied to a proto-liberal distinction between social spheres that relegates much of human life to a sphere beyond the reach of law where domination is unchecked. What this suggests is that, by bridging the divide between theory and reality, between the ideal of equality and the reality of domination, the domination of the weak by the strong is a condition of equality for all.

The second part deals with John Locke's theory of government. Most scholarship focuses on the differences between Hobbes and Locke. I shall read them as complementary moments in the elaboration of public law theory. As I hope to show, Locke's theory of government works through different strategies for how to calibrate Hobbes' public law machine of equal subjection so as to give it more purchase in a social reality where inequality is the norm. Consequently, we shall not focus on Locke's critique of sovereignty, but on the way Locke tweaks the operation of the machine from within, without changing its basic setup. I show how he embeds the political relation between sovereign and subject within non-political relations: those obtaining within the family and property relations. In and through this dual operation, Locke overlays the skeletal order of subjection that Hobbes laid down by a mesh of effective and material relations that facilitate interaction between government and subjects. If the introduction of property entrenches-and renders more determinate-the social exclusion of some, paternalism provides a conduit for reaching out to those so exposed in order to tie them closer to the society of which they are full members only in law.

In the third and final part, I consider how we should think about the relationship between the political struggles that have been the traditional object of political theory and the absolute deprivation millions outside the western world suffer. I briefly contrast the approach I am taking with recent developments in global justice theory, and I argue that studying the operation of public law might give us new insights into how liberal order generates precarity.

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