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27 Indiana J. Global Legal Studies 1 (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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