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.
"Public Law, Precarity, and Access to Justice,"
Indiana Journal of Global Legal Studies: Vol. 27
, Article 3.
Available at: https://www.repository.law.indiana.edu/ijgls/vol27/iss1/3
Available for download on Saturday, February 15, 2025