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  • Public Law, Precarity, and Access to Justice
  • Amnon Lev (bio)

Equality before the law is an axiom of public law, perhaps the most fundamental public law axiom of all. Our commitment to this equality is deepened by the knowledge that it does not map perfectly onto social reality. Because people are not equal in rank and privilege, precisely because they are not afforded the same opportunities, or rather the same opportunity to take advantage of opportunity, we must provide equal access to justice for those that lack a voice in society: the poor, the marginalized, the “deviants.” Seen in that perspective, access to justice is an unconditional good. In this paper I shall attempt to nuance that belief by showing that, in addition to making us equal before the law, public law systems generate precarity. Public law systems do so by distributing access to justice in ways that make certain groups in society easy prey for those more powerful than themselves. The most obvious implications of the argument concern the constitutional sphere. But its most momentous implications may show themselves beyond that sphere. As the idea of the rule of law spreads around the world, driven by governance reforms and by the efforts of human rights advocates, the mechanisms of in- and exclusion that underpin the operation of public law spread with it, reproducing on a global scale the social dynamics that generate inequality within the polities that law orders. As we shall see, public law may be one of the links that tie the relative deprivation we encounter in the West to the absolute deprivation suffered by millions in other parts of the world.1

If we want to determine how the machine of public law works in generating precarity, we need first to understand how the machine is wired. That is no easy task. The machine was not built from one [End Page 35] blueprint, drawn by a master builder. It developed over time in response to emerging and often contradictory imperatives. For our purposes, inquiry can be limited to two key moments in the intellectual history of public law: its foundation by Thomas Hobbes, and its constitutionalization by John Locke. Juxtaposing, or rather over-layering, their philosophies, we see how public law, in raising everybody up to the status of subjects of law, exposes some to depredation by others.

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...


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