Access to Justice for Collective and Diffuse Rights: Theoretical Challenges and Opportunities for Social Contract Theory

Thinkers central to the formulation of contract theory in the Western political tradition, notably Hobbes and Locke,¹ articulated their theories in worlds marked by immense political and social strife. Accordingly, their theories seek to address the ordering of political and social conflict through the act of entering into civil society by agreement—by contract, that is. Both writers, despite their considerable differences, focus heavily on exploring the ideal relation between sovereign and subject in a well-functioning civil society. As such, their theories dedicate a great deal of time and energy to understanding and defining the proper relation of the individual and the state. This is unsurprising given the context in which they were working. Both men, despite considerable differences in time, temperament, and point of view, were interested to understand the conditions under which an individual could be compelled to pledge obedience to the sovereign—the sole state power of their era.

The social contract underpinning the relationship between individual and sovereign thus was understood by each philosopher to require that an individual sacrifice their liberty in the state of nature to enjoy the benefits of civil society membership. As a result, at the heart of classical contract theory exists a contradiction. On the one hand, a republic is formed by and of many individuals in the service of their collective protection and wellbeing. On the other hand, this collective drive to act so as to protect the common-wealth focuses disproportionately on the role of individual members of civil society qua individuals.

This way of conceiving the challenges of effective political organization has consequences for understanding what sorts of claims may be vindicated in a well-functioning civil society and how. To put the point in anachronistic terms, the focus Hobbes and Locke give to civil society organization has consequences for what sorts of access to justice their theories contemplate. Thus, the contract theories identified with thinkers like Hobbes and Locke contemplate the resolution of disputes in which an individual is deprived of a right (such as the freedom to contract) by another. That individual’s recourse is then to protest the deprivation of the right to an impartial third party (provided for and by the sovereign authority). In other words, the standard model assumes a direct cause-and-effect of harm suffered—vindication of the right. Civil society is thus conceived to exist to arbitrate conflicts between individuals, not between groups, or between an individual and a group. This is not to say that the theory prohibits the application of its logic to inter-group conflicts, but that is not the focus.

And what if the strife is of a different nature? Let us suppose, to begin, that the political order in which I am a citizen has enacted laws that assure me healthy living conditions and steady employment. Let us suppose further that, despite those laws, my freedom to contract is deprived because I am sick in bed with severe gastrointestinal disorders because the water I drink is polluted by thousands of other users, large and small, such that I cannot identify a specific agent of my harm? Alternately, I might argue that my freedom to contract is infringed because I live in a distant suburb not well served by affordable, safe transportation alternatives, a situation that does not to admit of a straightforward cause-and-effect explanation. In this situation, there are many possible agents of my harm and causes of my deprived right.

Moreover, I might not understand the causes of my harm, or may lack the information and tools to vindicate my right, although others in my society might have that information and those tools. But a strict reading of the access to justice mechanism contemplated in the theories of classical contractarians like Hobbes and Locke does not address such possibilities.

This analysis seeks to understand if and how classical contract theory would address situations like the two examples above. The analysis argues that these questions are worth asking because examples like the two above and many others like them...