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

Abstract

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