Public Law, Precarity, and Access to Justice

Abstract

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 inand 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