Summoning Leviathan: A Critical Analysis of Class Action Theory and the Ethics of Group Litigation

• Author: Shaun Finn
• Pages: 119-163

119

SUMMONING LEVIATHAN: A

CRITICAL ANALYSIS OF CLASS

ACTION THEORY AND THE ETHICS

OF GROUP LITIGATION

Shaun Finn1

Canst thou draw out leviathan with an hook? … Will he make many

supplications unto thee? Will he speak soft words unto thee? Will he

make a covenant with thee? … Lay thine hand upon him, remember the

battle, do no more. Behold, the hope of him is in vain: shall not one be

cast down even at the sight of him? … When he raiseth up himself, the

mighty are afraid …

– The Book of Job

Ethical considerations can no more be excluded from the administra-

tion of justice which is the end and purpose of all civil laws than one

can exclude the vital air from his room and live.

– John F. Dillon, J.A.

A. INTRODUCTION

From a distance, he looms over the horizon like a colossus. With a drawn

sword in his right hand and a massive sceptre2 in his left, he embodies

brute strength, martial vigour, and unwavering executive authority. The

scattered villages and towns that spread out before him are completely

dwarfed, as are the woods, fields, meadows, and mountains themselves.

Most impressive of all, perhaps, is the thick coat of mail which covers his

enormous bulk. Seemingly impenetrable, it appears designed to extin-

1 Associate of McCarthy Tétrault LLP and member of the firm’s National Class

Action Group. The author wishes to thank Professor Denis Ferland of Laval

University for his invaluable assistance. Special thanks as well to Donald Bisson

and Gregory Moore of McCarthy Tétrault LLP.

2 Some have described it as a crosier, the hooked staff carried by bishops, sym-

bolizing their authority over the Christian flock. Seen in this light, the sov-

ereign wields power over all the institutions of the commonwealth, be they

temporal or spiritual.

120 THE CANADIAN CLASS ACTION REVIEW

guish all hope in the hearts of his adversaries. Upon closer inspection,

however, his body is not covered in protective armour at all. What look to

be heavy scales are in fact people — countless multitudes of soldiers, far-

mers, burgesses, merchants, and clerics. The impassive figure that gazes

across the rolling countryside is not some freak of nature. Rather, he is an

amalgam of the people themselves, combining in his remarkable person

the strength, ambitions, and interests of all. In this respect, the sovereign

is merely a metaphorical giant, the incarnation of a universal compact

that binds every member of the community. Endowed with singleness of

mind and purpose, he is greater than the sum of his parts and subject, in

the final analysis, to no one.

The image described above appears on the original frontispiece of

Leviathan,3 a brilliant political treatise penned by the seventeenth-century

philosopher Thomas Hobbes.4 A cause célèbre in its own day,5 the work

combines insight into the darker aspects of human nature with an abso-

lutist vision of territorial sovereignty. Born in an age that experienced the

near-catastrophe of the Spanish Armada,6 endured a destructive cycle of

civil wars,7 and witnessed the near-extinction of the Stuart monarchy,8

Hobbes emphasized the need to maintain order and provide for endu-

ring security. Instability was the bane of civilized societies. It exposed

citizens to the constant threat of physical violence and depredation. To

counter these dangers, Hobbes put forward his unique vision of the social

contract. Unwilling to submit themselves to the will of the stronger,

individuals in the state of nature consented to aggregate their individual

rights into a single overlord — a leviathan — who would act on behalf of

the commonwealth:

The only way to erect such a Common Power as may be able to defend

them [the citizens] from the invasion of Forraigners, and the injuries

3 Thomas Hobbes, Leviathan, or, The Matter, Forme, and Power of a Common-

Wealth, Ecclesiasticall and Civill. 1651 (London: Penguin Books, 1985). The

Penguin edition features the frontispiece on the book’s cover.

4 Thomas Hobbes (1588–1679) was born in Malmesbury, England.

5 Although the book made a profound impression on his contemporaries, later

generations placed less emphasis on its central arguments, preferring the

newer political doctrines of enlightenment and romantic thinkers. Interest in

Leviathan was nevertheless rekindled in modern times.

6 The Spanish Armada of 1588 was launched in order to bring to heel the protes-

tant England of Elizabeth I.

7 An ongoing battle for supremacy pitting the monarch against Parliament (1625–

1642).

8 Charles I was charged and executed by order of Parliament in 1649.

VOL UME 4, No 1, JUlY 2007 121

of one another, and thereby to secure them in such sort, as that by

their owne industrie, and by the fruites of the Earth, they may nour-

ish themselves and eat contentedly; is, to conferre all their power and

strength upon one man, or Assembly of men, that may reduce all their

Wills, by plurality of voices, unto one Will: which is as much as to say,

to appoint one man, or Assembly of men, to beare their Person; and

everyone to owne, and acknowledge himself to be Author of whatso -

ever he that so beareth their Person, shall Act, or cause to be Acted, in

those things which concern the Common Peace and Safetie; and therein

to submit their Wills, everyone to his Will, and their Judgments to his

Judgment.9

Unlike some of the liberal thinkers who succeeded him,10 Hobbes did

not have an idealized conception of the pre-societal condition.11 Nature

was not permeated by some transcendent rational principle. Naked

power governed the relations of primitive men, rather than dispassionate

notions of reciprocity or fair dealing. Put simply, the state of nature was

a state of “Warre” and the lives of human beings “solitary, poore, nasty,

brutish, and short.”12 It was only by concentrating their resources and

combining their forces, such as they were, that the many could put an

end to the tyranny of the few. Inherently unequal bargaining positions led

to the creation of a new mechanism intended to level the social terrain.

Yet, in choosing the name “leviathan,” Hobbes alludes not only to the size

of this new collective entity, but hints that there is something abnormal

— even monstrous — about it.13 The sovereign may well be evil, he sug-

gests implicitly, but he is a necessary evil and can therefore be justified on

philosophical grounds. Ultimately, the potency of the consolidated group

is preferable to the arbitrariness of unregulated power.

9 Hobbes, above note 3 at 227.

10 Most notably Locke, who argued that the state of nature was subject to the law

of reason, which tempered selfish impulses and fostered some broad notion of

personal rights and respect for private property. See John Locke, Two Treatises

of Government (Cambridge: Cambridge University Press, 1988). Note as well

that the French philosophers Voltaire, Diderot, and Rousseau also envisioned a

pacifist primeval state.

11 Hobbes, above note 3 at 183 ff.

12 Ibid. at 186.

13 Indeed, the term itself is derived from scriptural sources. In the Old Testament,

leviathan, thought to be a whale or sea monster, represents the most fearsome

of God’s creatures. At the same time, it is sometimes described as a great ser-

pent, and consequently as a type, or servant, of Satan. See Job 41, Psalm 74:14,

Psalm 104:26, and Isaiah 27:1.