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John Locke: Justice and the Social Compact

Published online by Cambridge University Press:  24 April 2015

E. Clinton Gardner
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Extract

The last generation of Lockean scholarship has witnessed a radical reappraisal of the traditional interpretation of Locke as a secular political thinker, a defender of individualism, and a champion of the natural right of private property. The new picture of Locke which has emerged through these more recent studies is the result of an attempt to interpret his various writings in their historical context. The appearance of John Dunn's The Political Thought of John Locke in 1969 marked a critical turning-point in the evolution of the historical approach to Lockean studies. Building upon the work of Von Leyden, Laslett, and Abrams, Dunn sought to interpret Locke in terms of the latter's own intentions and self-understanding. The single most important key to a recovery of Locke's own intentionality, Dunn argued, was a recognition of the “centrality” of his underlying religious commitments to his thought as a whole.

Since the appearance of Dunn's essay, the fundamental significance of Locke's religious beliefs for his moral and political thought has been generally acknowledged. Assuming the validity of this hypothesis, Locke's rationalism must now be seen within the framework of his religious convictions. Locke attempted to resolve the tension between the two in terms of the law of nature; but, for him, moral obligation remained ultimately dependent upon religious faith in God as Creator and upon an understanding of humanity as God's workmanship.

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Articles
Information
Journal of Law and Religion , Volume 9 , Issue 2 , 1992 , pp. 347 - 371
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1993

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References

1. Dunn, J., The Political Thought of John Locke xi–xii (1969)CrossRefGoogle Scholar.

2. Tully, J., A Discourse on Property: John Locke and His Adversaries 36 (1980)CrossRefGoogle Scholar (“Man is … dependent on his maker for being brought into being and for his continuing existence. Locke's political philosophy hinges on this one-way dependency relation between God and man, and from which man's natural obligations follow …”). See also Ashcraft, R., Locke's Two Treatises of Government 304–05 (1987)Google Scholar; Colman, J., Locke's Moral Philosophy (1983)Google Scholar.

3. Laslett, P. ed., Two Treatises of Government 45–61Google Scholar; cf. 31 (2d. ed. 1967).

4. J. tully, supra note 2, at 53-176; cf. P. Laslett ed., supra note 3, at 100-106.

5. R. Ashcraft, supra note 2, at 305. See also Ashcraft, R., Revolutionary Politics and Locke's Two Treatises of Government (1986)Google Scholar; P. Laslett ed., supra note 3, at 21-44.

6. Leyden, W. von ed., John Locke: Essays on the Law of Nature 21–30 (1954)Google Scholar. See also Abrams, P. ed., John Locke: Two Tracts on Government 3–27 (1967)Google Scholar.

7. J. Dunn, supra note 1, at 24-26.

8. On the tension between theological voluntarism and rationalism in Locke's ethical theory, see W. von Leyden ed., supra note 6, at 51-58; J. Colman, supra note 2, at 32-50; J. Dunn, supra note 1, at 187-99; and Little, , Natural Rights and Human Rights: The International Imperative, in Natural Rights and Natural Law: The Legacy of George Mason 67, 115–16 (Davidow, R. ed. 1987)Google Scholar. On the whole Locke seems to have been a theological voluntarist because he held that the moral right—the right and the good—is dependent upon the will of God. In contrast, ethical rationalism holds that moral distinctions between good and evil do not depend upon God, for he can neither create nor change them. J. Colman, supra note 2, at 31-50.

9. Niddich, P. ed., John Locke: An Essay on Human Understanding, bk. III., xi., 15–16Google Scholar; cf. bk. IV., iii., 18 (1975).

10. Locke, J., The Reasonableness of Christianity as Delivered in the Scriptures, in 6 The Works of John Locke in Nine Volumes 139–44 (12th ed. London 1824)Google Scholar. As Colman suggests, however, such a turn did not represent a repudiation of his longstanding conviction that morality—like mathematics—could be rationally demonstrated; rather, it represented a postponement of the latter project in order to provide a more immediate and certain account of morality than was presently available on the basis of reason alone. J. Colman, supra note 2, at 138-40.

11. All citations of Two Treatises in the text refer to the Laslett edition, supra note 3. Citations include the number of the Treatise together with the pertinent sections of the latter.

12. The Exclusion Crisis (1679-81) was precipitated by the Whigs' attempt to exclude James, Duke of York, from succession to the English throne. The Whigs viewed the prospect of James' accession as a threat of popery and the establishment of an arbitary monarchy. The Two Treatises may perhaps be best understood as “a revolutionary and distinctively rationalist contribution to the Exclusion Crisis” without being intended specifically as an “Exclusion tract.” J. Tully, supra note 2, at 53; cf. J. Dunn, supra note 1, at 51-52; contrast P. Laslett ed., supra note 3, at 61.

13. On the setting and dating of the Two Treatises, see J. Dunn, supra note 1, at 43-57; J. Tully, supra note 2, at 53-55; P. Laslett ed., supra note 3, at 45-66.

14. P. Laslett ed., supra note 3, at 155.

15. Id. at 82.

16. J. Tully, supra note 2, at 63; cf. J. Dunn, supra note 1, at 218. Contrast Strauss, L., Natural Rights and History 248 (1953)Google Scholar. Strauss interprets Locke as a natural rights rather than a natural law theorist. He writes: “the right of nature is more fundamental (for Locke) than the law of nature and is the foundation of the law of nature.” Id. at 227.

17. J. Tully, supra note 2, at 46.

18. Locke also calls the preservation of society “the first and fundamental natural law.” [11.134]. Whether Locke intends this as a second law of nature or only as a special instance of the general obligation to preserve oneself and the rest of mankind-addressed this time to the legislature—is unclear. In either case, however, the duty to preserve society is grounded in the law of nature.

19. J. Tully, supra note 2, at 49-50.

20. Elsewhere Locke lists rights in a number of varying forms: life, health, liberty, and possessions [II.6]; life, liberty, health, limb, or goods [II.6]; “lives, liberties, and estates” [II.123, 222]; “lives, liberties, or fortunes” [II.221].

21. J. Tully, supra note 2, at 62-63.

22. P. Laslett ed., supra note 3, at 101, 341, 368-69. Richard Baxter similarly uses the term “property” to refer to the property which people have in their lives, liberties, and material possessions or acquisitions. Id. at 101 nn., 305 nn.

23. J. Tully, supra note 2, at 61.

24. Locke acknowledges that “children are not born in this full state of equality” though they are intended to grow into it as they increase in age and reason. [II.55].

25. P. Laslett ed., supra note 3, at 75.

26. J. Dunn, supra note 1, at 106.

27. In Two Treatises Locke also includes “love” as well as the “want of society” among the qualities which predispose man in the state of nature to enter into social groups. [II.101].

28. For Locke the fall of humanity was caused by the introduction of money. The latter gave rise to covetousness, ambition, and pride, thus greatly compounding the inconveniences of the state of nature and creating a further necessity for man to enter into civil society. See J. Tully, supra note 2, at 147; J. Dunn, supra note 1, at 245. Locke's account of the fall is ambiguous, however. Theologically, the latter refers to the loss of man's original innocence, not to a subsequent worsening of his plight. It is not clear that Locke views humanity before the advent of money as either innocent or sinless. See also J. Colman, supra note 2, at 192-93.

29. See P. Laslett ed., supra note 3, at 111. In Two Treatises “the word contract does not occur more than about ten times … and it is hardly ever applied to political matters at all.” The term “contract” is generally applied to legal and quasi-legal agreements such as marriage or property arrangements. “Compact” and “agreement” are more general than “contract”; moreover the former are also “further removed from the language of law.” Id.

30. Id. at 112-13.

31. The legislative is “only a fiduciary power to act for certain ends.” Two Treatises [II.149]. Similarly, the executive power is “a fiduciary trust.” [II.156].

32. R. Ashcraft, supra note 2, at 221.

33. See Dunn, , Justice and the Interpretation of Locke's Political Theory, 16 Political Studies 68–87 (1968)CrossRefGoogle Scholar; Cox, Justice as the Basis of Political Order in Locke, ch. 12, and Polin, , Justice in Locke's Philosophy, ch. 13, in Nomos VI Justice (Friedrich, C. & Chapman, J. eds. 1963)Google Scholar; J. Colman, supra note 2, at 194-201. In contrast to his completed works, justice is the primary moral notion which he examines in an unfinished paper on “Morality.” J. Colman, supra note 2, at 194.

34. Cf. J. Tully, supra note 2, at 131. “The priority of natural law renders all rights as means to this end [i.e., God's purpose], and therefore Locke's account is a limited rights theory.” Id. (emphasis added).

35. P. Abrams ed., supra note 6, at 231-32.

36. Dunn, supra note 33, at 78.

37. W. von Leyden ed., supra note 6, at 169.

38. Id. at 213.

39. Dunn, supra note 33, at 76-77. Locke refutes the claim that justice-or rightness-is based either upon personal interest or upon utility. “The rightness of an action does not depend upon its utility; on the contrary, its utility is a result of its rightness.” W. von Leyden ed., supra note 6, at 215.

40. Dunn, supra note 33, at 78-79. See Locke's 1667 Essay on Toleration, printed in Bourne, H.R. Fox, 1 The Life of John Locke 174–94 (1876)Google Scholar.

41. Rand, B. ed., An Essay Concerning the Understanding, Knowledge, Opinion, and Assent by John Locke 291–306 (1931)Google Scholar. This is a copy of the original draft of Locke's Essay Concerning Human Understanding, dating from 1671.

42. Id. at 302-03, 306.

43. J. Tully, supra note 2, at 79, 112.

44. Id. at 104-11. See also Two Treatises [II.27, 44].

45. P. Niddich ed., supra note 9, at 549 [Essay 4.3.18].

46. P. Laslett ed., supra 2, at 373, note on II.134, 1s. 1-11.

47. For two radically different interpretations of Locke's account of property in political society, see J. Tully, supra note 2, at 157-76, and Wood, N., John Locke and Agrarian Capitalism 72–92 (1984)Google Scholar. In contrast to Tully's egalitarian interpretation, Wood argues that Locke was “a theorist of a developing agrarian capitalism and, in a broader sense, a pioneer of the spirit of capitalism.” N. Wood, supra at 114.

48. J. Colman, supra note 2, at 193.

49. Id. at 121-24, 169-70. “A property in something is more extensive than a traditional use right.… Locke's ‘property in’ … is the right to use and to enjoy God's property for God's purposes. The kind of exclusive right which Locke develops is the uniquely English concept of use which a trustee is said to have in another's property.” Id. at 122.

50. On the role of distributive justice in Locke, see Dunn, supra note 33, at 76; J. Tully, supra note 2, at 90-91, 162-70.

51. Some commentators suggest that Locke became more conservative in his views concerning property and trade after his appointment as Commissioner of Appeals (1689) and commissioner of trade and plantations (1696). See H.R. Fox Bourne, supra note 40, at 147, 350.

52. W. von Leyden ed., supra note 6, at 205.

53. Id. at 169.

54. On the relation of justice to other virtues, including charity, in Locke, see J. Colman, supra note 2, at 194-205.

55. For Locke, the state of nature was “a state of peace, good will, mutual assistance, and preservation.” Two Treatises [II.19].

56. J. Colman, supra note 2, at 195 (spelling and punctuation have been changed).

57. Id. at 199.

58. Id. (the quotation is taken from Conduct of the Understanding).

59. J. Locke, supra note 10, at 138-40.

60. J. Locke, A Paraphrase and Notes on St. Paul's First Epistle to the Corinthians, in 7 J. Locke, supra note 10, at 170-71.

61. J. Tully, supra note 2, at 175-76. Throughout this paragraph, I am indebted to Tully, who first called Locke's treatment of liberality in relation to property to my attention and suggested the enhancement of Locke's concept of enjoyment to include generosity.

62. See J. Locke, Some Thoughts Concerning Education, in 8 J. Locke, supra note 10, at 100-101.

63. Id.

64. It should be noted, however, that Locke did not develop this idea. See J. Tully, supra note 2, at 175-76; Tarcov, N., Locke's Education for Liberty 145–48 (1984)Google Scholar. Cf. J. Colman, supra note 2, at 204; Dunn, supra note 33, at 83.

65. For an excellent treatment of the concept of trust in Locke, see P. Laslett ed., supra note 3, at 97-120. See also J. Dunn, supra note 1, 154-64; J. Dunn, Locke 22-59 (1984). For a helpful discussion of the origin and development of the distinctively English concept of trust-including its use by Milton, Cromwell, and Baxter, see Gough, J., John Locke's Political Philosophy 154–92 (1973)Google Scholar. Gough writes: “One result of this (development) in the political sphere has been that whereas the thought of continental thinkers was often forced into contractual terms, English thinkers had in the trust concept a fruitful alternative to the idea of contract.” J. Gough, supra, at 189.

66. P. Laslett ed., supra note 3, at 97-108.

67. Cf. Dunn, , The Concept of Trust in the Politics of John Locke, in Philosophy and History 297 (Rorty, R., Schneewind, J., & Skinner, Q. eds. 1984)Google Scholar.