1 See, e.g., Waldron, J.J., Locke's Account of Inheritance and Bequest, 19 J. Hist. Phil. 39 (1981)CrossRefGoogle Scholar. See also A. John Simmons, The Lockean Theory of Rights (1992); Gopal Sreenivasan, The Limits of Lockean Rights in Property (1995); J.J. Waldron, The Right to Private Property (1991).

2 See, e.g., Michaelman, Frank, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv. L. Rev. 1165, 1204 n.83 (1967)CrossRefGoogle Scholar (“No amount of debate over how radical or extreme Locke's ‘individualism’ really was can obscure from readers of the Second Treatise his conviction that government, as a general rule, should not indulge in measures which directly and seriously impair private wealth, whether derived from labor, investment, or inheritance.”); Priest, Claire, Creating an American Property Law: Inalienability and Its Limits, 120 Harv. L. Rev. 385, 459 n.39 (2006)Google Scholar (“John Locke . . . defended the English inheritance system on the ground that all children . . . naturally enjoyed a shared title with their parents to the family property. Locke viewed England's inheritance system as a natural consequence of the powerful instinct of humans to procreate, which led to a sense of obligation of parents to provide for their children.”); Repett, James R., Democracy, Taxes, and Wealth, 76 N.Y.U. L. Rev. 825, 828 (2001)Google Scholar (“John Locke, for example, argued that natural law required that parents be permitted to bequeath property to their children. He viewed the ability to transfer property at death as a fundamental property right that the state should not abridge.”).

3 See, e.g., Katz, Stanley N., Republicanism and the Law of Inheritance in the American Revolutionary Era, 76 Mich. L. Rev. 1 (1977)CrossRefGoogle Scholar; Katz, Stanley N., Thomas Jefferson and the Right to Property in Revolutionary America, 19 J.L. & Econ. 467 (1976)CrossRefGoogle Scholar. Although the extent of Locke's influence is a matter of some debate, it is difficult to argue that he had no influence at all. More important for present purposes is that he is often thought to have been quite a significant influence, a notion that ensures his continued importance in modern debates. See, e.g., Johnson, Barry W. & Eller, Martha Britton, Federal Taxation of Inheritance and Wealth Transfers, Internal Revenue Service 3 (2001)Google Scholar, http://www.irs.gov/pub/irs-soi/inhwlttr.pdf (Internal Revenue Service estate-tax paper discussing Locke's influence on American inheritance law).

4 See, e.g., Boxill, Bernard R., A Lockean Argument for Black Reparations, 7 J. Ethics 63 (2003)CrossRefGoogle Scholar (arguing for slavery reparations based upon Locke's theory of inheritance); Hamilton, Vivian E., Expressing Community Values through Family Law Adjudication, 77 UMKC L. Rev. 325, 328–329 (2008) (asserting the fundamental influence of Lockean values on American family law from the founding to the present)Google Scholar; Repett, supra note 2, at 825 (discussing Locke's theory of inheritance in the context of current debates about wealth concentration).

5 See, e.g., Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain (1985) (relying upon Locke in arguing that estate taxation is an unconstitutional taking); Johnson & Eller, supra note 3, at 3–4 (discussing Locke's theory in context of federal estate-tax policy); Ascher, Mark L., Curtailing Inherited Wealth, 89 Mich. L. Rev. 69, 81 (1990) (urging almost total elimination of inheritance as consistent with Locke's labor theory of property)CrossRefGoogle Scholar; Byrne, Donna M., Locke, Property, and Progressive Taxes, 78 Neb. L. Rev. 700, 717–718 (1999) (making a Lockean case for progressive taxation under which inheritance is a questionable form of entitlement)Google Scholar; McCormack, John L., Justice and Truth in Political Discourse, 36 Loy. U. Chi. L.J. 519, 525 (2005)Google Scholar (asserting that “[t]here are people today in the United States who adhere to Locke's view” of a purportedly unqualified natural right of inheritance).

6 Waldron, Locke's Account, supra note 1, at 40.

7 Although one might say I am more concerned here with Locke's account than with a Lockean one, I use the term “Lockean” because as closely as I hew to the text, what follows involves normative judgment as well as interpretation: it is to me the best reading consistent with his text and a particular conception of his larger commitments. Certainly theories may depart more widely from Locke's text and still be considered Lockean, but I believe this is also an accurate label for my project here.

8 See, e.g., Locke, John, I Two Treatises of Government (Laslett, Peter ed., Cambridge Univ. Press 1988) (1690), at §87CrossRefGoogle Scholar.

9 Locke, John, II Two Treatises of Government (Laslett, Peter ed., Cambridge Univ. Press 1988) (1690), at §72–73CrossRefGoogle Scholar. Locke denies, however, that the heirs of those subdued by a conqueror submit themselves to the conqueror's government by virtue of their succeeding to their inheritance. See id. at §185–196. It is not immediately clear why succession implies political consent in the one case and not in the other. For a discussion of this problem, see David Gauthier, P., The Role of Inheritance in Locke's Political Theory, 32 Can. J. Econ. & Pol. Sci. 38 (1966)CrossRefGoogle Scholar.

10 See, e.g., Locke, supra note 8, at §87 (discussed infra).

11 See, e.g., id. at §97, §88.

12 Id. at §97.

13 Id. at §87.

14 It also appears not to provide for a surviving spouse, but in Locke's state of nature, such provision primarily occurs by contract rather than natural law. See, e.g., Locke, supra note 9, at §183. (In addition, spouses may acquire goods through their own labor, see id. at §183, and Locke also suggests each spouse is entitled to “mutual assistance and maintenance,” id. at §83, which hints at some role for natural law.) Although this paper is not concerned with postmortem transfers by spousal contract, I note here that we could understand such transfers as another form of bequest, albeit one in which donor and donee both have a say. Spousal transfers may be additionally informed by rights and obligations not present in the context of other transfers, but to the extent that our project is to uncover Lockean justifications for the power of decedents to bequeath and heirs to inherit property, those justifications may apply to spousal transfers as well.

15 Waldron identifies the problem of prioritized bequest. See Waldron, Locke's Account, supra note 1, at 41. He does not expressly point out the problem of unlimited inheritance but rather folds it in with the larger problem of postmortem transfers. Id. at 41–42.

16 Id. at 39–40.

17 Id. at 47.

18 Id. at 47–48.

19 Id. at 46.

20 Id. at 48. Other studies have come to similar conclusions. Sreenivasan, like Waldron, rejects bequest completely and inheritance beyond what is required by the right to parental support. See Sreenivasan, supra note 1, at 110–111. Simmons recognizes a right of bequest subject to the right to parental support but rejects an unlimited inheritance right. See Simmons, supra note 1, at 208–212.

21 Locke, supra note 8, at §87.

22 Id. at §97.

23 Locke, supra note 9, at §72.

24 Id. at §116.

25 Id. at §64–65.

26 Id. at §65 (emphasis added).

27 Locke, supra note 8, at §89.

28 See, e.g., id. at §93 (“Children . . . by the dependence they have on their Parents for Subsistence, have a Right of Inheritance to their Fathers Property.”); id. at §97 (“[T]he natural Right Children have to inherit the Goods of their Parents, being founded in the Right they have to the same Subsistence and Commodities of Life, out of the Stock of their Parents.”).

29 Locke, supra note 9, at §183.

30 Locke, supra note 8, at §88.

31 See Locke, supra note 9, at §31.

32 See id. at §27.

33 See Locke, supra note 8, at §42.

34 Id.

35 Simmons explores the phenomenon of conflicting claims under Locke's rules of natural law. Simmons argues that Locke's moral theory is essentially a form of rule-consequentialism, the ultimate goal of which is the preservation of mankind. When specific rules give rise to conflicting claims, the fundamental law of nature resolves the conflict in favor of whatever alternative works best to the preservation of mankind. See Simmons, A. John, Inalienable Rights and Locke's Treatises, 12 Phil. & Pub. Aff. 175, 199–200 (1983)Google Scholar; Simmons, supra note 1, at 51–52. The priority of the right to parental support over the right of bequest is consistent with this interpretation. See id. at 210–211.

36 Waldron, Locke's Account, supra note 1, at 51.

37 Id. at 50.

38 See id. at 42.

39 See Locke, supra note 9, at §190; Locke, supra note 8, at §87–89, §93, §97–98.

40 Id. at §97.

41 See, e.g., id. at §87.

42 Id. at §42.

43 Locke, supra note 9, at §184.

44 Locke, supra note 8, at §87.

45 Id. at §88.

46 Id. At least one scholar reads §88 as an elliptical reference to the right to parental support. See Simmons, supra note 1, at 206. I discuss this passage in Section III.D infra.

47 Locke, supra note 8, at §90.

48 Id.

49 Id.

50 Id.

51 Locke, supra note 9, at §183.

52 Locke, supra note 8, at §88.

53 Id.

54 Id. (emphasis added).

55 Id. at §87.

56 Simmons identifies five distinct justifications for the right of inheritance (see Simmons, supra note 1, at 206–208) but I hope that my three fairly cover the five. First, Simmons notes the claim that children have a right to inherit by virtue of parents' “strong desire . . . of propagating their kind.” See id. at 206 (quoting Locke, supra note 8, at §88). Simmons concludes that this is an incomplete articulation of the right to parental support. See supra note 46. I believe the passage taken in its entirety may also lend support for the justification I call “imputed bequest,” discussed in Section III.D infra. In any case, I agree with Simmons that it is ultimately not its own freestanding justification.

Second, Simmons identifies Locke's clearer articulations of the right to parental support. See Simmons, supra note 1, at 207 (citing Locke, supra note 8, at §88, §97).

Third, Simmons recognizes Locke's suggestion at Locke, supra note 8, at §89, that parents are understood to have bequeathed their possessions to their children. Simmons sets this justification aside as unnecessary in light of the right to parental support, if not in conflict with it. See id. I discuss this justification, which I call “imputed bequest,” in Section III.D infra.

Fourth, Simmons discusses Locke's statement at Locke, supra note 8, at §93, that children have a right to inherit “by the dependence they have on their Parents for Subsistence.” Simmons reads this passage to suggest that children's rights to support and inheritance are general rights that happen to be “‘focused’ on the parents by virtue of their being in the best position to provide the support.” Simmons, supra note 1, at 207–208. Simmons rejects this implication because, as he convincingly shows, Locke's account of the moral relationship between parents and children rests on special, not general, duties and rights. See id. at 192–204. To the extent that the passage implies that children's rights are general rights and parents' duties are general duties, I agree with Simmons that this implication must be rejected. But I am less inclined than Simmons to read the passage in that way. I do not think the reference to children's “dependence” implies a general right; rather I read it simply as another articulation of the right to parental support, founded upon the parents' special duties to provide subsistence and comfort. But to the extent that Simmons's subtler reading is the correct one, I agree with it. I further note that even if Locke were suggesting some general right here, not only would that right contradict the rest of his account of the family but it also would not provide a justification for unlimited inheritance.

Finally, Simmons notes Locke's suggestion that the marriage compact takes care of inheritance. Id. at 208 (citing Locke, supra note 9, at §81). Simmons concludes that this justification is at best secondary to the right to parental support. I discuss this justification immediately below.

57 Locke, supra note 9, at §81.

58 Locke, supra note 8, at §90.

59 Id.

60 Id.

61 Id.

62 Id.

63 Id.

64 Locke, supra note 9, at §68.

65 Locke, supra note 8, at §90.

66 Id.

67 Id.

68 Locke, supra note 9, at §70.

69 Locke, supra note 8, at §89 (emphasis added).

70 Citing both possible implications, Simmons concludes that this passage does not offer satisfactory support for the right of inheritance. See Simmons, supra note 1, at 207.

71 See Locke, supra note 9, at §67–68.

72 Locke, supra note 8, at §97.

73 Id. at §88.

74 Locke, supra note 9, at §72.

75 Although it is thus plausible that in the absence of children, parents and then other family members would inherit, it is troubling that none of these relatives inherits when there are children. Presumably one's parents and other relations may still be related to one's life projects even when one has children, yet the full inheritance goes only to the decedent's “closest” family members, not to all family members plausibly related to his life projects. This may be the case for the same reasons that the natural law does not try to determine to whom each individual decedent would have wanted to leave his estate, a prospect discussed infra at note 77.

Even more troubling, it appears that children's right to inherit surplus goods comes prior to needy parents' right to goods for their subsistence and comfort. We could take this latter problem to be an oversight on Locke's part, similar to the apparent priority of bequest over parental support in Locke, supra note 8, at §87. But the fact remains that he does not address it.

Both of these problems arise more in Locke's description of the inheritance right than in the justification of that right as imputed bequest. Indeed, one could argue that understanding inheritance as imputed bequest makes these distributions more plausible. But I doubt that any justification could explain them adequately.

76 See, e.g., Goetz, Charles & Scott, Robert, The Mitigation Principle: Toward a General Theory of Contractual Obligation, 69 Va. L. Rev. 967, 971 (1983)CrossRefGoogle Scholar (discussing default rules generally and arguing that courts should set uniform default rules by asking “what arrangements would most bargainers prefer?”).

77 It is true that as a third alternative the natural law could come up with some more nuanced way of asking what each individual “would have wanted.” But such an alternative would create confusion and likely spawn lengthy determinations, both of which would hinder the goods' actually being used by anyone. In addition, this solution could open up moral problems of substituted judgment that are minimized when inheritance offers people a clear default rule that they can override through specific bequests.

78 Locke, supra note 8, at §89 (emphasis added).

79 See, e.g., Murphy, Liam & Nagel, Thomas, The Myth of Ownership: Taxes and Justice 43 (2002)CrossRefGoogle Scholar; Simmons, supra note 1, at 273–274.

80 Robert Nozick, Philosophical Explanations501–502 (1981); see also Simmons, supra note 1, at 53.

81 Locke, supra note 9, at §4.

82 Id. at §6.

83 It should be clear at this point that while taking the duty of charity as placing a serious limitation on postmortem transfer, I do not read the spoilage and sufficiency limitations as doing so. I address this question below.

84 See Simmons, Inalienable Rights, supra note 35, at 199–200; Simmons, supra note 1, at 51–52.

85 For arguments for this view with respect to acquisition and ownership, see, Simmons, supra note 1, at 247–249.

86 This is perhaps the best argument, because otherwise inheritance seems at odds with the values Locke's property theory promotes. Simmons's rule-consequentialist justification for acquisition of private property depends upon Locke's conviction that labor increases the supply of goods for everyone. See Simmons, supra note 1, at 248–249 (citing Locke, supra note 9, at §37, §41–42). If labor fosters the preservation of mankind and private property fosters labor, then private property must foster the preservation of mankind. Id. The problem with postmortem transfer (and transfer in general) is that it does not obviously encourage labor; rather, free receipt of goods might be imagined to discourage productivity. One ready response is that this effect may be outweighed by the discouragement of labor that would occur if the right of transfer were not part of property rights. If transfer were not one stick in the bundle of Lockean property rights, perhaps people would not work as hard to acquire goods in the first place, and thus transfers encourage labor after all.

87 Locke, supra note 9, at §31.

88 Waldron, Locke's Account, supra note 1, at 47.

89 Locke, supra note 9, at §46.

90 Waldron, Locke's Account, supra note 1, at 47; see also Waldron, Right, supra note 1, at 435 (“[T]he principle of respecting the arrangements people have entered into may be thought to apply more to arrangements inter vivos than to post mortem arrangements.”).

91 Waldron, Locke's Account, supra note 1, at 47.

92 Locke, supra note 9, at §72.

93 See Waldron, Right, supra note 1, at 434 (concluding that Waldron's own “favourite argument for private property may permit as its upshot a ‘no-transfer’ conception of ownership”). Some theorists reject outright that Lockean property rights include the right of alienation. See, e.g., James Tully, A Discourse on Property: John Locke and His Adversaries (1983), at 113–114; Sreenivasan, supra note 1, at 107.

94 This paper cites numerous passages of the Treatises that obviously contemplate alienation rights with respect to personal and real property. If additional confirmation is necessary, Simmons convincingly refutes the no-transfer view. See Simmons, supra note 1, at 231.

95 Locke, supra note 9, at §31.

96 Id. at §27.

97 Locke, supra note 8, at §42.

98 Locke, supra note 9, at §27. Some, including Waldron, read this language not to impose a limitation but instead merely to describe the circumstances of original acquisition in the state of nature. See, e.g., Waldron, J.J., Enough and as Good Left for Others, 29 Phil. Q. 321–322 (1979)CrossRefGoogle Scholar; Leo Strauss, Natural Right and History (1953), at 238.

99 See Waldron, Locke's Account, supra note 1, at 47; Simmons, supra note 1, at 288–298.

100 Locke, supra note 8, at §42.

101 Id.

102 Id. at §41.

103 Id. at §97.

104 See, e.g., Simmons, supra note 1, at 329–331.

105 Locke, supra note 9, at §134.

106 See, e.g., Simmons, supra note 1, at 206–208 (enumerating and rejecting possible justifications for unlimited inheritance suggested in the text); Sreenivasan, supra note 1, at 44–45 n.53 (“Locke also maintains, unargued, that non-dependent children have a right to inherit.”).

107 See, e.g., Sreenivasan, supra note 1, at 46 (“[L]abour, to the extent that one is able, is the only legitimate way to exercise one's right to the means of preservation.”); Strauss, supra note 98, at 236 (“[L]abor is the only title to property which is in accordance with natural right.”).

108 See, e.g., Murphy & Nagel, supra note 79; Stephen Munzer, A Theory of Property (1990); Haslett, D.W., Is Inheritance Justified?, 15 Phil. & Pub. Aff. 122 (1986)Google Scholar.