I am grateful for comments on earlier drafts to Denise Dutton, Amy Gutmann, John Holzwarth, GeorgeKateb, Andrew Kuper, Donald Moon, Alex Tuckness, the members of the Princeton Political Theory Research Seminar and three anonymous reviewers from The Review of Politics.

1. Kritz, Neil J., “The Dilemmas of Transitional Justice,” in Transitional Justice: How Emerging Democracies Reckon with Former Regimes: Volume I- GeneralConsiderations, ed. Kritz, Neil J. (Washington, D.C.: United States Institute of Peace Press, 1995), p. xxxi.Google Scholar

2. At least, this is the limited version of the question I focus on. A broader version asks what should be done about the “severe human rights abuses that earlier authoritarian regimes,their opponents, or combatants in an internal armed conflict have committed” (Crocker, David, “Truth Commissions, Transitional Justice and Civil Society,” in Truth v. Justice: The Morality of Truth Commissions, ed. Rotberg, Robert I. and Thompson, Dennis [Princeton: Princeton University Press, 2000], p. 99; emphasis added).Google Scholar

3. For recent views on the use of historical works in discussing contemporary issues, see Skinner, Quentin et al. , “Political Philosophy: The View from Cambridge,” The Journal of Political Philosophy 10/1 (2002): 2–4;Google Scholar and Kateb, George,“The Adequacy of the Canon,” PoliticalTheory 30/4 (2002): 482–505.Google Scholar These citations are not meant to constitute an argument from authority for Locke's present-day relevance. Rather, the proof of the pudding is in the eating: that Locke's historical works are pertinent to transitional justice is a proposition this entireessay supports.

4. See Rotberg, Robert I., “Truth Commissions and the Provisionof Truth, Justice and Reconciliation,” in Truth v. Justice, p. 3.Google Scholar For argumentsthat the absence of political democracy would not much worry Locke, see Marshall, John,John Locke:Resistance, Religion and Responsibility (Cambridge: Cambridge University Press, 1994), pp. 215–16, 264, 271.CrossRefGoogle Scholar

5. McAdams, A. James, “Preface,” in Transitional Justice and the Rule of Law in New Democracies, ed. McAdams, A. James (Notre Dame and London: University ofNotre Dame Press, 1997), pp. xi–xii.Google Scholar

6. Quoted in Orentlicher, Diane F., “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime,” Yale Law Journal 100/8 (1991): 2539, fn. 3.Google Scholar

7. Neier, Aryeh, “What Should be Done about the Guilty?” The New York Review of Books, 02 1, 1990, p. 34.Google Scholar

8. Locke, John, An Essay Concerning Human Understanding, ed. Woolhouse, Roger (London:Penguin, 1997), 2.28.5.Google Scholar

9. Locke, , “Toleration B,” in Political Essays, ed. Goldie, Mark (Cambridge: Cambridge University Press, 1997), p. 247.Google Scholar

10. Locke, John, The Second Treatise of Government, in Two Treatises of Government, ed. Laslett, Peter (Cambridge: Cambridge University Press, 1988), § 57.Google Scholar Furtherreferences by section (§) in parentheses in the text.

11. Locke, , Essays on the Law of Nature, in Political Essays, p. 121.Google Scholar Further page references to this work as ELN in parentheses in the text. See also Locke, John, A Second Letter Concerning Toleration, in The Works of John Locke, vol.6 (London: Thomas Davison, 1812), pp. 88–89.Google Scholar

12. Dugard, John, “Retrospective Justice: International Law andthe South African Model,” in Transitional Justice, p. 270.Google Scholar

13. McAdams, A. James, “Communism on Trial: The EastGerman Pastand the German Future,” in Transitional Justice, p. 246.Google Scholar

14. Robertson, Geoffrey, Crimes Against Humanity: The Struggle for Global Justice (New York: The New Press, 1999), pp. 17–20.Google Scholar

15. In general, see “Essay II” and “Essay IV” on the knowability of the law of nature.

16. Locke, , Second Letter, in Works, 6: 112.Google Scholar

17. I am grateful to John Holzwarth for raising this question.

18. Locke is writing here about the law of nature in the state of nature, but what is true of it in the state of nature is true of it in civil society too. That transgressions of the law of nature go unpunished in civil society is as unacceptable as that they go unpunished in the state of nature. And in any case, Locke holds the more general view that “law is to no purpose without punishment” (ELN, p. 113).Google Scholar

19. Locke regards as forms of punishment both (1) inflicting harm asadeterrent and (2) the extraction of amends. To avoid the awkwardness of referring to “punishment for restraint” and “punishment for reparation,” I refer to “punishment” and “reparation(s),” and to “right(s) to punish” and “right(s) to reparation.”

20. True, the U.S. Constitution's Thirteenth Amendment allows“involuntary servitude” as “a punishment for crime whereof the party shall have been duly convicted.” (I am grateful to George Kateb for pointing this out.) Still, damnified persons do not benefit from the labor in U.S. prisons of those who committed crimes against them.

21. Locke, , An Essay on the Poor Law, in Political Essays, pp. 186, 187;Google Scholar emphases added.

22. Locke, , Second Letter, 6:112.Google Scholar See also Locke, , “Civil and Ecclesiastical Power,” in Political Essays, p. 217.Google Scholar Compare Bentham, Jeremy: “[A]ll punishment is mischief; all punishment in itself is evil. Upon the principles of utility, if it ought at all to be admitted, it ought only to be admitted in as far as it promises to exclude some greater evil” (The Principles of Morals and Legislation [Amherst: Prometheus Books, 1988], p. 170).Google Scholar Those who have noticed utilitarian elements in Locke include Neal Wood, The Politics of Locke's Philosophy (Berkeley: University of California Press, 1983), pp. 136–37;Google ScholarSeliger, M., “Locke's Natural Law and the Foundation of Politics,” Journal of the History of Ideas 24/3 (1963): 337;CrossRefGoogle ScholarMcPherson, C. B., The Political Theory of Possessive Individualism (Oxford: Oxford University Press, 1962), p. 194.Google Scholar

23. Locke, , “Atlantis,” in Political Essays, p. 258.Google Scholar

24. Locke, , The Fundamental Constitutions of Carolina, in Political Essays, pp. 168, 171.Google Scholar

25. Both rights will obtain even if every overthrowing victim takes a post in the new government. In such a case, the same set of persons would hold the right of conquest against deposed-regime members in their capacity as overthrowing victims, and the right to punish in their capacity as members of the new government. Locke is no foreigner to multiple capacities of this sort. He mentions the power of “a father over his children, a master over his servant, a husband over his wife, and a lord over his slave,” and notes that these “distinct powers happening sometimes together in the same man,” it is still possible to “distinguish these powers one from another, and show the difference between a ruler of a commonwealth, a father of a family, and a captain of a galley” (§ 2).

26. See Baumgold, Deborah, “Pacifying Politics: Resistance, Violence and Accountability in Seventeenth-Century Contract Theory,” Political Theory 21/1 (1993): 16.Google Scholar

27. Locke suggests that circumstances may require the non-execution of the law, and that there should perhaps be a remission of punishment. He does not say that a trial should not be conducted. In the hard case of transitional justice, though, both trial or punishment would probably be reason enough for deposed-regime members to resort to violence.

28. Goldie, , in Political Essays, p. 308, fn. 73.Google Scholar

29. Locke, , “On Allegiance and the Revolution,” in Political Essays, pp. 308–309.Google Scholar A “general Act of Oblivion” would be an act of indemnity, preventing prosecution for old offences. Such an act—the “Act of Grace”—was passed on May 24 1690, indemnifying almost all of James II's supporters.

30. Locke, , “Allegiance,” in Political Essays, p. 312.Google Scholar

31. Locke, , “Carolina,” in Political Essays, p. 272.Google Scholar

32. Locke thinks it is obvious that a government cannot exist without a community (for the community chooses the form of government and entrusts it with its natural rights); but he also thinks that it is unlikely that a community will last very long without a government.

33. Locke, , “Obligation of Penal Laws,” in Political Essays, p. 236.Google Scholar Arguably, 1676 is still Locke's authoritarian period, but the point is wholly consistent with his mature position.

34. See Anglim, John, “On Locke's State of Nature,” Political Studies 26/1 (1978): 89.Google Scholar

35. Laslett “Introduction,” in Locke, , Two Treatises, p. 96.Google Scholar

36. For similar formulations in the Second Treatise, some as explicit and some briefer, see § § 8, 10, 11, 181, 182, 230;Google Scholarsee also the First Treatise, § 58.Google Scholar

37. See Locke, , Essay, 1.3.2–3;Google Scholar 2.21.47–48,56; 3.11.16; 4.4.7; 4.12.11; 4.14.1–2; 4.20.16. Grant notes: “To be ruled by reason is the privilege of human life. Locke consistently finds its opposite in the rule of force, which is the rule among beasts. It is the human capacity to reason that makes possible man's rule over the beasts. And it is only when a man abandons the moral rule of the human community, open to all who reason, and substitutes the rule of force that he descends to the level of the beasts and can justly be treated as if he were a beast—as a slave. The slave, subject to the arbitrary will of his master, is ruled by force” (Grant, Ruth W., John Locke's Liberalism [Chicago: University of Chicago Press, 1987], pp. 70–71).CrossRefGoogle Scholar

38. But there is this difficulty: if the law of nature is as clear to everyone as Locke claims it is, won't deposed-regime members know that they have no claim to be treated with the same respect as rational human beings? And if so, won't they either remain extremely vigilant after any transition or, even, resist any kind of transition in the first place? I can do no more here than note these troubling possibilities. (I thank Andrew Kuper for noting this difficulty.)

39. Locke, , Essay, 1.3.2.Google Scholar

40. Dunn, John, The Political Thought of John Locke: An Historical Account of the Argument of the Two Treatises of Government (Cambridge: Cambridge University Press, 1969), p. x.CrossRefGoogle Scholar

41. Dunn, John, “What is Living and What is Dead in the Political Theory of John Locke?” Dunn, John, Interpreting Political Responsibility: Essays 1981–1989 (Princeton: Princeton University Press, 1990), pp. 9, 22.Google Scholar

42. Simmons, A. John, The Lockean Theory of Rights (Princeton: Princeton University Press, 1992), pp. 46–59.Google Scholar

43. See Kritz, , Transitional Justice.Google Scholar

44. Goldie, , “Introduction,” in Political Essays, p. xviGoogle Scholar.

45. McAdams, , “Preface,” in Transitional Justice, pp. ix–x.Google Scholar

46. See Hayner, Priscilla B., Unspeakable Truths: Confronting State Terror and Atrocity (New York and London: Routledge, 2001).Google Scholar

47. Locke, , “Verses on Oliver Cromwell“ and ”Verses upon peace with the Dutch,“ in Political Essays, pp. 201–202.Google Scholar

48. Even Tully, who argues that the “only faithful attitude we can take to [Locke's theory] as a whole is one of nostalgia” also concedes that reading Locke reveals “where our thought runs parallel to Locke's, where his ‘style’ has left its mark on [us], and where our thought diverges” (Tully, James, An Approach to Political Philosophy: Locke in Contexts [Cambridge: Cambridge University Press, 1993], pp. 306,284).CrossRefGoogle Scholar