Heyman on The Light of Nature: John Locke, Natural Rights, and the Origins of American Religious Liberty @ChicagoKentLaw @MarqLRev

Steven J. Heyman, Chicago-Kent College of Law, IIT, is publishing The Light of Nature: John Locke, Natural Rights, and the Origins of American Religious Liberty in the Marquette Law Review. Here is the abstract.

This Article explores John Locke’s theory of religious liberty, which deeply influenced the adoption of the First Amendment and the first state bills of rights. Locke sharply criticized the religious and political order of Restoration England – an order in which the king claimed to hold absolute power by divine right and in which individuals were required by law to conform to the established church. In opposition to this regime, Locke developed a powerful theory of human beings as rational creatures who were entitled to think for themselves, to direct their own actions, and to pursue their own happiness within the bounds of the law of nature. He then used this view to give a new account of political and religious life. To promote their happiness in this world, rational individuals would agree to give up some of their natural freedom and to enter into a civil society for the protection of their natural rights or “civil interests” of life, liberty, and property. By contrast, Locke argued that, when they made the social contract, rational individuals would not surrender any of their religious freedom, for they could reasonably hope to attain eternal happiness or salvation only if they used their minds to seek the truth about God and the path he desired them to follow. For Locke, the most basic precepts of religion could be known by the light of nature and reason, while others were matters of faith. Locke’s conception of human beings as rational creatures provided the basis not only for individual rights but also for duties toward others. Reason required one to recognize that other individuals were entitled to the same rights one claimed for oneself. It followed that all members of society were obligated to respect both the religious freedom and the civil rights of those who differed with them in matters of religion. In addition to defending religious freedom, Locke advocated a strict separation of church and state. Because liberty of conscience was an inalienable right, individuals would not grant the state any authority over spiritual matters. Instead, those matters were reserved for the individuals themselves as well as for the religious societies or churches that they voluntarily formed to promote their salvation. In these ways, Locke sought not only to protect the inherent rights of individuals but also to dissolve the dangerous unity between church and state that characterized the Restoration. At the same time, he sought to transform the nature of those institutions in a profound way: instead of being rooted in any notion of a hierarchy ordained by God or nature, both church and state should be founded on the consent of free and equal individuals and should respect their nature as rational beings. Understood in this way, religion would be an ally rather than a threat to human liberty. After exploring Locke’s theory, the Article sketches some of the ways that it contributed to the eighteenth-century American view of religious liberty that was embodied in First Amendment.

Download the article from SSRN at the link.

Philosophers and States of Emergency

Tyler Curley, University of Southern California, has published Sounding the Alarm: Machiavelli, Locke and States of Emergency as an APSA 2011 Annual Meeting Paper. Here is the abstract.

Leaders have long sought to redefine the legal and political order in states of emergency. In this paper, I detail the theoretical formulations of emergency powers provided by Machiavelli and Locke. These theorists offer contrasting accounts about the tolerable use of executive authority to define when emergencies arise and to rule accordingly. Even though they both discuss these powers as inevitable features of political life, I argue there should be a distinction between the authority to delineate what situations constitute emergencies and the permissible executive powers during these times. Extralegal power automatically flows from the determination of an emergency for these theorists, which I find problematic and disquieting. I warn against Machiavelli’s idea that self-interested princes alone should determine when emergencies exist and the extent of powers to eradicate these threats. While I am more sympathetic to Locke’s attempt to limit extralegal executive authority, I find he does not adequately account for abuses of emergency powers. Both theoretical accounts lead to disturbing political communities wherein the same person is given the dual authority to determine when a situation constitutes an emergency and the scope of powers in these times.

Download the paper from SSRN at the link.

Pretty Little Philosophers?

Timothy Lukes has published The Politics of Beauty: Locke, Shaftesbury, and Burke as an APSA 2011 Annual Meeting Paper. Here is the abstract.

I argue that liberalism adulterates beauty, that Shaftesbury cannot resist the survival agenda of Locke, and that Burke's concept of the sublime is the result.

Download the paper from SSRN at the link.

Locke and the Bible

Ross J. Corbett, Northern Illinois University, has published Locke's Biblical Critique. Here is the abstract.

This paper seeks to clarify the relationship between Locke’s political and religious thought. To the extent that Locke’s political thought is an outgrowth of a particular strand of Christianity, its claims to universality would be significantly diminished. This would be the case, however, only if Locke were genuinely religious. Plausible accounts of his religiosity have been offered by Dunn, Waldron, et al, but such accounts become implausible given the presence of a biblical critique within the Two Treatises. The evidence for a critique of the Bible on moral grounds pointed to by Strauss, Pangle, et al is ambiguous, however, and so fails to refute the pious-Locke hypothesis. This paper argues that close attention to Locke’s analysis of the Hebrew text of Gen. 1:28 unambiguously points to a critique of the Bible on textual grounds. This serves to set the moral critique upon firmer foundations, to imply that the moral critique really is present in the text, and to reestablish the universalist claims of Locke’s political thought.

Download the paper from SSRN at the link.

The State of Nature: Whence Politics?

William A. Edmundson, Georgia State University College of Law, has published Politics in a State of Nature. Here is the abstract.

Aristotle thought we are, by nature, political animals. Political philosophy in the tradition of Hobbes and Locke sees political society not as natural but as an artifice. For this tradition, political society emerged from a pre-political state of nature by the exercise of innate normative powers. Those powers, together with the rest of our native normative endowment, both make possible the construction of the state, and place sharp limits on the state’s just powers and prerogatives.

Thus described, a state-of-nature theory has three components. One is an account of the native normative endowment, or “NNE.” Two is an account of how the state is constructed using the tools included in the NNE. Three is an account of the state’s resulting normative endowment, which includes a (purported) moral power to impose duties of obedience.

State-of-nature theories disagree about the NNE. For Hobbes, it consists of a moral permission to do whatever seems to one to be necessary to survival, and a moral power to covenant. Locke specified a more constraining NNE, which also included a “natural executive right” to punish wrongdoing. Rawls excluded personal desert from the “original position,” his refurbishing of the state of nature. In each case, the NNE is not treated as though it were a matter of empirical investigation and discovery, but rather were one of reflective adjustment to the other two components of the theory.

The work of social psychologist Stanley Milgram and his students suggests a quite different NNE, one far more constrained than what state-of-nature theories have allowed. Norms that constrain moral reproof are of particular interest here. Contrary to Locke, people do not behave in experimental settings as one would predict if they possessed a “natural executive right” to punish wrongdoing. Moral reproof is subject to standing norms. These norms limit the range of eligible reprovers.

This paper draws on this work to support two claims. One, is that the native normative endowment is (as Aristotle held) already political. The other is that political authority should be re-conceived as a matter of standing - that is, as the state’s unique possession of a moral permission to enforce moral norms, rather than as a moral power to impose freestanding duties of obedience.

Download the paper from SSRN at the link.

Christian Doctrine and Moral Theory In Locke's "Two Treatises of Government"

Steven Menashi, Georgetown University Law Center, has published Cain as His Brother's Keeper: Property Rights and Christian Ethics in Locke's Two Treatises of Government in volume 42 of the Seton Hall Law Review (2012). Here is the abstract.

Those scholars who regard Locke’s theory of property as a reflection of conventional Christian views pay insufficient attention to the deliberate rhetorical method of his Two Treatises of Government. Close attention to the text reveals profound criticisms of prevailing Christian doctrine. In fact, Locke’s theory of property forms the core of a moral theory that aims to supplant traditional religious teaching with an ethic of human industry and individual autonomy. Understanding Locke’s intention illuminates the foundations of American constitutionalism and of modern liberalism.

Download the article from SSRN at the link.