Turner on Resistance to Tyranny versus the Public Good: John Locke and Counter-Terror Law in the United Kingdom

Ian Turner, University of Central Lancashire Law School, has published Resistance to Tyranny versus the Public Good: John Locke and Counter-Terror Law in the United Kingdom. Here is the abstract.

John Locke was a social contract theorist. He envisaged that individuals had domiciled in a state of nature, enjoying natural rights. But because of the insecurities of the natural state, individuals transitioned to the stability of civil society, guaranteed by a sovereign. There were fetters on the sovereign, however, such as passing laws for the public good. Is modern legislation to counter terrorism for the public good? Locke also expressly granted a right of resistance on the people. But is this right terrorism? Reflecting on these principles, this study examines counter-terror statutes and determines whether Locke would support them.

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Mutua on The Fraud of John Locke: Subnational Challenges to Democratic Theory @makaumutua

Makau W. Mutua, SUNY Buffalo Law School, is publishing The Fraud of John Locke: Subnational Challenges to Democratic Theory in Comparative Election Law (James A. Gardner, ed. Edward Elgar Publishing 2022). Here is the abstract.

In this chapter, I focus my attention on some of the most poignant limitations of the idea and practice of democracy. Democracy is challenged by some of its central imperatives—individualism, elections, anti-discrimination and equal protection norms, and nationalism, including subnational identities. Often, it can appear to be nonsense on stilts. I argue here that the very norms that make democracy attractive are its Achilles heel. In particular, I question the potential for democracy to contain certain identities, especially racial and ethnic, to create the society that embraces all—both majority and minority. In this context, I ask this question—is it time to revisit Locke’s and liberalism’s central theses? Is the political experiment of democracy on its deathbed because of the resilience of nationalism and sub-nationalism? In a word, was Locke’s genius an unwitting fraud on its theorists and practitioners? In the political furnace of these nativist cross-winds, democracy as expressed through open and free elections—the one essential and indispensable element of political democracy—is open to capture by the vilest of majorities. Suddenly, the pivot of the idea of democracy becomes its enemy. Majorities then use democracy itself to attack, or end, it. This chapter contends that there is no defense against the capture of the democratic state by hateful majorities. Not only can they use elections to gain and husband power, they can deploy their control to rewrite the character of the state while leaving a veneer—an empty husk—of the liberal state in place. In the circumstances, thinkers need to contemplate whether the clock of history has run out on liberalism. Can it be rescued from the clutches of fatigue and populist nativist, and often racist, uprising in the most advanced democracies? Are there any failsafe tools— normative and structural—that can snap democracy from the precipice?

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Havasy, Macey, and Richardson on Against Political Theory in Constitutional Interpretation @Maceyjoshua @VandLRev @Harvard_Law @CornellLaw

Christopher Havasy, Harvard Law School; Harvard University, Department of Government, Joshua Macey, University of Chicago Law School, and Brian Richardson, Cornell Law School, are publishing Against Political Theory in Constitutional Interpretation in the Vanderbilt Law Review. Here is the abstract.

Judges and academics have long relied on the work of a small number of Enlightenment political theorists—particularly Locke, Montesquieu, and Blackstone—to discern meaning from vague and ambiguous constitutional provisions. This Essay cautions that Enlightenment political theory should rarely, if ever, be cited as an authoritative source of constitutional meaning. There are three principal problems with constitutional interpretation based on eighteenth-century political theory. First, Enlightenment thinkers developed distinct and incompatible theories about how to structure a republican form of government. That makes it difficult to decide which among the conflicting theories should possess constitutional significance. Second, the drafters did not write the Constitution in the image of the philosophy of Montesquieu, Locke, or Blackstone. Instead, they developed a new form of government to meet what they perceived to be the needs of a nascent republic. And third, the Constitution itself departs from the dominant strands of Enlightenment political theory in crucial respects. For example, while some Enlightenment theorists advocated for precisely divided federal powers, the drafters favored a system of procedural checks, not formal separation. Thus, while Enlightenment works can be normatively persuasive or act as a guide to historical meaning, they should be treated as presumptively irrelevant in constitutional interpretation. Unless the party who would invoke an Enlightenment political theorist can produce evidence of consensus or common ground about that theory from an episode of American constitutional debate, the theorist’s prescriptions are no more probative than any other work of normative political theory.

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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.

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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.

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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.

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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.

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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.

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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.

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