The Common Law and the Constitution: John Locke and the Missing Link in Law

American Society of Legal History, November 2005

27 Pages Posted: 4 Aug 2011 Last revised: 23 Mar 2013

Date Written: November 1, 2005

Abstract

Locke's concept of rights influenced the Framers of the Constitution, which has increased the stakes in later interpretation of what Locke’s model of rights entailed. “Lockean rights” now suggests a perfect right unlimitable by the state in the public interest. Such a right is theoretically interesting, but it is not what Locke had in mind, and it was not the model of rights Madison, Jefferson, Hamilton, and other inherited from Locke's Second Treatise.

This paper was an initial reconstruction of Locke's model of a right, locating it within the legal culture of his time and place. His model of what a right is, in itself, was not controversial then (as the perfect and unlimitable right would have been). It was an interest that could be asserted against a party who harmed it unreasonably, but it remained subject to reasonable limitations in its own use. Thus Locke did not propound a model of rights beyond reasonable limits by law.

Keywords: Lockean right, Locke, right, theory of rights, law, legal right, Shaftesbury, Framers, Constitutional right, Founders, Originalism

JEL Classification: B1, B10, H1, H10, H4, H41, K1, K11, K4, K40, N41, Z00

Suggested Citation

Sheppard, Stephen M., The Common Law and the Constitution: John Locke and the Missing Link in Law (November 1, 2005). American Society of Legal History, November 2005, Available at SSRN: https://ssrn.com/abstract=1904486

Stephen M. Sheppard (Contact Author)

St. Mary's University School of Law ( email )

One Camino Santa Maria
San Antonio, TX 78228-8602
United States

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