The Lockean Rights of Bequest and Inheritance

Posted: 15 Sep 2011  

Leslie Kendrick

University of Virginia School of Law

Abstract

Lawyers and philosophers have misunderstood the rights of bequest and inheritance within Locke’s theory of property. While lawyers assume these are unqualified natural rights, philosophers find Locke’s account of them so inadequate as to cast their existence into serious doubt. But on Locke’s theory, the rights of bequest and inheritance are neither absolute nor incoherent. Locke treats inheritance as a form of imputed bequest, whereby natural law imputes to the intestate an intention to leave his goods to his closest family members. Both bequest and inheritance find their justification in the prerogatives of owners to dispose of their property. These prerogatives are not without limit, however. The needs of a decedent’s dependents trump specific bequests, and both bequest and inheritance are subject to the duty of charity. Bequest and inheritance thus order the relative claims of owners and others so that they are consistent with Locke’s more general theory of property.

Suggested Citation

Kendrick, Leslie, The Lockean Rights of Bequest and Inheritance. Legal Theory, Vol. 17, No. 2, p. 145, 2011; Virginia Public Law and Legal Theory Research Paper No. 2011-33. Available at SSRN: https://ssrn.com/abstract=1926751

Leslie Kendrick (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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