Locke and Private Law
Research Handbook on Private Law Theory (Hanoch Dagan & Benjamin Zipursky, eds. 2021)
12 Pages Posted: 11 Jan 2021
Date Written: January 9, 2021
I suggest in this chapter that much but not all of private law is consistent with Locke's understanding of private rights. Locke contemplated that natural rights would undergo some changes to accommodate the move from a state of natural to civil society. For example, natural rights must be standardized and restated in the form of determinate rules that permit private actors to anticipate the legal treatment of their transactions. A system of equity may also be helpful to facilitate judicial enforcement of rights.
Other features of private law suggest that the state has assumed a more Hobbesian role, acting as a benevolent (we hope) dictator with authority to maintain peace, solve collective action problems, and otherwise modify rights in ways that members of the society think are fair.
Keywords: John Locke, private law, private rights, natural rights, natural society, civil society, determinate rules, private actors, system of equity, judicial enforcement, Hobbesian role,
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