John Locke on historical injustice: the redemptive power of contract

ABSTRACT

This paper seeks to argue that Locke proposes a coherent theory of restorative justice regarding historical crimes. In two cases that he sets out in the Second Treatise, that of the Greek Christians living in the Ottoman Empire and Englishmen living in the wake of William I’s conquest, the preliminary standard of historical redress is whether the descendants of the conquerors and conquered possess equal political rights. Conquered peoples cannot simply be subsumed or annexed into an existing political order. They must have some say in articulating or agreeing to the laws that govern them. In this respect, Locke’s theory of historical redress emphasizes the redemptive power of contract to overcome historical crimes. Furthermore, the disposition a community has to reimagine its body politic, to enfranchise the dispossessed by forming one body of people, speaks to the degree to which historical injustice is likely to occur.

KEYWORDS:

• Historical injustice
• John Locke
• contract
• Norman conquest
• Grecian Christians

Disclosure of potential conflicts of interest

No potential conflict of interest was reported by the author.

Notes

1. The ‘enough, and as good’ proviso of land acquisition can be found in Locke, 1988, §§33 and 34.

2. For similar criticisms, see Hallam1847, 447; and Palgrave 1921, 291.

3. Simmons forcefully criticizes this point: ‘Making new things or adding value to existing things is simply not a way of acquiring rights over them, as least unless there are no prior claims to those things’ (2016, 144–45).

4. In a much earlier essay, Waldron (1981) addresses some of these issues but not regarding historical injustice.

5. While this formulation does not preclude some preference for elder sons, this was part of a broader attack on the patrilineal transmission of political authority. For more on this see Smith 2021, 127.

6. This suggests that Locke may have been at least a weak constitutionalist, i.e. there is some importance in the heritability of legitimate political systems, that generational continuity builds viability (see Resnick, 1984).

7. In a fictionalized dialogue between the Irish revolutionary Robert Emmet (1778–1803) and a ‘traveler,’ Emmet explicitly takes up Locke’s argument about Grecian Christians in favor of Irish independence (see Emmet, 1870, p. 138). The Irish MP, Henry Grattan, makes a similar argument (1853, 138).

8. This argument was ‘strange’ because it was clearly the minority view at that time. Hugo Grotius had argued that one had a right to the possessions of one’s enemies but believed total despoiling was unreasonable. See the section ‘On Moderation in Despoiling an Enemy’s Country’ (1901, Book 3, chapter 12). See also Pufendorf 1729, Bk 8, Ch. 6, Sec. 24, 847.

9. See Kitromilides (1996) for speculation as to why Locke’s writing did not attract the attention of Greek radicals.

10. For Locke’s and Molyneux’s exchange on this issue, see Kelly1988.

11. Ashcraft, 1969 and Brewer, 2017 both argue that Locke was the author of ‘Some of the Chief Grievances of the Present Constitution of Virginia.’

12. For some additional context to the English discourse on race and religious toleration in the seventeenth century, Sowerby shows that King James II’s pro-toleration campaigning in 1687 included formulations exactly like this. He unearths one such speech recorded in the diary of Sir Willoughby Aston: ‘suppose said he there should be a law made that all black men should be imprisoned, twould be unreasonable and we had as little reason to quarell [sic] with other men for being of different opinions as for being of different Complexions, desired we should shew our selfs Englishmen, and he was sure no Englishman could desire to see others persecuted for differences of opinion, and therefore again told us, the way to reconcile all differences was to take of[f] those Lawes which made men uneasie under them and deprived them of theyr Rights’ (as cited in Sowerby, 2009, p. 32). This argument was predicated on the idea that ‘certain personal traits, including religious opinions and skin colour, were beyond punishment or blame’ (34). Of course, these sentiments are difficult to square with the king’s support of African slavery, which, quite literally imprisoned men based solely on this skin complexion. Even though this example is complicated, the point here is show that issues of toleration did touch on, even if paradoxically and inconsistently, issues of race and ethnicity. Richard Baxter, another proponent of toleration, makes a similar linkage. He writes: ‘As if none should be tolerated but men of one Stature, Complexion, &c’ (1680, 26–27).

13. Incidentally, the people with ‘grey eyes’ and ‘black hair’ of whom Locke speaks are likely the Budini, European Scythians (see Bulwer, 1654, p. 111). Achilles, described by Alcaeus as ‘lord of Scythia,’ was known for having ‘black hairs, and crisp grey eyes’ (Lefevre, 1680, p. 26). Incidentally, these features were commonly ascribed to ‘gypsies.’ If so, this might have compelling implications for how Locke viewed migratory people in England. For more on ‘gypsy’ representations in the seventeenth century, see Dragomir 2019.

14. Curiously, Naomi Zack argues, ‘Locke does not say that it would be wrong to deprive people of the privileges of citizenship based on their appearance, but rather that it should not be done because “common persecution” would unite “these persons” to pose a danger to the government’ (2018, 10–11). She argues that this is a ‘purely pragmatic’ argument against ‘racial bias’ (11). As the additional context presented above suggests, Locke is clearly making a political and moral argument against the oppression of religious and ethnic minorities. In no way can this be reduced to merely a practical concern.

15. There is reason to think that Locke believed that ethnically heterogeneous could form viable political communities. See Smith 2018a.

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Brian Smith

Brian Smith is an Assistant Professor of Political Science at Nazarbayev University. He specializes in political theory, the history of political thought, and military ethics. He has recently published a book on Locke and immigration, John Locke, Territory, and Transmigration (2021) and has another book under contract with Brill that chronicles the history of arguments for killing the innocent. His work has appeared in History of Political Thought, Seventeenth Century, Polity, Science and Society, Philosophy and Literature, and elsewhere.