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THE PRIVATE SOCIETY AND THE LIBERAL PUBLIC GOOD IN JOHN LOCKE'S THOUGHT

Published online by Cambridge University Press:  02 June 2008

Eric R. Claeys
Eric R. Claeys
Affiliation:
Law, George Mason University
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Abstract

This essay interprets John Locke's teachings about private societies, or free private associations. The essay proceeds by interpreting Locke's mature writings on ethics, politics, and philosophy, and then by illustrating Locke's teachings as they apply to two contemporary problems in associational freedom. Although Locke wrote about private societies primarily in the course of arguing for religious toleration, throughout his mature corpus he develops an internally consistent general theory of associational freedom. At first glance, Locke seems to suggest that all citizens are entitled to associate for any end of their choosing, to control admission into and expulsion from their membership, and to enforce their own internal rules of governance. However, Locke qualifies this broad right to bar societies from organizing around ends inconsistent with the minimal moral and political conditions of liberalism. Ultimately, Locke suggests, citizens deserve a broad right of private society only to the extent that they are well enough formed by their regime and its private institutions to be capable of governing themselves in both private and public life.

In contrast with contemporary practice, Locke's justification is broader in some respects and narrower in others. The essay illustrates the implications by considering how Locke's teachings justify limiting the scope of anti-discrimination laws and enlarging the scope of government efforts to dissolve seditious associations.

Type
Research Article
Information
Social Philosophy and Policy , Volume 25 , Issue 2 , July 2008 , pp. 201 - 234
Copyright
Copyright © Social Philosophy and Policy Foundation 2008

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References

1 Simmons, A. John, The Lockean Theory of Rights (Princeton, NJ: Princeton University Press, 1992), 14Google Scholar; Bernstein, David E., “Antidiscrimination Laws and the First Amendment,” Missouri Law Review 66 (2001): 83, 105 n. 109Google Scholar; Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173 (1972)Google Scholar.

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3 References to Locke's Letter Concerning Toleration are made not in the notes but parenthetically in the text, with the following conventions. “LT 32” refers to Popple, William's translation of A Letter Concerning Toleration (London: Printed for Awnsham Churchill, 1689), page 32Google Scholar. I thank Tom West for pointing out to me several discrepancies between Popple's translation and Locke's original Latin. In cases involving those discrepancies, I translate Locke's Latin myself, citing Locke, John, Epistola de Tolerantia: A Letter on Toleration, ed. Klibansky, Raymond, Gough, trans. J. W. (Oxford: Clarendon Press, 1968)Google Scholar.

References to Locke's other major, mature writings are also made in the text, with the following conventions: “TT I.86” refers to Locke, John, Two Treatises of Government, student edition, ed. Laslett, Peter (Cambridge: Cambridge University Press, 1988), treatise 1, section 86. “ECHU II.21.51”CrossRefGoogle Scholar refers to Locke, John, An Essay Concerning Human Understanding, ed. Nidditch, Peter H. (Oxford: Oxford University Press, 1979), book 2, chapter 21, paragraph 51Google Scholar. “RC 235” refers to Locke, John, The Reasonableness of Christianity, ed. Ewing, George W. (Washington, DC: Regnery Gateway, 1965), paragraph 235Google Scholar. “STCE 70” refers to Locke, John, Some Thoughts Concerning Education, in Locke, Some Thoughts Concerning Education and Of the Conduct of the Understanding, ed. Grant, Ruth W. and Tarcov, Nathan (Indianapolis, IN: Hackett Publishing Co., 1996), paragraph 70Google Scholar.

In quoted passages, all italics are in the original unless otherwise noted.

4 Horn, Groups and the Constitution, 8. See also Peter Laslett, “Introduction,” in Locke, Two Treatises of Government, 3, 86; Cranston, Maurice, “John Locke and the Case for Toleration,” in Mendus, Susan and Edwards, David, eds., On Toleration (New York: Oxford University Press, 1987), 101–21, 119 and passimGoogle Scholar. Similarly, while Ingrid Creppell treats Locke's Letter Concerning Toleration as justifying a broader theory of liberalism, she works with Locke's observations on religion and not with his observations on private associations generally. See Creppell, Ingrid, “Locke on Toleration: The Transformation of Constraint,” Political Theory 24, no. 2 (1996): 200, 226, 228–29CrossRefGoogle Scholar.

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7 LT 15. Popple's translation suggests that the right of private society is not only “immutable” but also “fundamental.” Locke's Latin has no word corresponding to “fundamental.”

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11 Letter from John Locke to Richard King, August 25, 1703, cited in Rapaczynski, Andrzej, Nature and Politics: Liberalism in the Philosophies of Hobbes, Locke, and Rousseau (Ithaca, NY: Cornell University Press, 1987), 15 and n. 11Google Scholar.

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14 By describing Locke as a philosopher, this interpretation comes into some tension with more historically focused interpretations that prefer to read Locke primarily in the context of the problems of England in his day. See Laslett, “Introduction,” 76; and Dunn, The Political Thought of John Locke, 16–18, 266–67.

15 Although Locke's Of the Conduct of the Understanding targets the same audience, on the topics covered here that work is less relevant than and adds little to the Essay. I pass over Locke's subsequent letters on toleration for similar reasons.

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18 On this point, I follow Thomas West, Ruth Grant, A. John Simmons, and Nathan Tarcov more than I do Michael Zuckert. Zuckert grounds Locke's normative claims in “self-ownership,” which is not necessarily eudaimonistic. See Zuckert, Launching Liberalism, 4–5, 193–95; see also West, Thomas G., “Nature and Happiness in Locke,” The Claremont Review of Books 4, no. 2 (2004) (reviewing Zuckert, Launching Liberalism), available online at http://www.claremont.org/publications/pubid.659/pub_detail.aspGoogle Scholar; Myers, Our Only Star and Compass, 137–72; Grant, John Locke's Liberalism, 23–25, 37–39; Simmons, The Lockean Theory of Rights, 52–53; and Tarcov, Locke's Education for Liberty, 210. See also Stolzenberg, Nomi M. and Yaffe, Gideon, “Waldron's Locke and Locke's Waldron: A Review of Jeremy Waldron's God, Locke, and Equality,” Inquiry 49, no. 2 (2006): 186, 197–202CrossRefGoogle Scholar (criticizing Waldron for reading Locke as a deontologist and not a utilitarian).

19 See MacIntyre, Alasdair, “Hume on the ‘Is’ and the ‘Ought’,” in MacIntyre, , Against the Self-Images of the Age: Essays on Ideology and Philosophy (South Bend, IN: University of Notre Dame Press, 1978): 109, 124Google Scholar; Anscombe, G. E., “Modern Moral Philosophy,” Philosophy 33, no. 124 (1958): 1, 2CrossRefGoogle Scholar (general criticisms of Kantian deontology); and Creppell, “Locke on Toleration,” 200–201 (on the relevance of Locke's observations on the human condition).

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23 Aristotle, Politics, 1255a3–a20; Goldwin, “John Locke,” 484.

24 Myers, Our Only Star and Compass, 168–69, 179–226; West, “Nature and Happiness in Locke.”

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30 From this paragraph until the end of this section, my argument has been informed substantially by Myers, Our Only Star and Compass, 123–29, 196–97.

31 See Aristotle, Nicomachean Ethics, 1155a20–b1.

32 See Grant, “Locke's Political Anthropology and Lockean Individualism,” 59–60.

33 See TT I.58–59; Myers, Our Only Star and Compass, 126; and Creppell, “Locke on Toleration,” 213–16.

34 Here, “noninjurious” is a term of art meant to exclude acts that threaten harms the public may properly protect against, to be sketched in Section VI.

35 See McGowan, David, “Making Sense of Dale,” Constitutional Commentary 18 (2001): 121, 125, 157Google Scholar (discussing Boy Scouts of America v. Dale, 530 U.S. 640, 648–53 [2000]Google Scholar).

36 See Dale, 530 U.S. at 649–50; Roberts v. United States Jaycees, 468 U.S. 609, 617–23 (1984)Google Scholar; and ibid. at 634–646 (O'Connor, J., concurring in the judgment). Here and henceforth, I use judicial opinions as expressions of conventional political wisdom, to show how contemporary political opinions contrast with Locke's. I do not cover the many legal issues that would need to be addressed before determining whether each of these cases was correctly decided as a matter of constitutional law.

37 See Dale, 530 U.S. at 648; Roberts, 468 U.S. at 623.

38 Koppelman, Antidiscrimination Law and Social Equality, 1.

39 I thank Eric Miller and Andy Koppelman for encouraging me to make this point explicit.

40 Locke, Epistola de Tolerantia, 122. For Popple's translation, see LT 40–41.

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44 See ECHU I.3.6; RC 243; and Waldron, God, Locke, and Equality, 224–26, 235.

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51 Dewey, John, Liberalism and Social Action (Amherst, NY: Prometheus Books, 1999), 27, 35Google Scholar.

52 Ibid., 35.

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54 See Putnam, Robert D., “E Pluribus Unum: Diversity and Community in the Twenty-First Century,” Scandinavian Political Studies 30, no. 2 (2007): 137, 146–59CrossRefGoogle Scholar.

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56 See Epstein, Richard A., Forbidden Grounds: The Case Against Employment Discrimination Laws (Cambridge, MA: Harvard University Press, 1992), 13–143Google Scholar; Days, Drew S. III, “Reality,” San Diego Law Review 31, no. 1 (1994): 169, 170–80Google Scholar; McAdams, Richard, “Epstein on His Own Grounds,” San Diego Law Review 31, no. 1 (1994): 241, 249–64Google Scholar; Issacharoff, Samuel, “Contractual Liberties in Discriminatory Markets,” Texas Law Review 70, no. 5 (1992): 1219, 1225–34Google Scholar; and Verkerke, J. Hoult, “Free to Search,” Harvard Law Review 105, no. 8 (1992): 2080, 2088–96CrossRefGoogle Scholar.