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was one of the most powerful and influential modes of political discourse
to emerge in the early-modern period. Historians of rights have pointed
out that although the emergence of subjective rights in the seventeenth
century is closely associated with attempts at limiting the authority of
states, this legacy is somewhat ambiguous.2 First of all, rights discourse
was used to justify submission to authority as much as limits against it,
insofar as it entailed the discretion of individuals to submit absolutely.
Secondly, there are deep connections between the language of rights and
processes of state-formation,3 and especially the link between the


1
See O™Brien, in this volume.
2
Tuck 1979; 1993; 1999; Haakonssen 1996; Haakonssen 2001; Foucault 2003.
3
Tuck 1999; Armitage 2000; Braddick 2000.

191
192 duncan ivison
emergence of the ˜modern™ idea of natural rights and European
expansionism.4 For Richard Tuck, the autonomous rights-bearing agent
at the heart of liberal individualism is a product of seventeenth-century
theorizing about the nature of the autonomous state acting in the
international sphere. The sovereign individual is the ˜traditional cousin
of the sovereign state™, argues Tuck, and especially the aggressive, violent,
and minimally constrained relative described by Hugo Grotius, Thomas
Hobbes, John Locke and Emer de Vattel.5 Thus the connection between
liberalism and imperialism, on this reading, is not merely chronological
or historical but metaphysical. The analogy between the sovereign state
and the sovereign individual acting on the basis of their natural rights,
constrained by the recognition of the basic rights of others (but not much
more than that) represents an influential vision of liberal freedom. This
minimalist account of freedom represents only one vision, however, and
Tuck™s account of the pre-history of liberal rights has to be balanced
against other conceptions, including more emancipatory ones.6
My aim in this chapter is thus to take the complexity of our histories
of rights as seriously as the nature of rights themselves. Let me say
immediately that the point is not to satisfy our sense of moral superiority
by smugly pointing out the prejudices found in arguments made over
three hundred years ago. We have more than our own share of problems
and prejudices to deal with. Rather, in coming to grips with this history,
and especially how early-modern political theorists struggled with the
extension and application of natural rights to the ˜New World™, we
may learn something about our own struggles to extend human rights
beyond the boundaries of the state system of which Grotius, Hobbes,
Locke and Vattel were among the key intellectual architects.


ii
But first, let me summarize some of the key claims involved in the
repositioning of the history of the emergence of the language of subjective
rights in seventeenth-century British political thought from the mainly
domestic and intra-European stage to the global stage.


4
Tuck 1987, pp. 99À122; Tuck 1994, pp. 159À70; Mills 1997.
5
Tuck 1999, pp. 14À15, 84, 195À6, 226, 233À4; Schneewind 1998, pp. 3, 483.
6
Compare Ivison 1997; Muthu 2003; Pitts 2005.
The Nature of Rights and the History of Empire 193
Amongst the cluster of philosophical and political problems which the
great sixteenth- and seventeenth-century rights theorists struggled with,
one of the most important was dealing with social and cultural difference,
both within their own communities (after the Wars of Religion) and
beyond (between competing European powers and between them and
the indigenous peoples they encountered in these lands). One influential
strategy that emerged, pioneered by Hugo Grotius, was to try and
identify a minimal set of propositions that, whatever else one believed,
one must accept if any kind of human society was to be possible.7 The
belief in the right to self-preservation (and correlative to that, the right
to defend oneself ), the cornerstone of ˜modern™ natural law theory, was
a universal claim in just this sense. The aim was to minimize the objective
content of both natural morality as well as religion, in order to minimize
the scope for contestation and thus civil and international conflict. The
natural ethics of Grotius then, on this interpretation, was not intended to
be a comprehensive account of man™s moral life, but rather À especially
in the international context À to be the basis for ˜inter-national or inter-
cultural negotiation, by providing the common ground upon which the
rival and conflicting cultures could meet™.8 The thought was that the law
of nature and the law of nations could be bridged on the basis of
a minimalist core of morality observable by all rational creatures,
whatever their cultural or religious beliefs. But this in itself said little
about the conduct or quality of such negotiations and interactions, or
who exactly would be accorded the appropriate standing such that they
could be said to possess these fundamental rights in the first place. The
famous Spanish debates in the sixteenth century over the status of
Aboriginal peoples made that very clear.9 Francisco de Vitoria, for
example, was able to ascribe natural rights to the American Indians in
virtue of their shared humanity and evidence of their civic life but, at
the same time, justify declaring war on them if they barred his fellow
Spaniards from travelling and trading on their lands, as a violation of
the natural right of ˜commerce™.10 Even Las Casas, who defended the
Amerindians against various brutalizing aspects of Spanish imperialism,
still thought the overall project was justified, given the cultural inferiority
of the Amerindians and their need for Christianity.


7
Tuck 1994; 1999; for critical discussions of Tuck™s argument and alternative readings of Grotius,
see Tierney 1997; Haakonssen 1996; Haakonssen 2001.
8 9 10
Tuck 1994, p. 167. See Pagden 1986. Vitoria 1991, pp. 278À84.
194 duncan ivison
Thus we arrive at a paradox about the nature of rights and empire.
Natural rights did not merely coexist with imperialism, as if the latter was
an unfortunate departure in practice from a basic acceptance of the moral
equality of all human beings. Instead, they were actually used to justify
imperialism. How could this be?
John Locke™s place in this debate is instructive precisely because he
works within a natural law framework that contains, at its heart, a strong
presumption of equality.11 It is true that his anti-essentialism about species
in the Essay makes it seem as if who counts as a ˜man™, and thus eligible
for the attribution of equality, will be mainly conventional, which means
the boundaries of humanity could be drawn very narrowly indeed.12 But
Locke also makes it clear that, for moral purposes at least, all we need is
the complex idea of a ˜corporeal rational Creature; What the real Essence
or other Qualities of that Creature are in this Case, is no way
considered™.13 It constitutes an ˜immovable and unchangeable Idea™. So
equality is associated with the real resemblance of corporeal rational-
ity between beings; those beings who exhibit corporeal rationality are
entitled to be seen and treated as equals, which for Locke means basically
not being subject to the non-consensual control of others. But this raises
another question; what is the threshold associated with these capacities?
Lunatics and ˜idiots™ fall beneath the line,14 but what about any others?
There is considerable debate in the literature here, but the basic idea
seems to be that men are equal in the sense that each has reason ˜enough
to lead them to the Knowledge of their Maker, and the sight of their
own Duties™.15 It does not follow, therefore, that not actually knowing
God™s law is grounds for falling below the line, since many of us do
not and we will get there via different paths. The capacity for abstract
thought is what is crucial, at least for moral purposes.16 We are capable
of relating to God™s existence and thus to a law that is to govern us,
and from that to a set of duties and rights that apply to our conduct,
however difficult it might be to actually grasp it.

11
Locke 1988, ii.4, 6, 54.
12
Locke 1979, iii.6.26; iv.7.16; see Ayers 1993, ii, pp. 65À90; Waldron 2002, pp. 62À82; Grant
1987; Bracken 1984, pp. 54À6.
13
Locke 1979, iii.11.16.
14
Locke 1988, ii.60.
15
Locke 1979, p. 45. That it is ˜men™ who are equal should also be taken literally, since although
Locke thinks the natural rights of men and women block absolutism in the political
sphere, there is a ˜Foundation in nature™ for the legal subjection of women to their husbands (cf.
Locke 1988, ii.65 with i.47).
16
Locke 1979, iii.11.16.
The Nature of Rights and the History of Empire 195
iii
Do indigenous peoples fall below the threshold for corporeal moral
agency, according to Locke? Is the appropriation of their lands, or the
subjugation of their forms of government possible because they are not
owed basic equal respect in the first place? Much depends on what one
thinks follows from the notion of ˜equal respect™. Today we often
associate equal respect with respect not only for individuals, but some-
times the cultures and ways of life they construct and value, either as a
product of their freedom or as a necessary condition for its realization.17
Does Locke offer any intimations of such an argument in the Two
Treatises (or elsewhere)? Hardly. But is his argument for possession based
on denying the indigenous inhabitants of the Americas any attribution
of equality? He does refer to indigenous peoples in the First Treatise
at one point as ˜irrational and untaught™18 (a passage I shall return to in
a moment), but does this entail that they are incapable of possessing
natural rights?
We now have a sophisticated account of both the domestic and
international context in which Locke made his arguments concerning
property and civil society in the Two Treatises.19 The basic structure of
these Lockean arguments goes something like this. First, Locke ties
ownership of property very closely to labour and to use. And labour is
linked in relation to land and to cultivation: ˜As much Land as a man
Tills, Plants, Improves, Cultivates, and can use the Product of, so much is
his Property™.20 Thus if someone simply roams over unimproved land,
or grazes his flock over it, he secures no property in the land he uses.
This clearly entailed that, beyond the animals they catch, or the crops
they sow, the indigenous peoples of America had no genuine property
in their territories, and thus could not exclude Europeans from them,
or demand negotiations over land use. It is no coincidence that Locke™s
point of comparison in discussing the difference between productive and
unproductive practices to do with land is with Amerindian societies À
wherein a ˜King of a large and fruitful Territory there feeds, lodges,
and is clad worse than a day Labourer in England™.21 The argument

17
See for example Kymlicka 1995.
18
Locke 1988, i.58.
19
Armitage 2004b; Keene 2002; Tuck 1999; Tully 1993a; Tully 1979; Wootton 1993.
20
Locke 1988, ii.32.
21
Locke 1988, ii.41. On the background to Chapter v, see Tully 1993a; Tully 1993b; Arneil 1996;
Armitage 2004b.
196 duncan ivison
is a general one about increased productivity through the efficient use of
land (reflecting his reading and translation of Pierre Nicole,22 among
other things), but its specific application to America has striking
consequences.
The second crucial argument Locke makes is that the Indian
˜Nations™, as he refers to them, ˜exercise very little Dominion, and have
but a very modest Sovereignty™.23 What societies they do have are not civil
societies, and they remain, for all intents and purposes, in a state of
nature (especially with regard to other European nations). Locke™s
argument here is sometimes assimilated with the ˜four-stages™ stadial
theory of human history À linked especially with Adam Smith À
whereby humanity progresses from wandering tribes or families to settled,
commercial societies. I think this assimilation is somewhat premature,
however crucial the stadial theory is to understanding European/
indigenous relations.24 But Locke certainly does associate the ˜Indian
nations™ with a pre-agricultural, nomadic existence, which entailed
a limited set of desires and modes of interaction (and conflict)
characteristic of more settled, agriculturally developed societies, and
thus without the complex social and political institutions he assumed
grew up around agriculture and monetarized exchange. For Locke,
sovereignty is derived from the consent of members of civil society to
incorporate themselves into a collective body À a people À and then be
bound by majority will, exercised through a government justified on the
grounds of protecting their natural rights.25 To be sovereign, in other
words, a collection of individuals, families or tribes À what Hobbes
would call a ˜multitude™ À has to be converted into a people. Sovereigns
can recognize and make treaties with each other and declare war, but
the Indian nations, at least on their own, cannot. They can be acted on
but lack the moral and political agency to be counted as genuine political
actors themselves. (It is important to note, however, that the British
Crown did, in fact, engage in treaty-making with various indigenous
nations throughout the seventeenth and eighteenth centuries.)26


22
See Locke 1993, p. 107; Ivison 1997, p. 120.
23
Locke 1988, ii.108; see also ii.36. As Laslett points out, the discussion here mixes quasi-
anthropological and biblical history freely, as Locke draws analogies between the ˜Kings of the
Indians in America™ and the early kings of Israel.
24
See Meek 1976; Haakonssen 1981, ch. 7; Pocock 1999; Pitts 2005, pp. 25À58; cf. Hont 1987.
25
Locke 1988, ii.95À8.
26
Williams 1997; Slattery 1991.
The Nature of Rights and the History of Empire 197
Although the history of European-indigenous relations in the early-
modern period is a complex and multi-faceted matter, this ˜agriculturalist™
justification of property rights was absolutely central to international
and domestic law in colonial contexts well into the nineteenth century.27
Even in Australia, for example, where only a tiny fraction of the country
was under cultivation À or ever could be À the Sydney Herald declared
(in 1838) that for the Aborigines, ˜[t]his vast country was to them
a common À they bestowed no labour upon the land À their ownership,
their right, was nothing more than that of the Emu or the Kangaroo™.
The settlers had a ˜perfect right™, the Herald continued, to take posses-
sion of the land, ˜under the Divine Authority, by which man was
commanded to go forth and people, till the land™.28 The language and
culture of ˜improvement™, among other things, was what was supposed
to distinguish British imperialism from others (especially the Spanish).
Productivity was valued over religious conversion and cultural assimila-
tion. And the flexibility of the common law, in theory at least, was
supposed to help coordinate the customs and norms of Aboriginal
peoples with the newly introduced European law.
It is important to see the moral argument Locke was appealing to.
The emphasis on labour follows from Locke™s understanding of human
beings as rational creatures and yet dependent upon God. God
commands us to labour, not just for the sake of it, but because it is the

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