<<

. 31
( 52 .)



>>

most appropriate mode of our supporting and sustaining his creation:
˜God commanded, and [man™s] Wants forced him to labour™.29 We need
to appropriate to fulfil our duties to God, and labour is the natural
mode of appropriation.30 Moreover, God gave the Earth to mankind
to produce ˜the greatest conveniences of life™.31 It turns out that, with
the introduction of money and the division of labour that occurs,
˜improvement™ helps produce more conveniences than in any other
system, especially one in which land is left vacant. Cultivation and
industry does not merely produce more stuff, but more opportunities
for people to labour, and thus greater opportunities for more people to
preserve themselves and serve God.

27
See especially Vattel 1916, i.vii, pp. 76À8; ii.vii, pp. 326À7; for more background see Weaver
2003; Keal 2003; Armitage 2000; Pagden, 1995.
28
Cited in Karsten 2002, p. 257; see also Reynolds 1992, pp. 74À6.
29
Locke 1988, ii.35, ii.42.
30
Locke 1988, ii.26; see also 1.86.
31
Locke 1988, ii.34.
198 duncan ivison
Now it is true, as Jeremy Waldron has emphasized, that these are
arguments and not merely assertions, and that someone who seeks to
justify their claims to someone else at least thinks they are entitled to
a justification. Locke has at least produced an argument that purports
to respect equality and to treat the Native Americans as persons.32
But here I think a powerful set of intuitions associated in contemporary
moral and political philosophy with the link between egalitarianism
and the demand for mutual justification are in danger of being read
back into Locke.33 For although it is true that Locke™s arguments were
indeed intended to compel the agreement of Amerindians, in fact, their
validity did not depend on their actual (or even counterfactual) consent.
Failure to recognize the natural duties that flowed from the right of self-
preservation À namely, refusal to cede their lands, allow settlement or
use them more productively À legitimated the use of coercive force
against them.34 The centrality of the language of war with regard to
relations between settlers and indigenous peoples in North America
(and elsewhere), is a striking feature of this literature in the seventeenth
century.35 Nor, pace Waldron, was there any genuine option to ˜co-exist
side-by-side with European agriculture™,36 since, as we have seen,
any recognition of the mutual capacity of both indigenous peoples
and European settlers to determine coordinate rights of jurisdiction
was explicitly denied by Locke (although he had once been attracted to
a more explicitly contractual account of the nature of property).37
It might seem at this stage that any attribution of basic equality to
indigenous people is barely self-evident in this discussion in the Two
Treatises. Certainly the attribution of any form of collective right À either
natural or positive À to indigenous peoples is absent. But what about
his writings on toleration? Locke is very clear in the Letter Concerning
Toleration (as well as in the Fundamental Constitutions of Carolina) that
˜Not even Americans are to be punished either in body or in goods, for
not embracing our faith and worship. If they are persuaded that they
please God in observing the rites of their own country . . . they are to be

32
Waldron 2002, pp. 168À9.
33
On the connection between equality and mutual justification see Rawls 1971; Rawls 1993;
Scanlon 1998.
34
Locke 1988, ii.8, 9, 16; also i.130.
35
See especially Tuck 1999.
36
Waldron 2002, p. 169.
37
See Locke 1997, pp. 268, 180; for more detail on how Lockean arguments were deployed
against treaty-based relations in colonial America, see Tully 1993a, pp. 267À78; Armitage
2004b.
The Nature of Rights and the History of Empire 199
left unto God and themselves™.38 He then goes on to provide a startling
genealogy of the consequences of settlement, in which after a point when
the settlers and inhabitants ˜all joyn together and grow up into one Body
of People™, a magistrate ˜becomes a Christian, and by that means their
Party becomes the most powerful. Then immediately all Compacts
are to be broken, all Civil Rights to be violated, that Idolatry may be
extirpated . . . And unless these innocent Pagans, strict Observers of the
Rules of Equity and the Law of Nature . . . forsake their ancient Religion,
and embrace a new and strange one, they are to be turned out of the
Lands and Possessions of their Forefathers, and perhaps deprived of
Life™.39 The dangers of using civil power to promote religious orthodoxy
are the same ˜both in America and Europe™: how ˜easily the pretence of
Religion, and of the care of Souls, serves for a Cloak to Covetousness,
Rapine and Ambition™.40 There is a similar almost Rousseauian moment
in the First Treatise. Following a sensationalist account of indigenous
cannibalism taken from the Commentarios Reales of Garcilaso de la Vega,
intended as part of a rebuttal of Filmer™s assertions concerning natural
paternal authority, he suggests that the ˜Woods and Forests, where
the irrational untaught Inhabitants keep right by following Nature, are
fitter to give us Rules, than Cities and Palaces, where those that call
themselves Civil and Rational, go out of their way, by the authority of
Example™.41 Locke is obviously concerned about the alliance between
religious enthusiasm and temporal power, not only because magistrates
are often incompetent when it comes to promoting true belief, but also
tend to corruption.
Locke™s argument for toleration is often said to rest mainly on his
distinction between public and private, or at least between the domain of
the magistrate and that of the church. But this distinction, central as it
is to modern liberalism, is perhaps too blunt for making sense of Locke™s
own arguments. For one thing, Locke calls for the pursuit of religious
freedom with ˜charitable care™; ˜every man has commission to admonish,
exhort, convince another of error, and by reasoning draw him into truth™
(my emphasis). He also insists that toleration entails a change in the
behaviour of citizens and churches, as much as it does constraints on
the magistrate. Thus it is not enough that ˜Ecclesiastical men abstain
from Violence and Rapine™, but also ˜admonish [their] Hearers of the
Duties of Peace, and Good-will towards all men . . . [they] ought

38 39
Locke 1983, p. 43. Locke 1983, p. 43.
40 41
Locke 1983, p. 43. Locke 1988, i.58
200 duncan ivison
industriously to exhort all men, whether private Persons or Magistrates
to Charity, Meekness and Toleration . . . and diligently endeavour to allay
and temper all that Heat, and unreasonable averseness of the mind,
which either any mans fiery Zeal for his own Sect . . . has kindled against
Dissenters™.42 Locke is not merely drawing a distinction between
public and private here, but also offering a possible mode of inter-
action between different religious groups, one based on a form of public
reasoning rather than force. In this sense his account of toleration is
more ˜political™ than it is often given credit for, in the sense that Locke
is here looking for a way of shaping disagreement rather than simply
privatizing it.
But only just. For the main purpose of the Letter was to provide
Locke™s thoughts on the ˜mutual Toleration of Christians in their different
Professions of Religion™.43 Atheists were clearly beyond the pale, since
they could not be trusted to uphold the basic ˜Bonds of Humane
Society™, given the crucial roles that contract and promise play in Locke™s
argument, and the deep theological structure underpinning it. The
argument concerning toleration also clearly presupposes that the
boundaries concerning the nature of civil interests are relatively fixed,
and about which there is little scope for reasonable disagreement,
although Locke™s theory of resistance does mean the magistrate is subject
to the countervailing threat of resistance if he is judged to have violated
them (i.e. the ˜life, liberty, health™ and property of his subjects)44 À
the justification of which is ultimately up to the people to decide.
So it goes without saying that Locke™s argument for toleration is not
addressed to the kind of pluralism we find in multicultural societies
today À of life-styles, cultural and ethnic groups, religious sects,
linguistic groups, migrants À however much a Lockean argument could
be made that radically expanded freedom of conscience from religious
matters to matters of public morality more generally.45 And so although
the basic premise of equality implicit in Locke™s theory of religious
toleration is indeed extended to indigenous peoples, it has limited
political consequences. Their faith, or perhaps even the lack thereof,
cannot be grounds for denying them their liberty. But their failure to
put their lands under cultivation, and their lack of proper political
institutions, mean that they lack both imperium and dominium over their
traditional territories.

42 43
Locke 1983, p. 34. Locke 1983, p. 23 (my emphasis).
44 45
Locke 1983, p. 26. See for example Rawls 1993.
The Nature of Rights and the History of Empire 201
It is sometimes suggested that Locke™s natural rights argument offers
a powerful resource for indigenous peoples today, once we remove his
prejudice against their land-holding practices and forms of civil
government.46 And so a rejection of Lockean arguments for denying
indigenous peoples™ land claims seems to yield a Lockean premise for
recognizing them À namely, first occupancy. The indigeneity of first
peoples À that they are ˜tangata whenua™, in the Maori phrase, ˜people of
the land™ À is coupled with a principle of first occupancy that yields
a claim for the restoration of their traditional lands, or significant
compensation in lieu. Although Locke is talking about individual rights
to property, presumably legitimate forms of collective property could
be accounted for in the same fashion.
The problems with this approach, however, are considerable.47 First
of all, there are problems with the principle of first occupancy itself.
Many of those who might support indigenous peoples™ claims for land
would probably not be happy with adopting an historical entitlement
approach to property rights more generally, since it severely constrains
the scope of distributive justice. Second, and more importantly, it is
not clear the principle of first occupancy as it is elaborated by Locke À
and by his latter-day followers48 À sits easily with the political theories
of indigenous peoples themselves, at least as I understand them.
Although they have sought to use the common law to protect their
property interests, it is not clear the dominant modes of occupancy and
use therein best explain or help justify indigenous peoples™ conceptions
of property.49 The natural rights approach essentially extends the con-
ception of agency articulated by Grotius, Hobbes and Locke À one
linked to the notion of sovereignty and a spatial metaphor of an invio-
lable sphere or boundary of non-interference À to the rights of
indigenous peoples. It is not that indigenous peoples and their supporters
do not often refer to the importance of prior occupancy for consideration
of their claims; they do, and some version of it plays an important role
in the contemporary jurisprudence of native title.50 But it does not
follow that Locke™s account best captures the interests at stake. Also, it
is one thing to explain ownership, but another to explain jurisdiction.
Locke™s argument struggles to explain the latter. And yet the wider
and more important claim indigenous peoples are making refers to

46 47 48
See Simmons 1995. Waldron 2003. Nozick 1974; Simmons 1992.
49 50
But cf. Pocock 1992. See especially McNeil 1989.
202 duncan ivison
self-government, and flowing from this to their standing in international
custom and law. We need a more complex, multi-centred account of not
only the history of international and constitutional law in these contexts,
but of our regulative conceptions of political legitimacy too.

iv
What lessons then can be drawn from the connections between this
Lockean language of rights, toleration and empire? What does this history
of rights teach us about our theories of rights?
One of the most intriguing and potentially controversial claims made
by proponents of the ˜new history™ of political thought emerging from
the path-breaking studies of Quentin Skinner and others, was that
a specific way of doing the history of political thought could contribute
to addressing the paradoxes and antinomies thrown up in contemporary
debates over the nature of rights and freedom.51 For example, James Tully,
in a review of Richard Tuck™s Natural Rights Theories (1979), wrote that
Tuck™s history of natural rights offered a potential solution to a problem
bedevilling contemporary debates about the nature of rights. The
conclusion of Tuck™s survey, Tully argued, was that the concept of a right
is fundamentally ambiguous between different modes, and thus that
various combinations thereof are possible in ways that many contem-
porary philosophers tend to rule out by conceptual fiat. Even more, Tully
argued, ˜once we know that a right can be used in such and such a way,
the way out is to ask ˜˜why it is being used in such and such a way™™ ™
(quoting Tuck).52 The answer will involve excavating a complex
combination of the existing linguistic and normative resources available
to the theorist, as well as the practical and political circumstances they
find themselves in and responding to. The point is not that we should
substitute history for theory, but that history provides a critical resource
for surveying the uses of various concepts and theories over time, and
especially the conflicts and choices that were made around the concepts
and values we now take for granted.
One paradox subject to sustained scrutiny in recent years has been the
idea of ˜citizen™s rights™. Some argue that the very idea is paradoxical,
since the language of rights was articulated precisely in order to defend
the moral claims of individuals against the positive order of the civitas.
As Annabel Brett has summarized it, a ˜negative locution™ (rights) is used
51 52
See Skinner 2002a. Tully 1981.
The Nature of Rights and the History of Empire 203
to fill out a ˜positive concept of belonging™ (citizenship), and the appli-
cation of the former threatens to hollow out the latter.53 Thus Brett
interprets Locke as offering an ˜essentialist notion of extra-civic humanity™
with rights founded on the possession of reason, which put a ˜natural
limit on what kinds of political arrangements were legitimate™. Rights,
according to this view, are mainly defensive and ˜purely negative™,
dictating when a wrong is done but not any prescription for a ˜moral
life together with others in a society, nor any prescription concern-
ing religion™ except some kind of belief in God. Even his use of the
republican language of liberty against arbitrary government or tyranny,
Brett argues, ˜amounts to little more than a common protection of
individual private rights™.54
On the other hand, others have argued that Locke does, in fact, offer
a potent combination of natural law and republican arguments À a
˜ ˜˜constitution-enforcing™™ conception of rights™ À in which the people
subject their rulers to the rule of law through the threat and practice of
resistance.55 According to this reading, rights can promote republican
forms of civic liberty, however much they may be compatible with non-
republican forms of government.56 Liberty as non-interference may
indeed remain the primary moral good of such a society, but the range of
what counts as a constraint on a citizen™s liberty is expanded to include
living in a state of dependence upon others. And thus various forms of
non-arbitrary ˜interferences™ À for example, to do with enforcing the rule
of law, or ensuring people have the capacities to make effective choices
and decisions about their ends À may be required, either from the state
or other social and political actors.57
We have been examining yet another possible paradox in relation to
Lockean rights, this time not only as a means of criticizing imperium, but
also justifying it. Thus, Locke™s influence on Thomas Jefferson™s drafting

<<

. 31
( 52 .)



>>