ABSTRACT
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.
Sherwin, Emily L, Locke and Private Law (January 9, 2021) in Research Handbook on Private Law Theory (Hanoch Dagan and Benjamin Zipursky, eds 2021), Cornell Legal Studies Research Paper No 21-04.
First posted 2021-01-12 08:42:02
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