In my post Questions on My Mind, I asked whether commonly accepted legal theory has room for the rights of nonhuman animals (henceforth called “animal rights” as shorthand, even though I personally consider the colloquialism of “animal” to exclude humans indirectly unethical, as it carries the implication that we occupy a special status purely by virtue of our species). But how can we think through a proper answer without establishing what standard legal theory is?
Knowing that the answer is “we can’t,” I chose to start this series because John Locke is to modern constitutional government as Francis Bacon is to contemporary science. I tracked down his magnum opus relevant to the foundations of law and the protection of rights, and what I found was this:
To be sure, Second Treatise on Civil Government is not the exhaustive compendium of rights theory, but it is certainly a worthy introduction considering its historical influence. Reading this is likely (based on common background knowledge) to remind one of a certain Thomas Jefferson and his ideas in the Declaration of Independence. Further, most important, examining this text will be our starting point to the critical analysis of a variety of surrounding issues: What exactly was the original basis upon which early constitutional thinkers developed the laws of the United States (and other democratic republics)? How essential is this basis to the application of legal philosophy to current questions of social justice? Where do rights come from, and why does this matter? If rights apply to persons or citizens, what makes a person/citizen?
While one would be in an awkward position to argue that law is the sum force for the common good, it’s a non-negligible force. Since we the people are (in theory) those who shape the law, if we find it wanting in protection of persons’ basic interests through rights, we have the power to do something about that. Understanding some of the earliest thought on legally sanctioned rights of individuals is, then, imperative.
In each subsequent post of this series, I’ll summarize and comment on a few chapters from this book, which I encourage you to read as well to follow along. It’s free in the iBooks store for those with Apple e-readers, and on this site available to anyone with an Internet connection — as its author is some 300 years long deceased, this work is in the public domain. You could find a physical printed version in a library too, of course.