As compared with other features of Locke's property theory, his accounts of bequest and inheritance have garnered little sustained attention. Philosophers tend to find these concepts woefully undefended in the Two Treatises.Footnote 1 Legal thinkers, in contrast, take for granted that Locke asserts natural, unqualified rights of bequest and inheritance, though they disagree about whether these so-called Lockean rights are to be endorsed or rejected.Footnote 2 The upshot is that lawyers treat as self-evident claims that philosophers treat as failed. This disparity is of consequence owing to Locke's influence on these legal concepts, from the emergence of inheritance law in early AmericaFootnote 3 to modern debates on familial rights and wealth distribution.Footnote 4 The ongoing estate-tax debate in the United States is but one example of how contentious and preoccupying such questions can be and how frequently Locke's ideas are thought to matter to their resolution.Footnote 5 If Locke's views, as typically understood, actually fall apart under a little scrutiny, then they hardly deserve their status as a touchstone. My project here is to offer an understanding of bequest and inheritance that may find some basis, both interpretive and justificatory, within the Two Treatises.
Perhaps the most comprehensive philosophical account of Lockean bequest and inheritance is that of Jeremy Waldron, who concludes that inheritance must have a limited role in Locke's state of nature and bequest none at all.Footnote 6 That reading, however, is neither the most charitable nor the most intuitive interpretation of Locke's text. Locke in the Two Treatises treats both bequest and inheritance as natural rights. Although his justifications for these rights are incomplete, it is possible to construct Lockean versions of bequest and inheritance that are largely consistent with the rest of Locke's theory.Footnote 7 Specifically, (i) a decedent's dependents may have a right to support out of the decedent's goods, after which (ii) the decedent's legatees are entitled to specific bequests, and finally (iii) a decedent's heirs are entitled to any remaining property, except that (iv) the duty of charity, where necessary, limits distributions beyond those required by the dependents' right of support. At least, this essay will attempt to explicate and justify rights along these lines.
Section I sets out Locke's treatments of bequest and inheritance and the problems that led Waldron to conclude they could not be natural rights. Section II examines Locke's account of bequest and confirms that it is a natural right within the Two Treatises. Section III surveys Locke's repeated assertions of a natural right of unlimited inheritance and extracts several possible justifications for it. Section IV brings the rights of bequest and inheritance together to suggest that they have the same Lockean justification. Finally, Section V considers the duty of charity and other possible distributive limits.
I. LOCKE'S ACCOUNTS OF BEQUEST AND INHERITANCE
Bequest and inheritance are both forms of postmortem transfer of property. Bequest is the right of an individual to designate who should receive his property after his death. Inheritance is the right of a decedent's heirs to succeed to his property in the absence of specific directions from him. At common law, where an individual fails to bequeath his property, it descends to his heirs through inheritance; where bequest disposes of only part of his property, the law of inheritance governs the remainder.
The subject of postmortem transfer arises in the Two Treatises primarily in two contexts. First, Locke discusses inheritance to refute Sir Robert Filmer's claim that dominion over private property passed by natural law from father to eldest son (and that the sovereign's absolute dominion over subjects thus passed in the same manner). Locke argues that property in the state of nature descends naturally to each heir in equal part, and thus neither primogeniture nor divine right has the pedigree Filmer claims for it.Footnote 8 Second, Locke adverts to bequest and inheritance to explain how political consent is obtained from generations subsequent to a political compact. It is not that the original parties' consent binds their descendants, Locke says. Rather, in receiving real property through bequest and inheritance, legatees and heirs are given a choice whether to accept it on the same conditions under which their forefathers owned it. Their political consent, like that of their ancestors, is thus voluntarily obtained.Footnote 9
Although Locke discusses bequest and inheritance in the service of political argument, he gives them substance in their own right. He seems to treat bequest as a natural rightFootnote 10 and clearly posits a natural right of inheritance,Footnote 11 which he says is “founded in the Right [children] have to the same Subsistence and Commodities of Life, out of the Stock of their Parents.”Footnote 12 This right—the right of children to receive from their parents those goods necessary for their subsistence and comfort—recurs throughout the Two Treatises as the clearest justification for inheritance; I shall call it the right to parental support.
It is also important to note that Locke's discussions of postmortem transfer assume a condition of resource abundance wherein each individual's basic needs are met. In conditions of scarcity, as the Treatises make clear, general distributive limits operate to constrain bequest and inheritance as well as other forms of acquisition and transfer. This paper first considers postmortem transfer in the absence of such limits before turning to their implications.
Three problems emerge from Locke's account of bequest and inheritance, all of which are suggested in a single passage:
But if any one had began, and made himself a Property in any particular thing . . . that thing, that possession, if he dispos'd not otherwise of it by his positive Grant, descended Naturally to his Children, and they had a right to succeed to it, and possess it.Footnote 13
First, Locke says that the decedent's right of bequest has priority over his child's right of inheritance. If the inheritance right originates in the child's right to parental support, this ordering seems perverse. The parent should not be permitted to alienate goods to others while his parental duties go unfulfilled. I shall call this the problem of prioritized bequest.
Second, the passage suggests that any property that is not bequeathed elsewhere descends to the decedent's children, seemingly without limit. It is not clear why Locke should consider this transfer natural. It occurs in the absence of any express directive from the parent and apparently irrespective of the children's needs.Footnote 14 This unlimited inheritance right exceeds the justification provided by the right to parental support. When the parent has left no direction on the matter, and when the estate surpasses the children's needs, what justification is there for transferring the estate to the children rather than returning it to common stock? This is the problem of unlimited inheritance.Footnote 15
Third, both prioritized bequest and unlimited inheritance present a more fundamental problem: Why should a dead person's property go to another individual at all? Given that Locke justifies property entitlements on the basis of labor, property should return to the common stock upon the death of the individual who earned it.Footnote 16 Postmortem transfers, it seems, should play no role in a Lockean system of property. And yet the passage above clearly contemplates the operation of a system of bequest and inheritance quite familiar to us. Ultimately, then, we have the problem of postmortem transfer.
One response to the problems of this account is to conclude that Locke's text must misrepresent the scope and nature of bequest and inheritance. Thus, as to prioritized bequest, Waldron concludes that this must be a “mistake on Locke's part.”Footnote 17 Instead, any right of bequest must give way to the right to parental support. As to unlimited inheritance, one might argue that inheritance is a natural right only to the extent that it is required by the right of parental support, beyond which offspring have no claim to their parents' goods. Indeed, one might apply this reasoning to postmortem transfer in general, concluding with Waldron that other than children requiring parental support, no one has a claim to a decedent's property: “Natural law,” Waldron says, “allows no place for bequest or, for that matter, for the inheritance of surplus goods.”Footnote 18 Instead, a decedent's surplus goods should revert to common stock.Footnote 19 To the extent that a Lockean framework can accommodate inheritance or bequest rights (other than those founded on the right to parental support), such rights must be creatures of civil rather than natural law.Footnote 20
Thus Locke's account of postmortem transfer has serious problems, one solution to which is to allow inheritance a small role and bequest no role in a Lockean theory of property. This, however, is emphatically not Locke's own position. While some problems may remain intractable, we should make another attempt at reconciling Locke's account of postmortem transfer with his general theory of property.
II. THE PROBLEM OF PRIORITIZED BEQUEST
I turn first to the problem of prioritized bequest. In the Two Treatises, Locke does not explicitly refer to bequest as a natural right, but that is the best interpretation of his treatment of it. In the First Treatise, he claims that property descends to children only if the owner “dispos'd not otherwise of it by his positive Grant.”Footnote 21 This assertion of the priority of bequest over the “natural Right” of inheritance suggests that bequest, too, is a natural right.Footnote 22 In the Second Treatise, Locke acknowledges the “Power Men generally have to bestow their Estates on those, who please them best.”Footnote 23 Although Locke does not explicitly say that he is thinking about bequest as a natural right, it is the most reasonable conclusion from the context, a discussion about the bounds of paternal and political power in the state of nature. Similarly, in an explanation of political consent, Locke argues that a father may place conditions upon his son's taking possession of his land, “because that Estate being his Fathers Property, he may dispose or settle it as he pleases.”Footnote 24
Locke also discusses a natural right to dispose of property which seems to entail a natural right of bequest. Locke denies that parental power is absolute; rather its limits are consonant with its natural purpose.Footnote 25 Thus, “though a Father may dispose of his own Possessions as he pleases, when his Children are out of danger of perishing for want, yet his power extends not to the Lives or Goods, which either their own industry, or anothers bounty has made theirs.”Footnote 26 This passage contemplates both (1) that a father may bestow his property on others besides his children (provided he has fulfilled their needs); and (2) that children may receive grants of property from people other than their parents. Though the passage is not expressly about bequest, it suggests a general right to alienate one's property and to receive alienated property. Together, all of these statements suggest a natural, if undertheorized, right of bequest.
Nevertheless, in one respect Locke says that a decedent's goods are not his to settle as he pleases. We have already noted that one of Locke's justifications for inheritance is the right to parental support, the “Right [of children] to be nourish'd and maintained by their Parents, nay a right not only to a bare Subsistance but to the convenience and comforts of Life, as far as the conditions of their Parents can afford it.”Footnote 27 Locke says multiple times that parents have this duty and children this corresponding right.Footnote 28 In still other passages, Locke claims that children actually have “a Title to their Father's Estate for their Subsistence.”Footnote 29 Locke explains, “Men are not Proprietors of what they have, meerly for themselves; their Children have a Title to part of it, and have their Kind of Right joyn'd with their Parents.”Footnote 30 We consider such passages further when we turn to the problem of unlimited inheritance. For now, although it is not clear whether the right to parental support gives children a right to succeed to their parents' property or actual title in that property, in either case parents are not free to dispose of goods required for their children's subsistence and comfort.
We are at the same impasse Waldron reached, and on one point our conclusion must be his: the right of bequest must give way to the right to parental support. A decedent's estate must first provide for the subsistence and comfort of dependents, and only then may any remaining property go to satisfy the decedent's bequests. If the entire estate is required by the right to parental support, any bequests are void. The passages in which Locke discusses bequest without acknowledging the right to parental support must be understood to be subject to this qualification.
From an interpretive standpoint, this is a reasonable step that seeks to synthesize the text while doing little harm to any individual passage. It is similar to the way in which, for example, much of what Locke says about ownership and transfer must be read as subject to the spoilage limitation,Footnote 31 the sufficiency limitation,Footnote 32 and the duty of charity.Footnote 33 The fact that Locke does not repeat these qualifications every time he discusses ownership does not mean that they do not apply.
Nor does the existence of these qualifications mean that Locke is incorrect to use the term “natural rights” to refer to property rights so qualified. It does not follow from the fact that a natural right is not absolute that it is not a natural right at all. Instead, rights in the state of nature may conflict, giving individuals competing claims. For example, an owner may establish her right to a piece of property by mixing her labor with it, while a needy person may have a claim to the same property based upon his right to “so much out of another's Plenty, as will keep him from extream want, where he has no means to subsist otherwise.”Footnote 34 The existence of these competing claims does not make either ownership or charity less of a natural right. They are both natural rights, for which Locke's state of nature provides a certain ordering. In the same way, bequest may be a natural right, even if property that is the subject of a bequest may also be required by the right to parental support. Here, too, when conflicts arise, the rights apply in the order Locke has provided.Footnote 35
Thus the mere fact that the right of bequest is sometimes subject to the right to parental support does not compel Waldron's conclusion that “[t]he right of bequest occupies at most a secondary position in a Lockean theory of property and is always a matter of civil law, never of natural right.”Footnote 36 Waldron's conclusion must rest on some other ground. We begin to locate that ground when we recall that Waldron also concludes that “[a]part from the needs of dependents, there are no natural rights of succession.”Footnote 37 Waldron's objection is to any mechanism of postmortem transfer that diverts property away from the common stock without sufficient justification.Footnote 38 Because, as Waldron notes, Locke offers stronger justifications for unlimited inheritance than he does for bequest, it is to inheritance that we now turn.
III. THE PROBLEM OF UNLIMITED INHERITANCE
A. The Natural Right of Inheritance
Locke repeatedly affirms the status of inheritance as a natural right, briefly in the Second Treatise and more expansively in the First.Footnote 39 As shown above, Locke argues that nature dictates inheritance in equal shares rather than primogeniture because the right to inherit is “founded in the Right [all children] have to the same Subsistence and Commodities of Life, out of the Stock of their Parents.”Footnote 40 Yet Locke endorses an inheritance right far in excess of what the right to parental support alone would justify. Children, even independent adult children, are entitled to inherit whatever balance of their father's estate has not been bequeathed elsewhere.Footnote 41 Justice, Locke says, “gives every Man a Title to the . . . fair Acquisitions of his Ancestors descended to him.”Footnote 42 No damage inflicted on men in the state of nature “can give a Conqueror Power, to dispossess the Posterity of the Vanquished, and turn them out of their Inheritance, which ought to be the Possession of them and their Descendants to all Generations.”Footnote 43
The vision of inheritance put forth here is hardly one in which every intergenerational transfer is limited to the goods needed for the most immediate heirs' subsistence and comfort while the remainder returns to common stock. In fact, Locke expressly rejects the notion that a decedent's property should return to common stock. After stating that property not bequeathed to others “descend[s] naturally” to the decedent's children,Footnote 44 he notes:
It might reasonably be asked here, how come Children by this right of possessing, before any other, the properties of their Parents upon their Decease. For it being Personally the Parents, when they dye, without actually Transferring their Right to another, why does it not return again to the common stock of Mankind?Footnote 45
Locke explains that property goes to children because of people's desire “of propagating their Kind, and continuing themselves in their Posterity,” certainly not the clearest justification.Footnote 46 Nevertheless, the passage is clear evidence of Locke's commitment to unlimited inheritance. Indeed, if a decedent has no surviving children, his estate goes to his father. If his father is no longer living, the estate goes to his father's children (the original decedent's brothers and sisters) and their children (his nieces and nephews), or, failing that, to the original decedent's grandfather, and then to his aunts and uncles.Footnote 47 Only when there are no such surviving “Kindred” does the estate revert to common stock.Footnote 48 These inheritance rights of extended family members are natural rights, Locke says, “whatever the Municipal Laws of some Countries, may absurdly direct otherwise.”Footnote 49
Locke grounds the inheritance rights of extended family members in a parent's right to be supported by his children to the extent that their duties to themselves and their own offspring allow it.Footnote 50 But as a justification for inheritance, this right to filial support is as inadequate as the right to parental support. It fails to explain why relatives beyond parents would inherit or why any inheritance would exceed the requirements of subsistence and comfort. Rights to support—from parents or children—are insufficient to justify unlimited inheritance. What, then, justifies it?
B. Inheritance as Joint Title
One avenue to reject at the outset is Locke's sometime contention that children share joint title in their parents' goods. Locke at times describes the right to parental support as conveying to children “a Title to their Father's Estate for their Subsistence.”Footnote 51 For instance, he states that “Men are not Proprietors of what they have, meerly for themselves; their Children have a Title to part of it,”Footnote 52 and again that children have “a Title, to share in the Property of their Parents, and a Right to Inherit their Possessions.”Footnote 53 Locke does not consistently use this language, and what he means by it remains mysterious. It raises the possibility that children share their parent's property in a sort of joint tenancy and that upon the death of the parent, the children automatically become the sole owners of the entire estate. I think this is not the best reading, but even if this is what Locke means, it gets us no closer to a justification for unlimited inheritance. Locke grounds the children's “title,” such as it is, in the right to parental support, but the whole problem is that this right is not sufficient to give children a joint title in the entire estate.
Nor would a different interpretation suit our purposes any better. Locke is generally careful to say that children have a title to “part” of their parents' goods, or a title “for their subsistence.” One possible reading, then, is that the “title” is in the goods required by the right to parental support; these goods the parent may not alienate from his children either in life or at death. Meanwhile, the right to inherit the entire estate is a distinct right that may be overridden by the parent's express bequest of surplus property to another individual. This reading would largely square Locke's claim that children have “Title, to share in the Property of their Parents, and a Right to Inherit their Possessions”Footnote 54 with the immediately preceding claim that children inherit their parent's property “if [the parent] dispos'd not otherwise of it by his positive Grant.”Footnote 55 Children have “title” only to the goods required by the right to parental support, while inheritance of surplus goods occurs not through joint ownership but through a transfer that leaves room for the operation of bequest.
Such a scheme would, at least, give effect to the essential points of Locke's discussion of postmortem transfer. But under this or any other reading, the idea of joint title does not provide any new justification for unlimited inheritance. Instead, it seems to come back to the right to parental support. Whether intended seriously or metaphorically, the idea of joint title only begs the question of unlimited inheritance.
C. Inheritance as Intergenerational Debt
Although Locke relies most prominently on the right to parental support, he does offer other justifications for inheritance. I identify three.Footnote 56 The first is too elliptical to warrant extensive consideration. Locke at one point refers to the marriage compact as the place where “Inheritance [is] taken care for,” but we are left to speculate upon exactly how and why it does so.Footnote 57 Under any reading, the marriage compact falls short of justifying full inheritance rights, for while it might have something to do with children's inheritance, it in no way explains inheritance by the decedent's father, siblings, or nieces and nephews. It seems best to take this passage to mean that marriage takes care of inheritance in the same way that it “secure[s]” procreation: without marriage, neither procreation nor inheritance by children was legitimate in Locke's time. This is an observation about the circumstances necessary for the operation of the inheritance right, not a justification for it.
Two more promising justifications remain, one of which I shall address in this section and the other in the next. Locke suggests the first of these only vaguely in one section of the First Treatise. There he tries to explain why it is that when a person dies, his children inherit rather than his parents.Footnote 58 Bypassing the obvious explanation that parents are less likely to be alive to inherit, Locke considers the idea that “to the Grand Father [the decedent's father], there is due a long Score of Care and Expences laid out upon the Breeding and Education of his Son, which one would think in Justice ought to be paid.”Footnote 59 At first, Locke seems to raise this suggestion only to reject it. The apparent “score” due to the grandparent is not really owed at all, because the care he took and expenses he incurred in raising his son were “done in Obedience to the same Law, whereby he received Nourishment and Education from his own Parents.”Footnote 60 Thus the “Score of Education received from a Man's Father, is paid by taking care, and providing for his own Children.”Footnote 61
And yet, as Locke continues, he returns to the notion of a debt owed to parents. Although “it be incumbent on parents to bring up and provide for their children,” he says, “yet this Debt to the Children does not quite cancel the Score due to the Parents, but only is made by Nature preferable to it.”Footnote 62 Apparently parents are owed a “score” after all, and it is so large that it is not counterbalanced by one's natural duty of support for one's children. In addition, Locke specifies that he is not referring here to the “debt of honour” due to parents; he is talking quite specifically about “Possessions and Commodities of Life valuable by Money.”Footnote 63 Perhaps this is the debt of “support” that Locke mentions in the Second Treatise, when he says that “honour and support, all that which Gratitude requires to return for the Benefits received by and from [the parents] is the indispensable Duty of the Child, and the proper Priviledge of the Parents.”Footnote 64
Having noted that support of one's children is not sufficient to discharge the debt to one's parents, Locke mentions two ways in which the remaining debt is sometimes paid. First, an elder parent has a “Right to be maintain'd by his Children where he needs it, and to enjoy also the comforts of Life from them, when the necessary Provision due to them, and their Children will afford it.”Footnote 65 Second, if a decedent has no children, “the Father has a Right in Nature to possess his Goods, and Inherit his Estate . . . and so again his Children and their Issue from him, or for want of such, his Father and his Issue.”Footnote 66 All of these inheritance rights—of parents and of more distant relatives—Locke seems to ground in “the Debt a Man owes his Father.”Footnote 67
If accepted as presented, this idea of intergenerational debt might justify unlimited inheritance in the following way. Locke asserts that (1) one owes a “debt” of support to one's parents; (2) this debt is first paid by supporting one's own children; (3) support of one's children, however, “does not quite cancel the Score due to the Parents”; and (4) in some cases the remaining debt is paid to the parents directly through support when they need it or through inheritance when there are no children. Thus it would seem that in cases where the remaining debt is not paid to the parents (because they do not require support or there are children to inherit the estate), some balance remains to them. It seems plausible that this balance, like the initial portion of the debt, could be paid forward to one's children in the form of more inheritance than they require. Indeed, in the same vein that “[a] Man may owe . . . gratitude to a Benefactor, to such a degree, that all he has, all he can do, cannot sufficiently pay it,”Footnote 68 he might also owe his parent a “score of care” so great that it makes appropriate the inheritance of his entire estate by his children. Thus unlimited inheritance may represent the decedent's combined debt to his children and his parents.
It is possible to build this account from Locke's text, but as a justification of unlimited inheritance, the repayment of intergenerational debt has clear deficiencies. For one, if unlimited inheritance represents debt owed across generations, a lump-sum payment to one generation is an odd way to discharge it. It is not clear, for instance, why children should be the beneficiaries of a debt owed to their grandparents. It is even less clear why, when the decedent has no children, his parent should enjoy an unlimited inheritance right. Does this mean that the parent is enjoying not only the goods owed to him but also those that would have been owed to his grandchildren had they existed/survived? This seems even less defensible than the children's enjoying the grandparent's goods. Perhaps the grandparent enjoys unlimited inheritance because the “score of care” owed to him is so great that no amount of property can repay it. But if the debt is that large, it seems odd that parents are not the residual heirs in the first instance: if the decedent's children are owed only goods for their subsistence and comfort, while his parents are owed an immense debt, why don't children inherit only needed goods and parents the remainder? And this is to say nothing of why more distant family members should enjoy unlimited inheritance in the absence of children and parents. Why should parental debt justify inheritance by, say, the decedent's brother? In short, if there is such a thing as intergenerational debt, unlimited inheritance is an awkward way to repay it.
In addition, intergenerational debt explains children's unlimited inheritance rights at the expense of the decedent's right to bequeath his property to third parties. As I argue above Locke is sufficiently committed to the idea of bequest that it is worthwhile to seek a Lockean account of postmortem transfer that accommodates it. If children have an unlimited inheritance right because the decedent owes an intergenerational debt that not even his entire estate can satisfy, it would seem there is little room left for the operation of bequest. Intergenerational debt might succeed as a justification if the only specific bequests Locke permitted were those necessary to satisfy debts with priority over family members' right to inherit. But Locke places no such qualification on the right of bequest. To resolve the problems of bequest and unlimited inheritance simultaneously, the concept of intergenerational debt would have to permit a person's entire estate to descend to his children without requiring that it do so.
It is hard to escape the feeling that Locke in the First Treatise is hinting at some kind of perpetual intergenerational debt and that such debt may justify unlimited inheritance rights. But making that intuition square with the rest of Locke's account proves no small feat. It is probably best, then, not to rely on this purported justification. We continue to lack a sound argument for unlimited inheritance rights despite Locke's conviction that such rights exist.
D. Inheritance as Imputed Bequest
The last possible justification for the right of unlimited inheritance is what I call imputed bequest. Locke says:
[W]hen their Parents leave the World, and so the care due to their Children ceases, the effects of it are to extend as far as possibly they can, and the Provisions they have made in their Life time, are understood to be intended as nature requires they should, for their Children, whom after themselves, they are bound to provide for, though the dying Parents, by express Words, declare nothing about them, nature appoints the descent of their Property to their Children, who thus come to have a Title, and natural Right of Inheritance to their Fathers Goods, which the rest of Mankind cannot pretend to.Footnote 69
This passage suggests that the right of inheritance exists because, in the absence of testamentary declarations to the contrary, we impute to dying parents an intention to bequeath their goods to their children. This is the concept of unlimited inheritance as imputed bequest.
The passage could have two additional and problematic implications. First, to the extent that it suggests that children's inheritance depends upon parents' imputed desire to bequeath them their goods, it could also suggest that when parents do in fact bequeath their goods elsewhere, the children have no right to inherit. This would constitute a denial of the right to parental support. On balance, however, we can reject this implication. After all, the passage itself reaffirms the right to parental support. The better interpretation is to read the passage in light of Locke's insistence that parents fulfill their duty to support their children.
Second, the passage could be taken to refer only to the right to parental support. Locke could mean that we impute to parents an intent to bequeath property to their children only to the extent that “they are bound to provide for” their children. This reading makes the passage at best superfluous and at worst contradictory to the right to parental support, which is supposed to be founded on parents' duties, not their intentions.Footnote 70
But the passage does not limit the imputed bequest to necessary goods, and other passages suggest that Locke might find it reasonable to impute to parents an intent to leave their entire estate to their children, regardless of the children's needs. Locke generally recognizes that the connection between parents and children outlasts the age of minority. For instance, he places on children a perpetual duty of honor toward their parents that contemplates a continuing relationship between parent and adult child.Footnote 71 He also suggests that to ensure the fulfillment of dependent children's right to parental support, “Natural Love and Tenderness” prompt parents “to provide for [their children], as a part of themselves.”Footnote 72 While filial affection might encourage parents to fulfill their natural duties, the desire to provide for children “as a part of themselves” could well extend beyond such duties.
Also, as we see above Locke says that parents' “strong desire . . . of propagating their Kind, and continuing themselves in their Posterity . . . gives Children a Title, to share in the Property of their Parents, and a Right to Inherit their Possessions.”Footnote 73 This passage may suggest that parents' desire “to continue themselves in their Posterity” brings with it a desire to pass their goods along to their children. At the least, the passage implies a connection between the two things that people identify most with themselves: their property, which is the product of their labors, and their children, who are the embodiment of their desire to “continu[e] themselves” beyond their life spans. It is easy to make a Lockean argument for this connection and to conclude that most people would indeed want their children to inherit their property (minus perhaps a few specific bequests to others bound up in the testator's life projects).
Nor is this idea inconsistent with Locke's assertion that a parent may utilize bequest to reward those children who “please him best”:
[T]here is another Power ordinarily in the Father, whereby he has a tie on the Obedience of his Children; which though it be common to him with other Men, yet the occasions of shewing it, almost constantly happening to Fathers in their private Families, and the Instances of it elsewhere being rare, and less taken notice of, it passes in the World for a part of Paternal Jurisdiction. And this is the Power Men generally have to bestow their Estates on those, who please them best. The Possession of the Father being the Expectation and Inheritance of the Children ordinarily in certain proportions, according to the Law and Custom of each Country; yet it is commonly in the Father's Power to bestow it with a more sparing or liberal hand, according as the Behaviour of this or that Child hath comported with his Will and Humour.Footnote 74
Parents may use bequest to alter the property allocation among their offspring; indeed, they may even bestow their estates on someone else. But the underlying premise of the passage is that parents want their estates to go to their children. As Locke says, the occasion of using bequest is “constantly happening to Fathers in their private Families, and the Instances of it elsewhere [are] rare.” Bequest is used to show approval and love for those most closely identified with one's life projects—to reward those who “comport[] with [one's] Will and Humour.” And as a descriptive matter, Locke asserts that those are usually one's children.
A similar argument can be made for why, in the absence of children, a decedent's possessions should pass to his parent or relations: even distant relatives are likely to be more closely related to the decedent's life projects than others.Footnote 75 When this is not true, it is unlikely that the general public will share equally in the decedent's interests, and he may identify those individuals or groups who do share them through specific bequests.
It should be clear that when understood as imputed bequest, the right of inheritance becomes a default rule, imputing to the decedent a desire to transfer her wealth to those who are most likely to be identified with her life projects.Footnote 76 The fact that the default rule will not fit every case is not a reason to reject it. Although it is true that Locke is usually sensitive to the variations in the quality of familial relationships, as long as unlimited inheritance is a default rule rather than a duty owed to heirs, it may be said that Locke is taking account of familial variety by allowing parties to opt out. If the default rule is a bad fit for a given case, a testator may make alternative arrangements through bequest.
It may also be said that the use of a default rule is consistent with other aspects of Locke's property theory. As a general matter, Locke's theory is concerned with defining property claims in relative terms. We all have a property in ourselves, not in absolute terms (for we are also God's property), but as against all other persons. Dependent children's claims to support are superior to those of needy elders, which are in turn superior to those of the rest of the world. In this case, when a person dies intestate, his surplus goods must go somewhere. And the natural law has two realistic alternatives for where they should go: to the dead man's family or to common stock.Footnote 77 The question is: Which of these has the superior claim? If we consult the wishes of the decedent—as the idea of imputed bequest suggests we do—it is clear which alternative would usually be preferred. Thus Locke rejects the common-stock solution (in I, 88) and instead concludes (in I, 89) that “though the dying Parents, by express Words, declare nothing about them, nature appoints the descent of their Property to their Children, who thus come to have a Title, and natural Right of Inheritance to their Fathers Goods, which the rest of Mankind cannot pretend to.”Footnote 78
Thus, while it is true that Locke never explicitly presents a full theory of imputed bequest, we may plausibly read the Treatises to assume that parents, prompted by their “Natural Love and Tenderness” and their close identification with both their children and their possessions, would in most cases desire that their property descend to their children when they die. This means that the right involved is the right not of the children to inherit but of the parent to bequeath. The children's “right” is the property right they obtain by virtue of being the beneficiaries of their parent's imputed exercise of the right of bequest.
Unlimited inheritance can thus be justified as imputed bequest. But this is merely to push the question of justification back a level, for Locke never explicitly justifies bequest. If we accept unlimited inheritance as imputed bequest, then the problem of inheritance collapses into the problem of bequest, and we must settle them both at once. Thus we come to the problem of postmortem transfer.
IV. THE PROBLEM OF POSTMORTEM TRANSFER
The problem of postmortem transfer is the question of why a decedent's goods should go to certain individuals rather than reverting to common stock. If the right of inheritance is actually a right of imputed bequest, the question becomes why we should respect a dead person's wishes for his goods, rather than considering them ownerless. The most promising justification rests upon a conception of the Lockean property owner as an autonomous individual capable of forming and carrying out various projects and pursuits as part of a broader plan of life.Footnote 79 Just as acquisition and ownership may further these goals, so may a person advance his life projects through transfers, as much at death as in life.
Specific bequests may further an individual's life projects in a number of ways. The transfer may extend resources to someone whose own projects are consonant with the testator's. Supporting the legatee may itself have been one of the decedent's projects, which the bequest fulfills. The bequest may requite some benefit the legatee gave the decedent in life. And whatever role the transfer itself plays, contemplating the bequest may afford the testator satisfaction during life.
Inheritance, when understood as imputed bequest, may fulfill similar functions. Someone who dies intestate may be interrupted in his pursuit of various projects; it is plausible to assume that upon his death he would want his property to go to his family because of the close association between his desires for those people and his purposes for his property. Once again, supporting his loved ones may have been one of the decedent's projects, which inheritance allows him to fulfill. And even though an intestate decedent fails to record his wishes, he may still derive satisfaction from anticipating that his resources will provide for his family after his death.
It is not incontestable that the Lockean property owner is defined by autonomy, still less so that his autonomy extends to the disposition of property postmortem. Still, we can construct arguments in support of this view. First, we may start from the proposition that Locke's state of nature offers people a wide “domain of autonomy” within which to pursue their own ends.Footnote 80 In the state of nature, all people are in “a State of Perfect Freedom to order their Actions, and dispose of their Possessions, and Persons as they think fit, within the bounds of the Law of Nature.”Footnote 81 The fundamental precept of natural law is that “no one ought to harm another in his Life, Health, Liberty, or Possessions.”Footnote 82 “[D]ispos[ing] of . . . Possessions” postmortem does not violate the “bounds of the Law of Nature” because—assuming no claims of need—these dispositions do not deprive anyone of life, health, liberty, or possessions.Footnote 83 Because postmortem transfer is consistent with the law of nature, it falls within the domain of autonomy, in which people are free to do as they wish.
We could, however, go farther. We could argue that postmortem transfer, like other features of Lockean property ownership, itself furthers the ultimate end behind the laws of nature, the preservation of humankind.Footnote 84 Under this view, Lockean private property exists because overall it is superior to the alternatives in fostering humans' flourishing. Although Locke never discusses postmortem transfer in these terms, it is possible that he sees it as serving this purpose in the same way private acquisition and ownership do.Footnote 85 Indeed, one could argue that the right to dispose of one's goods at death is a necessary incentive to private acquisition in the first place, and that, given Locke's apparent commitment to the latter, a right of postmortem transfer follows perforce.Footnote 86 Under this view, the right of postmortem transfer is an instance of rule-consequentialism in furtherance of the fundamental law of nature.
Waldron rejects bequest and inheritance of surplus goods because he takes a narrow view of the prerogatives of autonomous agents. He believes the reversion of surplus goods to the common stock is required by the spoilage limitation, which provides, “As much as any one can make use of to any advantage of life before it spoils; so much he may by his labour fix a Property in. Whatever is beyond this, is more than his share, and belongs to others.”Footnote 87 Waldron disagrees with “the way in which Locke expanded the meaning of the phrase ‘make use of to any advantage in life.’”Footnote 88 Locke writes, for example:
[I]f [an owner] gave away a part [of his property] to any body else, so that it perished not uselessly in his Possession, these he also made use of. . . . Again, if he would give his Nuts for a piece of Metal, pleased with its colour; or exchange his Sheep for Shells, or Wool for a sparkling Pebble or a Diamond, and keep those by him all his Life, he invaded not the Right of others, he might heap up as much of these durable things as he pleased; the exceeding of the bounds of his just Property not lying in the largeness of his Possession, but the perishing of any thing uselessly in it.Footnote 89
Here Locke adopts an expansive definition of what it means to “make use of” property. He distinguishes between property's accumulation and its spoilage and his concern is to limit the latter, not the former.
Nevertheless, Waldron favors a more limited construction of the phrase “make use of to any advantage in life.” He says that at most inter vivos gifts might meet the definition of “making use of” an object. A donor receives pleasure from making a gift and in this way makes “use” of the property. “But,” Waldron says, “it is difficult to extend the meaning of ‘make use of’ along these lines to cover bequests.”Footnote 90 He questions whether postmortem dispositions can ever constitute making use of property in life, because “at the date of disposition the person will be dead and thus unable to expect any favors in return from the legatee. The case seems to be a classic one for the limit on appropriation.”Footnote 91 To prevent their being wasted, any surplus goods must revert to common stock.
I read the spoilage limitation as a much weaker prohibition against actual spoilage of goods that does not interfere with the “largeness” of nonperishable possessions. But even on his own terms, the distinction Waldron makes between inter vivos and postmortem transfers is unconvincing. For one thing, while a dead person is unable to “expect any favors in return” for the bequest, in some cases bequests are granted in consideration of benefits already received; as Locke acknowledges, bequest is “the Power Men generally have to bestow their Estates on those, who please them best.”Footnote 92 More generally, testators may enjoy the pleasures of giving much as any other donor. Although the testator will be dead at the time of the actual transfer, a bequest must be specifically made and thus contemplated in advance by the testator. The testator has an opportunity to take pleasure in the act of bequest and to anticipate the happiness and other salutary effects that the transfer will occasion. The satisfactions experienced by the testator are the same as those of an inter vivos donor, except that all (rather than some) of them occur in anticipation of the transfer itself.
Admittedly, these benefits are not an obvious characteristic of inheritance. The law of inheritance takes over precisely because the decedent has not made express provision for his property after death. And yet it is possible that a person who has neglected to formalize his intentions has still derived pleasure or solace from imagining that his property will go to his loved ones. Many more people know they are going to die than make wills, and it seems possible that those who fail to do the latter have still given some thought to their estate and perhaps derived some comfort from doing so.
In addition, Waldron does not consider that part of an individual's goal in originally acquiring a good might have been its eventual enjoyment by her friends or family members in her lifetime or afterward. Even an individual who fails to make a will might acquire goods in anticipation of his eventual demise and in hopes of enabling his loved ones to pursue their own life projects, or to continue his own. Absent claims from the needy, it is reasonable on a Lockean view that this individual's property descend according to these principles of bequest and inheritance, reflecting as they do his moral prerogatives as acquisitor and possessor.
Because Waldron's attempted distinction between inter vivos and postmortem transfer collapses, he is left with his larger objection to transfers of any kind.Footnote 93 It is beyond the scope of this paper to assert the validity and justice of property transfers within a Lockean framework, although our previous discussion of autonomy and postmortem transfers gestures in that direction. Suffice it to say that Locke repeatedly contemplates a right of transfer and that his assertions may be justified by a theory that understands both labor and transfer as exercises of personal autonomy.Footnote 94
The status of the wishes of the dead is a difficult subject upon which this paper does not attempt to make general comment. I seek only to make two smaller points. First, the particular reasons Waldron gives for distinguishing inter vivos transfer and postmortem transfer within Locke's theory seem unconvincing, with the result that his critique becomes a more generalized—and less defensible—claim that a Lockean system should reject transfers. Second, even if Waldron's arguments against postmortem transfer have some strength, we have at least constructed a competing account of Lockean ownership that makes sense of a right of postmortem transfer within a larger regime that promotes ownership and transfer rights in order to foster humankind's flourishing. Such an account has the advantage of explaining Locke's consistent endorsement of postmortem transfer.
Of course, if this account was founded upon the premise that Locke believes that postmortem transfer—and ownership and transfer in general—always generally advance humankind's well-being, this would be a reason to reject it as inconsistent with our intuitions. But Locke imposes limitations, to which we now turn.
V. LIMITATIONS
Nowhere in his remarks on bequest and inheritance does Locke apply the limits on ownership he discusses elsewhere in the Treatises. He does not explain the effect, if any, of the spoilage limitation,Footnote 95 the sufficiency limitation,Footnote 96 or the duty of charity to those in need.Footnote 97 Nevertheless, an account of Lockean bequest and inheritance must consider these limitations. The spoilage limitation, as discussed above, exists in the Treatises as a narrow prohibition against spoilage of goods, which on its literal terms would not apply to traditional postmortem transfers. The sufficiency limitation stipulates that individuals may acquire property through labor only to the extent that there is “enough, and as good left in common for others.”Footnote 98 This is not an opportune place for a survey of interpretations of the sufficiency limitation; I take it to be a true limitation on original acquisitions but find its application to secondary acquisitions awkward, if not impossible. Thus I would posit that it affects postmortem transfers not at all. One might use either the spoilage or the sufficiency limitation to generate a broader Lockean rule against unbalanced wealth distributions, much as Waldron's “use” requirement construes the spoilage limitation or Simmons's “fair share” requirement the sufficiency limitation.Footnote 99 As described in the text, however, neither the spoilage nor the sufficiency limitation notably constrains postmortem transfer.
The needs of others create another claim upon a decedent's property, one accounted for by the duty of charity. According to Locke, “God . . . has given no one of his Children such a Property, in his peculiar Portion of the things of this World, but that he has given his needy Brother a Right to the Surplusage of his Goods.”Footnote 100 This claim to others' surplus goods will keep the needy person “from extream want, where he has no means to subsist otherwise.”Footnote 101 The “Surplusage” as here defined refers to goods over and above those needed for survival plus a “liberal Allowance of the Conveniences of Life.”Footnote 102 Thus apparently the prosperous have a right “to subsist and enjoy the conveniences of Life,”Footnote 103 while the needy have a right merely to subsist, and only upon the “surplus” goods of their prosperous counterparts. Once again, one might broaden the limitation so that everyone's needs for subsistence and comfort are satisfied before owners may enjoy surplus goods.Footnote 104 But even as conceived by Locke, the duty of charity may seriously constrain unlimited wealth accumulation and the worst evils associated with it. Under conditions of scarcity as great as those experienced in the world today, Locke's duty of charity would have huge redistributive implications.
Of course, because the duty of charity applies to all forms of acquisition and possession, it might operate directly on postmortem transfers only to a small extent. If goods were regularly redistributed to the needy, then presumably most goods surplus to the decedent would already have been redistributed during his life. The only goods left for redistribution at his death would be those that he required for subsistence and comfort but that were surplus to his heirs or legatees. It is possible that as a matter of convenience, goods might be redistributed only upon death, in which case postmortem redistribution would assume a larger role. But other than for administrative reasons, postmortem transfer is subject to the duty of charity only to the same extent as other transfers or, indeed, plain ownership.
Thus the spoilage and sufficiency limitations, as written, have little effect on Lockean bequest and inheritance, while the duty of charity may have a very great effect on the amount of goods available for postmortem transfer as much by limiting ownership in the first place as by operating specifically on bequest and inheritance. While we may quibble about whether Locke gives his limitations sufficient strength, from the text as it exists we may construct the following account of postmortem transfer: where others' needs are met, decedents have a right to dispose of their goods postmortem. This right helps to promote the acquisition of goods, which in turn helps to promote well-being. Where others are in need, unlimited postmortem transfer no longer helps to promote well-being. Under such circumstances, postmortem transfers are limited to the extent necessary to provide for the basic requirements of the needy. Owners' incentives to acquire goods are thus preserved to an extent consistent with their duty of charity. Both the right of postmortem transfer and its limitation are thus rooted in the same concern, “the preservation of the Society.”Footnote 105
This may not be the best possible account—it may not even be the best possible Lockean account—but it is recognizably Lockean and, unlike many others, it makes sense of Locke's commitment to the rights of bequest and inheritance.
VI. CONCLUSION
The Lockean theory of postmortem property transfer offered here includes four principles: (i) a decedent's dependent children (and possibly parents) are entitled to goods necessary for their subsistence and comfort; (ii) legatees are next entitled to specific bequests; and (iii) then a decedent's heirs are entitled to all remaining property; except that (iv) when necessary, the duty of charity limits (ii) and (iii), as it limits the ownership of surplus goods in general. The first rule is based upon the right to parental support: in death as in life, an individual must fulfill his duties as a parent before pursuing his prerogatives as an autonomous individual. The second and third rules are justified by the decedent's right to dispose of his property in accordance with his life projects, with the third operating as a default rule that imputes to him a desire to leave his property to his heirs. The fourth rule is an application of the duty of charity.
The idea of unlimited inheritance as imputed bequest may face several objections. One is that it receives scant support in the text of the Two Treatises. I have marshaled what support there is, and at the least it seems there is no more support for any other conception of unlimited inheritance in the Treatises. Indeed, if we discard imputed bequest, it appears that Locke does not justify unlimited inheritance at all.Footnote 106 Rather than conclude that Locke left this aspect of his property theory unfortified, we might prefer to interpolate a fuller justification, particularly given Locke's insistence on the existence of the right.
Another potential objection is that although imputed bequest coheres with Locke's views on disposition of property, these views are themselves at odds with other themes within his theory. For those, like Waldron, who find in the Treatises support for a redistributive theory of property, postmortem transfers (or transfers in general) look like unjustified anomalies. For those who see labor as the basis of Locke's property regime,Footnote 107 such transfers may be equally repugnant. But these are not reasons to read bequest and inheritance out of the Treatises. They are instead reasons to reevaluate Locke and possibly to conclude that his theory encompasses multiple values. These values sometimes conflict (after all, the redistributive and labor theories that purport to reflect Locke's views may agree in rejecting transfers but ultimately conflict with each other). But once again, Locke provides us with some rough ordering. Labor is the original means by which goods are acquired. Goods, once acquired, may legitimately be transferred either in life or at death. And regular rules of acquisition and transfer are subject to the spoilage limitation, the sufficiency limitation, and the duty of charity. These are serious constraints that in conditions such as our own would often override Locke's principles of acquisition and transfer. But these principles remain a part of Locke's regime even though others may have priority.
The message for those who would apply Locke's theory to present-day institutions is one of caution. Modern debates about postmortem transfer and redistribution wrestle with some of the same questions that occupied Locke, and recognizing the moral dimension of these discussions may help to bring shape to wide-ranging, complex, and contentious questions of policy.Footnote 108 But to serve this role, discussions of rights must accurately represent the complexities of their philosophical origins. The Two Treatises can reveal for us some of the difficulties and possibly the rewards of attempting to devise a property system that respects the rights of owners as well as the needs of others. But to import Lockean rights without Lockean duties—or vice versa—is to miss this opportunity and to do a disservice to Locke and ourselves.
