Concerning a Critical Legal Pedagogy: Exposing Race-Thinking in Political Canon

Locke’s philosophy worked to entrench slavery as a politically justifiable practice, effectively extending property rights to a select few while encouraging the political legitimacy of race-​based persecution.

slave ship

John Locke is considered the most influential of Enlightenment thinkers and a leading philosopher of British empiricism – in other words, the theory that knowledge is primarily derived from sensory experience. Empiricism emphasizes the privileging of facts and ‘hard’ evidence, insofar as the testing of a ‘theory’ ought to accompany observations of the natural world, rather than intuition or a priori reasoning. Locke was primarily concerned with a branch of political philosophy known as social contract theory, or the notion that the individual ought to relinquish some of their freedoms to the authority of the magistrate in exchange for the protection of their fundamental rights. Consequently, Locke and other social contract theorists took up questions concerning the relationship between natural and legal rights. What is perhaps most important, and yet often ignored when reading Locke’s philosophy, is the historical and colonial context of his political undertakings. Locke was heavily involved in the administration of colonial projects, particularly with regards to the trans-Atlantic slave trade and the implementation of settlers’ legal rights in the early American context. As any good empiricist knows, the calling of attention to fact demands a theory.

John Locke is often regarded as the “Father of Liberalism”, where liberalism is most often expressed unequivocally in positive terms. As a result, John Locke is responsible for a dominant way of thinking politics, and necessarily, the law – a way of thinking that is exceedingly expressed as universal but all too limited by the Eurocentric container of its precedent. Generous interpretations of John Locke’s legacy are, therefore, limited in so far as they do not acknowledge the profundity of his vocation, specifically as it concerned chattel slavery. All the while, what has informed common day teaching of politics and legal studies, and indeed the instructed ‘meaning’ of liberalism (as it is often taken up in these conversations…), is underscored by John Locke’s political thought. Crucially, John Locke’s fixation with property rights and the ‘natural’ entitlement of civil liberties (something he also proclaimed, interestingly enough, as ‘inherent’) played a substantial role in shaping the context of the early American colonies, racial law, and as I would argue, subsequent circumstances of contemporary American race-relations. Crucially, reading ‘Lockean philosophy’ in accordance with Locke’s personal ventures might help explain a particular dimension by which race-relations have been systematically governed (and specifically, policed, disciplined and ordered) in the Western World.

Robert Bernasconi and Anika Maaza Mann account for the potency of Locke’s ideas in contributing to inherited practices of institutional prejudice in their (2005) work “The Contradictions of Racism: Locke, Slavery and the Two Treatises”. Crucially, Bernasconi and Mann claim that so long as American notions of freedom, liberty and independence are affixed with the preaching found within John Locke’s Two Treatises of Government, a society seemingly free from racist ideals and inherently prejudice institutions will be nothing less than a theoretical impossibility (Bernasconi and Mann 2005, 105). Of course, the Two Treatise is often taken up in second year political studies programs, usually in accordance with introductory level and foundational texts in political thought. In this endeavour, core classes at the undergraduate level, both in political and socio-legal studies, all-too-often ignore the contradictions of John Locke’s thought. It has become the equivalent of unearthing Martin Heidegger’s Nazism in graduate seminars – a feat which is often met with comments like, “Well, we don’t have to read Heidegger’s Being and Time in relation to his Nazism”, or, for example, “We can take parts of it that are useful to our own research, while leaving out the rest”. In fact, no, you cannot. And you musn’t. The Derridean argument that the intent of the author is never fully communicable, or rather, that the reader’s interpretation is as important as the intent that informed the authorship, is not something I find particularly satisfying when attempting to account for histories of persecution and violence.

Taking Bernasconi and Mann’s argument an inch further, one might insist that Locke’s critical role in shaping the norms and conduct of the trans-Atlantic slave trade alongside early American political ideas has perpetuated a type of ‘race-thinking’; an aspect of what Charles W. Mills has argued is essential to the formation of a racial liberalism. In Mills’ seminal “Racial Liberalism”, ideas of liberal ‘personhood’ and resulting orders of rights, duties and institutional responsibilities have all been racialized (Mills 2008, 1381). Therefore, for Mills, even as the emancipation of ‘the Slave’ granted him some political rights (and the use of gendered language is, here, absolutely necessary), those substantive rights equalities, enjoyed exclusively by Whites, were not attained. This genealogical analysis of American liberalism raises awareness to an important facet of the contradictory nature by which many principles of American liberty operate in the public imagination. In turn, this reading of our North American political history helps substantiate claims of historical disadvantage, traditionally located on socially imagined hierarchies of race, class and gender. John Locke’s political theory was only ‘universal’ in so far as it was intended as a defense of the rights of White Europeans and their descendants.

According to K.G. Davis, John Locke was an initial subscriber to the Royal African Company, which succeeded the Royal Adventures in 1672, earning the monopoly in the slave trade on the West African coast and serving to effectively transport approximately 90,000 slaves in its first sixteen years of activity (Davis 1970, 202). John Locke was also employed as a secretary under the Lords Proprietors of Carolina from 1668 – 1675, during a time in which Locke would also be engaged as one of only eleven board members on the Council of Trade and Plantations. Once the council dissolved, Locke’s involvement in the administration of chattel slavery continued. Locke was employment by the First Earl of Shaftesbury, Sir Anthony Ashley Cooper, from 1696 until 1701 as one of only seven members on the new Board of Trade and Plantations. During his work here, his official title was ‘His Majesty’s Commissioners for promoting the trade of this Kingdom and for Inspecting and Improving His Plantations in American and elsewhere’ (Bernasconi & Mann, 89).

John Locke was heavily involved in the administration of Carolina as a ‘Proprietors colony’; therefore, Locke not only had first-hand knowledge of the practice of slavery as it was systematically exercised in the state of Carolina, but, as Bernasconi and Mann eloquently point out, he also understood the harsh reality in which thousands of slaves were transported to the American colonies. Remember, Locke was a physician by trade! His knowledge of the violent hardships endured by those subject to conditions of enslavement must necessarily have exceeded that of the average individual. Locke’s contribution to the creation of article 101 of the Fundamental Constitutions of Carolina exemplifies the manner by which his work enhanced the institutionalization of racism and anti-Black sentiment in the early American context. According to Bernasconi and Mann, Locke’s specific role in the authorship of article 101 cannot be determined; however, it is evident that Locke took particular interest in the way the document described the rights of ‘masters’ over their ‘slaves’. As Bernasconi and Mann inform us, Locke changed article 101 of The Fundamental Constitutions of Carolina from reading “Every freeman of Carolina shall have absolute authority over his Negro Slaves” to “Every freeman of Carolina shall have absolute power and authority over his Negro Slaves”. This substantial change in the rhetoric of the Fundamental Constitutions of Carolina effectively granted slave owners a legal entitlement towards human property. For Locke, as Bernasconi and Mann elucidate, ‘power’ implied one’s right to a power over life and death. Reading Locke according to this interpretation of ‘power’ is consistent with his writing in the Two Treatises of Government, where Locke employed the phrase ‘absolute power’ to regard the power of life and death in a discussion of slavery. Locke’s concept of power worked to grant slave owner’s complete power over their African slaves, and thus the right to kill their slaves with legal, political and social impunity (Bernasconi & Mann, 92).

David Duncan Wallace points out in his work on the History of South Carolina that the Lords Proprietors of Carolina intended for a copy of the Fundamental Constitutions to be kept by every register of every precinct and that every adult over the age of 17 be required to sign it or be deprived of their right to hold property (Wallace 1924, 43). Effectively, owning property was a political right contingent upon owning a copy of the Fundamental Constitutions – a document symbolic of slavery, and moreover, the normative existence of slavery among a commonwealth of White property owners. Common fixations with property were informed by perceptions in the efficacy of labour, and therefore naturally inherited by the European ruling elite who made ‘optimum’ use of a land endowed upon them by ‘God’. The development of property logic existed alongside particular misappropriations of religious conviction, compacted by the proliferation of chattel slavery – a free source of labour from which a justification for enslavement was the covert notion that Africans had failed to ‘civilize’ their land and, consequently, their people. Therefore, Locke’s philosophy could be utilized in an attempt to legitimize the conditions of slavery and the circumstances of the prescribed relationship between ‘Man’ and ‘His’ property, substantiated by the very obvious historical representations of chattel slavery, in which ‘property rights’ worked to sustain White-privilege and condition future American race-relations.

The Lockean notion ‘civilized society’ is also important in mapping his political intent. Anthony Pagden, in his work The Struggle for Legitimacy and the Image of Empire in the Atlantic, argues that because so many of the examples Locke used in his Second Treatise are American, this reveals Locke’s intention to provide setters, for whom he had worked in so many other ways, with powerful arguments based in natural law rather than a legislative decree (Pagden 1998, 43). In contrast, Domenico Losurdo’s Liberalism: A Counter History notes Locke’s repeated reference to the ‘wild indian’ in his Second Treatise of Government. As Losurdo points out, Locke frequently made mention of ‘the wild indian’ moving about insolent and injurious in the woods of America’ or the ‘vacant places of America’. Ignorant of labour, which was the only thing that could confer property rights, and occupying a land not ‘improv[ed] by labour’ (according to the overt theme of the English ‘civilizing mission’), or ‘great tracts of unused ground’, the Indian inhabited ‘unpossessed quarters’, or what Locke referred to as vacuis locis (Losurdo 2011, 24).

When we reflect upon our political traditions – indeed, the way in which we teach politics and law, we engage in a discourse (at least) partially informed by John Locke’s political philosophy. What we think constitutes ‘good governance’, as that which is professed as architecturally innate to any theorizing of democracy and liberalism, is also underscored by John Locke’s writings on political life, and very much informed by his concepts of property, ‘natural right’ and labour. It’s important we read Locke’s Treatises (and other works of classical liberalism, for that matter) with respect to the historical context in which these works were produced. Reading the text in its entirety requires more than just reading the text. Moreover, we mustn’t let ignorance overshadow injustice, or allow crude, vague utilitarian calculations of judgment overshadow law’s violence. Locke’s philosophy worked to entrench slavery as a politically justifiable practice, effectively extending property rights to a select few while encouraging the political legitimacy of race-based persecution. Teaching these texts without accounting for the racism and violence that envelops them is a dismissal of historical injustice. This is, therefore, a violence of ignorance that contradicts basic pedagogical principles. As educators, we’re supposed to kick open doors, not dim the lights. Bernasconi, Mann, Mills, Davies, Duncan and Losurdo have done all the work. It’s up to us to implement the work in reference and performance. Education shouldn’t be comfortable. When has radical pedagogy ever satisfied complacency?

Works Cited

— Bernasconi, Robert and Mann, Anika Maaza. “The Contradictions of Racism: Locke, Slavery and the Two Treatises,” Race and Racism in Modern Philosophy, (2005): 89–103
— Mills, Charles. “Racial Liberalism,” The Modern Language Association of America (2008): 1380–1397
— Davies, K.G. the Royal African Company. New York: Athenaeum, 1970.
— Locke, John. Two Treatises of Government. Cambridge: Cambridge University Press, 1690.
— Losurdo, Domenico. Liberalism: A Counter-History. Trans: Gregory Elliot. New York: Verso, 2011.
— Pagden, Anthony. Lords of All the World: Ideologies of Empire in Spain, Britain and
France. Yale University Press, 1998.
— Wallace, David Duncan. The History of South Carolina. New York: American Historical Society, 1924.
— Article 101, “The Fundamental Constitutions of Carolina,” in North Carolina Charters and Constitutions, 1578–1698, ed. Mattie Erma Edwards Parker. Raleigh, NC: Carolina Charter Tercentenary Commission, 1963.

Connor O’Callaghan is a PhD candidate in Social and Political Thought, York University.

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  2 comments for “Concerning a Critical Legal Pedagogy: Exposing Race-Thinking in Political Canon

  1. Marco van Heugten
    7 December 2015 at 8:23 am

    FYI U.S. Commercial Space Launch Competitiveness Act, 11/25/2015 Became Public Law https://www.congress.gov/bill/114th-congress/house-bill/2262

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