Determining which moral principles should guide political action is a vexing question in political theory. This is especially true when faced with the "toleration paradox": believing that something is morally wrong but also believing that it is wrong to suppress it. In this book, Alex Tuckness argues that John Locke's potential contribution to this debate--what Tuckness terms the "legislative point of view"--has long been obscured by overemphasis on his doctrine of consent. Building on a line of reasoning Locke made explicit in his later writings on religious toleration, Tuckness explores the idea that we should act politically only on those moral principles that a reasonable legislator would endorse; someone, that is, who would avoid enacting measures that could be self-defeating when applied by fallible human beings.
Tuckness argues that the legislative point of view has implications that go far beyond the question of religious toleration. Locke suggests an approach to political justification that is a provocative alternative to the utilitarian, contractualist, and perfectionist approaches dominating contemporary liberalism. The legislative point of view is relevant to our thinking about many types of disputed principles, Tuckness writes. He examines claims of moral wrong, invocations of the public good, and contested political roles with emphasis on the roles of legislators and judges. This book is must reading not only for students and scholars of Locke but all those interested in liberalism, toleration, and constitutional theory.
"The clarity of the writing and the seriousness with which it entertains objections make this a model of fair-minded and thorough scholarship... [Readers] should come away from Tuckness's broad and generous reading of Locke with an enhanced understanding of the potential of Locke's legislative metaphor to shed light on contemporary issues of morality and politics."--Andrew Murphy, Review of Politics
ACKNOWLEDGMENTS xi ABBREVIATED REFERENCES xiii Introduction 1 PART I The Legislative Point of View and the Ends of Government 15 CHAPTER 1 Contested Laws and Principles 17 Contested Principles and the Legislative Point of View 25 The Analogy between Laws and Moral Principles 31 CHAPTER 2 Contested Principles and the Legislative Point of View 36 Rule-Utilitarianism and Contested Principles 36 Locke, Proast, and Contested Principles 39 The Secular Analogue of the Lockean Argument 46 Two Illustrations 51 CHAPTER 3 Legislative Consent and the Public Good 57 Problems with Contractual Consent 66 Locke's Legislative Consent and the Public Good 74 CHAPTER 4 Beyond Neutrality and Perfectionism 85 Two Liberal Approaches 85 Rawls and Reasonable Agreement 88 Raz and Human Well-Being 101 Beyond Neutrality and Perfectionism 110 PART II The Legislative Point of View and Constitutional Roles 115 CHAPTER 5 Institutional Roles and the Legislative Point of View 117 Locke on Legislative and Executive Powers 121 Locke and the Missing Judicial Power 127 Judges as Legislators: Functions versus Institutions 132 Implications for Contested Roles 135 CHAPTER 6 Contested Roles, Interpretation, and the Framer's Point of View 137 Contested Jurisdiction and the "Framer's Point of View" 140 Contested Constitutional Jurisdiction in the United States 143 Dworkin and the Legislative Point of View 147 Originalism and the Nature of Law and Legislation 159 Boerne v. Flores 166 Contested Roles and the State of Nature 172 Conclusion 174 APPENDIX I Textual Support for the Legislative Point of View 179 APPENDIX 2 Locke's Theory of Consent and the Ends of Government 181 BIBLIOGRAPHY 191 COURT CASES CITED 199 INDEX 201