Leslie Kendrick

The Lockean Rights of Bequest and Inheritance

PUBLISHER
Legal Theory
DATE
2011
 

Abstract

Lawyers and philosophers have misunderstood the rights of bequest and inheritance within Locke’s theory of property. While lawyers assume these are unqualified natural rights, philosophers find Locke’s account of them so inadequate as to cast their existence into serious doubt. But on Locke’s theory, the rights of bequest and inheritance are neither absolute nor incoherent. Locke treats inheritance as a form of imputed bequest, whereby natural law imputes to the intestate an intention to leave his goods to his closest family members. Both bequest and inheritance find their justification in the prerogatives of owners to dispose of their property. These prerogatives are not without limit, however. The needs of a decedent’s dependents trump specific bequests, and both bequest and inheritance are subject to the duty of charity. Bequest and inheritance thus order the relative claims of owners and others so that they are consistent with Locke’s more general theory of property.

Citation

Leslie Kendrick, The Lockean Rights of Bequest and Inheritance, 17 Legal Theory 145-169 (2011).
 

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