Introduction to the Federal Judiciary

The Nature of Judging

Why Judging is Part of Governing

The American political tradition traces in part to ancient political theory, but even more to social contract theory popularized by writers such as Thomas Hobbes and John Locke.  Indeed, Locke has been referred to as “America’s philosopher.”    A brief overview of Lockean theory from the Second Treatise of Civil Government, particularly as that theory focuses on judging, provides a foundation for exploring some of the challenges facing the development of the federal judiciary in the United States.

Locke’s Thesis on Judging

According to Locke, human beings are not naturally social animals.  Their decision to live in society with one another, and to adopt rules for their governance, is understood by reference to what Locke calls a “state of nature.”   In a state of nature, there is no civil society and no organized government.   Rather, individuals live on their own, in a state of freedom and equality.  Further, Locke argued,

The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions. . .

Because everyone is free and equal in the state of nature, everyone has the right to determine whether others have violated the law of nature and to punish those who do.  In Locke’s words, “every man hath a right to punish the offender, and be executioner of the law of nature.”  In the state of nature, there is no “common superior” to act as judge.