John Locke and Samuel Rutherford on the Distance between Paternal Care and Fiduciary Trust

The purpose of this paper is to link Locke’s use of “fiduciary trust” to the early seventeenth century debates about the limits of Charles I’s sovereignty. Specifically, this paper points to a striking congruence between Locke and Samuel Rutherford’s Lex Rex (1644). Anticipating similar formulations in the Second Treatise, Rutherford argues that unlike domestic relationships, which are governed by natural paternal affections (care), sovereign authority is unnatural and artificial. In stark contrast to prominent royalist positions of that day, Rutherford argues that fathers do not have the right to kill their sons and wives, specifically linking the source and limit of their authority to natural love and affection. This distinction sharply distinguishes paternal authority from fiduciary trust. The former is governed by the natural law and is derived from the implicit or psychic trust that emerges between those in loving relationships; the latter is a product of positive law and is built on a presumption of distrust. Locke builds on these arguments, particularly with regard to conjugal society. While co-parents will typically be bound together by care and affection, the risk of the husband’s neglect or overreach required that formal trust-mechanisms be put in place to assure the rights of the child (and wife) were not infringed. Like paternal authority, Locke’s conjugal society is another example of why political authority cannot be predicated on care.