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Stuart Hopkins

Locke's Theory of Resistance

John Locke 1632-1704

Rubric: The liberalism of John Locke. Why should we obey the law? When is it permissible to resist the law?

Introduction

This essay focuses attention on the political philosophy of John Locke [1632 to 1704], set out by him at length in The Second Treatise of Government, originally published in 1689, but almost certainly written during late 1682 and early 1683 [1].

Locke assumes that people must have found it to be necessary to establish political societies when the concepts of meum and tuum first entered their vocabulary, and differences then began to arise within the body of the people concerning the question of ownership and distribution of material goods. He also assumed that we have the freedom, and thus the right, to dispose of, within the bounds of the laws of nature, those properties which are intrinsic to our personalities, and in particular our lives and liberties. There is a corresponding assumption that the fundamental justification of government lies in its capacity to preserve the natural rights of its citizens and, in particular, their untrammelled enjoyment of their lives, liberties and property.

In the Two Treatises of Government Locke not only vindicates the lawfulness of resistance, in the language of rights and natural rights, but goes on to locate the authority to resist with the body of the people even with 'any single man, if deprived of their right [2].

the basic claim is that any ruler who subverts the law, as a clearly defined legal authority, asserts and exercises both absolute and arbitrary power, or deliberate action for private ends. lawful action is that which is reasonable, based on consensus, and taken exclusively for the preservation of the public good. but the relation between positive law and the demands of the preservation of society, is no less ambiguous here than it is when Locke discusses legitimate political power, because there is no simple identity between law and right — that is between the positive law and the natural law [3].

in Locke's exposition law combined with the public good is repeatedly placed in opposition to coercive force and to private will or appetite [4]. Locke emphasises that tyranny includes any violation of right, but that there are some violations of the law that are not necessarily tyrannical. his thesis is that no positive law is valid unless it accords with the natural law. when legislative actions are taken to advance or enhance private interests, at the expense of the public good, then such action is referred to not as 'tyrannical law', but as an act of war [5].

a prerogative act, in accordance with this standard, can be seen to be lawful and rightful and can then be accorded equivalence. it is in this sense that prerogative powers are seen by Locke to be rightful or legitimate insofar as they derive from the natural law and depend upon the consent of the people [6]. Locke creates the impression that tyranny is most usually an executive phenomenon, and that it can be recognized as such due to its violation of the corpus of the positive or standing law. it is that law alone which authorises the use of government power, and at the same time defines the scope and extent of that power [7]. therefore, tyranny can be equated with illegality to the extent that the laws of society may be equated with the public good, and to that extent only.

for Locke tyranny and usurpation comprise all examples of the exercise of unlawful power, where the principles of legitimacy are grounded in preservation and consent, and where each principle if connected to a fundamental law [8]. but this is an over simplification, because the correspondence between usurpation and breaches of consent and the fundamental positive law, on one hand, and tyranny and breaches of preservation and the fundamental natural law, on the other, cannot be set out in such simple terms. we are able to recognize that, first, usurpation is not the only violation of fundamental law and, second, violations of the positive law are essentially violations of natural law as well [9].

no one person has the right to change the forms and the rules of government, established by the fundamental positive law, because to do so is an illegitimate expression of power which transcends right and is, therefore, by definition a form of tyranny, despite the fact that such a change might, in the most advantageous circumstances, prove to be conducive to good government, and in all other respects be similarly beneficial. it can be seen, therefore, that despite Locke's distinction between usurpation, and alteration to or interference with the constitution of government, the latter implies the former as well. it is possible that a usurper might not try to change the constitution of a government and, therefore, he could not be described, accurately, as a usurper. however, a successful attempt to modify a constitution could be classified correctly as usurpation, because to alter the forms, rules or conventions of a constitution is in effect to relocate this power in others, or in a single person, when it should be rightfully located in the laws of the community [10]. therefore, unauthorised and unlawful change to the constitution of government appears to have the effect of combining tyranny with usurpation described as a double evil.

other forms of usurpation or tyranny have the same effect, because they effectively change or modify the constitutive forms and rules of government. when the tyrant superimposes his will on the established laws of the community, or replaces them in part or in whole, then he intervenes illegitimately through laying claim, himself, to be the authorised legislator. in reality there is nothing, in this context, to differentiate the role of the tyrant from that of the usurper [11]. such action is illegitimate because the legislative is 'sacred and unalterable in the hands where the community have once placed it [12]. indeed, the forms and rules of an established government may not be changed either by society or by the approved governors [13].

when a society establishes a government through mutual agreement, then all of members of society are bound by duty to obey the authorized governors, because an agreement is not an agreement if its terms and conditions are fluid, and therefore subject to change at any time. the constitution of government may not be changed by the will of society and, for the same reason, the allegiance of the individual may not be dissolved at will, because that allegiance is based on the principle that consent, once freely given, is binding and cannot be retracted.

the legislators may not of their own volition change or amend the nature of the legislative power, because that power is a trust. the legislators do not own that power — they are not its proprietors — and therefore it is not theirs to give away. the legislators have been entrusted and authorized to make laws but they are not given the authority to create lawmaker's [14]. the authority of lawmaking is solely dependent on the consent of the people, and without that consent, and the authority that it entails, any laws enacted [illegitimately] cannot be binding.

if the established legislative were to be displaced, and replaced by a new and unauthorized legislative power, then this is synonymous with the unauthorized use of force, and hence a state of war would obtain, because such an act would effectively remove the only arbitrator the people are obligated to and are bound to obey. therefore, the first and fundamental positive law is equivalent to the natural law whose imperative demand is that society is to be preserved. the authority or legitimacy of the legislative is not merely dependent upon good government, because a competent or benevolent usurper who produces or establishes good government is not, on that account, a legitimate ruler. he is not a ruler who can thereby rightly demand the allegiance and obedience of those who are his temporary or permanent subjects. Locke is insistent that a judge with executive power is not sufficient to establish legitimate government, because the source of the authority of the judge is to be found only in the consent of men who are by nature free.

the bonds of obligation, firmly established through consent within political communities, can only be dissolved as a direct result of the various forms of illegitimate action discussed in this essay. we do not owe an obligation to those who seek to rule either without the consent of the people, or contrary to the public good. but this does not mean that action which lacks authority leads immediately and inevitable to the dissolution of the bonds of government, because Locke is not seeking to express perfection, or even excellence. he recognizes that a government that is less than perfectly just can be tolerated to a degree, and that trivial and inconsequential infringements of the constitution of government, or the positive law, should not lead to revolution and hence to immediate anarchy. those who violate the standards of legitimacy — conquerors, usurpers, and tyrants can, as a consequence of their actions, be justifiably resisted. but a practical theory of resistance needs to be constructed on firmer and more secure foundations than this thesis implies.

a theory of legitimate resistance is seen to necessitate the recognition of an essential difference between the dissolution of government and the dissolution of society. also, and importantly, nothing distinguishes the partial dissolution of government from its total dissolution, because government cannot be fragmented. both of these elements, it is argued, are encapsulated by Locke's theory; a theory especially applicable to those conflicts that were clearly evident in 17th century england, under a mixed constitution. Locke's constitutional theory embraces a mixed government in which the executive and legislative share power on an equal basis [15] , but neither the executive nor legislative is authorised to change the constitution from which they jointly derive their power and authority.

hence, parliament is not supreme and has no authority to implement constitutional change or reform, in response to abuses of executive power. instead, the partial dissolution of the authority of government results in its complete dissolution, and thus the people are released or freed from their obligation under the existing constitution. the people may then act to establish a new government. the dissolution of government is an essential prerequisite or prelude to the advent or occurrence of popular resistance, because if popular resistance is to occur without creating anarchy, then society itself must remain in tact.

at least in theory the right of resistance is located in the people, considered as a political entity, and each member of that entity has a continuing obligation to that political society. hence, the right of resistance is dependent upon the preservation and maintenance of society as a unit. if society is dissolved, or is no longer able to maintain itself as a cohesive unit, then the members of society are released from their obligations to it [16]. thus, the right to recourse against the abuse of government, by the executive or the legislative, and the possibilities for such recourse, are dependent upon the practical effects of those counteractions on society itself.

Locke clearly does no expect a polity to have a lengthy prospect of existence once its established government is dissolved and, hence, this represents a serious difficulty for his theory of resistance, because the very essence of legitimate government in civil society is to ensure or guarantee a continuity in the preservation of life, and the liberty and property of the people [17].

if we are to consider and determine who has the right to respond to abuses of power, and who is likely to be successful, then we must, at first, know the precise effects of conquest, usurpation and tyranny, on the bonds between government and society. Locke clearly states, with respect to the first of these three, that both government and society are destroyed simultaneously by conquest [18]. he does not differentiate between just and unjust conquest, because conquest automatically dissolves the defensive society, due to the destructive effects of war — despite who is right. whether a conqueror is just or unjust is irrelevant as far as Locke is concerned, because of his assertion that conquest effectively dissolves both society and its government simultaneously. when a society is no longer capable of defending the lives and property of its members, then that society is effectively dissolved and the people are at liberty to form or join a new society which may replicate the principal features of the original — ethnic, linguistic, cultural, religious — but which excludes the conqueror and his people.

Locke discusses the various forms of usurpation, and the various forms of tyranny under two different headings. the first is alteration of the legislative, and second breach of trust' [19] ; these are differentiated by the extent to which they give rise to the disaggregation of civil society [20]. according to Locke, both entail the dissolution of government, but it is only the first, and not the second, which entails the dissolution of society [21].

the government is effectively dissolved and society is also destroyed when the executive fails to discharge its duties — to execute the law — then the failure of government is plain and visible , were there is no longer a functioning legislative, and no one person who commands obedience [22]. the dissolution of society becomes self-evident when it loses its solidity and solidarity, when it ceases to function as an entity, and therefore fails to preserve the life and property of its members. in the absence of an established legislative, acting as the collective will of society, its authority to punish breaches of the peace also disappears [23].

the effective right of resistance cannot be guaranteed unless the people take pre-emptive action to dissolve the government, because the people are not permitted to alter the legislative within the constitution of government, because it is only when the government is dissolved that they are free to form another. dissolution of the government must, therefore, be a matter of right when usurpation, or tyranny, or subversion of the legislative are anticipated or predicted, or seen to be intended or designed, but not in fact actually implemented or achieved [24].

a society is dissolved when, as a result of alteration to the legislative it is unable to preserve its solidity and solidarity, as a distinct political entity; when it loses its ability to protect its members from violence against the depredations of the tyrant who has succeeded in establishing and consolidating his power; and the authority and legitimacy of government has been completely lost; if society is incapable of maintaining peace and order and therefore a state of war exists, then this is equivalent to conquest where the fact of defeat dissolves the obligations normally owed to society [25].

a government is effectively dissolved through breach of trust and, therefore, there is no obligation to obey the commands of those who have assumed power illegitimately. the laws or commands the government seek to put into effect, following the breach of trust, are by definition illegitimate, and can therefore be ignored with justification. but those legitimate laws, still extant, command obedience, and those who are duly authorised to enforce those laws rightly command respect. there is no justification or excuse for ignoring or breaking laws that were legitimately enacted prior to the breach of trust. those laws enacted by an accepted and authorised procedure continue to operate, while resistance to those in breach of trust is mounted and pursued. hence, society remains in existence even though the government has dissolved.

conclusion

We have seen that when the individual joins a political community or society, by his own freewill, then he enters into a form of contract which is a calculated risk, because he enters the contract with the expectation that it will prove to be to his benefit. If at a later date he finds that it is not to his benefit, then he is not free to change his mind as the contract is irrevocable, and keeping to the bargain he has made is seen as a moral obligation. It is clear that if one wishes to enjoy the benefits of the social life of the community, then one must be willing to make the necessary sacrifices, because combined with the concepts of reciprocity and equity there is also the notion that duties and obligations arise from the privileges and enjoyments of the common social life. When one chooses to accept the benefits, one is also obliged to accept the conditions associated with those benefits, because it is in exchange for the benefits of society that the individual surrenders a part of his natural liberty, to the extent that it is necessary to ensure the preservation of society.

Locke's theory of resistance does not depend on the 'legal fiction, of direct majority rule; indeed the theory of resistance derives from the right of society to institute a government which is authorised by the consent of the majority, which places legitimate obligations on all members of society, and which operates or functions for public good.

The principal purpose of this essay has been to identify and understand what the possibilities are for justifiable and successful resistance, and to determine the circumstances in which government and society dissolve. It is appropriate to emphasise here that there is no legitimate authority without consent, and that has been emphasised in the text of this essay.

The greatest threat to peace and harmony in society — leading to its disaggregation — is an illegitimate alteration of its legislative that leaves no recognizable authority. Resistance to illegitimate government action is meant to forestall this possibility. Where this resistance is too little or too late we need to determine the circumstances in which it is still justified, despite a lack of erstwhile vigilance, although we must expect that late and limited action may prove to be unsuccessful. It is the default of government that justifies resistance and, hence, legitimate resistance is dependent upon an accurate, timely and just assessment of government's actions.


Notes

[1] An excellent historical and contextual analysis is to be found in John Marshall's John Locke, Resistance, Religion and Responsibility, Cambridge 1994. The present essay principally draws on the text of Ruth W. Grant's John Locke's Liberalism, Chicago 1987, Chapter 3 Legitimate and Illegitimate Power: Practical Tests for the Normative Theory, pp. 99 to 155.

[2] Singer, 1978, pp. 328, 329, 338 & 347

[3] There is a conditional identification of tyranny with the violation of law: 'Where-ever Law ends Tyranny begins, if Law be transgressed to another's harm.' Locke recognizes the possibility of tyrannical laws IIT. 201, 202 221, 221, 222, but he also justifies prerogative power in recognition of its tendency to promote the public good.

[4] IIT. 206, 209, 226, 232

[5] IIT. 220

[6] IIT.159, 163, 164

[7] IIT.200,202

[8] 'The first and fundamental positive law of all Commonwealths, is the establishing of Legislative Power; as the first fundamental natural Law, which is to govern even the Legislative itself, is the preservation of the Society, and [as far as will consist with the publick good] of every person in it.' IIT. 134

[9] 'Usurpation is a change only of Persons, but not of Forms or Rules of Government: For if the Usurper extended his Power beyond what of Right belonged to the lawful Princes, or Governors of the Common-wealth, It is Tyranny added to Usurpation.' IIT. 197

[10] IIT. 212 — 223

[11] IIT. 212 — 217

[12] IIT. 134

[13] IIT. 134, 141, 149, 212, 227, 243

[14] IIT. 141

[15] IIT. 151

[16] IIT. 211

[17] '... he that will with clearness speak of the Dissolution of Government, ought, in the first place to distinguish between the Dissolution of the Society, and the Dissolution of Government.' IIT. 211

[18] IIT. 211

[19] IIT. 212-220 & IIT. 221-222

[20] They are also interconnected as Locke recognizes in, because changes in both forms and persons violate the ends of government as much as do the substantive policies of government that further the private interests and projects of the executive and the legislators. IIT. 239

[21] '... no one Man, or number of Men, amongst them, can have Authority of making Laws, that shall be binding on the rest. When any one, or more, shall take upon them to make Laws, whom the People have not appointed so to do, they make Laws without Authority, which the people are therefore not bound to obey...' I IIT. 212, 214, 216, & 217

[22] IIT. 214 & 219

[23] IIT.2 12, 220, 227

[24] '...and it [the legislative power] devolves to the People, who have a Right to resume their original liberty, and, by the Establishment of a new Legislative [such as they think fit] provide for their own Safety and Security, which is the end for which they are in Society.' IIT. 222

[25] IIT. 212, 227, & IIT. 20-21

[26] 'For being in a new State, wherein he is to enjoy many Conveniences, from the labour, assistance and society of others of the same Community, as well as protection from its whole strength; he is to part also with as much of his natural liberty in providing for himself, as the good, prosperity, and safety of the Society shall require: which is not only necessary, but just; since the other Members of the Society do the like.' (IIT. 130)


BIBLIOGRAPHY & SOURCES

Boucher, David Kelley, Paul The Social Contract from Hobbes to Rawls London 1994.

Grant, Ruth W John Locke's Liberalism Chicago 1987.

Locke, John (Ed. Mark Goldie) Two Treatises of Government London 1993

Marshall, John John Locke Resistance, Religion and Responsibility Cambridge 1994

Singer, Peter Democracy and Disobedience Oxford 1973.

Singer, Quentin The Foundations of Modern Political Thought Volume Two: The Age of Reformation Cambridge, 1978

Yolton, John W A Locke Dictionary Oxford 1993