The notion that people governed by an oppressive government have a right to overthrow it has been widely endorsed. There are debates about what the parameters are - the nature and the extent of the oppression and the availability of other means. And in the west, there haven't been a great many recent internal struggles against governments. There was the Cuban revolution in the fifties, and before that the Mexican civil war in the teens. But the coming of Nazi power in Germany in the thirties wasn't a complete shrugging off of the then-current government, and the Spanish civil war of the same decade resulted in the establishment, not the defeat, of an oppressive government. In fact, nowadays active internal resistance to the incoming governments of Hitler and Franco is applauded in retrospect.
The principle is famously advocated in Thomas Jefferson's words in the American declaration of independence, written in 1776. "Whenever any Form of Government becomes destructive of these ends [securing of the rights to life, liberty, and the pursuit of happiness], it is the Right of the People to alter or to abolish it."
That echoes John Locke's Second Treatise of Government, which was written in the late 1660s but not published until 1689. "There remains still in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them; for all power given with trust for the attaining of an end being limited to that end, whenever that end is manifestly neglected or opposed, the trust must necessarily be forfeited, and the power devolve into the hands of those that gave it, who may place it anew where they shall think best for their safety and security. And thus the community perpetually retains a supreme power of saving themselves from the attempts and designs of any body, even of their legislators."
I see at least two points of agreement in Locke and Jefferson. First, the possible legitimate grounds for resisting a government seem quite wide. Jefferson speaks in terms of a government's failure sufficiently to secure people's rights to life, liberty, and the pursuit of happiness. Locke, similarly, refers to "an end" being "neglected or opposed." Second, both writers think in terms of people retaining a right over their government, so that the social contract establishing a government isn't so much a relinquishing of rights as a prudent exercise of them.
In both cases their analysis runs broadly against what we find in the early giant of social contract theory, Thomas Hobbes. In Leviathan, published in 1651, Hobbes characterizes the social contract as requiring "that a man be willing, when others are so too ... to lay down this right to all things." It's not really quite this simple, but Hobbes tends to see nothing provisional about the giving up of rights that attends the social contract. Second, and related, what the contractors do retain appears to be very limited - "a man cannot lay down the right of resisting them that assault him by force, to take away his life ... [and] the same may be said of wounds, and chains, and imprisonment." Subjects thus retain only a very modest residual right against their government. "The obligation of subjects to the sovereign is understood to last as long [as], and no longer [than,] the power lasteth by which he is able to protect them. For the right men have by nature to protect themselves, when none else can protect them, can by no covenant be relinquished."
Hobbes's views comported with his royalist position in the English civil war, and he fled England for the continent with the ascent of Cromwell and his parliamentarian forces in the middle 1640s.
Parliamentarians, of course, took very different views about people's residual rights against a sovereign. John Milton characterized the relation between people and government with a curiously suggestive analogy. In his pamphlet The Tenure of Kings and Magistrates, published in 1649 just after the execution of the king, Milton says that the power of kings and magistrates "is only derivative, transferred, and committed to them in trust from the people to the common good of them all, in whom the power yet remains fundamentally." In what I quoted earlier from Locke, the term "trust" is clearly used in the sense of confidence - trust is "reposed," and it may be "forfeited." In Milton it is not clear that the term is used in that nontechnical way. In fact, if we read it as an allusion to a legal trust relationship, we find a very interesting analogy.
The mechanism of a trust originated in England during the crusades. A departing crusader might convey title to his property to someone else to look after in his absence - to use the property for the benefit of the crusader's dependants, and to convey it either back to the crusader upon his return, or to the crusader's heirs in the event the crusader did not return. A returned crusader often found, however, that the trustee would refuse to return the property. Courts usually held that the property belonged to the titleholder, that is, the trustee. Crusaders took to petitioning the king, who usually left it to his Lord Chancellor to decide. The Lord Chancellor typically held that it was "inequitable" for the property not to be returned. And over time the principle became institutionalized. At common law, the trustee was the owner of the trust property. He had title and could therefore do as he liked - mortgage the property, sell it, reinvest or distribute profits, and so on. In order to call him to account, to obtain an equitable result, beneficiaries were obliged to resort to the Court of Chancery.
The analogy with sovereignty is charming. A sovereign is ordinarily entitled - he is the trustee, with title at common law, we might say - to be obeyed. Sovereignty wouldn't be sovereignty without something like that. A disgruntled citizen can't expect a court to countenance exceptions to his obligation to obey the law. Where inequities are foreseeable, of course, they can be fortified against in the law itself - killing someone may be permitted, for instance, if it is a case of self-defence. And where inequities aren't foreseen, common-law judges are sometimes obliged to allow that the law operates inequitably but must be followed nonetheless. Generally speaking, then, the law must be obeyed. If it becomes too oppressive for people to bear, they go about achieving equity by rebelling against it. But that resort is to something outside "the common law." The residual right of the people may be a legitimate remedy, but it is of a different order. The sovereign is the ordinary authority, the residual right of the people the extraordinary remedy. That the English institution of a trust should be so suggestive for English political theory really is splendid.
Textually, I have to admit, the case for seeing this analogy in Milton is tenuous. Except tangentially, he wasn't a political philosopher. Some scholars have tried to show that he was legally quite sophisticated, but the evidence is mainly circumstantial. He often used legal terminology, even in his poetry. He served in Cromwell's government. He was familiar with Justinian, and he met Grotius and admired him. More generally, some acquaintance with law was usual for educated men in those days. All in all, it seems probable that Milton had the wherewithal to formulate the analogy, but it isn't certain. What is more to the point is that Hobbes would have had it ready to hand. He had studied and thought about law carefully - witness A Dialogue Between a Philosopher and a Student of the Common Laws of England. He made extensive and critical use of Sir Edward Coke's Institutes of the Lawes of England, the collection of treatises widely used by law students until they were supplanted by Blackstone's Commentaries on the Laws of England in the eighteenth century. [It is an interesting sidelight that Thomas Jefferson found Blackstone too much a tory, and wished that American students would return to Coke.] He was keen on problems connected with political authority, and especially with the precise location of that authority. Anyone with such a significant interest in law and its neighbours must have been acquainted, at least in outline, with the legal peculiarity of trusts. Why didn't Hobbes make something of it?
I think Hobbes might dispute the analogy in a couple of different ways. Appeal from sovereignty to the people is a drastic, once-for-all course, whereas appeal from common law to equity is not. Hobbes certainly didn't think - and neither does anyone else - that people in civil societies could be justified in regularly resorting to residual rights outside the jurisdiction of the sovereign. Even Jefferson and Locke were cautious about it. "Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes," says the Declaration. "Accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed." This again recapitulates Locke: "Such revolutions happen not upon every little mismanagement in public affairs. Great mistakes in the ruling part, many wrong and inconvenient laws, and all the slips of human frailty, will be borne by the people without mutiny or murmur." Trust beneficiaries, by contrast, really faced no risks in turning to Chancery, and they often did so. And as we noted earlier, Hobbes's account of residual rights is extremely thin by comparison; justifiable resort to such rights will be rare.
Moreover, although Chancery stood outside the common law, it didn't stand outside civil institutions in general. Petitioning the king, although not usual, was an accepted civil mechanism. From that perspective, the common law itself was understood to be subject to limits - that was the way the country was constituted. The sovereign, for Hobbes, held a very different position. The sovereign stood at the very beginning of law, and couldn't be part of a system in which there were understood limits to sovereign power. "That he which is made sovereign maketh no covenant with his subjects beforehand is manifest," says Hobbes, and therefore the sovereign cannot not be understood to be amenable to being appealed against. "The opinion that any monarch receiveth his power by covenant, that is to say, on condition, proceedeth from want of understanding this easy truth, that covenants, being but words and breath, have no force to oblige ... but what it has from the public sword." Before there is a sovereign, thinks Hobbes, there can be no reliable civil organization whatever; establishing a sovereign is the very first step.
None of that shows that the analogy couldn't be maintained, but it isn't surprising that Hobbes himself didn't use it. Hobbes really wanted to do something stronger than what Locke and Jefferson were after, or than what Milton, incidentally, thought was necessary. All three of the latter recognized robust rights and duties extant in the state of nature, and they thought of civil arrangements as exercises of natural rights and duties. Hobbes, on the other hand, believed that rights and duties were all derived directly from the social contract, and he therefore could not see the drawing up of that contract itself as the exercise of anything but prudence - and as an exercise, moreover, that committed to a permanent subordination of prudence to civil obligations. The sole exception is that one may fall back on prudence when the social contract fails to provide very basic protections.
I think the neo-Hobbesian philosophers of the late twentieth century were true to the historical Hobbes in this respect; they wanted to derive ethical principles from prudence, morals from rationality. It does look like that's what Hobbes was trying to do. We might say that Hobbes and his followers were trying to derive "ought" from "is." But that derivation cannot but pull some prudence - the rights that contractors cannot relinquish - into civil society. Put differently, it is always possible to object to Hobbes-type derivations that the contract involves the exercise of prudence, not its abandonment. It continues to be available as a fall-back; it never becomes a different kind of authority from what was already there; and thus, the analogy with a trust is imperfect.
Milton, Locke and Jefferson, on the other hand, did not try to derive "ought" from "is," and that has its own consequences for the analogy. They thought rights and duties existed in advance of any contract, and were preserved into it. But if that's so, then it's hard to see how any appeal back to original rights could be an appeal to a different sort of authority, and the trust analogy is imperfect here as well. If there is already an "ought" in the state of nature, then of course it need not be derived; but the price is a homogeneity of obligation in or out of civil society.
Still, the analogy to a trust does represent an ideal that is common to both sides. The normal functioning of the sovereign in civil society does have strong claims on citizens - the common law does and should normally prevail. But when it fails to produce equity - more inclusively defined for Milton, Locke and Jefferson, and less inclusively for Hobbes - a resort to extraordinary means is permitted. And sovereigns, just like other trustees, do well not to behave so as to invite such a resort.
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