Right of revolution

In political philosophy, the right of revolution is the right or duty of the people of a nation to overthrow a government that acts against their common interests and/or threatens the safety of the people without probable cause. Stated throughout history in one form or another, the belief in this right has been used to justify various revolutions, including the English Civil War, the American Revolution and the French Revolution.

History

Early precedent

To justify their overthrowing of the earlier Shang Dynasty, the kings of the Zhou Dynasty (1122 – 256 BC) of China promulgated the concept known as the Mandate of Heaven, that Heaven would bless the authority of a just ruler, but would be displeased and withdraw its mandate from a despotic ruler.[1]

The Mandate of Heaven would then transfer to those who would rule best. Chinese historians interpreted a successful revolt as evidence that the Mandate of Heaven had passed on. Throughout Chinese history, rebels who opposed the ruling dynasty made the claim that the Mandate of Heaven had passed, giving them the right to revolt. Ruling dynasties were often uncomfortable with this, and the writings of the Confucian philosopher Mencius (372 – 289 BC) were often suppressed for declaring that the people have the right to overthrow a ruler that did not provide for their needs.

Europe

The Magna Carta marks one of the earliest attempts to limit a sovereign's authority and it is seen as a symbol of the rule of law.

In Europe, one example of the emergence of a right of revolution can be traced back to Þorgnýr the Lawspeaker, who in 1018 had a dramatic confrontation with the King of Sweden. The lawspeaker claimed the King of Sweden was accountable to the people and would be overthrown by them if he continued with his unpopular war with Norway. Another example is Magna Carta, an English charter issued in 1215, that required the King to renounce certain rights and accept that his will could be bound by the law. It included a "security clause" that gave the right to a committee of barons to overrule the will of the King through force if needed. Magna Carta directly influenced the development of parliamentary democracy and many constitutional documents, such as the United States Constitution.[2]

The Golden Bull of 1222 was a golden bull, or edict, issued by King Andrew II of Hungary. The law established the rights of Hungary's noblemen, including the right to disobey the King when he acted contrary to law (jus resistendi). The Golden Bull is often compared to the Magna Carta; the Bull was the first constitutional document of the nation of Hungary, while the Magna Carta was the first constitutional charter of the nation of England.

Thomas Aquinas also wrote of the right to resist tyrannical rule in the Summa Theologica. John of Salisbury advocated direct revolutionary assassination of unethical tyrannical rulers in his Policraticus. This theological notion was expanded in the Early Modern Period. The Jesuits, especially Robert Bellarmine and Juan de Mariana, were widely known and often feared for advocating resistance to tyranny and often tyrannicide—one of the implications of the natural law focus of the School of Salamanca.

John Calvin believed something similar. In a commentary on the Book of Daniel, he observed that contemporary monarchs pretend to reign “by the grace of God,” but the pretense was “a mere cheat” so that they could “reign without control.” He believed that “Earthly princes depose themselves while they rise up against God,” so “it behooves us to spit upon their heads than to obey them.” When ordinary citizens are confronted with tyranny, he wrote, ordinary citizens have to suffer it. But magistrates have the duty to “curb the tyranny of kings,” as had the Tribunes in ancient Rome, the Ephori in Sparta, and the Demarchs in ancient Athens. That Calvin could support a right of resistance in theory did not mean that he thought such resistance prudent in all circumstances. At least publicly, he disagreed with the Scottish Calvinist John Knox’s call for revolution against the Catholic Queen Mary I Tudor of England.[3]

The Catholic Church shared Calvin's prudential concerns - the Pope condemned Guy Fawkes' Gunpowder Plot, and Regnans in Excelsis was widely considered to be a mistake. Instead, the safest course of action for the people was to endure tyranny for as long as it could be borne, rather than run the larger risks of armed revolution.

The right of revolution was expounded by the Monarchomachs in the context of the French Wars of Religion, and by Huguenots thinkers who legitimized tyrannicides.

Modern development

Two Treatises of Government, written by John Locke, developed the idea of 'right of revolution'. This notion was used as a basis for the Glorious Revolution of 1688.

The concept of the right of revolution was developed at the beginning of the Enlightenment era in the work Two Treatises of Government. Written by the philosopher John Locke, the right to revolution formed an integral part of his social contract theory, in which he tried to define the origins and basis for social conditions and relationships. Locke declared that under natural law, all people have the right to life, liberty, and estate; under the social contract, the people could instigate a revolution against the government when it acted against the interests of citizens, to replace the government with one that served the interests of citizens. In some cases, Locke deemed revolution an obligation. The right of revolution thus essentially acted as a safeguard against tyranny.

Locke affirmed an explicit right to revolution in Two Treatises of Government: “whenever the Legislators endeavor to take away, and destroy the Property of the People, or to reduce them to Slavery under Arbitrary Power, they put themselves into a state of War with the People, who are thereupon absolved from any farther Obedience, and are left to the common Refuge, which God hath provided for all Men, against Force and Violence. Whensoever therefore the Legislative shall transgress this fundamental Rule of Society; and either by Ambition, Fear, Folly or Corruption, endeavor to grasp themselves, or put into the hands of any other an Absolute Power over the Lives, Liberties, and Estates of the People; By this breach of Trust they forfeit the Power, the People had put into their hands, for quite contrary ends, and it devolves to the People, who have a Right to resume their original Liberty.”[4]

Use in history

Revolutionary movements subsequent to this, all drew on Locke's theory as a justification for the exercise of the right of revolution.

During the Glorious Revolution of 1688, the Parliament of England effectively deposed James II of England and replaced him with William III of Orange-Nassau, due to the former's unacceptable leanings towards absolutism and Catholicism. Although Locke's treatise was published the year after, his ideas were already widely current in the English political system at the time.

The storming of the Bastille on 14 July 1789 has come to symbolize the French Revolution, when a people rose up to exercise their right of revolution.

Although Locke claimed that his book's purpose was to justify William III's ascension to the throne, it has been argued that the bulk of the writing was instead completed between 1679–1680 during the Exclusion Crisis, which attempted to prevent James II from ever taking the throne in the first place. Anthony Ashley-Cooper, 1st Earl of Shaftesbury, Locke's mentor, patron and friend, introduced the bill, but it was ultimately unsuccessful.[5] Alternatively, the work is better associated with the revolutionary conspiracies that swirled around what would come to be known as the Rye House Plot.[6]

The right to revolution played a large part in the writings of the American revolutionaries in the run up to the American Revolution. The political tract Common Sense used the concept as an argument for rejection of the British Monarchy and separation from the British Empire, as opposed to merely self-government within it. It was also cited in the Declaration of Independence of the United States, when a group of representatives from the various states signed a declaration of independence citing charges against King George III. As the American Declaration of Independence in 1776 expressed it, natural law taught that the people were “endowed by their Creator with certain unalienable Rights” and could alter or abolish government “destructive” of those rights.

The right of revolution was also included in the 1793 preface to the French Constitution of 1793 during the French Revolution. This preface from 24 June 1793 contained a declaration of the rights of man and citizen including right to rebellion in §35: "When the government violates the rights of the people, insurrection is for the people, and for every portion thereof, the most sacred of rights and the most indispensable of duties."[7]

Nature of the right

Individual or collective right

Although some explanations of the right of revolution leave open the possibility of its exercise as an individual right, it was clearly understood to be a collective right under English constitutional and political theory.[8]

As Pauline Maier has noted in her study From Resistance to Revolution, “private individuals were forbidden to take force against their rulers either for malice or because of private injuries....”[9] Instead, “not just a few individuals, but the ‘Body of the People’ had to feel concerned” before the right of revolution was justified and with most writers speaking of a “ ‘whole people who are the Publick,’ or the body of the people acting in their ‘public Authority,’ indicating a broad consensus involving all ranks of society.”[10]

Right versus duty

Some philosophers argue that it is not only the right of a people to overthrow an oppressive government but also their duty to do so. Howard Evans Kiefer opines, "It seems to me that the duty to rebel is much more understandable than that right to rebel, because the right to rebellion ruins the order of power, whereas the duty to rebel goes beyond and breaks it."[11]

Morton White writes of the American revolutionaries, "The notion that they had a duty to rebel is extremely important to stress, for it shows that they thought they were complying with the commands of natural law and of nature's God when they threw off absolute despotism."[12] The U.S. Declaration of Independence states that "when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government" (emphasis added). The phrase "long train of abuses" is a reference to John Locke's similar statement in Second Treatise of Government, where he explicitly established overthrow of a tyrant as an obligation. Martin Luther King likewise held that it is the duty of the people to resist unjust laws.

Preconditions

The presentation of the draft of the Declaration of Independence in Trumbull's Declaration of Independence depicts another idealization of the exercise of the right of revolution.

Some theories of the right of revolution imposed significant preconditions on its exercise, limiting its invocation to the most dire circumstances. In the American Revolutionary context, one finds expressions of the right of revolution both as subject to precondition and as unrestrained by conditions.

On the eve of the American Revolution, for example, Americans considered their plight to justify exercise of the right of revolution. Alexander Hamilton justified American resistance as an expression of “the law of nature” redressing violations of “the first principles of civil society” and invasions of “the rights of a whole people.”[13] For Thomas Jefferson the Declaration was the last-ditch effort of an oppressed people—the position in which many Americans saw themselves in 1776. Jefferson’s litany of colonial grievances was an effort to establish that Americans met their burden to exercise the natural law right of revolution.

Certain scholars, such as legal historian Christian Fritz, have written that with the end of the Revolution, Americans did not renounce the right of revolution. In fact they codified it in their new constitutions[14] and even today 35 constitutions of American states have the same or similar provisions on the right of revolution as in the preamble of the American Declaration of Independence.[15] For instance, constitutions considered to be "conservative," such as those of post-revolutionary Massachusetts in 1780, preserved the people's right "to reform, alter, or totally change" government not only for their protection or safety but also whenever their "prosperity and happiness reduire[d] it."[16] This expression was not unusual in the early American constitutions. Connecticut's 1818 constitution articulated the people's right "at all times" to alter government "in such a manner as they may think expedient."[17]

Fritz, in American Sovereigns: The People and America's Constitutional Tradition Before the Civil War, describes a duality in American views on preconditions to the right of revolution: "Some of the first state constitutions included 'alter or abolish' provisions that mirrored the traditional right of revolution" in that they required dire preconditions to its exercise.[18] Maryland's 1776 constitution and New Hampshire's 1784 constitutions required the perversion of the ends of government and the endangering of public liberty and that all other means of redress were to no avail.[19] But in contrast, other states dispensed with the onerous preconditions on the exercise of the right. In the 1776 Virginia constitution the right would arise simply if government was "inadequate" and Pennsylvania's 1776 constitution required only that the people considered a change to be "most conducive" to the public welfare.[20]

Natural law or positive law

Descriptions of the Right of Revolution also differ in whether that right is considered to be a natural law (a law whose content is set by nature and that therefore has validity everywhere) or positive law (law enacted or adopted by proper authority for governing of the state).

An example of the dual nature of the right of revolution as both a natural law and as positive law is found in the American revolutionary context. Although the American Declaration of Independence invoked the natural law right of revolution, natural law was not the sole justification for American independence. English constitutional doctrine also supported the colonists’ actions, at least up to a point. By the 1760s, English law recognized what William Blackstone’s Commentaries on the Laws of England called “the law of redress against public oppression.”[21] Like the natural law’s right of revolution, this constitutional law of redress justified the people resisting the sovereign. This law of redress arose from a contract between the people and the king to preserve the public welfare. This original contract was “a central dogma in English and British constitutional law” since “time immemorial.”[22] The Declaration’s long list of grievances declared that this bargain had been breached.[23]

This well-accepted law of redress justified a people resisting unconstitutional acts of government. Liberty depended upon the people’s “ultimate” right to resist. Unconstitutional commands breaching the “voluntary compact between the rulers and the ruled” could be “ignored” and arbitrary commands opposed with force.[24] This right implied a duty on the part of the people to resist unconstitutional acts. As Alexander Hamilton noted in 1775, government exercised powers to protect “the absolute rights” of the people and government forfeited those powers and the people could reclaim them if government breached this constitutional contract.[25]

The law of redress had limits like the right of revolution under natural law. The law of redress, like the right of revolution, was not an individual right. It belonged to the community as a whole, as one of the parties to the original constitutional contract.[26] It was not a means of first resort, or response to trivial or casual errors of government.[27] Blackstone’s Commentaries suggested that using the law of redress would be “extraordinary,” for example applying if the king broke the original contract, violated “the fundamental laws,” or abandoned the kingdom.[28] During the Stamp Act crisis of the 1760s the Massachusetts Provincial Congress considered resistance to the king justified if freedom came under attack from “the hand of oppression” and “the merciless feet of tyranny.”[29] A decade later the “indictment” of George III in the Declaration of Independence sought to end his sovereign reign over the colonies because he violated the original constitutional contract.[30]

As explained in legal historian Christian Fritz’s description of the role of the right of revolution in American Revolution, American independence was justified by conventional theories under Anglo-American constitutional thought at the time about the people’s collective right to cast off an arbitrary king. “Both natural law and English constitutional doctrine gave the colonists a right to revolt against the sovereign’s oppression.”[31] But these understandings about the right of revolution on the eve of the American Revolution rested on a traditional model of government. That model posited the existence of a hypothetical bargain struck in the mists of antiquity between a king and a people. “In this bargain, the people were protected by the monarch in exchange for the people giving the king allegiance. This was a contractual relationship. American revolutionaries accused George III of breaching his implied duty of protection under that contract, thereby releasing the people in the colonies from their allegiance. The sovereign’s breach of the hypothetical contract gave rise to the subjects’ right of revolution”—grounded on both natural law and English constitutional doctrine.”[32]

Examples as positive law

Although many declarations of independence seek legitimacy by appealing to the right of revolution, far fewer constitutions mention this right or guarantee this right to citizens because of the destabilizing effect such a guarantee would likely produce. Among the examples of an articulation of a right of revolution as positive law include:

Relevance in positive law

Some have argued that because in modern times democratic governments can be overthrown by popular vote, the right of the people to remove the government has become embedded into the political system. In a study of the idea of rule by the people in the American Revolution and in early post-revolutionary America, legal historian Christian G. Fritz writes:

“The constitutional logic of recognizing the people, not a king, as the sovereign implied the irrelevance of a right of revolution in America. This did not develop instantly or uniformly after the establishment of American governments. Some of the first state constitutions included ‘alter or abolish’ provisions that mirrored the traditional right of revolution.... Other state constitutions adopted different versions of this right to ‘alter or abolish’ government that did not sound like the traditional right of revolution. In these provisions, the ability of the people to revise constitutions existed regardless of the traditional preconditions for the right of revolution.... Increasingly, as Americans included it in their constitutions, the right of revolution came to be seen as a constitutional principle permitting the people as the sovereign to control government and revise their constitutions without limit. In this way, the right broke loose from its traditional moorings of resistance to oppression. The alter or abolish provisions could now be interpreted consistent with the constitutional principle that in America, the sovereign was the people.”[44]

However, the Arab Spring is clear evidence that revolutions are still happening, which raises the importance of the right of revolution in 21st century. As terrorism is gaining recognition as a crime under international law, the right of revolution is seen as an instrument to distinguish terrorists from freedom fighters.[45] At present, however, international law, as practiced by states does not make any distinction and does not even grant a right of rebellion, let alone revolution even against the most serious violations, which is unsatisfactory at least to the extent that a right to forcibly resist against genocide, crimes against humanity and war crimes on a massive scale should be recognized.[46]

See also

References

  1. ↑ Perry, Elizabeth. [2002] (2002). Challenging the Mandate of Heaven: Social Protest and State Power in China. Sharpe. ISBN 0-7656-0444-2
  2. ↑ Ralph V. Turner. Magna Carta. Pearson Education. (2003). ISBN 0-582-43826-8 p.1
  3. ↑ Dave Kopel: The Calvinist Connection, Liberty magazine, October 2008, pp. 27-31
  4. ↑ Powell, Jim (01. August 1996): John Locke: Natural Rights to Life, Liberty, and Property. In: The Freemann. Publisher: The Foundation for Economic Education, Irvington, New York, USA.
  5. ↑ Laslett, Peter. "Introduction." Two Treatises of Government. Cambridge: Cambridge University Press (1988), 59-61.
  6. ↑ Ashcraft, Revolutionary Politics.
  7. ↑ "Readings from the French Revolution - Chapter 13: Preface to the Constitution of 1793". Columbia University. Columbia University. p. 135. Retrieved 11 December 2013.
  8. ↑ See Christian G. Fritz, American Sovereigns: The People and America’s Constitutional Tradition Before the Civil War (Cambridge Univ. Press, 2008), 14 (noting that under English constitutional law the right of revolution “belonged to the community as a whole, as one of the parties to the original constitutional contract”). See also John Phillip Reid, Constitutional History of the American Revolution (4 vols., University of Wisconsin Press, 1986-1993), I:111 (identifying the collective right of the people “to preserve their rights by force and even rebellion against constituted authority”), III:427n31 (quoting Viscount Bolingbroke that the “collective Body of the People” had the right to “break the Bargain between the King and the Nation”).
  9. ↑ Pauline Maier, From Resistance to Revolution: Colonial Radicals and the Development of American Opposition to Britain, 1765-1776 (Alfred A. Knopf, 1972), 33.
  10. ↑ Maier, From Resistance to Revolution, 35-36.
  11. ↑ "Ethics and Social Justice". Retrieved 30 June 2015.
  12. ↑ "Prophetic Tradition and Radical Rhetoric in America". Retrieved 30 June 2015.
  13. ↑ Alexander Hamilton, The Farmer Refuted, [Feb. 23], 1775, The Papers of Alexander Hamilton, I:136
  14. ↑ See Christian G. Fritz, American Sovereigns: The People and America's Constitutional Tradition Before the Civil War'' (In Chapter 2, entitled "Revolutionary Constitutionalism," Professor Fritz notes that after the Revolution, "[i]ncreasingly, as Americans included it in their constitutions, the right of revolution came to be seen as a constitutional principle permitting the people as the sovereign to control government and revise their constitutions without limit.")(Cambridge University Press, 2008) at p. 25 [ISBN 978-0-521-88188-3
  15. ↑ See Marsavelski, A. The Crime of Terrorism and the Right of Revolution in International Law'', Connecticut Journal of International Law, Vol. 28, at p. 270
  16. ↑ Massachusetts 1780 Constitution, Bill of Rights, Art. 7.
  17. ↑ Connecticut 1818 Constitution, Bill of Rights, Sec. 2.
  18. ↑ Christian G. Fritz, American Sovereigns: The People and America’s Constitutional Tradition Before the Civil War (Cambridge Univ. Press, 2008), 24.
  19. ↑ See Maryland 1776 Constitution, Bill of Rights, Sec. 4; New Hampshire 1784 Constitution, Bill of Rights, Art. 10.
  20. ↑ Virginia 1776 Constitution, Bill of Rights, Sec. 3; Pennsylvania 1776 Constitution, Bill of Rights, Sec. 5.
  21. ↑ William Blackstone, Commentaries on the Laws of England (4 vols., Oxford, 1765-1769, Facsimile ed., repr., 1979), I:238.
  22. ↑ John Phillip Reid, “The Irrelevance of the Declaration,” in Hendrik Hartog, ed., Law in the American Revolution and the Revolution in the Law (1981), 72.
  23. ↑ New Jersey 1776 Constitution, Preamble in Francis Newton Thorpe, ed., The Federal and State Constitutions Colonial Charters, and Other Organic Laws of the ... United States of America, V:2594 (noting that the King breached his contract with the people).
  24. ↑ John Phillip Reid, Constitutional History of the American Revolution (4 vols., 1986-1993), III:140.
  25. ↑ Alexander Hamilton, “The Farmer Refuted,” [Feb. 23], 1775, The Papers of Alexander Hamilton, I:88.
  26. ↑ See Reid, Constitutional History, I:111 (identifying the collective right of the people “to preserve their rights by force and even rebellion against constituted authority”), III:427n31 (quoting Viscount Bolingbroke that the “collective Body of the People” had the right to “break the Bargain between the King and the Nation”); Pauline Maier, From Resistance to Revolution: Colonial Radicals and the Development of American Opposition to Britain, 1765-1776, 33-34 (“Private individuals were forbidden to take force against their rulers either for malice or because of private injuries, even if no redress for their grievances were afforded by the regularly constituted government”).
  27. ↑ Some commentators endorsed the right of resistance if Parliament “jeopardized the constitution,” but most identified the need for oppression and tyranny before its exercise. See Reid, Constitutional History, III:121, 427n31; Maier, Resistance, 33-35.
  28. ↑ Blackstone, Commentaries, I:243 and 238.
  29. ↑ Reid, Constitutional History, I:112
  30. ↑ Reid, “Irrelevance of the Declaration,” 84.
  31. ↑ Fritz, American Sovereigns, 14.
  32. ↑ Fritz, American Sovereigns, 13.
  33. ↑ "NH.gov - The Official Web Site of New Hampshire State Government - State Constitution, Bill of Rights". Retrieved 30 June 2015.
  34. ↑ Constitution of the Commonwealth of Kentucky
  35. ↑ Constitution of the Commonwealth of Pennsylvania
  36. ↑ Constitution of the State of Tennessee
  37. ↑ Randy Barnett, The Rights Retained by the People, The History and Meaning of the Ninth Amendment, George Mason University Press, 1989), p. 364
  38. ↑ The Texas Constitution
  39. 1 2 3 4 "Preface to the Constitution of 1793 (Declaration of the Rights of Man and the Citizen)" (PDF). National Assembly of France. college.columbia.edu. Archived from the original (PDF) on February 27, 2014. Retrieved 5 November 2012.
  40. ↑ Basic Law for the Federal Republic of Germany (English translation; PDF)
  41. ↑ The official English language translation of the Greek Constitution as of May 27, 2008 on the website of Hellenic Parliament
  42. ↑ English translation of the Charter of Fundamental Rights and Freedoms on the website of the Constitutional Court of the Czech Republic
  43. ↑ Universal Declaration of Human Rights, United Nations website.
  44. ↑ Fritz, American Sovereigns, 24-25.
  45. ↑ See Aleksandar Marsavelski, The Crime of Terrorism and the Right of Revolution in International Law'' (In Chapter II.A.4., entitled "Criteria for the Use of Revolutionary Force" Marsavelski notes that there are certain limits to the right of revolution, guided by four principles: (1) principle of democracy, (2) principle of proportionality, (3) principle of just cause, and (4) principle of distinction), (Connecticut Journal of International law, Vol. 28) at pp. 278-275.
  46. ↑ See Jan Arno Hessbruegge, Human Rights and Personal Self-Defense in International Law, Oxford University Press (2017), Ch. 7, https://books.google.it/books/about/Human_Rights_and_Personal_Self_Defense_i.html?id=_6muDQAAQBAJ&redir_esc=y
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