The Right to Resistance and Dissent

Divine right: no right of resistance; at most passive obedience, refusing to perform and accepting the punishment.

Hobbes: none, beyond the untransferable right to defend one's own life.

Locke: yes, and this is the classical warrant. When the trust is broken the power reverts to the people, who may resume it. Locke's own limits are important: only after a long train of abuses making the design visible, and the ruler who breaks the trust is the true rebel.

Rousseau: the question does not arise in the same form, because the sovereign is the people; resistance against the general will is incoherent, and what a citizen may resist is a government that has usurped the sovereign's place.

Prescription: strongly against, since resistance unsettles what time has settled.

Marx: the question is transformed, because there was never a duty to breach.

The conditions writers place on it

No serious writer says one may resist whenever one disagrees. The standard conditions recur across all five men in the chapters that follow, and an answer that lists them is a strong answer.

1. The injustice must be grave, not merely a disagreement about policy.
2. Lawful means must have been tried and have failed. This is the condition that does most work in a constitutional state.
3. There must be a reasonable prospect of success, or the harm caused is gratuitous.
4. The response must be proportionate.
5. It should be public, because a secret breach cannot persuade anybody.
6. It should be non-violent, on the moral argument and equally on the practical one, that violence hands the government the justification it needs.
7. The penalty should be accepted, which distinguishes the disobedient from the criminal.

Notice that conditions 5, 6 and 7 belong to civil disobedience specifically. Locke's right of resistance, and Mandela's decision at topic 2.3.2, do not accept all three, and that is precisely what makes those cases hard.

The five men, and where each sits

This is the map the next five chapters fill in.

T. H. Green is the theorist. He asks whether there can be a right of resistance at all when the state is founded on will rather than force, and answers carefully: obedience is owed to the state because it maintains the conditions of a moral life, so resistance is justified where the sovereign's command attacks those conditions, and the citizen must consider the effect on the whole social fabric.

Harold Laski is the theorist of the conditional obligation. Obedience depends on the state achieving its purpose, and we are the judges of that achievement. Where power is exercised for ends incompatible with the state's nature, he speaks of the duty of resistance rather than the right.

M. K. Gandhi is the practitioner who built a technique. Obedience to an unjust law is itself a form of participation in the injustice, and the remedy is satyagraha: refuse, and accept the penalty.

Martin Luther King Jr is the practitioner who supplied the clearest test for identifying an unjust law and the clearest defence of breaking it while professing the highest respect for law.

Nelson Mandela is the case that tests every rule, because he began with non-violence, concluded that it had failed, and turned to sabotage, and then defended the decision in a court of the state he was resisting.

The Indian revolutionaries, whom MU has examined

The syllabus names five men and none of them is an Indian revolutionary, but MU has set a question on Bhagat Singh and asked how his strategies differed from Gandhi's. The comparison belongs here because it is the same axis the five chapters run along.

What he did. Bhagat Singh and B. K. Dutt threw two low intensity bombs and leaflets into the Central Legislative Assembly on 8 April 1929, in protest against the Public Safety Bill and the Trade Disputes Bill, and did not attempt to escape. The bombs were designed to make noise rather than casualties, and the leaflet's purpose was that the deaf should be made to hear. In prison he and his companions went on a long hunger strike over the treatment of Indian political prisoners as against European ones, and he used the trial itself as a platform.

What is shared with Gandhi. The willingness to be arrested rather than to escape; the acceptance of the penalty, including death; the use of the prison and the courtroom as places to make the argument; and the object of arousing a public rather than seizing power by force.

What is different, and it is the whole point of the comparison.

Where each sits on this chapter's scale. Gandhi's is civil disobedience in its strictest form. Bhagat Singh's is nearer the revolutionary end of the four things kept apart above, since he did not accept the legitimacy of the colonial state at all and did not confine himself to non-violent means. Both are distinguished from ordinary crime by the openness of the act, the acceptance of the penalty and the public reason given for it.

An answer should not turn this into a verdict on which man was right. What it should show is that resistance is a spectrum, from Green's carefully limited justification through Gandhi's and King's disciplined non-violence to Mandela's sabotage and Bhagat Singh's revolutionary action, and that the tests set out above are what locate any given act on it.

A worked example

A city bans all public meetings in its central area for six months by an executive order made under a general power, giving no reasons.

Dissent. Newspaper articles, petitions, a debate in the legislature, and a writ petition challenging the order. Nothing unlawful, and in India nothing that requires any justification at all: it is a fundamental right.

Conscientious refusal. A police officer resigns rather than enforce it. Personal, and not aimed at persuading anybody.

Civil disobedience. Two hundred people assemble in the central area, announcing the time and place in advance, sit peacefully, and allow themselves to be arrested without resistance. They break the order, publicly, without violence, and take the consequences.

Revolution. A group attempts to seize the municipal building and depose the administration.

Now apply the conditions to the third. Is the injustice grave? A blanket six month ban on assembly, with no reasons, in the central area of a city, is a serious restriction on a fundamental right. Were lawful means tried? If the writ petition is pending and listed for hearing next week, condition 2 is not satisfied and the case for disobedience is weak. If the petition has been pending for four months without a hearing while the ban runs out its term, condition 2 is satisfied and the case is much stronger.

That last contrast is the practical heart of this topic in a constitutional country: the strength of the case for disobedience varies inversely with the availability of an effective legal remedy, and it is the effectiveness rather than the formal existence of the remedy that matters.

Distinctions that carry marks

What the right of resistance is NOT

It is not a right to disobey any law you dislike. Every writer imposes conditions, and the conditions are most of the doctrine.

It is not the same as a legal right. No constitution confers a right to break its own laws. The right of resistance is a moral claim, and the Indian Constitution's answer to it is to supply lawful routes instead: fundamental rights, judicial review, and periodic elections.

Civil disobedience is not violence in slow motion. Its whole force depends on non-violence and on acceptance of the penalty.

Dissent is not resistance at all, and calling lawful criticism resistance both flatters it and endangers it.

Quick revision

1. Four things: dissent (lawful), conscientious refusal (personal), civil disobedience (public, non-violent, conscientious, penalty accepted), revolution (rejects the system).
2. The key line: civil disobedience breaks a law and accepts the system; revolution rejects the system.
3. Where the right comes from: Locke is the classical warrant, on breach of the trust, after a long train of abuses. Divine right and Hobbes deny it; prescription is against it; Marx transforms the question.
4. Seven conditions: grave injustice; lawful means exhausted; reasonable prospect of success; proportionality; publicity; non-violence; acceptance of the penalty.
5. The five men: Green the theorist of moral conditions, Laski of conditional obligation and the duty to resist, Gandhi the builder of a technique, King the clearest test of an unjust law, Mandela the hardest case.
6. In India dissent is a fundamental right under article 19, and the strength of any case for disobedience varies inversely with the effectiveness of the available remedy.

Test yourself

1. Distinguish dissent, civil disobedience and revolution. Dissent opposes by lawful means and breaks no law: speech, writing, assembly, petition, voting and litigation, all of which are protected in India by article 19. Civil disobedience is a public, non-violent, conscientious breach of law aimed at changing a law or policy, in which the disobedient accepts the legal consequences, and that acceptance shows they still accept the legal order as a whole. Revolution attacks the regime itself, usually by force, and rejects the system rather than one part of it.

2. State the four features of civil disobedience and say what each is doing. It is public, because a secret breach cannot persuade anybody and persuasion is its object. It is non-violent, both because violence destroys the moral advantage the technique depends on and because it hands the government the justification it wants. It is conscientious rather than self interested, so it is distinguished from ordinary crime by its motive. And the penalty is accepted, which is the feature that shows the disobedient rejects one law while continuing to accept the authority of the legal order.

3. What conditions do writers place on the right of resistance? That the injustice be grave rather than a policy disagreement; that lawful means have been tried and failed; that there be a reasonable prospect of success, since otherwise the harm is gratuitous; that the response be proportionate; that it be public; that it be non-violent; and that the penalty be accepted. The last three belong specifically to civil disobedience, and Locke's right of resistance and Mandela's turn to sabotage do not satisfy all of them, which is what makes those cases difficult.

4. Which theory of obligation supplies the classical warrant for resistance, and on what terms? Locke's. Because the community entrusts power to a government as a fiduciary rather than granting it by contract, a government that acts against the purpose of the trust loses the power, which reverts to the people, who may resume it and establish a new one. Locke's terms are strict: resistance is justified only after a long train of abuses making the design visible, and he insists that the person properly called a rebel is the ruler who broke the trust and thereby returned to a state of war.

5. How does the availability of a legal remedy affect the case for disobedience? It weakens it in proportion to the remedy's effectiveness. Where a challenge can be filed and heard promptly, the second condition, that lawful means be exhausted, is not satisfied and the case for breaking the law is poor. Where the remedy exists only formally, so that a petition remains unheard while the impugned measure runs its full course, the condition is satisfied and the case becomes much stronger. What matters is the effectiveness of the remedy and not its existence on paper, which is why the same conduct can be indefensible in one system and defensible in another.