Locke and Irresistible Governments
Abstract: This paper argues that Locke is theoretically committed to the view that governments have a duty to refrain from becoming irresistible. A government is irresistible in the intended sense if and only if it is practically impossible for its people to successfully defend their natural rights against its attempts to invade those rights. This paper argues that this view is a consequence of his political theory. It advances two arguments for this conclusion. Firstly, it argues that the government has a duty to prevent tyranny that is analogous to its duty to protect its people from foreign invasions. Since Locke argues that the ‘best fence’ against the illegitimate use of force by those who are in power is the people’s ability to resist the state, he is committed to the claim that the government has at least a pro tanto duty to not become irresistible. Secondly, the paper contends that the right to resist is not waivable. Since the people could not have agreed to allow the government to become irresistible when they enter civil society, the government must lack the right to become irresistible. (word count: 185)
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Locke’s doctrine of resistance was of central importance to his Second Treatise of Government. In this essay, I will consider Locke’s theoretical commitments toward irresistible governments. A government is irresistible in the intended sense if and only if it is practically impossible for its people to successfully defend their natural rights against its attempts to invade those rights. For successful resistance to be practically impossible is for the probability of success to be so negligible and the practical cost so high that it is never rational to try to resist. This issue has important implications in the contemporary world, where we have seen the rise of mass surveillance and lethal autonomous weapons. It is conceivable and perhaps even probable that some states may become irresistible in the near future. Many of us are inclined to believe that there is something intrinsically wrong with being made completely dependent on a government’s continued goodwill. Part of the project of this essay is to vindicate these anti-irresistibility intuitions in Lockean terms and to show why a government’s irresistibility constitutes a violation of the government’s duties.
My thesis is that Locke is theoretically committed to the view that governments have a duty to not become irresistible. This is not a claim about what Locke actually thought, since the texture evidence of him explicitly endorsing this view is at best ambiguous (indeed, I think that the relevant passages should be interpreted as endorsing a different claim, as I will explain in the following paragraph). Nonetheless, I wish to argue that one is committed to accept my thesis if one accepts Locke’s views as presented in the Second Treatise.
Locke makes it abundantly clear in the Second Treatise that he opposes both political absolutism and tyrannical governments, but it is important to clarify that irresistible governments need not be absolutist nor tyrannical in the Lockean sense. It will be instructive for our purposes to expand on this point briefly. To start with political absolutism, Locke uses the term ‘absolute power’ ambiguously, sometimes using it to mean physical control (II, 17; I will pick up on this point in section 2), and sometimes using it to mean moral right (II, 23). Nonetheless, when Locke argues that no government can wield ‘absolute, arbitrary power’ over its people (II, 135–7), it is clear that he means to argue that no government can legitimately acquire absolute, arbitrary moral rights over its people (Simmons, 2014; p. 51–2). He does not explicitly argue that governments may not possess irresistible force. Nor does the argument in the relevant passages obviously imply that it is impermissible for a government to become irresistible, since the lack of absolute, arbitrary moral rights does not imply the lack of a right to have the mere ability to compel people in an absolute, arbitrary manner; it only implies that this ability cannot be rightfully exercised. Therefore, if an irresistible government does not actually attempt to exercise absolute, arbitrary power, it faces no obvious objections from Locke’s argument against despotism.
On the other hand, tyranny is akin to ‘mass slavery’; a tyrannical government subdues its people to ‘the arbitrary and irregular commands of those that have power’ beyond the limits of standing laws (II, 201–202). This crucially involves the actual ‘exercise of power beyond right’, rather than just the capacity to abuse power (II, 199). An irresistible government, however, may exercise no arbitrary power. It can act in complete accordance with both natural and positive laws. Irresistible governments, therefore, need not be tyrannical. As a consequence, Locke held that no tyrannies can be legitimate. However, whether irresistible governments can be legitimate is much less obvious. Locke’s opposition to absolutism and tyranny do not, therefore, straightforwardly support my thesis.
This essay advances two arguments in favour of my thesis. In section 1, I argue that the government has an active duty to maintain its resistibility. The government has a duty to prevent tyranny just as it has a duty to protect its citizens from foreign enemies. Further, Locke states that the ‘best fence’ against the illegitimate use of force by those in power is by ensuring that the people have the ability to successfully provide ‘for their safety a-new, by a new legislative’ (II, 226), which implies an ability to resist successfully. The duty to prevent tyranny, then, provides the government with a pro tanto reason to refrain from becoming irresistible. In section 2, I present an argument derived from the Lockean theory of rights. It is argued that the Lockean right to resist is a not right that individuals are at liberty to waive. However, citizens effectively lose the right to resist when the government becomes irresistible, because the Lockean duty of self-preservation, as well as our duties toward others, make exercises of the right to resist always impermissible when the probability of success is too low. Since the people could not have agreed to allow the government to become irresistible when they enter civil society, the government must lack the right to become irresistible. In section 3, I consider the possibility that measures which make the government irresistible are compensated by benefits in security. It leads me to argue that the conclusion from section 2 needs to be somewhat qualified.
1. Preventing Wars
In Locke’s view, ‘the first and fundamental natural law, which is to govern even the legislative itself, is the preservation of the society’ (II, 134). Since the duty to preserve society obliges the government to ‘prevent… foreign injuries, and secure the community from inroads and invasion’ (II, 131), the government is required to act pre-emptively before the appearance of any threats of foreign invasion. For example, it may have a duty to maintain a standing army that is capable of deterring foreign invasions even during peacetime, for it would be too late to raise an effective army only after there is a threat of war.
An interesting consequence of Locke’s political philosophy is that foreign enemies are morally analogous to domestic tyrants, since both would enter into a ‘state of war’ with a people on account of their attempts to invade people’s natural rights by force. While foreign enemies typically violate the right to life, domestic tyrants transgress against people’s right to liberty by subjecting them to ‘the inconstant, uncertain, unknown, arbitrary will of another man’ (II, 22). Locke did not fail to recognize this analogy between foreign enemies and lawless magistrates. He writes: ‘That subjects or foreigners, attempting by force on the properties of any people, may be resisted with force, is agreed on all hands. But that magistrates, doing the same thing, may be resisted, hath of late been denied’; moreover, he adds that the offense of the magistrates is ‘greater’ than that of subjects or foreigners, because in breaking the law they also break the trust put into their hands (II, 231).
If domestic tyrants are morally analogous to foreign enemies, and the government has a duty to pre-emptively protect the people from foreign enemies, then the government must also have a duty to protect the people from domestic tyranny by parity of reasoning.
What can a government do now to secure the community from the threat of domestic tyranny in the future? According to Locke, ‘this doctrine of a power in the people of providing for their safety a-new, by a new legislative, when their legislators have acted contrary to their trust, by invading their property, is the best fence against rebellion, and the probablest means to hinder it’ (II, 226; emphasis mine). Note that, by rebellion, he is referring to the illegitimate use of force by those who are in power (the legislators), rather than the just resistance by the people. A straightforward interpretation of the quote is that Locke thinks that the best way to prevent tyrannies is by ensuring that the people have a power, or ability, to establish a new legislative when the current legislators act contrary to their trust. Coupled with the government’s duty to secure the community from the threat of future tyranny, Locke seems committed to say that government has at least a pro tanto duty to ensure that people have the ability to resist.
One may interpret the above quote in a different way by putting more emphasis on the word ‘doctrine’. The resulting interpretation states that the best fence against tyranny is the open acknowledgment of Locke’s doctrine that people have a right to resist and establish a new legislative (Simmons, 2014, p. 166). On Simmons’ view, ‘Locke means that preaching his doctrine will make the people less slow to resist than they would otherwise be’, which will, in turn, deter those in power from becoming tyrannical (ibid). Such an interpretation appears to free Locke from any commitment on whether people should actually have the ability to resist successfully, undermining the previous argument. However, as Simmons acknowledged, such an interpretation would be inconsistent with Locke’s defence of his doctrine of resistance elsewhere (p. 166). Locke tried to reassure his opponents by arguing that his doctrine is not likely to ‘lays a ferment for frequent rebellion’ (II, 244). He first contends that people are slow and averse to change and would not revolt except when there is ‘a long train of abuses, prevarications, and artifices’ (II, 223, 225, 230). Secondly, he also argued that when people are ‘generally ill treated’, they ‘will be ready upon any occasion to ease themselves of a burden that sits heavy upon them’ (II, 224). Taken together, it means that people won’t revolt unless there is persistent injustice; and when there is persistent injustice, people will revolt anyway, regardless of what doctrine is openly acknowledged. His point seems to be precisely that open acknowledgment of his doctrine will not have a significant effect on people’s likelihood of revolting. If so, Locke is committed to say that preaching his doctrine won’t have a deterrence effect on the government. Then, the mere open acknowledgment of Locke’s doctrine could not be the ‘best fence against rebellion’. Therefore, the interpretation from the preceding paragraph seems more charitable. Moreover, even if Simmons is right, the argument must presuppose that the government is not irresistible. This is because, if the government was irresistible, then we cannot expect making people ‘less slow to resist than they would otherwise be’ to have a deterrence effect on the government. Therefore, on either interpretation, the ‘best fence against rebellion’ by those in power requires that people stand a chance to resist the government successfully.
If the argument from the analogy with war is cogent, then the government has at least a pro tanto duty to ensure that people have the ability to resist. Being pro tanto, it can be outweighed by countervailing duties. For example, measures that make a government irresistible, such as mass surveillance, may be effective tools for preventing foreign invasions. This argument also rests fundamentally on empirical claims. If it turns out that the ability to resist is not an effective deterrent against tyranny, then the argument is unsound. The next section advances another Lockean argument against irresistibility that does not rely on empirical premises. Instead, it seeks to show that the Lockean theory of rights entails a duty against making the government irresistible.
2. Argument from the Right to Resist
The argument from the right to resist proceeds as follows. First, if a government is irresistible, then people lose their right to resist. Second, no government can have the right to deprive its people of their right to resist, since it is not a right that individuals have the power to give. Thirdly, governments have a duty to refrain from exercising a power without right. If these premises are true, then the conclusion that governments have a duty to refrain from becoming irresistible follows. In this section, I will bracket the potential security benefits of making the government irresistible. This possibility will be picked up in section 3.
My argument for the first premise is essentially that the duty of self-preservation precludes Locke from granting individuals a liberty-right to resist an irresistible government. Locke is committed to the position that there is a ‘fundamental, sacred, and unalterable law of self-preservation’ (II, 149). He repeats the claim that we lack the power to destroy or endanger our own lives in numerous passages (II, 23, 135, 149, 168). According to some interpretations, Locke believed in an inalienable (non-waivable and non-transferrable) right to life (McConnell, 1984). Other scholars, in contrast, ascribes to Locke the less demanding view that ‘you do not have absolute, arbitrary power over your own life’ (Grant, 2010, p. 132). Simmons (2014) echoes Grant’s position, arguing that ‘our duty to preserve our own lives… must be understood to be only a duty not to endanger our lives arbitrarily or frivolously’ (p. 116). We have this duty of self-preservation because individuals hold the right to life in trust from God (Simmons, 1994, p. 260–64; 2014, p. 116); we are ultimately God’s property, and we are not at liberty to destroy it except for a noble purpose such as to protect God’s property in humanity as a whole.
Consistent with the less demanding view, Locke does seem to acknowledge an exception to the duty of self-preservation, when self-sacrifice is called for by ‘some nobler use’ of one’s person (II, 6). For example, Locke makes clear that, upon entering a social compact, individuals agree to ‘engage his natural force… to assist the executive power of the society’ and ‘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’ (II, 130). The most direct application of this agreement is people’s liability to being called upon to join a war for the preservation of the society, even if they will be ‘almost sure to perish’, and that it is ‘justly death to disobey’ (II, 139; also see 131).
However, taking up arms against an irresistible government against which one is in a state of war does not fall under this exception, because resisting an irresistible government is to endanger one’s own life with, ex hypothesi, no reasonable chance of success (in ending the threat to one’s life or freedom). If no good can come out of endangering one’s life, then the ‘fundamental, sacred, and unalterable law of self-preservation’ must enter into force (II, 149), and one must be forbidden from doing that which endangers one’s life. We must therefore lack a liberty-right to resist an irresistible tyrannical government.
Additionally, resisting an irresistible tyranny may be impermissible due to our obligation to not create unnecessary mischief to our fellow citizens. According to Locke, ‘he that appeals to heaven must be sure he has right on his side; and a right too that is worth the trouble and cost of the appeal’ (II, 176) (by ‘appeals to heaven’, Locke means armed resistance (II, 21)). He also stresses that the person who engages in armed resistance will be judged by God ‘according to the mischiefs he hath created to his fellow subjects’ (II, 176). Taking Locke at face value, the right to resist seems to be conditional on the cost to one’s ‘follow subjects’ not being disproportionately high (Simmons, 2014, p. 189–191; Dunn, 1982, p. 178–179; Richards, 1989, p. 98). Since armed resistance against an irresistible tyranny is likely to incur social costs that cannot be compensated by any potential benefits, it is difficult to see how it can be worth the trouble and cost. Therefore, taking Locke’s claim at face value seems to imply that citizens lack a right to resist an irresistible government.
According to the arguments from the preceding paragraphs, our right to resist is overridden by our duties toward ourselves and others if resistance has only a negligible chance of success. In other words, there is a feasibility constraint on our right to resist. Consistent with this interpretation of Locke, Locke takes care to ascribe ‘a liberty to appeal to heaven’ to anyone who ‘is deprived of their right’ only when they ‘judge the cause of sufficient moment’ in the second treatise (II, 168; see also 21, 242). Although Locke does not make explicit what criteria one should use in judging whether a cause has ‘sufficient moment’, it seems to be best interpreted as a mixture of prudential and other-regarding considerations, weighed against the feasibility of defending one’s rights. Because this feasibility constraint is always violated under an irresistible government, we effectively lack a right to resist such a government. This is so whether or not the irresistible government is tyrannical.
Turning to the second premise, no government can have the right to enact measures to deprive the people of its right to resist. To Locke, all rights that a government has over individuals derive from the rights that individuals have in a state of nature (II, 171). However, individuals lack the right to render themselves defenseless, and ‘nobody can give more power [rights] than he has himself’ (II, 23). Locke states that ‘the community perpetually retains a supreme power of saving themselves from the attempts and designs of any body, even of their legislators, whenever they shall be so foolish, or so wicked, as to lay and carry on designs against the liberties and properties of the subject’ (emphasis mine; II, 149). This is because, Locke explains, our obligation to protect our lives and liberty further implies an obligation to not surrender the means of self-defence (II, 149). This is an application of Locke’s general principle that ‘a right to the end… implies a right to the means’ (Morgan, 1982, p. 68; see also II, 17, 25). The irresistible state might respect people’s rights now, but its will could change at any time. It has the ability to arbitrarily invade their rights, even if it does not in fact exercise the ability. The political community depends on the benevolent will of the irresistible government as the only source of security for its rightful claims. If we are not at liberty to surrender our own lives, we cannot consent to rid ourselves of the means to guarantee our safety.
I have argued that individuals lack the right to voluntarily make another person irresistible against themselves. However, this is logically compatible with the possibility that individuals have a liberty-right to make themselves irresistible against others in a state of nature. That is, it is possible that everyone is free to make themselves as irresistible as possible, but no one is free to make others irresistible in a state of nature. If this was the case, then the government could have acquired the right to make itself irresistible from the agents’ natural right to make themselves irresistible. Locke, however, is committed to reject such a right. In section 17 of the Second Treatise, Locke argues that attempts to acquire ‘absolute power’ over someone in a state of nature ought to be regarded as initiating a state of war and a threat to the person’s life (II, 17). As I’ve mentioned, ‘absolute power’, in this passage, should be interpreted as physical control or the ability to compel someone in an absolute manner. ‘Power’ could not mean moral right in this context because Locke is talking about a person who ‘attempts to get another man into his absolute power’. To attempt to acquire absolute moral rights over someone is a moral impossibility for Locke (except for prisoners of war) (Simmons, 2014; p. 52). It is not clear what would even count as an attempt to gain absolute moral rights over another, nor is it clear why it is ‘to be understood as a declaration of a design upon his life’ (II, 17). As absolute physical control seems to be the best alternative interpretation of ‘absolute power’, this is the interpretation that I will adopt. I take it that to make oneself irresistible implies an attempt to acquire absolute physical control. As Locke states that attempts to acquire ‘absolute power’ is tantamount to initiating a state of war, Locke is seemingly committed to the position that it is impermissible to intentionally make oneself irresistible against another person in a state of nature. Since we lack both the right to voluntarily make others and ourselves irresistible, and all government rights are transferred from individuals, the government cannot have the right to make itself irresistible.
Another argument in favor of the second premise is that, in becoming irresistible, the government does something that it is not entitled to do as a fiduciary. Upon entering civil society, individuals consent to conditionally waive or transfer part of the rights that they have in a state of nature (II, 131) and enter a fiduciary relationship with the government (II, 149). However, these rights must return to the people when the government is dissolved, since whenever the government transgresses against the natural laws or breaches the people’s trust, ‘they forfeit the power the people had put into their hands… and it devolves to the people, who have a right to resume their original liberty, and… provide for their own safety and security’ (II, 222; also see 149, 220). Part of the rights that must return to the people is the right to elect a new government, by taking up arms against the dissolved government if necessary (II, 226–232). However, making a government irresistible all but guarantees that the relevant rights would not return to the people once the terms of the trust have been breached, since people lack the liberty-right to resist the dissolved government if it is irresistible. No government can have the right to make this the case, since no fiduciary has the right to ensure that the entrusted rights are irrecoverably lost when the contract terminates; nor can the people grant the government such a right, since we are not at liberty to waive our right to resist, as we have seen in the preceding paragraph.
I’ve argued that to become irresistible is necessarily to exercise a power without right. The third premise is that governments have a duty to refrain from exercising a power without right. This is explicitly supported by Locke, since he makes it clear that the ‘exercise of power beyond right, which no body can have a right to’ (II, 199) constitutes tyranny. Therefore, the government has a duty to refrain from becoming irresistible.
3. Balance of Risks and Future Persons
As I said at the outset of the preceding section, I hold that the argument in the last section is cogent if we bracket the potential security benefits of making the government irresistible. However, when irresistibility does have security benefits, we need to balance the risks involved. Locke clearly allows individuals to risk their own rights if it protects them from greater dangers. As we have seen, individuals consent to the possibility of being called into war when consenting to join a political community. This does not violate their duty to self-preserve because entering a political community is a calculated risk; though it exposes us to risks, it frees us from the greater risks that are prevalent in a state of nature (II, 123; Grant, 1987, p. 132–3). Analogously, it seems similarly permissible or even advisable to consent to risk losing our ability to resist if it makes our rights more secure on the balance. Since the right to resist is an extension of our right to self-preservation, it is not surprising that we should be able to risk losing it for the promise of greater security.
The preceding argument is compelling, but it at most shows that it is permissible to deprive the ability to resist of those who have in fact consented to enter the political community on those terms. Further, for it to be permissible for the government to make itself irresistible, it must have good reasons to expect that it will bring about sufficient benefits in the preservation of people’s rights, since the government’s only legitimate end is to ‘preserve the members of that society in their lives, liberties, and possessions’ (II, 171).
However, unless a government is made only temporarily irresistible (a highly unlikely event, given our experience), making a government irresistible also deprives the ability to resist of all those who have not yet been born. Those who are not yet born could not have consented to lose their ability to resist the government for the potential benefits in security. Yet, in becoming (permanently) irresistible, the government causes future generations to lose their ability and right to resist. Since future persons have not yet consented to enter civil society, present members of civil societies are in the state of nature with regards to them (that is to say that their rights with respect to each other are given by the natural law), analogous to their relationship with foreigners (II, 9). As we have seen, individuals lack the right to attempt to acquire irresistible control over others in a state of nature (II, 17). By extension, the governments cannot have acquired the rights to knowingly ensure that it is irresistible against future persons. This suggests that even if governments could permissibly become irresistible, it is very difficult for them to do so without violating the rights of those who have not consented to their rule.
Let us take stock. In this essay, I have advanced two Lockean lines of arguments to the conclusion that the government has a duty to refrain from creating an irresistible government. The first argument seeks to show that the government has a pro tanto active duty to ensure that it is resistible. However, it relies on the empirical premise that an ability to resist the government deters tyranny. The second argument attempts to show that the government has a duty to refrain from becoming irresistible, since it would be an exercise of power without right. This argument is derived entirely from the Lockean theory of rights. However, the conclusion of the second argument must be qualified somewhat. The government lacks this duty just in case two conditions are fulfilled: 1. Every person whom the government is irresistible against has permissibly consented to lose or risk losing their ability; 2. the act of becoming irresistible itself must be done for the greater preservation of people’s rights.
If cogent, these arguments have applications in the contemporary world. To live under an irresistible government is to be exposed to a catastrophic risk: being subjected to an irresistible tyrannical government is considerably worse than being subjected to a resistible tyrannical government. The recent rising popularity of anti-democratic parties and movements around the world should leave us worried about the stability of political legitimacy. There is much at stake in the question of whether governments can become irresistible.
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 See II, 176, 181, 207, 226–227, 232.
 By‘properties’, Locke is referring to every right that a person possesses, including ‘their lives, liberties and estates’ (see II, 87, 123, 173).
 Although Locke often uses ‘power’ to mean moral right, he also uses it to mean something akin to ability in some places (II, 17).
 How to resolve the apparent tension between Locke’s claim that individuals consent to potentially join a war and his claim that individuals can never consent away their right to life is a major interpretive issue. For discussion, see Glenn (1984; p. 97–102) and Grant (1987; p. 131–134). I will proceed assuming that the duty to self-preserve is at least sometimes overridable. If my arguments are compatible with this view, it must a fortiori be compatible with the more demanding view.
 This constraint has also been observed by others (Rawls, 2008, p. 134–135; Grant, 2010, p. 167; Richards, 1989, p. 98).
 See Glenn (1984) for discussion on how the prohibition against suicide is indispensable for Locke’s justification for the right to resist.
 Similar Lockean arguments have been made for the right to bear arms (Amar & Hirsch, 1999, p. 47). I am hesitant to draw this conclusion, since the right to bear arms is neither sufficient nor necessary for the ability to resist.
 It is notable that Locke’s apparent reasoning for this claim does not seem very plausible. Contra what Locke seems to assume, the acquisition of control over a person may not be part of a plan to compel them by force, nor does it necessarily threaten their life. Nevertheless, the claim that it is impermissible to attempt to acquire absolute control over another person has some independent plausibility. To take an extreme scenario, imagine that a person points a gun to your head. You happen to know that the gunman does not plan to threaten you in any way, and you know that he is reliably nonviolent. Even so, you surely have a legitimate complaint against him.
 Many authors have in fact argued that the Lockean right to resist is inalienable (Grough, 1956, p. 38; Dworetz, 1989, p. 30; Grant, 2010, p. 172). If true, this strengthens my argument. However, as Simmons (2014) points out, it seems inaccurate to ascribe this view to Locke, since the right to resist seems to be at least temporarily alienated when the government is legitimately.