DEPARTMENT OF LAW, UNIVERSITY OF JAFFNA

LL.B PROGRAMME – 2013

JURISPRUDENCE
ASSIGNMENT – II
REGISTRATION NUMBER: 2013/L/015.

Comments of the Examiner

.....................................................................................................................................
.....................................................................................................................................
.....................................................................................................................................
.....................................................................................................................................
.....................................................................................................................................
.....................................................................................................................................
.....................................................................................................................................
.......................................................................................................................………
…………….................................................................................................................
.....................................................................................................................................
.....................................................................................................................................
.....................................................................................................................................
.....................................................................................................................................

1
INTRODUCTION

State is a political organization of society which is created by the people for their protection and
peaceful life. The peoples voluntarily give their power to government under trust with the
expectation of that government will protect the human rights and act in the benefits of the people.
However, in certain circumstances government deviate from its responsibilities and started to act
arbitrarily against the interests and human rights of the people. In these circumstances the subjects
have the right to revolt against the state. However, there is a question of whether and when ordinary
people may permissibly rebel against the state through take up weapons. Therefore, this paper tries
to answer the above question based on the social contracterian views and human rights perspective.

SOCIAL CONTRACT AND REVOLUTION

Thomas Hobbes

Social Contract Theory examines the relationship between citizens and their government. The
fundamental notion of the Hobbes’ theory is that: “No man can be subjected to the principal power
of another without his consent”.1 He claimed that the aim and objective of every government is to
maintain peace and order of the people it governs. For Hobbes, the primary purpose of the
government is to maintain law and order in society so that law abiding citizens will be able to
engage themselves freely and unmolested in their respective endeavor.

Under the Hobbes’ theory every citizen of a country must be willing to give absolute unconditional
and uncompromising support to the existing government in place before he can be assured of the
security of his life and property.
Under his theory, once the sovereign has been endowed with power his rule is unquestioned.
Sovereign is above the law, and there is no mechanism for punishing him for misuse of power. For
Hobbes, a tyrannical sovereign is the fault of the people. Hobbes argues that the citizens cannot
revolt against the government because citizens gave unconditional support to the absolute
sovereign.

1
Locke J. Two Treaties of Government. Vol. 1 p.163-164.

2
John Locke

John Locke in his book Two Treaties of Government (1683) laid down a theory that man is not
under any obligation to obey unjust sovereigns. However, in his other books Two Tracts on
Government (1660) and Essay on Toleration (1667), he claimed that the subject should passively
or conditionally obey the sovereign, but should not absolutely accept their injustice.

Unlike Hobbes, Locke deals with the right of subjects to involve in revolution. He concerns with
the trust relationship (fiduciary relationship) between the sovereign and subjects. The sovereign is
the trustee while the subject is the beneficiary. There is a fiduciary relationship between the two
whereby each has to do its part for the relationship to work. The subject gives its security and
interest to the sovereign on presumption that the sovereign will act in the best interest of the
sovereign.

For Locke, if the sovereign acts in such a way that would negate public interest then the subject
have the power to take his destiny into his hands and overthrow the sovereign. According to Locke,
the purpose of the Government and law is to uphold and protect the natural rights of men. So long
as the Government fulfils this purpose, the laws given by it are valid and binding but, when it
ceases to fulfil it, then the laws would have no validity and the Government can be thrown out of
power. In Locke’s view, unlimited sovereignty is contrary to natural law.

J. J. Rousseau

Rousseau’s social contract differs from those of Hobbes and Locke in that, rather than a contract
between the people and their government, it is essentially a contract between the people and
themselves acting as the government.

A government that wants to exist must govern according to the common interest of those that
elected it. If not, the people have a common moral right to change that government into one that
would best represent their interest.

3
The essence of the Rousseau’s theory of general will is that State and Law were the product of
General will of the people. State and the laws are made by it and if the government and laws do
not conform to general will, they would be discarded.

His natural law theory is confined to the freedom and liberty of the individual. For him, State, law,
sovereignty, general will, etc. are interchangeable terms. Rousseau’s theory inspired French and
American revolutions and given impetus to nationalism. He based his theory of social contract on
the principle of “Man is born free, but everywhere he is in chains”.

Thus, according to the social contract theory of Locke and Rousseau, peoples can involve in
revolutionary actions against the ‘oppressive’, ‘tyrannical’, or ‘unjust’ State. However they don’t
explain whether peoples have the right to use arms as an extreme level of revolution.

Other than social cotracterians, Hans Kelsen (a positivist) argues that a successful revolution
(through armed uprising or not and, whether that revolution is legitimate or not) will change the
grundnorm and the national legal order of a State, and will construct a new grundnorm with the
popular support of the people.

4
REVOLUTIONARY ACTIONS AGAINST STATE

Several terms are used to denote extra-constitutional rejection of an existing government’s

authority which can be covered by both non-violent and violent revolutions. Nonviolent
revolutions means peoples show their resistance to state through civil disobedience. For example,
Satyagraha by Gandhiji against British rulers.

Violent revolutions are the extreme level of people’s resistance against the tyrannical state in which
subjects oppose the government by taking support of arms and ammunitions.

EXAMPLES FOR VIOLENT REVOLUTUTION

The phenomenon of violent revolution seemed to have played a relatively marginal role in the
politics of the post-Cold War era, encouraging some to believe that a model of democratic
transition brought about through nonviolent action and political negotiation was the new norm that
should and could be followed universally.2

The violence used by national liberation movements in Algeria, Palestine, and Ireland, to name
just a few of the more prominent cases, long provoked profound ambivalence as observers have
felt torn between the call to denounce the use of force by non-state parties with what many will
regard as doubtful claims to just cause and political legitimacy as ‘terrorism’ and, hence, as
wrongful, criminal violence, and the intuition that resistance even by force of arms must sometimes
be necessary if people are to have any hope of liberating themselves from the worst excesses of
social and political oppression.3

In Libya and Syria, demonstrations for democratic reform were overtaken by armed rebellion and
civil war. And, in Europe, whereas the Orange Revolution of 2004 had been hailed as confirmation
of the new post-1989 model, the Revolution of the Maidan a decade later recalled the armed

2
Garton Ash and Snyder (2005); Garton Ash (2009); see also Schell (2005) andthe excellent collection of studies in
Roberts and Garton Ash (2009).
3
Christopher Finlay, Terrorism and the Right to Resist: A Theory of Just Revolutionary War (2015), Pn 313.

5
confrontations of an earlier era, complete with barricades, petrol bombs, and shootings on both
sides.

Whether subjects have a right to resist against the ‘oppressive’, ‘tyrannical’, or ‘unjust’
State?

Resistance is prima facie justifiable in the face of oppression, and oppression is defined as unjust
domination, harm, and discrimination in violation of human rights or the failure of a state to defend
against such threats or to provide for basic rights.

Generally, the right to resist is not be regarded as a human right as such but it is intimately linked
to the ideal of human rights. It expresses the general demand that human rights as a whole make
on political institutions: to resist oppression.

Declaration of the Rights of Man and Citizen, 1789 provides that, the aim of all political
association is the preservation of the natural and imprescriptible rights of man. These rights are
liberty, property, security, and resistance to oppression.

According to Universal Declaration of Human Rights, 1948, it is essential, if man is not to be

compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human
rights should be protected by the rule of law.

Locke and Rawls writes that, ‘all things considered, there may be a right of resistance to an
illegitimate and sufficiently unjust regime when the likelihood is great enough that resistance will
be effective and that a legitimate regime will be established in its stead without great loss of
innocent life’.4

4
Christopher Finlay, Terrorism and the Right to Resist: A Theory of Just Revolutionary War (2015), Pn 53.

6
Self-determination and social justice as goals of rightful resistance

In many historical cases, armed resistance movements have articulated their goals in more
expansive or simply in different terms. The goal of political independence is often justified by
appeal to a ‘right to self-determination’. There are probably many more cases historically of armed
resistance movements that declared their aim to be secession or national liberation than that
articulated their goals in terms of individual human rights.5

Another way of articulating resistance goals that need not necessarily invoke human rights directly
is through notions of social justice.

The political, economic, and cultural self-determination of peoples is recognized as a human right
in the major human rights conventions: ‘All peoples have the right of self-determination. By virtue
of that right, they fully determine their political status and freely pursue their economic, social and
cultural development.’6

The possibility that a people might resist by force of arms the rule of foreign colonial powers and
more recent alien occupations is recognized in the terms of UN General Assembly Resolutions
1514 (14 December 1960) and 2908 (2 November 1972) as well as implicitly in Additional
Protocol 1 to the Geneva Conventions (1977).

5
See Christian Reus-Smit (2013), especially Chapter 5, on the importance of postcolonial movements committed to
a principle of national self-determination in the face of European empire in the development of human rights post
1945. For these, ‘the collective right to self-determination’ was seen as ‘a necessary prerequisite for the
satisfaction of individuals’ civil and political rights’ (p. 153).
6
Article 1(1) in both ICCPR and ICESCR.

7
Whether in revolutionary actions it is justifiable to take up arms?

Christopher Finlay argues that for armed resistance to be justified it has to fulfil, first, a narrow
proportionality requirement according to which the aims of fighting ought to be proportionate to
the loss of life that it will cause.7 Moreover, subject to conditions of necessity, the use of arms by
rebels would be covered by the right of self-defense. For example, it is impossible to engage in
non-violent revolutions against very oppressive regimes because they may use force against the
peoples. Therefore, in order to protect them, peoples may resort to arms.

It can be argued that under violently oppressive regimes, there is likely to be a prima facie case for
rightful armed resistance. Violently oppressive regimes which is defined by the widespread
infliction of severe human rights violations by the regime prior to the emergence of resistance,
there are many historical examples, from the Third Reich to Gaddafi’s Libya, individuals are
subject to wrongful harms including or with severity at times equivalent to torture, indefinite
imprisonment, and death as part of the routine functioning of the regime. Moreover, there is likely
to be a prima facie case for rightful armed resistance against Foreign Occupiers.

7
Christopher Finlay, Terrorism and the Right to Resist: A Theory of Just Revolutionary War (2015), Pn 76.

8
CONCLUSION

The state is a formal organization established by the people for their protection and peaceful life.
People give their powers to the government under trust which creates a fiduciary duty on the state
to act in the interests of the people. When state or ruler misuses the powers or arbitrarily uses the
powers against the public’s interests and also uses its armed forces against its own people and fails
to respect human rights, social contractarians (Locke and Rousseau) argue that subjects have the
right to revolt against this unjust or oppressive state. However they don’t explain, whether ordinary
people may permissibly rebel against the state through armed uprising.

It must be noted that, armed uprising is not an only way to resist the state. If we observe the
historical revolutionary activities, many people involved in non-violent activities (civil
disobedience) against the oppressed rulers. However, if the state or ruler involves in severe human
rights violation or uses armed forces against its own people. It may give prima facie case for
rightful armed resistance against the state. However, that rightful armed resistance must be a last
resort and it should aims at two distinct but often overlapping goals: to defeat the oppressing state
or ruler and replace it with something more just; and to depend innocent persons from violence.