Thomas Hobbes and John Locke on a Liberal Right of Secession

Liberal Secession Theories

It is remarkable that prior to Buchanan’s 1991 ground-breaking study Secession: The Morality of Political Divorce from Fort Sumter to Lithuania and Quebec, there was no comprehensive treatment of the philosophical issues surrounding the vexing question about whether there is a right to secede. As Buchanan himself observed, secession would seem prima facie to be the kind of phenomenon that liberal political theorists would be attracted, even compelled, to reflect upon a great deal insofar as liberalism has long been associated both with a robust conception of justified opposition to political authority and claims to the right of self-government (Buchanan 1991, 4).

One reason for the reluctance of political theorists to consider a right of secession was undoubtedly the enormous impact of the American Civil War. The most important secession movement in the nineteenth century was inextricably connected to the issue of slavery, and as such, arguments for a right of secession in the United States—for long, the world’s largest and most successful liberal democracy—were largely discredited by association with the evils of slavery. Secession later gained attention in the post-World War I period as it became associated with the Wilsonian liberal principle of national self-determination. US President Wilson’s anthem of a state for every national group resonated through the smoking ruins of the great empires of Eastern Europe in the immediate period after the Versailles Conference. But the call for national self-determination, and the right of secession it seemed to imply, eventually became discredited by its connection with the instability in the interwar period, especially the Nazi’s cynical manipulation of secessionist claims by ethnic Germans in Poland and Czechoslovakia that precipitated the Second World War (Kymlicka 2007, 28–29). Perhaps not surprisingly, during the Cold War, international law heavily supported the territorial integrity of states at the expense of the claims of secessionist groups, even as the international community largely opposed secessionist movements in Biafra, Kashmir, and the Kurdish lands. For most of the nineteenth and twentieth centuries, secession was the political crime that dare not speak its name.

The end of the Cold War brought a new urgency to thinking about secession. This is the emergent zeitgeist captured well by Buchanan and manifest in the breakup of Yugoslavia, Czechoslovakia, and the Soviet Union, as well as the resurgent separatist movements in Quebec, Scotland, Catalonia, East Timor, and Chechnya in the 1990s. While many prominent political and legal theorists joined the fray to reject tout court any notion of a secession right (e.g., Horowitz 2003; Sunstein 1991), most responded to Buchanan’s challenge by offering their own version of a secession right untainted by association with American slavery or Nazi racism, and each claimed to be broadly consistent with liberal rights theory. The upshot of this great debate has been three main varieties of a secession right.

The first school of thought is the remedial right, or just cause, theory of secession, according to which secession is only justified if it is necessary to remedy a manifest severe injustice. In theoretical terms, secession is not a primary right inhering in individuals or communities, but rather it operates only under certain conditions. Many scholars agree that a group has a right to secede if it is confronting extermination or serious physical harm by the central government (e.g., Birch 1984; Norman 2003). Some go further to argue that a group is justified to secede if it is necessary for preservation of a distinct culture (Orentlicher 2003). With the remedial right, typically the burden of proof is on secessionists to demonstrate that independence is required to avoid harm and will not make the world or the region a more dangerous place. While it detaches secession from any claim to a primary right of self-determination, the remedial right approach does tie secession into a framework of generally accepted human rights.

The choice theory of secession reflects a certain understanding of the value of autonomy grounding the political right of association. That is to say, this approach conceives of secession as a collective right rooted in individual freedom (Beran 1984; McGee 1994; Philpott 1998). In this view, any territorially concentrated minority group that expresses a desire to secede in a legitimate referendum or plebiscite has a right to secede. Choice theory tends to emphasize the connection between democratic processes and a secession right. Secession does not require any special claim about injustice or victimhood, although there may be other requirements such as being able to fulfill the basic functions of a viable state (Wellman 2005, 3). The main source of contention among choice theorists relates to how to decide which groups have legitimate status to claim a secession right and how the majority voice of the community can be determined.

The third variant of secession rights theory is the national self-determination approach. In this view, political boundaries should reflect cultural, ethnic, and linguistic national identities: each distinct nation has a right to an independent state, if it should desire it. Secession is a right possessed by collectivities not individuals, but the underlying connection with liberalism lies in the argument that national self-determination emphasizes the importance national identity has for individuals (Nelson 1998). This primary secession right does not depend on prior injustice and reflects the communal choice of a recognizable national group, not just any given mathematical collection of disparate individuals. The issue for a national self-determination right of secession is how to decide what groups constitute a recognizable nation and whether independence is subject to fair processes and guarantees of cultural rights. Despite important differences of approach, each of these three variants of secession rights theory derives from distinctively liberal premises of individual rights expressed through some form of social compact.

Hobbesian Preservationist Argument for Secession

Thomas Hobbes’ compact theory capped with the sweeping claims of absolute sovereignty would appear to leave little scope for the right of minority groups to oppose, never mind break away from, a sovereign government. However, this impression is misleading. The core of Hobbes’ political thought is the proposition that political association is based upon an agreement of individuals, each possessing an inalienable right to self-preservation. The important question for our purposes is whether Hobbes believed the subject’s right of self-defense amounts to a right to resist. While most scholars reject the idea that Hobbes’ right of individual self-defense amounts to a politically relevant resistance right, I argue that it does. ¹ This is because for Hobbes, individual political obligation is of secondary importance in relation to the primary individual right of self-defense precisely because this right is not a moral right that imposes obligations on others, but rather a liberty of the subject exercised on the basis of an individual’s passions.

The fundamental building block of Hobbes’ political philosophy is the natural right of self-preservation deduced from the indefeasible passion produced by fear of violent death. ² The right of nature is “the liberty each man hath to use his own power, as he will himself, for the preservation of his own nature” (14: 79). The law of nature is reduced to rational theorems conducive to peace that oblige “in foro interno, . . . to a desire that they should take place,” but “in foro externo, that is, putting them in act,” they depend on calculations about self-preservation (15: 99). In the state of nature in which every individual possesses the right of nature in its entirety, Hobbes insists it is a war of all against all, where agreements are meaningless because only a sovereign with supreme “right and force sufficient to compel performance” can vouchsafe promises (14: 84).

Hobbes’ theory of representation explains how an agreement among individuals can create an idea of community. The source of unity in Hobbes’ commonwealth is shared recognition of who wields sovereign power, as it is “the unity of the representer, not the represented” that makes the commonwealth one body, with each individual owning all “the actions the representative doth” (16: 104). People live in the commonwealth with some expectation of “preservation and contented life,” or at least on the assumption that life under the sovereign is more secure than the chaotic state of nature. Any right of secession would seem to be precluded by the fact that the subjects “cannot lawfully make a new covenant amongst themselves to be obedient to any other” (18: 110–11). Hobbes’ absolute sovereign faces no legal or constitutional limits on power. Nonetheless, Hobbes claims that an individual only transfers or renounces a right for “some good to himself,” and there are “some rights which no man can be understood by any words or other signs to have abandoned or transferred” (14: 82). These include the right to resist “wounds, chains, and imprisonment,” for a “covenant not to defend myself from force is always void” (14: 82, 87). Are these inalienable rights the basis for a political doctrine of resistance justifying a minority community to resist, and even secede, from sovereign authority?

Hobbes’ political doctrine of obedience is in crucial respects called into question by his theory of inalienable natural rights. The subject has “the liberty to disobey” sovereign commands: “No man is bound by the words of the authorization themselves, either to kill himself or any other man” (21: 142). This liberty to disobey extends to refusing to do “any dangerous or dishonourable office” commanded by the sovereign (21: 142). The one caveat Hobbes adds is that “our refusal to obey” must not frustrate the “end for which the sovereignty was ordained” (21: 142). However, the fact that this injunction is auto-interpreted renders it largely nugatory, for if my self-preservation is precisely the thing that I feel is jeopardized by obeying the sovereign, then in terms of Hobbes’ preservationist psychology, any broader political obligation is morally meaningless.

Hobbes acknowledged that this individual right of self-defense extends into a collective right in two senses: (1) regarding subjects who resist punishment, and (2) when the sovereign is unable or unwilling to protect a community. With respect to the former, Hobbes argues that while an individual has no right “to resist the sword” of the sovereign in defense of others, a group of criminals can legitimately associate to defend themselves by resisting a sovereign:

In case a great many men together have already resisted the sovereign power unjustly, or committed some capital crime for which everyone expecteth death, whether they have not the liberty to join together, and assist, and defend one another? Certainly they have; for they but defend their lives, which the guilty man may as well do as the innocent. (21: 143)

Notice that while Hobbes insists these individuals were wrong in the first instance to defy the sovereign, their resistance is excusable thereafter on preservationist grounds.

It is important to consider the character of the conditions that would negate a subject’s political obligation. Does the resistance right inhere in the subject, that is to say, is it a political right, or is the resistance right wholly contained within the right of nature belonging to every individual in the state of nature? The evidence suggests that the resistance right of subjects Hobbes describes is a political right, a power retained by subjects independently of the general laying down of natural right required to establish civil society (Sreedhar 2010, 15–16). The resistance right is not political in the sense of being capable of recognition in law or circumscribing the power of the sovereign. But Hobbes does not claim that the subject who resists the sovereign returns to a state of nature with the right to everything that entails. In fact, in the crucial passage we just considered, Hobbes spoke about individual subjects joining “together” to resist the sovereign. The residual sociability implicit in this example is striking as Hobbes suggests that these individuals could cooperate without a common power to keep them in obedience—impossible in the state of nature—precisely because they are subjects who share a common interest in evading punishment. Hobbes’ description of a scenario in which a “great many men together” resist punishment suggests individuals collectively acting as a corporate body, even theoretically a subsovereign political association. Thus, while the right to resist may inhere in individual subjects, Hobbes is alive to the possibility that individuals acting collectively to resist can assume for all intents and purposes a communal expression, especially if the putative cause of the punishment is characteristics shared with other individuals in an identifiable group.

The second way in which the individual’s inalienable rights extend into a broader social context is produced by the weakness of the sovereign. Hobbes argues that the obligation of the subject to the sovereign only lasts “as long, and no longer, than the power lasteth by which he is able to protect them” (21: 144). The sovereign could lose the power to protect either by defeat in “foreign war” or by “intestine discord” (21: 145). If the sovereign is captured, renounces the crown, or surrenders to another, “there is no further protection of subjects in their loyalty, then is the commonwealth dissolved, and every man at liberty to protect himself by such course as his own discretion shall suggest to him” (29: 149). By this logic, Hobbes would allow that a group can withdraw its loyalty from a state that will not protect its members, especially from persecution by the state itself. Hobbes would certainly permit a group to protect itself against extermination. Buchanan suggests that by remedial right of secession, eastern European Jews in 1939 would have been justified to break away from Germany, Poland, and Hungary and form a separate independent Jewish state to protect themselves against the genocidal threat of the Nazis (Buchanan 1991, 65). ³ It would be rational for the targeted group to form a new commonwealth with its own sovereign, just as in a “failed state,” Hobbes would expect individuals to turn to new sovereigns or smaller cohesive units to protect them during broader political collapse.

Hobbes defined inalienable rights in narrowly individualistic terms, but for us, the obvious question is: did Hobbes see group identity as a political category? That is to say, does his account of inalienable rights extend to nonsovereign political or social units capable of seceding from the Leviathan?

The conventional understanding of Hobbes’ ideal theory of absolute sovereignty must be balanced out by recognizing his considerable treatment of the practical, political reality of diverse group identities. For example, Hobbes insists that a commonwealth can be divided into distinct provinces, which he defines as “those countries where the sovereign is not resident, but governs by commission” (22: 149). Far from the image of monolithic absolutism, Hobbes acknowledged distinct political and administrative units by virtue of proximity to, or distance from, the sovereign. Hobbes even goes so far as to recognize “when in one commonwealth there be diverse countries that have their laws distinct one from another,” although he insists these distinct laws and institutions must be recognized to derive from the sovereign will, not from historical or legal indigenous customs (22: 149, 146–7). Hobbes, thus, did not deny the pluralistic character of society, but rather sought to demonstrate that social, and even political diversity, is not incompatible with absolute sovereignty. ⁴

Hobbes offered several explanations for the process of distinct group formation. One was colonialism relating both to settler colonies and an amalgamation of peoples, which Hobbes saw in the example of the Romans who gave citizenship to “the principal men of every nation they conquered” (19: 126), as well as the effort of King James I to form a “union of his two realms of England and Scotland” (19: 127). Hobbes’ reference to the union of the English and Scottish crowns is especially apposite for the issue of secession as it signifies his recognition of something akin to the modern conception of federations. In both the Roman and British examples, Hobbes expressed the possibility of communal diversity within an overarching principle of absolute sovereignty. Hobbes’ acknowledgment of the subject’s inherent right to resist means that not only is there a de facto secession right of one colonial people threatened with annihilation by an imperial power, but also in the event a sovereign was unable or unwilling to protect one of the diverse nations of the commonwealth (for example, the British King failing to protect his Scottish subjects from Norwegian military incursions).

A second form of group identity that Hobbes identified was religious sects. In particular, Hobbes highlighted the role that the Protestant Reformation played in unleashing a new wave of subsovereign community formation within Europe (12: 73–74). Hobbes’ bitterness about the strains caused by religion between Anglican England and Presbyterian Scotland prior to the English Civil War testified to his awareness of the difficulty in harmonizing religious pluralism and absolute sovereignty (Hobbes [1668] 1963, 12–17). While Hobbes’ Erastian preference was the mirror image of the sectarian tendencies he deplored in England, it confirms his sense of the powerful influence religion had on formation of group identity. The real significance, however, may lie in Hobbes’ recognition of characteristics that individuals possess as members of a group that may preexist political obligations arising from the creation of the commonwealth. These group characteristics could pertain not only to religious identity—which Hobbes addressed directly—but also to features of social existence such as language, culture, or ethnicity that have become a focus of liberal theorists in modern times. Hobbes was aware, however dimly, of group characteristics that could form the basis of stigmatization or persecution by the sovereign. That is, the subject may feel this persecution or discrimination as an individual, but the cause of it lies in group traits or characteristics that have little to do with individual behavior or action.

Hobbes recognized that the Scots and English, as well as the Romans and their imperial subjects, were different peoples. Hobbes’ claims about political diversity open his analysis to considerations about the various psychological dimensions of the concept of threat. The resistance right Hobbes ascribes to individuals does not pertain solely to threat of violent death. Hobbes is conscious of the profoundly subjective psychological dimensions of the notions of threat and harm, and allows resistance if the subject believes that obedience to the sovereign’s command will produce physical restraint, or even “infamy and loathing” or “embitter” the subject’s life (14.82, 87; 15.97). ⁵ The problem of persecution operates differently on the group level insofar as preexisting characteristics transform Hobbes’ account of specific individual rights into political questions. For example, Hobbes concedes that an individual may defy the sovereign by refusing to perform compulsory military service. The subject may face the threat of jail, fines, or worse. If, however, the members of a group defy a military draft or compulsory service qua members of a group (whether religious, ethnic, or linguistic), then the situation would, depending on the size of the group, be effectively a conscription crisis. ⁶ In this case, while the direct object of the threat is the individual conscript soldier who seeks to avoid being cannon fodder at the front, the psychological determination of the level of threat is in large part the product of the subject’s identification with a group. On Hobbes’ own terms, would members of a territorially concentrated group that opposed conscription be any less legitimate in their claim to secede than a group directly exposed to violence perpetrated by their own government?

Hobbes’ account of group identity reveals an often neglected aspect of his political thought. For Hobbes, while political subjection depends formally upon the agreement of individuals to authorize one sovereign power to represent the whole commonwealth, on some level, nonsovereign bodies politic reflect Hobbes’ practical recognition of a collective expression of group characteristics possibly preexisting the establishment of government. While Hobbes’ account of absolute sovereignty precludes any idea of secession based purely on democratic choice (or, arguably, even national or cultural aspirations), a remedial right of secession is discernible upon dissolution of the sovereign power or through rule that directly impairs the capacity of nonsovereign subordinate units to protect individuals. For Hobbes, it is inconceivable that a right of secession could be promulgated in law or the constitution, but it is just as difficult to imagine how, given his understanding of inalienable individual rights, Hobbes could simply reject or dismiss all group claims to secession in every conceivable case.

Lockean Institutionalist Case for Secession

John Locke’s position on secession is complex. On one hand, he had a highly developed right of revolution analogous (though not identical) to a remedial right of secession (Moore 1998, 5). Thus, it is not surprising that Locke’s right of whole communities to replace their government provides richer materials for constructing a theory of secession than with Hobbes, who sought deliberately to narrow the individual resistance right as much as possible. Yet, on the other hand, Locke maintained explicitly that individual membership in a given political society is a product of consent irrevocable except through emigration (Marshall 1994, 273). I will argue that Locke’s institutionalist approach to secession is not simply a conceptual offshoot of the right to revolution. While Locke admits that governments typically do not recognize and have a right to put down rebellion, his argument for resistance contains important normative elements so that justified resistance, even theoretically to the point of secession, remains balanced by the moral obligations to other people arising from the social compact. ⁷ Locke believed that societies have a right to preserve themselves, and even persecuted individuals and groups must, not only for prudential reasons, appeal to the majority for support (Josephson 2002, 137–38). But I shall argue that in the context of multiethnic, federal states or empires, in which the question of what constitutes a self-governing majority in a given community is often precisely what is at issue, Locke’s political theory offers resources for both a remedial right and a national self-determination secession right.

The starting point for Locke, as for Hobbes, was, of course, the state of nature marked by the natural liberty and equality of individuals (II: 4, 5). The law of nature, which is reason, informs us both that no one ought to be harmed and that each individual has the natural right to execute the law of nature by punishing aggressors (II: 6, 7). Every individual surrenders “the power of punishing” to government (II: 130). Only with the establishment of a common legislative and executive power is the individual able “to enjoy many conveniences, from the labour, assistance, and society of others in the same community, as well as protection from its whole strength” (II: 130). Individuals consent to political subjection for the sake of securing “their lives, liberties and estates,” and cannot reclaim the natural executive power of the law of nature as long as they are members of society enjoying its benefits, for it “cannot be supposed . . . that rational creatures should desire and constitute societies only to be dissolved” (II: 123, 98).

The durability of the social compact is a prominent aspect of Locke’s account of civil society. When the individual “divests himself of his natural liberty, and puts on the bonds of civil society,” this produces “one body politic” wherein the “consent of the majority . . . passes for the act of the whole” (II: 95, 96). Locke insists that this agreement to submit to the determination of the majority with respect to the form of government is nonnegotiable and irrevocable, for otherwise the social compact “would signify nothing, and be no compact, if he be left free, and under no other ties than he was in before in the state of nature” (II: 97). The bonds of civil society have meaning because the original act of consent that forms society created new moral relations both internally and externally: “the whole community is one body in the state of nature, in respect of all other states or persons out of its community” (II: 145). More importantly, however, Locke insists that the political obligation on individuals appears to be irrevocable:

He that has once, by actual agreement, and any express declaration, given his consent to be of any commonwealth, is perpetually and indispensably obliged to be, and remain unalterably subject to it, and can never be again in the liberty of the state of nature; unless, by any calamity, the government he was under comes to be dissolved; or else by some public act cuts him off from being any longer a member of it. (II: 121)

Thus, once the individual has expressly consented to membership in a society, that condition is for all intents and purposes permanent, “the end why people entered into society being to be preserved one entire, free, independent society” (II: 217).

Protection of property is the “great and chief” motive for the creation of civil society. But property is also a source of continuing political obligation to the community inasmuch as “there being always annexed to the enjoyment of land, a submission to the government of the country, of which that land is a part” (II: 73). The enjoyment of property constitutes a form of consent to government, tacit or express, for Locke argues that “commonwealths [do] not permit . . . any part of their dominions to be dismembered” by an individual withdrawing land from a government’s jurisdiction (II: 117). For instance, if a child inherits the estate of his or her father, the child generally must become “a member of the society” (II: 117). Locke insists that an individual can morally bind him or herself, “but cannot, by any compact whatsoever, bind his children or posterity” (II: 116). Consent in a voluntary agreement must be to some extent active and express.

While Locke insists that acquisition or inheritance of land cannot legitimize the dismemberment of a political society, this logic does not apply to any person who refuses to consent to the government of the territory in which one resides. These individuals have a right to emigrate by “withdrawing themselves, and their obedience, from the jurisdiction they were born under, . . . and setting up new governments in other places” (II: 115). Emigration parallels secession insofar as both situations present a method according to which an individual can withhold or withdraw consent and form or join a new political society, but emigration does not involve the removal of territory.

If there is a right of secession embedded in Locke’s political theory, it is more likely to be justified in terms of the end or purpose of government than in its origins. Locke insists that under the law of nature, all of “mankind are one community,” and, thus, on a grand metaphysical level, all governments are the product of secession from this great natural community (II: 128). The principle by which individuals through “positive agreements combine into smaller and divided associations” (II: 128) is not obviously or intrinsically suspended by prior obligations arising from consent. Locke’s reference to “positive agreements” that form “divided associations” recognizes that a political community may be formed from composite parts of smaller communities that preexist the creation of the larger political union. The continued existence of the smaller communities could presumably be a precondition of the “positive agreement” that formed the larger political society. Locke’s argument about the legal basis of “smaller and divided associations” implies that an individual could claim membership in multiple communities, as is the case with many modern, multiethnic or multinational federal states. Any distinct group that enters a political union or “divided association” could conceivably preserve its own territorial integrity even as it continues to possess a right to secede from the larger political community. If the larger political community itself is premised on this diversity, then the intrinsic integrity of smaller communities could in principle inform the constitutionally recognized solubility of the larger political community.

Even Locke’s statement about the individual’s perpetual obligation to the society one has explicitly joined is qualified by the caveats stipulating that this obligation ends if the government “comes to be dissolved,” or “else by some public act cuts him from being any longer a member of it” (II: 121). Let us consider these qualifications. It is only in the final chapter of the Second Treatise that Locke reveals that the “usual, and almost only way wherein this union is dissolved” is “foreign force making a conquest” (II: 211). It is important, however, to recognize that Locke distinguished between the unity of the society and that of the government: “Whenever the society is dissolved, it is certain the government of that society cannot remain” (II: 211). In contrast with Hobbes, who argued that the sovereign government is the source of unity in the commonwealth, Locke claims that society is a primary form of union that preexists, and typically outlasts, particular governments and constitutions. Dissolving society automatically dissolves government, but dissolution of government typically occurs through a revolution whereby the people “constitute to themselves a new legislative” (II: 212).

Locke’s claim that foreign invasion is the “almost only” cause of dissolution of society begs the question of to what other possibilities could he be alluding? Would secession, in which one part of society breaks away voluntarily from a larger community to form a separate political society, be a candidate for causing dissolution of society? Recall, Locke acknowledged that often “there may be subordinate communities in a government” (II: 133). The primordial character of society with respect to government is in Locke’s account consistent with a conception of a political community composed of distinct subordinate communities theoretically capable of exercising a right of secession. Locke’s rejection of an individual’s claim of a right to withdraw consent and territory from a community is not the logical or moral equivalent of the same claim on the part of a community of people capable of self-government. But while secession would certainly alter the existence of a community as one “entire and independent body,” it is also questionable whether secession accurately reflects Locke’s metaphor likening dissolution of society to the “overturning from without” caused by a “whirl wind” or “an earthquake” (II: 211–2).

Whereas Locke’s idea of dissolution of society logically requires dissolution of government, modern views of secession do not typically draw this inference. In the event of secession, the remainder state is not necessarily dissolved. ⁸ Typically, agreement among a majority to continue consent to a common legislature is not fatally impaired by the withdrawal of consent by a minority group. Secession in Lockean terms is distinct from revolution in that it alters but does not dissolve existing society and governments. Does Locke’s argument that the establishment of the legislative power implies the fundamental desire “for the continuation of their union” where once set by the majority make secession by an organized minority inherently illegal? This claim about legislative power has to be understood in the context of his cautions against executive abuse of power involving attempts to alter fundamentally the legislature without the consent of the majority. But is secession of a minority group in society really analogous to a tyrannical monarch?

Locke also claimed that “some public act” can revoke one’s membership in a particular society. An individual could be cast beyond the protection of society through a bill of attainder or a charge of treason. Oppressive or discriminatory measures against a group of which an individual is a member possibly would also rescind one’s political obligation. In this case, it would not be simply a matter of individual discretion about obligation, which Locke tries to restrict, but rather the characteristics of group membership that individuals possess as part of “subordinate communities” (II: 133). The example of this most germane to Locke was, of course, religious toleration. Would an act rescinding toleration such as the Revocation of the Edict of Nantes in 1685, which removed protections for French Protestants, eliminate the obligations of membership in French society for members of that persecuted group? The logic of Locke’s natural rights argument suggests that he would likely support secession by these groups, if they are sufficiently territorially concentrated, on the basis of a remedial right. If these persecuted religious groups were not territorially concentrated enough to make secession a viable option, Locke would at the very least endorse their right to emigrate and join other communities, or even form their own political communities, elsewhere.

Locke and Hobbes both clearly saw the political challenges posed by religious pluralism as one of the most serious issues confronting early modern Europe. However, is religious identity perhaps uniquely connected to liberal individual rights theory given that religious persuasion seems to be more clearly a matter of choice than other categories of identity such as language, culture, or race? This raises complex issues about the liberal idea of choice. While Locke believed that individual choice determines religious belief as a matter of ideal theory, in practical terms, he was aware that for many people religious identification is a matter of generational inheritance. Persecution adversely impacts not only the adult dissenter, but also injures the life opportunities of the children of dissenters, who have strictly speaking little or no choice in the matter. Even the implementation of Locke’s toleration policy would only mitigate, but not render nugatory the right of secession. As Locke knew from the Huguenot experience, there is no guarantee that a tolerant regime will be permanent. Moreover, religion does not simply supersede other kinds of group identity claims. For example, two different language or ethnic groups could share a common religion, but still experience conflict that produces secession movements (e.g., Pakistani and Bengali Muslims in pre-1971 Pakistan).

There is also considerable complexity involving elements of choice regarding linguistic and cultural identity. The individual is presented with choices either about how to exploit diverse opportunities or how to respond to assimilationist pressures. Should a Canadian parent send her children to French or English school? Should a British person anglicize a surname that sounds “ethnic”? Should an immigrant to the United States continue the traditions of “the old country” or assimilate into the dominant culture? As an element of group identity, language and culture can become political questions. For instance, in Locke’s view, would outlawing the Russian language in Ukraine or ending official bilingualism in Canada justify secession by Russian- and French-speaking regions? Even racial identity is not entirely impervious to elements of choice, especially when considerations about race are connected to arbitrary categories and other factors of identity that impact secession. Conceivably, individual members of a persecuted minority racial group such as Sudanese of African heritage may have chosen to remain loyal to the central government in Khartoum dominated by the Arab majority rather than support the secession movement that resulted in the creation of South Sudan. Thus, the liberal idea of individual choice, perhaps exemplified in toleration of religious belief, is not restricted to viewing religion as the only legitimate category for a putative secession right. In theory, Hobbes and Locke’s principles could with some modification extend to categories of culture, race, ethnicity, and language that challenge political theorists today.

Locke’s account of the dissolution of government and society indicates that he was fashioning new concepts illuminated by his individualistic rights theory that did not fit into the existing political vocabulary of the seventeenth century, but would contribute toward clarifying the still nebulous modern concept of secession. Every act of secession involves an element of what Locke calls “dissolution” and in some sense is preceded by revolution, whether armed or peaceful. Individuals are absolved of their duty of obedience to government when there are “illegal attempts” made on the liberty or property of the people (II: 228). The people’s right to resist oppression could include a particular community’s right to form a secessionist government with a new legislature. Given Locke’s insistence upon rights protection as the raison d’être of political society, it is quite conceivable that recognition of a right to secede for distinct “subordinate communities,” as opposed to individuals, could even be part of the original founding instrument of the political society.

Locke’s recognition of diverse subordinate communities and religious sects arguably can be extended into a secession right derived from claims about national self-determination. He claims that mutual recognition of territorial borders is one of the most fundamental of the laws of nations:

The several communities settled the bounds of their distinct territories, and by laws within themselves regulated the properties of the private men of their society . . . and the leagues that have been made between several states and kingdoms, either expressly or tacitly disowning all claim and right to the land in the other’s possession, have, by common consent, given up their pretences to their natural common right, which originally they had to those countries, and so have, by positive agreement, settled a property amongst themselves, in distinct parts and parcels of the earth. (II: 45)

Notice the connection Locke draws between the internal regulation of property and the distinct borders of polities. By the various “leagues between states and kingdoms,” they expressly or tacitly renounce claim on each other’s territory. These examples of “positive agreement” could allow for legitimate secession in two ways.

First, positive agreement on territorial borders places important external legal and moral limits on conquest, even justifying secession from empire. In contrast with Hobbes, Locke insists that promises extorted by force “bind not at all” (II: 186). Locke, thus, defines lawful conquest very narrowly as the right of the victor in a just war conducted as punishment for aggression. He also established strict limits on what even a lawful conqueror can do, especially with respect to the property of a vanquished people (II: 182–4). In political terms, this means that a people retain the rightful claim of ownership over the territorial basis of their political independence: “the inhabitants of any country, who are descended, and derive a title to their estates from those who are subdued . . . retain a right to the possession of their ancestors” (II: 192). Locke’s example of a people who retain the right of self-determination over a given piece of territory in the face of conquest is the “Grecian Christians,” who as “descendants of the ancient possessors of that country, may justly cast off the Turkish yoke . . . whenever they have an opportunity to do it” (II: 192). Clearly, Locke’s argument about the historic property rights of a conquered people suggests something akin to the national self-determination argument for secession we see in contemporary debates. One of the preexisting characteristic of the Greeks that distinguished them from their Turkish conquerors was certainly religion, but language, ethnic identity, and cultural differences are also factors implied in Locke’s idea of a national right of self-determination. That is to say, the secession right from empire Locke alludes to in this instance cannot simply be reduced to the logic of his toleration argument because the rights of a collective people are not simply reducible to the beliefs of individual members: the Greek nation has a right to self-government over their historic territory regardless of the calculations of individual Greeks. The Greek right to resist the Turks is not simply a remedial right exercised against a conqueror because the underlying preexisting source of unity is the idea of the Greek people, however conceived, that Locke maintains has survived the conquest.

Does this qualify as a right of revolution or secession? It is clearly not Locke’s normal understanding of revolution, which involves overthrowing a tyrannical government and its replacement with a new one. What Locke describes in his discussion of conquest is more akin to the situation of the American colonists vis-à-vis the British Empire during the American Revolution. ⁹ In both cases, it is not only a matter of expelling an existing government, but also involves asserting a given people’s previously unrecognized or suppressed right to self-government in a separate state. The Greek example viewed in the context of Locke’s broader argument about property rights raises the possibility that his theory could even support the idea of one group breaking away from a larger society if the group’s property is endangered. ¹⁰

To understand the role of national self-determination in Locke’s thought, it would be useful to consider Locke’s account of the dynamics of group formation. Similar to Hobbes, Locke advanced a formal, highly theoretical account of the origins of political society that is balanced out by several practical historical examples. Locke admits that in contrast with the elegant formal logic of contract theory (II: 95–99), in reality, “it is with commonwealths as with particular persons, they are commonly ignorant of their own births and infancies” (II: 101). He does, however, identify the colonial dimension of group formation with his reference to the Dorian colony at Tarentum founded by Palantus (II: 102). The one ancient people whose origins are unique, Locke claims, are the Jews because, with them, “God himself immediately interposed” in the beginning of the polity (II: 101). Here, Locke points to the role of religion in group identity formation and as a potential source of collective identity.

Where Locke’s account of identity formation differs most markedly from Hobbes relates to Locke’s lengthy treatment of the threat to national survival posed by conquest. In this respect, Locke emphasized a normative claim deriving from indigeneity or traditional possession of a territory. Reflecting upon English history, Locke insists that even if the Norman Conquest was justifiable, it “could reach no further than to the Saxons and Britons, that were then inhabitants of this country” (II: 177). Locke’s claim could mean that gradually the Normans and Saxons became one people, for it “seldom happens, that the conquerors and conquered never incorporate into one people” (II: 178). It could also, however, mean that the Saxon descendants of those conquered people still retain the same right to overthrow the invader as the Greeks do, or as the Saxons did in overthrowing the Danish invasions of “Hingar, or Hubba” two centuries prior to the Normans (II: 196). Likewise, the native Italians could have rightfully overthrown a conquering Sparticist army of foreign slaves just as the Jews under Hezekiah threw off Assyrian domination despite “promises and covenants” to obey their Assyrian rulers (II: 196). While Locke does not explicitly analyze the fundamental sources of unity that ground this sense of indigenous claims, we can extrapolate that language, culture, and ethnicity, in addition to religion, would fit comfortably into any Lockean account of a group’s claim to self-determination.

Another sense in which the “positive agreements” about territorial boundaries support a secession right has to do with the manner in which internal laws are subject to revision. Locke describes revolution (the “appeal to heaven”) as an extralegal principle that cannot be part of “the constitution of that society,” and, in fact, is “antecedent and paramount to all positive laws of men” (II: 168). But Locke accepts the possibility to constitutionalize something akin to revolution. While he argues that no extraconstitutional assemblies can sit while the legislature subsists, Locke also allows for constitutional provisions that can adjust for necessity so that the duration of the legislature or grant of power to the supreme executive is “only temporary” (II: 243). Herein, Locke envisages the possibility of an expiration date on government similar to Thomas Jefferson’s idea of a new constitutional convention every nineteen years (Jefferson 1944, 492). Power also reverts back to the community if by the “miscarriages of those in authority, it is forfeited” (II: 243). Locke claims that power does not devolve to individuals, but rather to communities, for as long as the society lasts, legislative power “will always remain in the community” (II: 243).

Locke’s emphasis on the communal or social character of legislative power grounds the institutionalist argument for secession. The claim that legislative power can never revert to individuals does not preclude the possibility that one community within a larger society can assume legislative power, that is to say, a discrete majority distinct from a larger majority in society. By restricting a secession right to organized and institutionalized social units whether unified around religion, language, culture, or ethnicity, Locke avoids the anarchic implications of extreme individualism. Even if Locke’s natural rights theory does allow for political power to revert to individuals upon the dissolution of society (as opposed to dissolution of government), arguably, groups of individuals could immediately, perhaps imperceptibly, reconstitute themselves into separate independent communities based upon preexisting characteristics. If the duration of government can be prescribed in the constitution, why not a constitutional provision specifying how and when one community may form a separate political society? A constitutional provision for a secession right would not necessarily violate the implicit terms of the original compact, if this right were identified in the fundamental law of the society. Alternatively, a secession right could be understood as implicit in the very notion of amendment in a federal constitution in which the existence of the subcentral state governments (states, provinces, or regions) is guaranteed, and they participate in the constitutional amendment process.

Locke does not indicate how a remedial right would be expressed in law. This is not surprising given that he identified the right of resistance as “antecedent and paramount” to all positive law. There is nothing in his account of the national self-determination right that would require that the Greeks, or any distinct community, demonstrate oppression to justify to a third party their claim to the territorial basis of their self-government. Indeed, Locke’s constitutional principles allow for the possibility that recognition of a group’s secession right could be part of the framework agreement that forms a social compact in the first place. The proposition that individuals cannot revert to the state of nature except in extremis does not mean that the institutional expression of the reversion of legislative right to distinct peoples is either constitutionally unviable or politically nonnegotiable.

Conclusion

I have tried to demonstrate that while classical liberal thinkers such as Hobbes and Locke did not ruminate explicitly about the issue of secession, their political theory provides the conceptual resources to understand certain forms of a secession right. Arguably, modern thinking about secession presupposed the dramatic change in thinking about government that these early liberal social contract theorists pioneered. Both Hobbes and Locke advanced a theory of natural rights that can form the basis of what is identified today as a remedial right. Locke’s institutionalist focus also supports a national self-determination right to secession. While more sensitive to the needs of communities than is normally associated with liberalism, we do not find, however, that Hobbes and Locke provide fully developed accounts of how we can define who constitutes a community with a right to secede or the mechanisms, democratic or otherwise, that give legitimate expression to secessionist aspirations. These issues have been explored much more fully by contemporary democratic theorists following in their footsteps.

This study has also tried to shed light on an important moment in the history of political thought when early liberals, especially Hobbes and Locke, shattered the traditional Aristotelian and divine-right frameworks for understanding the grounding of political authority. Hobbes and Locke represent the philosophical transformation that occurred when political thinkers ceased to accept assumptions about the organic and natural character of political community. These early liberals introduced new ways of thinking about political obligation as a function of consent and individual interest. It is, thus, not surprising that the modern use of the term “secession” only emerged in the wake of the liberal rights revolution in thinking, which reconceptualized practically every form of association—political, religious, and even familial—in terms of voluntarist principles of consent. Arguably, it is only once political subjection (or for that matter religious affiliation) is understood to be the product of individual choice that the withdrawal of consent signified by secession becomes a meaningful moral and political phenomenon.

Despite the historical distance between Hobbes and Locke, on one hand, and contemporary scholarship on secession, on the other, the early liberal institutionalist and preservationist approaches can inform our understanding of the several distinct forms the issue of secession takes in the modern world. Perhaps the major ramification of this study for the dominant theories of secession is a heightened sense of the complex relation between liberalism and secessionism as it impacts both international and constitutional law. Under the intense pressure of events in civil war–torn lands such as Bosnia, Kosovo, Cyprus, and Sudan, the quintessentially liberal preservationist argument for secession has been assimilated into a larger framework of peacekeeping, nation-building, and human rights protection. Arguably, any realistic attempt to enshrine the Responsibility to Protect doctrine into international law must incorporate new thinking about a right of secession. We have also begun to see renewed attention on the Lockean institutionalist approach domestically in Canada as the Canadian Supreme Court in the Quebec Secession Reference (1998), which found secession to be subject to the constitutional amendment process, and more recently the United Kingdom and Scottish governments in the Edinburgh Agreement (2012), which elaborated a process for a secession vote as part of evolving constitutional practice, grappled with defining a right of secession compatible with fundamental liberal ideas of constitutionalism and rule of law. Returning to Hobbes and Locke shows that the pertinent questions for liberals today perhaps have to do more with how the secession right can be constitutionalized, than whether liberal society can accept that this right exists at all.