The Right of Resistance as a State Law Basis for Transnational Regimes’ Self‐contestation
| Published date | 01 July 2018 |
| Author | Daniela Bifulco,Angelo Jr. Golia |
| DOI | http://doi.org/10.1111/jols.12105 |
| Date | 01 July 2018 |
JOURNAL OF LAW AND SOCIETY
VOLUME 45, ISSUE S1, JULY 2018
ISSN: 0263-323X, pp. S94±S113
The Right of Resistance as a State Law Basis for
Transnational Regimes' Self-contestation
Daniela Bifulco* and Angelo Jr. Golia**
Section I summarizes the progressive neutralization/depoliticization of
the right of resistance, from the Middle Ages until today. Section II
analyses the positivization of the right of resistance in contemporary
constitutions, a necessary paradox for modern constitutional orders
(and theory). In section III the positive law provisions concerning the
right of resistance are analysed in their functions of self-subversion for
legal orders. Sections IV and V place this theoretical framework in the
broader context of globalization processes, where the right of
resistance may serve as a legal basis for contestatory practices and
as a tool for the (internal) repoliticization of the normative systems of
unlimited transnational actors, regimes, and communicative processes.
Thus, the (positivization of the) right of resistance may perform two
functions simultaneously: a defence against unlimited powers and
communicative processes and a constitutionalizing pressure on
transnational regimes' internal operations, serving as tool of self-
contestation and democratic legitimation.
Michael Kohlhaas (. . .), one of the most upright and at the same time one of
the most terrible men of his day. (. ..) The world would have had every reason
to bless his memory, if he had not carried one virtue to excess. But his sense of
justice turned him into a brigand and a murderer.
Heinrich von Kleist, Michael Kohlhaas (1808)
The courageous and solitary resistance of Heinrich von Kleist's hero did not
have a happy ending; or maybe it did, if you consider death not to be too
high a price to pay for justice. Far from being a time of reconciliation with
S94
*School of Law, University of Campania, Palazzo Melzi, Via Mazzocchi, 68,
81055 Santa Maria Capua Vetere (CE), Italy
danielabifulco19@gmail.com
** School of Political Sciences, University of Salerno, Via Giovanni Paolo
II, 132, 84084 Fisciano (SA), Italy
agolia@unisa.it
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
the system and its laws, the tragic end of Kohlhaas can perhaps be
interpreted as the last act of resistance by which an individual asserted his
own dignity and his own reasons. Imagine that, from early-sixteenth-century
Germany, inflamed by Luther's words on Christian freedom, Michael
Kohlhaas found himself in today's world, in a constitutional state, and
discovered that even now the law is on the side of the `bad guys'. What
solution could he find? Here is a possible answer, albeit not a very uplifting
one: the private citizen who disobeys the law before the declaration of
unconstitutionality (which, after all, may not happen) is acting legitimately
only if his or her behaviour is followed by the constitutional court's
examination of the question of constitutional legitimacy.
`The right of the individual who has not obeyed an unconstitutional law'
1
results from the declaration of unconstitutionality, acting retroactively. But
which law applies if a judge deems that norm not unconstitutional? If in doubt,
whoever disobeys should know that `you do so at your own risk'.
2
It is apparent
that the idea of justice for such a citizen should correspond to a markedly anti-
utilitarian parameter ± like, for example, that outlined by Rawls.
3
In this regard, we will develop two interpretative hypotheses. First, the
birth and development of the rule-of-law constitutional state can be read in
the light of the transformation of the right of resistance (RoR),
4
no longer
understood as an individual or collective right to resist the abuse of power,
but as an institutional mechanism aimed at the `global' protection of the
legal system in its entirety. Such a mechanism of `resistance' is therefore
bound to translate, from time to time, into principles and institutions, such as
the separation of powers, political responsibility, the opposition function, the
rights of minorities (including parliamentarian ones),
5
the prohibition of anti-
system parties, conscientious objection, freedom of expression, and so forth.
Secondly, at the same time, the (admittedly paradoxical) positivization of
RoR in contemporary constitutions may be understood as a means to
potentiate and/or induce processes of (self-)constitutionalization `from
below' in transnational functional regimes. In other words, the legal
protection of social movements, protests, resistance, and civil disobedience
in a broad sense, directed against private actors, and based on constitutional
law provisions, could potentiate the self-contestation and self-limitation of
transnational regimes, especially in cases of so-called `global injustice'.
S95
1 G. Zagrebelsky, `La giurisdizione costituzionale' in Manuale di diritto pubblico, eds.
G. Amato and A. Barbera (1997) 495±7.
2 id., at p. 497. See, also, H. Heller, Dottrina dello Stato (1988) 352 (German edn.,
Staatslehre, published in 1934).
3 J. Rawls, A Theory of Justice (1971). On `justified disobedience' in Rawls, see G.
Cosi, Saggio sulla disobbedienza civile (1984) 6±27.
4 This is the point made by R. Wassermann, `Zum Recht auf Widerstand nach dem GG'
in Konsens und Konflikt-35 Jahre Grundgesetz (1986) 352.
5 G. De Vergottini, Diritto costituzionale comparato (1993) 205±8.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
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