Does a ius resistendi exist? Historical development and codification of an Early Modern concept

Abstract

The right to resist has always been a right sui generis: differently from other fundamental human rights, it is rarely mentioned, let alone codified. In reality, the topic has been highly discussed and theorised since the Classic Age, and it even played a main role during many of the events that characterised the Western history during the Modern Age, including the so-called Atlantic Revolutions. After a quiet phase throughout the 19th century, the right to resist lived a new revival as a reaction against the totalitarian regimes of the 20th century, but as we already noticed, we still experience difficulties in mentioning it. Thus, what is the cause of this void? This is the central question of this work, which aims at investigating the legitimacy of a hypothetical ius resistendi, writing an history of the development of this right since late Middle Ages through some essential experiences of codification and philosophical theorisations. From this historical excursus we obtain three important conclusions. First, a ius resistendi exists and always existed, not only in the theorisations of prominent scholars, but also in the justifications the leaders of several resistance movements advanced since the Modern Age. Second, contrary to the body of literature that confounds the right to resist with the right to revolution, a resistance does not constitute a subversive or rebellious act. Instead, a resistance is conservative by nature: it does not question the legitimacy of the authority, but its abuses and injustices. Third, as direct consequence of the conservative character of this right, its codification is not incompatible with the constitutional framework of democracies, representing instead an insurance for the stability of these regimes.