The right of resistance as a state law basis for transnational regimes’ self-contestation

Abstract

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.