On the nature of the right to resist: a rights-based theory of the ius resistendi in liberal democracies

Abstract

Contesting the nature of right to resist continues to be of concern to those in power, for it poses the fundamental question about their legitimacy. From to Antigone to the Occupy Wall Street movement, individuals and communities have expressed their grievances and resisted oppression through a myriad of strategies. And although those taking the streets use the language of rights and appeal to a higher law to vindicate their claims, resistance has usually been considered a political, or rather, a security affair. The thesis vindicates the place of the ius resistendi in the normative order and uses legal probe to evince that there are no reasons why it could not be considered a legal right, except for political opportunity. The thesis challenges some basic postulates of liberal legal theories and develops a broader conception of rights, one in which reserved rights are part of a democratic normative system that performs in a manner consistent with its fundamental values. A primary, indeterminate right, the ius resistendi, I contend, embodies the Arendtian right to have rights.