The Right of Resistance as a State Law Basis for Transnational Regimes Self-Contestation

In section I of this article, the progressive neutralization/de-politicization of the right of resistance, from Middle Ages to modern constitutional States, is succintly recalled. Section II further analyses the positivization of the right of resistance in contemporary constitutions, and describes it as 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 dynamic value, i.e. in their functions of self-subversion for legal orders. Sections IV and V put this theoretical framework in the broader context of globalization processes, where the right of resistance – as positivized in State constitutions – may serve as a legal basis for lato sensu contestatory practices. In this way, it could be understood as a tool of (internal) re-politicization of the normative systems of un-limited transnational actors, regimes and communicative processes. Thus, the (positivization of the) right of resistance may perform two functions at the same time: on the one hand, a conservative function for States political orders, where it may serve as a defence against un-limited powers and communicative processes; on the other hand, a constitutionalizing pressure towards transnational regimes’ internal operations, where it may serve as tool of self-contestation and democratic legitimation.