Abstract
The following paper focuses on the right of resistance, which is next to the state of exception one of the main exceptional legal instruments designed for resolving crises. It differs from a state exception in particular in that it may not be invoked by public authorities in a democratic Rechtsstaat, but only by citizens as subjects to its auhority. Given the existing regulation in the Czech Republic and our historical experience, the right of resistance may seem quite natural a legal institute.
However, its regulation is actually quite rare in the European context and a number of prominent legal theorists expressed strong reservations about it or even rejected it outright. In this paper, I make a distinction between the right of resistance, right of revolution and civil disobedience.
Subsequently I present four basic types of arguments raised against the right of resistance, namely arguments from (i) contradiction, (ii) anarchy and regression, (iii) redundancy, (iv) "absorption". After assessing them, I offer in conclusion of this paper answer to the question of whether the right of resistance has its place in a democratic Rechtsstaat.
One of the starting points for my analysis is the distinction between pouvoir constituant and pouvoir constitué put forward by Sieyès.