Right of resistance

from Wikipedia, the free encyclopedia

The right of resistance is generally a natural law or by a positive law statuiertes right of every person, under certain conditions against government rebel laws or measures to deny them to obey.

The existence of an over-positive, natural law-based right of resistance was and is controversial in political philosophy , legal philosophy and state theory .

In Germany guarantees 20 articles of the Basic Law 4 para. Against anyone the right of every German resistance to afford who undertakes that it lays down in para. 1 to 3 constitutional order be removed when no other remedy is possible.

Legal situation in Germany

The right to resistance granted in Article 20, Paragraph 4 of the Basic Law is part of the free democratic basic order of the Federal Republic of Germany and is considered a right equal to fundamental rights. This right - introduced in 1968 in the course of the emergency legislation - reads in its constitutional text:

"All Germans have the right to resist anyone who undertakes to eradicate this order if no other remedy is possible."

The prerequisite is that a state organ or a private individual undertakes to remove the constitutional order anchored in Article 20.1 to 3 of the Basic Law, insofar as this order is unalterable in accordance with Article 79.3 of the Basic Law. According to this provision, an amendment to the GG which affects the division of the Federation into Laender , the fundamental participation of the Laender in legislation or the principles laid down in Art. 1 and Art. 20 GG is inadmissible. These include the basic elements of the free democratic basic order such as in particular the catalog of human and fundamental rights (especially human dignity and, closely related to this, personal freedom rights and the principle of equality), the rule of law, the principle of democracy , popular sovereignty , the separation of powers , constitutional and laws binding of legislative , executive and judicial branches , the federal principle , the Republic of principle and the principle of social justice .

The right to resist is directed primarily against state organs themselves, which try to suspend, eliminate or overturn the existing constitutional order through political decisions (laws, measures) (this possibility and concern was also the reason for the introduction of the right of resistance in 1968 - otherwise in connection with the simultaneously permitted constitutional restrictions in the event of an emergency). This is based on the knowledge that state organs can behave unconstitutionally, even if they act by law or on the basis of a law (as, for example, the National Socialists practiced at the beginning of their fascist tyranny in 1933 when they came to power ). The right of resistance stands at the end of a long historical development which, on an absolutist or right-wing positivist background, assumed that state action could never be wrong: “The King can do no wrong” .

It is enough just to try to remove this order. However, no right of resistance can be derived from isolated violations of the provisions on which it is based. The right of resistance is not against individual , Art. 20 GG infringing actions of government organs. Rather, it must be an attack on the fundamental order as such, the defense and restoration of which is at stake, from which the order-preserving character of a right of resistance derives. The right of resistance also presupposes that all other legal possibilities of resistance have been exhausted ( subsidiarity , ultima ratio ), so that any other remedy is objectively not possible.

The Federal Constitutional Court has so far only commented in more detail on the question of a right of resistance in its decision of August 17, 1956 on the KPD ban , i.e. before this right was included in Article 20 of the Basic Law. According to this, the court fundamentally questions whether, given the constitutionally guaranteed system of legal remedies, there is still room for such a right. A right of resistance to individual measures, however, expressly excludes it: if one were to allow such a right against individual state unconstitutional measures, one would overlook “the fundamental difference between an intact order, in which unconstitutionality may also occur in individual cases, and an order in which the state organs from disregard of law and justice spoil the constitution, the people and the state as a whole, so that the legal remedies still existing in such an order are no longer useful. ” This also creates the strict requirements for the intervention of a right of resistance in the sense of Art. 20 para. 4 GG in accordance.

If the prerequisites of the right of resistance are objectively present, any forms of resistance, be it individual or collective, are possible, even if they violate applicable law. Any crimes committed and other violations of the law are justified by the right of resistance. The one who resists must use the mildest means if he can.

The right to resist under Article 20 (4) of the Basic Law can also be found in some of the state constitutions of the federal states , whereby in part, as in Article 19 of the Bremen state constitution , there is also an obligation to resist.

Legal situation in other countries

This article or paragraph presents the situation in Germany . Help us to describe the situation in other countries.

Its constitutional regulation is not very widespread worldwide. In Portugal, after the Carnation Revolution , it was incorporated into the 1976 constitution under Article 7, Paragraph 2 .

Legal philosophical development and classification

introduction

The legal philosophical discussion of this idea has been practiced since ancient times and had its starting point in the dispute over the legitimation of the murder of tyrants . From then on, the discussion was increasingly abstracted and the abstract idea of ​​a general supra-legal right of resistance developed.

The discussion about the legitimation of written law and the question of a general supra-legal principle to which all written law must be subordinated played an essential role. In antiquity, the sophists raised the objection that written law was only the product of power and could not claim any legitimation for itself just because it was written. On the other hand, legal positivism developed , which in turn understood the legitimation of laws purely in terms of their positivity and only wanted to derive legitimation from written law.

In search of a general supra- legal legal principle , Aristotle coined the concept of the Supreme Good, others (e.g. the Stoa ) used natural law as a source of legitimation, and divine law (jus divina) was also used.

The postulate of a general right of resistance is a consequence of these findings: written law and statute must be measured against freedom (which is not to be understood as the mere absence of coercion). So whoever wants to eliminate freedom eliminates the general standard according to which only law can be right (this play on words has in fact been played over and over again in legal philosophy with the question “quid sit iuris” ). In German constitutional law, this freedom is described as a free, democratic basic order and, according to the Basic Law, is based on the principles set out in Art. 1 and Art . So every German - the right of resistance is not conceived as a human right , but as a civil right - has the right to offer resistance in the forms mentioned if these principles are to be eliminated and other remedies are not possible.

Different from the derivation, but the same result, there have also been other philosophical approaches. Montesquieu put it in the Persian Letters of 1721 as follows: If a prince , far from making his subjects live happily, wants to suppress and destroy them, the basis of obedience ends ; nothing binds her anymore, nothing ties her to him; and they return to their natural freedom . In 1776, the American Declaration of Independence established the separation from the British crown with the right of resistance, which goes back to Calvinism and the English enlightener John Locke .

The right of resistance in the philosophical discussion of the early modern period

reformation

With his criticism of the church from 1517 onwards, Luther not only questioned the spiritual authorities, but he also triggered a debate about the limits of obedience to secular authorities. The rebels in the German Peasants' War of 1525 invoked the freedom of a Christian as formulated by Luther .

Martin Luther († 1546)

Not least under the impact of the Peasants' War, Luther increasingly emphasized the Christian's duty of obedience to the secular authorities. In his doctrine of the two kingdoms , he referred to Rom. 13. Lutheran theologians subsequently remained reluctant to accept a right of resistance.

Huldrych Zwingli († 1531)

The Reformed theologians, more than the Lutheran, affirmed the right to resistance when the authorities disobey God's law. This applies, for example, to the Zurich reformer Zwingli .

Johannes Calvin († 1564)

He, too, provided for a right of resistance, which he discussed in detail in his institution (Book IV, Chapter 20; 1536–1559). After Bartholomew's Night (1572), the dispute was deepened by the monarchists and formulated concisely by Theodor Beza († 1605).

John Locke († 1704)

A staunch advocate of the right of resistance was John Locke , who addressed the subject in his Second Treatise on Government . For Locke the right of resistance follows from his theory of the social contract: People who are free and equal in their natural state have a right to self-preservation in the sense of a right to freedom, life and property. In the natural state, this corresponds to a right to self-defense against those who attack freedom, life and property and thus bring about a state of war between attacker and defender.

Through the social contract, people leave their natural state and establish a social or political state. The purpose of the treaty is to transfer protection against such attacks to a political body; At the same time, however, the individual transfers his right of self-defense to the state as a political body.

The government constituted by the social contract is supposed to protect the freedom, life and property of the individual. If a government turns this contractual purpose into its opposite through illegal attacks on freedom, life and property of the people, there is ultimately a breach of the social contract by which the government puts itself in a state of war with the people. In this way the people regain their right to self-defense. The right of resistance is therefore only a special form of the natural right of self-defense. However, its exercise presupposes that the government has no effective legal protection against the illegal attacks.

Locke counters the possible objection that a right of resistance seduces the people to rebellion and leads to discord and chaos with the following arguments: If the illegal attacks by the government affect only a few citizens, they could hardly harm the government anyway, while the people as a whole are not affected and therefore will usually not take sides. The few people affected still have a right of self-defense. If, on the other hand, the people as a whole are affected, a rebellion will certainly occur. However, the people are very attached to existing habits, so that the right of resistance can only be expected when the attacks get out of hand. The resulting state of war is then not to blame for the people, but for the government. Generally speaking, political unrest does not come from the people, but from the government. Why a defense against robbers and pirates, but not against illegal attacks on the part of the authorities, should not be clear is not clear. Without the right to resist, the citizens would be worse off than they would be in the natural state, since they would be exposed to the illegal violence of the government without being able to defend themselves against it.

When asked to whom the final decision on the use of the right of resistance should go, Locke replied: "The people should be judges". Because the government is only the people's agent, and not the decision of the agent but that of the client must be decisive.

Immanuel Kant († 1804)

In his published works, Immanuel Kant rejects a right of resistance of the people and the individual - even against evidently unjust laws. Above all, he deals explicitly with the problem of the right of resistance in two publications: In the book Über den Gemeinspruch: This may be correct in theory, but not suitable for practice (1793) and in his main work on legal philosophy, Die Metaphysik der Sitten (1797 ). Kant justifies his rejection of the right of resistance with the help of three arguments: the logical argument, the relapse argument and the bliss argument. Kant only uses the bliss argument in common words , but does not go into it in the major work on legal philosophy, Die Metaphysik der Sitten , published four years later . In this context, Kant accuses resistance of wanting to enforce their own happiness at the expense of the highest maxims of a state. While one's own happiness, which the resistance is always aiming for, only offers a very uncertain standard - which can change in the course of time - every legal norm arises from pure reason and is therefore unrestricted. The logical argument is of central importance: State power is not divisible. In that everyone who appears in the name of a right of resistance presumes the position of the sovereign , a logical contradiction to the real sovereign arises.

“Because in order to be authorized to do the same [note: the resistance], a public law would have to exist which allowed the resistance of the people, i. H. the supreme legislation contained a provision in itself not to be the supreme [...]; which contradicts itself. "

- Immanuel Kant : The Metaphysics of Morals

Kant justifies the fallback argument with the indispensable priority of a “legal state under public laws” over the “ natural state ”. According to Kant, every resistance means a step back towards the state of nature. Only in a secure legal situation can each person be reliably assigned his own. Therefore, according to Kant, every positive law is sacred and must not be questioned. One must look at it (the law) as if it were not some legislature but God himself who made the law.

According to Kant, only one form of resistance is allowed, namely “the use of the pen”, that is, the freedom to express one's thoughts about legislation in public. However, he only allows this form of resistance to apply to a limited extent. In particular, it allows citizens only those forms of criticism that are still within the framework of the current order.

"Because the government's reputation consists precisely in the fact that it does not allow its subjects the freedom to judge right and wrong according to their own terms, but according to the regulations of the legislative power."

- Immanuel Kant : The dispute between the faculties

Kant categorically rejects the idea of ​​a right to resist state norms: He does not recognize exceptions either with regard to unjust laws or for other reasons. Every legal system - even if it emerged from sheer violence - deserves unconditional priority over every form of the state of nature, regardless of its content. This rigor distinguishes Kant from Hobbes. According to Hobbes, citizens owe obedience to the sovereign only as long as the sovereign is able to guarantee them a minimum of security.

Immediately after the publication of the “Metaphysics of Morals”, the reviewer Friedrich Ludewig Bouterweck accused Kant of taking a paradoxical position. Kant demands from his readers that

“Most paradoxical of all paradoxical propositions [to recognize], the proposition that the mere idea of ​​supremacy should compel me to obey everyone who poses to my master as my master, without asking who gives him the right to command me . "

- Friedrich Bouterweck : Review of Kant's Metaphysical Beginnings of Legal Doctrine

In secondary literature, therefore, Kant's categorical rejection of the right of resistance is predominantly viewed as problematic. Above all, it is criticized that Kant's conception in this regard does not agree with his categorical imperative and the justification of the general human right to freedom that arises from it . For this reason, attempts have been made again and again to portray Kant's position as inconsistent and to show that the recognition of a right of resistance is entirely compatible with the rest of his philosophical system. In contrast, the Italian philosopher Domenico Losurdo emphasizes the concrete historical context in which Kant formulated his rejection of the right of resistance. In his fundamental agreement with the revolutionary events in France he - u. a. because of possible censorship in less clear language - essentially want to emphasize the illegitimacy of the Catholic reaction, which pursues particular goals, in the form of the uprising of the Vendée . The supposed reactionism and conservatism of Kant turn out to be its opposite.

See also

literature

  • Karl Friedrich Bertram: The right of resistance of the Basic Law . 1970, ISBN 3-428-01800-1
  • Karl Friedrich Bertram: Resistance and Revolution. A contribution to differentiating the facts and their legal consequences . 1964, ISBN 3-428-00109-5
  • Angela De Benedictis / Karl-Heinz Lingens (eds.): Knowledge, conscience and science in the law of resistance (16th to 18th centuries) . Frankfurt am Main, 2003; ISBN 3-465-03280-2
  • Robert von Friedeburg (ed.): Right of resistance in the early modern times . Results and prospects of research in a German-British comparison. In it u. a. ders .: Right of Resistance in Modern Europe. Subject of research and research perspectives, pp. 11–59, Journal for Historical Research, supplement 26, Berlin 2001, ISBN 3-428-10629-6
  • Konrad Hesse : Basic features of the constitutional law of the Federal Republic of Germany . 20th edition, Heidelberg 1999, ISBN 3-8114-7499-5 , Rn 757 ff.
  • Frauke Höntzsch: "The classic doctrine of the right to resist", in: Birgit Enzmann (Ed.): Handbook Political Violence. Wiesbaden 2013, 75–95, ISBN 978-3-531-18958-1
  • David Johst: Limiting Legal Obedience. The debate about resistance and the right to resist in West Germany 1945–1968 , Tübingen 2016, ISBN 978-3-16-153102-6
  • Arthur Kaufmann : On disobedience to the authorities: aspects of the right of resistance from ancient tyranny to the unjust state of our time, from suffering obedience to civil disobedience in the modern constitutional state. 1991, ISBN 3-8226-1391-6
  • Fritz Kern : Divine right and right of resistance in the early Middle Ages: On the history of the development of the monarchy . 6th edition, Darmstadt 1973.
  • Bodo Missling: Resistance and Human Rights. The right of individual resistance to human rights violations based on international law. 1999, ISBN 3-932694-64-3
  • Klaus Peters: Right of Resistance and Humanitarian Intervention . Cologne [u. a.] 2005, ISBN 3-452-26066-6
  • Klaus Roth, Bernd Ladwig: Right to Resistance? History of ideas and philosophical perspectives (= studies on basic and human rights; 12). Universitäts-Verlag, Potsdam 2006, ISBN 978-3-937786-84-1 ( full text )
  • Josef Spindelböck : Active right of resistance. The problem of the moral legitimacy of violence in the confrontation with unjust state power. A basic representation of the history of the problem . St. Ottilien 1994, ISBN 3-88096-470-X
  • Markus Tiedemann / Lea Eisleb , right to resistance. On the theory of political denial. Kohlhammer, Stuttgart 2018, ISBN 978-3-17-034355-9

Web links

Individual evidence

  1. ↑ See Marsavelski, A. (2013) The Crime of Terrorism and the Right of Revolution in International Law Connecticut Journal of International law, Vol. 28, pp. 266–285.
  2. ↑ Sommermann in: von Mangoldt-Klein-Starck: Das Bonner Grundgesetz , 5th edition 2005, Art. 20 marginal number 340
  3. ↑ a b Jarass / Pieroth: Basic Law for the Federal Republic of Germany. Commentary , 10th edition, Beck, Munich 2009, ISBN 978-3-406-58375-9 , Art. 20 marginal number 129
  4. ↑ Herzog in: Maunz – Dürig: Basic Law. Commentary , loose-leaf edition, Art. 20, IX 45
  5. ↑ a b c d BVerfG, judgment of August 17, 1956, Az. 1 BvB 2/51; BVerfGE 5, 85 , 377 ff. - KPD ban.
  6. ↑ Jarass / Pieroth: Basic Law for the Federal Republic of Germany. Commentary , 10th edition, Beck, Munich 2009, ISBN 978-3-406-58375-9 , Art. 20 marginal number 130
  7. ↑ Herzog in Maunz-Dürig: Basic Law Commentary , loose leaf edition, Art. 20, IX 56
  8. ^ Dolzer in: Josef Isensee / Paul Kirchhof (eds.), Handbuch des Staatsrechts der Bundes Republik Deutschland , Vol. VII, 1992, § 171 Rn 40
  9. ↑ Alexander Blankennagel, Ingolf Pernice, Helmuth Schulze-Fielitz: Verfassungen im Diskurs der Welt , Mohr-Siebeck, 2004, ISBN 3-16-148361-8 , p. 345
  10. ^ The Calvinist Connection. Retrieved March 27, 2017 .
  11. ^ Franz Brendle: The denominational age. Berlin: Akademie Verlag 2010, ISBN 978-3-05-004554-2 , S. = Brendle, Zeitalter (2010), S. 37
  12. ^ Franz Brendle: The denominational age. Berlin: Akademie Verlag 2010, ISBN 978-3-05-004554-2 , S. = Brendle, Zeitalter (2010), S. 37
  13. ↑ Beat Hodler: Luther and Zwingli's right of resistance - a comparison , in: Zwingliana 16/5 (1985/1), pp. 427-441.
  14. ^ After Friedrich Wilhelm Graf : Der Protestantismus. History and present. 3. Edition. Beck, Munich 2017, ISBN 978-3-406-70824-4 (CH Beck Wissen), p. 45 f.
  15. ↑ Walter Euchner , John Locke for an introduction , Hamburg, 2nd ed. 2004, p. 119
  16. ↑ John Locke, Two Essays on the Government , edited and introduced by Walter Euchner, Frankfurt am Main, 1st ed. 1977, pp. 203 ff., 211
  17. ↑ John Locke, Two Essays on Government , edited and introduced by Walter Euchner, Frankfurt am Main, 1st ed. 1977, pp. 212, 253
  18. ↑ John Locke, Two Essays on Government , edited and introduced by Walter Euchner, Frankfurt am Main, 1st ed. 1977, p. 327
  19. ↑ John Locke, Two treatises on the government , edited and introduced by Walter Euchner, Frankfurt am Main, 1st ed. 1977, p. 329 f.
  20. ↑ John Locke, Two treatises on the government , edited and introduced by Walter Euchner, Frankfurt am Main, 1st ed. 1977, p. 330 f.
  21. ↑ John Locke, Two Essays on Government , edited and introduced by Walter Euchner, Frankfurt am Main, 1st ed. 1977, p. 343 ff.
  22. ^ John Locke, Two Essays on Government , edited and introduced by Walter Euchner, Frankfurt am Main, 1st ed. 1977, p. 345
  23. ↑ Peter Unruh, The rule of reason. On the state philosophy of Immanuel Kant , Baden-Baden 1995, p. 199
  24. ↑ Immanuel Kant, On the common saying: That may be correct in theory, but is of no use in practice , in: Kant's works, ed. from the Royal Prussian Academy of Sciences, Berlin, Vol. VIII, 1908, pp. 273-313
  25. ↑ Immanuel Kant, Die Metaphysik der Sitten , in: Kant's works, ed. from the Royal Prussian Academy of Sciences, Berlin, Vol. VI, 1902 ff., pp. 203–372
  26. ↑ See Peter Unruh, Die Herrschaft der Vernunft. On the state philosophy of Immanuel Kant , Baden-Baden 1995, p. 200
  27. ↑ Immanuel Kant, Die Metaphysik der Sitten , in: Kant's works, ed. from the Royal Prussian Academy of Sciences, Berlin, Vol. VI, 1902 ff., pp. 203–372, 319
  28. ↑ Cf. Immanuel Kant, Die Metaphysik der Sitten , in: Kant's works, ed. from the Royal Prussian Academy of Sciences, Berlin, Vol. VI, 1902 ff., pp. 203–372, 319
  29. ↑ Wolfgang Kersting, Well-Ordered Freedom - Immanuel Kant's Legal and State Philosophy , Frankfurt a. M. 1993, p. 471
  30. ↑ Immanuel Kant, The dispute of the faculties , in: Kant's works, ed. from the Royal Prussian Academy of Sciences, Berlin, Vol. VII, 1902 ff., pp. 1–116, p. 25
  31. ↑ Cf. Immanuel Kant, Die Metaphysik der Sitten , in: Kant's works, ed. from the Royal Prussian Academy of Sciences, Berlin, Vol. VI, 1902 ff., pp. 203–372, 318
  32. ↑ Bouterwek's full-text review on the University of Bonn website
  33. ↑ See instead of many Bernd Ludwig, Commentary on Constitutional Law (II) , in: Otfried Höffe (ed.), Immanuel Kant, Metaphysical Beginnings of Legal Teaching , Series “Klassiker Auslegen”, Vol. 19, Berlin 1999, pp. 173–194 , 189 f.
  34. ↑ See only: Werner Haensel, Kant's doctrine of the right to resist. A contribution to the systematics of the Kantian legal philosophy , Berlin 1926
  35. ↑ Cf. Domenico Losurdo, Immanuel Kant - Freedom, Law and Revolution , Cologne 1987, pp. 34–44