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BARTOŇ
Právo na odpor jako ústavně zaručené
právo a jeho specifika
The right of resistance as an individual constitutional right and its specifics
Doc. JUDr. Michal Bartoň,
Ph.D., Faculty of Law of Palacký University Olomouc, Czech republic
Právny obzor,
Volume 102, 2019, No. 4, pp. 303 – 321.
Published online: 31.8.2021
Abstract. The
article deals with the right of resistance, especially with the question of the
sense (or
purpose) of its constitutional anchoring. The right of resistance as a
constitutional
subjective right cannot be claimed as a legal claim against state, neither in
the form of
a negative obligation of public authorities to respect such right, nor in the
form of a positive
obligation to fulfill and protect it. The right to resist has a natural law
basis and already
appears in early human rights documents. Its purpose is to justify resistance
against state
power in the case of violation of “social contract”. The question, whether the
right to resist
was legitimately used is more political or factual question, rather than legal.
Constitutional
anchoring of the right of resistance has therefore political and moral function
and also very
strong preventive role, mainly after the experience with totalitarian regimes.
Key words: right of resistance, social contract, natural law, constitutional
subjective right,
democratic state governed by the rule of law, human rights protection, the
sovereignty of
the people, constituent power, constituted power
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ISSN 2729-9228
(online)
ISSN 0032-6984
(print)
TEORETICKÝ
ČASOPIS PRE OTÁZKY ŠTÁTU A PRÁVA.
Právny obzor je
recenzovaný časopis a je indexovaný v databázach SCOPUS a HeinOnline
(INDEX TO FOREIGN LEGAL PERIODICALS)
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