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PRÁVO NA ODPOR JAKO ÚSTAVNĚ ZARUČENÉ PRÁVO A JEHO SPECIFIKA

100%
Bartoň M.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2019
|
vol. 102
|
issue 4
303 – 321
EN
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 fulfil 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.
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