3 - Clarifying the Nature and Legal Function of the Right

Summary

This chapter examines the contours of theories and debates about the nature and function of the right to resist as a legal concept. Firstly, it identifies four main approaches to conceptualizing the nature of the right: as moral, legal, both, or other. It then considers three main conceptions of the concept’s relationship to the rule of law. Concerning its other key characteristics, the chapter considers possibilities including that it is: a fundamental ‘human right’ in the political rights cluster; an ‘unenumerated’, ‘implied’, or ‘latent’ right; an enforceable ‘claim’ right; a ‘right’ or ‘duty’ or hybrid ‘right-duty’; a primary or secondary right or both. Secondly, the chapter identifies possibilities for the legal function of the right, including as: a self-help remedy for enforcement or prevention; an exceptional immunity, justification, or temporary permission by license; a form of jus ad bellum; or a lawful exception and lex specialis rule. It concludes non-exclusively that the nature of the contemporary right to resist is a potentially enforceable human right, functioning as a lex specialis rule of exception.