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2 results

  • 2 - Advancing a Legal Definition of the Right

  • from Part I - The Concept
  • Shannonbrooke Murphy, St Thomas University
  • Book:
    The Human Right to Resist in International and Constitutional Law
    Published online:
    20 February 2025
    Print publication:
    27 February 2025, pp 15-40

  • Summary

    Responding to the lack of an agreed contemporary legal definition of the ‘human right to resist’, this chapter compares definitional treatments in ordinary construction with those in legal construction, identifying two related problems of conflation in contemporary term usage. It explains the term’s distinction from antecedent concepts such as the exceptio tyrannoctonos or exception of lawful tyrannicide, and from corroborative concepts including the lex generalis or ordinary ‘right of (peaceful) assembly’ and ‘right to protest’ in human rights law, ‘resistance movements’ in international humanitarian law, and ‘insurgent’ or ‘belligerent’ status in customary international law. It also clarifies the conceptual relationship between the ‘right to resist’ and its cognate terms – the ‘right to oppose’, ‘right to disobey’, ‘right to rebel’, and ‘right of revolution’ – identifying both points of differentiation and a ‘common core’. It finally proposes a consolidated contemporary working definition of the superordinate term ‘right to resist’.

The Human Right to Resist in International and Constitutional Law
  • Shannonbrooke Murphy
  • Published online:
    20 February 2025
    Print publication:
    27 February 2025
  • The human right to resist is a contemporary legal concept with an ancient pedigree. Although it has received recognition in constitutions, customary international law and human rights treaties, and acknowledgment by leading publicists of international law, it remains obscure compared to other human rights. In this innovative and comprehensive book, Shannonbrooke Murphy addresses the perennial question of who has a 'right' to resist – and what, when, why, and how, from a legal perspective. Using a systematic and comparative approach to analyzing both the theoretical concept and the provisions in positive law, this study aims to establish that a 'right to resist' can be recognized and codified as an enforceable 'human right', proposing a common conceptual language and an analytical framework for evaluating the legal basis of claims. Murphy makes a strong and detailed case for a firmer place for the 'right to resist' in the human rights lexicon.