Природа ius resistendi в свете правовых школ и теорий

Abstract

Introduction. Many researchers consider ius resistendi as the right to violent uprising, while nowadays this right plays the role of a legal institution that restrains public authorities from abuses and encroachments on other human and civil rights. Ius resistendi is rooted in classical iusnaturalism, but is comprehended by means of modern natural law, legal positivism and sociological science, including the theory of conflict, which makes it possible to analyze the nature of the right of resistance more comprehensively. Theoretical analysis. The nature of ius resistendi does not belong to the state, but to individuals and society, which is confirmed by the theoretical provisions of iusnaturalism and sociological and legal science. The positive ius resistendi creates more reliable guarantees for the implementation of this right, and also increases the effectiveness as a legal institution. Еmpirical analysis. The author carried out the analysis of the constitutional acts and came to the conclusion about the possibilities of constructing ius resistendi into the body of a positive law. By legal recognition of ius resistendi, the state institutionalizes control over itself. Results. The nature of ius resistendi appears to be broader than that suggested by classical doctrines. Although ius resistendi remains in the sphere of “ideal” law, the possibility of the implementation of this right in normative acts as an institution that restrains public authorities from possible abuse, and as a “right to commit an offense” is not excluded. The positive ius resistendi acts as one of the ways to resolve the conflict of law and justice.