5 - Domestic Provision in Constitutional Law

Summary

This chapter assesses the richest source of positive law on the right to resist, in its historical and contemporary iterations. It first considers several examples of antecedent provisions for lawful tyrannicide in ‘ancient constitutions’ or equivalent law including customary law. It then reviews examples of provisions for a right to resist unlawful exercise of power in Middle Ages ‘constitutions’ or public law equivalents including customary law, and other quasi-constitutional sources such as coronation oaths, as well as intervention appeals rooted in custom. It concludes consideration of the historical right to resist provisions with a review of key modern revolutionary republican and anti-colonial foundational declarations and constitutions. The remainder of the chapter concerns approximately forty contemporary constitutional provisions for the right to resist in African, Asian, European, and Latin American constitutions. Using the template developed in Chapter 4, it provides comparative analysis of their legal features and content. Finally, the chapter evaluates the provisions’ legal meaning by way of a two-fold typology, and their legal value against the question of ‘sham law’.