On the right to resistance
Giorgio Agamben, Quodlibet, June 2, 2022
I will try to share with you some thoughts on resistance and civil war. I am not to remind you that a right of resistance already exists in the ancient world, which knows a tradition of praising tyrannicide, and in the Middle Ages. Thomas Aquinas summarised the stance of scholastic theology in the principle that the tyrannical regime, insofar as it substitutes a partisan interest for the common good, cannot be iustum. The resistance — perturbatio, as Thomas says it — against this regime is not therefore a seditio.
It goes without saying that the matter necessarily involves a degree of ambiguity as to the definition of the tyrannical character of a given regime, as evidenced by the cautions of Bartolus, who in his Treatise Concerning Guelphs and Ghibellines, distinguishes a tyrant ex defectu tituli from a tyrant ex parte exercitii, but then has difficulty in identifying a iusta causa resistendi.
This ambiguity reappears in the discussions of 1947 on the inclusion of a right of resistance in the Constitution of Italy. Dossetti proposed, as you know, that the text included an article reading: “Individual and collective resistance to acts of public power which violate fundamental freedoms and rights guaranteed by this consitution is a right and a duty of citizens”.
The text, which had also been backed by Aldo Moro, was not inserted, and Meuccio Ruini, who chaired the so-called Commission of 75 which was to prepare the text of the consitution and who, some years later, as President of the Senate, was to distinguish himself for the way he tried to prevent parliamentary discussion of the so-called “scam law”, preferred to postpone the decision to the the assembly’s vote, which he knew would be negative.
It cannot be denied, however, that the hesitations and objections of jurists — including Costantino Mortati — were not ungrounded, when they have been noting that the relationship between positive law and revolution cannot be legally regulated. That is the problem that, with regard to the figure of the partisan, so important in modernity, Schmitt defined as the problem of the “regulation of the irregular”. It is curious that jurists had been speaking of the relationship between positive law and “revolution”: it would appear to me more proper to speak of “civil war”. How, indeed, to draw a limit between right of resistance and civil war? Isn’t civil war the inevitable outcome of a seriously meant right of resistance?
The hypothesis that I intend to propose to you now is that this way of setting the problem of resistance does not catch the essential point, and, that is, a radical change that concerns the very nature of the modern state — i.e., so to speak, the post-Napoleonic state. One cannot speak of resistance without first thinking about this transformation.
European public law is essentially a right of war. The modern state defines itself not only, in general, through its monopoly of violence, but, more concretely, through its monopoly of the ius belli. The state cannot renounce this right, even at the cost — as we see today — of inventing new forms of war.
The ius belli is not only the right to make and wage wars, but also the right to legally regulate the conduct of war. It thus distinguished between state of war and state of peace, between public enemy and criminal, between civil population and combatant army, between soldier and partisan.
Now we know that just these essential features of the ius belli have long since disappeared and my hypothesis is precisely that this implies an equally essential change in the nature of the state. Already during the World War II the distinction between civil population and combatant army had been gradually obliterating itself.
One indicator is that the Geneva Conventions of 1949 acknowledge a legal status for the population participating in the war without belonging to the regular army, provided, however, that commanders could be identified, weapons were displayed and there was some visible mark.
Once again, I am not interested in these provisions as they lead to an acknowledgement of the right of resistance — on the other hand, as you’ve seen, well limited: a partisan who displays weapons is not a partisan, he is an unconscious partisan — but because they imply a transformation of the state itself, as holder of the ius belli.
As we have seen and continue to see, the state, which from a strictly juridical viewpoint, has now steadily entered the state of exception, does not abolish the ius belli, but ipso facto loses the possibility to distinguish between regular and civil war. We are now facing a state that conducts a sort of planetary civil war, which it cannot in any way recognise as such.
Resistance and civil war are hence rubricated as acts of terrorism and it will not be inappropriate here to recall that the first appearance of terrorism after the war was the doing of a French army general, Raoul Salan, supreme commander of French armed forces in Algeria, who had created in 1961 the OAS, which means: Organisation armée secrète. Just think about the formula “secret army”: the regular army becomes irregular, the soldier gets mixed up with the terrorist.
It seems clear to me that, facing such a state, one cannot speak of a “right to resistance”, eventually codifiable in the consitution or obtainable from it. At least for two reasons: the first is that civil war cannot be regulated, as the state for its part is instead trying to do through an indefinite series of decrees, which altered the principle of stability of law from top to bottom. We are faced with a state which conducts and seeks to code a masked form of civil war.
The second, which constitutes for me an irrenunciable thesis, is that under the current conditions resistance cannot be a separate activity: it cannot but become a form of life.
There will be true resistance, only if and when each one is able to draw from this thesis the consequences that concern her/him.
Giorgio Agamben, Quodlibet, June 2, 2022
I will try to share with you some thoughts on resistance and civil war. I am not to remind you that a right of resistance already exists in the ancient world, which knows a tradition of praising tyrannicide, and in the Middle Ages. Thomas Aquinas summarised the stance of scholastic theology in the principle that the tyrannical regime, insofar as it substitutes a partisan interest for the common good, cannot be iustum. The resistance — perturbatio, as Thomas says it — against this regime is not therefore a seditio.
It goes without saying that the matter necessarily involves a degree of ambiguity as to the definition of the tyrannical character of a given regime, as evidenced by the cautions of Bartolus, who in his Treatise Concerning Guelphs and Ghibellines, distinguishes a tyrant ex defectu tituli from a tyrant ex parte exercitii, but then has difficulty in identifying a iusta causa resistendi.
This ambiguity reappears in the discussions of 1947 on the inclusion of a right of resistance in the Constitution of Italy. Dossetti proposed, as you know, that the text included an article reading: “Individual and collective resistance to acts of public power which violate fundamental freedoms and rights guaranteed by this consitution is a right and a duty of citizens”.
The text, which had also been backed by Aldo Moro, was not inserted, and Meuccio Ruini, who chaired the so-called Commission of 75 which was to prepare the text of the consitution and who, some years later, as President of the Senate, was to distinguish himself for the way he tried to prevent parliamentary discussion of the so-called “scam law”, preferred to postpone the decision to the the assembly’s vote, which he knew would be negative.
It cannot be denied, however, that the hesitations and objections of jurists — including Costantino Mortati — were not ungrounded, when they have been noting that the relationship between positive law and revolution cannot be legally regulated. That is the problem that, with regard to the figure of the partisan, so important in modernity, Schmitt defined as the problem of the “regulation of the irregular”. It is curious that jurists had been speaking of the relationship between positive law and “revolution”: it would appear to me more proper to speak of “civil war”. How, indeed, to draw a limit between right of resistance and civil war? Isn’t civil war the inevitable outcome of a seriously meant right of resistance?
The hypothesis that I intend to propose to you now is that this way of setting the problem of resistance does not catch the essential point, and, that is, a radical change that concerns the very nature of the modern state — i.e., so to speak, the post-Napoleonic state. One cannot speak of resistance without first thinking about this transformation.
European public law is essentially a right of war. The modern state defines itself not only, in general, through its monopoly of violence, but, more concretely, through its monopoly of the ius belli. The state cannot renounce this right, even at the cost — as we see today — of inventing new forms of war.
The ius belli is not only the right to make and wage wars, but also the right to legally regulate the conduct of war. It thus distinguished between state of war and state of peace, between public enemy and criminal, between civil population and combatant army, between soldier and partisan.
Now we know that just these essential features of the ius belli have long since disappeared and my hypothesis is precisely that this implies an equally essential change in the nature of the state. Already during the World War II the distinction between civil population and combatant army had been gradually obliterating itself.
One indicator is that the Geneva Conventions of 1949 acknowledge a legal status for the population participating in the war without belonging to the regular army, provided, however, that commanders could be identified, weapons were displayed and there was some visible mark.
Once again, I am not interested in these provisions as they lead to an acknowledgement of the right of resistance — on the other hand, as you’ve seen, well limited: a partisan who displays weapons is not a partisan, he is an unconscious partisan — but because they imply a transformation of the state itself, as holder of the ius belli.
As we have seen and continue to see, the state, which from a strictly juridical viewpoint, has now steadily entered the state of exception, does not abolish the ius belli, but ipso facto loses the possibility to distinguish between regular and civil war. We are now facing a state that conducts a sort of planetary civil war, which it cannot in any way recognise as such.
Resistance and civil war are hence rubricated as acts of terrorism and it will not be inappropriate here to recall that the first appearance of terrorism after the war was the doing of a French army general, Raoul Salan, supreme commander of French armed forces in Algeria, who had created in 1961 the OAS, which means: Organisation armée secrète. Just think about the formula “secret army”: the regular army becomes irregular, the soldier gets mixed up with the terrorist.
It seems clear to me that, facing such a state, one cannot speak of a “right to resistance”, eventually codifiable in the consitution or obtainable from it. At least for two reasons: the first is that civil war cannot be regulated, as the state for its part is instead trying to do through an indefinite series of decrees, which altered the principle of stability of law from top to bottom. We are faced with a state which conducts and seeks to code a masked form of civil war.
The second, which constitutes for me an irrenunciable thesis, is that under the current conditions resistance cannot be a separate activity: it cannot but become a form of life.
There will be true resistance, only if and when each one is able to draw from this thesis the consequences that concern her/him.
(English translation by I, Robot)
Charlie Chaplin stands on Douglas Fairbanks’ shoulders at a Liberty bonds rally on April 1918. They are at the foot of George Washington’s statue in front of the Sub-Treasury (now Federal Hall National Memorial). Photo: Underwood & Underwood. Courtesy of The New York Times Photo Archives. |
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