Doğan ERKAN
LAWYER – TURKEY

picture source: Created with AI

In the broadest terms, “the state as a governing organization” is constantly confronted with the legitimacy problem. Unlike previous models, the modern state, or “state of law”, expects individuals under its sovereignty to submit themselves to state authority, not with unquestioning mediocrity, but voluntarily because they believe it is the right thing to do. For this purpose, every governing system must establish an understanding to be shared by its citizens in order to give its commands the nature of a moral obligation¹.

In state conceptions outside the state of law, the point of departure for order is the obedience of the subjects. Those who monitor the development of the state of law will see that it differs from others, since it takes the right to resist as a basis for the rule of law and state order. In this sense, the very essence of law is the right to resist.²

The way in which the modern state and its rulers build “consent” of the people governed is a major topic of study, which is beyond the scope of this article. In the scope of the article, the issue is what happens when consent cannot be reproduced or when the people governed no longer consent.

We should recognize in the most basic and primordial perspective that there is no obligation to obey an illegitimate power. The obligation to obey the orders of rulers can only exist when there is a common interest and when justice is not compromised.³

The right to resist emerges as a fundamental human right when the political power acts by ignoring human rights and the fundamental principles of law. The right to resist gained particular importance during the secularization of power⁴ . The emergence of the idea that power comes not from God but from the people destroyed the idea of absolute obedience to power. Thus, the governments started to be questioned. In fact, the normative regulations leading to this conclusion have been implemented after the actual exercise of the right to resist. Resistance, as the ethos of the free person’s ontology of emancipation, emerged and matured from the act of resistance, and took its normative place and definition in the legal superstructure later. In short, we can state that in the concept of the “right to resist”, the action came first and the theory later.

In this context, a comprehensive list of the normative grounds of the Right to Resist from past to present is availa- ble in Ökçesiz’s study.⁵

Likewise, Taşkın’s study is quite sufficient for the historical/actional development and historical narrative of the Right to Resist.⁶ For the sake of procedural efficiency, we limit ourselves to citing the place of these two contexts in the relevant studies.

When we evaluate this historicity and normative documents together, we can state that the right to resist is a right defined as an action against illegitimate powers, or against a practice of a power that is not based on the “common good and common justice”,
which is assumed to have legitimacy until that moment. The acceptance of the action as a “right to resist” was only possible when it was used collectively, when the social situation was liberated from this illegitimate power and/or practice. Indeed, all normative
achievements were written by the victorious vanguard of resistance (such as the Virginia Declaration of the Rights of Man in 1776 or the French Declaration of the Rights of Man and Citizen in 1789). In each case, what decide whether or not the right of action exercised reaches the level of the right to resist are the history and the level of historical progress. Therefore, the right to resist and history are closely linked.

The Right to Resist is Positively
Embedded in the State of Law
The State of Law emerged precisely from the place where the natural rights and the citizen described by Locke were ignored, from the rejection of the forms of state prior to the conception of the State of Law, and from the crowning of this rejection with resistance. This is why natural rights and the right to resist are discussed together in the Lockean thought.

The Right to Resist is therefore intrinsic to the “law” within the State of Law, unlike previous forms of the state. Besides the above referenced historical examples, an example can be found in Türkiye’s Constitution of 1961⁷

All these examples represent the area where the right to resist – unlike the right to revolution – can be defined in positive law.

In any case, both the actual use of the right to resist and the normative discussion on the right to resist are often een to begin in relation to a de facto space of a detachment from legitimacy in power and/or its practices.

So what if the sources of power that violate the “common good and the just” are the law or the justice itself?

This is exactly what we want to talk about, namely a formula of judicial origin that recognizes the right to resist against injustice arising from the law or the judicial power itself, which claims to establish and/or produce law, and the possibilities of using the right to resist against the judicial power.

The “Legal” One…
According to Kant’s formula, “Man is free when he does not have to obey anyone but the law”⁸ . However, obedience to the law must be accompanied by the rule of law. For instance, in the case of a law authorizing every ministry or authority to do whatever they believe to be right, all the actions of those ministries or authorities will be legally valid, but they cannot be considered to be subject to the principle of “Rule of Law”.⁹

The history of the philosophy of law, especially after Nazism, has undergone the compulsory debates on this issue. They had to discuss the incompatibility of Nazi texts, formally disguised as “laws”, with the common good, justice, and even the basic standards of being law, in the context of the criminal responsibility/impunity of obeying these laws, and to establish some principles.

Fuller is another German jurist who has made important contributions to this perspective. His comprehensive argument on the need for a harmony between law and morality is summarized in the following passage:

“When a system bases its law on the general disrespect of the judges entrusted with enforcing the law, when, in order to escape the constraints of even a false legality, it resorts to terror and repression in the streets that no one can resist, and when it is true that all this is brought about by a dictatorship, it is not difficult, at least for me, to refuse to recognize it as law.”¹⁰–¹¹

Likewise, Neumann, one of the rep- resentatives of the Frankfurt School, pointed out that what is “legal” may not be “juridical” by saying “although there are thousands of technical rules to be taken into account, there is no legal field in Germany” for the period of Nazi Germany.

Hence, there may be a dialectic of conflict between the Right to Resist, which is inherent in the law of the given legal state, and the given legal norm. In fact, this is the moment of law’s per- formance. Law is re-synthesized by this dialectical conflict: the establishment of a new norm through the rejection of the previous norm, the re-establishment of the law by the re-established
norm, or the extension of the existing law. We have called this thesis “Performative Law”.¹²

If a norm disguised as positive law for the right to resist is to be violated – which would mean exceeding the lim- its of the right to resist that the existing legal order recognizes/can recognize – then “rightfulness” comes before right. The source of legitimacy for the debate on rightfulness comes from the concepts of society, historicity and morality before law. After these concepts, the dilemma of justice/injustice materializes itself in “law” as a field of struggle; the phenomenon of justice precedes the law. For the same reason, the just/unjust distinction emerges before the law. The legal system is the ground for developing a solution to this dilemma. Moreover, the limits of the ground are not only pushed from the ground itself, but precisely from the above mentioned concepts.

Therefore, what is just is superior to what is “juridical”. In Althusserian words, law is at best a super-determination of justice. Or in a more performative definition: the reconstruction of law is justice (Derrida).

In this case, how will “law” respond to a situation where what is “juridical” or “judicial” may not be just?

This perspective paves the way for the right to resist the law or the judicial decision itself when the “legal” or “judicial” one is unfair. However, it is also necessary to define a normative framework to ensure that the right to resist, which has limited itself to the legal order, extends outside and beyond this sphere.

The Radbruch formula provides a historical and academic basis to fill this framework.

In the opinion of Gustav Radbruch, who gave his name to the formula, the law, once it has become intolerable, must be recognized as unjust and withdrawn from the sight of justice… A positive law in which equality, the essence of justice, is not even attempted, but deliberately denied, is not only unjust, but completely lacking the true nature of law. Law as a system and institution, including positive law, cannot be defined otherwise than in terms of serving justice.¹³

In this case, the obligation to comply with the law disappears.

Likewise, the judicial power can also make unjust judgments on the basis of unjust law and, moreover, without relying on law. According to us, in this case, the obligation of the judicial power to comply with the judgments also vanishes.

The Radbruch Formula and
Turning the Judiciary into the
Stick of Power
The dialectic of Radbruch’s opinions can be understood through the debate between Fuller and Hart, the representatives of two opposing movements, who addressed the “laws” of the Nazi era and the decisions of Nazi judges with the dilemma of law/justice.¹⁴

This debate, criticizing not only the unfairness of the “legal” situation itself, but also the judges who applied it for their contribution to the establishment of lawlessness, reached a level which paved the way for Nazi-era judges to be held legally responsible for their decisions after the liberation from Hitler. Moreover, these judges, who formally claimed that they ruled under “laws” that conformed to the “rules of recognition”, could not escape being held responsible for the destruction of the law in its most general sense, and were
tried and punished for their decisions.

The criminal justice system and the “crime of the past – the law of the present”¹⁵ understanding of the antifascist period, despite being a rich debate, are beyond the scope of this article for now. Our subject is the moments when judges‘ decisions fall outside of justice and natural law at the command of power

We propose that there is also a right to resist the decisions of judges who turn unjust government orders into judicial decisions.

In fact, the law has no existence when the courts follow the orders of the government instead of the law in terms of determining and punishing crimes. Because judges have both the right and the duty to resist these unjust laws and executive pressure. If judges do not exercise this right, if they fail to realize this duty and consider unconditional obedience as their professional duty, citizens will replace them.¹⁶

This equation of Radbruch’s paves the way for the right of citizens to resist the unjust decisions of judges guided by power. Radbruch founded his thesis with reference to such practices and decisions of the judges of the Nazi era, based on a view and need that these judges should be held criminally liable for their decisions in subsequent ordinary law periods, and set the following as a criterion: “Because the Nazi courts used their judicial authority arbitrarily as a means of repressing every critical thought and expression…, because the ethos of the judge is to move towards justice at all costs, including his own life.”¹⁷

Such a right to resist would undoubtedly be invoked in extraordinary circumstances.

Radbruch’s definition of a state of emergency is “a situation in which the legal system is unable to protect citizens from intolerable pressure by political leaders”¹⁸ . Hence, the moment when intolerable oppression cannot be limited by law is a legitimate and even obligatory moment for the exercise of the right to resist. If such oppression is achieved through an apparent “legal” form or apparatus, this form/apparatus is no longer law, even if the government calls it so. In fact, when this desisionist form of political oppression disguised as law becomes injustice itself, and the right to resist arises.

The exercise of the right to resist is justified when legal remedies are closed or ineffective in the face of oppression, persecution and unlawful practices; when all legal remedies have been tried but no results have been obtained; when there are no adequate legal guarantees and effective legal remedies to show a common reaction against the continuous narrowing of fundamental rights and freedoms in society; or when individuals are prohibited from expressing themselves.¹⁹

Just as this article is being written, coincidentally, a legal-political process has begun in Türkiye and we have witnessed the days when opposition parliamentarians and mayors, including Ekrem İmamoğlu, the mayor of Istanbul, were investigated and arrested by
some judicial bodies, which were clearly at the disposal of the political power. Broad segments of the population realized with a natural social insight that these “judicial” disguised desisionist sentences were in fact the result of the unlawful political orders of the political power and exercised their right to resist.

Academic purpose of our article was to explain the right to resist within the law and the right to resist when judicial decisions turn into orders of political power.

In light of the recent developments in our country, it is our greatest hope that our article will provide citizens who use the Right to Resist on the streets collectively with a correct legal basis for this right.

In conclusion, we can state that a political operation, which was announced by the highest hierarchical representative of the political power with the phrase “we have bigger issues to disclose in our pockets”, was carried out by a “prosecutor/judge”, with the appearance of legality. This situation corresponds to a “state of emergency” in which injustice has reached an unavoidable level and
the people are left with no other remedy or way out. The Radbruch formula tells us it is exactly in this moment that the conditions and legitimacy for the exercise of the Right to Resist are established.

Bibliography:
Ökçesiz, Hayrettin, The Right to Resist in the State of Law, hfsa-sempozyum.com/wp-content/up-loads/2019/02/HFSA10-O%CC%88kc%CC%A7esiz3-min.pdf

Taşkın, Ahmet, The Right to Resist Against Repression tbbdergisi.barobirlik.org.tr/m2004-52-17 Ormanoğlu, Hatice Derya; Çirkin, Furkan, The Right to Resist in John Locke’s Political Philosophy dergipark.org.tr/tr/download/article-file/2690847#:~:text=Locke%2C%20otoriteyi%20elinde%20bulunduran%20kimsenin,etmekle%20direnme%20hakk%C4%B1na%20yer%20vermektedir.

Metin, Sevtap; Heper, Altan, Contribution to the Philosophy of Criminal Law: Radbruch Formula, Tekin yayınevi, February 2018

Cotterrell, Roger (2018), The Politics of Legal Science, Pinhan Yayıncılık

Erkan, Doğan, An Essay on The Enemy Criminal Law Regime Permanentized by the State of Emergency and An Alternative Theory: Performative Law, Ekin Basım Yayım Dağıtım, 2021

Schlink, Bernhard, Crime of the Past and the Law of the Present, Zoe Kitap, 2019