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Ginsburg et alii "When to overthrow your Government"

Ginsburg et alii "When to overthrow your Government"

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Published by: Liga da Justica Um Blog de Teoria Política on Aug 18, 2012
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08/18/2012

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WHEN
 
TO
 
OVERTHROW
 
YOUR 
 
GOVERNMENT:
 
THE
 
RIGHT
 
TO
 
RESIST
 
IN
 
THE
 
WORLD’S
 
CONSTITUTIONS
Tom Ginsburg,
Daniel Lansberg-Rodriguez,
!! 
and Mila Versteeg 
!!! 
 
August 6, 2012
On December 17 2010, a young Tunisian street vendor protesting an abusive police official set off a wave of democratic uprisings throughout the Arab world. Inrising up against their governments, the peoples of the Arab Spring wereconfronting an age-old problem in political theory: when is it acceptable to rise upagainst an unjust authority? This question is not only of great importance to the peoples of the Middle East today, but was also of profound interest to the American founders and, through them, has informed the very basis of modernconstitutionalism
.
 It is perhaps unsurprising then that many constitutionsthemselves provide an answer to this question, allowing the people to challenge or overthrow their governments under certain circumstances. But to date, little systematic and empirical analysis has been done on the prevalence of this so-called “right to resist” in national constitutions, or on what motivates constitution-makersto adopt such a right.This Article takes up the task. It presents a unique and original dataset onright to resist provisions in all national constitutions written since 1781, tracing itshistorical trajectory and demonstrating how it has proliferated in recent decades.The Article moreover provides the first-ever empirical exploration of why it is,exactly, that constitution-makers give their people a constitutional mandate tooverthrow or contradict their governing authorities – likely those very authoritieselsewhere empowered by the same constitution. Drawing on a range of real-world examples as well as regression analysis, we show that right to resist provisions aremost likely to be first established following a disruption of the previousconstitutional order, either through popular democratic transition or through aviolent political break such as coup d’état.
!
Spitz Professor of Law and Ludwig and Hilda Wolf Scholar, University of Chicago Law School &Research Professor, American Bar Foundation. B.A., J.D., Ph.D. University of California at Berkeley.
!!
Constitutional Research Fellow, Comparative Constitutions Project. B.A. Carleton College; M.P.P.Harvard University.
!!!
Associate Professor of Law, University of Virginia School of Law. B.A., LL.M. Tilburg University:LL.M. Harvard Law School; D.Phil Oxford University. The authors would like to thank MoisesDorey, Vahid Gholampour, Benjamin Rohgan and Trevor Moore for research assistance and LauraWeinrib, Denis Galligan and Kevin Cope for helpful comments and conversations. © 2012, Ginsburg,Lansberg-Rodriguez and Versteeg.
 
2
 RIGHT TO RESIST 
[8-Aug-12
These findings suggest that the constitutional right to resist serves a dual  function, depending on its context. On the one hand, the constitutional right toresist can represent a fundamentally democratic and forward-looking tool that constrains future government abuse, empowers national citizenry, and acts as aninsurance policy against undemocratic backsliding. On the other hand, the right can serve as a backward-looking justification for coup-makers who seek retroactivelegitimacy for whatever political crimes placed them in a position to be making anew constitution in the first place. Which of these two functions prevails may be inlarge part regionally determined. Latin American constitution-makers primarilyadopted the right to resist in the aftermath of coup d’états, while in other parts of the world the right to resist functions as a pre-commitment device against undemocratic backsliding.Our findings have significant implications for our broader understanding of constitutionalism. At the heart of any constitution, it is thought, lies a wish to bind the future on behalf of the present. Yet our findings suggest that, at least in somecases, constitutional provisions may also serve the function of reinterpreting and  justifying the past. At least where the right to resist is concerned, constitutions areas much about yesterday as they are about tomorrow.
!
Introduction .................................................................................................................. 3
!
I. The Right to Resist in Political Theory .................................................................... 7
!
A. Concept and Structure ........................................................................................ 7
!
B. Second-Order Character ..................................................................................... 9
!
II. The Right to Resist in Historical Perspective ....................................................... 11
!
A. The Chinese Tradition ...................................................................................... 11
!
B. Jewish and Islamic Religious Thought ............................................................. 14
!
C. Western Political Thought ................................................................................ 15
!
1. Medieval Antecedents ................................................................................... 15
!
2. Locke and Hobbes ......................................................................................... 17
!
3. American Founders ....................................................................................... 18
!
4. Other Revolutionary Thought ....................................................................... 21
!
D. Conclusion ........................................................................................................ 22
!
III. Positive Theory: Why Do States Adopt a Right to Resist? ................................. 22
!
A. A Forward-Looking Right: Coordination and Pre-Commitment ..................... 23
!
B. A Backward-Looking Right: Ex-Post Legitimation of Dictatorial Rule .......... 26
!
C. Summary ........................................................................................................... 30
!
IV. The Right to Resist in the World’s Constitutions ............................................... 31
!
A. The Global Spread of the Right to Resist ......................................................... 31
!
 
8-Aug-12]
 RIGHT TO RESIST 
3B. Internal Variation Within Right to Resist Provisions ....................................... 34
!
1. The Rebel’s Trinity: Three Justifications for the Right to Resist ................. 35
!
2. Other Dimensions of Variation: Conditions Predicate, Right versus Duty,and Scope ........................................................................................................... 38
!
V. What Predicts the Adoption of the Right to Resist? ............................................. 40
!
A. The Actions of Democratic Regimes and Coup-Makers .................................. 41
!
B. How and Why is Latin America Different? ...................................................... 45
!
Conclusion .................................................................................................................. 48
!
Appendix I: Full Text of all (Historical) Constitutional Right to Resist Provisions .. 53
!
Appendix II: Full Regression Results ........................................................................ 61
!
 I
 NTRODUCTION
 On December 17 2010, a young Tunisian street vendor protesting an abusive police official set off a wave of democratic uprisings throughout the Arab world.
1
Incontrast with externally imposed regime changes in Afghanistan and Iraq,
2
theformerly passive Arab peoples took it upon themselves to drive their former rulersfrom power, and called for a new basis of governance in a region long dominated bydictators.
3
While the outcomes of these political transitions are still very much in
1
 
See
Kareem Fahim,
Slap to a Man’s Pride Set Off Tumult in Tunisia
, N.Y.
 
T
IMES
, Jan. 22, 2011, atA1 (describing how, after his produce was confiscated by police officials, street vendor MohamedBouazizi set himself on fire in front of the governor’s high gate in protest, which subsequentlysparked the revolution in Tunisia as well as the uprisings throughout the Arab states).
2
 
See, e.g.
, Noah Feldman,
 Imposed Constitutionalism
, 37 C
ONN
.
 
L.
 
EV
. 857, 858-59 (2005) (notingthat the constitutions of Afghanistan and Iraq were drafted with “substantial intervention and pressureimposed from outside to produce constitutional outcomes preferred by international actors, including NATO, the United Nations, and international NGO’s, as well as foreign states like the United Statesand Germany”); Tom Ginsburg et al.,
 Baghdad, Tokyo, Kabul…: Constitution-making in OccupieStates
, 49 W
M
.
 
&
 
M
ARY
L.
 
EV
. 1139, 1139, 1141 (2008) (noting that the Iraqi constitution wasdrafted with “substantial assistance by the U.S. government”).
See generally
Benedikt Goderis &Mila Versteeg,
The Transnational Origins of Constitutions: An Empirical Investigation
, 6th AnnualConference on Empirical Legal Studies,
available at 
SSRN:http://ssrn.com/abstract=1865724 (finding empirical evidence of transnational influences in constitutional design); David S. Law &Mila Versteeg,
The Evolution and Ideology of Global Constitutionalism,
99 C
AL
.
 
L.
 
EV
. 1163 (2011)(finding empirical evidence that constitutions are standardized documents and hypothesizing that thisis the result of various types of transnational influence).
3
 
See
Fouad Ajami,
The Arab Spring at One
, F
OREIGN
A
FF
.
 
Mar./Apr., at 56 (2012) (noting that before the uprisings, the Arabs felt as if “they were cursed, doomed to despotism” and that thoughEgypt is “often written off as the quintessential land of political submission” the people throughoutthe Middle East were able to “[rise] up against their sclerotic masters”).

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