I will try to share with you some thoughts on the resistance and the civil war. I am not reminding you that a right of resistance already exists in the ancient world, which has a tradition of praising tyrannicide, and in the Middle Ages. Thomas summarized the position 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 – Thomas says the perturbatio – against this regime is therefore not a seditio .

It goes without saying that the matter necessarily entails a degree of ambiguity as regards the definition of the tyrannical character of a given regime, as evidenced by the caution of Bartolo, who in his Treatise on Guelphs and Ghibellines distinguishes a tyrant a 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 Italian constitution. Dossetti had proposed, as you know, that the text included an article that read:

• “Individual and collective resistance to the acts of the public power that violate fundamental freedoms and the rights guaranteed by this constitution is a right and a duty of citizens.”

The text, which was also supported by Aldo Moro, was not included and Meuccio Ruini, who chaired the so-called Commission of 75 which was to prepare the text of the constitution and who, a few years later, as president of the Senate, had to stand out for the way in which he tried to prevent parliamentary discussion on the so-called fraud law, he preferred to postpone the decision to the vote of the assembly, which he knew would be negative.

It cannot be denied, however, the hesitations and objections of jurists – including Costantino Mortati – were not without arguments, when they pointed out that

• … the relationship between positive law and revolution cannot be legally regulated.

The problem  with regard to the figure of the partisan is so important in modernity,

• Schmitt defined the problem as of the “regulation of the irregular”.
• It is curious that jurists were speaking of the relationship between positive law and “revolution”: it would have seemed to me more precisely to speak of “civil war”.

Indeed, how to draw a line between the right of resistance and civil war? Isn’t civil war the inevitable outcome of a seriously understood right of resistance?

The hypothesis that I intend to propose to you today is that this way of approaching the problem of resistance overlooks the essential, that is, a radical change that concerns the very nature of the modern state – that is, of the post-Napoleonic state.

We cannot speak of resistance unless we first reflect on this transformation.

European public law is essentially a law of war.

• The modern state is defined not only, in general, through its monopoly of violence, but, more concretely, through its monopoly of jus belli. The state cannot renounce this right, even at the cost, as we see today, of inventing new forms of war.

The jus 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 the state of war and the state of peace, between the public enemy and the criminal, between the civilian population and the fighting army, between the soldier and the partisan.

Now we know that precisely these essential characteristics of jus 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 Second World War the distinction between the civilian population and the fighting army had been progressively obliterated.

• One spy is that the Geneva conventions of 1949 recognize a legal status for the population participating in the war without belonging to the regular army, on the condition, however, that commanders could be identified, that the weapons were exhibited and that there was some visible mark.

Once again, these provisions do not interest me as they lead to a recognition of the right of resistance – moreover, as you have seen, very limited: a partisan who exhibits his weapons is not a partisan, he is an unconscious partisan – but because they imply a transformation of the same state, as holder of jus belli .

As we have seen and continue to see, the state, which from a strictly juridical point of view, has now permanently entered the state of exception, does not abolish jus belli , but ipso facto loses the possibility of distinguishing between regular war and civil war.

• We are facing today a state which is conducting a sort of planetary civil war, which it cannot in any way recognize as such.

Resistance and civil war are therefore classified as acts of terrorism and it will not be inappropriate here to recall that the first appearance of terrorism after the war was the work of a French army general, Raoul Salan, supreme commander of the French armed forces in Algeria, who had created in 1961 the OAS, which means: Organization Armée Secrète . Think about the formula “secret army”: the regular army becomes irregular, the soldier gets confused with the terrorist.

It seems clear to me that in the face of this state, one cannot speak about the “right of resistance”, possibly certifiable in the constitution or obtainable from it. At least for two reasons: the first is that the civil war cannot be regulated, as the state for its part is trying to do through an indefinite series of decrees, which have altered the principle of stability of the law from top to bottom.

• We have in source a state that conducts and tries to codify a disguised form of civil war.

The second, which for me constitutes an inalienable thesis, is that in the present conditions resistance cannot be a separate activity: it can only become a form of life.

There will be real resistance only if and when each one is able to draw the consequences that concern him from this thesis.

June 2, 2022

Source: Giorgio Agamben – QUODLIBET

• Translated