The Last Resort: The Right of Resistance in Situations of Legal Alienation.

Abstract

It is possible that in situations of crisis and juridical instability we have additional reasons to enforce law implacably: we wish law to gain the force it does not have; we want it to root in everybody’s habits; we want to grant our juridical life, once and for all, some predictability. It depends, however, on the sort of crisis we face. In fact, in my mind, our reaction ought to be fundamentally different if the situation we face is one of legal alienation, in other words, a situation where the law does not represent a more or less faithful expression of our will as a community. Instead, it appears as a set of rules alien to our designs and control, which affects the most basic interests of the majority of a population that happens to be subjected to it.[1] If our juridical crisis has more to do with this last situation, then it seems to be unfair to deal with all violations of the law as if performed by individuals who want to take advantage of others’ efforts. On the contrary, many of those violations could be comprehensible and possibly worthy reactions performed by certain groups facing a law that wrongfully ignores and excludes them. In such cases, that emphasis on the inflexible enforcement of law results in nothing more than an act of extraordinary dogmatism –pure injustice– which ends up turning the law upside down. Instead of rescuing those who are victims of the law, it is demanded that norms be imposed which aim at maltreating them –norms in whose creation and modification those individuals have not taken part as they should have as members of a community which seeks to set its members on an equal footing. [1] Se podría sostener para el derecho, entonces, lo que Karl Marx sostuvo para el trabajo, en cuanto a que, “the object that labour produces, its product, confronts it as an alien being, as a power independent of the producer…[the] externalization of the worker in his product implies not only that his labour becomes an object, an exterior existence but also that it exists outside him, independent and alien, and becomes a self-sufficient power opposite him, that the life that he has lent to the object affronts him, hostile and alien…the worker becomes a slave to his object” (Marx 2002: 86-7).