Reframing civil disobedience: Constituent power as a language of transnational protest

Maus’ original criticism

Among contemporary democratic theorists, Ingeborg Maus (2011) is one of the staunchest defenders of popular sovereignty and the constituent power of the people. While many readers of her works have applauded her radical democratic credentials, some have been alienated by her implacable hostility towards the languages of ‘resistance’ and ‘civil disobedience’ as tools for democratic protest (Scheuerman, 2019). Maus’ (1992) criticism addresses the pre-modern origins of the repertoires of dissent and urges protesters to stop acting as if they were petitioning medieval authorities with a bona fide ‘right to rule’ (1992: 32, my translation, PN). In mimicking complaints against a god-given and time-invariant autocratic order, protesters judge legitimate and illegitimate rule by pre-democratic criteria. Maus argues that already in the High Middle Ages, the narrative of resistance was fully formed independently of the idea of popular sovereignty, and that it has retained an anti-tyranny logic that is neutral vis-a-vis a government’s democratic credentials. She finds examples for a strictly defensive logic of resistance not only in medieval attempts to restore inviolable orders, but also in the resistance clause of the German Grundgesetz, in campaigns aiming to re-establish democratic rule after coups d’état, and even in the strategies of civil disobedience in the black emancipation and civil rights movements (Maus, 1992: 33). For Maus, the crucial distinction between resistance and constituent power can be spelled out with recourse to the social contract tradition. Claims to resistance derive their legitimacy not from the horizontal social contract or pactum unionis proposed by authors like Hobbes, Rousseau, or Kant, but from a very different and additional vertical contract retained by authors such as Pufendorf or Achenwall. This is a contract of subjection (pactum subiectionis), specifying the respective rights and duties of rulers and citizens, violations of which can be redressed via a right to resistance (see Achenwall and Pütter, [1750] 1995: 215, 259–61; and compare Kant, [1793] 1996: VIII 297). Moving on from vertical contracts of subjection to the modern horizontal social contract allows replacing appeals to resistance with appeals to popular sovereignty, that is, the control of constituent power and all other legislative power by the people.

Constituent power, for Maus, is an extra-legal category that designates a constitution-making subject as pre-existing the legal order and continuing to exist beside it. It is the original, democratic power of the people who confer all authority upon the constitution and, directly or indirectly, on all subsequent legislation (Maus, 2011: 79). In contrast to the restrictive triggering of ‘resistance’ if and when government breaches the people’s trust – a legacy that still survives in horizontal contractualists like John Locke ([1689] 1988: II § 242) – the people can activate constituent power at all times, and not just when there is reason to suspect that government is abusing its power. Maus emphasises Emmanuel Sieyès’ idea that no constituted authority may change the conditions of its own operation, whereas the people themselves can never be peremptorily bound by their constitution (Sieyès, [1789] 2003: 138). With Sieyès, she notes that referring to ‘the people’ vis-a-vis its constituted authorities does not necessarily entail an anti-representative bias. It is rather meant to bar all other office-holders from engaging in constitutional politics or getting involved in constitutional change. In contrast, the people can always generate new forms of exercising their power. With a nod to Niklas Luhmann, she argues that popular sovereignty means that ‘[t]he entire legal and constitutional order depends for its validity on the fact that the people have not yet changed it’ (Maus, 1992: 40; cf. 2011: 91). The ways of changing the constitutional order are up to the people, such that only those who do not hold political power or office can seek out institutional as well as non-institutional avenues for their activism.

What are the systematic grounds of Maus’ polemic? She puts forward three concerns against framing civic action in the narratives of resistance and civil disobedience. They impose conformity with the constituted order, obstruct a clear view of the grounds of non-compliance, and express a servile mind-set. I take up these concerns in turn.

First, if the exercise of resistance invokes provisions entrenched in a constitutional order, then all legitimacy it can muster must be a reflex of that order. It is then hard to see how those subjected to a constitutional order can possibly claim to want to transcend it. Art. 20, § 4, of Germany’s Basic Law is a paradigm of such a limited entitlement, authorising German citizens to wage acts of resistance against whomever endeavours to do away with its already established constituted order. Where resistance and civil disobedience are not explicitly based on the pre-existing order, they often invoke moral and conscientious arguments, and are accordingly reserved, by political philosophers, for rare and heavily circumscribed occasions (Rawls, 1971), which can seem unduly restrictive. Why force people to speak in a moral idiom if the demos is free to cast off its current constitutional trappings anyway?

Second, Maus believes that appeals to resistance and the use of violence go hand in hand. She sees orientations to resistance as encouraging the pseudo-legitimate use of force, especially in avant-garde and revolutionary justifications. With Kant, she holds that resistance can be an ‘ideal’ claim but never a ‘coercive’ one and accepts that responsibility for endangering the civil condition lies with those who revolt (Maus, 1992: 71, 82). She does not see the possibility of justifying violent resistance outside of situations of supreme necessity. At the same time, she sees no positive obligation for justifying non-violent non-compliance with executive power. This is not to deny that the people may have political obligations vis-a-vis their democratic legislature, but the absence of a contract between the people and the government administration means that there is no reason to rule out the pro tanto legitimacy of illegal protests against the holders of executive power. The burden of justification lies on those who want to rein in such protest.

The third and final point concerns the requisite mind-set for resistance and civil disobedience. Maus sees citizens claiming a right to resistance as displaying a misled form of legalistic pride: Even in disturbing the public order, they want to be on the right side of the law. Civil disobedients are people, in Lenin’s cruel metaphor, who make sure they have platform tickets when mounting a revolutionary takeover of the train stations (Maus, 1992: 66). Activists’ conformism is moreover revealed in their choice of addressees for their protests. Maus (1992) understands the performance of resistance and disobedience as directed exclusively at the courts, as if their enlightened interpretation of the constitution could set oppressive realities right:

By aiming at a judicial interpretation of the legal status quo, the strategy of symbolic rule violations does not constitute a trigger for processes of democratic will-formation, leading to a comprehensive change in law, but restricts itself to seeking legal recourse. (1992: 37)

In rising up against government, protesters still display the servile mentality Maus (2018) associates with the psychoanalytic term of ‘regression’: a subjection to the judiciary as collective super-ego.

Summing up, what can we take from Maus’ criticism? Resistance and disobedience seem haphazard and impressionistic, while constituent power is a comprehensive and systematic basis for democratic protest. Whereas resistance and disobedience seem geared to defending the status quo, or the status quo ante, constituent power can be genuinely transformative. It aims at constructive transformation in the making of new laws and constitutions, not at conserving legal achievements against governmental encroachment. Next, there is the issue of non-compliance, where Maus sees a mentality at work, present in resistance and civil disobedience, that is at the same time overly oriented to legal entitlements (a right to resistance) and out of control, in that it potentially invokes its purported supra-positive entitlements in a violent way. What her arguments suggest is that non-violent illegal conduct, if seen as contributing to democratic law-making, could find a broader basis in the authority to create than in the authority to defend. It would exemplify a democratic voluntarism opposed both to traditionalism and to the heightened moral demands that authors on resistance and civil disobedience insist upon.

Admittedly, Maus spends little time on the conditions of legitimate articulation, activation and use of constituent power. While it would be self-contradictory to expect a fully comprehensive account – one feature of constituent power is that its manifestations cannot in principle be determined in advance – this does not rule out that all recourse to it must fulfil some necessary conditions. One reason for this limitation is that Maus’ conception of popular sovereignty, not unlike the language of resistance she criticises, is geared to the nation state polity. This circumscribes, first, its meaning and function: Popular sovereignty is to ‘subject all state apparatuses to the constitution controlled by the people’ (Maus, 2011: 77). Second, it presupposes that we know the composition of ‘the people’ and its scope of potential activity in advance: A people is a collective of individuals under law (Maus, 2006: 468). The personnel, as it were, of constituent power has already been fixed by the two co-extensional criteria of subjection to the law and membership in a constitution-making and law-making body. As soon as we take our investigation forward to contexts beyond state borders, we can no longer rely on fixed functions, subjects and personnel of constituent power, or consolidated views on its articulation and exercise.

Resistance and civil disobedience now

How does Maus’ critique stand up when confronted with contemporary conceptions of resistance and civil disobedience, and how can it contribute to their development? The first thing to note is that the concepts of resistance and disobedience on the one hand, and popular sovereignty and constituent power on the other are not logically or systematically opposed to each other. Resistance and civil disobedience are types of political action, while popular sovereignty and constituent power are Hohfeldian powers (Schmelzle, 2012), such that it is possible that the former types of activity draw on, contribute to, or instantiate exercises of the latter type of powers. The central conflict between the narratives of resistance and disobedience and the narrative of constituent power may lie in their scope, extension, advantages and disadvantages as justificatory languages. In this section, I will explore the remains of the conflict, following suggestions by Michael Walzer and Robin Celikates.

Michael Walzer (2017) has recently confirmed Maus’ pre-democratic genealogy of resistance: ‘Long before men conceived of a plastic political order which could be refashioned at will, they had developed modes of response to oppression’. He also confirms its traditionally defensive character. Acts of resistance ‘were not aggressive and transforming, but were rather defensive and limited: they were designed to defend natural law, traditional rights or legal order’. In a thumbsketch definition, Walzer characterises resistance as itself

a form of collective civil disobedience. It involves physical presence and solidarity; it appeals to moral law or human rights; it is usually illegal but non-violent; it is locally and communally based; its activists are angry citizens and lower-level officials.

Besides its ‘appeals to moral law or human rights’, it is especially the last-mentioned group of ‘lower-level officials’ that must set Walzer’s conception of resistance apart from Maus-type appeals to popular sovereignty. As Walzer recognises, such resistance comes from instituted bodies sworn to protecting the integrity of the constitutional order.

Practices of resistance may be facilitators for a politics that goes beyond defensive activities, as they can play an important role in the emergence of new associations and new collectives. But resistance is ‘ideally the act of an already constituted political community … [with] roots in some shared identity or shared trouble and in a collective sense of power and possibility’ (Walzer, 2017). A democratic setup is not, strictly speaking, necessary, nor is an appeal to the power of renewal that is articulated in claims to sovereignty and constituent power. Walzer thus confirms Maus’ point about the self-contained defensive character of resistance, but in contrast to her sees no principled conflict with a more constructive oppositional democratic politics. He propagates combining practises of resistance with strategies of winning power, but ignores those which put the entire constitutional frame of politics into question. What is missing in Walzer’s approach, viewed from Maus’ account of the open-ended and continuously changing ways in which constituent power manifests itself, is the dimension of a contentious non-institutionalised politics over and above the defensive activities of resistance. Resistance in itself will not generate such a politics. It is therefore too sweeping to assert that ‘[r]esistance against tyrannical rule is a manifestation of constituent politics and an affirmation of popular sovereignty’ (Kalyvas, 2013). For an internal connection between protest and constituent power, we need to look elsewhere.

Robin Celikates’ long-term project is to expand the bounds of liberal conceptions of civil disobedience. With the liberal paradigm, Celikates accepts that civil disobedience is a form of dissent, protest or resistance (Rawls, 1971: 363). Civil disobedience for Celikates, not unlike resistance for Walzer, is a way of saying ‘no’. He reconstructs and discusses the conceptual features conventionally taken to define it, those of symbolic expression, non-violence, publicity, limitation of goals, the addressing of state institutions, and finally its restriction ‘to transforming the system within its existing limits’ (Celikates, 2016: 986). In contrast to Maus’ original supposition, Celikates does not see civil disobedience as addressed to courts at all, but as directed to one’s fellow citizens, with a view to initiating a dynamic that aims at legislative change. He likewise rejects the view (not Maus’) that civil disobedience should be addressed towards the powerholders in the executive: It should not be guided ‘by the phantasmatic idea that “the state” is a “cold monster” in front of us that we have to, and can, fight directly on the street’ (Celikates, 2016: 988). Civil disobedience is not primarily an antagonistic confrontation between state and citizenry, but can find its place within the various law-making practices of democratic politics. Democracies can be marred by structural – that is, institutional or material – shortcomings or blockades. Faced with such hindrances, civil disobedience can ‘be understood as a form of democratic empowerment that aims for a more intensive and/or more extensive form of democratic self-determination’. In this confrontation, civil disobedience can be taken to express ‘the horizontal constituting power of the association of citizens or of those who are governed’ (Celikates, 2016: 989). Invoking constituent power as a challenge to constituted authority is very much in line with Maus’ aims and hopes for the exercise of popular sovereignty, and Celikates believes that, where intra-institutional activities will not suffice, civil disobedience is a necessary ingredient of more inclusive and substantive self-determination. He joins Maus in her criticism of an exclusively moral language of justification for civil disobedience:

[A]lthough the motivations behind these forms of protest will often be substantial, their justification follows a procedural rather than a substantial logic, pointing to problems with the ‘input’ and organization or process of democratic opinion- and will-formation rather than with the ‘output’ or decisions these processes ultimately lead to. (Celikates, 2016: 989)

Celikates (2016: 988) then blurs the clear-cut integration of civil disobedience into the communicative struggles for winning over our fellow democratic citizens when he claims that disobedience necessarily includes a moment of ‘real’ and not just symbolic ‘confrontation’. But if we see civil disobedience as a mode of activity that facilitates, improves or even embodies democratic self-determination, it can be understood as finding justification in tapping into constituent power. Under Maus’ grassroots conception, the highlighting of democratic deficits in symbolic yet illegal ways may be among the unpredictable routes in which the perpetually malleable competence of constituent power manifests itself. Civil disobedience, as an illegal yet transformative activity, can be understood as one form of its extra-institutional articulations.

The transnational dimension

Once we move on to transnational political contexts, however, any attempted reconciliation between the languages of civil disobedience and constituent power is in danger of obliteration from both sides, and resistance may seem to offer the narrative of choice. ‘Resistance’ can address any level of government in multi-level polities like the EU, as well as an institutionally fluid global order (Daase and Deitelhoff, 2019), whereas it is not yet clear whether civil disobedience and constituent power can be successfully transnationalised. Both categories were specifically tailored for statist polities, with constituent power comprising the citizenry, and civil disobedience addressing citizens’ disagreement with existing law. Nor is the term ‘civil’ in civil disobedience a coincidence, since it seems to entail a membership condition: All and only the members of the collective subjected to its laws are entitled to contest those laws in this function (Rawls, 1971: 363; Smith, 2017: 479–80). It is not clear whether constellations beyond states provide for suitable, functionally equivalent status conditions.

Likewise, there is reason to be sceptical about transnational narratives of pouvoir constituant, since it seems possible that the requisite collectives that qualify as potential bearers of constituent power do not exist. The EU provides what is perhaps the most congenial object for an emerging narrative of constituent power, and various candidates for holding transnational constituent power have been discussed (Habermas, 2012; Patberg, 2017a; Preuss, 2011; Walker, 2008). Taking institutional and civic integration as their point of departure, authors have increasingly criticised the traditional view that because the EU is based on international treaties, constituent power in the EU must lie with its member states, the ‘masters of the treaties’. On the contrary, the allocation of constituent power reacts to the results of successful post-national institution-building and does not precede it. Of course, relying on an artificial and ex-post generation of constituent power runs counter to our substantialist intuition that constituent power would have to pre-exist polity-formation, not just in a logical sense, but also in an historical sense. In reply, it can be argued that through processes of bootstrapping, constitutionalisation within and beyond states typically produces its constituent subjects (Niesen, 2017a). Notwithstanding the initial ‘usurpation’ of constitution-making powers by actors such as state executives in striking up international treaties, or by supranational courts interpreting their mandates in an extensive manner, the emergence of constitutional practices that trigger recourse to legitimating subjects cannot fail to empower transnational constituent subjects post hoc.

With regard to the EU, four main views on allocating constituent power have been proposed (Niesen, 2017a; Patberg, 2017b). The first is a demoi-cratic account. According to this view, constituent power lies with the peoples of the member states, who have opened themselves up to transnational interests and concerns (Cheneval and Schimmelfennig, 2013; Nicolaïdis, 2013). This approach accepts what we might call monism, the view that there can only be a single bearer of constituent power at any given time. For demoi-crats, states have entered into the EU federation, but their peoples (understood as collectives with transnational sensitivities) have retained their final decision-making powers for making and un-making the law. The second and third variants reject monism about constituent power. According to one dualist approach, constituent authority lies both with the several peoples and with their compound set (Brunkhorst, 2016; Cohen, 2012). Another dualist conception is Jürgen Habermas’ account of the pouvoir constituant mixte, a position that allocates constituent power with individuals in their two simultaneous roles as citizens of their peoples and citizens of the Union (Habermas, 2017). The fourth position, regional cosmopolitanism, reverts to monism in that it sees constituent power ascribed exclusively to European citizen-subjects (Eriksen, 2016).

What is common to all these accounts is that they understand their approaches as reconstructions interpreting the current state of institutional integration in Europe. They give neither a purely historical nor a legal-positivist nor a politically realist account of where constituent power lies in the EU. Authors see the pouvoir constituant for the EU as having emerged through institutional innovation and change, although they diverge on how significant they rate the introduction and development of European Citizenship since the Maastricht Treaty. All have come up with reformist programmes. Demoi-crats want to see the fate of the Union entrusted to peoples that have the border-crossing interests of their and other citizens firmly in view. The pouvoir constituant mixte-hypothesis is at the basis of a reformist agenda that propels the pan-European democratisation of central policy areas such as financial, social and labour market policies, but refrains from further integration in the protection of civil rights (Niesen, 2017b). The defenders of this approach view the existence of the co-legislating European Parliament as an anticipatory overtaxing of a political system that can only discharge its advance legitimation by recognising its already instituted co-constituent powers. Both the demoi-cratic and pouvoir constituant mixte approaches see their revisionist allocation of the pouvoir constituant in the EU as final, and as not open to further development given the type of legal order the EU constitutes (for a critique, see Scheuerman, 2019). However, in none of the four variants have theorists spent much time on the question of which role they foresee for the subjects of constitutional change, or in which ways their agency will find institutional or extra-institutional resonance. Legal and political theory have provided studies attempting to identify constituent power(s), but have not so far complemented them with accounts of their articulation, activation, or exercise. In fact, the bootstrapping ascription of constituent power can, in principle, do without the actual participation of those who ‘own’ it, as a merely formal reference to a subject to whom constitutive authority is imputed. Scrutinising the narratives of protest is one way of bringing the category to life, in connecting it with political agency.

Disobedience and constituent power in the ‘Democracy in Europe Movement 2025’ (DiEM25)

European integration and its various crises have not only triggered new theoretical accounts, they have also seen popular strategies of constituent power emerge (for a comprehensive overview, see Patberg, 2018). DiEM25 is a political movement that originated out of the dissatisfaction with the Eurozone austerity programmes. The conditionality imposed upon the Greek government by European and extra-European actors strengthened the conviction that state-bound democracy can no longer hope to resist transnational domination (Horvat, 2016), and that distributive decision-making in the EU needs to be politicised. DiEM25 (2016) conceives of itself as a pan-European radical democratic platform working for a ‘relaunch’ of European democracy: ‘One simple, radical idea is the motivating force behind DiEM25: Democratise Europe! For the EU will either be democratised or it will disintegrate!’. Their mid-term goal is the convocation of a European constitutional assembly, where transnational factions are to work out and adopt a new constitution by the year 2025. Just like collective applications to the European Research Council, transnational lists would have to look for candidates in a number of member countries in order to be allowed to stand.

The DiEM movement was founded in February 2016, and while it would be misleading to say it has gone from strength to strength, it has created chapters in the various EU countries. It conceives of itself as analogous to the attempts of the World Social Forum or Occupy movements, and as potentially comprehensive of other movements like Indignados (Horvat, 2016). Its co-founder Yanis Varoufakis (2016) has described it as ‘a pan-European movement of civil and governmental disobedience that will produce a surge of democratic opposition to … European Union elites’. As a nod towards populism, the movement uses a strong anti-elite, anti-establishment rhetoric. The reason for this strategy is that ‘[a]t DiEM25, we do not believe that the EU can be reformed through the usual policy-making channels’. Instead, Varoufakis (2016) proposes ‘a campaign of wilful disobedience, targeting the European Union’s unenforceable rules at the municipal, regional, and national levels while making no move whatsoever to leave’. The strategy is not to make any threats of exit from the Union, but rather to resist its current status quo in a ‘constructive’ manner. In a policy paper entitled European New Deal, such ‘constructive disobedience’ is defined as ‘leading with moderate policy proposals while disobeying at every level the edicts of the clueless establishment’ (DiEM25, 2017: 8).

Of course, the movement does not ascribe constituent power to itself, and its members have not justified their strategy of partial illegality as claiming to incorporate constituent power. As a matter of fact, if they believe such a power exists, they display some confusion as to with whom it lies. On the one hand, propagating ‘[a] Democratic Europe in which all political authority stems from Europe’s sovereign peoples’ (DiEM25, 2016: 8; emphasis mine) seems to put DiEM25 firmly in the demoi-cratic camp. On the other hand, they claim that ‘the people of Europe have a right and a duty to consider the union’s future and to decide between (i) a multilateral cooperation framework and (ii) the possibility of transforming Europe into a full-fledged democracy with a sovereign Parliament’ (DiEM25, 2017: 8; emphasis mine). The movement thus invokes the language of demoi-cracy (Europe’s sovereign peoples) as well as the view that constituent power lies with European citizens (the people of Europe), that is, regional cosmopolitanism. Introducing transnational lists of candidates for a European Constituent Assembly may reflect both a demoi-cratic view, a regional cosmopolitan conception of the pouvoir constituant, or their combination in a dualist account. Such lists could be thought to represent either transnationally sensitive demoi, or a border-transcending European citizenry, or both. In parallel to the movement’s official constitutional agenda, in preparing for a constituent assembly, it urges its activists to informally anticipate a coming united federal Europe:

[W]e must begin our work without the tools of a functioning European federation. We must thus make a start by using the existing institutions and work, as far as possible, within existing European Treaties in a manner that simulates the federal institutions we lack. (DiEM25, 2017: 10f.; emphasis mine)

Hence, we may take DiEM25’s oscillation as to the various candidates for the holders of constituent power in Europe both as a sign of confusion and as a way of acknowledging that such holders may only fully successfully emerge in the process. In contrast to what all of the candidate theories – the demoi-cratic view, the dualist views, the regional cosmopolitan view – hold, it may be too early to tell where constituent power in the EU finally lies.

What role does the notion of a pouvoir constituant play in DiEM25’s strategy for Europe? On the one hand, the movement aims at realising an egalitarian, transnationally inclusive, legally formalised process of constitution-making. Its activists advocate instituting a well-ordered process of constitutional change through a re-constituent assembly, in which they do not foresee a vanguardist role for themselves. On the other hand, in triggering practices of ‘constructive disobedience’, activists assume a role as ‘protagonists’ of European constitutional politics.1 Illegal protests that act ‘as if’ federal institutions were already in place can hardly be justified as purely defensive acts of resistance. They cannot exclusively rely for their justification on the integrity of an already existing institutional setup. Instead, they must refer to a transformative authority: in other words, a pouvoir constituant, which is assumed and articulated in at least some acts of disobedience. This is not the same as to say that such protest activities should be seen as an exercise, however partial, of constituent power, since the movement envisages constitutional change to be brought about not through disobedience, but by the universally inclusive, procedurally controlled proceedings of a representative assembly. The distinction between articulation and exercise, mirrored in DiEM25’s two strategies, is important to ward off traditional suspicions of a revolutionary vanguard claiming constituent power for themselves and acting in the name of the people (Schmitt, [1921] 2013). Although pursuing a transformative agenda, DiEM25 neither claim to thereby suspend an existing constitution, nor attempt to bring about a new one through their activity. Illegal protest is a means of advocating, not of implementing, constitutional change. Looking at constituent power from the perspective of civil disobedience thus serves to bring out the distinction between articulation and exercise, since civil disobedience restricts itself to a fully symbolic activity with transformative intent. Articulation of constituent power means adopting a communicative role within a larger democratic process, while exercising it means claiming authority in attempting to bring about a fundamental change in the law.

What upsets the tidy distinction between articulation and exercise is that constituent authority will usually be contested and not generally fixed once and for all in advance. Besides articulation and exercise, constitutional politics involving civil disobedience may have a hand in triggering or shaping the existence and composition of a pouvoir constituant. I call such processes activation of constituent power. When ‘simulating’ and anticipating in illegal protest the existence of a federal Europe, such activities may contribute to re-shaping a (potentially complex) European pouvoir constituant over and above the various statist pouvoirs, and thereby induce a revisionist allocation of constituent power. By ‘activation’ of constituent power, I do not mean the ‘awakening’ of an existing dormant power that has been identified as legitimating a given polity, such as in the reconstructive accounts of the EU. By ‘activation’ of a pouvoir constituant, I refer to political activity that brings about a change in its allocation, such that for a given polity, there occurs a shift in the holders of constituent power. In its more ‘federative’ moments, the DiEM25 rhetoric clearly invokes such a transformation at the most fundamental level of the EU polity, from a demoi-cratic towards mixed or regional cosmopolitan allocation. But it is yet unclear whether such activation follows the logic of exercise or the logic of articulation, given that activation constitutes one step in the process of empirically bringing about an authoritative macro-subject. The potential ‘factive’ implications of contestatory activation, over and above its communicative aspects, seem hard to ignore. I will come back to the distinction between articulation, activation and exercise in the next section, hoping to provide a key to evaluating various manifestations of constituent power in political protests from the perspective of political legitimacy.

Objections and clarifications

DiEM25 presents one case in which a new language of activist self-description, one that connects civil disobedience and constituent power in post-national politics, may be productive: Transformative civil disobedience in processes of political self-determination can be framed as the articulation of constituent power. ‘Articulation’, in contrast to ‘exercise’, is always inconclusive. Whoever articulates constituent power claims to be acting in their entitlement to participating in (higher) lawmaking, but does neither thereby bring about that entitlement nor an effective change in law. In this way, political activism can be linked with claims to democratic self-determination at a fundamental level, and justify symbolic rule-breaking activities through recourse to authority. But such a strategy is not immune from overshooting, or from giving cause for misunderstandings. In closing, I therefore want to sharpen my account by contrastively discussing three areas of application and taking up some objections and implications in the process. I discuss three issues – agents, agenda, and activation – that appear to circumscribe and limit the legitimate invocation of constituent power in symbolic lawbreaking.

First, on the candidate agents of civil disobedience and constituent power. One feature of a constituent power approach to civil disobedience is that it lets us draw a clearer distinction between justifications for the defensive and transformative uses of disobedience. When DiEM25 encourage both civil and governmental disobedience against EU austerity politics, the movement needs to be aware that their repertoires of justification necessarily diverge. This does not entail that governmental actors can never claim to be pursuing, in an international context, a strategy analogous to civil disobedience. Where constituted actors rely on the integrity of a given constitutional state of affairs, it can make sense to describe their law-breaking behaviour in terms of justified resistance. In Walzer’s account, for example, lower office-holders defend norms already in place and standards already realised in a given legal order. If we see European crisis management as implementing an emergency-based state of exception, the ‘willingness of executive agents to step outside the EU legal structure altogether’ can legitimately be countered by other executive actors committed to the status quo ante (White, 2017: 639). Where ‘subaltern states’ (Tully, 2008: 140) refuse to discharge obligations taken on under pressure of asymmetric negotiations, office-holders can claim to resist changes and defend a pre-crisis status quo. It is harder to see how governmental law-breaking can have a claim to ‘reshape the order arising’, or aim at ‘achieving a genuine constitutional order’ (White, 2017: 637). If we adopt the language of constituent power from the perspective of democratic theory, bringing about a ‘true’ or more just constitution does not lie within the remit of constituted actors, since this would potentially invest holders of the executive with competences akin to ‘sovereign dictatorship’ – the power to act outside the law not just for the sake of the old constitution, but in the service of bringing about a new one (Schmitt, [1921] 2013). While the precise allocation of constituent power in the EU may still be up for grabs and peoples and citizens may be vying for it, states and government actors do not qualify as candidates. They can be trusted to block anti-constitutional change, but must act ultra vires where they claim to be channelling constituent power. This does not entail that states may not be acting within their rights when pursuing quasi-legislative innovation in international organisations through symbolic illegal activity. When, for example, the Uruguayan government liberalised its marijuana legislation despite being a member of the International Convention on Drug Control, it was making a call on the international community to initiate change, neither willfully obstructing or subverting the aims of the Convention, nor ‘seeking release’ from it (Franceschet, 2015: 246). Uruguay’s behaviour displayed many of the features of civil disobedience as classically conceived, but in a way far removed from the articulation, activation, or exercise of constituent or ‘destituent’ power (Franceschet, 2015; see Patberg, 2019). If we want to hold on to the notion of ‘state civil disobedience’, it is therefore important to separate it off from individuals’ and groups’ practices under constituent power, and restrict it to incremental innovation instead of full-scale transformation.

A second point concerns the respective agendas of civil disobedience and constituent power. Not all illegal, symbolic and transformative protests should count as civil disobedience, nor do they always aspire to. Instigators of riots, militant resistance, insurrections and revolutionary activities often strive to realise their goals directly, not via symbolic strategies that aim at the conviction of their peers. Likewise, not all activists drawing on constituent power need to have any investment in civil disobedience, and not all transnational activists involved in civil disobedience will find the category of constituent power useful or attractive. Only those with an institutional agenda will find it helpful to draw on constituent power. This distinction comes to the fore when we compare DiEM25 to movements like Occupy (Lorey, 2014). The articulation of constituent power can apply only to collectives that aim at a certain tenacity and longevity, and not to the more fleeting campaigns that enact ambitious, but short-lived glimpses of alternative forms of life. It may overtax the latter type of activists to ascribe to them an institution-building agenda, and at the same time it may underestimate their principled scepticism about public law constitutionalism (Lorey, 2019; Volk, 2019). We cannot externally impute traditional constitutionalist motivations to all transnational protest movements, but some of the durable enterprises like the World Social Forum, pursuing focused long-term agendas in human rights law (Lang, 2017), seem to be candidate movements for adopting a constituent power narrative. DiEM25, in contrast to institutional sceptics such as the Occupy activists, work within the traditional legal setup of the EU, and their self-chosen success conditions involve institutional change. Since there is no way of ‘democratising Europe’ that could bypass its constitutional setup, the constituent power language is indeed congenial to their aims.

A third and final point takes up the distinction between the articulation, activation and exercise of constituent power again. In introducing this distinction, I aim to sidestep the task of exhaustively specifying conditions of legitimacy for transnational civil disobedience and/or practices of constituent power. Instead, I want to probe the difference between taking up self-authenticating stances in activists’ self-ascription of constituent power and their taking up positions and activities for which unilateral self-empowerment seems insufficient. Initially, it seems important to note that there is no prior authorisation requirement for people who live under constituted powers and claim to partake of constituent power, whether they base this claim on membership in a subjected collective or on being subject to its coercive laws. In breaking the law for the symbolic purposes envisaged by civil disobedience, nothing but self-authorisation seems required. If the democratic principle holds that whoever is subject to the law must be able to have a say in the making and re-making of that law, we can understand civil disobedience as an essential way of contributing to such processes under non-ideal conditions. In contrast to what partisans of revolutionary insurrection must assume, no self-identified protagonists of civil disobedience on the basis of constituent power can thereby claim to speak for or embody ‘the’ pouvoir constituant (Meckstroth, 2015). Activists involved in civil disobedience will typically admit that theirs is a partisan view to be complemented by those of the other holders of constituent power, and to be implemented, as DiEM25 suggest, by fully inclusive and egalitarian formal procedures.

However, where states no longer form the exclusive frame of reference for constituent power, the democratic principle’s predictions become indeterminate. This is because the presumptive bearers of self-identified pouvoirs constituants are not without alternatives, as we have seen in the debate about the EU, and their composition is not settled in advance. In such cases, articulations of pouvoir constituant will entail specific contested interpretations of that pouvoir. Within federations of states such as the EU, interpretations will be informed by the bootstrapping approach discussed above: Even though the identification of pouvoir(s) constituant(s) will be contested among activists and among theorists, both groups will agree that a dynamic activation of European constituent power ought to reflect the complex setup of European institutions. Yet, in some cases, transformative civil and governmental disobedience may itself be a strategy of bringing about the existence of a new pouvoir constituant that had not been carved out in advance, nor triggered by institutional innovations like those of the EU, and may contain a disruptive potential for the continued existence of constitutional orders. I see two major areas in which the binary opposition of (unproblematic) unilateral articulation and (problematic) unilateral exercise is currently being tested by attempts at changing the composition of existing powers, and at activating new powers. I can only illustrate them here and must leave extended discussion for another occasion.

The first area in which constituent powers may be in the process of being re-shaped through protest is the context of migrant activism. Where non-resident migrants, in illegal symbolic border-crossing protests with a transformative intent (Celikates, 2019), claim a share in the pouvoir constituant, they articulate a fallible claim of authority that can indeed be self-ascribed. By reference to the a posteriori status of pouvoirs constituants, transgressors can provisionally justify their practice as civil disobedience articulating such a pouvoir, since they do not thereby successfully confer on themselves membership or a permanent stake in a constituent collective. An entitlement to the contestatory articulation of constituent power, however, does not automatically carry over to its activation, that is, the re-shaping or renewing of the constituent subject itself, or for its exercise. This can be shown by drawing on a second example that I want to discuss at more length. It comes from ‘multi-national’ democracies, in which sub-state national societies have adopted the language of pouvoir constituant and described their devolutionist or separatist ambitions with recourse to it (Tierney, 2008, 2017). While a pan-European movement such as DiEM25 aims at re-shaping pouvoirs constituants in a supra-state federation of states, irrespective of whether this will lead to a federative polity, nationalist independence movements attempt to fragment the pouvoir constituant of constituted nation states, irrespective of whether they aim at secession or devolution. But whereas movements such as DiEM25 attempt to re-configure pouvoirs constituants that reflect existing institutional changes, others, for example, the Catalan nationalist movement, aim at the emergence of a new pouvoir. In contrasting their strategies, I focus not on the comprehensive merits, or on the transnational versus sub-state nationalist composition of the two movements, but on the means employed in their illegal manifestations of constituent power.

In Catalonia, the central manifestation is of course the independence referendum of 1 October 2017. Observers agree that staging the Catalonia independence referendum was ‘a constitutional coup d’etat’ under the Spanish constitution (Marti, 2017), but some have invoked the language of constituent power for justificatory purposes:

Yet the clear majority in favour of a referendum – and the strong participation in it, despite the declared illegality and the efforts of the Spanish police to disrupt it – signal a shift towards a new understanding of the pouvoir constituant and its ability to express itself directly, outside of constitutional constraints. (Krisch, 2017)

Under the approach pursued in this article, there are two points to be made. First, as argued above, it is off limits for a constituted regional government to put its powers into the service of creating a new pouvoir constituant or changing its parameters. It is not the right kind of agent. Where the doctrine of pouvoir constituant is taken seriously from a democratic point of view, constituted actors cannot appeal to it, especially not in order to increase their competences or discretionary powers. This does not rule out legitimate regional governmental resistance against an oppressive central administration, but such resistance will need to refer back for justification, as we saw in the discussion of Walzer’s approach, to the overall setup of an existing constitution. Second, an entirely different question is whether non-governmental disobedience could appeal to changing the ‘understanding of the pouvoir constituant and its ability to express itself directly’ (Krisch, 2017). It may seem that the self-authorising principle at the basis of a constituent power approach to civil disobedience would entail the legitimacy of such direct expression. But the idea of a pouvoir constituant ‘expressing itself’ is here ambiguous and can lead to misunderstandings. It does not follow the symbolic logic of ‘articulate’, but rather the factive logic of ‘activate’ and ‘exercise’, in referring to the self-realisation of a political will through the chosen means of a referendum. While independence referenda can be won or lost, they are in either case likely to activate and stabilise a constituent power that may only have been brought about in that very process. In contrast to articulations of constituent power, which are plural and can misfire, referenda aim to vindicate a pouvoir constituant as a force to be reckoned with. The staging of an independence referendum in contexts such as Catalonia, even in abstraction from its governmental orchestration, therefore goes beyond the articulatory practices of civil disobedience that can draw justification from a doctrine of constituent power. Independence referenda are not so much means towards advocating a position on the conditions of democratic self-government than instruments for changing those conditions. Under the approach developed here, such shifts can be legitimately propagated but not legitimately pre-empted through illegal protest.

Conclusion

Recall Sieyès’ point that neither can a pouvoir constituant be bound by an existing constitution, nor can it be restricted in its forms of expression. This means that besides its institutional function in the formal authorisation of constituted bodies, there is a creative side to the manifestation of constituent power that cannot be fully institutionalised. Where movements have grown accustomed to using the reactive languages of ‘resistance’ and ‘disobedience’, they can formulate more far-reaching ambitions for democratisation and civic participation in drawing on constituent power. No authorisation is needed for people to claim that all authorisation must derive from them.

In contrast to an exclusively state-based understanding of constituent power, where a pre-stabilised relation holds between state institutions and a pre-existing people, the formation of constituent groups and institutional projects is up for grabs in contexts beyond the state. Therefore, claims of articulating constituent power need to be distinguished from claims of its activation or exercise. The articulation of constituent power provides an empowering self-description for border-crossing protest movements, especially where their activism involves law-breaking, but it does not invest them with conclusive entitlements to the formation or exercise of a pouvoir constituant. The limits of a constituent power-based approach to civil disobedience lie in unilateral attempts at effectively shaping or exercising such power. Constituent power gives protest movements a deep and broad basis for advocating change, not for pre-empting it.