Introduction: Resistance,disobedience or constituent power? Emerging narratives of transnational protest

Abstract

Transnational social movements, campaigns and individual activists have described their activities in the traditional vocabularies of political dissent: as protest, opposition, contestation, dissidence or rebellion. Where strategies have involved illegal, well-publicised activities, the vocabularies of resistance and of civil disobedience have become an activist lingua franca. What all such descriptions have in common is that they paint a largely defensive picture of activist aims and self-understandings. In contrast, the emergence of the ‘global constitutionalist’ paradigm in international law and politics has re-introduced the category of constituent power. Transnational initiatives such as the Democracy in Europe Movement 2025 (DiEM25) have begun to frame their activities in a ‘constitutive’ and less in a ‘reactive’ language. When countering the challenges of cross-border domination, new collectives may grasp the chance for extra-institutional self-activation. The special issue aims to assess and compare the features and the various strengths and weaknesses of the respective languages of contestatory and constitutive politics.

Keywords

Constituent power transnational civil disobedience transnational constituent power transnational protest transnational resistance

Transnational movements and campaigns, in reacting to the varieties of cross-border domination, have described their activities in the traditional vocabularies of political dissent: as protest, opposition, contestation or, in more vigorous conflicts, as dissidence or rebellion. Where strategies have involved illegal but non-violent and well-publicised activities, the vocabularies of resistance and civil disobedience have become an activist lingua franca, highly amenable to its transnational adaptation. What such descriptions have in common is that they paint a predominantly defensive picture of activists’ self-understandings and goals.

At the same time, the emergence of the ‘global constitutionalist’ paradigm in international law and politics has generated a renewed interest in the category of constituent power. The fact that constitutionalisation across borders is mainly propelled by constituted bodies like courts and government executives has led scholars and activists to question its authority and legitimacy, and to insist that the appropriate subjects of constituent processes have been bypassed (Cohen, 2012; Patberg, 2016; Thornhill, 2013). Theorists have investigated the coherence of the idea of transnational constituent power and proposed to interpret human rights initiatives like the World Social Forum as global constituent forces (Lang, 2017). Transnational protest movements such as DiEM25 have begun to frame their activities in a ‘constitutive’ and less in a ‘reactive’ language. They have formulated agendas of reconfiguring existing institutions, echoing Emmanuel Sieyès’ (2003 [1789]) view that pouvoirs constituants cannot be restricted in their forms of expression, or ever fully institutionalised. Even hitherto non-existent collectives, whether emerging federative citizenries or new multiplicities consisting of citizens and strangers, can adopt the language of constituent power to frame their claims for pre- or extra-institutional self-activation.

The purpose of this special issue is to start a debate about the usefulness of the notion of constituent power in understanding, analysing and justifying transnational protest as well as non-compliance with established rule. Protest narratives have strategic and justificatory dimensions that can be discussed with a view to their functionality and appropriateness. Narratives shape people’s perception of political reality and provide guidance in confusing situations.¹ Since movements seem to be able to choose between different vocabularies of varying ambition, intellectuals and scholars describing their activities may be in a position to reconstruct their claims and recommend to them certain descriptions over others.

Contemplating the potential of the notion of constituent power opens up a number of questions. What are the shortcomings of the traditional vocabulary of resistance? Why should we think of constituent power as an appropriate basis for a narrative of protest? How does such a narrative relate to the established conception of civil disobedience? Can the notion of constituent power be extended beyond its traditional statist basis to support transnational protests? Finally, is the notion of constituent power comprehensive enough to capture what is distinctive for the nature of transnational protest? In this introduction, I will take up these questions, and contributors’ positions on them, in turn.

Resistance and rule

In recent years, International Political Theory has increasingly taken to heart Karl Marx’s (1997 [1843]) advice that one should start all analysis with a ‘criticism of politics, with taking sides in politics, hence with actual struggles’ (1997 [1843]: 214, emphasis in original). Departing from the governance- and legitimacy-oriented studies that have dominated the field since its inception, phenomena of contestation, dissent and refusal have become privileged entry points for the study of border-crossing political orders. The freedom to ‘say no’ and the practices of ‘saying no’ have become new vantage points for International Political Theory, promising to unlock the contested realities of new and emerging contexts of governance (Wiener, 2014; on ‘saying no’, see White and Farr, 2012). One key observation is the ubiquity of practices of resistance.

This issue starts with the claim that practices of resistance can serve an immediate diagnostic use: To resist is to manifest the existence of rule or domination (Herrschaft) beyond borders (Daase and Deitelhoff, 2019). Not all contributors to the issue share this assumption, but it is hard to overestimate its significance. If it goes through, it will give the epistemology of international politics a ‘Copernican’ turn: Those subject to rule can claim full epistemic authority over whether they are being governed or not. In resisting, they prove the existence of relations of domination. Whereas Daase and Deitelhoff focus on subjects’ epistemic authority, they leave open the question as to the normative authority of those who protest. The bulk of this issue is devoted to responding to this question posed by Daase and Deitelhoff’s contribution. Is a similar ‘Copernican’ turn on the cards for the normativity of claims to resistance? Are protest movements self-authorising? Is protesters’ authority self-certifying? While Marx’s suggestion entailed that the analyst is to throw in her lot with those who struggle, the contributors to this issue, as we will see in the following sections, seek to draw lines precisely between what can and what cannot be pre-empted by the fact of protest and resistance.

In their article, Daase and Deitelhoff distinguish two kinds of resistance in the international system, opposition and dissidence. Opposition makes use of pre-instituted outlets for voicing dissent, such that the question of authority is moot. The justification of protests exercising basic rights and employing instituted procedures is assured in advance. Dissidence expresses a more comprehensive dissent, directed against a given set of institutions as a whole and in forms not provided for, and will thus usually trigger some justificatory obligation. What is common, however, to both the language of opposition and the language of dissidence is that they stress the reactive character of resistance. While much international protest has taken on this defensive repertoire, there are important strands of democratically minded movements for whom dissidence goes beyond such reaction. As contributors to this issue highlight, the alter-globalisation movement, radical critics of the European Union (EU) such as DiEM25 and the current anti-austerity movements in Southern Europe all campaign to renew existing orders or develop alternative ones. They stress the potentially transformative goals pursued by protesters in addition to their defensive stances. While some authors concentrate on the proposed transformation of existing legal frameworks (Niesen, Scheuerman, Celikates, Patberg), others see dissenters facing dominant and unassailable forces of neoliberalism and economic globalisation, where transformational intents will aim at realisation in the protest practices themselves (Lorey, Volk).

It seems clear that such aims go beyond resistance. The time-honoured notion has been used as a default description of active political dissent since at least the Middle Ages, but as a language of protest, it suffers from two flaws. The first is that resistance is indeterminate vis-à-vis the type of political system it opposes, or the political ideals it invokes, especially as regards their democratic or rule-of-law credentials. Resistance is thus too broad a notion to specify the strategies of current democratically minded protest movements. The second is that at least in its origins, resistance has a status quo ante bias: It fights to retain what has been taken for granted as legitimate possession, against tyrannical encroachment (Walzer, 2017). It provides a justification for repair, but not for change. In order to capture the transformational intent of protest movements, we need to go beyond it.

Constituent power

Contributors to this special issue are divided as to whether constituent power is a useful notion to analyse and justify transformative protests. The advantages are presented by Patberg, Niesen, Lorey and Celikates, the disadvantages by Scheuerman and Volk. One asset of the language of constituent power is that claiming it gives protest a cause, a subject, a justification and an agenda. Its cause is subjection to unauthorised rule or domination, brought about by past usurpation of decision-making powers. The subject of constituent power has traditionally been identified as ‘the people’, in polemical opposition against the de facto holders of political power. Its justificatory force lies in the idea that all decision-making authority must be explicitly circumscribed, authorised by the people, and permanently open to change. No order can claim full legitimacy if it has not arisen through constituent processes in the right way and if it cannot be undone by the constituent subject. Finally, constituent power gives protest an agenda: in its classical version, that of a fundamental legal transformation of the present situation. The intended transformation can be total, large scale or incremental, from shifts of sovereignty and the creation of new polities to piece-meal changes to constitutional provisions. While Celikates, Patberg and Niesen start from this conceptual framework, Lorey accepts the outline of the classical picture, but defaults from the legalistic consensus and explores non-juridical outlets for constituent power. Scheuerman and Volk see the claiming of constituent power as dangerous at worst or misguided and unhelpful at best. For Scheuerman, recourse to constituent power muddies the clear-cut distinctions between insurrection and a loyalist disobedience based on ‘the highest respect for the law’. In addition, and despite its revolutionary credentials, he sees the category altogether too conservatively wedded to existing demoi. Volk argues that protesters’ invoking constituent power would involve a category mistake, since he does not see contemporary protest movements as having ambitions or hopes to implement a new order or aim at fundamental legal change.

Is the notion of constituent power ‘up to the task of providing a sufficient normative basis for extra-legal protests that legitimately explode the confines of [existing] constitutional strictures’ (Scheuerman, 2019: 61)? It may be helpful to distinguish, under the single concept of constituent power, several independent and conflicting conceptions, and answer Scheuerman’s question accordingly. The concept of pouvoir constituant goes back to, among others, Emmanuel Sieyès (2003 [1789]: 138), who insists that the demos is continually free to reprogramme its institutional setup. But while Sieyès (2003 [1789]: 136) thought the holders and boundaries of constituent power were preordained in natural law, some contributors deny that its composition is unchangeable (Lorey, 2019; Celikates, 2019) or that its institutional boundaries can be specified a priori (Patberg, 2019: Niesen, 2019). What links the classical notion of constituent power to protest, resistance and even revolution is the fact that the people are endowed with constituent power in permanence – they are always free to change, amend, remake the political order at will. The act of making a constitution does not dispel or absorb, but confirms and perpetuates constituent power.

Some historical conceptions are inadequate for protesters’ purposes. As Scheuerman points out, Carl Schmitt’s (2013 [1921]: 112–131) conception, in which a part of the people or its delegates self-authorise as authentic channels of the ‘will of the people’, will not qualify. The Frankfurt scholar Ingeborg Maus (1992), in contrast, has worked out a radical democratic conception of constituent power, a conception that is as anti-expertocratic as it is anti-populist. Niesen follows Maus in locating the justification for extra-legal dissent with people’s stakes in constituent power, and the authorisation to articulate (though not execute) such power as largely up for grabs. Patberg, likewise starting out from a democratic conception of constituent power, brings it to bear on rivalling conceptions of ‘destituent’ power. Destituent power highlights the people’s authority to ‘de-institute’ and do away with existing institutions – a feature comfortably included, as Patberg points out, under more traditional understandings of constituent power, which always contained the potential for doing away with an ancien régime. Patberg gives a critical analysis of ‘anti-juridical’ conceptions of ‘destituent power’ as proposals to ‘exit’ constituted orders altogether, while Lorey’s take on the non-juridical variant of the ‘destituent’ conception is more appreciative. She does not see it as destructive of the existing legal order but concedes the possibility of coexistence of old, constituted legal institutions, and new, extra-legally instituted orders and practices.

Civil disobedience

Arguments over the most promising conception of constituent power for the purposes of protest will not be laid to rest in this special issue. What is perhaps more important from a protester’s perspective is whether conceptions of constituent power are intrinsically hostile to, or can be linked up with, accounts of civil disobedience. Maus (1992) argues that traditionally civil disobedience and resistance fought to retain legal privilege, not popular sovereignty. But authors like Celikates (2016) and Scheuerman (2018) have argued that, unlike the notion of resistance, civil disobedience lends itself easily to creative as well as reactive purposes. Against Maus, authors in this special issue point out that the two vocabularies should be taken as complementary, and that civil disobedience can express a fundamentally transformative intent. In fact, tying constituent power to civil disobedience may help to clear up the function of the former for protest practices, as it can serve to formulate a fundamental qualification. What is characteristic for civil disobedience is its communicative intent, its attempt to change public opinion in a democratic society. It admits to speaking from a particular point of view and attempts to persuade the mainstream citizenry. Protesters can likewise be immunised against the charge of a Carl Schmitt–type self-investiture, where they realise that invoking constituent power in civil disobedience is based on an exclusively communicative authority: a claim to rights to swing public opinion in order to enable a constitutional politics, not a claim to pre-empt that politics, much less execute constitutional change unilaterally. In restricting the vocabulary of constituent power as a justificatory language for illegal yet communicative forms of lawbreaking, Niesen, Celikates and Patberg insist on this crucial qualification.

For the purposes of this special issue, the decisive question is whether a notion of constituent power, invoked in practices of civil disobedience, can offer a normative basis for transformative protests beyond the state. Two main problems are reflected in the contributions. First, there is the question of agency. The notion of civil disobedience was originally introduced to International Political Theory to cover contestatory practices between states (for state-of-the-art treatments, see Franceschet, 2015; White, 2017). Daase and Deitelhoff (2019) introduce the case of India, subversively destabilising a nuclear non-proliferation regime lacking legitimacy, as a case for analysing transnational protest.² For some authors, connecting state civil disobedience with constituent power may not be an unwelcome consequence, since they see states as the proper founding subjects of the international order (Fassbender, 1998). But it is not clear whether constituted actors such as state executives can claim constituent power in any sense for themselves since their delegated competences are limited. The Indian government may well be in violation not just of international treaties but likewise overstepping the bounds of its constituted authority. As Patberg (2018) points out with regard to the EU, government executives should have no discretion as to threatening international organisations with exit or non-compliance.

The remaining contributors to this volume focus on individuals and collectives of individuals as more plausible agents of transnational civil disobedience based on constituent power. But a second problem that arises immediately is that transnational practices of civil disobedience may reduce the scope of protests that can draw on constituent power. Civil disobedience, whatever else distinguishes it from other protest forms, is a practice among co-citizens. The EU, albeit a supranational polity, may constitute an appropriate context for it. But as Celikates points out, a feature characteristic of many interesting cases of transnational protest is that their constituency cannot be fixed in advance. Indeed, in most contexts, a formal-institutional co-citizen status of protest participants will not be seen as decisive for distinguishing authoritative and well-justified from non-authoritative and ill-justified protests. I distinguish two possible reactions to this difficulty in the next section.

Transnational constituent power: Open or closed

Can the notion of constituent power be applied to transnational contexts? Perhaps the best answer is that some contexts seem more hospitable to the notion than others. What seems rather settled now is that some transnational polities allow us to pose the question as to where constituent power lies, and that this question allows for non-tautological yet contested answers. There exists now a dense literature on constituent power in the EU (for overviews, see Niesen, 2017; Patberg, 2017). In the EU, transnational protests by EU citizens can be reconstructed as expressions of constituent power with reference to an already existing legal-constitutional frame. One encouraging feature of this literature is that it allows for an allocation of ‘split’ constituent power (Habermas, 2012), which may constitute an advantage for protesters switching between their national and their transnational citizenship roles. But reconstructive analyses of constituent power need to keep their institutional reference points fixed such that the composition of the constituency is no longer up for grabs. If there is a pouvoir constituant to be found in the EU, it cannot (in a reconstructive perspective) be said to extend beyond the citizens of EU member states.

In contrast, Celikates’ reference to an in principle open membership condition of constituent power must appeal to another, practice-based conception that cannot be bound to the reconstruction of existing institutions. Indeed, the very purpose of the migrant protests Celikates investigates is to put into question the current composition of the existing demos. This directs our attention to the quite different methodologies of Patberg, Niesen and Scheuerman. For their reconstructive approaches, the truth about where constituent power lies is a matter of the best available interpretation of an already existing transnational polity. Protesters derive their authority from membership when acting extra-legally to transform the existing polity, and thus authoritatively exercise civil disobedience, or constituent power. In the contributions by Lorey and Celikates, on the other hand, the truth about where constituent power lies is a matter of constituent practices and thus exposed to revision through the very protest practices they account for. In their prospective approaches, formal citizenship is not required in order to authorise transnational protests by non-citizens as (fallible) articulations of pouvoir constituant. In Celikates’ account, citizens and non-citizens join forces in ‘reconstituting the political order’ through civil disobedience.

The nature of transnational protest

A final note of caution is in order. Even if the notion of constituent power passed all conceptual and normative hurdles, it might still prove irrelevant to the analysis of transnational protest. It stresses the means-to-an-end, quasi-legislative function of protests, not their intrinsic value as practices or as ‘social and political forms of life’ (Volk, 2019: 109). Trying to swing public opinion in order to change the law may not be what protesters intend. While Scheuerman, Niesen, Celikates and Patberg all stress the exhortative features of transnational protests and their conveying of a more or less clear-cut agenda, Lorey and Volk argue that they may miss what is distinctive of today’s protest movements.

In Volk’s eyes, the physiognomy of current protests has changed and replaced earlier paradigms, thus invalidating their interpretation as civil disobedience, let alone articulations of constituent power. Reflecting on authors within the Occupy movement, he points out that protesters do not see themselves as involved in communicating propositions or clear-cut demands, let alone preparing for a large-scale juridical transformation of society. Viewing their protests from the perspective of constituent power thus imposes a ‘public law bias’ on them (Volk, 2019: 113). Although protesters’ activities do have expressive aspects, they should not be understood as merely communicative or symbolic, but rather as exemplifying or prefiguring a form of counter-life, the enactment of a ‘parallel world’ (Volk, 2019). Lorey shares Volk’s critique of the ‘public law bias’ but does not therefore reject the interpretation of contemporary protests as articulating a version of constituent power. Drawing on Antonio Negri’s work, she describes the practices of the 15M and Syntagma movements as instituting, but not juridically constituting, alternative forms of cooperation and coordination. Those non-juridical institutions are to counterbalance the violent (Gewalt-) character of the classical legal understanding of constituent power, which she locates in its individualising, homogenising, representative and coercive effects. She attempts to replace the unified demos, as holder of constituent power, with a heterogeneous, undisciplined, yet connected multitude, the totality of the ‘non-united many’ who aim at maximal inclusiveness and participation (Lorey, 2019: 122).

In not envisaging any delegation of power at all, Volk’s and Lorey’s accounts can afford to ignore the otherwise all-decisive flipside of the legalistic understanding of constituent power: the attempted subjection of those who have been entrusted with rule-making and coercive power by those who are ruled by them, by means of a legal-political constitution. It remains to be seen whether their narratives are truer to the self-understanding of (some) protest movements vis-à-vis existing legal and political constitutions. Volk’s and Lorey’s accounts can alternatively claim to be more realistic than rivalling narratives, or run the risk of taking on an escapist ring that protest movements may want to steer clear of. To appreciate whether they limit what can reasonably be hoped for, or rather suggest that reconciliation with existing legal and political powers is possible only in another world, their conceptions need to be seen as ongoing contributions to the struggle for the best understanding of constituent power, not exits from it.

Footnotes

Acknowledgements

The author thank Markus Patberg for comment on the penultimate draft and Andrew Donders for perceptive language editing on the contributions.

Funding

The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: Work on this Special Issue was funded through a grant by the Deutsche Forschungsgemeinschaft (DFG), ‘Reclaiming Constituent Power? Emerging Counter-Narratives of EU Constitutionalisation’.

Notes

Author biography

Peter Niesen is a Professor of Political Theory at Universität Hamburg, where he co-directs an MA program with a specialisation in International Political Theory. He is Speaker of the German Association of Political Theorists and Co-convenor (with Carmen Pavel and Catherine Lu) of the International Political Theory Standing Group of the European Consortium for Political Research (ECPR). Niesen is a former member of the Frankfurt-based Cluster of Excellence ‘Formation of Normative Orders’. His work has appeared in journals such as Danish Journal of Philosophy, Constellations, Deutsche Zeitschrift für Philosophie, Journal of Common Market Studies, Kantian Review, Zeitschrift für Politische Theorie and Zeitschrift für Internationale Beziehungen.

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