Restrictions on political association and expression are problematic from a democratic point view. The default assumption seems to be that democracy minimally entails that all citizens have claims to participate in the legislative programming of society, which, given the size and complexity of democratic societies, they have to realize to a significant degree as participants in the debates of a political public sphere or through their membership in and support for political organisations such as parties. If they lack such chances, political decisions will lack democratic legitimacy. Where the law prohibits such options, \“it cuts off the possibility of participating in the open ended future required by democracy. Precisely to the extent the law imposes a version of what the future can or cannot be …[people] are reduced to heteronomous subjects, instead of autonomous citizens.\” It follows that the burden of justification for future-constraining regulations on freedom of association and expression is on those who propose and favour them.

In 1992, the Frankfurt scholar Ingeborg Maus launched a polemical attack against then current narratives of democratic protest, objecting to the languages of ‘resistance’ or ‘civil disobedience’ as defensive, servile and insufficiently transformative. This article explores in how far the language of constituent power can be adopted as an alternative justificatory strategy for civil disobedience in transnational protests. In contrast to current approaches that look at states as agents of international civil disobedience-as-constituent power, I suggest we look at political movements. I focus on the example of the Democracy in Europe Movement 2025 (DiEM25) which understands itself as a pan-European movement of civil disobedience, at the same time working towards an articulation and exercise of constituent power among the people(s) of Europe. In the final section, I sharpen the criteria for the invocation of constituent power in transnational protest in distinguishing between its articulation, activation and exercise.

Constitutional lawyers and political scientists have described the European Union as a federation of states (fédération, Bund). They deny that federations generate a new union-wide constituent authority besides the pouvoirs constituants of the member states. Habermas argues that federative constituent power lies with individuals in their dual roles as citizens of the several states and as citizens of the Union. I argue that from the perspective of democratic theory, this view is methodologically superior to other 'dualist' views of federative constituent power (J. Cohen), but go on to criticize it in two respects. It gives insufficient justification for the persistence of domestic pouvoirs constituants, and it reifies their defensive function.

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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.

The wave of democratization that has engulfed African countries since the 1980s has been characterized by the establishment of or return to multi-party politics. This has mostly happened in political systems with a long history of de facto and de jure constraints on the ability of political parties to function effectively. While few countries today (examples include Eritrea and Swaziland) continue to deny the principle and legitimacy of a pluralistic organization of political associations and parties, many political parties in “new democracies” still face insurmountable obstacles in creating a level playing field and have to cope with legal and administrative provisions that severely restrict their free operation.

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