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

Abstract

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.

Constituent power beyond exceptionalism: Irregular migration, disobedience, and (re-)constitution

“…But of course there are acts of civil disobedience that are more radical in their transformative aspiration and that aim at, or end up effecting, a more fundamental reconstitution of the political order-and it is these cases that the link between civil disobedience and constituent power is supposed to capture and rescue from the domesticating misinterpretation of the liberal perspective (for a critique of this move, see Scheuerman, 2019). Against authors like Ingeborg Maus (1994), who claim that disobedience as well as resistance are categorically tied to the default recognition of a pre-existing authority and thereby express a servile and overly cautious mind-set behind the desire to be on the right side of the law even in the act of breaking it, the line between disobedience and constituent power (or popular sovereignty) thus looks less clear than they assume (see also Niesen, 2019).…”

Extraordinary partisanship in the European Union: Constituent power and the problem of political agency

“…However, in this way they do not (and cannot) bring about a change in legal norms. An articulation of constituent power “is always inconclusive” (Niesen, 2019, p. 41). By contrast, an exercise of constituent power results in either the establishment of a new constitution or the revision of an existing one—it alters the basic legal order of a political system.…”

“…It is evident that the exercise of constituent power is more demanding than its articulation. Anyone subject to the rule of constituted powers can—without a requirement for prior authorization—claim to partake of constituent power and try to convince fellow citizens that there is a need for an episode of higher lawmaking (Niesen, 2019, p. 43). However, once this communicative process is meant to turn into a decisional process, constituent power needs to meet higher standards of democratic legitimacy.…”

“…3 3 I use the term activation differently from Niesen, who invokes it to refer to political activities that result “in a shift in the holders of constituent power” (Niesen, 2019, p. 41). …”

Opposition and dissidence: Two modes of resistance against international rule

“…To illustrate this, we draw on two case studies of forms of state and non-state resistance in international politics. While state resistance has a comparatively larger impact given that states are still the principal actors in international politics, non-state actor resistance can be observed more frequently, if only because these actors are often the object of rule without having had any say in its making (Niesen, 2019b). 4 We first turn to a case of state resistance, specifically the posture of India toward the nuclear non-proliferation regime.…”