Constituent power and civil disobedience: Beyond the nation-state?

Abstract

Radical democratic political theorists have used the concept of constituent power to sketch ambitious models of radical democracy, while many legal scholars deploy it to make sense of the political and legal dynamics of constitutional politics. Its growing popularity notwithstanding, I argue that the concept tends to impede a proper interpretation of civil disobedience, conceived as nonviolent, politically motivated lawbreaking evincing basic respect for law. Contemporary theorists who employ it cannot distinguish between civil disobedience and other related, yet ultimately different, modes of political illegality (e.g. conscientious objection, resistance, revolution). The essay also examines Jürgen Habermas’ recent contributions to a theory of mixed or dualistic (postnational) constituent power, conceding that Habermas avoids many theoretical and political ills plaguing competing radical democratic theoretical retrievals. Nonetheless, Habermas’ attempt to salvage the idea of constituent power as part of his reformist agenda for the European Union not only breaks with his earlier understandable skepticism about the idea but also risks trimming the admirably ambitious sails of his radical democratic interpretation of civil disobedience.

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

“…The link to constituent power does not help to illuminate those types of civil disobedience which remain within the framework of the existing system and only raise a local challenge. 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).…”

Banishing dominance in Europe: The case for regional cosmopolitanism

“…It is a continuing, open-ended project in which the contributions of both the present and the future generations remain as important as those of the constitutional framers (Habermas, 2001). Habermas’ ‘theory arguably leaves little room for a neat delineation of constituent from constituted powers’ (Scheuerman, 2019: 16).…”

Potentiality, political protest and constituent power: A response to the special issue

“…Scheuerman disagrees heartily, seeing civil disobedience as a fundamentally and powerfully democratic concept and constituent power (as we will see later) as a problematic and limited one. Civil disobedience, for Scheuerman (2019), ‘represents a major type of morally conscientious, nonviolent, politically motivated lawbreaking’ (2019: 51) – and each of these positive elements deserves proper ethical consideration. As in his previous writings (Scheuerman, 2015, 2018), we find here an explanation of civil disobedience as a form of radical democratic political change – one that, crucially, respects (1) the existing legal order and (2) those not engaged in protest:Civil disobedience, in contrast to classical models of (typically violent) revolutionary politics, represents a constructive attempt to supersede, not simply negate – in a Hegelian sense – that heritage … It does not necessarily or even typically aim to awaken some lumbering, homogenous collectivity, or even claim to speak on an imagined (and probably fictional) unitary political subject’s behalf … Similarly, civil disobedience demands civility … in part as a way of requiring those who pursue it that they demonstrate respect for their peers, including those who simply do not – and perhaps never will – agree with them.…”

“…As in his previous writings (Scheuerman, 2015, 2018), we find here an explanation of civil disobedience as a form of radical democratic political change – one that, crucially, respects (1) the existing legal order and (2) those not engaged in protest:Civil disobedience, in contrast to classical models of (typically violent) revolutionary politics, represents a constructive attempt to supersede, not simply negate – in a Hegelian sense – that heritage … It does not necessarily or even typically aim to awaken some lumbering, homogenous collectivity, or even claim to speak on an imagined (and probably fictional) unitary political subject’s behalf … Similarly, civil disobedience demands civility … in part as a way of requiring those who pursue it that they demonstrate respect for their peers, including those who simply do not – and perhaps never will – agree with them. (Scheuerman, 2019: 53–54)…”

“…Indeed, civil disobedience thus framed respects the institutions of the past and nonparticipants in the movements to such an extent that never seeks to fully exit the current governmental arrangement. Instead, civil disobedience for Scheuerman (2019) is strongest operating within the system, as ‘a rather “legalistic” type of illegality, something that sets it apart from other forms of political illegality’ (2019: 54). Scheuerman’s biting critique of constituent power brings into sharp focus his optimism for liberal civil disobedience.…”