Abstract
When over 300 irregularized migrants, 1 who had occupied the church St. Bernard in Paris and referred to themselves as “sans-papiers,” were violently evicted by the police in August 1996, their protest managed to bring together two issues in the public’s awareness that had until then mostly been regarded as separate from each other: migration and disobedience (see, for example, McNevin, 2011: ch. 4). The movement quickly turned into a paradigm example for the political mobilization of refugees and undocumented migrants claiming political agency by making their voices heard in public space and thereby challenging established notions of citizenship and—as I will argue in the following—civil disobedience. Its political and philosophical significance, however, has first been recognized by Étienne Balibar. Crediting the “sans-papiers” with the recreation of citizenship, not as an institution or a status but as a collective practice, Balibar (1996) argues that they managed “giving political activity the transnational dimension that we so desperately need to open prospects for social transformation and civility in the era of globalization.” They “stopped appearing as simply victims and have become actors in democratic politics” (Balibar, 1996) without any formal status that would officially entitle them to do so (see also Balibar et al., 1999).
Since then, many individuals and collectives have followed in the footsteps of the “sans-papiers,” challenging common presuppositions about external territorial borders as well as internal boundaries of membership and states’ increasingly restrictive and aggressive attempts to regulate entry (see, for example, Nyers and Rygiel, 2012; Saunders, 2018). More recently, in the context of the so-called refugee crisis, two instances of migration-related disobedience have received international attention: that of the refugees stranded at Budapest’s Keleti train station who decided to march to the Austrian border, and then, after pushing the German government to temporarily open the borders, on to Germany, in September 2015 (see, for example, Benli, 2018; Kasparek and Speer, 2015); and that of the French farmer Cédric Herrou, a member of the local grassroots movement Roya Citoyenne, who was given a suspended jail sentence for helping irregularized migrants cross the Italian-French border and sheltering them—for acting, as he puts it, as a citizen who had to step in when the state failed to act according to its own responsibilities (see, for example, Jeanticou, 2017; Pescinski, 2017).
What these cases have in common is that ordinary agents use the vocabulary of citizenship “from below” and of civil disobedience to describe their concrete resistance against exclusion and invisibilization as well as their struggles for claiming some kind of political status in the first place. Yet, the most influential philosophical accounts of civil disobedience that shape the theoretical discussion as well as public debate up until today are ill-equipped to even consider these political actions as acts of civil disobedience as they continue to understand the latter in terms of formally recognized citizens appealing to their fellow citizens and their governments within nationally integrated public spheres.
In this article, I argue for conceptualizing irregularized migration as a form of civil disobedience that manifests a specific kind of constituent power, namely, the power to initiate a reconstitution of borders and categories of membership. This conceptualization implies rejecting the sharp distinction often made between disobedience on one hand and constituent power on the other hand. While, according to this distinction, constituent power is comprehensive, transformative, and aiming at institutionalization, disobedience is defensive, legalistic, and operating within the confines of the existing political order (see Niesen, 2019). The article aims to show that this distinction becomes untenable once one tries to grasp the transformative and constituent dimension of radical practices of disobedience.
The argument proceeds in three steps: In the
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Politicizing civil disobedience
Civil disobedience as a form of direct political action developed within the modern nation-state and involved, for most of its history, the citizens and governments of such states as the primary agents and addressees, with the public sphere as its primary arena. Corresponding to this political reality—which, in truth, was of course more complex, as most of the classical nation-states doubled as empires in the past and often still pursue imperialist policies in the present—the “methodological nationalism” characteristic of much political philosophy until recently has also shaped debates about civil disobedience. Civil disobedience is typically still seen as involving the citizens of one country addressing their government with regard to a law or policy with which they disagree, and in doing so they appeal to legal, moral, and political principles accepted by the majority of their fellow citizens.
This framing is evident in the classical liberal definition that one can find in the work of the most influential theorists of civil disobedience such as John Rawls (1971), Ronald Dworkin (1985), and, to a lesser extent, Jürgen Habermas (1985): civil disobedience occurs when citizens break the law in public, nonviolent, morally justified, and communicative ways in order to press for local changes in the political and legal order of a community, while recognizing the general legitimacy of that order. The “civil” in civil disobedience thus refers to it being public (on some interpretations even announced in advance, but at least not anonymous or clandestine), purely or primarily symbolic, communicative, nonviolent, and appealing to the majority (or to the courts, legislature, or government of the political system in question). Accordingly, in disobeying, citizens address their fellow citizens and their representatives, showing their loyalty to the existing order and the rule of law by being ready to accept, rather than evade, the legal consequences of their actions.
Instead of discussing the many limitations of this normatively loaded and overly restrictive liberal conception (for an extended critique, see Brownlee, 2012; Celikates, 2016a, 2016b; Smith, 2013), I here want to suggest a significantly less constrained, defensive, and idealized understanding that is anchored in the actual practice of disobedience and corresponds better to its complex history, including the paradigm cases of Gandhi and Martin Luther King, Jr, which are often subjected to one-sided and domesticating misrepresentations in the current debate (for critiques of these misrepresentations, see, for example, Livingston, 2018; Lyons, 1998; Pineda, 2015). On this revised understanding, civil disobedience is a principled collective act of protest that involves breaking the law and aims at politicizing or changing laws, policies, or institutions in ways that can be seen as civil—as opposed to organized and conducted in a militarized way and aiming at the destruction of the “enemy.” Civil disobedience is thus not primarily a form of conscientious protest of individual rights-bearers against governments and political majorities. It does not simply address transgressions of the limits established by constitutionally guaranteed moral principles and values, as the defensive, moralistic, and legalistic conception informing the liberal mainstream has it. Instead, civil disobedience should be considered a democratic practice of articulating and/or exercising constituent power, acting as a dynamizing counterweight to the rigidifying tendencies of state institutions, that is, constituted power (see also Markovits, 2005; Ogien and Laugier, 2010). Such an expanded understanding addresses worries about the under-inclusiveness of the liberal conception that excludes and invisibilizes a whole range of actually existing forms of civil disobedience that fail to be uncontroversially public, purely symbolic, nonviolent, or enacted by citizens in the required sense. At the same time, it manages to avoid the inverse danger of conceptual overstretch and over-inclusiveness preoccupying those who argue for sticking with the more restrictive definition by insisting on the principled, law-abiding, and civil character of disobedience (see, for example, Scheuerman, 2018). As a result, on the revised understanding, civil disobedience is still clearly distinguishable from legal protest, conscientious objection, “ordinary” criminal offenses, “unmotivated” rioting, and outright revolution. 2
In this context, one can speak of “politicizing” or “democratizing” disobedience in a dual sense: first, disobedience is an essential part of political struggles for democratization (“from below”) and thus opens up one way to address the crisis of representative democracies without falling back into the non- or anti-democratic dynamics of right-wing populism. Second, theorizing disobedience in a critical vein has to be democratized both methodologically and substantially—against the depoliticizing frame employed by the liberal mainstream—in order to adequately grasp the democratizing potential of disobedience.
As already noted, it is important that also on this radical and radically democratic understanding, civil disobedience still claims to be “civil.” The meaning of the “civil,” however, is here conceived in contrast to common understandings of the “civil” in terms of the bourgeois, civilized, mannered, polite, or respectable—characteristics often attributed to idealized instances of civil disobedience from the past (Gandhi, King) which are then mobilized to discredit and discipline civil disobedience in the present (e.g. Black Lives Matter; see Theoharis, 2016). Rather, civility is here conceptualized as pertaining to the logic of political in contrast to military action: civil disobedience is a practice of political subjects—citizens, but also those who are governed or subjected but not recognized as citizens—that aims at a reconfiguration of citizenship and political relations more generally. As such, it presupposes some kind of civil bond with the adversary, however strained and contested, and is incompatible with the attempt to destroy or permanently exclude an enemy from the political community.
Civility in this sense can be spelled out further in a variety of ways, some of which are more demanding than others, but all of which imply certain forms of self-limitation and self-restraint that are more flexible and less constraining than the liberal emphasis on the nonviolent, purely symbolic, and law-abiding character of civil disobedience suggests. At the minimal end of the spectrum of civility lies the distinction between civil and military forms of interaction; at its maximal end, the idea of prefiguration, that is, the claim that the end has to be present in, or prefigured by, the means (see, for example, Graeber, 2002). In both cases, those who disobey are seen as managing to maintain civility in the face of often massive state incivility, but this civility is both a (potentially radical and militant) commitment and an achievement rather than an expression of loyalty or deference to the authority of a state that has often systematically failed them. Accordingly, insofar as the “civil” in civil disobedience is linked to citizenship, the latter is to be understood not as a formal status assigned by the state, but should be viewed as a practice (Balibar, 2012; Tully, 2014) or in terms of acts of citizenship (Isin, 2008), that is, the capacity of political agents to act together, as citizens, also outside of and against formal institutions (including those regulating access to citizenship).
Disobedience and constituent power
From a perspective that focuses on the politicizing and democratizing role of civil disobedience as a dynamic reconstitution of the political community, the distinction between civil disobedience on one hand and constituent power on the other hand becomes less clear and loses its absolute status. In some cases, what starts as a simple act of disobedience—say the occupation of a university building or a public square—can develop, or be transformed, into a “constitutional moment” in which the constituent power of the general assembly is invoked, committees are formed, a constituency is established, a new constitutional process initiated, and so on. This is not to say that all acts of civil disobedience should be understood in the register of constituent power. 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).
The link between civil disobedience and constituent power also enables a more mundane perspective on constituent power that sees it as standing in a relation of continuity with civil disobedience; this perspective might prove useful in avoiding some of the problematic tendencies with which the discourse of constituent power has been saddled, from eventalization via heroization and rarification to purification. All of these tendencies involve an ahistorical and asociological uncoupling of the event of the eruption of constituent power (in founding moments or great revolutions) from ongoing struggles and movements (see Celikates, 2010). If, in contrast, one tries to link the latter two dimensions, the focus turns to the dynamic (or “dialectic”) of constituent and constituted power, and mandates a move from the event to practices and struggles which are always situated within contexts of (more or less) institutionalization. According to this view, constituent power does not exist independently of institutionalization and mediation, even if it is directed against their currently hegemonic forms—it is always already mediated and dispersed rather than something to be predicated of a unified collective agent such as “the people” in the singular.
This raises the question about the precise nature of the link between civil disobedience and constituent power. Following Niesen (2019), we can distinguish between articulation and exercise, where the latter involves a claim to the authority to bring about a fundamental change in law, and the former remains essentially inconclusive and part of the democratic process of self-determination. I want to suggest that civil disobedience is best seen as a fallible and defeasible articulation of constituent power, that is, as an act of democratization and politicization that invokes the capacity of the demos to act (Ober, 2008) in a self-reflexive and self-limiting way. Even if it does employ more than merely symbolic or communicative means and thus goes beyond the moral appeal, civil disobedience therefore ultimately depends on discursive validation in the public arena—a validation that will, of course, itself be subject to contestation. Constituent power in the form in which it is articulated in civil disobedience then ceases to be an extraordinary force that is wholly external to the existing order and that interrupts it from the outside in the form of an event. By inscribing the conflictual and unresolvable dialectic between constituent and constituted power into the existing order itself, it turns constituent power into a moment of that order that nevertheless transcends its logic. In this way, civil disobedience can be freed from the liberal constraint that it needs to be tied to the pre-existing political order and that it must accept the latter’s claim to authority.
Making constituent power less exceptional, and normalizing it in this way, does not risk losing or domesticating its radical potential. This potential resides in the fact that constituted power is unable to fully absorb and institutionalize constituent power in the sense of the capacity of the demos to act. The resulting tension is precisely what civil disobedience as a genuinely political and democratic practice of contestation—one that is not reducible to an ethical or legal understanding either in terms of individual conscience or of fidelity to the rule of law—exploits: It dramatizes the tension between the poles of positive law and existing democratic processes and institutions on the one hand, and the idea of democracy as self-government on the other, which is not exhausted by established law and the institutional status quo. (Rödel et al., 1989: 46)
In other words, it keeps in motion the “indefinite oscillation […] between two obviously antinomical forms of ‘politics’: an insurrectional politics and a constitutional politics […], a politics of permanent, uninterrupted revolution, and a politics of the state as institutional order” (Balibar, 1990: 51). Far from being a merely corrective or defensive, and ultimately servile and passive, reaction to transgressions of state power, civil disobedience then comes into view as a transformative, and potentially comprehensive, political practice aimed at reconstituting the political order. As an essentially collective and political practice of contestation, in which the vertical form of state authority—constituted power—is confronted with the horizontal constituting power of the association of citizens or of those who are governed, it is a form of democratic empowerment that aims at a more intensive and/or more extensive form of democratic self-determination. It can thus be seen as a radical bottom-up form of norm-generative contestation (see Wiener, 2014).
In the context of existing political and social systems of rule and domination, both on a national and a transnational level, political processes of deliberation and decision-making are often either inexistent or inaccessible to those affected, or distorted by almost unavoidable structural democratic deficits—for instance, in the dimensions of representation, participation and deliberation, but also due to the influence of asymmetrical power differences in the public debate, hegemonic discourses, and ideological self-conceptions (Young, 2001). This fact constitutes the starting point of the radical democratic conception of civil disobedience that links it to constituent power: given these structural shortcomings of institutionalized democracy, civil disobedience is not so much about preventing or implementing a specific policy option, which is either inconsistent with or mandated by the substantive norms and values of liberalism, but instead it is about initiating or resuming political engagement and reconstituting the political order.
One might worry that this interpretation gives civil disobedience an anti-legal, anti-institutionalist, and anti-statist bent that is incompatible with its history, present, and normative logic (see, for example, Scheuerman, 2018). This worry can be addressed on several levels. To begin with, understanding civil disobedience as a reconstituting articulation of constituent power is conceptually linked to, embedded in, and also aimed at a (quasi-)constitutional and institutionalized order. Furthermore, from a functionalist perspective, the political system is characterized by constitutive democratic deficits and a limited ability and willingness to learn and self-reform that makes it dependent on other, non- and extra-institutional sources of dynamization such as protest and disobedience (see, for example, Luhmann, 1991: ch. 7). Arendt’s (1970) observation that in order to avoid overly demanding misconceptions of what the law can achieve, we have to acknowledge that “[t]he law can indeed stabilize and legalize change once it has occurred, but the change itself is always the result of extralegal action” (1970: 80) points in a similar direction. As these tensions and contradictions tend to be reproduced within the realm of protest—think only of the risks of the so-called NGO-ization of protest and its professionalizing, depoliticizing, and disempowering effects (see, for example, Choudry and Kapoor, 2013)—the dynamic and dynamizing force of protest can itself be seen as relying on its less institutional, less formal, and less professional forms.
Civil disobedience as an episodic, informal, and extra- or even anti-institutional form of political action thus also aims at a dynamic of institutionalization and challenges to institutions that allows citizens—and those excluded from this status, such as irregularized migrants and “sans papiers”—to protest and participate, when the official and regular institutional channels of action and communication are closed to them or are ineffective in getting their claims and objections across. This, evidently, is often the case even in more or less functioning, but increasingly dysfunctional, representative democracies. In addition, these institutions and channels are often not only limited but prove to be so in ways that make it impossible or at least difficult for citizens to address these limits. This is especially obvious in the case of irregularized migrants who are usually not even seen as candidates for the status of a political actor. Consequently, their political agency has to find another locus and logic than the institutional realm and a direct appeal to the norms and values accepted by the majority and enshrined in the constitution. Calling the forms of resistance and protest they engage in “civil disobedience” thus necessitates a radical revision of what the civil and what citizenship mean—a revision, or reconstitution, which the resistance and protest of migrants is at the same time aiming at and performing.
Irregular migration and transnational disobedience
The radical and radically democratic potential of resistance and protest by irregularized migrants provides a powerful example of the transformative dynamic unexpected forms of civil disobedience can unleash by politicizing phenomena that are naturalized or removed from politicization, such as the boundaries of the political community. These boundaries are of a dual nature, consisting of the external territorial borders of the state’s domain as well as of the internal boundaries of membership. Until recently, the disobedience of irregularized migrants has primarily been linked to contesting the boundaries of membership, the lack of political status, and the consequent invisibilization and exclusion from the public realm—that is, on the post-migration activism of those who already managed to enter the territory of the state (see, for example, Amayo-Castro, 2015). This activism has powerfully highlighted the democratic scandal of large populations who are subject to state policies and laws but lack any standing to participate in the making of these laws or in processes of contestation directed against them. Since the summer of 2015 and the so-called refugee crisis, however, migrant disobedience has found a publicly visible and powerful form in the irregular crossing of state borders (see also Basu and Caycedo, 2018).
In this last section, I will argue that understanding irregularized migration as a form of civil disobedience exemplifies the constituent dimension of politicizing disobedience. It not only involves negating the state’s presumed right and capacity to unilaterally control access to its territory but forces the political community to reconsider its borders—including, prominently, the historical arbitrariness, blatant dysfunctionality, and multidimensional injustice of the actually existing border regime. It may be true that the disobedience involved in irregularized migration is in most cases not directly aimed at changing legislation or making a contribution to a debate within an already constituted public of citizens. Nevertheless, this type of disobedience can be situated within the terrain of the politics of constituent power in so far as it creates new forms and spaces of the political—often in infra-political or subaltern modes—and is transformative vis-a-vis the existing constitutional order with the potential to reconstitute its boundaries and its logic. The reconstituting dynamic set in motion by acts of disobedience can, and for the most part does, occur even short of leading to any legislative change as its challenge operates on the level of usually taken-for-granted assumptions about borders and citizenship as the defining features of political communities, and the limited ability and willingness of the members of these communities to reconsider these features. As such, the challenge posed by irregularized migration is both extraordinary and ordinary, as it operates both on a fundamental level and emerges out of a myriad of everyday practices and struggles at the border and in the borderzones that have emerged around it.
In order to conceptualize irregularized migration as an act of civil disobedience, the classical liberal definition (put forth by Rawls, Dworkin, and, with some qualifications, Habermas) proves inadequate. As we saw, on the mainstream account civil disobedience occurs when citizens act in public, nonviolent, morally justified, and communicative albeit illegal ways in order to press for local changes in the political and legal order of a community while recognizing the general legitimacy of that order. This view is challenged by transnational forms of disobedience, and specifically by irregularized migration, in three fundamental aspects, namely, with regard to the agents, the practices, and the aims of civil disobedience. My claim is that despite these three fundamental challenges, irregularized migration can be fruitfully conceptualized as civil disobedience without falling victim to the risk of conceptual overstretch. Conceiving of irregular migration as transnational civil disobedience has several advantages. First, it acknowledges the fundamentally problematic character of the system that regulates migration and the need to protest it in ways that go beyond established legal channels of political action. In fact, the illegitimacy of this system is overdetermined: beyond the incontrovertible fact that it violates international law and creates a permanent humanitarian catastrophe (especially at the shores of and on the Mediterranean; see Jansen et al., 2015), it also triggers a justification of irregularized border crossing in terms of a right of necessity (Mancilla, 2016). From a normative perspective, the injustice-generating and injustice-preserving, freedom-restricting, and undemocratic character of the existing border regime has been convincingly established by recent theorizing (see, for example, Abizadeh, 2008; Carens, 2013; Hidalgo, 2015). Second, speaking of transnational disobedience puts the agency of the concerned migrants and refugees at the forefront and highlights the fact that, at least in many cases, they themselves are aware of the normative justifiability and political significance of what they are doing as well as the civil and self-restrained way in which they do it. This change in perspective aims to do for civil disobedience what Anne McNevin (2011) has in mind for citizenship when she argues that the [d]ynamics of citizenship are […] too often investigated from the perspective of those who have citizenship in more or less substantive forms rather than from the perspective of those who do not. […] The mobilizations of irregular migrants are important but largely neglected sites for thinking through the transformation of citizenship. (2011: 27, 31)
It is relatively obvious that understanding irregularized border crossing as an act of transnational civil disobedience poses a challenge to established understandings of who the
Conceptualizing irregularized border crossing as an act of civil disobedience, then, also challenges established understandings of the
The claim defended in this section is thus not that irregularized migration is inherently or in all cases political and a form of civil disobedience. But avoiding the risk of overpoliticization should not come at the cost of ignoring the manifestly political dimension of recent forms of disobedience at the border that clearly invoke shared political and moral norms—such as justice, freedom, democracy, and human rights—and turns them against a political order and a border regime that officially subscribes to them but undermines and violates them in practice. In this way, those who cross the border irregularly do not only claim to exercise their own rights—rights that are asserted to be massively violated—but they take a principled stance against the structure that is the source of this violation and appeal to a bond that goes beyond the narrowly civil bond that exists between citizens of the same polity. This bond is civil in a broader sense as it ties the fate of migrants and refugees together with that of the citizens of the wealthier states in ways that are historically deep (especially in the cases in which they are economically and politically entwined). In these cases (and the same could, and indeed has been, shown for other regions, such as the US-Mexican border and its local border struggles; see, for example, Naples and Mendez, 2014), it is not the theorists who project a political meaning onto what happens, but the political meaning—including claims about the aims of disobedience—is produced by the agents themselves as an essential part of what they are doing.
Insofar as the
Against this background it becomes possible to see irregular migration as both a product of an illegitimate global border regime and as a form of political protest against it—as a form of civil disobedience that introduces new agents, new practices, and new aims to the practice and philosophy of civil disobedience. Since it potentially involves the reconstitution of the political community and the very meaning of membership—challenging established understandings of the self that is supposedly the subject of self-government at the heart of the idea of constituted power (see Kalyvas, 2016)—it can be seen as blurring the boundary between, or providing an example of a synthesis of, civil disobedience and constituent power. The “sans-papiers” occupying churches and other buildings, the refugees crossing Europe’s borders without authorization, and Cédric Herrou and Roya Citoyenne providing support and solidarity did not (yet) manage to effect a fundamental change in how the EU and its member states regulate access to their territory and to membership—indeed, the “long summer of migration” has been followed by a period of nativist and right-wing resurgence, crackdowns, and practices of re-bordering. The challenge raised by the politicization of borders, however, still stands, and political communities need to find more productive and at least minimally democratic ways of engaging the reconstitution of the political order that is at stake in the acts of civil disobedience by irregularized migrants.