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'Constructive disobedience': a critique

For disobedience to be justified in a fully public, democratic way it needs to be grounded in horizontal, pre-institutional political relations (an extremely difficult challenge both philosophically and politically).

Ada Colau at a public engagement event that took place in Sants-Montjuïc on 18 February 2017. Photo by Bertie Russell. CC BY-NC-SA.DiEM25’s call to ‘constructive disobedience’ is intriguing. It sounds promising, exciting even, but what it might mean is not immediately obvious. The explanatory note that the movement has now published is therefore extremely welcome. It is also rather unenlightening.

DiEM25 laments the fact that “Europe is disintegrating due to the incompetent authoritarianism of its institutions”. A first-stage course of action against this malaise is ‘constructive disobedience’.

This is a call to local institutions to occasionally disobey EU law and policy. Such action, the idea goes, is ‘constructive’ and therefore permissible when the principle on which it is grounded can be ‘universalised’. This is an explicit reference to the Kantian conception of universalisation. What the authors have in mind is something like a contradiction in the will. To oversimplify the idea: if everyone did what you propose to do, would you will the result? If not, you ought not to do it. If so, knock yourself out.

This reference to the Kantian tradition is rather surprising given the left-leaning character of DiEM25 and, very importantly, its explicit commitment to democracy. There is also an unwarranted, conflation between Kant’s moral and political philosophies. I do not mean to take DiEM25 to task for inaccurately or inconsistently name-checking Kant; my concern is not of a philological nature. There are, however, some substantive implications to this and it is those that I want to tease out.

First of all, it is interesting that constructive disobedience seems to be a duty of institutions (“municipalities, city councils, regions and governments”). Now, the trouble with institutions is that they are heavily circumscribed. The range of actions that is permissible for them to pursue is determined by the normative institutional nexus, in which they are placed.

This requirement is both formal – institutions must act as public institutions – and substantive – they must always remain in-line with the normative orientation of the institutional structure. Any departure from this normative framework means that institutions act in an unauthorised, non-public manner.

DiEM25 therefore applies the wrong universalisation test. It is not contradictions in the will that institutions must avoid; institutions very simply do not have a will in the same way as individuals do. What they are under duty to do is to remain within and maintain the rightful, civil condition, which is assumed to be the realisation of the will of the people as a unity.

How, then, can we make sense of constructive disobedience as a departure from the institutional structure in a way that remains public? One option might be that the ‘public’ invoked by constructive disobedience is not that of the EU structure but that of local democracies. The latter then emerge as enjoying priority over the former. This, however, is not to democratise the EU; it is to shrink it by breaking it down into its constituent parts. It is therefore also inconsistent with DiEM25’s overall goal of federalism. 

At first one might think that “constructive” is meant in the common parlance sense of being helpful, of making some progressive contribution. But perhaps it means something else, more technical.

Perhaps it is a call to institutions to (re)construct the true spirit of EU Law in the de Toquevillian sense of appealing to the consensus universalis underpinning the law, which Arendt invokes in her defence of civil disobedience. Local institutions are ascribed the task of authoritatively interpreting EU law. This might also explain why “constructive” is opposed to “deconstructive” rather than to “destructive”. The idea seems to be that the EU institutional order is built interpretatively and cumulatively from all levels of administration and in light of some overarching principles. 

But then we stumble upon the problem of institutional closure again. How may institutions overshoot their prescribed competence, and therefore their legitimacy, and decide on non-institutional grounds without exceeding their democratic support?

There are interpretative margins, of course. Sometimes what seems like a departure, like “disobedience”, on the part of an institution will not be that at all; it will be the permissible exercise of discretion. The question is how wide the margins of discretion are and how they are determined. DiEM25’s call to constructive disobedience implies that they are determined not by procedural and substantive rules within the institutional structure but rather by some overarching, underdetermined, and rather nebulous principles.

What these principles require, the argument might go, can be reconstructed from a philosophical perspective, which local institutions are in a position to take. This, however, happens in the absence of those whose real interests, will, beliefs ought to be represented in decision-making of this sort. The worrying upshot of this is that what emerges as the alternative to ‘incompetent authoritarianism’ is not democracy but ‘competent authoritarianism’. 

The intuition behind DiEM25’s constructive disobedience is sound. The institutional structure of the EU is full of cracks, which undermine democracy. Departures from these institutions might be the way of streamlining the EU and democratically reconciling local and European institutions – it is certain that disobedience has a transformative force.

However, for disobedience to be justified in a fully public, democratic, way it needs to be grounded in horizontal, pre-institutional political relations (an extremely difficult challenge both philosophically and politically). To require local institutions to exceed their democratic competence and legitimacy can only exacerbate the problem that DiEM25 sets out to solve.

About the author

Manolis Melissaris teaches at LSE Law. His work focuses on legal and political philosophy and criminal law.

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