El arte de comunicarse

In arguing for the primacy of electoral participation and an active public culture of rights, both Bellamy and Waldron invoke Arendt’s writings on the fundamental importance of political participation.³⁹ Arendt famously highlighted the plight of stateless refugees to call attention to a tension at the heart of human rights stemming from the fact that those stripped of all but their humanity proved most vulnerable to violence and abuse since they lacked the security and recognition afforded by the status of political membership. Arendt’s ‘right to have rights’ consists in the right to

‘live in a framework where one is judged by one’s actions and opinions, the right to belong to some kind of organized community’. It thus involves two types of right in expressing the primary moral importance of a moral right to membership of a political community where one has political rights to be seen and heard as a citizen among equals.⁴⁰ The political constitutionalist view understands this second form of right as the formal rights of constitutional citizenship. The creative power of rights is

ultimately expressed in the ‘acts’ of our elected representatives; legislation that is the outcome of political processes culminating in a majoritarian vote in parliament. The legislative act is thought to reflect the interests and opinions of the community as a whole, bringing to a close a process of disagreement and argumentation.

39 See e.g. Waldron, “The Core of the Case against Judicial Review,” (2006), 1392; Richard Bellamy,

“The ‘Right to Have Rights’: Citizenship Practice and the Political Constitution of the EU,” Citizenship and Governance in the European Union, 2001.

40 Hannah Arendt, The Origins of Totalitarianism, vol. 1 (Mariner Books, 1973), 290; and the helpful discussion in Ingram, ‘What Is a ‘right to Have Rights’?.

The right to have rights, as I interpret it, is not the package of formal political rights tied with official citizenship, but the right to political action in a much broader sense.

There is a need for activist citizenship to supplement, and even substitute for, constitutional citizenship where the formal channels of political participation are unavailable or unreliable. In this model, rights claimants are not conceived just as equal citizens within ordered processes of electoral negotiation and persuasion, but also as self-assertive individuals purposefully demanding recognition of what they take to be their rights by exercising them directly regardless of their official recognition through appeal to fundamental moral principles that are thought to over-ride democratic law-making. This interpretation reflects the emphasis in Arendt on the creative, unpredictable nature of political action, realising the human capacity to make something new and unexpected out of what had been before in a wider political community, defined not by formal institutional structures, but the ‘space of

appearance in the widest sense of the word, namely the space where I appear to others as others appear to me’.⁴¹

Conclusion

The political constitutionalist account of rights portrays a more realist view of rights politics than Dworkin, which sees a central role for disagreement and conflict. It is clear from the writings of Waldron and Bellamy that the emphasis they place on political participation is based not only on a normative concern with democratic legitimacy, but a political concern that an elitist regime of judicially-enforced negative rights will entrench inegalitarian regimes of private property and the related concern that such a regime favors those already privileged groups who can afford the costs of litigation to defend their private interests. These are important concerns. Yet we must equally be wary of construing rights politics in such a way that overlooks their

rebellious deployment against authority through practices of opposition in multiple spheres. A theory of rights-based citizenship based on the equal respect owed to the opinions and interests of democratic citizens and open to the transformative claiming of rights cannot afford to ignore the importance of activist citizenship. Once we accept the political constitutionalist insight that rights are contestable and that plurality,                                                                                                                

41 Arendt, The Human Condition, 198-199.

dissent and disagreement are integral to their creation, definition and enforcement, our understanding of principled political contestation should be broadened beyond voting and parliamentary law-making. This chapter established that rights function in politics not simply as weighty electoral interests traded among legislators and voters, but as claims that interrupt the ordinary flow of debate and empower marginalized groups to enter the political arena and force new critical perspectives into public discourse. They may not automatically ‘win’ the political game in the manner of a trump in a game of cards, but the assertion of a justified moral right may nonetheless appeal to norms that over-ride democratic law-making and require extraordinary political intervention to overcome unresponsive political structures or else to compel majorities to confront their own assumptions and prejudices. Having touched on the topic of civil disobedience in my examination of both legal and political

constitutionalism, I turn in the next chapter to critically examine Rawls’s influential theory of the practice with the intention of highlighting key differences between an activist citizenship of rights and the classic liberal model of disobedience.

Chapter 6: Rights as dissident speech: The liberal civil disobedience model

‘If you want a quality, act as though you already had it’.

- William James

John Rawls’s discussion of civil disobedience in his Theory of Justice offers the pre-eminent liberal statement of the practice within the philosophical literature.¹ His analysis has provided a framework for much of the subsequent debate on the nature of political action by citizens outside official channels of participation and the grounds of its legitimacy.² I have, by this stage of the thesis, elucidated the features of an activist politics of rights principally by way of contrast with official forms of citizenship. The purpose of this chapter is to highlight the particular characteristics of an activist politics of rights considered as a distinctive form of oppositional politics by way of critical contrast with Rawls’s theory. In the first section I situate Rawls’s account within the broader literature on disobedience, highlighting the motivations and presuppositions of this literature in relation to my own. In the second section, which makes up by far the greater part of this chapter, I draw out the particular

characteristics of an activist citizenship of rights through a critical contrast with six features Rawls identifies with civil disobedience.

Rawls claims that civil disobedience is: i) in violation of the law and intended to be so; ii) nonviolent; iii) public; iv) accompanied by a willingness to accept the legal consequences; v) usually performed to bring about a change in the laws or polices of the government and; vi) addressed to the majority’s sense of justice. As with

Dworkin’s writings on disobedience, Rawls’s discussion is shaped by a distinctively liberal historical interpretation of the protest movements in the US at the time he was writing, which treats these movements principally in symbolic communicative terms as a form of moral speech aimed at bringing a wayward political majority to its                                                                                                                

1 Rawls, A Theory of Justice, Ch 6.

2 See for instance the essays collected in Bedau, Civil Disobedience in Focus.

senses. He fails to see that disobedience is a legitimate response to the deficiencies of the democratic system with a necessary function in securing the equal respect due to the political views and interests of democratic citizens. I further note the overly restrictive effects of Rawls’s prescriptions on the permissible forms of disobedience and fault his preoccupation with the legal-institutional dimension of movement politics at the expense of its social influence on norms, behaviours and attitudes within civil society.