Performative civil disobedience as infrapolitics of resistance, quiet

Except for some brief comments, the abovementioned typologies do not touch on the role of the excluded in the exercise of disobedience. For example, the actions of the abolitionists are discussed but not those of the slaves even though it is obvious that the flight of the slaves was the prior condition of the abolitionists’ moral dilemma and that the slaves’ disobedience had potentially lethal consequences for the fugitive slaves and for other slaves who collaborated with them.¹ Similarly, no mention is made of the extreme strategies the slaves used to sabotage their masters economically or to deprive their masters of control over them by suicide.² These theorists generally use the America civil rights movement as a point of reference, but their commentaries on it do not give details about its various modalities and its forms of struggle.

It is perhaps because of that bias that most of the abovementioned authors speak of disobedience in a negative and selective sense (not doing what is ordered) and not in a broad and positive sense (doing what is prohibited). As a result, some of their justifications are rather contrived. In an effort to simplify the difficulties presented by the justifications and to reconcile them, I propose to start from the acknowledgment that the excluded have a right to demand the same rights as the majority, to suppress the privileges monopolized by a minority, and to eliminate the deprivations imposed on particular groups. This is a perspective that places the persons affected and the struggle against exclusion at the heart of civil disobedience. Disobedience is justified when exclusion exists and the action undertaken seeks to eliminate it and to provide for a minority the same rights that the majority possess. This implies collateral actions aimed at forcing inclusion and achieving a perlocutionary effect.³

1 Flight implied the collaboration of other slaves and their subsequent punishment, according to the

testimony of Harriet Jacobs, who in 1861 authored one of the first biographies written by African Americans.

Jacobs, 2000, p.123.

2 The Louisiana Insurance Company used to insure slaves according to the principal reasons for their loss:

insurrection, elopement, suicide, and natural death. Bonnell Phillips, 2004, pos.176.

3 This formulation eliminates scholastic discussions about what conscience dictates to different people. It also moves the discussion toward a criterion that is both more political and more morally defensible, at least in presumably liberal societies. Some of the criteria mentioned earlier seem quite plausible, but they do not meet the test for diversity of types of noncompliance. To take just one example: was it licit to violate the law of prohibition? According to the criteria of Dworkin it was indeed licit since the law was finally suppressed.

On the basis of this assumption, I use several criteria to distinguish between forms of civil disobedience. From the perspective of their objectives, we can divide acts of civil disobedience into reformist-permanent (those acts seeking a permanent change in some law, such as in the struggle for assisted suicide or legalization of marijuana), reformist-episodic (those seeking to change a temporally limited law or policy, as with the war in Vietnam),¹ remonstrative (those seeking to create awareness about key aspects of the system, such as the actions of Occupy Wall Street), partial-revolutionary (those proposing to change at least one key aspect of the system, such as the length of the workday or the right to unionization), and inclusive-revolutionary, which is where I locate those acts aimed at gaining for a marginalized group the civil rights of an established group; these are acts which expand the recognition of citizenship, such as the struggle for civil rights or the granting of those same rights to immigrants and the granting of residency and citizenship to the undocumented. From the perspective of the relation between the nature of the protest and the content of the law, I distinguish between positive-proactive disobedience (doing what the law prohibits without causing further problems, such as the Israeli woman who would not sit behind the rows reserved for men),² positive-obstructive (doing what the law prohibits and causing further problems, such as blocking traffic), and omissive (not doing what the law requires, such as not serving in the military or not paying taxes).

I want to propose one additional typology that is based on the relation between means and ends. Besides being simple, this typology allows me to connect better with the justification of civil disobedience I proposed, to dialogue more effectively with some of the concepts that broaden the definition of political actions (Foucault, Bayat, Thompson, Scott), and to stress the importance of the ordinary actions the excluded perform in order to become included. I distinguish four ways of relating the means employed and the ends desired.

1. The indirect-instrument relation is one in which there is no intrinsic connection between means and end. The acts of disobedience are disconnected from the change itself but are carried out as

We can show, after the fact, that the dubious benefits of the law were rightly questioned by those who broke it. To understand the change in legislation, however, it is obvious that many things need to be considered before conceding that the violation of the law was justified, such as the crimes to which the law led, the economic interests involved, and the pragmatism of the legislators’ reasoning.

1 This struggle was inspired partly by pacifist principles, but in the interest of gaining broad support, it did not oppose all wars.

2 Such actions can have costs, but the costs do not derive directly from the action but from the reaction.

When Tanya Rosenblit, considered the Rosa Parks of Israel, boarded a bus and sat in one of the front rows, the uproar and the arguments of the Orthodox Jews brought the bus to a halt. Lemberg, 2011.

means to bring about the change: blocking a street (which does not have permanent blocking of traffic as a goal), sitting-in in front of the White House, etc. These are examples of the illegal actions that Ebert groups together under the umbrella of civil disobedience. They are mechanisms for applying pressure to provoke change; Dworkin classifies such pressure tactics as non-persuasive disobedience since they are aimed at increasing the cost of maintaining policies that the disobedient activists oppose.

2. The direct-instrumental relation, which is a variation of the previous one, involves exerting pressure directly on the arena of conflict; it is applied as a way of punishing—generally financially—those who hold power and refuse to change policies or even to negotiate. Examples are abstaining from payment of taxes to advance a cause, or striking to force management to grant a wage increase or to recognize the right to unionize. The best example is the bus boycott carried out by African Americans in Montgomery County in their struggle for civil rights. The losses of Montgomery City Lines, averaging 22 cents a mile or $12,000 a month, plus a decline in purchases of merchandise by African Americans led to the formation of a businessmen’s group known as the Men of Montgomery, which speeded up the negotiations. Many housewives contributed to the boycott by providing transport for their maids and cooks.¹

3. The symbolic relation is one in which the actions are executed as emblems, previews, or representations of the change desired. For example, an interracial banquet or mass would announce and symbolize the end of segregation. Such actions do not bring an end to segregation, but they anticipate it and prefigure it in a ritualized, homeopathic form. This is what Raz call expressive disobedience, that is, disobedience that is not effective in itself but has a persuasive function such as Dworkin, Rawls, and Habermas proposed. Many of the actions that Ebert classifies as constructive fall within this category. Symbolic disobedience can contain much that is theatrical, including the counter-theater of the excluded; it can also contain the alethurgical elements, which Bobbio calls exemplary actions though he also excludes them from civil disobedience.

4. The relation is performative when the means of civil disobedience achieve the object of the disobedience directly and immediately. In such cases the disobedience consists in behavior that simply disregards legislation that excludes people. The political actors—who are mainly but not exclusively made up of the persons affected—behave as though the legislation they are attacking

1 Marsico, 2012, pp.59-61.

has already been abolished. Their behavior makes actual something that is still only potential. I call this a “performative relation” by allusion to the theories of Austin as applied by Butler to the concept of gender. Butler speaks of gender as performative to indicate that its character is conditioned by what is done and what is said: the “appearance” of gender is confused with an inherent truth, thus obscuring the fact that the reproduction of gender is a disputed territory in which persons can call into question compliance with the norms that reproduce gender and require definitions in a binary mode. Gender is not a metaphysical substance that precedes its expression.¹ Expressions are what expand social existence, though they do not exhaust it. If gender does not impose itself until there are expressions that achieve its enactment, the act of excluding is neutralized when those who are supposed to be excluded do not act as such, with the collaboration of others. This is what happens with performative disobedience: it inhibits exclusion, that is, it deprives it of its effectiveness. My use of the category “performative” is not restricted to acts of speech. The disobedience I call “performative” consists of acts that actually produce what they are demanding by being performed: they bring about the end by performing the means. The disobedience is a pronouncement, but one that consists in annulling de facto, but not de jure, the prohibition that weighs upon the excluded. This form of disobedience has the effect of creating a situation similar to the eschatological tension of the already/not yet.²

The exclusion has been neutralized by one sector of society, but it has not been corroborated by law. The inclusion has legitimacy already, but it does not yet have legal validity.

The depth reached by that “already” depends on its performative efficacy. There are many performative acts that fail: orders that nobody hears or obeys, promises that are addressed to nobody. They are acts without effects. Performative acts are effective when they bring about what they say and when a sum of effects derive from those acts.³ Those who practice civil disobedience usually seek such a perlocutionary effect because disobedience is not successful unless it shapes public opinion so as to oppose exclusion.

Using Raz’s terminology, this performative efficacy can also be called effective civil disobedience. More precisely it is immediate-effective disobedience because, although it forms part of a plan to change the situation in the future, it also bring about the change ipso facto. The actors behave as if the change has already occurred; they adopt as customary what the law still defines as noncompliance. Examples would include African Americans who sit in the part of the

1 Butler, 2010, p.147.

2 This formulation comes from theologian Geerhardus Vos. Menn, 2013, p.34.

3 Butler, 1997, pp.16-17.

bus assigned to whites, those who eat greasy hamburgers in restaurants they are not allowed to enter, conscientious objectors who resist recruitment, homosexual couples who have de facto unions, etc. This is the type of obedience that has greater performative effectiveness. The action stages the change that is desired. Moreover, it is perlocutionary because it requires the participation or contribution of others to make the change effective.

Racial segregation on the buses of Montgomery County was subjected to two forms of civil disobedience, direct-instrumental and performative. The first was led by Martin Luther King, who used the bus boycott as his touchstone: the Montgomery Improvement Association (MIA), established in 1955,¹ organized a complex system of donations to keep in circulation the car pools that replaced the buses as a means of transportation for the African Americans.² The disobedience had a powerful perlocutionary effect because it called attention to segregation and the struggle to abolish it, it generated a spirit of solidarity, and it even provoked the self-interested reactions of housewives and the business sector. Performative civil disobedience is what was practiced by Rosa Parks on that afternoon of December 1, 1955, when, returning home after a hard day’s work and some Christmas shopping, she ignored the threats of the driver and refused to give up her seat to some white who had just got on the bus.³

The foregoing examples were drawn from practice. Unlike the cases studied by Habermas, Walzer, and Arendt, the group identity in these examples did not emerge from an organizational program. If we can speak of any type of cohesion in such spontaneous disobedience, it is the cohesion that emanates from shared suffering rather than concerted principles. That is why the disobedience practiced by the African Americans targets the very heart of exclusion. They attack it directly. According to Habermas, who in this point follows Rawls, civil disobedience has a symbolic character and should be practiced only as a way of appealing to the reasonableness and the sense of justice of the majority. In many cases, according to him, the disobedience ruptured norms in a calculated way.⁴ This way of thinking forgets about Rosa Parks and many of the others who have disobeyed, especially those excluded persons whose disobedience consisted in appealing to the majority’s sense of justice by acting as if the excluding norm did not exist. Such performative civil disobedience was effective and not only expressive; it was not instrumental but direct since

1 Marsico, 2012, p.35.

2 Williams, 2006, p.143.

3 Hull, 2007, pp.5-6.

4 Habermas, 1985, p.99.

breaking of law was not only a means but it embodied the very practice for which legalization was being sought. Moreover it was positive because it did what the law prohibited.

The disobedience of undocumented migrants is of the same sort. It is not defensive or negative but positive-proactive. It consists in doing what the law prohibits: entering, remaining, and working where they are not allowed to do so. They are seeking and forcing inclusion, and since they want to avoid punishment, it is active. Just as Rosa Parks remained in her seat in violation of the Jim Crow laws and despite the threats of the driver, the migrants enter the United States and remain there in violation of the migratory laws and in defiance of their enforcement by the Department of Homeland Security. Their perseverance in making use of rights that are denied them has the overpowering effect of a non-movement and spurs diverse movements to act in solidarity with them. The spontaneity of their acts resembles more the improvised noncompliance of Rosa Parks than the planned boycott of Martin Luther King, as if these represented two modalities of civil disobedience: spontaneous and atomized or organized by a group, performative or direct-instrumental. Both can be taken as what they in fact were: two stages of the same struggle. The quiet encroachment of the undocumented resembles the civil disobedience that was practiced during the civil rights struggle in at least three important ways: 1) the state prohibits people and treats them unequally; 2) there is confrontation with the state; 3) there is a struggle to escape from a segregated political status.

Bobbio’s categories help us to think about this kind of disobedience. Making use of his distinctions, we can say that performative disobedience is that which is commissive and commissive: it does what is permitted to others, and it tries to avoid punishment. Even more significant than those traits are two qualities that Bobbio attributes to civil disobedience and that we find most clearly in performative disobedience: rendering power impotent and then paralyzing the adversary. When people behave as if no exclusion existed and sway public opinion by living “as if” they were already legally admitted, they are practicing a non-movement strategy for neutralizing opponents and preventing them from achieving their objectives. There are opponents. Their resources, tactics, and activities will be developed at length in the following chapter. Those opponents are not the Republicans nor xenophobic public opinion nor white racism. Not even Donald Trump with his anti-Hispanic cackling presents an obstacle. The opponents are U.S. migratory policies (including an outdated refugee policy that fails to recognize the impact of geopolitics, the war industry, and the U.S. drug market on the Central American

countries), and the industrial complexes that profit richly from the militarization of the border and the enforcement of migratory policies.