The Condition of Democracy Volume 2: Contesting Citizenship 9780367745363, 9780367745370, 9781003158370, 9780367745400

Citation preview

The Condition of Democracy

Democracy and citizenship are conceptually and empirically contested. Against the backdrop of recent and current profound transformations in and of democratic societies, this volume presents and discusses acute contestations, within and beyond national borders and boundaries. Democracy’s crucial relationships, between state and citizenry as well as amongst citizens, are rearranged and re-ordered in various spheres and arenas, impacting on core democratic principles such as accountability, legitimacy, participation and trust. This volume addresses these refigurations by bringing together empirical analyses and conceptual considerations regarding the access to and exclusion from citizenship rights in the face of migration regulation and institutional transformation, and the role of violence in maintaining or undermining social order. With its critical reflection on the consequences and repercussions of such processes for citizens’ everyday lives and for the meaning of citizenship altogether, this book transgresses disciplinary boundaries and puts into dialogue the perspectives of political theory and sociology. Jürgen Mackert is Professor of Sociology and co-director of the ‘Centre for Citizenship, Social Pluralism and Religious Diversity’ at Potsdam University, Germany. His research interests include sociology of citizenship, political economy, closure theory and, collective violence. Recent publication: Social life as collective struggle: Closure theory and the problem of solidarity, SOZIALPOLITIK.CH (2021). Hannah Wolf is a Researcher and Lecturer at the Chair for General Sociology at the University of Potsdam, and associate member at the DFG-collaborative research centre ‘Re-Figuration of Spaces’. Her research interests include urban sociology, theories of space and place and citizenship studies. Latest publication: Am Ende der Globalisierung: Über die Refiguration von Räumen (ed. with Martina Löw, Volkan Sayman and Jona Schwerer), 2021, transcript. Bryan S. Turner is Research Professor of Sociology at the Australian Catholic University (Sydney), Emeritus Professor at the Graduate Center CUNY, Honorary Max Planck Professor at Potsdam University, Germany and Research Fellow at the Edward Cadbury Center, University of Birmingham, UK. He holds a Cambridge Litt.D. In 2020 with Rob Stones he published ‘Successful Societies: Decision-making and the quality of attentiveness’, British Journal of Sociology, 71(1), 183–202.

The Condition of Democracy Volume 2: Contesting Citizenship

Edited by Jürgen Mackert, Hannah Wolf and Bryan S. Turner

First published 2022 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2022 selection and editorial matter, Jürgen Mackert, Hannah Wolf and Bryan S. Turner; individual chapters, the contributors The right of Jürgen Mackert, Hannah Wolf and Bryan S. Turner to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record has been requested for this book ISBN: 978-0-367-74536-3 (hbk) ISBN: 978-0-367-74537-0 (pbk) ISBN: 978-1-003-15837-0 (ebk) ISBN: 978-0-367-74540-0 (set) Typeset in Times New Roman by Deanta Global Publishing Services, Chennai, India

Contents

List of contributors

vii

Introduction: Considering democracies 1 HANNAH WOLF

PART 1

Contesting borders and boundaries 17 1

Rescaling citizenship: Inclusion and exclusion of refugees in Europe’s multi-level governance structure 19 OLIVER SCHMIDTKE

2

Church asylum as ultima ratio: Fighting for access to German society 36 MAX OLIVER SCHMIDT

3

Migration and democracy: Reclaiming democracy from its nativist/nationalist closure

54

ÖZGE YAKA

PART 2

The violence of democracies 69 4

The violence of politics and the participation of citizens 71 JENNY PEARCE

5

The crisis of social trust in non-violent routines: Social mobilization of right-wing violence in Germany 89 EDDIE HARTMANN AND FELIX LANG

vi Contents 6

Beyond legal referent: The degradation of citizenship through the Yemen war 105 MARTHA MUNDY

PART 3

The refiguration of institutions 125 7

The capture of the Polish Constitutional Tribunal and its impact on the rights and freedoms of individuals 127 MONIKA FLORCZAK-WĄTOR

8

The rise of authoritarianism in the European Union: A hybrid regime in Hungary 143 ANDRÁS BOZÓKI AND DÁNIEL HEGEDŰS

9

Turkey’s regime transformation and its emerging police state: The judicialization of politics, everyday emergency, and marginalizing citizenship 166 ZAFER YILMAZ

Index

185

Contributors

András Bozóki is Professor of Political Science at the Central European University. His research focuses on comparative politics, political ideas and the role of intellectuals. His books include Post-Communist Transition; Democratic Legitimacy in Post-Communist Societies; Intellectuals and Politics in Central Europe; The Roundtable Talks of 1989; Anarchism in Hungary, and several others. Monika Florczak-Wątor is Professor in the Constitutional Law Department of Jagiellonian University in Krakow, Poland, the Director of the Centre for Interdisciplinary Constitutional Studies, and the Coordinator of Interdisciplinary PhD Program ‘Society of the Future’ at the Jagiellonian University Doctoral School in Social Sciences. Her scientific interests include human rights, constitutional judiciary, constitutional axiology and comparative constitutional law. Eddie Hartmann is a researcher at the Hamburg Foundation for the Advancement of Research and Culture and senior lecturer at the University of Potsdam, Germany. His research is on sociological theory, violence and social movements. Recent publication: Die Schweigsamkeit der Gewalt durchbrechen, WestEnd. Neue Zeitschrift für Sozialforschung, 2020 (with Thomas Hoebel). Dániel Hegedüs is Fellow for Central Europe at the German Marshall Fund of the United States in Berlin. His areas of research include populism, democratic backsliding and the European and foreign affairs of the Visegrad countries. Felix Lang is a PhD student and lecturer at the University of Potsdam. His research interests include political violence, and right-wing extremism as well as discourse and field analysis. Recent publication: Protestzwitschern. Wie TwitterNetzwerke zur Eskalation der G20-Proteste in Hamburg 2017 beitrugen, sozialpolitik​.c​h, 2020 (with Eddie Hartmann). Martha Mundy is Professor Emerita of anthropology at the London School of Economics. She writes on law and the state, kinship and family and agrarian systems. Monographs include Domestic Government: Kinship, community and polity in North Yemen (1995) and Governing Property: Law, administration and production in Ottoman Syria (with Saumarez Smith) (2007).

viii Contributors Jenny Pearce is Research Professor of Latin American Politics at the Latin American and Caribbean Centre, London School of Economics. Her research is on violence, participation and social change. Most recent book publication: Politics without Violence: Towards a Post Weberian Enlightenment (2019). Max Oliver Schmidt, PhD, is a Post-Doc at Potsdam University, Germany, working at the Chair of General Sociology. His research is on social closure theory, forced migration and class theory. Recent publication: Seenotrettung und Kirchenasyl. Organisationale Schließungskämpfe im Feld der europäischen Asylverwaltung (2020). Oliver Schmidtke is a Professor in Political Science and History at the University of Victoria where he currently also serves as the director of the Centre for Global Studies. He received his PhD from the European University Institute in Florence. His research interests are in the fields of migration, citizenship, nationalism and populism. Hannah Wolf is a researcher and lecturer at the Chair for General Sociology at the University of Potsdam and associate member at the DFG-collaborative research centre ‘Re-Figuration of Spaces’. Her research interests include urban sociology, theories of space and place and citizenship studies. Latest publication: Am Ende der Globalisierung: Über die Refiguration von Räumen (ed. with Martina Löw, Volkan Sayman and Jona Schwerer), 2021, transcript. Özge Yaka, PhD, is an Alexander von Humboldt PSI fellow at Potsdam University. She works at the intersection of sociology, human geography and gender studies. Her research interests include social and environmental movements, socio-ecological justice, critical and feminist theory, migration, body, and subjectivity. Zafer Yılmaz, PhD, is an Einstein Fellow in Comparative Political Sciences and Political Systems of Eastern Europe, Department of Social Sciences at Humboldt University in Berlin. He works currently on the rise of authoritarianism, transformation of the rule of law and citizenship in Turkey.

Introduction Considering democracies Hannah Wolf

It can perhaps be considered a truism that democracy is fragile, and that democratic culture needs to be constantly revived, affirmed, and practiced in order to keep democracies alive. However, acknowledgement of this truism is as important as ever, if not more pressing than it has seemed for a long time. Not only have developments around the globe in recent years demonstrated that democracies are more easily undermined than they are established, it can also be observed that democratic norms and virtues in seemingly stable democratic states have become porous. The democratic institutions and legacy of Hong Kong are being wilfully and forcefully destroyed, Turkey has set the course for a thorough regime transformation, as have Hungary and Poland. The USA has just experienced four years of a presidency by a wannabe-autocrat, the repercussions of which are yet to be seen. Doubts about the European Union’s democratic condition have long been voiced (Dahl, 1998; Grimm, 2016). No less have events such as the global financial crisis and currently at the time of writing the global COVID-19 pandemic put states, governments, and citizens under pressure and have sparked protests and public debate concerning the adequacy and democratic procedurality of decisions and measures, but also conspiracy theories as well as anti-democratic and extremist movements. It is in these contexts that the diagnosis of a crisis of democracy seems to be close at hand, and it comes as no surprise that recent diagnostical categories declaring an ‘age of anger’ (Mishra, 2017), ‘anxious politics’ (Albertson & Kushner Gadarian, 2015), or a constant ‘state of exception’ (Agamben, 2005) frequently centre their analysis around issues such as the decline of democratic culture and legitimacy, ‘post-democracy’ (Crouch, 2004), or the ‘undoing of democracy’ (Brown, 2015). Indeed, there seems to be ‘nothing new about the democratic crisis diagnosis’ (Ercan and Gagnon, 2014, p. 6). Runciman (2013) lists no less than seven ‘real crises’ of democracy for the 20th and early 21st century and contends that democracy always exists in a semi-permanent state of crisis. In 1973, the report The Crisis of Democracy stated that ‘many specific problems have arisen which seem to be an intrinsic part of the functioning of democracy itself’. Amongst other features, they focused on ‘participatory overload’, namely the expansion of political participation in the public sphere and civil society (Crozier, Huntington, & Watanuki, 1973, pp. 161–162). The report came to the conclusion that too much democratic practice was

2  Hannah Wolf in fact undermining democracy itself, explicitly referring to intellectuals and critical media as well as civil society movements advocating for emancipation, desegregation, and gender equality – phenomena to which the report’s authors attested an ‘excess of democracy’ (Crozier, Huntington, & Watanuki, 1973, p. 113). This being said, it is important to remember that democracy and crisis are themselves essentially contested concepts (Gallie, 1956). Democracy, as Wendy Brown states, is amongst the most ‘promiscuous terms in our modern political vocabulary’, standing for everything from free elections to free markets, from protests against dictators to law and order, from the centrality of rights to the stability of states, from the voice of the assembled multitude to the protection of individuality and the wrong of dicta imposed by crowds. (Brown, 2015, p. 19) Crisis, on the other hand, is a diagnostic term that can serve both analytical as well as political and ideological functions (Koselleck, 1979). Sylvia Walby explains the dual character of crisis, as being both ‘real’ and a ‘social construction’, pointing out how the diagnosis of a crisis is embedded in, and can be viewed as an instrument of, power: ‘To produce the authority to declare a situation to be a crisis is to acquire the legitimacy to bypass the democratic processes that would normally regulate the use of such power’ (Walby, 2015, pp. 15–17). Thus, there is by no means a consensus about what democracy actually is and what should be considered the core characteristics of a democratic society – and hence no consensus about when, if, and under what circumstances there is a democratic crisis or a crisis of democracy. Instead, whether we look towards social movements and political activism or towards the history of scholarly thought and theories, we are confronted with perspectives that emphasize heterogeneous facets of a democratic ideal and practice, such as Rousseau’s volonté generale, Arendt’s (1958) vita activa, Schumpeter’s (1950, p. 296) ‘election of the men who are to do the deciding’, Habermas’ (1996) discourse theory of democracy, or Ranciére’s (2004, 2011) politics of disagreement and dissensus. In some cases, the supposed characteristics of democracy are diametrically opposed, as the introduction to a special issue of Democratic Theory states: one person’s idea of a democratic act might be viewed by another as counterdemocratic or as a contributing factor to the crisis. For example a radical democrat could view the occupation of a busy inner-city street by protesters unhappy with a government policy as an act of democracy. But an adherent to liberal representative democracy could see this act of protest as a weakening of representation and as un-democratic as it is infringing upon the liberty of, in this example, individual drivers. (Ercan & Gagnon, 2014, p. 3) What is emphasized here are, on the one hand, issues of positionality towards normative and practical questions of what democracy is, how it is or should be

Introduction  3 functioning, and what institutions and core characteristics it needs to have in order to ‘be’ a democracy – a phenomenon that has been recognized as ‘democracy’s ontological pluralism’ (Gagnon, 2018, p. 92). Advocates of radical democracy and of liberal democracy might as well be considered to be speaking two different languages, referring to distinct systems of meaning, both signified by the term democracy. This pluralism and contestation hold true not only in the realm of political activism and individual beliefs, but also apply to the field of political theory and scholarship. As Gallie states, the concept of democracy is extremely vague … Its vagueness reflects its actual inchoate condition of growth; and if we want to understand its condition, and control its practical and logical vagaries, the first step, I believe, is to recognize its essentially contested character. (Gallie, 1956, p. 184) Gagnon (2018) in fact lists no less than 2,234 such vagaries of democracy in English scholarly literature – amongst them rather well-known and wide-spread terms, such as ‘liberal representative democracy’ or ‘democracy proper’, but also ‘green’, ‘brown’, ‘pink’, and ‘rainbow’ democracies (Gagnon, 2018, p. 97), as well as ‘illiberal’ and even ‘autocratic’ democracies – which for him begs both the question of how democracy’s descriptions could become so diverse, as well as whether and how multiple meanings of democracy can coexist within one polity. As for the former question, Dahl (1956, p. xix) provides an answer in that scholarship on democracy produces ‘to some extent arbitrary’ descriptions of democracy. This arbitrariness, in turn, is an inherent feature of the contested character of democracy: as a concept, it is discussed and debated from very different, even opposing viewpoints which can lead to a continuous competition and rivalry, since ‘their criteria of correct application are multiple, evaluative, and in no settled relation of priority with one another’ (Gray, 1977, p. 332). However, at the same time, the essential contestability of democracy can indeed epitomize an ideal of democratic practice in that it reflects the ‘unfinished and open-ended aspect that serves as the lifeblood of democracy’ (Ercan & Gagnon, 2014, p. 6). With regard to the latter question, that is the implications of multiple coexisting democracies within one polity, Gagnon advocates for a theory of ‘“blended democracy”, which posits that the democratic nature of a regime is characterized by the types of democracy that can be found within it’ (Gagnon, 2018, p. 104). Following this view, in order to understand the condition of democracy it does not suffice to describe or analyze governmental structures or electoral institutions alone. Instead, this implies a dynamic, processual, and conflict-theoretical perspective on the heterogeneous practices, conceptions, and respective conditions of democracies. At a time when research and literature on democracy and especially on its crises are flourishing (Della Porta 2014; Eatwell & Goodwin, 2018; Mudde, 2016; Norris & Inglehart, 2019), why yet another take on the conditions and contestations of democracy? This volume attempts to further contribute to the discussion, firstly by considering democracy-cum-citizenship, and secondly by

4  Hannah Wolf offering three vantage points from which to investigate and possibly rethink this relationship. Any democracy, whether as a normative political idea or as an empirically observable “actually existing” democratic society, is accompanied by corresponding forms of citizenship, an institution that is closely intertwined with the development of democracies and can be considered a ‘core institution of modern societies’ (Mackert & Turner, 2017, p. 3). This being said, neither democracy nor citizenship are inventions of modernity. The classical ideal of republican citizenship can be traced back to ancient Greece and to Aristotle’s Politics where citizens are defined both as those who share in the holding of office and the ones who both rule and are ruled (Johnson, 1984). This classical definition thus emphasizes participation, political agency, and equal interdependence as necessary components of citizenship. A citizenship, nota bene, that was highly conditionalized and exclusionary: ‘the citizen must be a male of known genealogy, a patriarch, a warrior, and the master of the labour of others (normally slaves)’ (Pocock, 2014, p. 69). Citizenship was an exclusive privilege, and while at first glance there appears to be a huge contrast with regard to a genuinely modern conception of citizenship, it is important to keep in mind that gendered, racialized, and class-related modes of exclusion have in fact persisted throughout the better part of history. Modern citizenship – despite claims of an evolution towards inclusivity and equality (Marshall, 1950; Parsons, 1971) – is not only unevenly distributed, but can itself be considered an instrument and facilitator of global and local inequalities (Nash, 2009). In order to investigate the condition of both democracy and citizenship, the first important distinction is thus the one between their idealistic conceptions on the one hand, and democracy and citizenship as empirically observable figurations on the other. The contributions collected in this volume are mostly concerned with the latter: the condition of democracy and citizenship can only adequately be assessed through analysis of what is, not what should or could be. Political and sociological theories, however, can and must guide such analyses. They provide the terms and concepts which have accompanied and shaped political and social realities, as analytical categories with which to arrange empirical findings, as ideal types against which to evaluate political and social realities, and as immanent critique with which to propose emancipatory social change. Theoretical perspectives, on the other hand, tend to produce their very own blind spots. As Kurki has argued, ‘the focus on the extension of the reach of the liberal democratic mode of governance has resulted in a conceptually impoverished appreciation of the multiple meanings that the idea of democracy can take’ (Kurki, 2010, p. 362). She traces this finding back to the ‘general ideological dominance of liberalism in the post-Cold War world politics’ (Kurki, 2010, p. 364) and advocates for a stronger and more pronounced engagement with the inherent contestability and plurality of democracies, rather than treating democracy as a universal value (Sen, 1999), or implicitly assuming that liberal democratic systems are the ‘only true and fully modern societies’ (Plattner, 1993, p. 30). In line with her plea, it is thus necessary to scrutinize the very plurality within the dominant model of liberal democracy, and also to investigate into the blind spots that it

Introduction  5 produces and whose reconsideration might open up ways to rethink democracy and democracies.

The spectrum of liberal democracy An interview with Ralf Dahrendorf in 2002 provides an insightful perspective with regard to the dominant self-conception of liberal democratic societies. Democracy, he claims, can be understood as an ‘ensemble of institutions that aim to legitimize the exercise of political power’ by providing a coherent answer to three key questions: 1. how can we bring about change in our societies without violence? 2. how can we use a system of checks and balances to control those in power and ensure that they do not abuse their power? 3. how can the people, how can all citizens participate in the exercise of power? (Dahrendorf, 2002, p. 9, transl. HW) In Dahrendorf’s view, the respective answers to these three questions provide a coherent framework of democracy: democratic systems rely on a constitution that allows citizens to free themselves from a government without bloodshed; they put in order rules and procedures that work as inhibitors against arbitrary exercise of power; and eventually, democracy represents the voice of the people, which creates institutions that control the government and enable its non-violent replacement (Dahrendorf, 2002, pp. 9–10). This characterization is quite an accurate depiction of modern democracy’s self-conception, or to put it more bluntly: of the story that democratic societies tell themselves (and others) about themselves. This image of democracy – in which a sovereign demos is the source of legitimized institutions that work according to democratic procedurality, in which the rule of law is the ultimate governing principle, and in which practices of communicative deliberation rather than violent action can bring forward change – is an ideal that becomes inherently flawed when compared with empirical reality. For example, Hannah Arendt has contested the notion of any given polity, or ‘people’, not only by emphasizing that it is political agency which constitutes the polis, but also by juxtaposing the notions of sovereignty and political liberty (Förster, 2013). Michael Mann (2005) has examined the close relation of democracies and the violence of wars and ethnic cleansing in the context of two meanings of ‘the people’, as either demos or ethnos. But even within the theoretical model of liberal democracy, we find very heterogeneous conceptions. This can be illustrated by contrasting the ideas of two scholars of liberal democracies, Alexis de Tocqueville and Joseph Schumpeter. Their perspectives are chosen because they both depart from classical liberal political theory, as represented by, e.g. John Stuart Mill and Jeremy Bentham, by largely putting aside grand philosophical elaborations on the normative foundation of democracy and focusing more on the observation of ‘actually existing democracies’. They also in a way represent two poles on the spectrum of liberal democracy.

6  Hannah Wolf As one of the first political and (proto)-sociological scholars of modern democracy, Tocqueville (2002 [1835/1840]) characterized it as the tension-ridden and ever-endangered balancing out of equality and liberty. Importantly, he understood democracy not as a certain set of institutional structures or modes of political decision making, but as a way of life. For a democracy to function and exist, democratic virtues needed to be part of citizens’ everyday lives, practices, and habits of the heart. During his journey through America, he was overwhelmed by the initiative and investment in public and communal affairs by ordinary citizens that he observed. In his view, American citizens loved both equality and political liberty. While Tocqueville was an advocate of liberal democracy, he was at the same time well aware of its inherent risks and dangers: what came to be called ‘new’, ‘soft’, or ‘democratic’ despotism was the idea that an unhinged desire for equality would foster individualism, a retreat from public and communal affairs and a decline of democratic virtues, eventually making way for a controlling, paternalistic, and protective state, which does not break wills, but it softens, bends them, and directs them; it rarely forces one to act, but it constantly opposes itself to one’s acting; it does not destroy, it prevents things from being born; it does not tyrannize, it hinders, compromises, enervates, extinguishes, dazes, and finally reduces each nation to being nothing more than a herd of timid and industrious animals of which the government is the shepherd. (Tocqueville, 2002 [1840], p. 652) With its strikingly close resemblance to an all-encompassing, bureaucratic welfare state, what Tocqueville describes here is, in his view, the decline of democracy as a way of life. Democracy does not vanish by way of a sudden crisis or a political coup, but rather through slow and constant erosion (Greven, 2009): through gradual change from engagement to complacency, from community spirit to individualistic orientation, from political virtue to private comfort – but, from many points of view, there seems to be nothing radically undemocratic about it, as the image of the government as a shepherd is still compatible with regular elections, a representative parliamentary system, freedom of speech and press, and other institutions. For Tocqueville, however, democracy necessitates a public spirit: the opportunity, and even the duty, to live and act democratically every day. This opportunity he saw especially supported and facilitated by the federal structure of the United States of America. As Michael Sandel (1988) points out, political liberty which was so central to Tocqueville’s conceptualization of democracy was largely realized through and dependent on an institutional system of administrative decentralization, which in effect meant not only that most decisions were made on local and communal scale, but also that ‘public life functioned in part as an education in citizenship’ (Sandel, 1988, p. 65). Tocqueville insisted that ‘a nation may establish a free government, but without municipal institutions it cannot have the spirit of liberty’ (Tocqueville quoted in Sandel, 1988, p. 65). The comparison with Europe allows Tocqueville to reason that it is

Introduction  7 exactly the lack of municipal independence and local self-determination as well as the citizens’ inexperience of active participation and engagement in communal affairs, that led to a failure of democracy in post-revolutionary France (Krause, 2017, pp. 315–341). Despite the strong emphasis on equality of opportunities and egalitarianism between the American citizens, it is important to remember the fact that the democratic citizens Tocqueville observed in his visits to New England were white males. Almost in awe and with a critical sidenote towards the ‘people in Europe [who] would give to both [men and women] the same functions, impose on both the same duties, and grant both the same rights’, he observes that ‘you do not see American women directing the external affairs of the family, conducting a business, or indeed entering the political sphere’, and they react to their confinement in the domestic sphere with a ‘sort of glory for themselves out of the voluntary abandonment of their wills’ (Tocqueville, 2002 [1840], pp. 567–568). Furthermore, while he did acknowledge racialized inequalities and, at least briefly, discussed the social violence of racism, he does not concede that inequality may be just as much a constitutive characteristic of American democracy as the lauded equality of opportunities. Tocqueville might have developed a ‘new political science for a new world’ (Krause, 2017) – however, by describing this new world as one of equality, liberty, and democracy, he contributed to a selfconception of liberal democracy that veils the very inequalities and injustices that are part of its foundation. A century later, Joseph Schumpeter presents a rather different take on democracy, by formulating a critique of what he calls classical democratic theory, as represented by, e.g. Rousseau, Bentham, and Mill. Classical democratic theory can be said to rest upon the principles of ‘popular sovereignty, substantial unity, individual rationality, and political equality’ (Elliott, 1994, p. 284). Schumpeter’s critique focuses on each of these four aspects, arguing against both their underlying assumptions and their normative implications. He contends that democracy should not be identified with the rule of the people because ‘a people as such has no legal personality: to say that it delegates power to, or is represented by, a parliament is to say something completely void of legal meaning’ (Schumpeter, 1950, p. 248). With regard to political unity, he points out that in complex and differentiated modern societies, there can be no consensus about universal values or ends: ‘the common good is bound to mean different things to different individuals and groups’ (Schumpeter, 1950, p. 251). There can thus be no common will, and hence no representation of ‘the people’. Furthermore, to ascribe political rationality and equality to individual citizens is in his view fundamentally flawed: instead, citizens just like consumers, are exposed to manipulation and manufacturing by political elites and entrepreneurs. ‘The arts of political persuasion are “exactly analogous to the ways of commercial advertising”[.] Citizen sovereignty, like consumers’ sovereignty, is largely a fiction’ (Elliott, 1994, p. 289). The consequence of this critique is a somewhat minimalist definition of democracy as a ‘method and a market’ (Schmidt, 2019, p. 169), as an ‘institutional arrangement for arriving at political decisions in which individuals acquire the power to decide by means of a competitive struggle for the people’s vote’

8  Hannah Wolf (Schumpeter, 1950, p. 269). While this definition has been met with criticism (Mackie, 2009), it does in a way resemble the flipside of Tocqueville’s democratic despotism: complementary to Tocqueville’s envisioning of a flock of timid and hardworking citizen-sheep, Schumpeter imagines a rather small and elitist group of potential leaders who compete for the acquisition and retention of power by wooing voters with the advertisement of ‘a product – governmental output’ (Shapiro & Hacker-Cordón, 1999, p. 4). The conceptualization of politics as a market stands in close relation to the causal connection of democracy and capitalism that Schumpeter proposes: modern democracy evolved as the ‘process of political and institutional change by which the bourgeoisie reshaped, and from its own point of view rationalized, the social and political structure that preceded its ascendancy’ (Schumpeter, 1950, p. 125). Just like capitalism, in this view, democracy as politicized competition fosters innovation; at the same time, competition functions as control of power. But the risks associated with democracy also become apparent: he argues that, in contrast to the self-conception of liberal democracy, instead of rational discourse we see appeals to the irrational, political parties and their leaders turn into electoral enterprises and entrepreneurs, and parliament becomes an arena for market transactions. Schumpeter is also very clear with regard to questions of in- and exclusion: his consideration of every democracy’s possible ability to restrict citizenship rights, for example to exclude people below a certain age from the right to vote, allows him to reason that democracy has no inherent orientation towards inclusivity or growing representation: ‘in principle, a society could also discriminate against categories of people … by denying the franchise on the basis of “property, religion, sex, race and so on,” and still logically be characterized as “democratic”’ (Elliott, 1994, p. 282). Schumpeter’s minimal and procedural definition rests on a rather pessimistic, even cynical outlook on democratic societies and their citizens. Yet, against the background of large-scale attempts – and most likely successes – of voter manipulation such as in the case of Cambridge Analytica, and of the strategic weakening of citizenship rights (Turner, 2016), it does not seem too far away from reality. What can be inferred from this very brief presentation is that Tocqueville and Schumpeter will most likely give differing answers to the central questions of democracy that Dahrendorf posed. While Tocqueville emphasizes a decentralized institutional system that facilitates the active participation of citizens, Schumpeter sees the political sphere as a competitive market. Citizenship in Tocqueville’s view consists of political virtues which need to be incorporated in hearts and minds and practiced every day, while in Schumpeter’s view the citizen-as-consumer is largely subject to political manipulation. For neither of them the issue of violence seems central per se – Schumpeter, however, assumed that under democratic conditions capitalism will gradually weaken itself and collapse without a violent revolution by the working class, in contrast to Marx’ prediction. Tocqueville actually addresses democratic violence in his evaluation of France’s colonization of Algeria, but he considers it as justified: ‘Despotism towards the outside, against the foreign, the other, is justified by the fact that this is the only way to effectively prevent democratic despotism on the inside’ (Bohlender, 2005, p. 530, transl. H.W.). Given

Introduction  9 these discrepancies even within the dominant model of liberal democracy itself, we are confronted with the difficulty or impossibility of assessing and evaluating whether a society is ‘truly democratic’, whether one state is more democratic than the other, or whether there is a severe crisis of democracy. The general answer would need to be: it depends. This does not mean to argue for an excessive relativism but rather for more and thorough reflection on the normative and conceptual underpinnings of one’s own use of the term democracy.

Contestations of democracies and citizenship(s) Democracy’s pluralism can be investigated in different ways. One way is to dive into the intellectual history of political theory; another one is to measure democracies, as, e.g. is done within the Varieties of Democracy (V-Dem) project. This volume offers another way to make sense of democracy’s contested character by pointing out three different vantage points from which to scrutinize the condition of democracies: migration, violence, and the refiguration of institutions. In order to more fully understand the condition of democracies globally, it is necessary to explore specific developments in detail while not leaving the bigger picture out of sight. In other words, we have to constantly zoom in and zoom out: we have to describe and analyse specific changes in specific regions and individual nation states in detail in order to understand their effects and repercussions both nationally as well as internationally and translocally. In a globalized world, people, places, markets, cultures, and governments are positioned in more or less stable patterns of interdependencies (Elias, 1987), in geometries of power (Massey, 1998). Only by understanding and relating changes on national as well as supraand transnational levels can we come closer to an interpretation of the condition of democracy in the 21st century. The chapters of this volume, while heterogeneous in focus and analytic scope, are gathered under the shared perspective of citizenship. ‘Actually existing democracies’ consist of people who are bound to one another through rules and regimes of citizenship. Modern citizenship, whether understood as the notion of a ‘bundle of rights and duties’ (Marshall, 1950), as a ‘multi-layered construct’ (Yuval-Davis, 1999), as a practice (Isin & Turner, 2007), or as an ‘act’ (Isin, 2008), always addresses relations between individuals, state, and public authorities as well as relations amongst individuals. Discussing democracies and their contestations through the prism of citizenship allows us to focus on the refiguration of rights and responsibilities, of institutions, civil society, and political and public participation, as well as life chances and everyday life. Citizenship is no more natural or self-evident than democracy. If democracy is contested and open, likewise citizenship is always at stake.

Migration: Borders, boundaries, and the demos Both theories and analyses of democratic societies are largely based on the idea of container-like nation-states (Schroer, 2006): democracy and democratic institutions

10  Hannah Wolf usually refer to the inside of this container; they concern the rules and relations between one state and its citizens, perhaps taking into consideration the ways in which citizenship rights are distributed and practiced unequally within a state, but mostly leaving out of the picture possible transgressions and effects that intersect such national borders and boundaries. While it is not argued that the nation state has become obsolete in a globalized world, I do want to claim that we need conceptual tools to more fully understand the processes that layered and intersecting figurations of national, international, and supranational orders produce (Löw, Sayman, Schwerer, & Wolf 2021). One possible vantage point from which to tackle this is the issue of migration. Migration addresses issues of physical borders and symbolic boundaries alike; it addresses questions of inclusion and exclusion, and can help us to understand how legal orders and layered institutional structures can impact and indeed fragment the rights of individual people, if not strip them of their rights completely. The contributions by Oliver Schmidtke, Oliver Schmidt, and Özge Yaka deal with both empirical and theoretical aspects of democracies and migration. Oliver Schmidtke discusses the various levels of in- and exclusion in Europe’s multi-level governance structure. Democracies and citizenship, while nationally bounded, are embedded in global and supranational systems of governance, leading to tensions and contradictions in the institutional practices carried out in the context of migration and asylum. Assessing agreements on the global scale, and policies on the EU scale, as well as institutions and solidary practices on the communal and urban scale, this contribution helps us to understand both the structural deficiencies of the international human rights regime as well as opportunities to challenge exclusionary logics. Max Oliver Schmidt sheds light on such exclusionary practices within the EU’s organizational asylum system and their usurpation by church actors who provide church asylum for refugees. His contribution illuminates the dynamics and conflicts within these processes, and explains how restriction and usurpation foster and challenge the formation of a subaltern class of non-citizens within the EU, who are highly vulnerable to exploitation and criminalization. Özge Yaka takes up the current discursive nationalist closure in light of migration in order to scrutinize notions of ethnos and demos and to develop an argument in which migration and democracy are inherently connected. Migration challenges the territorial and symbolic borders of a political community; however, polities are themselves imagined communities. By referring to the actual unfinishedness and unboundedness of any community or polity, this contribution makes a strong argument for understanding migration not as either a ‘problem’ or an ‘opportunity’ that democracies have to deal with, but as the conditio sine qua non of democracy. In this view, the alien, the migrant, and the citizen are all political subjectivities with the potential to transgress and refigure social orders.

Violence and democracies The relation of democracy and violence is neither sufficiently theorized nor empirically analyzed. The assumption that the state’s monopoly on violence renders all

Introduction  11 other forms of physical violence illegitimate and reduces the occurrence of violent action altogether, is a strong narrative within self-conceptions of democratic societies. However, there are both theoretical and empirical desiderata to reflect and analyze the role of violence within societies that consider themselves to be nonviolent. The contributions by Jenny Pearce, Martha Mundy, and Eddie Hartmann and Felix Lang in this volume address this gap. The modern nation state is built in part on the collectively shared imaginary of a provision of individual and collective security through a reduction of individual violence. This reduction or taming of a violent potentiality happens through a monopolization of physical force, i.e. violence, by the state and its authorities. Understood relationally, this monopolization means that the possibility of the legitimate use of violence is taken away from individuals and transferred to a superstructure. By no means, however, has this ever included all kinds of violence: history shows us that individual domestic violence against women and children has been deemed perfectly legitimate throughout the better part of the 20th century. Corporal punishment, i.e. the purposeful physical violation and harming of mostly children in their homes and schools, was a legitimate and legal part of education and upbringing in most democratic states until, from 1989 onwards, they gradually recognized the Convention on the Rights of the Child (CRC) and tentatively began to implement it in national legislation – with the USA today being the only state that has not formally recognized the CRC. A similar point in case is the issue of sexual violence and violence against women, especially socalled domestic violence. The regulation and selective legalization or (de-)legitimation of violence is a powerful means to regulate relationships between individuals, groups, and institutions. Allowing men to legitimately beat or rape women and allowing adults to chastise children manifest social hierarchies that can only be challenged by risking one’s own health and physical integrity. Violence, as Jenny Pearce argues in her contribution, is a way to constitute or destroy social order. Such violently secured social hierarchies are a political matter, since even when the violent act as such occurs in the ‘private’ or ‘domestic’ sphere, it is the public and political social norms and laws that give it its meaning, e.g. as lawful action or as sanctionable crime. Pearce’s contribution sheds light on the underexposed relationship between democracies and violence and makes a plea for an ‘emotional enlightenment’ that does not conceal or negate the role and importance of aggression and violence. The relationship between the state and its citizens cannot be regulated by the state’s monopoly on the use of force alone. To define democracies simply as ‘non-violent’, she argues, is a utopia and, at worst, an ideology that disguises the actual violence between the state and its citizens. The notion and practice of participatory citizenship opens up a way to tackle this problem. While the relationship of democracy, citizenship, and violence demands more theoretical as well as practical scrutiny, it is especially the rise of so-called political violence that has been addressed and debated in recent years. Eddie Hartmann and Felix Lang explore right-wing political violence in Germany: assuming that the change in attitudes towards violence can highlight a collective crisis of trust

12  Hannah Wolf in supposedly non-violent societies, their contribution shows how individual or collective political violence becomes perceived not only as legitimate, but even as mandatory. Backed up by empirical analysis, they show how discursive processes provide the social and emotional resources that ultimately lead individual perpetrators to commit concrete acts of violence. The relationship between democracies and violence is not only an issue within the boundaries of nation states, but can also be conceptualized as a phenomenon of transnational violence with translocal implications. In her contribution, Martha Mundy explains how the war in Yemen is made and kept invisible to most citizens of the states involved in the war. In doing so, she reinterprets the image of the Yemen war as a ‘forgotten war’ into a war that is actively veiled, and at the same time shows how democratic principles of legitimacy and democratic sovereignty are thereby undermined by economic interests.

Refiguration and erosion of institutions The last section of this volume deals with the refiguration and erosion of democratic institutions. At the time of writing, the conflict between the EU and two of its member states, Poland and Hungary, over a mechanism that would allow EU funding to be blocked if member states breach fundamental EU principles, is still unresolved. Meanwhile, the dismantling of judicial institutions and hence the erosion of democratic checks and balances in these two states have advanced up to a point at which a minimal definition of democracy appears to be adequate. In order to understand what such an erosion of democratic institutions means, the contributions by Monika Florczak-Wątor, by András Bozóki and Daniel Hegedüs, and by Zafer Yılmaz discuss its implications and consequences for citizens’ everyday lives as well as for the notion of citizenship altogether. Monika Florczak-Wątor sheds light on one central element of this process by reconstructing the capture of the Polish Constitutional Tribunal and discussing its consequences for the citizens of Poland. Once a central judicial institution and a guarantor of constitutional rights, it has rapidly been voided completely of its power by the current government and has now been turned into a ‘paralyzed institution’. She shows how democratic checks and balances have not only been eroded, but strategically leveraged, and concludes that instead of serving as a protective institution for citizens, the Constitutional Tribunal has now become a threat to their security and freedom. Likewise, the contribution by András Bozóki and Daniel Hegedüs illustrates the way in which Hungary has developed a hybrid form of government, which blurs the seemingly clear boundaries between dictatorship and democracy, thus adding another facet to the contested character of democracy. As a member of the EU and geographically surrounded by mostly democratic states, Hungary holds a special position amongst the so-called hybrid regimes. The authors contend that it thus represents an ‘externally constrained hybrid regime’. With regard to the discussion of ontological pluralism, the contribution advocates for a more pronounced acknowledgement of hybrid regimes per se. Instead of categorizing such

Introduction  13 hybrid forms by adding adjectives such as ‘authoritarian’ to democracy, or ‘electoral’ to autocracy, the differentiations within hybrid regimes themselves should gain more recognition within the social and political scientific community. Zafer Yılmaz also focuses on the relation between political regimes and judicial institutions and procedures. For the case of Turkey, his contribution shows the planned and strategic emergence of a police state while the façade of democracy and legality is still officially maintained. The regime transformation rests on a judicialization of politics and a politicization of the judiciary, resulting in a ‘strategic legalism’ through which political and legal spheres not only overlap but become one and the same. Additionally, police power becomes a forceful means to control and punish citizens who try to act democratically in their professional or everyday lives, as the strikingly high number of academics, journalists, and lawyers shows who are being charged with accusations of terrorism, or are already imprisoned, or dead. This volume does not claim to answer the question of the condition of democracy in any definitive manner. After all, what is democratic about democracy? There appear to be innumerous answers to this question, both theoretically and practically. As stated above, this is not to be misunderstood as a plea for excessive relativism. It is, however, a plea to actively recognize democracy’s ontological pluralism instead of implicitly reproducing certain dominant ideals of democracy, as both Kurki (2010) and Gagnon (2018) emphasize. Active recognition involves efforts to ‘uncover dynamics of power in the knowledge of democracy’ (Gagnon, 2018, p. 94) – and I would add, in the knowledge of citizenship, as well. The notion of citizenship reminds us that communities and societies are constituted by relations between individuals, state, and public authorities as well as relations among individuals. On a formal level, it is citizenship as an institution that regulates and organizes the rights and duties between state and citizens. But citizenship is more than that: besides the bundle of rights and duties, citizenship also means practice. And last but not least, citizenship is not a gift by the state to its citizens, but the result of demands and social struggles. Scholarship and research on democracy and citizenship have to take into account the conflicts and the epistemic and practical violence of, within, amongst, and against institutions and processes, in regard to national citizens and non-citizens alike.

References Agamben, G. (2005). State of exception. Chicago: University of Chicago Press. Albertson, B., & Kushner Gadarian, S. (2015). Anxious politics: Democratic citizenship in a threatening world. Cambridge: Cambridge University Press. Arendt, H. (1958). The human condition. Chicago: Chicago University Press. Bohlender, M. (2005). Demokratie und Imperium: Tocqueville in Amerika und Algerien. Berliner Journal für Soziologie, 4, 523–540. Brown, W. (2015). Undoing the demos: Neoliberalism’s stealth revolution. New York: Zone Books. Crouch, C. (2004). Post-democracy. Cambridge: Polity Press.

14  Hannah Wolf Crozier, M., Huntington, S., & Watanuki, J. (1973). The crisis of democracy. Report on the governability of democracies to the trilateral commission. New York: New York University Press. Dahl, R. (1956). A preface to democratic theory. Chicago: Chicago University Press. Dahl, R. (1998). On democracy. New Haven: Yale University Press. Dahrendorf, R. (2002). Die Krisen der Demokratie: Ein Gespräch mit Antonio Polito. München: C.H. Beck. Della Porta, D. (2014). Mobilizing for democracy: Comparing 1989 and 2011. Oxford: Oxford University Press. Eatwell, R., & Goodwin, M. (2018). National populism: The revolt against liberal democracy. London. Pelican. Elias, N. (1978). Was ist Soziologie? München: Juventa-Verlag. Elliott, J. E. (1994). Joseph A. Schumpeter and the theory of democracy. Review of Social Economy, 52(4), 280–300. Ercan, S. A., & Gagnon, J.-P. (2014). The crisis of democracy: Which crisis? Which democracy? Democratic Theory, 1(2), 1–10. Förster, J. (2013). Souveränität als Fiktion. In: J. Schulze Wessel, C. Volk, & M. Salzborn (eds.), Ambivalenzen der Ordnung: Der Staat im Denken Hannah Arendts (pp. 207– 232). Wiesbaden: Springer. Gagnon, J.-P. (2018). 2234  descriptions of democracy: An update to democracy’s ontological pluralism. Democratic Theory, 5(1), 92–113. Gallie, W. B. (1956). Essentially contested concepts. Proceedings of the Aristotelian Society, 56, 167–198. Gray, J. N. (1977). On the contestability of social and political concepts. Political Theory, 5(3), 331–348. Greven, M. T. (2009). The erosion of democracy – The beginning of the end? Rediscriptions. Yearbook of political thought, conceptual history and feminist theory, 13, 83–102. Grimm, D. (2016). Europa ja – aber welches? Zur Verfassung der europäischen Demokratie. München: C.H. Beck. Habermas, J. (1996). Between facts and norms: Contributions to a discourse theory of law and democracy. Cambridge: MIT Press. Isin, E. F. (2008). Theorizing acts of citizenship. In E. F. Isin & G. M. Nielsen (eds.), Acts of citizenship (pp. 15–43). London: Palgrave Macmillan. Isin, E. F., & Turner, B. S. (2007). Investigating citizenship: An agenda for citizenship studies. Citizenship Studies, 11(1), 5–17. Johnson, C. (1984). Who is Aristotle’s citizen? Phronesis, 29(1), 73–90. Koselleck, R. (1979). Kritik und Krise: Eine Studie zur Pathogenese der bürgerlichen Welt. Frankfurt am Main: Suhrkamp. Krause, S. S. (2017). Eine neue politische Wissenschaft für eine neue Welt: Alexis de Tocqueville im Spiegel seiner Zeit. Berlin: Suhrkamp. Kurki, M. (2010). Democracy and conceptual contestability: Reconsidering conceptions of democracy in democracy promotion. International Studies Review, 12, 362–386. Löw, M., Sayman, V., Schwerer, J., & Wolf, H. (2021). Am Ende der Globalisierung: Über die Refiguration von Räumen. Bielefeld: Transcript. Mackert, J., & Turner, B. S. (2017). Introduction: Citizenship and its boundaries. In J. Mackert & B. S. Turner (eds.), The transformation of citizenship. Volume 2. Boundaries of inclusion and exclusion (pp. 1–14). London: Routledge. Mackie, G. (2009). Schumpeter’s leadership democracy. Political Theory, 37(1), 128–153.

Introduction  15 Mann, M. (2005). The dark side of democracy: Explaining ethnic cleansing. New York: Cambridge University Press. Marshall, T. H. (1950). Citizenship and social class and other essays. Cambridge: Cambridge University Press. Massey, D. (1998). Power-geometries and the politics of space-time. Hettner-Lecture 1998. Heidelberg: Geographisches Institut der Universität Heidelberg. Mishra, P. (2017). Age of anger: A history of the present. New York: Farrar, Straus, and Giroux. Mudde, C. (2016). On extremism and democracy in Europe. London: Routledge. Nash, K. (2009). Citizenship and human rights. Sociology, 43(6), 1067–1083. Norris, P., & Inglehart, R. (2019). Cultural backlash: Trump, Brexit, and authoritarian populism. Cambridge: Cambridge University Press. Parsons, T. (1971). The system of modern societies. Englewood Cliffs: Prentice Hall. Plattner, M. F. (1993). The democratic moment. In L. Diamond & M. F. Plattner (eds.), The global resurgence of democracy (pp. 36–48). Baltimore and London: The Johns Hopkins University Press. Pocock, J. G. A. (2014). The ideal of citizenship since classical times. In: R. Bellamy & M. Kennedy-Macfoy (eds.), Citizenship: Critical concepts in political science. Vol. 1. What is citizenship? Theories of citizenship: Classic and contemporary debates (pp. 67–85). London: Routledge. Rancière, J. (2004). Disagreement: Politics and philosophy. Minneapolis: University of Minnesota Press. Rancière, J. (2011). The thinking of dissensus: Politics and aesthetics. In P. Bowman & R. Stamp (eds.), Reading Rancière: Critical dissensus (pp. 1–17). London: Continuum. Runciman, D. (2013). The confidence trap: A history of democracy in crisis from Wold War 1 to the present. Princeton and Oxford: Princeton University Press. Sandel, M. (1988). The political theory of the procedural republic. Revue de métaphysique et de morale 93(1), 57–68. Schmidt, M. G. (2019). Demokratietheorien. Wiesbaden: Springer. Schroer, M. (2006). Räume, Orte, Grenzen. Frankfurt am Main: Suhrkamp. Schumpeter, J. (1950). Capitalism, socialism and democracy. London: Allen and Unwin. Sen, A. (1999). Democracy as a universal value. Journal of Democracy, 10(3), 3–17. Shapiro, I., Hacker-Cordón, C. (Eds.). (1999). Democracy’s value. Cambridge: Cambridge University Press. de Tocqueville, A. (2002 [1835/1840]). Democracy in America. Translated, edited, and with an introduction by Harvey C. Mansfield and Delba Winthrop. Chicago: University of Chicago Press. Turner, B. S. (2016). We are all denizens now: On the erosion of citizenship. Citizenship Studies, 20(6–7), 679–692. Walby, S. (2015). Crisis. London: Polity. Yuval-Davis, N. (1999). The ‘multi-layered citizen’. International Feminist Journal of Politics, 1(1), 119–136.

Part 1

Contesting borders and boundaries

1

Rescaling citizenship Inclusion and exclusion of refugees in Europe’s multi-level governance structure Oliver Schmidtke

Introduction In September 2016, at the height of the so-called ‘refugee crisis’ in Europe, the mayors of Paris, London, and New York published an article in the New York Times calling on ‘world leaders assembling at the United Nations to take decisive action to provide relief and safe haven to refugees fleeing conflict and migrants fleeing economic hardship, and to support those who are already doing this work’ (de Blasio, Hidalgo & Khan, 2016). The United Nations echoed this plea to provide basic protection and support in its Report of the Secretary General entitled: ‘In Safety and Dignity: Addressing Large Movements of Refugees and Migrants’ (United Nations General Assembly, 2016). The report calls for a new comprehensive framework that would address the vulnerability of the expanded number of refugees moving throughout the world. It is worth noting that the mayors’ initial plea came from a municipal governance level, at which the basic needs of refugees are felt most acutely and visibly. The city is the primary place where refugees seek shelter, work, and – more broadly – social support. The core concerns articulated by the UN and the mayors of the metropolitan cities highlight two fundamental issues: first, they draw attention to the structural inability of the international community to provide a form of protection that would effectively address the essential needs of refugees. Global migration patterns in general and international refugees in particular have cast light on the incongruence between membership rules exclusively tied to national citizenship regimes and the growing need to protect those who cannot rely on a particular state to secure their fundamental rights. The exclusionary logic built into the sharp distinction between insiders and outsiders, between those who can claim access to these rights and those who cannot due to their legal status, faces a social reality in which this logic of inclusion and exclusion has become fundamentally questioned on both political and normative grounds. Briefly, the categorical distinction between citizen and alien has become problematic in a globalizing world. As Seyla Benhabib posed it in her book on The Rights of Others. Aliens, Residents and Citizens: ‘[The] other is not elsewhere’ (Benhabib, 2004, p. 87). Given the rising number of forcefully displaced people around the globe (and the mounting effects of climate change-induced migration),

20  Oliver Schmidtke the governance of migration and borders will pose a fundamental political and ethical test to liberal democracies’ commitment to human rights and the political right to asylum. Given the controversial politicization of migration in Europe, the tension between the protection of human rights and the securitization of the EU’s external border will shape political debates and policy-making for years – if not decades – to come (Bigo, 2014; Moreno-Lax, 2018). The second concern relates to the politics of citizenship and the way refugees are particularly vulnerable to the social and symbolic exclusion legitimized by anti-immigrant, if not openly xenophobic, campaigns. As the mayors stated: ‘But it is wrong to characterise immigrant and refugee communities as radical and dangerous. Therefore, we must continue to pursue an inclusive approach to resettlement in order to combat the growing tide of xenophobic language around the globe’ (de Blasio, Hidalgo & Khan, 2016). What we have witnessed in the wake of the increasing numbers of refugees is a push to control movement across borders by criminalizing and stigmatizing unwanted migration, the most concerted of these efforts being directed precisely against asylum seekers. The rise of the anti-immigrant right-winged ideology across Western democracies has changed the socio-political context in which their rights are negotiated, legitimized, and protected (Dennison & Geddes, 2019; Vieten & Poynting, 2016). Considering these two fundamental challenges, this chapter looks at the environment in which the most vulnerable group of migrants, namely asylum seekers and refugees, seek protection and support. The focus of this investigation will be on the different levels of governance that shape the responses to refugees and their situation on the ground. More specifically, I will explore how the exclusive focus on national membership status as a mode of inclusion and exclusion has been challenged at different levels of governance. Such a multi-level governance approach allows for a nuanced analysis of rights and citizenship practices in different political and jurisdictional arenas. From this perspective, I consider how and under what circumstances the essential needs of refugees are addressed in practice. Different governance contexts display specific logics of contesting the boundaries and nature of citizenship (Darling & Bauder, 2019). Against this background, I will develop my central argument about the de-facto fluidity of citizenship practices for refugees and the opportunities for receiving recognition and support in spite of a hardening political climate in many nation-states in Europe and the USA. Analytically this approach will draw insight from the tension between the discriminating and exclusionary power of citizenship on the one hand and its empowering and inclusive capacity on the other hand (Wotherspoon, 2018). First, this chapter considers the exclusionary nature of national citizenship regimes and the increasingly pressing friction between traditional modes of regulating access to legal protection and the human rights commitment of liberal democracies. Then, I focus on the so-called European ‘refugee crisis’ as an interpretative entry point into how this tension is negotiated and refugees’ rights are considered at various levels of governance. This analytical lens allows for movement beyond a state-centric perspective towards a more differentiated

Rescaling citizenship  21 consideration of citizenship practices outside of the confines of national membership regimes. This inquiry focuses on how the nationally exclusionary logic of addressing refugees is challenged from the global, the European, and the local level.

The ‘refugee crisis’ and the hardening of citizenship boundaries in Europe The large-scale arrival of refugees in Europe in 2015 and 2016 – mainly but in no way exclusively driven by the civil war in Syria – was a major test for the EU’s common asylum policy. While parts of civil society and some governments of EU member states showed compassion for the refugees, hostility towards irregular migrants flourished across the continent. In the wake of growing anti-immigrant sentiments and nationalist mobilization, the commitment to governing asylum in a pan-European framework, as stipulated in the Dublin Regulation, essentially collapsed. A coordinated European approach to addressing the ‘refugee crisis’ was gradually replaced by national policies competing for the harshest security measures to control borders and deter irregular migration. Over the past five years, the EU has similarly opted for a strict emphasis on securitizing its external borders and collaborating with neighbouring states (most notably through the 2016 EU-Turkey Deal) in order to reduce the number of refugees able to reach the shores of Europe dramatically.1 A European community that has successfully established a zone of uninhibited cross-border mobility among its member states has simultaneously experienced an extraordinary degree of violence at the border directed at irregular migrants (Jones, 2016). In fact, the Mediterranean has become the deadliest border in the world for migrants with almost 19,000 deaths and disappearances over the past five years, from January 2014 to October 2019 (International Organization of Migration, 2019). For the purpose of this chapter, this response to the ‘refugee crisis’ points to two significant changes in how citizenship regimes are governed and relate to refugees in Europe. First, the response to the massive influx of irregular migrants has given rise to a sovereigntist discourse that ties the promise of security and social cohesion to the uncompromising protection of national borders. Most vocally, parts of the political elites and nationalist forces in EU member states have used the extraordinary challenge of over a million refugees that crossed the Mediterranean Sea in 2015 to depict migration as an essential threat to national cohesion, identity, and social order. The traditional rhetoric of an endangered national sovereignty and borders has become a powerful discursive reference point in steering policy responses and the broader treatment of refugees in many European countries. Arguably, the rise of nationalist, anti-immigrant populism across the continent is significantly driven by the controversial politicization of refugees (Albertazzi & Mueller, 2017; Caiani & Kroll, 2017). At the core of the argument is the altered status of borders and their meaning for governing migration and integration. Controlling borders and establishing rules of membership have historically been prerogatives of the sovereign nation-state. In

22  Oliver Schmidtke the modern legacy of the Westphalian state order, borders were perceived to be the defining characteristic of the – territorially distinct – national community. In the age of the nation-state, borders were nationalized and, in ideological terms, naturalized (van Dijk, 1999). Borders separating culturally and ethnically homogenous nations and their states are the spatial narrative for modern politics and society. During the ‘refugee crisis’, the symbolism of the border as a safeguard for upholding sovereignty and social order again gained politically momentous importance in public discourse. The resurgence of this sovereigntist discourse provided the justification for citizenship and its national membership criteria as a form of ‘legalized discrimination’ (Vink, 2017). Second, the ‘refugee crisis’, as Mackert and Turner (2017, p. 1) point out, has ‘most urgently brought back to mind the fact that modern citizenship has always been about boundaries and about processes of inclusion and exclusion’. The national closure in terms of securitizing borders and deterring irregular migration has been accompanied by a tightening of the claims that non-citizens can make on national citizenship regimes (Garelli, Sciurba & Tazzioli, 2018). This development has become manifest in the gradual restriction of social eligibility standards for refugees including access to health care, education, and the labour market (see, for instance, on the case of Germany: Razum & Bozorgmehr, 2016). More broadly, restricting access to citizenship entitlements is couched in the wider practice of excluding refugees from the sphere of legitimate belonging. One prominent example of an open political strategy of exclusion and deterrence was the step of the UK Home Office to create a ‘hostile environment’ explicitly targeting asylum seekers and refugees (Lewis, Waite & Hodkinson 2017; HsiaoHung, 2020). This policy in turn had direct effects on the most vulnerable migrant communities’ ability to access services and receive social support. Linda Bosniak (2000; 2006) developed one of the analytically most promising methods of addressing the structural shortcomings of national citizenship regimes and their effects on policies and practices of social exclusion. Her interpretative approach speaks directly to the challenges that both an increasingly trans-territorial social reality prominently embodied by irregular migrants and the limitations of national, territorially defined, citizenship pose. She considers what a more inclusive mode of citizenship beyond the constraints of the traditional model could look like. In the same vein, she argues in favour of a ‘complete repudiation of national conceptions of citizenship’ (Bosniak, 2000, p. 447). Her analytical framework conceptualizes different dimensions of citizenship shedding light on citizenship policies and practices that have established modes of extending solidarity to the migrants most at risk. While the citizenship-as-rights tradition in the Marshallian sense is conceptually bound to the nation-state, Bosniak distinguishes dimensions of citizenship that are analytically versatile enough to use in thinking more creatively about the territorial boundedness of citizenship. She distinguishes: citizenship as a legal status, as a system of rights, as a form of political engagement, and as a form of identity and solidarity. Citizenship as a legal status denotes the legal recognition that regulates access to membership and provides citizens with a set of rights and obligations. Legal

Rescaling citizenship  23 membership as a citizen has historically been closely tied to the territorially bounded nation-state. This prerogative of the nation-state has not been substantially challenged; alternate ways of determining the status of citizens are still in their nascent stage. Even the ambitious project of launching a European citizenship regime was not designed to challenge the fundamental logic of the nation-state as the sole guarantor of this legal status. When it comes to citizenship as a system of legal rights, the exclusive claims of the nation-state have been challenged more substantially. For some observers, the consolidation of the international human rights regime indicates at least a timid development towards a post-national turn in rights-based forms of citizenship (Soysal, 1995). More robustly, the launch of an EU citizenship with the Maastricht Treaty in 1992 provided an additional layer of social and political rights to EU citizens in a supra-national framework (Wiener, 2018). The implications of EU citizenship for refugees will be further discussed below. Citizenship as a mode of political participation refers to active engagement in the political community. Conceptually this dimension of citizenship is not constitutionally tied to membership in a nationally defined territorial community, but to one facilitated by democratic principles guiding public deliberation and democratic decision-making. In this respect, the concept of multi-level governance enables an instructive view of meaningful political communities and opportunities for refugees to become active ‘citizens’ at different levels below and above the national level. In theoretical terms, Turner (1990) described citizenship as a condition that is constitutive for the political community, under which social integration and solidarity can be expressed. From this perspective, citizenship is the basic condition of a democratically constituted community and, at the same time, it is dependent on processes of democratic decisionmaking and solidarity-based action in order to make civic rights important in practice. In Bosniak’s categorization citizenship is also a form of identity and solidarity. Citizenship regulates membership in a legal as well as in an identitarian-social sense. From a broader perspective, citizenship is also a practice of establishing a sense of legitimate belonging that transcends legal status. The politics of citizenship shapes traditional state-centred assumptions regarding citizenship as loyalty, identity, and belonging in the polity and society and, in the broadest terms, the human and institutional boundaries of obligation and expectations. Along the same lines, research on immigration has forcefully pointed to the transnational character that shapes the social practice and self-perception of increasingly important groups of migrants. Their practices have fundamentally challenged an established sense of borders and loyalties exclusively tied to nationally distinct communities. The growing ethnic-cultural plurality of modern societies questions the very myth of national homogeneity and exclusiveness (Kivisto, 2001; Kymlicka, 2004). These four dimensions of citizenship provide an instructive analytical lens through which to consider the dynamics of inclusion and exclusion that asylum seekers and refugees face. In the following, I relate these dimensions to how citizenship is negotiated and practiced at different levels of governance in Europe.

24  Oliver Schmidtke

Timid steps toward the global governance of migration and the Global Compact on Migration On 10 December 2018 the Global Compact for Safe, Orderly and Regular Migration (GCM), a non-binding political agreement, was signed in Morocco by 164 states (United Nations, 2018a). Twinned with the Global Compact on Refugees (United Nations, 2018b), the two Compacts are described as presenting ‘complementary international cooperation frameworks’, which recognize that ‘migrants and refugees may face many common challenges and similar vulnerabilities’ during the migratory journey (United Nations, 2018a, p. 2). On this basis, the GCM is designed to create a framework for comprehensive global cooperation addressing all dimensions of international migration. The action of the international community is said to be guided by shared principles and commitments whose intention is to establish universally shared standards for the treatment of migrants. The Declaration commits states to protecting the safety, dignity, human rights, and fundamental freedoms of all migrants regardless of their migratory status and to cooperate to facilitate safe, orderly, and regular migration, including return and readmission, taking into account national legislation. The objective of the GCM, according to the Declaration, is to assist and protect migrants more comprehensively, help states to address the international governance of migration, and promote better coherence between migration and related policies. At the core of the GCM is the commitment to the UN’s human rights regime. The Declaration makes explicit reference to the UN Charter, the Universal Declaration of Human Rights, and other core international human rights treaties as they pertain to migrants and refugees. It is worth highlighting how strongly the Declaration is worded in its objective to protect the human rights and fundamental freedoms of all migrants irrespective of their migratory status. One can read into the GCM the building blocks for a global citizenship regime that could establish at least a thin layer of fundamental rights for migrants irrespective of their legal or migratory status (the latter point is important also with respect to the criminalization of irregular migrants in public discourse and policy formation). Yet, at the same time, in order to foster the consensus of all UN member states, the GCM is outspoken in assuring its signatories that it is non-legally binding, based on voluntary guidelines, and grounded in values of state sovereignty. In terms of citizenship as a legal status and as a system of rights, the GCM does not substantially challenge the dominant legal framework of nation-states and their citizenship regimes (Chimni, 2019). More specifically on the situation of refugees, the GCM includes the Comprehensive Refugee Response Framework (CRRF), which has four goals: (1) ease pressure on countries that welcome and host refugees; (2) build the selfreliance of refugees; (3) expand access to resettlement in third countries and other complementary pathways; (4) foster conditions that enable refugees voluntarily to return to their home countries in safety and dignity (UNHCR, 2018). This chapter is not the place to provide an assessment of the effectiveness and coherence of the overall approach (for a critical review, see Gest, Kysel & Wong,

Rescaling citizenship  25 2019; Hansen, 2018; Guild, Basaran & Allinson 2019; Newland 2018). For the purpose of this text, it is worth pointing out that, with the first two objectives, the UN has put considerable emphasis on community integration and on social inclusion through work and education. The plea to strengthen refugees’ self-reliance is couched in a broader acknowledgement of the central role that the community plays in this context. The UN also makes explicit reference to strengthening the capacity of these communities at different levels of governance including the role that the local context plays. Furthermore, the GCM’s implementation depends upon, albeit loosely defined, partnerships with NGOs and monitoring capacity on the ground. The strategy of the Global Compact on Refugees takes a two-pronged approach: on the one hand, it relies on the UN’s classic agenda to strengthen human rights through international cooperation. In this regard, the citizenship as rights reach is limited because of the non-binding character of the agreement and the acknowledged prerogative of the nation-state in regulating migration. It is fair to assume that the political sensitivities of individual states will greatly limit the reach and assertiveness of human rights protection for refugees. On the other hand, the CCRF draws on citizenship as practised solidarity in place-based settings that are relatively independent of the legal and institutional framework of national citizenship regimes. How effective such an approach will be clearly depends on the willingness of national governments to create a socio-political environment in which these measures can meaningfully protect and empower refugees. Squire (2019) has presented a compelling argument of how it is exceptionally challenging to link adequately the GCM’s plea for ‘profound solidarity with and support for the millions of people in different parts of the world’ with the state-centric approach of the Agreement that is shaped by the interests of the migrant-receiving countries of the Global North.

The governance of refugees in the EU: Between a common European asylum policy and securitization In pursuing the path towards a supra-national membership and rights-based citizenship regime, the European Union has made some remarkable progress over the past three decades. The EU’s gradual implementation and expansion of its citizenship status has nurtured hopes for, as Habermas prominently put it, an emerging ‘cosmopolitan community of states and world citizens’ (Habermas, 2012, p. 5) constituted by a right-based and Republican notion of membership rather than one defined by belonging to a single nation-state. This post-national utopia of an inclusionary European citizenship regime might be an appealing normative idea for the future of European integration. Yet, the political realities on the continent currently stand in sharp contrast to such a vision. Furthermore, such an inclusive citizenship does not, as the ‘refugee crisis’ has demonstrated, seem to provide much room for irregular migrants and refugees. When considering citizenship as a form of identity and solidarity, it is still worth noting the opportunity structure that the project of European integration

26  Oliver Schmidtke has created for migrants in general and refugees more specifically: the narrative of Europe and European identity as a cosmopolitan force overcoming traditional forms of migrant exclusion reverberates through the EU’s self-depiction and its migration policies. Whereas the established nation-state in Europe as a political unit has been built upon the grounds of a pre-existing – or at least simultaneously developed – notion of common cultural belonging (based on a shared language, territory, cultural habits, or descent), the European Union, in contrast, cannot refer in its legitimating discourse to such a cultural unit. The fundamental claim of traditional nationalism that would bring cultural or ethnic belonging and political power into firm alignment is applicable to the European level only in a very weak form. Hence, images of a ‘nation-state Europe’ in the Herderian, völkisch tradition refer to a logic of social inclusion that is beyond the reach of Brussels’ transnational community. This shift in defining collective identity comes with the inherent promise of solidarity with and commitment towards those who come to live in a shared space irrespective of their nationality, origin, or legal status. Concurrently, the project of collective identity building at the European level does not escape the exclusionary underpinning of a bounded political community. With respect to demarcating the boundaries of the political community, a European identity can be expected to follow the essential features of the nineteenth century’s nation-state building process. In historical perspective, nations were constructed in order to provide the emerging modern state with a cultural basis, an idea of belonging, which constituted a framework of rights and duties for its members. Constructing this ‘pre-political’ sense of community has been the main social function of the nation-building process. In popular discourse, the European Union is likely to rely on a similar sense of historically rooted and culturally corroborated myth of common descent and shared fate. Hence, this binary logic inevitably produces a non-European ‘other’. In this respect, generating a robust European identity as an intrinsic part of strengthening the European Union as a transnational political community has created its own – probably unintended – exclusionary effects, a development that is accurately captured in the metaphor ‘Fortress Europe’ (Geddes, 2000). This development has significant implications for the rights and recognition of refugees. With its emphasis on securitizing the borders and depicting irregular migrants as a fundamental threat to the continent, the EU tends to reproduce the negative stereotypes that are driving xenophobic and discriminatory practices in the first place. With respect to citizenship as a bundle of rights, the EU’s approach to championing fundamental rights and Enlightenment values contrasts diametrically with its exclusionary border and security policies whose building blocks are similar to the rationale nation-states use to deny claims by non-citizens and allow intolerance to build. In the literature, the EU’s commitment to universal human rights has been branded a ‘study in irony’ (Andrew, 2004) or a ‘myth’ (Smismans, 2010). This tension, constitutive of the EU’s emerging supranational citizenship regime, also shapes the key policies addressing the social inclusion of migrants and the coordination of refugee policies at the European level. In the 1997 Amsterdam

Rescaling citizenship  27 Treaty, the EU committed to the ‘fair treatment of third country nationals (TCN)’ targeting the long-term integration of migrants as a genuine field of EU policymaking. Between 2014 and 2020, the EU committed €3,137 billion mandating the Asylum, Migration and Integration Fund (AMIF) to coordinate the efficient management of immigration flows (including initiatives such as language and civic education courses, and intercultural training) and to allow for fair burden sharing across the EU. The support for the societal integration of TCNs is also referenced in the anti-discrimination rules that were developed in the Employment Equality Directive and the Race Equality Directive in 2000, which have more recently been fully adopted into national law by EU member states. Similarly, the narrative of Europe and European identity as a cosmopolitan force overcoming traditional forms of migrant exclusion reverberates through the EU’s self-depiction and its migration and integration policies. The EU’s policies to fight racism and xenophobia are promoted by a dedicated agency, the European Union Agency for Fundamental Rights (set up in 2007 with a mandate inherited from the European Monitoring Centre on Racism and Xenophobia), which monitors developments throughout the EU and has established legal recourse in particular for Europe’s migrant and minority population (Ippolito, 2015). In its Charter of Fundamental Rights (see also below) the EU commits to protecting those fleeing political persecution in their home countries and has established one of the world’s most successful asylum policies. The Common European Asylum System (CEAS) was introduced in 1999 in order to harmonize asylum processes, guarantee similar standards for protecting and treating refugees, and establish a common system that would allow for cooperation between member states. In an attempt to avoid asylum seekers moving from one country to another (‘asylum shopping’) the EU established a single system. The so-called Dublin Agreement stipulates that refugees need to register, be fingerprinted, and claim asylum in the first EU member state they land in. However, as of 2015, because of the overwhelming number of refugees arriving in the EU and the fact that they typically arrive in peripheral EU member states much more than in central and northern states, the Dublin Agreement is no longer being enforced. The irregular influx of hundreds of thousands of refugees into Europe has demonstrated that cross-border mobility and the protection of borders speak to the very core of the sovereign prerogative of the nation-state and are highly contested when it comes to transferring authority to the supranational level. The ‘refugee crisis’ has posed a serious challenge to the EU’s ability to coordinate policy, share settlement responsibilities, and foster cross-border solidarity. The limits of the EU Dublin Regulation for handling asylum claims in a coordinated manner has underlined the severe political challenges involved in moving towards a common approach to governing migration and refugees. Since the proposed development of a common immigration and asylum policy at the EU level met major resistance in some member states, the EU has focused more vigorously on the fight against the illegal immigration of third-country nationals. As much as this is a pressing policy issue, such focus by the EU has sent clear signals to domestic policy-makers and the public alike: priority should

28  Oliver Schmidtke be given to illegal migrants, trafficking, and potential security threats in terms of imported political radicalism. Framing the issue along these lines has political implications. Thus, the EU has gradually drifted away from the more substantial promises it made in the Hague Programme, which entailed the European Council’s commitment to enhancing the equal treatment of long-term residents regardless of their place of origin. Subsequently, the EU has been submissive to political pressure emanating from its member states requesting that the admission of labour migrants should come under their own exclusive authority. In sum, the EU seems to have embarked upon a strategy of accepting a more rigorous exclusion of third-country nationals while at the same time promoting more internal mobility for, and inclusion of, citizens from member states. Focusing its policy efforts on securing the EU’s external borders and restricting irregular immigration favours a public depiction of migrants as a potential threat. In its practical implications, the EU’s approach to governing irregular migration and borders has resulted regularly in a de-facto suspension of the right to apply for asylum and the principle of non-refoulement. The design of EU migration policies in the field, in conjunction with a securitization discourse, therefore produces an adverse effect on the overall socio-political agenda of overcoming Europe’s legacy of social and symbolic exclusion vis-à-vis migrants from non-EU countries (Crawley & Skleparis, 2018).

The local level: Urban citizenship and practised solidarity The very nature of being responsive to the rights and needs of refugees – from basic protection to including them into the fabric of society – has propelled the local context and, most importantly, cities into the spotlight. At its core, citizenship as solidarity and inclusion is a place-based practice that is shaped by territorially specific social, political, and cultural environments (e.g. Bradford, 2005). Most importantly, research on the role of the local context has underlined that these processes are essentially rooted in communal practices and forms of urban or regional citizenship. The local and regional contexts provide a central arena for how the need for protection and support is translated into concrete programmes and for how effective these initiatives are (Hepburn & Zapata-Barrero, 2014; Schmidtke, 2014). It is not by accident that during the 2015/2016 ‘refugee crisis’, local communities provided both critical resources of support for irregular migrants and political support for a compassionate response to the suffering of those who had to flee war and violence. In many countries where refugees arrived in great numbers, local initiatives were formed that provided the necessities of life and broader sociallegal support in circumstances when state authorities failed or were late taking up these tasks (Simsa, 2017; Meyer & Simsa, 2018). Civil society largely filled the gap left behind by reluctant, under-resourced, or incompetent administrations. Equally, important civil society groups provided a different narrative challenging the often-exclusionary national rhetoric with one focused on a reinvention of citizenship as a practice of solidarity on the ground (Andrews Jr. & Bose,

Rescaling citizenship  29 2019; Agustín & Jørgensen, 2018; d’Auria, Daher & Rohde, 2018; O’Brien, Collingwood & El-Khatib, 2019; Parsanoglou, 2020). The central and innovative role of local contexts and cities as important sites of support and inclusion has been underlined by the institutionalization of their role in a network of ‘refugee cities’ or ‘sanctuary cities’2 that have sprung up all over Europe and North America. The core idea of these sanctuary cities is the commitment to protecting undocumented or irregular migrants from deportation or prosecution, often openly defying federal immigration laws (Lasch et al., 2018). The practices of local authorities and civil society actors in these cities challenge the citizenship as membership rules and replace them with a citizenship logic rooted in rights and practiced solidarity based on residency status (providing migrants with access to services such as medical care, emergency shelters, food services, recreational programmes, and libraries). Underlining the state–civil society dichotomy in allowing for practiced citizenship, Bagelman (2016) speaks of sanctuary cities in terms of a ‘suspended state’. Sanctuary cities denote a wide variety of policies and practices in urban communities (Bauder, 2017). Yet, what they have in common is that actors in urban spaces feel compelled to address exclusionary national policies towards migrants and refugees. The scope and nature of the protection that these cities can offer and the resources they are able to mobilize might change from one national context to another. Yet, they are similarly driven by the general objective to incorporate the most vulnerable migrants irrespective of their legal or membership status. Sanctuary cities speak to the provocative question raised by Bauböck and Orgad (2020): Should Urban Citizenship Be Emancipated from Nationality? They directly address the structural limitations that a national, territorial-based citizenship status exhibits when it comes to addressing the needs of those migrants outside of regular, legally condoned channels. In their study of sanctuary cities, Agustín and Jørgensen (2019) refer to a form of ‘cosmopolitanism from below’ that is on display in these urban contexts’ attempt to protect and ‘sanction’ unprotected newcomers. Another significant dimension of sanctuary cities and urban approaches to allow for an inclusion of refugees via citizenship is the reliance on multi-stakeholder communities. Such an approach to integration has notable effects on the broader governance of migration at the city level. Building these multi-stakeholder partnerships creates opportunities for new, less hierarchical, and government-centred modes of governing migration and integration (see for a similar argument Schmidtke & Zaslove, 2014). In particular, community groups in civil society and migrants themselves have been able to engage more fully in bottom-up grassroots initiatives. It is one of the striking features of such a community-driven citizenship practice that, particularly in urban settings, migrants have gained agency and voice in the public arena through a web of civil society interactions (Glick Schiller & Caglar, 2009). Sanctuary cities are just one iteration of local initiatives demonstrating compelling evidence of the power of place-based, communitydriven modes of shaping integration and providing newcomers and minorities with real opportunities for engagement and empowerment.

30  Oliver Schmidtke In this latter respect, one notable, local feature of Canada’s immigration regime is the Private Sponsorship of Refugees (PSR) Program and its societal and political effects. Essentially the PSR allows groups in civil society to sponsor refugees to come to Canada by raising the resources for and providing assistance to them for one year. The positive effects on the societal integration of refugees are well documented (Hyndman, Payne, & Jimenez, 2017; Schmidtke, 2019). The way in which the PSR programme relies on and engages with civil society stakeholders also generates a particular political effect. It is through connecting refugees with community members, informing the public (for instance through fundraising or social events), and drawing attention to the broader issue of refugees that the private sponsorship programme often promotes important multipliers in the community. Over 275,000 refugees have been sponsored by PSR since its inception about 40 years ago. On average, sponsorship groups have about ten members, which indicates how far reaching the socializing effects of the programme are likely to be. This dynamic, generated primarily through local networks and civil society communities, proves to be a major factor in Canada’s response to the global refugee crisis. In this context, migrants are not simply the objects of the demand for successful integration; rather, they participate in deliberating its meaning and evolving societal practices. There is a sense of agency for immigrants and minorities that emerges out of community-based institutional practices and interactions. In particular, the local level has become an arena for negotiating the meaning of what successful ‘integration’ means on the ground and with what kind of programmes to implement for this task. This governance structure has proven to be instrumental in fostering policy innovation, a more inclusive decision-making process, and urban forms of citizenship (e.g. Gebhardt, 2016). In addition, this form of participatory inclusion affects Canadian society at large, its perception of immigrants, and the associated politics of migration. Providing migrants with agency and voice generates a specific political dynamic in governing immigration and cultural diversity. The local governance context proves to be more susceptible to and effective in enacting practices of citizenship as a mode of political participation.

Conclusion The European ‘refugee crisis’ has put the spotlight on a structural deficiency of the international human rights regime and on the fundamental ethical challenge to national citizenship regimes. In the current global context, both have largely failed to protect those fleeing war, violence, and persecution. The tragedy of refugees seeking safety on the shores of Europe and drowning by the thousands in the Mediterranean Sea constitutes the calculated sacrifice the European Union and its member states are willing to make to securitize their external borders. This development has been driven in part by a political environment that has witnessed a nationalist backlash and a rise in anti-immigrant political forces across the continent. The flagrant disconnect between the principled commitment to securing human rights, on the one hand, and the reality undermining the right to political

Rescaling citizenship  31 asylum in practice, on the other hand, is a troubling reality that also speaks to a political failure as well as to the essential shortcomings of a territorially exclusive citizenship regime. As we witness a tightening of national and EU borders towards refugees and irregular migrants, there has also been a push towards a more inclusionary citizenship practice towards refugees. From a multi-level governance perspective, this chapter points to the ways in which the rights and needs of this most vulnerable migrant group becomes – at least partly – decoupled from membership in national citizenship regimes. Initiatives at the supra-national level, most notably through the UN system and the European Union, have created new opportunities to create tools of protection and support. Still, these supranational agencies operate within a framework of defining memberships and access to rights that is deeply steeped in the exclusionary logic of belonging to individual nation-states. In the analytical categories of Linda Bosniak, steps towards a supra-national mode of citizenship as legal status and a system of rights are only in their infancy and have largely proven to be of very limited effectiveness in the wake of the European ‘refugee crisis’. At the same time, at the local level there is robust evidence of civil-society driven attempts to challenge the exclusionary logic pursued by most EU member states. It is mostly in local communities and through forms of urban citizenship that refugees are included through grass-roots political engagement and practiced solidarity. At the local level, refugees and irregular migrants tend to lose their status as ‘spatially invisible non-citizens’ (Painter & Philo, 1995, p. 114). In this respect, local, urban practices of inclusion and recognition have demonstrated the potential for a transformative citizenship model (Bauböck, 2017; Bauder & Gonzalez, 2018; Mayer, 2018; Schmidtke, 2014). During the extraordinary days of the ‘refugee crisis’, Europe’s system of multi-level governance opened new opportunities for civic practices of solidarity and support that have increasingly been challenged by the resurgence of populist-nationalist forces at the national level. The crisis has also highlighted an intensifying dissonance in Europe between citizenship as legal status and a system of rights and duties, and forms of collective political identity (imagined communities) and civic solidarity. Nowicka, Krzyżowski, and Ohm (2019) point to how such an emerging sense of a transnational solidarity is dependent on specific socio-culturally and spatio-temporally contexts in which the norms of such a solidarity with refugees are generated and practiced. In this spirit, it worth pointing to competing governance arenas in which political alliances for and against refugees are formed and responding social practices enacted. Thinking beyond national citizenship regimes might be the most promising way of extending solidarity to refugees in a European context increasingly shaped by populist-nationalist actors and their anti-migrant agenda.

Notes 1 Both the European Council on Refugees and Exiles (ECRE) and the United Nations High Commissioner for Refugees (UNHCR) as well as the Council of Europe Commissioner for Human Rights have criticized the Dublin Regulation for not providing effective protection to third-country nationals or stateless persons applying for

32  Oliver Schmidtke international protection and, as a result, undermining refugee rights by putting security concerns over human rights commitments. 2 A whole range of terms are used to describe these cities: ‘city of sanctuary’, ‘refuge city’, ‘city of asylum’, ‘sanctuary city’, or ‘solidarity city’.

References Agustín, Ó. G., & Jørgensen, M. B. (2018). Solidarity and the ‘refugee crisis’ in Europe. New York: Springer. Agustín, Ó. G., & Jørgensen, M. B. (2019). Solidarity cities and cosmopolitanism from below: Barcelona as a refugee city. Social Inclusion, 7(2), 198–207. Albertazzi, D., & Mueller, S. (2017). Populism and liberal democracy: Populists in government in Austria, Italy, Poland, and Switzerland. In C. Mudde (Ed.), The populist radical right: A reader (pp. 508–526). New York: Routledge. Andrew, W. (2004). EU human rights policies: A study in irony. Oxford: Oxford University Press. Andrews, Jr. R., & Bose, S. (2019). Sanctuary cities? Asylum? Dreamers? When a house is not a home: The legal and socioeconomic implications of national populism on local governance and individual liberties. University of the District of Columbia Law Review, 21(2). Retrieved from https://digitalcommons​.law​.udc​.edu​/udclr​/vol21​ /iss2​/4/. Bagelman, J. (2016). Sanctuary city: A suspended state. New York: Springer. Bauböck, R. (2017). Citizenship and collective identities as political sources of solidarity in the European Union. In K. Banting & W. Kymlicka (Eds.), The strains of commitment. The political sources of solidarity in diverse societies (pp. 80–106). Oxford: Oxford University Press. Bauböck, R., & Orgad, L. (2020). Cities vs states: Should urban citizenship be emancipated from nationality? European University Institute. Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS, 16. Bauder, H. (2017). Sanctuary cities: Policies and practices in international perspective. International Migration, 55(2), 174–187. Bauder, H., & Gonzalez, D. A. (2018). Municipal responses to ‘illegality’: Urban sanctuary across national contexts. Social Inclusion, 6(1), 124–134. Benhabib, S. (2004). The rights of others: Aliens, residents and citizens. Cambridge: Cambridge University Press. Bigo, D. (2014). The (in)securitization practices of the three universes of EU border control: Military/navy – border guards/police – database analysts. Security Dialogue, 45(3), 209–225. Bosniak, L. (2000). Citizenship denationalized. Indiana Journal of Global Legal Studies, 7(2), 447–509. Bosniak, L. (2006). The citizen and the alien: Dilemmas of contemporary membership. Princeton: Princeton University Press. Bradford, N. (2005). Place-based public policy: Towards a new urban and community agenda for Canada. Ottawa: Canadian Policy Research Networks. Caiani, M., & Kroll, P. (2017). Nationalism and populism in radical right discourses in Italy and Germany. Javnost – The Public, 24(4), 336–354. Chimni, B. S. (2019). Global compact on refugees: One step forward, two steps back. International Journal of Refugee Law, 30(4), 630–634.

Rescaling citizenship  33 Crawley, H., & Skleparis, D. (2018). Refugees, migrants, neither, both: Categorical fetishism and the politics of bounding in Europe’s ‘migration crisis’. Journal of Ethnic and Migration Studies, 44(1), 48–64. D’Auria, V., Daher, R., & Rohde, K. (2018). From integration to solidarity: Insights from civil society organisations in three European cities. Urban Planning, 3(4), 79–90. Darling, J., & Bauder, H. (Eds.). (2019). Sanctuary cities and urban struggles. Rescaling migration, citizenship, and rights. Manchester: Manchester University Press. De Blasio, B., Hidalgo, A., & Khan, S. (2016). Our immigrants, our strength. New York Times (20 September). Retrieved from https://www​.nytimes​.com​/2016​/09​/20​/opinion​/ our​-immigrants​-our​-strength​.html. Dennison, J., & Geddes, A. (2019). A rising tide? The salience of immigration and the rise of anti‐immigration political parties in Western Europe. The Political Quarterly, 90(1), 107–116. Garelli, G., Sciurba, A., & Tazzioli, M. (2018). Introduction: Mediterranean movements and the reconfiguration of the military-humanitarian border in 2015. Antipode, 50(3), 662–672. Gebhardt, D. (2016). Re-thinking urban citizenship for immigrants from a policy perspective: The case of Barcelona. Citizenship Studies, 20(6–7), 846–866. Geddes, A. (2000). Immigration and European integration: Towards fortress Europe? Manchester: Manchester University Press. Gest, J., Kysel, I. M., & Wong, T. K. (2019). Protecting and benchmarking migrants’ rights: An analysis of the global compact for safe, orderly and regular migration. International Migration, 57(6), 60–79. Glick Schiller, N., & Caglar, A. (2009). Towards a comparative theory of locality in migration studies: Migrant incorporation and city scale. Journal of Ethnic and Migration Studies, 35(2), 177–202. Guild, E., Basaran, T., & Allinson, K. (2019). From zero to hero? An analysis of the human rights protections within the global compact for safe, orderly and regular migration (GCM). International Migration, 57(6), 43–59. Habermas, J. (2012). The crisis of the European Union in light of a constitutionalization of international law – An essay on the constitution for Europe. In J. Habermas, The Crisis of the European Union. A Response (pp. 1–70). Cambridge: Polity Press. Hansen, R. (2018). The comprehensive refugee response framework: A commentary. Journal of Refugee Studies, 31(2), 131–151. Hepburn, E., & Zapata-Barrero, R. (Eds.). (2014). The politics of immigration in multilevel states: Governance and political parties. London: Palgrave Macmillan. Hsiao-Hung, P. (2020). The refugee ‘crisis’ showed Europe’s worst side to the world. The Guardian (1 January). Retrieved from https://www​.theguardian​.com​/commentisfree​ /2020​/jan​/01​/refugee​-crisis​-europe​-mediterranean​-racism​-incarceration. Hyndman, J., Payne, W., & Jimenez, S. (2017). Private refugee sponsorship in Canada. Forced International Migration and Integration, 4(2), 237–256. International Organization of Migration. (2019). Missing migrants project. Retrieved from https://migrationdataportal​.org​/themes​/migrant​-deaths​-and​-disappearances. Ippolito, F. (2015). Migration and asylum cases before the court of justice of the European Union: Putting the EU charter of fundamental rights to test? European Journal of Migration and Law, 17, 1–38. Jones, R. (2016). Violent borders: Refugees and the right to move. London: Verso. Kivisto, P. (2001). Theorizing transnational immigration: A critical review of current efforts. Ethnic and Racial Studies, 24(4), 549–577.

34  Oliver Schmidtke Kymlicka, W. (2004). Politics in the vernacular: Nationalism, multiculturalism, and citizenship. Oxford: Oxford University Press. Lasch, C. N., Chan, R. L., Eagly, I. V., Haynes, D. F., Lai, A., McCormick, E. M., & Stumpf, J. P. (2018). Understanding sanctuary cities. Boston College Law Review, 59(5). Retrieved from https://lawdigitalcommons​.bc​.edu​/bclr​/vol59​/iss5​/5/. Lewis, H., Waite, L., & Hodkinson, S. (2017). Hostile UK immigration policy and asylum seekers’ susceptibility to forced labour. In F. Vecchio & A. Gerard (Eds.), Entrapping asylum seekers (pp. 187–215). London: Palgrave Macmillan. Mackert, J., & Turner, B. S. (2017). Citizenship and its boundaries. In J. Mackert & B. S. Turner (Eds.), The transformation of citizenship. Vol. 2. Boundaries of inclusion and exclusion (pp. 1–14). London: Routledge. Mayer, M. (2018). Cities as sites of refuge and resistance. European Urban and Regional Studies, 25(3), 232–249. Meyer, M., & Simsa, R. (2018). Organizing the unexpected: How civil society organizations dealt with the refugee crisis. Voluntas: International Journal of Voluntary and Nonprofit Organizations, 29(6), 1159–1175. Moreno‐Lax, V. (2018). The EU humanitarian border and the securitization of human rights: The ‘rescue‐through‐interdiction/rescue‐without‐protection’ paradigm. Journal of Common Market Studies, 56(1), 119–140. Newland, K. (2018). The global compact for safe, orderly and regular migration: An unlikely achievement. International Journal of Refugee Law, 30(4), 657–660. Nowicka, M., Krzyżowski, Ł., & Ohm, D. (2019). Transnational solidarity, the refugees and open societies in Europe. Current Sociology, 67(3), 383–400. O’Brien, B. G., Collingwood, L., & El-Khatib, S. O. (2019). The politics of refuge: Sanctuary cities, crime, and undocumented immigration. Urban Affairs Review, 55(1), 3–40. Painter, J. & Philo, C. (1995). Spaces of citizenship: An introduction. Political Geography, 14(2), 107–120. Parsanoglou, D. (2020). Volunteering for refugees and the repositioning of state sovereignty and civil society: The case of Greece. Citizenship Studies, 24(4), 457–473. Razum, O., & Bozorgmehr, K. (2016). Restricted entitlements and access to health care for refugees and immigrants: The example of Germany. Global Social Policy, 16(3), 321–324. Schmidtke, O. (2014). Managing migration and diversity in Canada and Germany: Beyond national models. Comparative Migration Studies, 2(1), 77–99. Schmidtke, O. (2019). The local governance of migration: lessons from the immigrant country, Canada. dISP – Planning Review, 55(3), 31–42. Schmidtke, O., & Zaslove, A. (2014). Why regions matter in immigrant integration policies: North Rhine-Westphalia and Emilia-Romagna in comparative perspective. Journal of Ethnic and Migration Studies, 39(10), 36–57. Simsa, R. (2017). Leaving emergency management in the refugee crisis to civil society? The case of Austria. Journal of Applied Security Research, 12(1), 78–95. Smismans, S. (2010). The European Union’s fundamental rights myth. Journal of Common Market Studies, 48(1), 45–66. Soysal, Y. N. (1995). Limits of citizenship: Migrants and postnational membership in Europe. Chicago: University of Chicago Press. Squire, V. (2019). A milestone missed: The global compact on migration and the limits of solidarity. Global Affairs, 5(2), 155–162. Turner, B. S. (1990). Outline of a theory of citizenship. Sociology, 24(2), 189–217.

Rescaling citizenship  35 UNHCR. (2018). Comprehensive refugee response framework. Retrieved from https:// www​. unhcr​. org​/ comprehensive​- refugee​- response​- framework​- crrf​. html#:~​ : text​ =The​%20New​%20York​%20Declaration​%20lays​,the​%20countries​%20that​%20host​ %20them. United Nations. (2018a). Global compact for safe, orderly and regular migration. Final draft. Retrieved from https://www​.un​.org​/pga​/72​/wp​-content​/uploads​/sites​/51​/2018​/07​ /migration​.pdf. United Nations. (2018b). Report of the United Nations high commissioner for refugees: Part II global compact on refugees. Retrieved from https://www​.unhcr​.org​/gcr​/GCR​ _English​.pdf. United Nations General Assembly. (2016). In safety and dignity: Addressing large movements of refugees and migrants (21 April). Retrieved from https://refugeesmigrants​ .un​.org​/sites​/default​/files​/in​_safety​_and​_dignity_-​_addressing​_large​_movements​_of​ _refugees​_and​_migrants​.pdf. van Dijk, H. (1999). State borders in geography and history. In H. Knippenberg & J. Markusse (Eds.), Nationalising and denationalising European border regions, 1800– 2000: Views from geography and history (pp. 21–39). Dordrecht: Kluwer Academic. Vieten, U. M., & Poynting, S. (2016). Contemporary far-right racist populism in Europe. Journal of Intercultural Studies, 37(6), 533–540. Vink, M. (2017). Comparing citizenship regimes. In A. Shachar, R. Bauböck, I. Bloemraad, & M. Vink (Eds.), The Oxford handbook of citizenship (pp. 221–244). Oxford: Oxford University Press. Wiener, A. (2018). European citizenship practice: Building institutions of a non-state. New York: Routledge. Wotherspoon, T. (2018). Migration, boundaries and differentiated citizenship: Contested frameworks for inclusion and exclusion. Social Inclusion, 6(3), 153–161.

2

Church asylum as ultima ratio Fighting for access to German society1 Max Oliver Schmidt

Introduction People flee for different reasons. They try to escape wars, conflicts, environmental disasters, or political persecution in their countries of origin (Walzer, 2006). Therefore, the flight is usually triggered by a violation of human rights or the danger of being harmed, and it is connected with the search for security, physical integrity, and refuge (Klepp, 2011). As a refugee who is ‘someone unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion’ (United Nations, 1951, Article 1), one must be protected by other communities and their authorities. Consequently, many refugees try to reach the territory of the democratic EU and its Member States to find appropriate protection by requesting asylum. To obtain protection, refugees have to gain access to a formal asylum procedure. This administrative act is necessary to get gradual access to certain rights, resources, and public goods. Thus, the asylum procedure as an apparently simple administrative act changes the formal status of a person and provides a minimum of security to the refugee. Ideally, a gradually closed community – a nation state like Germany or a supranational entity like the EU – opens its boundaries and includes the group of outsiders for a limited time in order to protect them. Thus, through the asylum procedure a basic formal solidarity is produced, and formerly closed boundaries are shifted by grouping refugees into the category of persons entitled to protection and persons entitled to remain. The status is changed performatively during the administrative procedure, and the refugee can gradually participate in a given community. Unfortunately, empirical reality differs from this scenario. The EU and its Member States as host societies are not open to everyone even though refugees have the guaranteed right to apply for asylum. Since this initial step is often denied, this article deals with the struggle for access to the asylum procedure. The EU and its Member States are gradually closed, and they strictly regulate who does and who does not get access to the asylum procedure. This leads to a paradox: according to international law, people are allowed to leave or to flee their country, and it is legally guaranteed for refugees to request asylum; at the same time, democratic states and their organizational actors prohibit refugees to

Church asylum as ultima ratio  37 use safe routes and illegalize them before they are able to ask for asylum. Thus, as the status transition is highly regulated, refugees do not simply get asylum. Dangerous migration routes, border controls, barracking in detention camps, registration practices, intra-European distribution systems, or lengthy application procedures make access to proper asylum procedures even more difficult, while at the same time preventing people from freely choosing the country in which they wish to seek asylum. With the creation of these obstacles for refugees it becomes obvious that democratic societies tend to be closed and to monopolize the access to rights and resources for their own members and exclude others from these rights and resources. The EU’s asylum management dissolves the right to apply for asylum and contradicts the façade of a democratic society that claims to fulfil human rights. One could expect that especially modern democratic societies enforce the right to apply for asylum and implement a fair asylum procedure. However, the asylum system of the EU and its Member States demonstrates the very opposite. The EU has developed exclusion strategies to prevent refugees from accessing the asylum procedure. On the one hand, it is establishing territorial exclusion barriers, while on the other hand administrative exclusion barriers have been erected. This hinders refugees in accessing an asylum procedure within the EU and turns the asylum procedure into a contested social good. Non-governmental organizations such as churches are now fighting for this access to the asylum procedure on behalf of refugees. These empirically observable conflicts can be described as processes of social closure.2 Certain groups are excluded from the asylum procedure that is monopolized as a resource. The asylum procedure enables access to further social rights, resources of the welfare state, and security. Just as Michael Walzer (2006) described membership in communities as a social good that is monopolized, the asylum procedure becomes a monopolized good. The excluded refugees struggle for access to the procedure – in short, they usurp it in order to ultimately be able to participate in the rights and public goods of the host society: Expressed metaphorically, exclusionary closure represents the use of power in a ‘downward’ direction because it necessarily entails the creation of a group, class, or stratum of legally defined inferiors. Countervailing action by the ‘negatively privileged’, on the other hand, represents the use of power in an upward direction in the sense that collective attempts by the excluded to win a greater share of resources always threaten to bite into the privileges of legally defined superiors. It is in other words a form of action having usurpation as its goals. Exclusion and usurpation may therefore be regarded as the two main generic types of social closure, the latter always being a consequence of, and collective response to, the former. (Parkin, 1979, p. 45) In this sense, access to the asylum procedure can be conceived as struggle in which any participation in the rights and public goods of a host society is negotiated in struggles of exclusion and usurpation. In this chapter I will unroll this struggle by

38  Max Oliver Schmidt discussing the case of church asylum in Germany in which church organizations act against the refusal of the Federal Office for Migration and Refugees (BAMF) to grant asylum. In a first step, I show how the ‘democratic’ EU and its Member States try to exclude people from asylum procedures, by implementing physical and administrative mobility barriers, making it impossible for them to change their status while at the same time creating a new class of immobile persons. In a second step, I show how church asylum as strategic usurpation of administrative acts counteracts this exclusionary strategy by enforcing formal solidarity.

Excluding refugees and asylum seekers The bounded solidarity of the EU The asylum procedure as the ultimate key to temporary and legally limited membership in the EU Member States has become a contested social good as it opens the formal access to host countries on the border of the EU, while at the same time various exclusion mechanisms prevent access to it. On the one hand, the EU and its Member States can be understood as distribution systems that monopolize resources, exclude certain groups from them on the basis of set criteria, and distribute the goods among their own members (Walzer, 2006). On the other hand, the EU and its Member States can be understood as an imagined community (Anderson, 2016), which through symbolic and legal processes of ascription, creates boundaries of solidarization and thus becomes a closed community of solidarity, e.g. EU citizens have common rights and access to common resources that are denied to non-EU citizens. To monopolize these rights and resources for its own citizens, the EU forms a common and gradually closed economic, political, and legal area with a shared border. Boundaries of solidarity form the basis for the development of an EU border regime, territorial borders being critical as they not only require the separation of EU internal and external trade, but also prevent non-EU citizens from accessing the EU. In addition, the EU has introduced ‘immigration and asylum … as “common” Community matters’ (Hansen, 2005, p. 3). Since (forced) migration and refugees were also regarded by the EU as a ‘common “European” “problem” and “crisis”’ (Hansen, 2005, p. 7), the EU has taken responsibility in this policy area in particular over the past few years. In the European Union, refugees have been ‘framed as potential importers of instability, even violence, into the previously mono-cultural and hence harmonious and consentient, EU countries’ (Hansen, 2005, p. 30). This narrative framing of ‘foreigners’ also strengthens the perception of a European community of solidarity that must close itself off against strangers. The fear of refugees is constructed and politically dramatized by European agencies like Frontex in order to legitimize border closures (Colombeau, 2017). European discourses also differentiate strongly between ‘illegal’ and ‘legal’ migrants and thus reproduce sharply defined boundaries, which allow one part of migration and understand it as an intercultural component of the EU while classifying

Church asylum as ultima ratio  39 another group of migrants as illegal and denying them access to the community of solidarity. Of course, the EU is not a hermetically closed community, but it uses processes of ascription (illegal-legal) to select groups of people who either belong or do not belong to the community (Hansen, 2005). However, not only symbolic border demarcations have been strengthened over the last years, but also a new border surveillance regime has been established, which is currently coordinated at the European level by Frontex or systems like EURODAC and EUROSUR. Internal integration or internal solidarity therefore requires closure to the outside (Wimmer, 2005, p. 128). The boundaries of the European community of solidarity have made this community almost inaccessible for refugees. In order to maintain precisely these forms of closure and monopolization, the EU and its Member States must provide an administratively burdensome external border management. This border service not only manages border crossing, but also regulates solidarity between citizens and non-citizens of the EU. These processes of European internal solidarization are bound to exclusion processes and border management that prevent the actual contact of citizens and refugees and consequently hinder the emergence of solidarity between refugees and EU citizens. The main aim of the exclusionary and usurpationary processes described in the chapter, therefore, is to prohibit or enable processes of solidarity between EU citizens and refugees. Over the last three decades, the EU has established a border regime that seals off the EU internal market and the Schengen Area from external influences – not from capital or financial transactions (Mrozek, 2017). Therefore, the EU and its Member States are trying to erect mobility barriers that prevent both the physical presence of refugees on EU territory as well as legal and social mobility – which guarantee access to a secure residence status. Without legal and social mobility refugees are not able to change their legal status; they have no stay permit and are not allowed to work. Consequently, they can be exploited as illegalized people in the agriculture industry and the informal labour market (Osservatorio Placido Rizzotto, 2014). Physical presence is prevented by territorial exclusion while access to the asylum procedure is prevented by administrative exclusion. The asylum procedure itself is an expression of formal solidarity between the host society and the refugees since the latter receive a legally guaranteed status and residence permit in the host society through the procedure. The EU and its Member States therefore seek to block access to the asylum procedure – the performative administrative act of making solidarity. Exterritorialization and refusal of administrative responsibilities The asylum procedure becomes inaccessible to refugees mainly due to the transfer of responsibility for asylum procedures to safe third non-EU countries. Although the EU has created rules that allow skilled workers to enter EU territory under certain conditions (European Parliament, 2014a, 2014b), there is hardly a possibility for the majority of non-European migrants to come to Europe or to stay there for a longer period of time. This is especially difficult as soon as they are categorized

40  Max Oliver Schmidt as refugees, who lack the formal qualifications that are a precondition for access to the EU via an official visa but cannot be acquired in the country of origin. However, asylum can only be applied for at the European external border or directly on European territory (Semsrott, 2017). To stop refugees from claiming this right of asylum, exclusion takes place outside the EU territory. (Potential) refugees are excluded from the asylum procedure by keeping them geographically (territorially), legally, and administratively away from the European asylum procedure. The EU-Turkey deal (2016), the Valletta meeting (2015) and the continuing Khartoum process, the hotspots in Sicily and Greece, the training of the Libyan coast guard, the created code of conduct for private sea rescue organizations, the establishment of detention camps in Libya where human rights are violated on a daily basis, exclude refugees from regular asylum procedures. By shifting the responsibility for asylum to non-European states and actors (safe third country rule), collectivist closure rules are established, since groups of persons are excluded from asylum procedures within the EU solely on the grounds of their escape route and hence of their origin – those who come through safe third countries can be returned to these countries for asylum procedures and EU states are exempted from the obligation to carry out asylum procedures. A first important exclusion strategy that can therefore be identified in the analysis of the EU border regime is the externalization and exterritorialization of the responsibility for asylum procedures. The EU border regime can now be seen as part of a comprehensive migration regime, which is expressed primarily in various forms of bilateral dialogues, regional cooperation, and partnerships (EU Migration and Home Affairs, 2018a, 2018b, 2018c). The Global Approach on Migration and the even more radical Global Approach on Migration and Mobility represent two major programmes of the EU Commission that have created an exterritorialized European border regime. It was the EU’s step ‘to externalise responsibility for the border and migration regime and to involve non-EU states in the tasks of migration, flight and asylum management’ (Hess et al., 2014, p. 19). The Rabat process supports, for example, African states in the development of an EU-friendly migration management system. Behind this, however, lies a process that extraterritorializes migration control and monitoring (Laube, 2017). It is also questionable to what extent human rights and admission standards are maintained. It is often clear that non-European asylum reception systems hardly meet the standards required by the EU. Transit countries for refugees who stop the movement of refugees and become host countries are granted payments, trade deals and economic agreements, or visa facilitation for their own citizens by the EU. As a result, the EU has been able to strengthen economic logics, while reducing democratic and human rights logics in the field of asylum administration. Migration is not completely stopped here, but the EU can illegalize people at an early stage. As a consequence, people intending to apply for asylum are discouraged to do so. Those who flee through a safe third country or even come from a safe country of origin are indirectly denied the right to apply for asylum because now the safe third country is responsible for the asylum procedure. Furthermore, the lack of safe escape routes

Church asylum as ultima ratio  41 means that many people cannot cross the Mediterranean safely but risk drowning and dying as the horrifying numbers of victims show that have long since turned the Mediterranean into a mass grave.3 Since it is almost impossible to reach European territory, refugees are dependent on aid organizations to rescue them and bring them to the nearest safe European port. Yet, even if refugees manage to reach the EU, new exclusion barriers emerge. The EU has set exclusion rules within its own legal area, which allow Member States to deter refugees from accessing the asylum procedure and prevent them from freely choosing the country in which to file their asylum application or continue their flight within the EU. The Dublin Regulation creates the possibility that the responsibility for asylum procedures will be shifted to the EU’s external border, away from Member States in the centre of the Schengen Area. At the same time, it restricts the free movement of refugees. There is an administrative closure of access to the asylum procedure, even though the refugees have fought for territorial access. The Dublin Regulation is thus another legal barrier of mobility. It determines which country is responsible for examining the asylum application. Meanwhile, the establishment of hotspots has forced the implementation of the Dublin Regulation and further restricted refugees’ possible freedom of movement. The Dublin Regulation represents an intra-European mode of exclusion, as Central and Northern European states such as Germany, France, the Netherlands, Austria, Sweden, and Norway have succeeded in delegating the responsibility for refugee reception administratively to Italy, Greece, and Spain. The location of the refugees’ country of origin determines a particular escape route and thus access to Europe. The Dublin Regulation therefore can be understood as a second collectivist mode of exclusion that keeps refugees away from asylum procedures in the geographical centre of the EU because of their origin. Within the EU, administrative exclusion occurs, which is based on strategies similar to territorial exclusion. On the basis of the Dublin Regulation, Member States deny their responsibility for the asylum procedure. At the same time, the asylum procedure as such is not affected and the EU can maintain its democratic façade. Mobility barriers and two modes of exclusion The strategies of exclusion discussed above operate in order to prevent access to the asylum procedure and to a formal reception mode of modern democratic societies by establishing barriers to mobility. While territorial exclusion denies refugees to reach EU territory physically it at once blocks the interaction between refugees and responsible state authorities in order to impede an application for asylum. Territorial exclusion is constituted by the strategically created absence of responsible administrative organizations that would have to carry out the asylum procedure and can be seen as a social-administrative barrier to physical and social-legal mobility. Refugees are denied the formal change of status – as recognized refugees or persons entitled to protection. Barriers to interaction are created, which prevent the refugees from interacting with the administrative organizations of the EU and its Member States – the consequence being that refugees cannot

42  Max Oliver Schmidt apply for asylum. Territorial and administrative exclusion therefore influences the ‘presence-availability’ (Giddens, 1984, p. 123) of the refugees as well as of the administrative actors. The presence availability is based on the physical copresence of refugees and public administrations. The EU consequently is not only a topographic space, but a closed operative space in which strategies are enforced that exclude refugees from communicating and interacting with public authorities. In other words, an asylum application cannot be completed in an online procedure in the country of origin or in an embassy. Instead, the refugees must physically reach the host country. Assuming that refugees have overcome the obstacles of territorial exclusion, they often face administrative exclusion hurdles, which in turn can lead to territorial exclusion. Administrative exclusion prevents refugees from gaining access to certain rights and resources that can only be obtained through a residence permit and formally recognized status. Although administrative exclusion allows requests for asylum, the possibility of interaction between refugees and the responsible administrative organization is limited by the Dublin procedure, since the administrative organization transfers responsibility for the asylum procedure to other countries. The refugee is removed from the area of responsibility of the administrative organization and has no possibility of claiming asylum. They are in an administrative limbo of formal non-membership. Administrative exclusion ultimately prevents asylum procedures from being requested, which would lead to a legal status that would allow residence and provide access to work permits, health care, and other common goods provided by the community of solidarity. It is mostly civil society actors like church communities, parishes, or monasteries which pursue strategies to build up relations of solidarity with refugees, while state organizations either dissolve or enclose these strategies of solidarization. Solidarization4 here means the mobilization of church actors who fight for the rights and opportunities for participation of refugees. The church shows solidarity with refugees by taking the latter under her care, sheltering them from state sanctions, claiming rights for them, and accepting sanctions itself. Solidarization in the present case can thus be seen as the formation of social relationships that result in the protection of subordinate and excluded actors by non-excluded actors.

The church and the fight for participation Usurping the administrative act In recent years, as one strategy against the administrative exclusion and the related mobility barriers that have been established, Christian churches in Germany have increasingly carried out church asylums in order to force state authorities to make asylum procedures accessible to refugees. In this process, the administrative-legal mobility of refugees is restored so that a change of status can take place. This is usually done by re-positioning refugees in the field and influencing state decisionmaking corridors. Both mechanisms – social re-positioning and influencing administrative decisions – can be understood as the usurpation of an administrative act. Administrative usurpation is the counteraction to administrative exclusion and demands access to an asylum procedure, even though refugees would no longer

Church asylum as ultima ratio  43 have access to the asylum procedure on a legal basis. The actual aim of usurpation is to have the asylum case re-examined by the state authorities (Dethloff & Mittermaier, 2011) and to demand access to the actual administrative act of the asylum procedure. Usurpation means that the mutual availability and co-presence of public administrative organizations and the refugees is enforced in one place. Co-presence in the sense of this provision cannot be achieved via electronic media, but lies in ‘unmediated contact between those … who are physically opposed’ (Giddens, 1984, p. 68). The organization is the location where interaction – the asylum procedure – takes place in co-presence. It is only in the face-toface interaction that the request for asylum, the asylum hearing, and the asylum procedure becomes possible as a central interaction between the organization’s staff and the refugees. Above all, church asylum demands a state action, from which the state previously wanted to exclude the refugees by strategically not acting. Church asylum forces an administrative act through which the refugees gain access to an asylum procedure even though the state declares itself not responsible. This form of usurpation enables the administrative-legal mobility of the refugees, since the asylum procedure achieved can lead to a change in legal status. In the present case, church organizations are trying to influence the decision-making procedures of administrative organizations to coerce an asylum procedure and protection status for refugees. In this way, influence is exerted on governmental action. If church organizations succeed in manipulating the decision-making corridors of the BAMF decision-makers, they usurp administrative access to the asylum procedure and asylum protection is granted. Church asylum demands access to a regular asylum procedure in Germany, even though asylum seekers no longer have any possible legal remedies to gain access to this procedure. The respective church organization providing church asylum negotiates access to asylum procedures and opposes action by the police such as deportations or repatriation to other (EU Member) States. The church organization then demands the revision of the rejected asylum application, and the state authorities re-open the asylum procedure. The church asylum presents itself as a revision of an administrative act or decision and thus causes conflicts, since it firstly counteracts the European Dublin Regulation, which represents an important intra-European mode of exclusion, and secondly, it calls for state action that runs counter to the actual exclusionary efforts. Church asylum is therefore an action that not only revises decisions of public administrations but also seeks to break down the barriers of exclusion. Therefore, church organizations develop a different view of the individual asylum case, as they apply their own interpretation schemes to the asylum case by referring to Christian narratives. It is not an impersonal and objective examination of the case as public administrations would carry out, but rather an empathic examination, which takes place on a basis of Christian solidarity and a decision of conscience. Usurpation is not a direct action against the rule of law, since in its actions it demands state procedures made available by the rule of law. It is, however, an action firstly against a certain idea of the nation state, which blocks refugees’ access to the few formal channels that allow access to further rights and public goods. Second, the action of the churches revises an administrative case decision. The actions of the church

44  Max Oliver Schmidt organizations are less about a systemic change of closure rules, but rather about the establishment of a different world view or interpretation of the world that influences the selection and interpretation of the closure rules and thus changes the asylum decision. The church supports a democratic state that should guarantee access to the asylum procedure. However, the very same democratic state refuses such a fair procedure. Therefore, the Church presents a case interpretation that selects certain laws of the democratic state from a Christian understanding and incorporates them interpretatively into the case review. In short, less impersonal bureaucratic procedures and more empathy in the asylum procedure. Manipulating the public administrations The usurpation strategy outlined above is made up of various mechanisms that I now discuss in detail: the intercession and the withdrawal of access, the reinterpretation of the asylum case, and the enforcement of a new asylum procedure. The intercession is an action of the church organizations, which interrupts the administrative and executive actions of the BAMF, the Immigration Authority, and the federal or state police. While the BAMF is responsible for carrying out asylum procedures and decides on the protection status of asylum seekers, the Immigration Authority has to execute the decision by either granting a certain kind of residence or by initiating deportations. The police finally have to execute deportations. If the BAMF denies responsibility for the case, if the asylum application has been rejected, if the refugees do not leave the country on their own, and if the Immigration Authority does not even grant a Duldung5 but demands repatriation, church asylum interrupts this stream of exclusionary steps. Usurpation therefore aims at the actions and decisions of administrative organizations; the intercession interrupts excluding administrative acts and prevents the premature exclusion of the refugee from the host society. This interfering prevents deportation by admitting refugees into the church building and protecting them by denying state actors such as the police access to this space. The church building is recognized as a shelter firstly due to processes of ascription. The building is a sacred artefact, to which a script is attributed, so that the police avoid excessive harassment. Second, although state law applies to the church, the eviction of the building is presented as being disproportionate. Every church asylum eviction leads to additional costs for the police, so that they suspend this sanction. The omission of the sanction leads to acquiescence of the church asylum and legitimizes the church building equally as a shelter. Thus, intercession is the moment when the refugee comes into the care of the church and is present in the place of church asylum. However, the refugees are not removed from the sphere of control of state actors. Instead, the church organization acts as a mediator or brokerage agent between the state and the refugees in order to reorganize the configuration of power relations: In its simplest form, brokerage consists of an intermediary’s creating closer connections than previously existed between two or more social sites: persons,

Church asylum as ultima ratio  45 groups, places, or something else. Brokers sometimes continue to mediate the connections, and sometimes step away once the connections exist. (Tilly, 2005, p. 224) This intermediary role changes the power constellation or conflict ability (Steinert, 2004), since the solidarization of the church organization and the refugees increases the negotiating resources of the latter. Not only is the power asymmetry between the state and the refugees balanced out, but the direct dominion by state actors over refugees is prevented. This moment is also used to slow down the usually fast review process of state actors and to give the refugees more time to explain themselves. If it is a Dublin case, a case dossier must be written by church actors, which is forwarded to the BAMF. Furthermore, the police and the Immigration Authority are informed that people are in church asylum. A basis for intercession is therefore that church organizations communicate the case to public administrations and local government organizations and do not keep the church asylum secret. The exchange of information serves the security of the refugees, since ‘the parish or church district address … is given as an address that can be summoned’ (Dethloff & Mittermaier, 2011, p. 41) and the refugees cannot be considered to have gone into hiding or be criminalized. The address becomes an important artefact for the usurpation act to avoid future sanctions by state organizations. However, if the person is placed in church asylum, the church asylum is communicated directly, on the same day! So this is really not to hide a refugee. The fact that there is an address is simply important, so that the person does not say that she was not there, even if she is missing for a day. Then she’s in hiding. That means the BAMF increases the transfer period to 18 months, from 6 to 18 months. So that can’t happen, if they are here. (Interview with a priest)6 After this interruption, the asylum case is handed over to the churches or they claim to examine the case. During the examination of the case, the church actors establish a counter knowledge to the interpretation of the asylum case carried out by the BAMF to be able to influence the procedure accordingly. Despite or because of standardized procedures in the public administrations, errors can occur or critical aspects in the asylum case history can be overlooked or misinterpreted. For example, decision-makers of the BAMF refer to standardized guidelines as a knowledge base for their decisions. The so-called country knowledge made available to decision-makers underpins previously set closure criteria and often does not correspond to the actual situation in the countries of origin. Even if the BAMF legitimizes the guidelines as quality management of the procedures, it is partially constructed knowledge that is intended to place the exclusion on a legalistic basis. The best example here is the case of Afghanistan, which was to be declared a safe country of origin, although returning refugees are threatened with torture, persecution, and being killed. The standardized knowledge excludes from

46  Max Oliver Schmidt organizational memory specific situational knowledge about local administrative practices, human rights violations, and failure to meet procedural standards in countries of origin and third countries. Consequently, the decision-makers must be influenced in their decision-making corridors and by a church case dossier. This may be due to the way in which decisions are made in the BAMF: ‘there is no explicit personal differentiation in the BAMF between the activities of hearing and decision-making’ (Schneider & Wottrich, 2017, pp. 98–99) and the decisionmakers must both conduct the hearing and make the decision on the asylum case. Hence, decision-makers of the BAMF often work alone. This position between standardized procedure and individual freedom of decision offers the church organizations the opportunity to integrate a counter-interpretation of the asylum case into the procedure. Thus, the church organization has to carry out their own asylum case review process, write a case file, and submit the case review to the decision-maker. To intervene into the case decision, the church organization need not change the whole administrative logic, but only has to influence the decision-maker. Provided that the decision-makers of the BAMF accept the church case file, they can make a decision on the basis of the church case criteria. At the same time, the standardized country knowledge is expanded by the church case files and flows into the decision-making process. In addition, decisions in the BAMF are subject to quality control by checking ‘the plausibility of the decision taken and its conformity with the official requirements’ (Schneider & Wottrich, 2017, p. 101). Therefore, it is always important for church organizations to provide a logical explanation of the asylum case which will also convince the authorities. If the church organizations succeed in influencing the interpretation of the cases of the BAMF staff, the administrative action is oriented on the interpretation of the church case – a manipulation of the decision-making corridor takes place. The churches view the case from an empathic perspective and try to reconstruct the flight story and tie it to Christian narratives. Of course, decision-makers of the BAMF can also judge asylum cases empathically, but they are bound to impersonal rules and standards. Church organizations can judge the case from an empathic-Christian perspective – they link the history of the asylum seekers to the biblical history of the Israelites, to Christian refugee narratives, or to the biblical law on asylum and foreigners7 and the Sermon on the Mount. In this way, they make sense of their actions and legitimize the church asylum. Although for the church organization the biblical stories legitimize its own actions, the empathic view of the asylum case must be translated into an administrative language so that the state actors can understand and recognize the case. Thus, they translate the empathic case interpretation into a case interpretation that appears logical to the public administration. In the counter-interpretation of the case, not only is a Christian view of the asylum case taken, but the church organization also provides certain interpretations of official law by selecting specific laws to justify the case, interpreting them in a case-specific way and submitting a new case interpretation to the BAMF. The asylum case must ultimately comply with state logic in order to reassessed by the public administrations. In this way, church action not only

Church asylum as ultima ratio  47 reproduces a genuinely Christian understanding of asylum, but also an administrative understanding of the asylum case which refers to legal principles and administrative procedures. Since the churches view the case through a state lens, unlimited solidarity with refugees is restricted. In short, in the end only those in whose cases the BAMF sees sufficient reasons to revise its own decision can be helped. The church organization must apply sufficient criteria that present the refugees as actually in need of protection. This is more difficult because the church organizations can only guess at the decision-making logic of the BAMF. Church asylum, despite a decision of conscience, ultimately means case review and an eye must be kept on legal developments. To what extent the triggering of a new inclusive administrative action is successful varies greatly and depends on the interpretation of the case. The enforcement of an administrative action is linked to the successful development of a counter-interpretation of the asylum case by the church organization. The enforcement of the procedure is usually expressed by the BAMF’s self-entry and can even result in a positive decision on asylum. Thus, the forced administrative act integrates a church interpretation of the case into the administrative decision since the decision-makers of the BAMF take over the churches’ case review. The church offers the BAMF a different vocabulary (language) and interpretation patterns through which national law is read. The refugee is no longer ‘illegal’, but in need of protection. The case is no longer a matter of illegal entry into Germany, but a case of humanitarian emergency. In the case descriptions, the churches change the vocabulary to describe the situation and reasons for the flight. However, to manipulate the decision-making corridor of the BAMF, the refugee can also stay six months in a church asylum – then Germany is forced to start the asylum procedure itself. Consequently, if the counter-interpretation of the asylum case is not accepted by the BAMF, the refugee must remain in church asylum. In any case, the church enables an interaction in a balanced power relationship between refugee and public administration by changing general techniques of interaction, transforming norms which the public administration refers to, and providing knowledge resources and case interpretations as well as restricting the access to refugees. The resulting change in the decision-making corridor of public administrations leads to a temporary opening of the previously closed solidarity community, as refugees are no longer excluded from the asylum procedure. If church organizations show solidarity with refugees, the usurpation is no longer carried out by the refugees themselves, but by the formal organization. The ability and willingness of the refugees to engage in conflict increase due to new resources for action. The actual act of usurpation and conflict is performed by the organization, whereby a powerful organizational spokesperson-authority (Ortmann 2015) confronts the state actors. Thus, the church bundles the interests of the very heterogeneous group of refugees and the weaker refugees become capable of dealing with conflict by mobilizing a bundled power to act (Steinert, 2004). As soon as the various interests are coordinated, acts of solidarity are generated, which in turn are an important component to shift power asymmetries and become a prerequisite for the ability to deal with conflict. The previously highly

48  Max Oliver Schmidt asymmetrical relationship between the excluded refugees and the excluding state actors, albeit not completely dissolved, is weakened. Through its strategy the church organization reconfigures the social positioning of refugees. In this way it enables the refugees to make a substantial transition. Refugees are heard and they are visible. They can claim rights and invoke existing law. Conflict strategies There are two main levels of conflict between church organizations and state authorities at which solidarity with refugees is negotiated. First, the contested access to the asylum procedure. This process is about exclusion from the asylum procedure and the monopolization of rights and public goods on the one hand, and usurpation and participation in rights and public goods on the other hand. This struggle, however, represents exclusively the meta-level of the conflict. The actual process of negotiation or conflict, which ultimately enables or limits exclusion or usurpation, takes place between the church organizations and public administrations. It is at this second level that the struggle for conflict ability, solidarity, and manipulation of decisions is carried out. While the churches and refugees fight to show solidarity and become capable of conflict to be able to manipulate the decisions of state actors, state actors try to prevent these strategies of solidarity. Church asylum has no legal basis. In order to be legally recognized by state actors and for the processes of solidarization, churches have pursued two strategies. First, the churches have re-codified the church asylum. Church asylum is a traditional practice (Crüsemann, 2003), which seems to contradict the state’s sovereignty of asylum. For this reason, church asylum is currently framed as humanitarian emergency aid, which does not claim asylum. Rather the church helps where the state does not enforce its own democratic rules. The church stages itself as a guardian of human rights,8 not as a counterpart to the state, but rather as an independent authority to ensure democratic procedures. Second, the church pursues legalistic strategies through which church asylum is legitimized. The decision for church asylum is always framed as a decision of conscience and thus is covered by the freedom of religion, which is protected from sanctions by the German Constitution. On the other side, state actors prevent or hinder church organizations from showing solidarity with the refugees, so that the refugees do not have access to new opportunities for interaction or resources for action. State actors therefore do not directly sanction acts of usurpation – church asylum has not yet been directly banned. Rather, meaning systems are influenced, resources are withdrawn, or new norms are set so that state organizations can impose sanctions and usurping organizations are sanctionable. The church organization’s ability to deal with conflict therefore depends on the extent to which the actors succeed in closing themselves off from state sanctions, so that access to resources and the reproduction of organizational meaning systems does not shift. Similarly, the usurpationary actors must prevent their brokerage position between state actors and refugees from being lost. Since state sanctions against the church organizations are often

Church asylum as ultima ratio  49 costly and not remarkably successful, the state has developed other strategies to break through the solidarity between refugees and church organizations. The state actors formalize the usurpationary action – they formally recognize it and create bureaucratic procedures around it. This recognition is linked to an implementation of administrative procedures that the church organizations must follow. First, the formalization of usurpation leads to the church being able to exert influence on the state organizations, since they are now in a relationship of mutual recognition: reciprocal practices have been formalized so that the form of interaction between the state and the church is officially established. An example of this is the dossier procedure for church asylum that grants churches a right and opens a channel to influence the decision-making corridor of the state authorities. Through the dossier procedure the church organizations can submit case reviews to the BAMF via official contact persons of the Catholic and Protestant Churches and the BAMF is forced to examine the cases. This procedure offers the advantage that the church organizations can be sure that their counter-interpretation of the case will be dealt with. The formal procedures, however, also make it possible to control the usurpationary action, since it is penetrated with bureaucratic rules and the church organizations cannot show solidarity with each refugee. If the churches want to continue to use the formal dossier procedures that have been established to influence state actors in their decisions, they must adopt state decision-making logics and thus exclude refugees from the act of usurpation and hence from church asylum. Through the formal procedures, the state actors have set up rules, based on which the church organizations can only show limited solidarity with refugees. For example, churches have to write case files in which they present a logical legal justification for why the case must be re-evaluated. They must also cite medical reports and point out possible errors in the previous case history. In other words, the state imposes an administrative-case-review logic on the churches, and the churches cannot help people just out of Christian empathy. The formalization of procedures is used to enclose solidarity-based strategies. The formal procedure no longer leaves it up to the church to decide with whom it will show solidarity – whom it will ultimately help – but rather creates rules and criteria according to which solidarity must take place. The churches internalize the new rules and examine cases more strictly, which leads to the exclusion of certain people from church asylum. Christian empathy is replaced by impersonal and codified administrative procedures. Thus, by formalizing usurpation, state actors set up rules of interaction that are intended to channel the churches’ usurpationary actions and make them controllable. Sanction criteria can be built in through these formal procedures. If the agreed formal procedure is violated, state actors can sanction the church actors. While evictions of church asylums have often been the subject of scandal and associated with high costs for public administrations, sanctioning deviations from formally recognized procedures is less costly and can also be used to criminalize the churches. The recognition and formalization of acts of usurpation is therefore a control technique with which state actors penetrate the usurpation and turn it

50  Max Oliver Schmidt into a more bureaucratic act. Rule structures are created ‘which help to constitute and regulate activities, defining them as activities of a certain sort and as subject to a given range of sanctions’ (Giddens, 1984, p. 87). Usurpation is formally recoded by the state actors. Due to the formal procedures, the churches reproduce state decision-making logics in their actions and thus no longer have a genuine ecclesiastical understanding of the world and thus limit the usurpation itself.

Conclusion: The (im-)mobilized subaltern-class By excluding refugees from the asylum procedure, state authorities try to restrict processes of solidarization. At this level of conflict, exclusionary actions prevent a formal solidarization between the host society and the refugees since the refugees cannot interact with public administrations and the host society. Thus, formal solidarity can only be created through interaction between the refugees and the administrative organization, which leads to temporary and gradual membership in the (supra)national community. However, the interactions that lead to a formal solidarity can only be achieved if refugees and public administrations are co-present and available to each other. It is through co-presence that the reciprocal administrative practices of asylum hearings take place. The exclusionary action of the EU and its Member States aims to avoid this co-presence of public administrations and refugees. The European exclusionary strategies, therefore, immobilize entire groups of people, i.e. refugees, both physically and administratively, so that they cannot participate in the rights of a host society. As a result, the EU is creating a new subaltern-class of immobile and exploitable people: refugees who are not visible for democratic institutions and its administrative actors – think of the workers in the southern Italian agricultural industry or sex workers (Campani, 2009). This hidden subaltern-class is not only exploited but also eliminated from the public discourse of the democratic society. Techniques of administrative exclusion prevent the refugees from gaining access to rights and public goods, leaving them administratively invisible and increasing their vulnerability. Non-state actors help to overcome these barriers to mobility by making the refugees visible to the host society and its administrative actors. The usurped administrative act becomes an essential moment that enables initial participation in essential rights and guarantees administrative-legal mobility and visibility. The usurpation now forces the co-presence of state agencies and refugees. Through usurpation, copresence and presence-availability are produced in order to overcome exclusion. The usurpationary act re-positions the refugees and brings them together with the state organizations in a social event (asylum procedure), clarifies the responsibility for carrying out the asylum procedure, and revises an old asylum decision. The formerly territorially and administratively separated actors are brought together in centred interactions (asylum hearings) under co-presence at the place of the organization (administrative act). Both sides enter an interaction. Through this interaction the refugee can formally change their status and become a gradual and visible member of the host society. However, church asylum is restricted by processes of formalization by state actors and in part becomes a bureaucratic act itself. It is

Church asylum as ultima ratio  51 therefore increasingly difficult for churches to usurp the asylum procedure and to fight for opportunities for refugees to participate in democratic societies.

Notes 1 The chapter is based on the findings of my PhD dissertation Seenotrettung und Kirchenasyl. 2 The concept of social closure can be traced back to Max Weber, 1980, pp. 23–25, 201–203. 3 Since 2015, more than 15,000 refugees have died in the Mediterranean; UNHCR, 2018. 4 The concept of solidarization is based on Parkin’s concept of solidarism, see Parkin, 1974, pp. 9–10. 5 Duldung is not a residence permit, rather it is the suspension of deportation. The migrant is still obliged to leave the country but is not allowed to be deported by state authorities; Finotelli, 2007. 6 I conducted narrative-episodic interviews with pastors and monks of parishes, monasteries, and religious congregations in Germany and Italy between 2015 and 2018 as part of my PhD dissertation. 7 The biblical law on asylum and foreigners is a compilation of texts in the bible that deals with the ‘absolute legal protection for strangers and refugees … as divine law’ (Crüsemann, 2003, p. 31). 8 Both the Catholic and the Protestant churches have changed their mission statements. With the Second Vatican Council, the Catholic Church turned away from anti-modernism and declared itself the defender of human rights. The Protestant Church has turned away from a strict obedience to authority with the ‘Democracy Doctrine’ and sees itself as a defender of democratic rights.

References Anderson, B. (2016). Imagined communities: Reflections on the origin and spread of nationalism. London: Verso. Campani, G. (2009). Trafficking for sexual exploitation and the sex business in the new context of international migration. The case of Italy. South European Society and Politics, 3(3), 230–261. Colombeau, S. C. (2017). National origins of Frontex risk analysis: The French border police’s fight against filières. In J. Mackert & B. S. Turner (Eds.), The transformation of citizenship: Volume 2: Boundaries of inclusion and exclusion (pp. 101–115). London: Routledge. Crüsemann, F. (2003). Das Gottesvolk als Schutzraum für Fremde und Flüchtlinge: Zum biblischen Asyl- und Fremdenrecht und seinen religionsgeschichtlichen Hintergründen. In W.-D. Just & B. Sträter (Eds.), Kirchenasyl: Ein Handbuch (pp. 31–49). Karlsruhe: von Loeper Literaturverlag. Dethloff, F., & Mittermaier, V. (2011). Wie geht Kirchenasyl? In F. Dethloff & V. Mittermaier (Eds.), Kirchenasyl: Eine heilsame Bewegung (pp. 38–48). Karlsruhe: von Loeper Literaturverlag. EU Migration and Home Affairs. (2018a). External borders fund. European Commission, Migration and Home Affairs. Retrieved from https://ec​.europa​.eu​/home​-affairs​/ financing​/fundings​/migration​-asylum​-borders​/external​-borders​-fund. EU Migration and Home Affairs. (2018b). International affairs: Global approach to migration and mobility. European Commission, Migration and Home Affairs. Retrieved

52  Max Oliver Schmidt from https://ec​.europa​.eu​/home​-affairs​/what​-we​-do​/policies​/international​-affairs​/global​ -approach​-to​-migration. EU Migration and Home Affairs. (2018c). Legal migration and integration. European Commission, Migration and Home Affairs. Retrieved from https://ec​.europa​.eu​/home​ -affairs​/what​-we​-do​/policies​/legal​-migration​_en. EU Parliament. (2014a). Directive 2014/36/EU of 26 February 2014 on the conditions of entry and stay of third-country nationals for the purpose of employment as seasonal workers. Retrieved from https://eur​-lex​.europa​.eu​/legal​-content​/EN​/TXT​/PDF/​?uri​ =CELEX​:32014L0036​&from​=DE EU Parliament. (2014b). Directive 2014/66/EU of 15 May 2014 on the conditions of entry and residence of third-country nationals in the framework of an intracorporate transfer. Retrieved from https://eur​-lex​.europa​.eu​/legal​-content​/EN​/TXT​/PDF/​?uri​=CELEX​ :32014L0066​&from​=DE. Finotelli, C. (2007). Illegale Einwanderung: Flüchtlingsmigration und das Ende des NordSüd-Mythos. Berlin: LIT verlag. Giddens, A. (1984). The constitution of society: Outline of the theory of structuration. Cambridge: Polity Press. Hansen, P. (2005). A common market, a common ‘problem’: Migration and European integration before and after the launching of the single market. ThemES: Occasional Papers and Reprints on Ethnic Studies, 27, 1–42. Hess, S., Heimeshoff, L.-M., Kron, S., Schwenken, H., & Trzeciak, M. (2014). Einleitung. In L.-M. Heimeshoff & S. Hess (Eds.), Migration, Kontrolle, Wissen: Transnationale Perspektiven (pp. 9–39). Berlin: Assoziation A. Klepp, S. (2011). Europa zwischen Grenzkontrolle und Flüchtlingsschutz: Eine Ethnographie der Seegrenze auf dem Mittelmeer. Bielefeld: Transcript. Laube, L. (2017). ‘Asyl fängt erst an, wenn er [der Flüchtling] wirklich hier ist’: Der Wandel europäischer Visapolitik und seine Implikationen für den Zugang zu Asylverfahren in der EU. In C. Lahusen & S. Schneider (Eds.), Asyl verwalten: Zur bürokratischen Bearbeitung eines gesellschaftlichen Problems (pp. 55–78). Bielefeld: Transcript. Mrozek, A. (2017). Joint border surveillance at the external borders of ‘fortress Europe’: taking a step ‘further’ with the European border and coast guard. In S. Hess, B. Kasparek, S. Kron, M. Rodatz, M. Schwertl, & S. Sontowski (Eds.), Der lange Sommer der Migration (pp. 84–96). Berlin: Assoziation A. Ortmann, G. (2015). Organisation, Wirtschaft und Gesellschaft. In M. Apelt & U. Wilkesmann (Eds.), Zur Zukunft der Organisationssoziologie (pp. 95–108). Wiesbaden: Springer Fachmedien Wiesbaden. Osservatorio Placido Rizzotto. (2014). Agromafie e caporalato. Secondo rapporto. Roma: Lariser Ediesse. Parkin, F. (1974). Strategies of social closure in class formation. In F. Parkin (Ed.), The social analysis of class structure (pp. 1–18). London: Tavistock Publications. Parkin, F. (1979). Marxism and class theory: A bourgeois critique. New York: Columbia University Press. Schneider, S., & Wottrich, K. (2017). ‘Ohne ’ne ordentliche Anhörung kann ich keine ordentliche Entscheidung machen…’: Zur Organisation von Anhörungen in deutschen und schwedischen Asylbehörden. In C. Lahusen & S. Schneider (Eds.), Asyl verwalten: Zur bürokratischen Bearbeitung eines gesellschaftlichen Problems (pp. 81–115). Bielefeld: Transcript. Semsrott, A. (2017). Kalte Regeln: Die Flüchtlingspolitik der Europäischen Union verhindert Solidarität. Le Monde diplomatique (German edition), October 23, 6–7.

Church asylum as ultima ratio  53 Steinert, H. (2004). Schließung und Ausschließung: Eine Typologie der Schließung und ihrer Folgen. In J. Mackert (Ed.), Die Theorie sozialer Schließung: Tradition, Analysen, Perspektiven (pp. 193–212). Wiesbaden: VS Verlag für Sozialwissenschaften. Tilly, C. (2005). Identities, boundaries, and social ties. Boulder: Paradigm Publications. UNHCR. (2018). Operational portal. Refugee situations. Mediterranean situation. Retrieved from http://data2​.unhcr​.org​/en​/situations​/mediterranean. United Nations. (1951). Convention relating to the status of stateless persons. Bundesgesetzblatt, 19, 559–589. Walzer, M. (2006). Sphären der Gerechtigkeit: Ein Plädoyer für Pluralität und Gleichheit. Frankfurt: Campus Verlag. Weber, M. (1980). Wirtschaft und Gesellschaft: Grundriss der verstehenden Soziologie. Tübingen: Mohr, J.C.B. (Paul Siebeck). Wimmer, A. (2005). Kultur als Prozess: Zur Dynamik des Aushandelns von Bedeutungen. Wiesbaden: VS Verlag für Sozialwissenschaften.

3

Migration and democracy Reclaiming democracy from its nativist/ nationalist closure1 Özge Yaka

Introduction Democracy has a bad habit of resisting discursive closure. No matter how hegemonic its spatio-temporal connotations are, it continues to inspire other ways of organizing society and politics, as manifested in demands and slogans such as, to name just one example, ‘Democracia Real YA!’, the main slogan of the 15M movement in Spain. ‘Real Democracy NOW’ was a common demand of the so-called square movements of the previous decade, raised against the neoliberal closure of democracy, famously branded ‘post-democracy’ by Colin Crouch (2000). This resistance of the notion of democracy to complete closure, e.g. against its synonymity with free market economy cum regular elections, is rooted in the origins of the term which is derived from the words demos (people) and kratos (power) and the historical heritage it represents (see, e.g., Agamben et al., 2011). This article argues that the origins and political histories the concept of democracy stands on provide a firm ground to resist the attempts at its current nativist/ nationalist closure, crystallized in rise of right-wing populist leaders and movements, anti-immigration attitudes, and ‘zero tolerance’ immigration policies in and beyond the Western world. Contesting the attempts to reduce the concepts of democracy and demos to strictly limited or ethnically defined populations, the article develops a political argument that relates democracy and migration, which have been represented as opposite poles within the current political map defined by the populist surge. It is, in this regard, striking that the anti-migration camp frames migration as a political issue while the pro-migration camp tries to de-politicize it, employing the realm of morality and law, which are supposed to stand above politics. Considering the prolonged state of exception we are living in today in terms of the normalization of violent border regimes,2 it is understandable that resistance to such border regimes and regular undermining and/or disabling of legal and moral codes, regulations, and obligations takes the form of defending universal norms of humanity and law. Such a strategy to raise the issue of migration above the political realm aims to protect certain principles – of human rights, of solidarity, cooperation, and hospitability – from the shifting tendencies of everyday politics

Migration and democracy  55 in which ‘the interests of the nation’ are increasingly defined in contrast to the rights of ‘outsiders’. To insist on the deeply political dimension of migration does not mean to negate the necessity of moral codes, or that we should not engage in their defence. To build the discussion entirely on morality and law, though, could be counterproductive as it might come to imply that the actions of immigrants and/or refugees can only be justified by pure emergency, which can only be responded to by charity, as in Adam Smith’s theory of the ‘moral sentiment’. Our moral feelings of empathy, and thus our willingness to help, are then regulated by the degree of emergency, as well as responsibility, we can attribute to someone in need (see, also, Boltanski, 1999). This is most evident in the semantic struggle between anti- and pro-migration camps regarding the use of the terms migrant and refugee. The usage of the term ‘migrant’ itself has become an indicator of anti-immigrant attitudes, while usage of the term ‘refugee’ is seen as an indication of a proimmigration view.3 Migration advocacy has fully adopted the nowadays dominating notion that migration can only be fully legitimate when it appears to be unintentional (Karakayali, 2019). The political semantics of migration terminology result eventually in a dichotomy between ‘migrants’, who possess human agency and subjectivity on one side, and ‘refugees’ on the other side, who possess little of that agency, they ‘have no choice’. With these complementary lines of flight, the political camps operate by trying to fully cover all migration with one of the terms – such that for most activists of the issue almost every migrant is a refugee, and vice versa. Beyond such semantic struggles, it might be useful to understand how such norms are built on political struggles and social relations – and the dimension of power, implicated in them – to defend moral and legal norms that protect the rights of migrants and refugees. The argument I want to unfold in this paper is that there is a fertile conceptual ground on which the issue of migration could be discussed in relation with the political and philosophical histories of democracy and demos, against the present representation of migration and democracy as opposite poles. Before developing this argument, the article discusses different aspects of what I call the ‘nativist/nationalist closure of democracy’ in relation to rising antiimmigration anxieties and sentiments.

Anti-immigration anxiety and the nativist/ nationalist closure of democracy What I mean by a nativist/nationalist closure of democracy is the discursive and practical use of the existing democratic structures as an instrument of antiimmigration anxiety and sentiment, from electoral support to right-wing populist parties to anti-immigrant, xenophobic, and/or racist mobilizations. Not only the structure of democracy, but also democratic discourse is employed here, such as the discourse of rights and freedoms (freedom of speech, rights of whites, etc.) and narratives of power (of – the real – people).

56  Özge Yaka Anti-immigration mobilizations build on the widely accepted argument that the ability to control immigration is the fundamental signifier of national sovereignty. According to this argument, the so-called native population of the country should be able to decide ‘democratically’ whether to let people in or to leave them out (see, e.g., Simpson, 2016). Even those who are against the immediate implications of a nativist understanding of democracy agree that a functioning democracy requires a very strong sense of common identity and common bonds, established around shared values, history, and culture. It is consequently assumed that immigration and ethnic diversity reduce social solidarity, social cohesion, and civic trust (see, e.g., Putnam, 2007). Social bonds of loyalty, also very central to the German discussion, are assumed to produce high levels of trust, on which modern democracies depend to function properly. This way of thinking has a close affinity with approaches that associate democracy with national sovereignty, and liberalism with rule of law, rights, and freedoms, including human rights, as Chantal Mouffe does in her main works (see, e.g., Mouffe, 2005). The association of democracy with national borders and national sovereignty is of course an outcome of a historical process, a rather progressive one. It is a history of the progressive inclusion and integration of certain parts of the population, mainly of workers and women, into the structures of the ‘national social state’ (Balibar, 2004). As previously excluded sections of the society were integrated by mechanisms of social rights, welfare state structures, and political citizenship, the nation state was transformed from being a useful instrument in the economic organization of production and exchange to the primary unit of social and political life, relations, and struggles. The same goes for borders: Symbolically, the border also begins to represent more than a purely economic space, as it delineates the boundaries of the ‘nation’, insofar as the workers, who have become citizens, identify with the nation and consider the state and its apparatuses as ‘theirs’. (Karakayali, 2018) Within this historical context in which nation became a primary identity for large populations and democracy is reduced to a mechanism to exercise national sovereignty, demos becomes synonymous with the nation, which, in turn, fuels the nativist/xenophobic narrowing of demos which captures it ‘by a restricted definition of who the people really are’ (Taylor, 2017).4 This nativist outlook, which, according to Charles Taylor, is built into modern democracy, makes some scholars increasingly wary of democracy altogether. Nira Yuval-Davis represents this tendency, when she claims, in reference to Michael Mann and Michael Walzer, that ‘democratic regimes are much less able to tolerate ethnic diversity than empires’ (Yuval-Davis, 2019, p. 76). The nativist/nationalist closure of democracy operates with mechanisms, narratives, and historical trajectories that are certainly different from the neoliberal closure. Neoliberal and nativist closures of democracy, in this manner, represent two distinct, and sometimes contrasting, historical tendencies. However, these

Migration and democracy  57 tendencies can interact or intertwine as in the current conjuncture. One of the most fundamental ways these two tendencies interact is the production and utilization of feelings of powerlessness. As democracy has been increasingly defined and designed as a set of procedures which ensure the institutional regulation and effective functioning of free-market economies in the last few decades,5 the emphasis on participation and inclusion has shifted towards accountability and transparency. Consequently, the combination of the two basic ideas ‘free market’ and ‘free vote’ come to represent democracy altogether (Held, 1987; Crouch, 2000). This semantic reduction of democracy to a limited set of formalized procedures such as the free vote, secret ballot, rule of law, and competition between potential representatives has been instrumental in the production of the feeling of powerlessness. Such feelings are closely related with the fact that major parts of the population were reduced to passive spectators while the structures of state and society have been radically transformed. The feeling of powerlessness, a symptom of the post-democratic condition, has been successfully mobilized by right-wing populist movements and their nativist/ nationalist political narratives.6Albertson and Gadarian discuss the relationship between feeling powerless and feeling anxious, especially in the context of antiimmigration attitudes, in their book Anxious Politics: Democratic Citizenship in a Threatening World (Albertson & Gadarian, 2015). Clifford (2016) points at the core of this relationship in his review of Anxious Politics: anxiety is ‘an emotional response to one’s own well-being, particularly when feelings of powerlessness over the situation accompany that response’. Albertson and Gadarian demonstrate, through their empirical study on the effect of anxiety on information processing,7 how experimentally manipulated anxiety triggers biased learning about immigration, and systematically affects political beliefs and behaviour (Albertson & Gadarian, 2015). In other words, the more anxious people get, the more they support ‘protective’ policies against immigration. Consequently, ‘democratic politics’, in its formalized current form, becomes a site in which people respond to the perceived threat of immigration by supporting right-wing populist movements and by demanding hard borders. Another aspect of the interaction between neoliberal and nativist closures of democracy is represented by the well-known argument that relates constant material loss – the constant loss of what was previously taken for granted, i.e. of job security, social services and entitlements, and a certain way of life in general, that the ordinary citizen of a Western country has experienced in the last decades – and the rise of anti-immigration sentiments – that is manifested in the clichéd argument of ‘they take our jobs’, i.e. migrants entering the already competitive market for jobs, and draining the already scarce resources, services, benefits, etc. There are many versions of this argument, and Bauman (2016a) provides a wellframed version in his latest book: Strangers at Our Door. He argues that immigration anxiety, which fuels zero-tolerance policies along with their walls, detention centres, camps, and with all their wartime measures, is grounded in the primordial, cross-cultural association of the alien/stranger/outsider with uncertainty and

58  Özge Yaka danger – contextualized within the specific conditions of late neoliberalism. In other words, the age-old anxiety caused by the figure of the stranger is being reinforced by the increasing ‘frailty and precariousness’ of an important part of the population’s social standing and prospects (Bauman, 2016a). This is certainly a powerful argument, but historical and anthropological evidence contests Bauman’s thesis in two fundamental ways. The first one regards the theory of a trans-historic fear of the alien/stranger. Even though there is anthropological literature that shows to what extent aliens can be framed as enemies in certain cultures, the same literature also conveys the iniquitousness of hospitability in others (see, e.g., Stichweh, 2010). Others, such as Levi-Strauss, have demonstrated the importance or centrality of exogeneity as a fundamental cultural norm.8 Another point of contestation is concerned with the notion of an unmediated relationship between material loss and/or deprivation and the rise of xenophobic and/or anti-immigrant attitudes. We clearly see examples of how cultural, racial, and religious anxieties are intertwined with socioeconomic ones in many intriguing ways as the disenfranchisement Western populations have experienced in the last decades comes to be represented within the narratives of cultural and religious threat, of becoming a minority in one’s ‘own’ land. We also witness that when people are deprived of their sources of meaning, personal worth, power, dignity, and identity that were largely provided by life-long employment and the various forms of the lifeworld that accompanies it, ethnic/national/racial identities become the only reference of meaning, power, and worth, which are fed by fantasies of dominance and constant anxieties of losing that (assumed) dominance. However, it is not historically accurate to relate anti-minority, anti-migrant, or xenophobic sentiments only with disenfranchisement and/or with times of crisis. The scholarship on modern anti-Semitism, for instance, dates the beginning of its rise to the 1880s in Germany. This is not a time of decline – rather the opposite. But it is the time in which Jews are granted equal rights. The same goes for the emergence of the Ku Klux Klan. Then, supporters of such movements are – today as well as in the past – never primarily people who suffer from the most precarious of conditions. In contrast, such movements are often supported and carried by the middle classes. This is also a valid observation today, as from Brexit to the variously distributed successes of nationalist and chauvinist parties in Europe: there is no clear, linear correlation between socioeconomic precarization and antiimmigration sentiment. Hence, what is at stake here are symbolic losses, more than, or as much as, the material ones. Symbolic losses are very much related with the shifting social and symbolic hierarchies of ethnicity, race, and gender, in relation to on-going emancipatory struggles of black, indigenous, migrant, feminist, and LGBTI+ groups and communities since the 1960s. Such struggles have been transforming social structures and symbolic hierarchies, independent from the specific outcomes of specific struggles. Right-wing populist movements, in that sense, could be seen, not only, but also, as a reaction to strong claims to equality and recognition, which have been

Migration and democracy  59 shifting the balance of powers within many Western societies, not between capital and labour, but between different groups of populations – between the white/ male ideal type citizen and black people and people of colour, migrant populations, women, and LGBTI+ people. What might be more important than someone ‘taking your job’, in this regard, is the identity of the person taking it. The trend can be more clearly observed when it comes to anti-immigration sentiments. The framing of immigration as a threat, as a problem and as a source of anxiety very much depends on the country of immigrants’ origin and the colour of their skin.9 Brader, Valentino, and Suhay’s study conspicuously demonstrates this ‘selective’ character of anti-immigration anxiety. They have found out that immigration anxiety is triggered by ethnic and racial clues – not by a ‘cognitively based’ perception of harm as it is often represented: ‘Immigration attitudes seem rooted substantially in group identity and prejudice … news about potential threat of immigration will have larger impact on whites’ attitudes when the immigrants being discussed are non-white’ (Brader, Valentino & Suhay, 2008, p. 960). Once triggered, anxiety facilitates information seeking, alters immigration opinion, flares hostile attitudes and actions, and motivates political action (Brader, Valentino & Suhay, 2008).

Global forces, national borders One of the most important features of the current conjuncture, that is defined by increasing connectedness cutting across the realms of society, economy, ecology, politics, and culture, is that the processes shaping the lives of ordinary people ‘routinely overflow territorial borders’ (Fraser, 2009). This includes the very production of conditions, such as climate change, war, and poverty, that force people to migrate. Not just extreme conditions such as war and climate change but many different types of injustices that people are increasingly subjected to, wherever they live, often stem from or at least are affected by global structures, processes, and relations (see, e.g., Pogge, 2002). Adam Smith’s invisible hand affects citizens of immigration and emigration countries alike, albeit in different ways. The overwhelming forces of capital and finance appear as outsourcing, flexibilization, and increasing precariousness on one side of the globe, while they take on the form of armed conflict, the destruction of structures of reproduction, and environmental destruction on the other. When refugees and migrants are forced to leave their countries, their movements are connected with the populations in the countries of immigration in a mediated way, by such forces. Bauman claims that refugees and migrants are easily demonized as they embody these global forces, and all the insecurities they bring about: ‘In part, they bring the mysterious and obscure, but hopefully distant, horrors of “global forces” right into our visible and tangible neighbourhood’ (Bauman, 2016b). Wendy Brown makes a similar argument as she points out the close affinity between rising walls on the borders and diminishing national sovereignty, and claims that the desire for rising walls emanates from a perception of the national state’s vulnerability and

60  Özge Yaka permeability as one’s own. Such a perception of unboundedness, together with the feelings of insecurity, provides a solid ground for the fantasies of containment, protection, and homogeneity walls and rigid borders would secure (Brown, 2010). What is striking regarding this relationship between the forces of globalization, migration, and anti-immigration sentiments is the fact that the movement of people is the only element of global mobilities – of capital, things, information, images, cultural symbols, sounds, etc., – that the anti-migration camp, presented as ‘democratic citizenry’, contends to control. In a way, the anti-immigration sentiment is becoming a form of recuperation as it compensates for the utter powerlessness of the masses in democratic societies to control or change the structures and relations that affect their lives. Migration control is then something similar to a Freudian neurotic behaviour, in which the patient exerts something like ‘Ersatz’-control. By controlling immigration and securing borders the nativist ideology pretends to regain democratic sovereignty, to ‘get back control’. The areas and topics in which control has been lost (or has never been in place) vastly exceed the question of immigration, of course, and thus the idea of democracy as the people’s power to decide upon ‘how we want to live’ drastically shrinks from a general demand concerning modes of production, consumption, housing, health, or infrastructure to the decision-making capacity of a bouncer. In other words, powerless in the face of financial transactions and other forms of capital mobility which shape the conditions of their daily lives, ‘democratic citizens’ are eager to demonstrate ‘the power of the masses’ by closing the borders to those who escape war and/or absolute poverty. Claiming or articulating democracy as an instrument of its closure and of exclusive membership can neither build a resistance to ‘global forces’ nor be an antidote to the ‘de-democratisation of democracy’ (Brown, 2010), i.e. its neoliberal reduction. This is precisely the point Etienne Balibar makes when he maintains that a democracy that is reduced to preserve a certain definition of citizenship is incapable of resisting de-democratization. The implied violence of border regimes, the ‘permanent war’ against refugees and migrants (Mezzadra & Nielson, 2013) is only possible as ‘frontiers act as watersheds of perception’ (Beck, 2010, p. 167). Even though global forces and dynamics that shape our lives cut across borders, national boundaries draw a sharp distinction between what is politically and ethically relevant and what is not. And although increasingly challenged by pro-migrant activism and solidarity work done by many citizens of arrival countries,10 it is still a widespread belief that we are not responsible for those who remain outside of our national borders, even when they perish at our doorstep.11 Our intellectuals and politicians remind us that there is, ‘of course’, a big difference between our legal, political, and ethical obligations to members of the political community and to outsiders. This idea of non-responsibility, though, is effectively negotiated by the voices of migrants and refugees who are challenging borders, not only as physical fences but as political institutions and narrative constructs.

Migration and democracy  61

Migrants ante portas: Challenging the borders of the political community There is a close affinity between the function of national borders to define the limits of the demos and democracy and, thus, to draw the boundaries of perception, obligation, and political contestation, and the so-called ‘zero-tolerance’ policies. It is the tacit knowledge that when refugees and migrants are in, they will be able to construct themselves as political subjects, entitled to certain rights, even when they legally remain outside the realm of rights as non-citizens.12 In a way, refugees and migrants become a part of the political community by acting as citizens (Bojadžijev & Karakayali, 2007) independent of their legal status. Bonnie Honig, in her impressive essay on Immigrant America deals with the image of the immigrant as either a giver to or a taker from the nation, fuelling xenophilia and xenophobia, respectively, which can also feed into each other. Instead of trying to strengthen the image of the immigrant as a giver, which is the classical pro- immigration argument, Honig develops an argument that sounds counterintuitive at first. She maintains that taking is the very thing immigrants have to give us. The immigrant takes by exercising the rights of democratic citizens, even when they are not formally entitled to citizenship. Following Bonnie Honig, if we understand citizenship not only as a juridical status, but a civic practice ‘in which residents press political and economic institutions to act responsibly in the world’ (Honig, 1998), it becomes clear how the citizenship practices of non-citizens make them, de facto, a part of the demos. They become a subject of democratic contestation, i.e. a part of demos, even if they are formally excluded from political membership in a state, by negotiating, in the words of Benhabib (2004, p. 20), the ‘complex relationship between full membership, democratic voice and territorial residence’. This capacity of the ‘aliens’ to act as citizens, to ‘infiltrate’ into the political community and to remake the demos, is the underlying rationale of increasingly violent measures to keep migrants and refugees at a spatial distance. So-called measures of externalization aim at keeping refugees in remote places, often in border zones or on islands. From Libya to Mexico, immobilizing migrants in camps at borders and even in ships in the Mediterranean is seen as the only way to prevent them from acting as political subjects, which could result in an expansion of the political community and the democratic sphere. However, as much as the border discourse likes to represent borders as insurmountable walls, they are not fixed entities but sites of encounter and contestation, being re-figured constantly through ‘border struggles’, not only by nation states and their claims to absolute institutional sovereignty, but also by the actions of migrants at the borders who risk their lives crossing them. In that sense the immigrant at the border, in addition to the immigrant who resides within the territorial borders, also becomes a subject of such contestation (Hess & Karakayali, 2018). What such border struggles challenge, contest, and negotiate is, first and foremost, the exclusivity of rights, freedom, and equality. Contesting the exclusivity of rights, freedom, and equality to a certain limited group of people – property

62  Özge Yaka owners, men, white people, heterosexuals, etc. – is the basis of all the emancipatory struggles from the working-class movement to feminist and LGBTI+ struggles, to the struggles of minorities and indigenous populations, black people, and people of colour. In this sense, the concepts of equality and freedom have the ‘bad habit’ of inspiring the excluded, those who are not entitled to such equal rights and freedoms. Etienne Balibar claims, in his inspirational book on the concept of equaliberty, that what makes the Declaration of Rights of Man and Citizen of 1789 inspirational and ‘insurrectional’ is its implication of universality, of rights and freedoms. The Declaration of Rights, Balibar states, represents the word ‘that immediately escaped the control of their authors’ (Balibar, 2014, p. 43). What escapes the control of its authors, i.e. of the bourgeois revolutionaries, is the attempt to unify the universal, inalienable but virtual rights of man and the positive, effective but restrictive rights of the citizen. The universality lies within this attempt, which provides a conceptual and political ground to extend the rights of the citizen beyond its exclusive and restrictive domain. Such a pursuit of extension, though, is not just an issue of legal, moral, and ethical domains. Expanding the realm of equal rights and freedoms and/or universalizing them by designating and targeting the gap between the existing institutional structures and the ‘universally political signification of the rights of man’, is an issue of social and political struggle. The principal target of such a struggle to claim the universality of rights should be asserting rights to claim rights, the ‘right to have rights’ in Arendtian terms, which corresponds to the rights to existence in the language of the Declaration of Rights. Refugees and migrants at our borders – be it the Latin American migrant caravan or African migrants escaping dire poverty and violence or the Middle Eastern refugees escaping the civil wars – perform their rights to claim rights, their right to exist. They enact their rights to equality and freedom, even though they are not ‘entitled’ by virtue of birth and nationality. Freedom of movement, as we all know, is a freedom of the entitled – by virtue of birth or status. And those who attempt to cross borders, who risk their lives for an act that is so banal and mundane for others, enact their equality to those others who are entitled to safer lives. They assert their freedom to move, as a means of their right to have rights and right to life, by escaping war, different forms of violence and instability, famine, or poverty, which are, more often than not, generated by transnational political, economic, and military processes often involving the countries they are escaping to. Take Hermann Sibahi, who was 1 of the 43 people rescued by Sea-Watch 3 and had to remain on board for days, as an example. He concisely articulates the principles of equal rights and freedom in a short video message to the European public. After describing the conditions that forced him to flee and everything that happened to him on the way, including being tortured in Libya, he says: You enact laws to prevent us to cross your borders. But where should we go, then? We should live in the same way as our brothers, our friends. We should live our lives as you are. We have the right to freedom too, like the others.13

Migration and democracy  63 Hermann Sibahi and others are not only attempting to cross the territorial borders of Europe; they are also crossing the borders and limitations of a European political community by virtue of their political subjectivity, by asserting their right to equality and freedom. Their political act destabilizes the exclusive practices of democracy and the strictly limited definitions of demos.

The composition of demos and the migrant as the demos-to-come When the question of democracy is tied to the notion of demos – i.e. the common people, the populace, the political subject of democratic rule – then demos stands at the core of this discussion on migration and democracy. But what really is demos? The central argument that defines the main contours of the discussion is that the demos should necessarily be limited. The definition of the demos has changed from ancient Greece onwards, but the argument that it should be strictly restricted remains. As the organizational unit of democracy is, and remains, the nation state, the modern conception of the demos comes to be defined as, more or less, a group of people who inhabit a defined territory and who form a political community. In times of insecurity popular pressure grows to further restrict and limit demos (Gvosdev, 2015). Limiting demos to an entitled group of people – in the case of the national definition of demos to a group of people entitled by the virtue of being born into a particular nation, in a particular geographical location – goes against the very historical composition of demos in the last centuries. The history of its composition is a history of expansion through struggles that have challenged different criteria of entitlement. As is well known, the criteria are not fixed and stable but shift in different spatio-temporal contexts. Hence in different historical and spatial contexts to be included in the demos might also depend on being born into a particular race, class, and gender. Changes in the criteria of entitlement are a result of the history of the struggles of the excluded, which re-shape and re-configure the demos resulting in historically different compositions of the demos. Such a history of re-composition is in line with the original imaginary of demos, as Rancière discusses in reference to Plato’s definition, as the great beast, which occupies the stage of the political community (Rancière, 1995). According to this definition demos is not the entitled, but the opposite: those who are not entitled and not counted, those who have no part and no means. Demos, from such a perspective, is not a community with clearly defined boundaries; it is exactly the opposite of what Rancière calls ‘the fiction of community’. It is the notion of people, as a political body, which is essentially incomplete (Balibar, 2014). Demos is re-assembled again and again with the invention of an unpredictable subject – the plebs, the woman, the slave, the black, the colonial subject, the refugee, the migrant – the uncounted, the part who has no part, that was pushed out of the public sphere, rendered invisible and inaudible. The uncounted invents itself as a defining element of the demos by enacting the principle of equality, ‘starting from the point of view of equality, asserting equality,

64  Özge Yaka assuming equality as a given, working out from equality’ (Rancière, 1995, p. 52). It means exercising the rights that states refuse them, by acting as political subjects, as citizens, as demos. By taking that seat, which is reserved for white people; by crossing that border, which is invisible for the entitled citizen. The nativist reduction of democracy legitimizes itself with the exclusivity of demos, building on the idea that democracy can only function when the political community is bounded by a common history, memory, morals, and fate. Only such a political community, organized around the principle of ethnos, it follows, could produce high levels of trust, loyalty, solidarity, and belonging in which democracy could survive and thrive. Demos, however, is not equal to ethnos and/ or nation. It is not even equal to the sum of its (existing) citizens. What demos represent is not the state, territory, or sovereignty – it is the idea of ‘the universal within the political field’, the universality of equal rights to live and to rule. Demos, hence, is not simply a well-designated and limited group; is the ‘absent people’14 to be invented through political action. In this sense, the migrant ante portas, who becomes a subject of democratic contestation in her/his claim to equality and freedom, is the demos-to-come.

Conclusion: Migration and the promise of democracy In addition to its crucial role in the creation of economic welfare in the Global North, migration has been a defining feature of te constantly changing composition of contemporary societies, and their structures: Migration does not indicate the sum of all migrant individuals, nor their spatial movement or subjective ‘motive’ for migrating. Rather, migration refers to a subcutaneous reconfiguration of social life. In this sense, migration is an active transformation of social space and a world-making practice. (Karakayali, 2018) Can democracy, as a tool of nativist/nationalist politics and anti-immigration anxieties, be represented as the opposite pole of migration? It is, as the discussion above demonstrates, historically, politically, and philosophically problematic to reduce democracy to a mode of government within a restricted territory that is ‘protected’ by militarized borders. The struggles that shaped the historical composition of the demos represent democracy as a practice of the non-entitled to contest what Rancière calls the existing ‘distribution of the sensible’ (Rancière, 2004). Balibar also counters the use of democracy to preserve the existing borders and entitlements with an idea and practice of democracy that invents new rights, new subjects, and new institutions (Balibar, 2014). Democratic inventions ‘transform existing realities, adapt them to changing environments’ and ‘formulate alternatives’. Against the current attempts at shrinking the demos, any democratic invention aims at expanding not only the borders of the political community, but also of justice and rights. Seyla Benhabib’s concept of ‘democratic iterations’ indicates

Migration and democracy  65 a similar process, of ‘rendering the distinctions between “citizens” and “aliens”, “us” and “them”, fluid and negotiable’, through acts of the people ‘who critically examines and alters its own practices of exclusion’ (Benhabib, 2004, p. 21). Democratic iterations are about reclaiming, reappropriating, and reiterating the expansive, participatory, and inclusionary ideals and principles of democracy, which have been buried deep under the neoliberal and/or nativist waves of dedemocratization, to challenge the current definition and composition of the demos. It is important in this particular historical conjuncture to revive the spirit of democracy as a necessarily open form of political association, the borders of which are perpetually expanded by democratic practices of those who are at the margins of society. Democracy is about the expansion of the public sphere, the inclusion of new participants, new spaces, and new relations, that were left out before. This is why it is difficult to exclude the excluded permanently and sustain ‘democratic regimes’ behind giant walls and closed borders. Democracy inevitably regresses to autocracy or oligarchy when it loses its expansive, inclusive promise. Contrary to the narrative that democracy can only be national and nationalist, the promise of democracy lies within its potential to go beyond the telos of nation and territory. Migrants’ democratic acts of citizenship, which is not bounded by nationality and territoriality, unveil such a potential. To finish with the words of Bonnie Honig: The democratic aspect of the myth (the myth of immigrant America – ÖY) lies not in its aspiration to tell a story of ever broadening national inclusion but in its character as a history and a continuing present of empowerment, a story of illegitimate demands being made by people with no standing of making them. Because the myth of an immigrant America is a narrative of demands made by outsiders, it is not just a nationalist story; it is also, potentially, a myth of denationalization. (Honig, 1998, p. 18, emphasis in original)

Notes 1 This article builds on my paper titled ‘The Migrant and the Demos: Democracy in the Age of Anxiety’ presented at the ‘Conditions of Democracy and the Fate of Citizenship’ Conference organized by the Centre of Citizenship, Social Pluralism and Religious Diversity, University of Potsdam, 11–13 July 2019. I would like to thank all the attendees of the Migration session for their questions and comments and to Serhat Karakayali for his careful reading and extensive comments on the first draft of this article. 2 As manifested in the criminalization of rescue activities for refugees and migrants in the Mediterranean or the detainment of children, separated from their parents at the US–Mexico border – to only name two recent examples. 3 A study of the Visual Social Media Lab in the UK employed the terminology to study the impact of certain media events on attitudes towards migrants in social media (Vis & Goriunova, 2015). 4 To illustrate the widespread political and discursive effect of the nativist narrowing of demos and the closure of democracy, one could remember that in 2009, a group of activists, scholars, and intellectuals wrote a public declaration of dissent in the face of the frightening success of figureheads of right-wing populism such as Thilo Sarrazin. The former Berlin senator of finance authored the best-sold non-fiction book in the his-

66  Özge Yaka tory of postwar Germany, arguing with reference to crude genetic concepts that Muslim immigrants will bring about the decline of Germany. The newspaper, which agreed to publish the public declaration, objected to the title that the activists had chosen: ‘Democracy, not Integration’. The editors intuited that such a headline would suggest the opposite of what the authors intended and changed it to ‘No to exclusion’. The decision of the journalists might serve here simply as an indicator of the ideological landscape of concepts, in which ‘integration’ is the catchword for advocates of immigrants, while ‘democracy’ is linked to the ‘populus’ of right-wing populism. Migrants belonging to the demos and thus being able to claim rights in the framework of democracy seemed too remote an idea even for a liberal newspaper. 5 The legal and institutional architecture of the second phase of neoliberalization, marked by financial liberalization, free movement of capital, and financial integration, mainly constructed under the name of democracy and democratization especially in the semiperipheral countries of Eastern Europe is a perfect example of how the discourse of democracy and democratization is instrumentalized in the process of institutionalization of the free market economy and financial liberalization. Turkey sets another example of this. 6 The cumulative effect of those movements is not limited by their own weight; they often succeed in forcing the mainstream right to incorporate nationalist-populist narratives on migration into their agenda (Campani, 2019). This paper will not discuss right-wing populism in detail, as there are numerous studies from many different perspectives (see, e.g., Fitzi, Mackert & Turner, 2019). 7 Albertson and Gadarian gather empirical data by the use a web-based information board, which allows them to keep track of the headlines the informants click and the articles they spend time reading. 8 Recent studies in genetic variety show how widely established the practice of exogenic marriage must have been in geographies spanning from Anatolia and Mesopotamia to the Caucasus. Apparently some thousand years in the past, culturally distinct groups ceased to be simultaneously genetically distinct (https://www​.sueddeutsche​.de​/wissen​/ archaeologie​-tuerkei​-mord​-1​.4940394). 9 There is also this implicit agreement to differentiate immigrants, in terms of their countries of origin and skin colour, as expats and migrants. In the German context, for instance, you don’t get to be defined as an ‘expat’ despite your ‘high’ skills and education if you are coming from the Middle East, whereas European and North American people are called so, even when their levels of education are lower than the Middle Eastern ‘migrants’. 10 Such as the work of Sea-Watch that saves lives in the Mediterranean Sea and thus fundamentally challenges the status of the Mediterranean Sea as a death trap no one feels responsible for (https://sea​-watch​.org). 11 Around 35,000 people lost their lives while trying to cross borders in the six years between 2014 and 2020 according to the Missing Migrants Project (see https://missingmigrants​.iom​.int). While I was writing this chapter, yet another boat sunk in the Aegean Sea, near the coastal town of Cesme, not far from where I am from. The boat was carrying 19 people, 11 of them drowned, of which 8 were small children. The ratio is not exceptional, as the children, together with women, are the first to drown in the sea, first to freeze, first to die from sunstroke, from thirst, from starvation in the mountains and deserts. The coastal towns of Turkey – like many other places in the Mediterranean – have been hosting obscene exhibitions of remaining things – mostly of dead children, like the pink shoes of an unknown little girl, who now lies at the bottom of the Aegean together with thousands of other children (see https://www​.independentturkish​.com​/ node​/116406​/haber​/yeni​-alan​-kurdiler-ölen-göçmen-çocukların-ayakkabıları-kıyıyavurdu). 12 What the ‘sans-papiers’ movement did in France in terms of challenging the dominant accounts of political belonging and their outsider status by ‘making claims upon the communities which they are excluded’ (McNevin, 2006) could be seen as an example.

Migration and democracy  67 13 https://www​.youtube​.com​/watch​?v​=7EfT7iSurJI. 14 Balibar uses the term ‘absent people’ in reference to the work of Deleuze and Guattari (see, Balibar, 2014).

References Agamben, G., Badiou, A., Bensaid, D., Brown, W., Nancy, J. L., Rancière, J., Ross, K., & Žižek, S. (2011). Democracy in what state? New York: Columbia University Press. Albertson, B., & Gadarian, S. K. (2015). Anxious politics: Democratic citizenship in a threatening world. New York: Cambridge University Press. Balibar, É. (2004). We, the people of Europe?: Reflections on transnational citizenship. Princeton: Princeton University Press. Balibar, É. (2014). Equaliberty: Political essays. Durham: Duke University Press. Bauman, Z. (2016a). Strangers at our door. Cambridge: Polity Press. Bauman, Z. (2016b). The refugee crisis is humanity’s crisis. Interview with Brad Evans. New York Times, May 2. Retrieved from www​.nytimes​.com​/2016​/05​/02​/opinion​/the​ -refugee​-crisis​-is​-humanitys​-crisis​.html. Beck, U. (2010). Remapping social inequalities in an age of climate change: For a cosmopolitan renewal of sociology. Global Networks, 10(2), 165–181. Benhabib, S. (2004). The rights of others: Aliens, residents and citizens. Cambridge: Cambridge University Press. Boltanski, L. (1999). Distant suffering: Morality, media and politics. Cambridge: Cambridge University Press. Bojadžijev, M., & Karakayali, S. (2007). Autonomie der Migration. 10 Thesen zu einer Methode. In TRANSIT MIGRATION Forschungsgruppe (Eds.), Turbulente Ränder. Neue Perspektiven auf Migration an den Grenzen Europas (pp. 203–209). Bielefeld: Transcript Verlag. Brader, T., Valentino, N. A., & Suhay, E. (2008). What triggers public opposition to immigration? Anxiety, group cues, and immigration threat. American Journal of Political Science, 52(4), 959–978. Brown, W. (2010). Walled states, waning sovereignty. New York: Zone Books. Campani, G. (2019). The migration crisis between populism and post-democracy. In G. Fitzi, J. Mackert, & B. Turner. (Eds.), Populism and the crisis of democracy, Volume 3: Migration, gender and religion (pp. 29–47). London: Routledge. Clifford, S. (2016). Review of anxious politics: Democratic citizenship in a threatening world. The Journal of Politics, 78(4), E15–E16. Crouch, C. (2000). Post-democracy. Cambridge: Polity. Fitzi, G., Mackert, J., & Turner, B. (Eds.). (2019). Populism and the crisis of democracy, Volume 1, 2 & 3. London: Routledge. Fraser, N. (2009). Scales of justice: Reimagining political space in a globalizing world. New York: Columbia University Press. Gvosdev, N. (2015). Migration, democracy and cosmopolitanism. Ethics & International Affairs. Retrieved from www​.eth​icsa​ndin​tern​atio​nala​ffairs​.org​/2015​/migration​ -democracy​-and​-cosmopolitanism/ Held, D. (1987). Models of democracy. Stanford: Stanford University Press. Hess, S., & Karakayali, S. (2018). Migration’s lines of flight. Borders as spaces of contestation. In M. Middell (Ed.), The Routledge handbook of transregional studies (pp. 416–423). Oxon: Routledge.

68  Özge Yaka Honig, B. (1998). Immigrant America? How foreignness ‘solves’ democracy’s problems. Social Text, 56, 16(3), 1–27. Karakayali, S. (2018). Borders. Krisis: Contemporary philosophy, Issue 2: Marx from the margins. Retrieved from https://krisis​.eu​/borders/. Karakayali, S. (2019). Helfen, Begründen, Empfinden. Zur emotionstheoretischen Dimension von Solidarität. WestEnd – Neue Zeitschrift für Sozialforschung, Special Issue: Helfen zwischen Solidarität und Wohltätigkeit, 101–111. McNevin, A. (2006). Political belonging in a neoliberal era: The struggle of the sanspapiers. Citizenship Studies, 10(2), 135–151. Mezzadra, S., & Neilson, B. (2013). Border as method, or, the multiplication of labor. Durham: Duke University Press. Mouffe, C. (2005). The democratic paradox. London: Verso. Pogge, T. (2002). World poverty and human rights: Cosmopolitan responsibilities and reforms. Cambridge: Polity. Putnam, R. D. (2007). E pluribus unum: Diversity and community in the twenty‐first century – The 2006 Johan Skytte prize lecture. Scandinavian Political Studies, 30(2), 137–174. Rancière, J. (1995). On the shores of politics. London: Verso. Rancière, J. (2004). The politics of aesthetics: The distribution of the sensible. London: Continuum. Simpson, T. (2016). Controlling immigration is good for democracy. Standpoint. Retrieved from https://standpointmag​.co​.uk​/issues​/september​-2016​/features​-september​-2016​ -thomas​-simpson​-brexit​-control​-immigration​-democracy/. Stichweh, R. (2010). Der Fremde: Studien zur Soziologie und Sozialgeschichte. Berlin: Suhrkamp. Taylor, C. (2017). Beatty memorial lecture. McGill University. Retrieved from https:// www​.youtube​.com​/watch​?v​=WqZ4vG3fbTw​&t​=2362s. Vis, F., & Goriunova, O. (Eds.). (2015). The iconic image on social media: A rapid research response to the death of Aylan Kurdi. Published by Visual Social Media Lab. Retrieved from https://research​.gold​.ac​.uk​/14624​/1​/KURDI​%20REPORT​.pdf. Yuval-Davis, N. (2019). Autochthonic populism, everyday bordering and the construction of ‘the migrant’. In G. Fitzi, J. Mackert, & B. Turner (Eds.) Populism and the crisis of democracy, Volume 3: Migration, gender and religion (pp. 69–77). London: Routledge.

Part 2

The violence of democracies

4

The violence of politics and the participation of citizens Jenny Pearce

Introduction The relationship of violence to politics remains unresolved, theoretically and in practice. This is apparent in our ongoing reliance on Hobbes and Weber, in particular, on the subject. The State has been seen as a means to manage violence through peoples’ consent to a State monopoly of its use, thus transforming our violent conflicts into non-violent political interactions and releasing our productive and creative talents. This was the original Hobbesian proposition in the wake of the English Civil War and the Thirty Years War in Europe in the seventeenth century (Hobbes, [1651] 2011). At the end of World War I in Germany, Weber added to the State monopolization of ‘physical force’1 the concepts of legitimacy and rational law-making and administration (Weber, 2010). Together, these assumptions about the State, politics, and violence have been remarkably robust and durable reference points. Steven Pinker attributes to the State and its monopoly on ‘force’ one of the ‘five developments that have pushed the world in a peaceful direction’ (Pinker, 2011, p. 680).2 In certain contexts, notably large parts of Western Europe, there is evidence that over the centuries, interpersonal male-on-male violence declined (Eisner, 2001). Norbert Elias (2005) added a great deal to the specificities of this decline, when he traced the ‘civilising process’ initially in terms of elite shifts in norms and behaviours and ‘affect control’. He never claimed that this process was linear and not reversible; both his parents died in Nazi concentration camps. In addition, extra-territorial, colonial, and inter-European wars and conquests accompanied/ were made possible by the State ‘monopolization’ process. Armies were funded by centralized taxation and replaced the warring followers of landowners with national State military capacity, as Charles Tilly has shown (Tilly, 1992). The measurement of declines in lethal violences by homicide rate3 gives a globally comparable (through counting bodies)4 but partial account of violence. Many expressions of violence persist in Western Europe and remain extremely high in many parts of the world.5 The problem is that we categorize and select the violences that matter, so that only violence understood to be ‘political’, because it challenges State authority, is usually recognized as impacting on politics. If violence is understood as a phenomenon with its own distinctions, this selectivity

72  Jenny Pearce does not make sense. All its expressions can be recognized as impacting on relationships between people and our capacity to act in/on the world. In that sense, violence and our efforts and failures to address it still constitute our imaginary of the role of the State and politics. The other less evident yet pervasive effect is that by invisibilizing so many violences and their impacts on the public sphere, it has become easy to transfer the experience of violence into cathartic leisure activities, such as sport and entertainment, where we are constantly reminded of violence without having to deal with its significance. For others, the fear of/experience of actual or potential violence and its conflation with criminality justify why they hand over so much power to the State. Or in the case of the US, citizens claim the right to retain arms as a defence against the State as well as other citizens, making the US a peculiar variant of the Weberian State. Punitive public policies are reserved for criminalized violences, often leading to prison systems which reproduce more violences and then justify political appeals to ‘law and order’. ‘Law and order’ remains a potent way to politically mobilize citizens behind the State throughout the world. This chapter argues that the classic texts in the Western canon of political and sociological thought do not adequately account for the way violence continues to qualify the nature of politics and the practice of citizenship, in either Weberian or what I call ‘perverse’6 (Pearce, 2010) processes of State formation. The ongoing importance of these texts is because the ontological assumption of the inevitability of violence in human relationships has become a ‘common sense’. Our selective approach to violence and failure to deal with its reproduction, however, still shape our expectations of the role of the State as well as relationships between states. It also remains within politics itself, either directly through threats to politicians7 or through the way social media has amplified intolerance, hate, and demonization or through varied trauma, revenge, and retribution cycles which impact individual subjectivities. And the State is deeply embroiled in these reproduction mechanisms, through action and/or inaction. This in turn perpetuates demands for a violence-monopolizing rather than violence-reducing State. It is time to review the premises behind these expectations around the State and politics. This must begin with a discussion about what we understand by violence and assumptions about its embeddedness in human nature. It must also include a review of evidence that we might have new means to address violence available to us. These means and new thinking about violence could enable us to rethink politics as a way to enhance citizen participation through the reduction of violence, in turn enabling citizens to act further on the conditions which generate it. The significance of such an enterprise gains urgency in the first decades of the twenty-first century, due to the shadow that Carl Schmitt, writing in the previous century in interwar Germany, has cast over it. His argument that the State becomes political when it identifies the ‘enemy’ (Schmitt, 1996) has been one of the most effective tools for eroding democracy8 and justifying State and citizen violences. As Schmitt’s homogenized imaginary of political community is challenged by demands from groups excluded for reasons of gender, race, ethnicity, sexuality, belief, so the backlash to these demands has been politically

The violence of politics  73 mobilized. The second part of the chapter will put forward the argument that the exercise of citizenship is severely limited in the world today by the use of violence, in ‘misrecognised’ (Bourdieu & Wacquant, 1992) as well as self-evident ways. Legitimacy, legality, democracy, and nationhood are poorly conceptualized in relationship to violence, but are vital to the exercise of citizenship as well as how we understand the State. Yet, if humankind is to resolve the global problems which reproduce violence without violence, and that are already with us or on the horizon (e.g. inequality, pandemics, climate change, environmental degradations), a more inclusive, active, socially conscious, and participatory citizenship, able to debate and promote timely action on these problems without fear, is an urgent necessity.

Theorizing and defining violence: A task to abandon? The ‘common sense’ of our natural inclinations to violence is what has granted the State a raison d’être as a bulwark against the chaos and disorder that many appear to fear more than loss of freedom. Even ardent libertarians seem to accept that logic. However, when we understand that aggression has biological roots and violence has social ones, it is possible to rethink this ‘common sense’. And as social action has visibilized and named violences previously not recognized as such, we see better how violence emerges and reproduces across the spaces of socialization, from the intimate, to the street to the school, to the prison to the public space and the construction of the nation State itself (Pearce, 2007). A poignant example of such social action is the mobilizations around Black Lives Matter, following the murder of George Floyd on 25 May 2020 in Minneapolis by the police. This not only highlighted police violence against the black population, but also that it could be addressed. While it has been deeply contested by many, the protestors’ call to ‘defund’ the police drew attention to the logics that lie behind investing so many resources in policing and the assumptions about who is being ‘policed’, and why we don’t invest as much socially and in mental health. We now know so much about the genesis of violence and its reproduction that we no longer need to base our theories of politics on our incapacity to address it. A politics without violence becomes a theoretical, as well as – albeit complex – a practical possibility. However, there is little agreement on what violence ‘is’. To what extent are the ongoing disagreements about theorizing and defining violence an obstacle to building these practical responses to it? Over the last decades there has been a huge volume of literature extending the idea of what constitutes ‘violence’, followed by efforts to narrow it again and then new debates on whether it is even worthwhile pursuing its ‘essence’ or making sense of ‘it’. It is very interesting to note the number of books (very important all of them) that focus on the ‘meaning(s)’ of violence (see Aijmer & Abbink, 2000, Stanko, 2003a, Lauwaert, Smith & Sternad, 2019, Rae & Ingala, 2019) or which embrace the problem of meaning and interpretation of violence (see Wieviorka, 2009, Schinkel, 2010, Ayyash, 2019). This literature has challenged the idea that ‘violence’ is reducible to selected ‘aspects’ (Schinkel, 2010), such

74  Jenny Pearce as war, pathology, or criminality. This has then opened up more debate about the tasks of theorizing and defining violence. Manuel Eisner (2009, p. 41) argued, in a special journal issue dedicated to exploring whether a theory of violence was possible (Karstadt & Eisner, 2009), that it was not, at least in a strong sense as a set of universal laws. However, a meta-theoretical framework is possible, the authors argue. It ‘should comprise a parsimonious set of general mechanisms that operate across various manifestations of violence’ (Eisner, 2009, p. 41). It should also give equal consideration to the role and functions of violence throughout the whole of human history and across the complete range of human cultures (Eisner, 2009, p. 55), rather than be ‘based on patterns of individual criminal violence, which can be observed in wealthy, well-ordered, state-controlled societies’ (Eisner, 2009, p. 55). Zahn, Brownstein, and Jackson (2015a) draw attention to the ongoing disconnect between theories of violence and research on violence. Like Eisner, they highlight the problem of theoretical assumptions that violence must be seen as a variation of crime or deviance, rather than a subject to be addressed on its own merits (Zahn, Brownstein & Jackson, 2015b, p. 255). They conclude that the multiple theories on violence are very difficult to integrate into a ‘parsimonious’ explanation – a goal they also share with Eisner – because each defines the phenomenon so differently, uses multiple levels of analysis, uses variables that do not cross between theories, differs in its underlying assumptions, and has distinct evidentiary bases (Zahn, Brownstein & Jackson, 2015b, p. 260). Theorizing, or less ambitious ‘meta theorizing’, appears to be an elusive task, although the discussion itself illuminates the ongoing challenges we face of thinking about violence, both through scholarly and disciplinary lenses and those of everyday life and experience. Is some kind of working definition more realizable? Stanko (2003b, p. 3) in one of the earlier texts on the ‘meanings of violence’ explains how the research team she worked with on prostitute and client violence, school, street, bar, and prison violence, and racist and homophobic violence never could agree on a definition of violence. She concluded that there can be no standard definition of violence and it can no longer be conceptualized as fixed, understood, or inevitable. Only through fluidity of definition is it possible to think creatively about ‘disrupting violence as a social phenomenon’ (Stanko, 2003b, p. 3). Zahn, Brownstein, and Jackson (2015b, p. 255) provide six dimensions of disagreement around definitions.9 One of the most influential working definitions of violence is that of the World Health Organization in 2002, when they began to frame violence as a public health issue. In doing so, they captured something of the shift towards a broader understanding of violence, in ways that for some extend it too widely (e.g. structural violence), but for others bring in dimensions which point to harms beyond physical injury, including harm from avoidable deprivation: The intentional use of physical force or power, threatened or actual, against oneself, another person, or against a group or community, that either results

The violence of politics  75 in or has a high likelihood of resulting in injury, death, psychological harm, maldevelopment or deprivation. (WHO, 2002, p. 4) Such a clear definition by no means resolves, however, the debates around how to think about violence. For example, Roodt (2019, p. 3) takes issue with the ‘semantic extension’ of what is included in ‘violence’. This represents, he argues, a form of analogic reasoning through conceptual metaphor, which actually makes it more difficult to make sense of violence. By applying violence to deprivation, for instance, we are assuming that violence is a normative concept which can be used as a kind of ‘moral currency’. In the same volume, Lauwaert problematizes the very possibility of defining violence, as this would require identifying the properties which characterize ‘all violence and only violence’ (Lauwaert, 2019, p. 29). He argues that violence lacks an ‘essence’ because it overlaps with so many other concepts, such as ‘aggression’. It is therefore a conceptual illusion to imagine that there is a common denominator between everything we call ‘violence’ as well as clear boundaries between ‘violence’ and ‘nonviolence’ (Lauwaert, 2019, p. 34). The best we can do, suggests Lauwaert, is make clear when you write about violence what you understand by it.

A violence thinking tool for rethinking politics and the State These debates about theorizing and defining violence are to be welcomed, as they are opening up unresolved but vital differences in the way we think about violence. Precisely because such debates will be ongoing, this author felt it more important to try and articulate a ‘thinking tool’ or ‘working definition’ of violence, which might at least offer an interim option for those who think that our inability to move forward on what violence ‘is’ is precisely why it remains a poorly recognized but deeply damaging part of our human interactions, including politics. This inability is also what encourages its use as a conceptual metaphor for the general application and amplification of varied forms of harm. In addition, it is possible today to distinguish ‘aggression’ from ‘violence’, and such a distinction brings us closer to recognizing the qualities of violence which distinguish it. Aggression is biological, part of the systems which our bodies have evolved in order to respond to fear and other emotions generated by threat. However, what emerges from the biologists, biochemists, neuroscientists, and others is not the biological reductionism of the last century, but rather a recognition of how experience, environment, and emotions intersect with the bodily experiences of, and responses to, threat that are stored in our limbic system. In the course of our social life, and beginning with our first relationship with our caregiver (Gerhardt, 2009), we face ruptures in our systems for dealing with threat and fear. Susan Gerhardt explores how affection in early life literally shapes the baby’s brain, and lack of it can do lasting harm. This coheres with longitudinal studies of babies to adolescents where a high risk of adolescent aggressive

76  Jenny Pearce behaviour has been identified (Tremblay, Hartup & Arcer 2005). Felicity de Zulueta, from the fields of psychotherapy, psychiatry, and biology, offers a pathway for unpacking the social behaviour we understand as aggression and distinguishing it from violence, which is the interpretation that is given to behaviour and which is determined by the social context in which we live (De Zulueta, 2006, p. 3). Violence, in other words, is giving a ‘meaning to a form of interpersonal behaviour’ (De Zulueta, 2006, p. 4). It is from the realm of meaning that the possibility of a thinking tool for violence emerges, one which enables further clarification rather than a definitive definition. An interdisciplinary trawl through varied knowledge systems reveals that far from being natural, like aggression, violence reflects the ruptures in our affiliative lives and the traumas that result. ‘Violence’ argues De Zulueta (2006, p. 344) ‘is not an innate biological instinct: it is the manifestation of both our disrupted attachment bonds and our shattered self’. Hurting the body of oneself or another is to express meaning in a way all societies understand, although the content of the message might differ culturally. At the same time, however, this does not necessarily lead to the conclusion that violence belongs only to the realm of means, i.e. it is only an instrument.10 Violence can generate its own sense. The journey toward clarification is greatly assisted by philosophers in the phenomenological tradition. This is because of their focus on problems of sense, meaning, and embodiment. In challenging the dualism between the ‘objective’ body and ‘subjective’ mind, phenomenologists brought embodied experience into our sense-making processes. And we begin to understand why we often ignore or downplay what it is telling us, until accident, sickness, or violation makes us listen. Even then, we appear to shy away from giving violence sense and we divert our fears of violence, originally through rituals, such as Rene Girard’s ‘sacrificial victim’ (Girard, 2013), and over time through entertainment and sport and the evolution of punishment, revenge, and in some contexts, the rule of law. However, our differential experiences of violence, notably across gender, generation, class, race, ethnicity, belief, and sexuality, have made it even more difficult to construct a shared understanding of violence. By acknowledging the somatic effects of violence on perpetrators, victims, witnesses, and audiences of violence, effects which include pain, pleasure, and even virtue (Fiske & Rai, 2015), we can locate the phenomenon in the meaning systems of our social relationships and constructions of self-hood. Violence exploits the vulnerability of our humanness, understood both as our capacity for sense making, for bringing meaning and value to the world, and as embodied, material objects in the world. And these meanings are generated through varied social relationships and social contexts. Violence not only conveys meanings to us as perpetrators, victims, witnesses, and audiences, but it also generates meanings. It is for the latter reason that to see it as an instrument is insufficient. Violence, for instance, provides a way of making sense of him- or herself for the perpetrator, as phenomenologist philosopher, James Dodd expresses it:

The violence of politics  77 However semantically unstable, potentially illusory, or questionable an act of violence may be, it often provides a real opportunity for coming to a conclusion about oneself that would not otherwise have been possible. (Dodd, 2009, p. 139) This helps explain what observers often call ‘senseless’ violence, such as suicide bombers, where you lose your life but in the process kill others. It also coheres with Fiske and Rai’s (2015) study of Virtuous Violence. These authors explore the psychosocial motivation and cultural validation of violence, and argue that violence is ‘intended to regulate relationships, and that perpetrators and most others perceive most of their relationship-regulatory violence to be consistent with their cultural rules’ (Fiske & Rai, 2015, p. 15). This, I would prefer to argue, is because harming the body of oneself or the other is a potent, effective, and universally recognisable means to communicate, and this is why my working definition of violence locates violence in our sense-making bodily selves with origins in our social body: Violence is meaning laden and generating acts or actions of somatic harm which potentially constitute, normalise and/or destroy social orders. (Pearce, 2020, p. 151) The first part of the working definition aims to encourage us to ‘face up to’ violence (Balibar, 2015, p. 24), as part of the way our biological bodies interact with the social relationships we construct and which in turn construct our social bodies and the significations we produce and reproduce. By confronting the implications of this, we could recognize the significations that harming our own and the other’s body bears, the suffering it creates alongside its long-term impacts on our subjectivities. This leads the way to their potential designification through a process of what I call ‘Emotional Enlightenment’.11 The second part of this working definition highlights the potential implications of violence to social orders and vice versa. The way we order our social relationships has and continues to involve a great deal of violence. Whether it is around ownership, gender, or race, violence has been a way of constructing meanings of social hierarchy and convention as well as policing their boundaries. Bourdieu and Wacquant (1992) rightly refer to the ‘misrecognition’ of the systematic and bodily harm experienced by women who are subordinated and humiliated into internalizing their sense of inferiority. The same can be said of the impact of slavery on the black population, for whom it has taken over a century and a half since its abolition in 1865 in the US for black people to coalesce around the humble demand: Black Lives Matter. And sociologists Cobb and Sennett (1972) entitled their book The Hidden Injuries of Class to highlight the emotional rather than material impacts of differentiation and validation in affluent societies. Recognition of these ‘symbolic violences’ is not to extend the conceptual metaphor as a moral currency. It is rather to recognize the actual harm to the

78  Jenny Pearce social body from our social orders. In addition, of course, there is the impact of direct violence, which bears and generates meanings particularly amongst males, who were responsible for 90 per cent of homicides in 2017 and constituted 81 per cent of homicide victims (UNODC, 2019, p. 23). While women and girls account for a smaller share of victims of homicide than men, they make up 64 per cent of intimate partner/family-related homicide and 82 per cent of intimate partner homicide. And when constructions of dominating forms of masculinity are correlated with poverty, as they are in urban Latin America, explanations for why homicide rates for adolescent males far outstrip the risks in other regions can be found.12 This quantification of the debate on violence, however, can take attention away from the important questions of who, and in what social contexts, experiences violences that blight lives but do not lead to death. It has enabled the notion to grow that violence is only about criminality and not about social ordering. The State monopoly of violence is ultimately a violence-ordering process for protecting social and political order, not for addressing the phenomenon of violence. This has limited our understanding of how violence constitutes such orders and the nature of the politics that emerges. Statistics can, of course, point us to some extent in that direction if the thinking tool is invoked. For instance, 80 journalists were killed in 2017, more than half in countries not affected by armed conflict, 40 per cent in Asia and the Pacific. The previous year, 34 per cent of global deaths of journalists had been in the Arab states, notably, Iraq, Syria, and Yemen, all of which were experiencing armed conflicts during that period (UNODC, 2019, p. 17). Killing journalists or wanting to kill them tells us a great deal about the ordering of society in order to preserve a certain kind of politics and dominating power. Many forms of non-lethal violence, however, require the victims to believe that they will get redress by denouncing it, in order to be counted. Others depend on that form of violence, e.g. child physical punishment, being acknowledged as violence, and then made subject to the law. Threatening or killing journalists would still not be seen as ‘acceptable violence’ in the US, although the President Trump tried to appeal to a section of the electorate who might agree it was acceptable in some circumstances.13 Recognition of violences in order to understand as well as quantify them requires new sensibilities to the role violence plays in all the socialization spaces, and its role in building and normalizing social orders, not only destroying them. It is precisely the link between the meaning-laden and -generating acts and actions of somatic harm and social orders that inform the limits to the exercise of citizenship in politics. Without a thinking tool that enables us to recognize that all violences matter to politics and the State, we will be guided by the assumption that once the State monopolizes violence and the political order is accepted as valid or ‘legitimate’ and is underpinned by legal rules, the problem of violence is solved. Violence exercised by the State, it is argued, then becomes ‘legitimate violence’. This, as Schinkel (2010, pp. 30–31) points out, is only made possible by virtue of ‘non legitimate’ private violence, and the modern State’s very existence is based on preserving this distinction.

The violence of politics  79

Violence and citizenship participation The appeal to ‘legitimacy’ and ‘legal rules’ was an important advance from the notion that the monopolization, centralization, containment, and punishment of violence by violence defines the State, still accepted in many parts of the world. However, serious questions remain in terms of the extent to which they have led the Weberian State to reduce violence (rather than focus on selected aspects) and enable citizenship. Legality and legitimacy are huge subjects. Given their importance to the idea of citizenship, it is telling how poorly they are conceptualized in relationship to violence rather than criminality and insurrection/subversion/ terrorism. It is only the exercise of citizenship on violence that exposes the problems (Pearce, 2017) as will be discussed further below. However, such exercise is paradoxically also limited by violence. Democracy and nationhood also enter the discussion; the former is often seen as the antithesis of violence. It has, by contrast, facilitated the recognition and claiming of rights. Nationhood defines who has these rights, often, however, creating non-citizens who can be denied rights and/or treated violently. This section discusses why all these concepts that matter greatly to the exercise of citizenship need to take account of the multiple expressions of violence that make it an ongoing vital part of politics. It also aims to explain why efforts to homogenize political community in the first quarter of the twenty-first century raise such serious issues for the fate of citizenship. Weber, in an uncharacteristically weak conceptualization, talked of ‘legitimacy’ as belief in the validity of a social order. Legitimacy has been reduced to a rather banal ‘social fact’. It is evidenced more by a negative than a positive acceptance of the order, i.e. the absence of a contestation to it – the dimensions of what would make it a challenge to ‘legitimacy’ are obscure. Weber believed that legitimacy must involve willingness, not be derived merely from fear or from motives of expediency (Weber, 2013, p. 37). The search for an independent way of assessing legitimacy has occupied a number of academics (see Beetham, 2013), but is still not resolved. Elections are not a fool-proof measure either of positive endorsement of the social and political order or a sense of inclusion within it. Elections take place in illiberal orders, and are subject to varied forms of manipulation, particularly in the digital age, as Russian use of social media platforms in the 2016 Trump election demonstrated. Nor do elections factor in the way fear of and/or experiences of violence shape subjectivities around being a ‘citizen’ and the right to ‘elect’ representatives. A perspective on political orders from the Global South, from Black Lives Matter, from the #MeToo movement, from the poorest where violence is experienced most directly, problematizes whether participation in elections meets even an ‘internal’ standard for confirming belief in the legitimacy of the political order (Bensman, 2014, pp. 356–357) or whether it constitutes objective evidence of a sincere belief in the legitimacy of the total system. The threshold for determining the latter is not available theoretically (Bensman, 2014, pp. 356–357). Many of these populations vote, without believing they are represented in the system. The Polish election of 12 July 2020 was partly at least fought over the rights of

80  Jenny Pearce the LGBT community. The election was won by Andrzej Duda, the socially conservative candidate allied with the nationalist ‘Law and Justice Party’, who in a campaign speech had called the promotion of LGBT rights an ‘ideology’ more destructive than communism (BBC News, 14 June 2020). A 2013 report on LGBT rights in Poland had already found that 12 per cent of respondents in 2010–2011 suffered some sort of physical violence motivated by homophobia; 44 per cent suffered some type of psychological violence including verbal aggression. Almost 30 per cent did not engage at all in the life of their community (Campaign against Homophobia, 2013). Does, then, the underpinning of the order by legality mitigate against any ambiguities in the relationship of the legitimacy of the State to violence, by establishing the rules and consequences of violating them? The rule of law and its gradual extension from protecting property rights and bringing a third party to adjudicate intra-elite conflicts, and over time, to regulating the lives of the poorer classes, was by no means a non-violent process. Subaltern struggles for rights were met by State violence throughout Western Europe’s long history of building a law-based State. Capital punishment was only abandoned in the twentieth century, not until 1969 in the UK. At the same time, the rule of law has clearly reduced interpersonal male-on-male violence where it functions most effectively and impartially. However, the relationship of the law to violence is deeply contested, only beginning with Walter Benjamin’s provocation: when does violence become law? (Benjamin, 1999). Without going into the philosophical debates (discussed in depth in Pearce, 2020), the point to emphasize is that for many, the law still resorts to violence in order to address violence, and is used to sanction the ‘legitimate’ violence of the State. More practically, for those wishing to keep the discussion in the physical rather than metaphysical world, there is the need to rescue the law from the judicial selectivity which reflects societal blindnesses towards certain kinds of violence. The law can in fact not only be seen in terms of abstract rules and codes, but it also reflects changing social attitudes towards fairness, discrimination, State accountability, and ultimately violence. Thus, these changing social attitudes turn violences previously not recognized as such into crimes. Examples would be where laws have been brought in over time to recognize rape in the private sphere as a crime (this happened in the UK when rape in marriage became a crime in the Sexual Offences Act of 2003) or, as in 2015, when ‘coercive control’ was recognized in the UK as a form of domestic abuse and a crime. In 2020 in the UK, campaigns began to end the ‘rough sex’ defence for rape, with evidence that over 60 victims had been forced to go to court over the previous decade to deny that they consented to strangulations, assaults, or violence. Such examples illustrate not only how late in the history of the rule of law such violences have been recognized in a country deemed one of its pioneers, but also that these violences would never have been recognized without social action (e.g. from feminists and human rights groups) on them, i.e. to name and visibilize them. Such social action on violence, however, requires a certain kind of democratic space for citizens to feel able safely to organize collective action. Rather, the

The violence of politics  81 discussion about legitimacy and legality as underpinning the modern State has become increasingly anti-democratic, even in Europe. The shadow of Carl Schmitt arises again. Schmitt saw legality as a danger to the possibility of legitimacy, to the monarch or the people’s plebiscitarian will as well as of every authority and governing power (Schmitt, 2004, p. 9). Legitimacy, in other words, comes before legality. In January 2019, the Austrian Minister of the Interior, Herbert Kickl, made a statement: ‘Law must follow politics and not politics the Law’ (Der Standard, 2019). It might be argued therefore, that rather than talk about politics and violence we should discuss democracy and violence. Furthermore, violence is not just a problem of perverse State formation, but also for those European nations that are widely held to be examples of the Weberian ideal State and its most advanced liberal democratic expression, as well as those who seek to emulate the ideal. John Keane argues that violence is ‘the greatest enemy of democracy as we know it’ (Keane, 2004, p. 1). This is because democracy ‘considered as a set of institutions and as a way of life, is a non-violent means of equally apportioning and publicly monitoring power within and among overlapping communities of people who live according to a wide variety of morals’ (Keane, 2004, p. 1). Keane also argues that democracies have the potential to contain and root out violence, or to ‘democratise violence’ (Keane, 2004, p. 12) as he expresses it, via the action of citizens. Vijayan (2017) takes a post-colonial lens to this debate and, looking back at the English Civil War, and American and French Revolutions, argues that while these ushered in a discourse of individual and civil rights as belonging to individual subjects of the State rather than a privileged few or only the State itself, they also grew alongside ideas of nationhood within a defined and identified collective (Vijayan, 2017, p. 85). As democracy developed, it did so through the acceptance of exclusivity. Democracy attempted to realize an abstract universal ideal within the contingencies of historical circumstance. In contextual realities, rights and belonging to this democratic nationhood had to be actively claimed, something which meant that ‘rather than serving to end violence, every attempt to realize democracy within the political form of the nation-state seems to serve only to perpetuate violence in one form or another’ (Vijayan, 2017, p. 87). He explores these ideas in relationship to India, and the way individual rights were translated into communal rights, with the extension of upper-caste, upper-class patriarchies into communal patriarchies. The violence that this brings with it is apparent in the way the Hindu nationalist government which came to power in India in 2014 has sought to represent the ‘nation’ from its own communal perspective. The notion that the Weberian ideal types of State, democracy, and nationhood have resolved the problem of violence and its relationship to politics (as well as interstate relations) is contradicted by realities across the globe, even where perverse State formation is not the trajectory. T.H. Marshall famously imagined three generations of rights that define citizenship in the UK: civil (eighteenth century), political (nineteenth century), and social (twentieth century). He saw social citizenship as a way in which the income and resource

82  Jenny Pearce inequalities that undermine the exercise of citizenship in market-oriented societies can be mitigated. A contemporary reflection of the ongoing significance of such argumentation is the much-debated idea of a Universal Basic Income. Thus, although much criticized as not recognizing the challenge of effective entitlements, particularly beyond the white male working class subject he mostly focussed on, the notion of citizenship remains one of the conceptual tools that remind us of the entwinement between civil liberties and social rights and the social solidarities necessary for a civilized society (Turner, 2009). The way violence impacts on citizenship is, however, often conflated with the victimhood associated with the field of human rights, as Turner argues, and often seen as ‘remote forms of legal protection against threats to our safety and security’ (Turner, 2009, p. 72). Rather than an external and distant threat, selectively disaggregated, violence is better understood, as has been argued in this chapter, as constituting our embodied subjectivities and our assumptions about the orders we are willing to accept as necessary, including the violence associated with them. This might bring violence in as a necessary fourth generation of citizenship rights, based on the premise of the vulnerable body (Berghoffen, 2003; Butler, 2004; Turner, 2006; Turner, 2008; Staudigl, 2013). Such a body requires the right to violence-reducing protection in order to address the trauma of threat, violation, and loss. This is not just about classic notions of ‘security’ or protection and national defence from wars that cost many civilian deaths and/or the growth of armed non-State, political, and criminal actors in many parts of the world. These are all important of course. But it is also about everyday social violences, and in many poor communities, the way organized and criminal violences impact on daily life. Violence-reducing protection should therefore aim to interrupt the intergenerational transmissions of violence from experiences of trauma and violence particularly in childhood. This requires social investment and massive investment in mental health. The Covid-19 pandemic has precisely highlighted the common threats that confront the vulnerable human body across the world. In fact, it should have humbled humanity and encouraged a profound critique of the historic illusion of masterfulness over nature as well as other humans (Pearce, 2020). At the same time, some bodies are clearly more vulnerable than others. The perspective of vulnerability enables us to understand how the search for order and belonging can also lead to the acceptance/use of violence when threat is perceived, if there are no alternatives offered. It is for this reason that the shadow of Schmitt is so dangerous. Our social relationships and sense of belonging are deeply part of our humanness, and are also very effective tools for political mobilization. When this centres on the creation of homogenous political communities that create enemies of the ‘non-citizen’, violence is not far off the horizon. De-humanization is widely understood as one of the first steps before subjecting someone to violence. This epoch appears precisely to be shining a light on our underlying failure to deal with violence as a means to police ‘belonging’ and hence who is a citizen and how citizenship is expressed.

The violence of politics  83

De-sanctioning violence and re-legitimizing political order through participatory citizenship When understood as a phenomenon and not through selected categories, we ‘face up’ to the fact that violence, and not just its particular expressions, remains a more or less active component of our social relationships and the social and political orders we construct around them. ‘Facing up’ requires prior social action, evidenced from examples discussed above. Particular groups severely impacted by violence and exclusion organize and mobilize to de-sanction its many expressions, from rape in war to police brutality to feminicide to prison torture to child abuse and so forth. This impacts on the sensibilities of others, and generates solidarity, exemplified by the number of people, including white people, who took part in BLM protests outside the US in 2020, with football teams in Europe ‘taking the knee’. In turn, this further democratizes public life as people recognize that social attitudes can be changed through social action. Citizenship becomes meaningful when critical democratic peripheries, such as social movements and autonomous associational groups, expose violence as nothing inevitable. Critical peripheries might not always be democratic or antiviolence. Those that are tend to have gone through or connect with experiences of individual and collective abuse, recognizing the meanings attached and generated by them. It is this process of understanding when and how natural aggression turns into violence, and how our bodies are impacted by trauma and emotional ruptures that constitutes an emergent Emotional Enlightenment with potential – over time – for societal change. The rational Enlightenment of the eighteenth century was critiqued by Horkheimer and Adorno not only for paving the way for new forms of domination through unleashing the market economy and ruining reason, but it also drew ‘a strict line between feelings in the form of religion and art, and anything deserving the name of knowledge’ (Horkeimer & Adorno, [1944] 2002, p. 73). An Emotional Enlightenment would not reject reason, but would recognize the role of emotions in our reasoning. For citizenship to evolve in a way that recognizes and reduces violence, such a balancing between emotion and reason would be key. And it is already underway. Issues of mental health, humanitarian campaigns, prison reform, recognizing sexual abuse, restorative justice, awareness of the long-term impact of childhood trauma, these are all advances over the last few decades in our deeper awareness of our social selves, our social relationships, and our attitudes to the State. They are not always understood as vital to politics and citizenship. However, if citizenship is conceived as being about increasing our capacity to relate to other citizens and build inclusive solutions to common problems, this cannot happen if violence remains a potent and rapid way of expressing meanings to others, whether from the State or from within society. The quality of participation in public life is thus deeply enhanced when violence is reduced and reasoned judgements in the public sphere take account of the emotions that shape judgements, and recognize distortions that might emerge.

84  Jenny Pearce

Conclusion The foundation for a new approach to the constitution of politics and the State is to recognize our capacity to reduce violence. This in turn makes possible a form of participation in public life that is emotionally attuned to the nature of violence and the meanings it conveys. It is precisely the growth of this capacity that has generated the backlash which dangerously hovers over the fate of citizenship in the twenty-first century. Better understanding of the factors that reproduce violence, such as childhood trauma, social and economic inequalities, hegemonic masculinities, and social hierarchies around race and ethnicity, enable politics to gain the capacity to embrace divergent identities and beliefs, and heightened sensibilities towards cruelty and suffering. Our knowledge has expanded enormously about violence and its reproduction. In the twentieth century, many activisms have contributed to exposing the role of violence in history in limiting participation, e.g. the history of plunder and primitive accumulation, of slavery and conquest, of the subordination and abuse of women. In the twenty-first, this has been confronted by movements to reassert the domination of some over others. This might be White Male Supremacy, Hindu Nationalism, Chinese ‘Communism’ over Muslims, the Caliphate over Infidels, Landowners over Peasants, Nations over Migrants, Heteronormativity over Transgender People, and there are many more expressions of this often violent ‘backlash’. Violence is ever-present in efforts to homogenize belonging and citizenship. It is not, however, often seen as a phenomenon which has to be addressed as such, if citizenship can ever become a meaningful and essential component of politics for everyone. This is a citizenship which does not look towards a State monopoly of violence to protect it, but rather looks at the State to reduce violence across all the spaces of socialization. It is a citizenship which ensures that legality does not reproduce more violence through its rules and retributions. It builds legitimacy through autonomous critical participation capable of generating active consent. This could be measured by the extent of participation by all sectors of the population in all forms of public life. In this way it democratizes public life and decision-making, making participation a way of reducing violence and acting on the conditions that reproduce it.

Notes 1 There is an ongoing ambiguity in the translation of the words Gewalt and physischen Gewaltsamkeit used by Weber in his original proposition about the State (Weber, 2018) into English (and French). Gewaltsamkeit does refer to acts of violence, but Gewalt, as well as sharing this etymology, refers to the capacity to dominate, to compulsion, to overcoming resistance (Imbusch, 2003; Balibar, 2009; Pearce, 2020, p. 229). Thus, some prefer to use ‘physical force’ and others ‘violence’ in their translations. The specificities of the word ‘violence’ are lost in translation. 2 ‘A state that uses a monopoly on force to protect its citizens from one another may be the most consistent violence-reducer that we have encountered in this book’ (Pinker, 2011, p. 680). The Leviathan must apply force judiciously, ‘adding penalties only to the “aggression” cells in its subjects’ decision matrix … The benefits of democracies over

The violence of politics  85 autocracies and anocrocies come when a government carefully eyedrops just enough force into the right cells of the decision matrix to switch the pacifist option from an agonizingly unattainable ideal to the irresistible choice’ (Pinker, 2011, p. 682). This chapter will nevertheless question whether the State in practice limits itself to ‘careful eyedrops of force’. 3 The average global homicide rate in 2019 was 6.1 homicide victims per 100,000 population worldwide, with 2.8 in Oceania, 3.0 in Europe, 2.3 in Asia, 13.0 in Africa, 17.2 in the Americas (UNODC, 2019, p. 11). The 464,000 victims of homicide were far more than the 89,000 killed in armed conflicts and the 26,000 fatal victims of terrorist violence (UNODC, 2019, p. 12). The UNODC calculates that 19 per cent of these were related to organized crime and gangs. There was an increase in homicide victims of 4 per cent worldwide, around 19,000 victims, between 2015 and 2017 (UNODC, 2019, p. 12). 4 The tactic of forced disappearance means that not all bodies are counted. As of September 2017, the United Nations Working Group on Enforced or Involuntary Disappearances which began collecting data in 1980 had been notified of 45,120 disappearance cases involving 91 states. The Conversation, 2018 5 Notably, but not only, in Latin America, where I conduct fieldwork. In a pathbreaking report, the World Health Organization produced a study on Violence and Health, in which they included youth violence, child abuse and neglect by parents and other caregivers, violence by intimate partners, abuse of the elderly, sexual violence, selfdirected violence, and collective violence (WHO, 2002). 6 Here, the European process of State formation is not seen as a ‘model’, but rather as an historic reference point, which enables us to see other forms of State formation on their own terms. Perverse forms, unlike the ‘legitimate monopolization’ ideal of the European experience, reproduce rather than monopolize violence through violent State actors and/or varied relationships with non-State armed actors or centralize violence without objectively verifiable processes of legitimation or fairly administered underpinning legal rules. 7 The killing of MP Jo Cox in the UK in 2016 or of district president, Walter Lubcke, in Germany in 2019 could be contrasted quantitatively with the assassination of 130 candidates and political workers in the run up to the 2018 presidential election in Mexico. However threats of violence in UK politics continued throughout the years following the Brexit referendum; there were reports of an increase in such threats and hate mail. In July 2020, Labour MP Dawn Butler had to close her constituency office after receiving racist threats (Proctor, 2020). 8 Examples would be Donald Trump’s presidency and his continued invocation of someone to ‘blame’, e.g. China for the Coronavirus pandemic of 2020; or Victor Orbán in Hungary, focussing on Jewish liberals, notably George Soros, as the ‘enemy’ of the nation; or the varied parties and politicians who blame ‘migrants’ for myriad problems and threats, a process which has ‘allowed’ the deaths by drowning of 18,500 migrants using the Mediterranean routes alone (Migration Data Portal, 2020). 9 In summary, these are: the level of the action or behaviour (individual, interpersonal, or collective); the nature and degree of force (physical or threats, attempts, verbal assault, invasion, insult, intimidation); the outcome of the force in terms of injury or not; what kind of injury, i.e. physical, hurting, degrading, etc.; targets, whether they are intended or incidental; persons or property such as individuals or places with strong symbolic significance, etc.; and intentionality of the harm or injury (Zahn, Brownstein & Jackson, 2015b, p. 255). 10 This is a classic way of understanding violence. Arendt placed violence in the realm of means not ends, i.e. it needs to be justified in terms of the end it pursues (Arendt, 1970, p. 51). Eisner also argues that in everyday language, violence is not something people ‘have’ or ‘do’ but rather what they use, and it is best understood as an instrument to achieve specific goals (Eisner, 2009, p. 55).

86  Jenny Pearce 11 Unlike the rational Enlightenment of eighteenth-century Europe, an Emotional Enlightenment of the twenty-first-century Europe would bring emotions back into our understanding of our reason, while acknowledging that reason is vital to our capacity to scrutinize our emotions (Pearce, 2020). 12 The homicide rate for males in the Americas aged 18–19 was 46 per 100,000 in 2016, and for males 15–29 was 64 (UNODC, 2019:19). It has been calculated that there is a 1 in 50 chance of dying before you reach 31 if you are a young man from a low-income household in Latin America (Moestue, Moestue & Muggah, 2013). 13 According to John Bolton, President Trump’s former security advisor, Trump called journalists ‘scumbags’ who should be jailed and ‘executed’ (Horsey, 2020). Responses to the killing of Jamal Khashoggi, columnist for the Washington Post, on 2 October 2018, have been mitigated by the ongoing importance of Saudi Arabia to the West, despite reliable reports that this would have been ordered by the Saudi head of state.

References Aijmer, G., & Abbink, J. (2000). Meanings of violence: A cross cultural perspective. Oxford: Berg. Arendt, H. (1970). On violence. New York: A Harvest Book. Ayyash, M. (2019). A hermeneutics of violence: A four-dimensional conception. Toronto: Toronto University Press. Balibar, E. (2009). Reflections on Gewalt. Historical Materialism, 17, 99–125. Balibar, E. (2015). Violence and civility: On the limits of political philosophy. New York: Columbia University Press. BBC News. (2020). Polish election: Andrzej Duda says LGBT ‘ideology’ worse than communism. 14 June 2020. Retrieved from https://www​.bbc​.co​.uk​/news​/world​-europe​ -53039864. Beetham, D. (2013). The legitimation of power. 2nd edition. London: Palgrave Macmillan. Benjamin, W. (1999). Critique of violence. In M. Steger & N. Link (Eds.), Violence and its alternatives: An interdisciplinary reader. Basingstoke: Macmillan Press. Bensman, J. (2014). From Joseph Bensman: Essays on modern society. Edited by R. Jackall & D. Graham. Knoxville: Newfound Press. Berghoffen, D. (2003). Towards a politics of the vulnerable body. Hypatia, 18(1), 116–134. Bourdieu, P., & Wacquant, L. (1992). Language, gender and symbolic violence. In P. Bourdieu, & L. Wacquant (Eds.), An invitation to reflexive sociology (pp. 140–173) Chicago: Chicago University Press. Butler, J. (2004). Precarious life: The powers of mourning and violence. London: Verso. Campaign Against Homophobia. (2013). Violence against LGBT people in Poland. Retrieved from https://ilga​-europe​.org​/sites​/default​/files​/Attachments​/report​_hc​-kph​ _eng​_final​.pdf. Cobb, J., & Sennett, R. (1972). The hidden injuries of class. New York: Alfred A. Knopf. De Zuleta, F. (2006). From pain to violence. Chichester: Wiley. Der Standard. (2019). Das Recht hat der Politik zu folgen und nicht die Politik dem Recht (23 January 2019). Retrieved from https://www​.derstandard​.at​/story​/2000096888042​/ kickl​-stellt​-men​sche​nrec​htsk​onvention​-in​-frage. Dodd, J. (2009). Violence and phenomenology. London: Routledge. Eisner, M. (2001). Modernization, self-control and lethal violence – The long-term dynamics of European homicide rates in theoretical perspective. British Journal of Criminology, 41(4), 618–648.

The violence of politics  87 Eisner, M. (2009). The uses of violence: An examination of some cross-cutting issues. International Journal of Conflict and Violence, 3(1), 40–59. Elias, N. (2005). The civilising process. Oxford: Oxford University Press. Fiske, A. P., & Rai, T. S. (2015). Virtuous violence. Cambridge: Cambridge University Press. Gerhardt, S. (2009). Why love matters. London: Routledge. Girard, R. (2013). Violence and the sacred. London: Bloomsbury. Hobbes, T. [1651] (2011). Leviathan. Cambridge: Cambridge University Press. Horkheimer, M., & Adorno, T. W. [1944] (2002). Dialectic of enlightenment. Philosophical fragments. Stanford: Stanford University Press. Horsey, D. (2020). But how do you really feel about journalists, President Trump? 19 June 2020. Retrieved from https://www​.seattletimes​.com​/opinion​/but​-how​-do​-you​-really​ -feel​-about​-journalists​-president​-trump/. Imbusch, P. (2003). The concept of violence. In W. Heitmeyer & J. Haban (Eds.), International handbook of violence research (pp. 13–39). Dordrecht: Kluwer Academic Publishers. Karstadt, S., & Eisner, M. (2009). Introduction. Is a general theory of violence possible? International Journal of Conflict and Violence, 3(1), 4–8. Keane, J. (2004). Violence and democracy. Cambridge: Cambridge University Press. Lauwaert, L. (2019). Violence and essentialism? In L. Lauwaert, K. L. Smith & C. Sternad (Eds.), Violence and meaning (pp. 27–38). London: Palgrave Macmillan. Lauwaert, L., Smith, K. L., & Sternad, C. (Eds.). (2019). Violence and meaning. London: Palgrave Macmillan. Migration Data Portal. (2020). Migrant deaths and disappearances. Retrieved from https:// migrationdataportal​.org​/themes​/migrant​-deaths​-and​-disappearances. Moestue, H., Moestue, L., & Muggah R. (2013). Youth violence prevention in Latin America and the Caribbean: A scoping review of the evidence. Noref Report, Oslo: Norwegian Peacebuilding Resource Centre. Pearce, J. (2007). Violence, power and participation: Building citizenship in contexts of chronic violence. IDS Working Papers 274. Brighton: IDS. Pearce, J. (2010). Perverse state formation and the securitisation of democracy in Latin America. Democratization, 17(2), 286–306. Pearce, J. (2017). The demonic genius of politics? Social action and the decoupling of politics from violence. International Journal of Conflict and Violence, 11, 1–11. Pearce, J. (2020). Politics without violence? Towards a post-Weberian enlightenment. London: Palgrave Macmillan. Pinker, S. (2011). The better angels of our nature. London: Penguin Books. Proctor, K. (2020). Labour MP Dawn Butler close office after receiving racist threats. The Guardian, 9 July 2020. Retrieved from https://www​.theguardian​.com​/politics​/2020​/jul​ /09​/labour​-mp​-dawn​-butler​-closes​-office​-after​-receiving​-racist​-threats. Rae, G., & Ingala, E. (Eds.). (2019). The meanings of violence: From critical theory to biopolitics. London: Routledge. Roodt, V. (2019). Violence as metaphor. In L. Lauwaert, K. L. Smith, & C. Sternad (Eds.), Violence and meaning (pp. 3–26). London: Palgrave Macmillan. Schinkel, W. (2010). Aspects of violence. Basingstoke: Palgrave Macmillan. Schmitt, C. (1996). The concept of the political. Chicago: University of Chicago Press. Schmitt, C. (2004). Legality and legitimacy. Durham: Duke University Press. Stanko, E. (Ed.). (2003a). The meanings of violence. London Routledge. Stanko, E. (2003b). Introduction: Conceptualising the meanings of violence. In E. Stanko (Ed.), The meanings of violence (pp. 1–15). London Routledge.

88  Jenny Pearce Staudigl, M. (2013). Inroduction: Topics, problems and potentials of a phenomenological analysis of violence. In M. Staudigl (Ed.), Phenomenologies of violence (pp. 1–32). Leiden: Brill. The Conversation. (2018). Forced disappearances are on the rise as human rights violators cover their tracks. 19 February 2018. Retrieved from https://theconversation​ .com​/forced​-disappearances​-are​-on​-the​-rise​-as​-human​-rights​-violators​-cover​-their​ -tracks​-91277. Tilly, C. (1992). Coercion, capital and European states AD 990–1992. Oxford: Blackwell. Tremblay, R., Hartup, W., & Arcer, J. (Eds.). (2005). Developmental origins of aggression. London: Guildford Press. Turner, B. S. (2006). Vulnerability and human rights. University Park: Pennsylvania State University Press. Turner, B. S. (2008). The body & society. 3rd edition. London: SAGE. Turner, B. S. (2009). T. H. Marshall, social rights and English national identity. Thinking citizenship series. Citizenship Studies, 13(1), 65–73. UNODC. (2019). Global study on homicides. Vienna: UNODC. Retrieved from https:// www​.unodc​.org​/documents​/data​-and​-analysis​/gsh​/Booklet1​.pdf. Vijayan, P. (2017). The violence of democracy. Kairos: A Journal of Critical Symposium, 2(1), 83–99. Weber, M. (2010). The profession and vocation of politics. In P. Lasssman & R. Speirs (Eds.), Weber: Political writings (pp. 309–369) Cambridge: Cambridge University Press. Weber, M. (2013). Economy and society Vol. 1 and 2, edited by G. Roth & C. Witch. Berkeley: University of California Press. Weber, M. (2018). Politik als Beruf. London: Forgotten Books. WHO. (2002). World report on violence and health: Summary. Geneva: WHO. Retrieved from https://www​.who​.int​/violence​_injury​_prevention​/violence​/world​_report​/en/ Wieviorka, M. (2009). Violence: A new approach. London: SAGE. World Health Organisation. (2002). World report on violence and health. Geneva: WHO. Retrieved from https://www​.who​.int​/violence​_injury​_prevention​/violence​/world​ _report​/chapters​/en/ Zahn, M., Brownstein, H., & Jackson S. (2015a). Introduction. Violence from theory to research. In M. Zahn, H. Brownstein & S. Jackson (Eds.), Violence: From theory to research (pp. 1–14). London: Routledge. Zahn, M., Brownstein, H., & Jackson S. (2015b). The need for a theory of violence. In M. Zahn, H. Brownstein & S. Jackson (Eds.), Violence: From theory to research (pp. 251–262). London: Routledge.

5

The crisis of social trust in non-violent routines Social mobilization of right-wing violence in Germany Eddie Hartmann and Felix Lang

Introduction Today, Europe is facing a fundamental crisis of political legitimacy. This crisis threatens not only to derail the very project of the European Union but also to undermine Europe’s democratic political culture (Offe, 2015). While acknowledging the enormous complexity of the crisis, this paper argues that one crucial aspect of it is the growing acceptance of physical violence as a legitimate means of social action – an acceptance triggered by and recursively leading to the increased use of political violence by certain groups or individuals. In light of this, not only does the current crisis threaten the lives of human beings and call into question democracy as a legitimate political order but it also threatens the modern self-image of a democratic society as an effective means of providing protection against arbitrary violence for its members. Although a lack of systematic data continues to limit our knowledge about long-term trends concerning the extent of political violence in contemporary Europe, the most striking pattern from recent data on Western Europe appears to be the rise of right-wing violence perpetrated by either individuals or unorganized small groups as opposed to the paramilitary groups active in the 1970s and ’80s or the gangs responsible for the majority of right-wing attacks in the 1990s and early 2000s (Quent, 2016; Ravndal et al., 2020; Manthe, 2018). This applies specifically to Germany, where we have seen a large increase in violent attacks by lone actors on ethnic or religious minorities – especially on refugees and their homes – since the beginning of the refugee crisis in 2015 (Ravndal et al., 2020). In particular, right-wing political violence in Germany committed by ‘lone wolf’ extremists or small-scale terrorist groups is currently on the rise. Amidst this trend, pointing to an increase in lone actor/small group violence, recent studies on political violence and radicalization clearly reveal that acceptance of political violence is not confined to the relatively small proportion of people actively using violent means and strategies while seeking change. These are supported by members of what might be called the ‘radical milieu’ (Malthaner & Waldmann, 2014): a broader range of actors with a sense of involvement who supply the ‘violent few’ (Collins, 2008) with indispensable social, cognitive, and emotional resources. Unlike most research on radicalization that focuses on the

90  Eddie Hartmann and Felix Lang ideological and psychological aspects of radicalization and suggests that violence is intrinsic to particular groups or individuals, these studies emphasize the relational character of radicalization by perceiving it as a dynamic process of interaction between violent actors and both their immediate and broader social environment (Malthaner & Waldmann, 2014; della Porta & LaFree, 2012; Schmid, 2016; Malthaner & Lindekilde, 2017; Malthaner, 2015, 2017). And yet, although in recent years the relationship between violent actors and their supportive social environment has been repeatedly mentioned in the political violence literature, it has rarely been the focus of empirical research to date. This applies in particular to right-wing violence, which, for instance, has only occasionally been addressed by social movement approaches (Blee, 2017). In order to advance this area of research, we propose an innovative approach to the concept of radicalization by focusing on the localization of the actors’ narrative rationale(s) for violence within their social and discursive setting. Radicalization is understood as a relational and dynamic process that brings about a shift in social interaction towards its organization around a single ‘us’ versus ‘them’ boundary, thus providing a symbolic framework of action that sustains a moral ground for promoting and rewarding violent behaviour on sites across the boundary (Hartmann, 2016). From this perspective, radicalization processes are linked to more general phenomena of collective identity formation that foster political violence by small groups or lone actors. In the context of right-wing violence in Germany, this collective identity formation primarily resolves around the fatalist notion of an ethnic conflict between ‘the German people’ and migrants/refugees and the need for self-defence in the face of an alleged betrayal by the state, producing a shared narrative of what we term a radical form of vigilantist self-empowerment. These processes of identity formation are in turn the expression of what we consider to be a serious loss of social trust in non-violent routines of social interaction – and its reappearance as a form of trust in violence. The paper begins by addressing a relatively new body of literature arguing in favour of strengthening the methodological links between social movement approaches and terrorism studies to sharpen the relational perspective outlined above. We will then provide a theoretical framework, drawing on the concept of symbolic boundaries, and emphasizing a narrative account of the social positioning of actors and their actions within a particular set of social relations and their discursive fields (Snow, 2004). In terms of political violence, this positioning is organized around a shared narrative understanding of when violence is ‘prohibited’, ‘permitted’, or ‘mandated’ (Reemtsma, 2012, pp. 103–106). Here, our main argument is that a loss of trust in non-violent routines can lead to a perceived need for the expansion of mandated or at least permitted violence which in turn serves as a narrative rationale for engaging in violent action. To underpin this approach, we apply our theoretical framework to an empirical case study of what is known as the ‘Bürgerwehr Freital’, which carried out at least five bomb attacks on refugees and political opponents in the Saxonian town of Freital and neighbouring Dresden between July and October 2015.

The crisis of trust in non-violent routines  91 In this chapter we will show that the Bürgerwehr Freital is not to be seen as a more or less isolated group of violent extremists but instead as part of a broader social movement in so far as the acts of violence committed by the Bürgerwehr arose from interaction processes that unfolded between (a) violent actions and their perpetrators in relation to (b) the radical milieu as their immediate supportive social environment, which is, in turn, related to (c) its broader social and political environment where the rationales for violent action are symbolically produced and socially distributed. In the specific case of Freital, crucial elements of this broader movement are the wave of protest against the opening of refugee accommodation at a local level as well as the rise of right-wing populism being particularly evident in the unprecedented success of the right-wing party ‘Alternative für Deutschland’ (AfD) in Saxony since 2014, which plays an important role in the social mobilization of the violent attacks perpetrated by the Bürgerwehr Freital.

Linking the social movement perspective to terrorism studies In the context of international debates on violence, political violence and radicalization have been examined within two major strands of research that rarely interact: terrorism studies and social movement studies.1 The former normally concentrates on the most radical forms of political violence and therefore tends to focus on violent individuals or groups and not on their wider social and political contexts (Bjørgo, 2014; Schmid, 2016). With few exceptions, the literature suggests that the problem of violence is intrinsic to particular groups or individuals, rather than a result of larger conflict in specific social and political contexts (della Porta, 2012; della Porta & LaFree, 2012; Schmid, 2016; Malthaner, 2017).2 Despite this rather limited focus, terrorism scholars have achieved important theory building in recent years. More specifically, rather than relying solely on the influence of pre-existing ideologies, motives, and identities, they are increasingly relating radicalization and political violence to wider social change and to relational dynamics at both group and organizational levels (Bosi, Demetriou & Malthaner, 2014; Crenshaw, 2011; McCauley & Moskalenko, 2008, 2011; Malthaner & Waldmann, 2014; Quent, 2016). The study of social movements and contentious politics in turn tends to focus on progressive movements and non-violent collective action, although it has recently begun to pay more attention to political violence in general (Tilly, 2003, 2004; Maney, 2007; Gunning, 2009; della Porta, 1995, 2013) and to rightwing extremism and its link to emerging forms of political violence in particular (Blee, 2017; Breen-Smyth, 2012; della Porta, 2012, 2013; della Porta & LaFree, 2012; della Porta, Caiani & Wagemann, 2012). This new focus, however, has been episodic, the number of empirical cases remains limited, and researchers rarely engage in interdisciplinary dialogue in order to systematize theory building strategies and accumulate results (Rydgren, 2007; della Porta, 2012). Moreover, as Blee (2017) argues, scholars of right-wing extremism adopted the framework of social movement research much later and not as proficiently as those of leftist, reformist, and progressive movements. Consequently, the question of right-wing

92  Eddie Hartmann and Felix Lang violence in particular remains largely under-examined within these approaches to date and has mainly been addressed through the strain and breakdown theories of collective behaviour (Minkenberg, 2003; Heitmeyer, 2005; Williams, 2006). Against this background, a new body of literature on political violence argues in favour of strengthening the methodological links between social movement approaches and terrorism studies in order to come to terms with the processual and relational dynamics of radicalization and political violence as well as their contextualization (Blee, 2017; Bosi, 2012; Bosi & della Porta, 2012; Bosi, Demetriou & Malthaner, 2014; Goodwin, 2006a, 2006b; Malthaner, 2017; Snow & Byrd, 2007; Koopmans & Rucht, 1996; Koopmans & Olzak, 2004; Quent, 2016). The analytical perspective that this type of scientific literature presents is to understand processes of radicalization as the dynamic result of interacting environmental, cognitive, and relational mechanisms, ‘although priority is certainly given to the way in which relational dynamics shape and put into effect cognitive mechanisms’ (Malthaner, 2017, p. 375). However, to realize its full explanatory potential, this kind of approach must be grounded in a theoretical framework that, firstly, draws upon insights from recent attempts to develop a general sociology of violence and, secondly, combines this with an empirical method that allows us to locate the actors’ narrative rationale(s) for engaging in violent action in temporal and spatial configurations of patterned social relationships.

Prohibited, permitted, or mandated violence and collective identity If we are to understand what motivates people to act violently on behalf of groups and how they come to identify with these groups in the first place, we need to systematically elaborate on the argument that the impact of these relations on social actors and their behaviour is achieved through collective representations of individuals’ own position or place in society as social subjects. We draw on a genuinely narrative account of the social positioning of actors and their actions within a particular set of social relations and discursive fields (Somers, 1994; Snow, 2004). The latter can be thought of as an ‘embedding concept’ in the sense that it refers to the broader enveloping contexts in which movement-related framing processes are embedded (Snow, 2004, pp. 401–402). Such narrative processes are cognitively and emotionally framed through interaction patterns at both the immediate or local level (social milieu) and the broader level of society (Hartmann, 2014, 2016, 2017). With regard to violent actions, the macrostructural conditions for such a positioning are set by the particular relationship of societies with violence. From the angle of a general sociology of violence, this relationship depends on how a society’s political order is organized by what Reemtsma calls its zones or areas of violence: ‘the areas in which it prohibits, permits, or mandates violence, alone or in combination. No rigorous study of violence can ignore these zones, for they are the backdrop against which all talk about violence takes place’ (Reemtsma, 2012, p. 104). What is meant here is that every state-regulated society has to legitimize

The crisis of trust in non-violent routines  93 violence in certain places and at certain times and to delegitimize it everywhere else and at all other times. Furthermore, it means that ‘every legitimation (or delegitimation) of violence seeks to reinforce (or change) presumed zones of permitted, prohibited, and mandated violence’ (Reemtsma, 2012, p. 104). Hence, the issue here is not a society’s relationship with violence per se. The issue is to what extent social actors or groups of actors of a given society interpret violent interactions as violent and characterize them as prohibited, permitted, or mandated. Obviously, these characterizations are not self-evident but are constantly subject to multiple forms of social struggle over the production of cultural meanings. In what we call modern democracies, however, it is the state’s monopoly on violence that guarantees a particular order or arrangement of these zones and so becomes a prerequisite for social trust in non-violent routines of social interaction. And although we know that the state cannot prevent every instance of violence that calls its monopoly into question, trust in non-violent interactions relies on trust in the state’s monopoly on violence which in turn means trusting in the stability of these areas and in the legitimacy of their arrangement. Yet, even if the picture that modern democracies paint of themselves is characterized by a highly fragmented and legally regulated power structure, backed by a state monopoly on violence, that guarantees a particular arrangement of the zones of violence, trust in this arrangement is primarily certainty about one’s expectations; it means people believe that their own assumptions about the social world – particularly about the legitimacy and stability of this arrangement – do not differ significantly from those they live alongside (Reemtsma, 2012, p. 88). Thus, trust in non-violent routines means trusting in one another, that is, having an expectation of nonviolence in one’s daily interactions. Uncertainty over the stability of the zones consequently means that these assumptions are shifting as a result of, for instance, the declining capacity of state authorities to control the use of weapons or contain violent aggression, the extension or overstretching of the zone of permitted violence by the state itself, or because people respond to perceived threats by increasingly insisting on the necessity and hence the legitimacy of certain forms of violence against certain categories of people – for example, the use of torture to fight terrorism as a means of self-defence or the use of deadly weapons against demonstrators by civilians in order to defend property, as was the case during the recent demonstrations in Kenosha, USA.3 Against this backdrop, we argue that the stability of the zones of violence in terms of their democratically institutionalized boundaries is no longer seen as being guaranteed or their particular arrangement as being legitimate, and that we are witnessing a historical phase of intensive struggles for their rearrangement. One possible outcome of such a rearrangement is that trust in non-violent routines can reappear as trust in violence within certain social milieus initially, that is, a reorientation of social trust that we perceive as radicalization. The main factors that constitute social trust in non-violent routines are, according to Reemtsma, (a) institutional forms of social control that limit everyday violence by prohibiting and punishing individual acts of violence (backed by the state’s monopoly on violence), (b) social interactions that secure trust by frequently demonstrating

94  Eddie Hartmann and Felix Lang that we do not have to expect violent assault in our dealings with one another on a regular basis, and (c) collective representations that provide the symbolic framework through which institutional forms of social control and social interactions are perceived and socially organized (Reemtsma, 2012, pp. 100–101). ‘Trust must be permanently manufactured through the interplay of [these] three essential elements’ (Reemtsma, 2012, p. 99). Hence, if trust in non-violent routines of everyday life dwindles, trust in the conventional democratic scheme we use to define zones of forbidden, permitted, or mandated violence is also lost. And once faith in the stability of these zones is lost, the certainty of expectations, which, in line with Reemtsma, we can see as a prerequisite for the stability of a socio-political order, also dwindles. These processes of reorientation of social trust constitute the larger empirical context of social change in which the current rise of right-wing political violence in Europe and beyond is embedded and that we interpret as a fundamental crisis of social trust in non-violent routines. In order for such a crisis of social trust in non-violent routines to become salient in the sense that larger sections of the population participate in violence, the zones of prohibited, permitted, and mandated violence must be narratively attached to collective identities and their respective boundaries. A specific feature of what is seen here as political violence in general and right-wing political violence in particular is its ability to dramatically call the institutional arrangement of the zones of violence into question by publicly announcing what kind of violence is prohibited, permitted, or mandated in whose name and towards whom (Reemtsma, 2012, p. 270).

The case of the ‘Bürgerwehr Freital’: Social mobilization of right-wing violence in Germany Our empirical research aims to better understand the interactive and narrative construction of the collective identities fostering right-wing violence in the particular case of the Bürgerwehr Freital, an informally organized terrorist group with two core members and a number of affiliates that was formed in the wake of an ongoing wave of protest against the opening of refugee accommodation in the Saxonian town of Freital near Dresden and that carried out at least five bomb attacks on refugees and political opponents between July and October 2015. The series of bombings by the Bürgerwehr Freital vigilantes attracted nationwide attention from politicians, journalists, and the public alike. Spanning a short time period of only four months, it marks a process of rapid escalation with the first attack on 26 July targeting a local left-wing politician’s parked car and the last attack on 31 October believed to be an assassination attempt on four refugees fleeing the war in Syria. This increase in the severity of violence is also reflected in the greater amount of explosive used in the later attacks. In order to analyze the process of radicalization leading to the emergence of violence in the case of the Bürgerwehr Freital, we examined the discursive relations connecting the perpetrators of violence, the radical milieu surrounding them, and the broader social and political environment, thus enabling us to

The crisis of trust in non-violent routines  95 identify the meaningful process through which social trust in non-violent routines of democratic political culture becomes reorganized as a specific form of trust in violence. Given our analytical focus on the embeddedness of the violent attacks in this broader empirical context of social change, we see the case study of the Bürgerwehr Freital as revelatory for the general phenomenon of an increase in right-wing violence perpetrated by lone actors or small groups in the wake of the 2015 refugee crisis and the discursive dynamics leading to intensive struggles for the rearrangement of the zones of violence and their institutionalized boundaries (Snow & Trom, 2002, p. 162). For this purpose, we systematically analyzed the narratives employed in the communication on a total of five Facebook pages representing the perpetrators of violence, the radical milieu, and the broader socio-political environment of the Freital case using both qualitative and quantitative methods.4 The decision to use Facebook as a data source was taken because it served as the main medium for mobilization within the far-right in 2015 and afterwards, with all the actors of interest in the specific case of Freital including the Bürgerwehr vigilante group itself actively using Facebook as a medium of public communication. Following the narrative account of our approach as well as insights into the role of online radical milieus for the emergence of terrorist violence (Conway, 2012) and the mutual interplay between online communication and the dynamics of the escalation of violence (Hartmann & Lang, 2020; Müller & Schwarz, 2020), we argue that social media platforms such as Facebook play a key role in constructing collective identities, thus shedding light on the relevant processes of radicalization. To monitor the communication, first of all the Facebook pages ‘Bürgerwehr FTL 360’ and ‘Widerstand Freital’5 were added to the data for our analysis. With both of these verifiably run by members of the Bürgerwehr and active from 1 May to 5 November 2015, i.e. shortly after the arrest of the core members of the group, both pages can be assumed to represent the perpetrators of violence. Although its administrators did not directly claim responsibility for the acts of violence in question, both pages contain extensive commentary on the attacks as well as the protest events in the town of Freital and the asylum policy of the German state in general. Thus, they provide a valuable insight into the group-related narrative construction of identity during the period under examination. To represent the terrorist group’s radical milieu, we included the Facebook page of ‘Bürgerinitiative Freital steht auf’,6 a right-wing citizens’ initiative acting as the main organizer of an ongoing wave of protest against the opening of refugee accommodation in Freital in March 2015, culminating in what observers describe as a siege of the accommodation in late summer as well as clashes between refugee supporters and right-wing protesters. With members of the Bürgerwehr verifiably participating both as demonstrators and officials, these protests and the groups and individuals involved can be understood as the radical milieu from which the Bürgerwehr emerged, providing them with the social, cognitive, and emotional resources needed for their violent actions. The protests themselves can be considered to be part of a broader social movement, namely the right-wing backlash seen since early 2015 or even before

96  Eddie Hartmann and Felix Lang that, particularly evident in Germany in the increasing election victories of the party Alternative für Deutschland (AfD) at both federal and state levels. To represent this movement, that is, the broader social and political environment of the Bürgerwehr, we also included the Facebook pages of both the local and the Saxonian branch of the right-wing party AfD, which was actively attempting to ‘close ranks’ with local protest initiatives throughout their 2015 campaign and can be viewed as an influential political actor within Saxony and Freital with electoral successes well above the German average in both constituencies. In order to understand the interactive and narrative construction of collective identities in the communication on these five Facebook pages and its possible contribution to the emergence of right-wing violence in the specific case of Freital, the data collected was systematically coded and processed to run a multiple correspondence analysis, providing a structured account of the narratives used by the actors under observation.7 As our main tool for comprehending the content of those narratives, we applied the concept of collective action frames that focuses on interactive processes of construction fundamental to the mobilization of collective action (Snow & Benford, 1988). As interpretive packages that collective actors use to legitimize and rationalize their actions, collective action frames have two sets of characteristic features that were of particular significance in the coding process: the core framing tasks that a specific frame has to fulfil in order to mobilize and the boundary framing this coincides with. The feature of the core framing task refers to a frame’s immediate actionoriented function and can be specified as the three tasks of diagnostic framing, prognostic framing, and motivational framing, meaning (1) a diagnosis of some event or aspect of social life as problematic and in need of alteration; (2) a proposed solution to the diagnosed problem that specifies what needs to be done; and (3) a call to arms or rationale for engaging in ameliorative or corrective action. (Snow & Benford, 1988, p. 199) Through locating the specific diagnostic, prognostic, and motivational framing attempts within the narratives used by the actors under observation, three major frames were identified, all revolving around the issues of migration and asylum. These can be described as (a) a right-wing populist frame, (b) an anti-leftist frame, and (c) a frame of ethnic conflict, the latter being present in either a more moderate or a more fatalist way. The right-wing populist frame is mainly characterized by a diagnosis of the government’s migration and asylum policy decisions as being misguided and out of touch with ‘the common people’s’ concerns. In particular, the temporary suspension of the Dublin II Regulation for Syrian refugees is portrayed as an act of betrayal of the people. In line with the frame’s focus on government policy, the proposed solutions involve a tightening of asylum laws, stricter deportation practices, and a general change of government. The motivational framing of these claims emphasizes the seriousness and urgency of the situation, especially the way in which the arrival of refugees is framed as ‘flooding’.

The crisis of trust in non-violent routines  97 In contrast to the focus of the right-wing populist frame on governmental policies, the anti-leftist frame is based on a diagnosis that it is primarily left-wing activists who are to blame for the refugee crisis, with members of ‘Antifa’ in particular deliberately helping to ruin the German nation by supporting migration, spreading lies, repressing different opinions, inflicting violence and terror on ‘upright’ citizens, and ultimately provoking upheaval and disorder. Building upon this diagnosis, the proposed solution consists mainly of confrontational street activism directed at supporters of refugees, left-wing politicians, and activists. With these acts portrayed as a legitimate means of self-defence, far-right activism in general is presented as a ‘just fight’ in line with the public’s interests. Other motivational components focus on appeals to the courage and honour of the individual, heavily adopting the ideal of the male soldier. Whereas the right-wing populist and the anti-leftist frames revolve mainly around criticizing the actions of specific political opponents, the diagnosis resulting from the ethnic conflict frame is based on a view of the mere presence of refugees in Germany as a problem. In its ‘moderate’ form, this frame’s diagnosis is mainly characterized by an emphasis on conflicts over infrastructural, economic, and cultural resources deriving from the presence of refugees in the specific town of Freital and its surrounding district. Here, in particular, there is an emphasis on the perceived incompetence of local politicians in managing the situation, supposedly resulting in an overload of the town’s capacity. The proposed solutions include a more rigorous deportation practice while the motivational framing stresses the need to oppose allegedly illegal policy decisions. In a very similar manner to the ‘moderate’ form, the ‘fatalist’ ethnic conflict frame also revolves around the perceived conflict between the local population and the newly arriving immigrants, although on a larger scale and in a more severe form. While the ‘moderate’ frame focuses on conflicts over specific resources in a local setting, the fatalist frame turns the refugee crisis into a struggle for survival of the German ‘Volk’ that is allegedly in imminent danger of what is portrayed as a foreign invasion threatening the mere existence of the country. With its fatalist vision of impending downfall, its strong emphasis on race, and its nationalist underpinning, the fatalist ethnic conflict frame bears a striking resemblance to the replacement theory popular amongst members of the global far right. In view of the perceived existential threat, the proposed solutions involve calls for direct action against refugees combined with a motivational framing heavily emphasizing the severity and urgency of the situation as well as the individual’s duty and bravery as the last defence of the German ‘Volk’. The core framing tasks of the right-wing populist, anti-leftist, and ethnic conflict frames presented above correspond with the second feature of the collective action frame, namely attempts by social actors to situate themselves (or their ‘group’) in temporal and spatial relation to others, thus positioning themselves within a particular field of action or in society in general. This type of positioning necessarily entails making distinctions between in-groups and out-groups alongside symbolic us/them boundaries and is referred to as boundary framing. In line with Hunt, Benford, and Snow (1994), we suggest that these boundaries

98  Eddie Hartmann and Felix Lang are mainly drawn between three sets of identities that these authors conceptualize as identity fields: those who are identified as protagonists, those who are identified as antagonists, and those who are perceived as audiences (see also Blee & McDowell, 2012). The collective identities associated with all three identity fields are essential for constructing narrative rationales for violent action. In the specific case of Freital and the empirical data gathered, however, the identity fields of protagonists and antagonists in particular were visible and so these are of greater relevance to the analysis and will be our main focus here. The boundary framing coinciding with the right-wing populist frame builds upon a separation of the ‘treacherous political elites’ from ‘the common people’, thus drawing an us/them boundary between an antagonist identity field ‘at the top’ and a protagonist identity field ‘at the bottom’ and giving the frame its populist character. For the anti-leftist frame, the boundary framing can be described as an us/them boundary drawn between a protagonist identity field on the ‘inside’ and an antagonist identity field on the ‘internal outside’, the former referring to the ‘upright German citizen’ and the latter to left-wing activists ‘backstabbing’ their own nation.8 Finally, the ethnic conflict frame results from a symbolic boundary between an ‘internal’ and an ‘external’ collective with the rupture of this boundary portrayed as an immediate threat to the well-being of the people on the ‘inside’. This boundary serves as a common focal point for both the moderate and the fatalist versions of the frame, with the latter placing a heavy emphasis on race and leading to a dramatic rise in serious attacks. Now we have identified the central frames and their specific boundaries, it is of interest how their use by the actors in our study has changed over time, in other words, at what point which frames became more salient for whom and which boundaries were activated in this process. This relates to the assumption that increasing uncertainty over the stability of the zones of violence always activates and reinforces the boundaries of collective identities. With these boundaries primarily consisting of shared stories about the boundaries themselves as well as certain types of within-boundary and cross-boundary relations, they are subject to constant challenge and negotiation (Tilly, 2005; Hartmann, 2016). However, processes of radicalization always involve the activation and reinforcement of symbolic boundaries – a social mechanism that Tilly (2003) calls ‘boundary activation’ which brings about a shift in social interaction. This leads to a single us/ them boundary, thus providing a symbolic framework of action that can sustain a moral ground for promoting and rewarding violent behaviour on sites across the boundary. Revealing these framing mechanisms within the broader movement observed here allows us to reconstruct the meaningful processes resulting in a reorganization of social trust in violence which led the members of the Bürgerwehr Freital to carry out at least five bomb attacks on refugees and political opponents between July and October 2015. For the sake of interpretability, we collated the Facebook pages ‘Bürgerwehr FTL360’ and ‘Widerstand Freital’ into the single actor ‘Bürgerwehr’. The same measures were taken for the Facebook pages of Freital’s and Saxony’s AfD which we combined under ‘AfD’. Also including ‘Bürgerinitative Freital steht auf’, we

The crisis of trust in non-violent routines  99 analysed the changes in framing by three actors in total, representing the perpetrators of violence (‘Bürgerwehr’), the radical milieu (‘Bürgerinitiative’), and the broader socio-political environment (‘AfD’). A clear shift towards the right-wing populist frame can be seen with the AfD in particular. While the month of June still shows a high salience of the anti-leftist frame, by October the AfD had completely shifted towards framing along an up/down boundary. As well as adopting the right-wing populist frame over time, they consistently apply the moderate ethnic conflict frame, thus promoting an in/out boundary while at the same time staying in line with their formal allegiance to constitutional law. With the Bürgerinitiative, the picture is not as clear. On the one hand, they show a rather similar change with a noticeable, albeit less explicit application of the right-wing populist frame. On the other hand, the Bürgerinitiative moves between the moderate and the fatalist ethnic conflict frame with a distinct shift towards the racially and apocalyptically charged in/out boundary in August and only a slight correction in the following months. Compared to the AfD and the Bürgerinitiative, the Bürgerwehr seems to walk a path of its own with an initially strong but gradually decreasing dedication to the anti-leftist frame and a very obvious shift towards the fatalist ethnic conflict frame at the time of their heaviest attacks. Overall, changes in the framing efforts of the actors under study can be described as (a) a strong shift away from the anti-leftist framing and towards the right-wing populist framing, with even the Bürgerwehr showing a slight approximation towards the latter, and (b) a dramatic shift towards a fatalist ethnic conflict framing, portraying the refugee crisis as an existential threat for the German ‘Volk’. The simultaneous activation of the corresponding symbolic boundaries – between the ‘treacherous elites’ and the ‘common people’ as well as between an ‘outside’ threat and a racially defined collective on the ‘inside’ – is then seen to contain a powerful call for immediate acts of self-defence. It thus represents what we term a radical form of vigilantist self-empowerment. This specific type of motivational framing serves as a ‘call to arms’ in terms of a rationale for violent action that not only determines the seriousness of the violence but also its targets. While the Bürgerwehr’s first attack on a local leftwing politician’s parked car was at the time of a predominant anti-leftist framing, the subsequent attacks on refugees and their accommodation correlate with the shift towards the right-populist and ‘fatalist’ ethnic conflict framing. It is worth noting here that the Bürgerinitiative shows a close proximity both to the AfD in terms of their right-wing populist framing and to the Bürgerwehr in terms of their fatalist ethnic conflict framing. This points to the importance of the radical milieu, that is, the immediate social environment of the perpetrators, in providing a thematic ‘link’ between the broader socio-political discourse – namely of the AfD in Saxony – and the perpetrator’s construction of reality, thus providing the moral grounds for legitimizing the violent attacks. In other words, the empirical analysis shows that the radical milieu is crucially involved in the production of the symbolic resources that are essential for radicalizing the ‘violent few’ by successively stimulating their propensities for violent action. The most important factor stimulating propensities for violent action – whether we consider these

100  Eddie Hartmann and Felix Lang propensities to be motives, mentalities, urges, or something else – lies in social actors’ conviction they are positioned within a zone of mandated or at least of permitted violence (Reemtsma, 2006, p. 19). Particularly with regard to the legitimation of the narrative rationale of vigilantist self-empowerment, our analysis shows that the radical milieu is key to creating and sustaining precisely these types of collective representations.

Conclusion It remains to be seen where the rise of right-wing populism in Europe will lead. With the success of the AfD in the state elections in 2016 and most recently in Brandenburg and Thüringen, the right-wing populist trend seen in Europe as a whole for years now has also reached Germany. This development is the empirically tangible manifestation of a crisis of legitimacy of the political order not only in Europe but also in various other democracies that had previously been considered stable, such as the US or Brazil. The consequences of this crisis are deep-seated social upheavals and social divisions that strike right at the heart of German society and are currently developing a considerable potential for social mobilization. The most diverse protest motivations and social milieus are combining to form a comprehensive ‘authoritarian revolt’ (Weiß, 2017) which is not coincidentally also accompanied by an increase in right-wing political violence in Germany. The fact that the discursive shift in the boundaries of ‘what can be said’ goes hand in hand with a shift in the boundaries of ‘what can be done’ is now also increasingly recognized in social science discourse. However, the social processes and discursive dynamics underlying this systematic link between rightwing violence and a social climate of ‘intellectual arson’ still remain largely underexposed in the social sciences. Against this background, the aim of this chapter is to gain a more thoroughgoing understanding of how right-wing violence becomes socially mobilized in the sense that the social and political environment of violent perpetrators helps to discursively expand the scope for violent action by encouraging them in their belief they are positioned within a zone of mandated or at least of permitted violence. Consequently, from this analytical perspective, the series of attacks committed by the Bürgerwehr Freital cannot be adequately described as long as the perpetrators are defined as an isolated group of notorious extremists with a right-wing attitude (Hoebel, 2020). Instead, their violent attacks have to be situated in the context of the formation of a broader social movement, since the violence itself emerges from ongoing interaction processes that unfold between violent actions and their perpetrators in relation to the radical milieu as their immediate supportive social environment, which is in turn related to its broader social and political environment. Nevertheless, this is not to say that the violent extremists themselves first become radicalized primarily in this interactional setting but rather that the interactions studied in this chapter open up scope for violent action that is made use of by right-wing extremists such as the Bürgerwehr Freital.

The crisis of trust in non-violent routines  101

Notes 1 Among other further strands of literature in which radicalization and political violence are extensively analysed are genocide studies (Gerlach, 2010; Owens, Su & Snow, 2012) and war studies (Malešević, 2010), including analyses of civil wars (Kalyvas, 2006; Schlichte, 2014). However, this type of research normally focuses on large-scale violence between states and/or non-state organizations. 2 For a comprehensive overview of the literature on radicalization and its main weaknesses in terms of decontextualized analyses, see Crenshaw (2011) and Schmid (2016). Important research addressing this serious methodological deficit has developed as what has become known in recent years as critical terrorism studies (CTS) (Jackson et al., 2011). 3 In August 2020, a member of a right-wing militia claiming to be guarding private property shot three protesters affiliated with the Black Lives Matter movement in the town of Kenosha in the state of Wisconsin. Two of them died. 4 To do so, we downloaded all posts published on those five pages in the period from 1 May to 31 October 2015, marking the time from the start of the Bürgerwehr’s online activities to the date of their last attack. To download the posts, we used an application programming interface (API) provided by the Facebook application Netvizz (Rieder, 2013), allowing us access to data inaccessible to ‘normal’ users. For pragmatic reasons and due to the methodological focus on narratives and language, only textual content was taken into account; no images, videos, or links (for example, to newspaper articles) were included in the analysis. In order to ensure that the content analysed could be directly attributed to the operators of the Facebook pages under observation, only posts published by the page’s administrators were taken into account; content posted by external users and comments on the posts were removed from the analysis. We thus generated a database consisting of a total of 690 Facebook posts. 5 The names of the pages ‘Bürgerwehr FTL 360’ and ‘Widerstand Freital’ translate as ‘FTL 360 Vigilantes’ and ‘Freital Resistance’. The code ‘FTL 360’ refers to a public bus route in and around Freital that was taken by one of the Bürgerwehr’s founding members who was working as a bus driver at the time of the attacks. 6 Originally formed under the name of ‘Freital wehrt sich’ (‘Freital fights back’), the initiative was renamed ‘Bürgerinitiative Freital steht auf’ (‘Citizens’ Initiative Freital stands up’) in May 2015, supposedly to distance itself from the more militant spectrum. 7 For the coding process, we used the qualitative analysis software MAXQDA (VERBI Software, 2019). The quantitative multiple correspondence analysis was run in R using the package FactoMineR (R Core Team, 2020; Lê et al., 2008). As a method from the toolbox of geometric data analysis, the multiple correspondence analysis allows a graphical and numerical representation of relationships between categorical variables in a low-dimensional geometric space, with the proximity of the data points indicating similarity of categories and units of observation (Le Roux & Rouanet, 2010). The framing categories identified in the coding process served as variables and the individual Facebook posts functioned as units of observation. In addition, a time variable describing the publication date of the Facebook posts was included. 8 The figure of the ‘internal outsider’ derives from Brubaker (2017) who defines it as ‘those living on the inside who, even when they are citizens of the state, are not seen as belonging, or fully belonging, to the nation’ (p. 363).

References Bjørgo, T. (Ed.). (2014). Terror from the extreme right. London & New York: Routledge. Blee, K.M. (2017). Understanding racist activism: Theory, methods, and research. London & New York: Routledge.

102  Eddie Hartmann and Felix Lang Blee, K.M., & McDowell, A. (2012). Social movement audiences. Sociological Forum, 27(1), 1–20. Bosi, L. (2012). Explaining pathways to armed activism in the provisional IRA, 1969– 1972. Social Science History, 36(3), 347–390. Bosi, L., & Della Porta, D. (2012). Micro-mobilization into armed groups: The ideological, instrumental and solidaristic paths. Qualitative Sociology, 35, 361–381. Bosi, L., Demetriou, C., & Malthaner, S. (Eds.). (2014). Dynamics of political violence: A process-oriented perspective on radicalisation and the escalation of political conflict. Farnham & London: Ashgate. Breen-Smyth, M. (Ed.). (2012). The Ashgate research companion to political violence. Farnham & London: Ashgate. Brubaker, R. (2017). Why populism? Theory and Society, 46(5), 357–385. Collins, R. (2008). Violence: A micro-sociological theory. Princeton: Princeton University Press. Conway, M. (2012). From al-Zarqawi to al-Awlaki: The emergence and development of an online radical milieu. CTX: Combating Terrorism Exchange, 2(4), 12–22. Crenshaw, M. (2011). Explaining terrorism: Causes, processes, and consequences. London & New York: Routledge. Della Porta, D. (1995). Social movements, political violence, and the state: A comparative analysis of Italy and Germany. Cambridge: Cambridge University Press. Della Porta, D. (2012). Social movement studies and political violence. In M. BreenSmyth. (Ed.), The Ashgate research companion to political violence (pp. 243–260). Farnham & London: Ashgate. Della Porta, D. (2013). Clandestine political violence. Cambridge: Cambridge University Press. Della Porta, D., & LaFree, G. (2012). Guest editorial: Processes of radicalisation and de-radicalisation. International Journal of Conflict and Violence, 6(1), 4–10. Della Porta, D., Caiani, M., & Wagemann, C. (2012). Mobilizing on the extreme extreme right: Germany, Italy, and the United States. Oxford & New York: Oxford University Press. Gerlach, C. (2010). Extremely violent societies: Mass violence in the twentieth century world. Cambridge: Cambridge University Press. Goodwin, J. (2006a). A theory of categorical terrorism. Social Forces, 84(4), 2027–46. Goodwin, J. (2006b). What do we really know about (suicide) terrorism? Sociological Forum, 21(2), 315–30. Gunning, J. (2009). Social movement theory and the study of terrorism. In R. Jackson, J. Lee, J. Gunning, & M. Breen-Smyth. (Eds.), Critical terrorism studies, a new research agenda (pp. 156–177). London: Routledge. Hartmann, E. (2014). Ordre social, légitimité et violence: La violence physique comme ‘fait social’. Revue de Synthèse, 4, 297–330. Hartmann, E. (2016). Symbolic boundaries and collective violence: A new theoretical argument for an explanatory sociology of collective violent action. Journal for the Theory of Social Behaviour, 46, 165–186. Hartmann, E. (2017). Violence: Constructing an emerging field of sociology. International Journal of Conflict and Violence, 11, 1–9. Hartmann, E., & Lang, F. (2020). Protestzwitschern: Wie Twitter-Netzwerke zur Eskalation der G20-Proteste in Hamburg 2017 beitrugen. sozialpolitik​.ch​, 1, 1–27. Heitmeyer, W. (2005). Right-wing terrorism. In T. Bjørgo. (Ed.), Root causes of terrorism (pp. 141–153). London: Routledge.

The crisis of trust in non-violent routines  103 Hoebel, T. (2020). Alleinhandeln: Eine forschungsprogrammatische Skizze. Mittelweg 36, 29, 4–5. Hunt, S.A., Benford, R.D., & Snow, D.A. (1994). Identity fields: Framing processes and the social construction of movement identities. In E. Larana, H. Johnston, & J.R. Gusfield. (Eds.), New social movements: From ideology to identity (pp. 185–208). Philadelphia, PA: Temple University. Jackson, R., Lee, J., Gunning, J., & Breen-Smyth, M. (2011). Terrorism: A critical introduction. Basinkstoke: Palgrave. Kalyvas, S. (2006). The logic of violence in civil war. Cambridge: Cambridge University Press. Koopmans, R., & Olzak, S. (2004). Discursive opportunities and the evolution of rightwing violence in Germany. American Journal of Sociology, 110(1), 198–230. Koopmans, R., & Rucht, D. (1996). Rechtsradikalismus als soziale Bewegung? In J.W. Falter, H.-G. Jaschke, & J.R. Winkler. (Eds.), Rechtsextremismus (pp. 265–287). Wiesbaden: Springer VS. Lê, S., Josse, J., & Husson, F. (2008). FactoMineR: A package for multivariate analysis. Journal of Statistical Software, 25(1), 1–18. Le Roux, B., & Rouanet, H. (2010). Multiple correspondence analysis. Thousand Oaks: SAGE. Malešević, S. (2010). The sociology of war and violence. Cambridge: Cambridge University Press. Malthaner, S. (2015). Violence, legitimacy, and control: The microdynamics of support relationships between militant groups and their social environment. Civil Wars, 17(4), 425–445. Malthaner, S. (2017). Radicalization: The evolution of an analytical paradigm. European Journal of Sociology, 58(3), 369–401. Malthaner, S., & Lindekilde, L. (2017). Analyzing pathways of lone-actor radicalization: A relational approach. In M. Stohl, R. Burchill, & S.H. Englund. (Eds.), Constructions of terrorism: An interdisciplinary approach to research and policy (pp. 163–180). Oakland: University of California Press. Malthaner, S., & Waldmann, P. (2014). The radical milieu: Conceptualizing the supportive social environment of terrorist groups. Studies in Conflict & Terrorism, 37, 979–998. Maney, G. (2007). From civil war to civil rights and back again: The interrelation of rebellion and protest in northern ireland 1955–1972. Research in Social Movements, Conflict, and Change, 27, 3–35. Manthe, B. (2018). On the pathway to violence: West german right-wing terrorism in the 1970s. Terrorism and Political Violence. DOI:10.1080/09546553.2018.1520701 McCauley, C., & Moskalenko, S. (2008). Mechanisms of political radicalisation: Pathways toward terrorism. Terrorism and Political Violence, 20, 415–433. McCauley, C., & Moskalenko, S. (2011). Friction: How radicalisation happens to them and us. Oxford & New York: Oxford University Press. Minkenberg, M. (2003). The west European radical right as a collective actor: Modeling the impact of cultural and structural variables on party formation and movement mobilization. Comparative European Politics, 1(2), 149–170. Müller, K., & Schwarz, C. (2020). Fanning the flames of hate: Social media and hate crime. SSRN. DOI: 10.2139/ssrn.3082972. Offe, C. (2015). Europe entrapped. Cambridge: Polity Press.

104  Eddie Hartmann and Felix Lang Owens, P.B., Su, Y., & Snow D.A. (2012). Social scientific inquiry into genocide and mass killing: From unitary outcome to complex processes. Annual Review of Sociology, 39, 69–84. Quent, M. (2016). Rassismus, Radikalisierung, Rechtsterrorismus: Wie der NSU entstand und was er über die Gesellschaft verrät. Weinheim & Basel: Juventa. Ravndal, J.A., Lygren, S., Jupskås, A.R., & Bjørgo, T. (2020). RTV Trend Report 2020: Right-wing terrorism and violence in western Europe, 1990–2019. Oslo: Center for Research on Extremism. R Core Team (2020). R: A language and environment for statistical computing. Vienna: R Foundation for Statistical Computing. Reemtsma, J.P. (2006). Die Natur der Gewalt als Problem der Soziologie. Mittelweg 36, 15(5), 2–25. Reemtsma, J.P. (2012) Trust and violence: An essay on a modern relationship. Princeton & Oxford: Princeton University Press. Rieder, B. (2013). Studying Facebook via data extraction: The Netvizz application. WebSci '13. Proceedings of the 5th Annual ACM Web Science Conference, 346–355. Rydgren, J. (2007). The sociology of the radical right. Annual Review of Sociology, 23, 241–262. Schlichte, K. (2014). When “the facts” become a text: Reinterpreting war with Serbian war veterans. Revue de synthèse, 4, 361–384. Schmid, A.P. (2016). Research on radicalisation: Topics and themes. Perspectives on Terrorism, 10(3), 26–32. Snow, D.A. (2004). Framing processes, ideology, and discursive fields. In D.A. Snow, S.A. Soule, & H. Kriesi. (Eds.), The Blackwell companion to social movements (pp. 380–412). Oxford: Blackwell. Snow, D.A., & Benford, R.D. (1988). Ideology, frame resonance and participant mobilization. International Social Movement Research, 1, 197–217. Snow, D.A., & Byrd, S.C. (2007). Ideology, framing processes, and Islamic terrorist movements. Mobilization: An International Quarterly Review, 12(1), 119–136. Snow, D.A., & Trom, D. (2002). The case study and the study of social movements. In B. Klandermans, & S. Staggenborg. (Eds.), Methods of social movement research (pp. 146–172). Minneapolis & London: University of Minnesota Press. Somers, M. (1994). The narrative construction of identity: A relational and network approach. Theory and Society, 23, 605–649. Tilly, C. (2003). The politics of collective violence. Cambridge: Cambridge University Press. Tilly, C. (2004). Terror, terrorism, terrorists. Sociological Theory, 22(1), 5–13. Tilly, C. (2005). Identities, boundaries, and social ties. London: Paradigm Publications. VERBI Software (2019). MAXQDA 2020 [computer software]. Berlin, Germany: VERBI Software. Weiß, V. (2017). Die autoritäre Revolte: die Neue Rechte und der Untergang des Abendlandes. Stuttgart: Klett-Cotta. Williams, M.H. (2006). The impact of radical right-wing parties in west European democracies. London: Palgrave MacMillan.

6

Beyond legal referent The degradation of citizenship through the Yemen war Martha Mundy

Introduction Through the enforcement of different values and rewards over the last centuries, the conditions for political organization and citizenship remain linked between the Global North and South (Wade 2020). The economic component of this relation has been the object of study for a very long time. Here I wish to examine its political component for a country – Yemen – less prominent in scholarship than the northern region of the Arab lands within which lies Palestine. That said, the relation between citizenship in states of the North and those of the South is usually considered as primarily one-way, with the former, as part of northern governing bodies, acting as the ‘agent’ to the southern ‘subject’. In this chapter, I shall argue that the degradation of citizenship in the case examined is true also for the northern polities, albeit to a much lesser extent than for the southern polity. The argument begins with its terms of analysis concerning citizenship, before turning to the background to the war in Yemen launched in 2015, the character of the war, and the resulting degradation of citizenship in the north (particularly the US, UK, and France) and in the south (Yemen). Terms of analysis The dominant conception of rights today is as guaranteed by a benevolent state internally, and externally, by declarations and treaties administered by supranational bodies, primarily the United Nations, but also by regional bodies such as the European and African Unions. This conception treats rights rhetorically as if lying on a single plane but being of different characters (see Marshall, 1950).1 The universalization of this model of rights entailed the legal recognition of the sovereignty of most states across the globe, and the abandonment of the restriction of ‘sovereignty’ to states of the north characteristic of nineteenth-century legal doctrine (Koskenniemi, 2001, pp. 98–178). For the case we are to examine, it is difficult to fit the image of a benevolent or welfare state as guarantor of rights onto the polities in question. As we shall see, moreover, the role of supranational bodies as ultimate guarantors of rights corresponds little to what we shall describe. The dominance of neo-liberal

106  Martha Mundy political-economic policies (Mirowski, 2013)2 over the last decades has restructured the states of both North and South in a manner that calls for more differentiated categories in conceptualizing citizenship. The distinctions made in an earlier era of capitalism may be of use here. In ‘On the popular judgment: that may be right in theory, but does not hold good in the praxis: Section II. Of the relation which the theory bears to praxis in the law of State’, Immanuel Kant ([1798] 1993, p. 187) wrote: The civil state, then considered as a juridical state merely, is founded in the following principles à priori: 1. The LIBERTY of every member of the society, as a MAN. 2. His EQUALITY with every other, as a SUBJECT. 3. The SELF-SUFFICIENCY of every member of a commonwealth, as a CITIZEN. Kant’s liberty concerned the power to contract in the private sphere; his equality the formal juridical equality of subjects as in a court of law; and his citizenship effective political right and decision-making power (Kant [1798] 1993, pp. 185–213). Writing in the late eighteenth century, Kant assumed a scale of production (households entailing a subsumption of women and servants in the domestic sphere, artisanal workshops, schools and universities, and so forth) quite distant from that of contemporary financial capitalism. Yet the definition is helpful by tying the capacity for citizenship (participation in political decision-making) to both individual (self-sufficiency) and social means (the commonwealth). This formulation renders intelligible, if not thereby desirable, the drive to equate the legal persona of a limited-liability economic corporation to the rights-bearing person domestically and hence to the citizen and to empower such corporate personae internationally to sue states for claimed infringement of rights (unfettered power to transact).3 A distinction between human freedom to act and contract, juridical equality as subject, and citizenship as participation in political decision-making for the commonwealth helps us to focus on the conditions of the last, citizenship in the full sense of the term. Background Historically Yemen has been the only polity in the Peninsula where the concept of citizenship is meaningful. There are differences within the polities that are members of the Gulf Cooperation Council (GCC) – entry to which Yemen was denied – with Kuwait, Oman, and Bahrain exhibiting more socio-political complexity than the other monarchies and shaykhdoms. That said, none are republics and all have populations divided between the economically entitled passportholders and the many non-national workers and servants, who are commonly quasi-bonded to their employers. Unlike the GCC states, moreover, Yemen has

Beyond legal referent  107 known diverse political discourses and parties and a tradition of lively political debate.4 In 1962, the Mutawakkilite Kingdom of Yemen was overthrown and the Yemen Arab Republic that contained the bulk of the population and of the agricultural lands established in the north and west of the country; in 1967, the British were forced out of the Aden Protectorate and the People’s Democratic Republic of Yemen was formed in the south and east of the country. These two states that Yemen contained merged in 1990. Yemen alone, with a partial exception for Oman, was a country of the agrarian south.5 In 1970, the Yemen Arab Republic was 85 per cent self-sufficient in grains, with some 85 per cent of the population living in small villages across the land. Before the present war began in 2015, some 65 per cent of the Yemeni population lived in rural settlements.6 That said, five factors came together to produce deepening societal conflict by early this century: mass rural male labour migration to Saudi Arabia and other Gulf states (1970–1990) followed by the large-scale ejection of Yemeni labour; the surrender of development policy to the Western agencies (1980s onwards); the capture of oil revenues by elites linked to the Saleh regime (oil production rising 1988–2000 and declining thereafter); state conflict with marginalized socio-political movements (the southern secessionist movement from 1994 and the Huthi/Ansarallah7 in the north from 2004) in an uncontrolled market for small arms; and throughout, the failure of health and family-planning provision, especially in the rural areas. As just noted, the Western states and major NGOs and international agencies (UNDP, World Bank, IMF) came increasingly to direct social and economic policy under the military-security Saleh regime. By sea, Yemen occupies a strategic zone for both international military forces and world trade (Melvin, 2019). By land, it has borders with only two neighbours: a smaller border on the east with Oman and a vast border with Saudi Arabia on the north and northwest. From 2010, Yemen’s worsening economic, social, and security conditions prompted deeper political engagement by the G5 permanent United Nations Security Council (UNSC) members, the GCC, the European Union Commission (EU), and the UN Secretariat in trying to assure a transition from the 33-year rule of President `Ali `Abdullah Saleh. In this, Britain, the former colonial power in Yemen, has played a major role, serving as the convenor of the wider ‘Friends of Yemen’ group8 and as the penholder on the UNSC for drafting resolutions on Yemen. In early 2011, the first street demonstrations came out from Sanaa University to meet immediate repression. These developed into the largest protest movement of the Arab world, one that linked rural areas to the different cities of the country. We shall return below to the political measures taken by the powers concerned with ensuring transition in Yemen as these are critical to citizenship in the country, but first a word on the war launched in late March 2015.

The war Over the years, the Yemen war has often been characterized in the Western media as a forgotten war, but as should be evident from the above, it has not been so at

108  Martha Mundy all for the major powers.9 Indeed, even for journalists, it is difficult to describe the war in such terms.10 The war entailed the assembling of a military Coalition under the aegis of Saudi Arabia and the United Arab Emirates (UAE) with technical support from northern states, notably the US, UK, and France. Aerial bombardment, against which the forces based in Yemen had no defence, was the operation of choice. Targets were initially largely military in nature but from late summer of 2015 became heavily civilian.11 They included all the elements for autonomous social reproduction: agriculture, markets, fishing, transport, bridges, food processing plants, water and sewage treatment plants, technical schools, hospitals, historical cities and buildings, and religious institutions (Mundy, 2018).12 From the outset, the country was put under siege with stringent restrictions on the movement of persons and goods in and out of the country. The Coalition declared the whole of the north (Sa`dah province) a military zone. When aerial bombardment failed to produce surrender of the forces in power in Sanaa and the north of the country (Ansarallah, allied army, and popular committees), from late summer 2016 the Yemeni government based in al-Riyadh with support from the Coalition states adopted further economic measures against the population in zones under the control of Sanaa. These entailed the closure of Sanaa airport to commercial flights, move of the Central Bank to Aden, failure to pay government employees, and non-recognition of passports issued in Sanaa. In 2017, the Coalition launched a ground assault that aimed to seize the port of al-Hudaydah on the Red Sea. In a pincer movement, largely Sudanese infantry under Saudi command moved down the Red Sea coastal plain from the north, while largely Yemeni forces, under Emirati command, seized the port of Mocha in February and moved northwards. Although backed by Coalition air power, the campaign did not succeed in taking the port and city of al-Hudaydah. Early in the war, Coalition forces, under Saudi command and with the support of the Yemeni government in exile in al-Riyadh, seized the north-eastern province of al-Jawf and the city of Marib and its oil fields. Since then, the revenues of these fields have been reported to have been paid into different Islah-party linked financial institutions but not into the Central Bank in Sanaa nor, after its move, in Aden. In 2020, the forces of the Sanaa-based government (partisans of Ansarallah and members of the popular committees under the command of the bulk of the Yemeni army) retook al-Jawf and encircled the city of Marib and its oil fields. The conflict has effectively divided the country into cantons, with groups supported by Saudi Arabia aiming to hold zones of oil production or pipelines (Mar’ib, Shabwa, Mahra) and those supported by the UAE major ports (Mocha, alMukalla, al-Hudaydah, and Aden) and strategic islands (Perim, Socotra). During 2019, the south has seen clashes between forces supported by Saudi Arabia (the government in exile in al-Riyadh and the Islah party) and by the UAE (southern separatists, Salafists, Tareq Saleh’s ex-Republican Guard). Saudi Arabia negotiated a first agreement in November 2019; that failed to hold. On July 2020 in the Ritz-Carlton Hotel of al-Riyadh, Saudi Arabia declared the formation of a new

Beyond legal referent  109 government including representatives from the above factions of the Yemeni elite in a further attempt to halt the fighting between these forces. The armament for this war derives primarily from sales to members of the Coalition by the permanent members of the UNSC (USA, UK, France for heavy armament, and Russia for smaller arms).13 Beyond the lucrative flow of arms, the governments of the US, UK, and France have provided technical, operational, and training support to members of the Coalition.14 The war has grievously damaged the conditions for Yemeni citizenship – individual self-sufficiency and societal commonwealth including the integrity of the territory. In comparison, its impact on citizenship in the northern states might seem trivial, but given that degradation of individual citizenship there is integral to the prosecution of the war, we shall begin with that before returning to Yemen.

Degradation of citizenship in the imperial core The economic structures of the imperial states of the north render active participation in political decisions difficult, perhaps increasingly, for most citizens. The much greater rewards allocated to labour in the north than to labour in the south make for political quiescence of its subjects. A media owned by major economic corporations deploys idioms that render lives in the global south distant (‘a forgotten war’) or threatening (‘terrorists’) or frighteningly pitiful (‘the world’s greatest humanitarian crisis’). Escalating inequality in the northern states reduces the proportion of self-sufficient individual citizens in the commonwealth. Outside the material ballot box, corporate personae wield great weight in political decision-making. Such is the general context. Our concern here is with the particular conditions that in the course of the Yemen war have degraded the capacity of non-corporate citizens in the north to participate in political decision-making. For ease, we may break those conditions down into three rubrics: knowledge, representation, and action (legal and direct). Degradation of conditions for individual citizen political action: 1. Knowledge The knowledge of individual citizens about the contribution of northern governments to the waging of the Yemen war is constrained in four ways: closure of access for journalists to the theatre of war, invocation of state secrecy to withhold documentation, the structure of the arms industry itself, and the privatization of war. A brief note about each. Access of journalists. From late March 2015, Saudi Arabia vetted all passengers and their belongings travelling to and from Sanaa airport, thus closing that route to journalists. From mid-August 2016, the Coalition shut Sanaa airport to all commercial flights (Oxfam International, 2016). Beyond the problems of obtaining visas from the powers on the ground, simply reaching Yemen has been difficult for Western journalists. This made it harder for their media to interrogate

110  Martha Mundy the ready interpretations of think tanks linked to northern governments and to members of the Coalition. State secrecy and the extension of ‘national security’. In France, the government has no obligation to inform the parliamentary committees of arms sales (International Federation for Human Rights, 2018).15 When journalists obtained a government report that documented the use of French arms in the Yemen war, the police summoned the journalists and threatened them with prosecution.16 In the UK, the government in responding to legal challenges (see below) has repeatedly refused information as secret and vital to ‘national security’. Although northern governments are legally required to monitor arms sales to regimes violating human rights, as a major source of under-the-table political money, contractual relations of arms manufacturers can be particularly opaque (Feinstein, 2012).17 If arms sales are often thereby not transparent, it is even more difficult to obtain documentation concerning the direct support given to warring parties such as training, maintenance, aerial refuelling, target selection,18 liaison with other state parties (The National, 2018),19 battle participation (Cooper, Gibbons-Neff & Schmitt, 2018), and other tasks (Giannangeli, 2019).20 Structure of the arms industry. International structures of ownership and subcontracting in the arms industry render the identification of actors, and hence legal responsibility, complex. For example, Germany imposed a ban on arms sales to Saudi Arabia after the murder of Jamal Khashoggi, but Rheinmetall continues to produce and to export through a sub-contracting Italian company.21 And its partner in South Africa, Joint Venture Rheinmetall Denel Munitions, ships munitions and is building a factory in Saudi Arabia (Bales & Mutschler, 2019, p. 6). In Sweden, mobilization to halt the export of arms produced by Bofors has to overcome the fact that its ownership passed in 2005 to the huge Anglo-American British Aerospace systems (BAE) with the accord of the European Commission. These are but examples. Privatization of war. In all the three countries, the armies are professional, and citizen service not compulsory.22 This renders the deployment of military force less of an individual citizen matter. Beyond that, the expanding employment of mercenaries and private-company ancillary military services since the 2003 Iraq war has rendered further opaque the scale of Western support to the warring parties. While Saudi Arabia has primarily used inter-state relations for recruitment (Sudanese, Senegalese, Syrians, and among pilots Jordanian, Moroccans, and others), the UAE has from the outset hired mercenaries (ARWA, n.d.). The bulk are US-trained South Americans, especially Colombians, but also, on a smaller scale, former US military (Roston, 2018). This trade reduces knowledge about Western involvement in military conflict, through both the privacy of commercial contracts and the ambiguity of the legal status of mercenary fighters. Private enterprises may also conduct training on weapons in Western countries. In France, substantial government support went to the Belgian arms company John Cockerill in establishing a centre for Saudi soldiers to train on Cockerill armoured gun-turret vehicles produced jointly with Canadian and French components (Lebel, 2020).

Beyond legal referent  111 Degradation of conditions for individual citizen political action: 2. Representation It is telling that the Western parliament with the strongest and best-informed positions on the Yemen war is that without any binding legislative power – the European Parliament. Elsewhere in the major arms-producing Western states, action by members of parliaments to translate the concerns of voters in their constituencies has encountered resistance from the executive. The political traditions of France, the UK, and the US differ, but in all, the executive treats the support offered to Saudi Arabia and the Emirates as a matter of national security. In France, it is only since 2008 that the parliament acquired the right to vote on going to war – a vote never held in the Fifth Republic – and on sending troops overseas (Assemblée Nationale, 2008). Unlike the UK and US parliaments, the French Assemblée Nationale has held no debate on arms sales to Saudi Arabia and the UAE (France info, 2019). When during a session of questions to the government in February 2019, a member of parliament Sébastien Nadot unfolded a sheet with the phrase ‘La France tue au Yemen’, he was disciplined and fined. Britain having been the colonial power in Aden until 1967, its members of parliament have considerable knowledge of Yemen. There have been parliamentary debates on arms sales to the belligerents and committee reports on the topic.23 Yet the Royal Prerogative hangs over all that governs foreign and military affairs.24 Hence, from 2016 onwards, the government has refused to grant the Commons a vote, leaving vigorous debate and damning committee reports without effect (Stone, 2016). As we shall see below, this has prompted individual citizen action, coordinated through campaign organization, to take the slow path of courts of law. The powers of the two houses in the US to vote on war and arms sales were strengthened in the wake of the Vietnam War. The US Arms Export Control Act of 1976 gives the House of Representatives and the Senate the right to vote in disapproval of major arms exports (Congressional Research Service, 2020). Both houses must vote on the text; to counter a presidential veto, a two-thirds majority is required in both houses. Major votes concerning arms sales to Saudi Arabia during the Yemen war have twice met with presidential vetoes. Degradation of conditions for political action by citizen organization: 3. Legal and direct action If elected representatives appear able, at best, to know, to document, and to contest but not to stop the participation of their governments in the Yemen war, any individual citizen action has had to seek other means. In the UK and the US, the top arms suppliers, following the failure of mass street-protests to stop the invasion and occupation of Iraq, it is evident that such a tactic is ineffective.25 Thus, in France, Italy, and Spain, direct and union action have occurred; in this movement, the International Longshoremen’s Association has been prominent (Fox-Hodess, 2019). For the first time in French history, the Communist Party has taken a position against the country’s external arms sales.26

112  Martha Mundy In the UK, the route through the courts remained open. In December 2016, the ‘Campaign against the Arms Trade’ (CAAT) filed a claim for judicial review in the district court against the Secretary of State for International Trade, the official responsible for the licensing of arms sales.27 On 10 February 2017, the judges found for the government.28 The government lawyers gave much of their evidence in closed-court sessions, arguing for its confidentiality because it included inside knowledge of Saudi targeting and drew on a record of strikes compiled by the government, abundant material, they argued, not available to the plaintiff and interveners (Williamson, 2019).29 CAAT appealed the decision. In the June 2019 appeal court decision, the government lost the case.30 The appeal court judges accepted that whatever the government’s secret information concerning targeting and intent, there were clear cases of violation of international humanitarian law (IHL). But the case did not hinge on that. Rather, according to EU guidelines and the UK’s own rules governing arms exports, the government should monitor the record, i.e. the overall pattern, and not just particular instances, of possible violations of IHL. It appeared that the UK government had a kind of excel sheet, called ‘the tracker’, of Saudi bombing in which there was a column for incidents that constituted possible violations of IHL. But after some months of the war, the government had deleted that column. In short, the judgement rested on the finding that, in the absence of a record, the Secretary of State could not make a rational decision concerning whether the government was failing to act according to its own rules and EU guidance. It appeared, moreover, that the government could not say why, or by whom, the column had been deleted. In response to the judgement, the government stated that it was completing earlier arms orders but taking no new orders. Parliamentary questioning revealed that the government was later signing off a few licenses. Just over a year after the 2019 ruling, the Secretary of State announced to parliament that the government was resuming all arms sales since it now had a ‘revised methodology’ for reviewing the record of strikes.31 On this basis, the government stated that the breaches of IHL were but ‘isolated incidents’ and that it was hence clearing the backlog and considering new armament orders for Saudi Arabia and the UAE. The ‘revised methodology’ and the record it produced remain secret.32

Degradation of citizenship in Yemen An internationally managed transition As noted above, from 2010 the GCC led by Saudi Arabia, together with international powers, intensified their attempts to manage the economic and political tensions in Yemen. As demonstrations, marches, and sit-ins extended across the major cities of the country from February 2011, the days of the regime of `Ali `Abdullah Saleh were clearly numbered. On 18 March the President’s military massacred demonstrators as they marched towards the Presidential Palace. Following that, persons and parties who had worked with the regime over the previous decades split from the President, most prominently a leader of the Islah party, Hamid `Abdullah al-Ahmar, and the Salafist General `Ali Muhsin

Beyond legal referent  113 al-Ahmar.33 These figures, decidedly corporate citizens of Yemen, then protected the demonstrators in ‘Change Square’ physically but placed them effectively under their control. In April 2011, UN Secretary General Ban Ki Moon appointed a special advisor to Yemen, Dr Jamal Benomar. In the same month, the GCC ambassadors, the ambassadors of the five UNSC permanent members, of the EU, and of the Arab League, with guidance from Benomar, launched what became known as the ‘GCC initiative’.34 This developed a mechanism for Yemen’s government once President `Ali `Abdullah Saleh would resign. In late November 2011, agreements were signed in al-Riyadh by two political blocks, ‘the National Coalition’ (the General People’s Congress (GPC) and its allies) on the regime side and the ‘National Council’ (Joint Meeting Parties and their allies) for the opposition side.35 Two political parties were not among the signatories: the Ansarallah movement and the Southern separatist movement al-Hirak. The agreements specified that the President, granted immunity along with his associates, should hand over power to his Vice-President.36 An ‘election’ was then to be held – in the event for the sole candidate – to be ratified by a vote in the parliament (although the succession was constitutionally irregular), a national dialogue convened under UN auspices so as to draw up a new constitution, and general elections organized. The agreed term for the transitional presidency was two years from the date of the ‘election’ of Vice-President `Abd Rabbuh Mansur Hadi as president on 21 February 2012. Saleh resigned on the 27 February 2012. Although the vote in parliament gave its accord to the transitional presidency, clause 4 of the GCC agreement was clear in its treatment of constitutional issues: ‘The GCC Initiative and the Mechanism shall supersede any current constitutional or legal arrangements. They may not be challenged before the institutions of the State’.37 The national dialogue conference was held and drafts of a constitution drawn up, but no referendum was held on the constitution nor were elections held during Hadi’s two-year term. On 10 February 2014, ten days before his term was to end, Hadi announced the division of the country into six regions, a proposal immediately rejected by the Ansarallah movement and the Hirak and by large demonstrations across the country (see Al Jazeera, 2014). The political parties stitched together an agreement to extend Hadi’s mandate for a further year, ostensibly to hold elections and a referendum on a constitution, but without any parliamentary approval. On 26 February 2014, acting under Chapter 7 of the UN Charter, the Security Council issued resolution 2140 welcoming the work of the World Bank and the IMF and demanding the implementation of the GCC initiative (United Nations Security Council, 2014). Yemen was moving to a grave constitutional crisis under international mandate.38 If clause 4 of the GCC Agreement specified the suspension of the existing legal order, article 4 of the Yemeni constitution specified that as a republic, ‘The people of Yemen are the possessor and the source of power’.39 In spite of Hadi’s limited constitutionality, as acting president he carried on with implementation of the recipes of the IMF and World Bank for economic reform. In August of 2014, he announced a hike in the price of fuel as part of the

114  Martha Mundy removal of subsidies. This move spurred major protests, called for by Ansarallah. In September, Ansarallah militias moved south through historical strongholds of the al-Ahmar clan and by September 21 came into Sanaa. Large sections of the army went over to them, military opposition being essentially from forces linked to Islah Party and General `Ali Muhsin al-Ahmar. There ensued a largely bloodless takeover of the city. On 21 September, all the major Yemeni political parties, including Ansarallah, signed the Peace and National Partnership agreement.40 The UN special advisor Jamal Benomar oversaw the signing, and Secretary General Ban Ki-Moon congratulated the parties and urged immediate implementation.41 The southern separatist movement (Hirak) was not a signatory, but the agreement specified the appointment of two presidential advisors, one from the Hirak and the other from Ansarallah. What else differed in this text from that of the earlier GCC initiative agreement? While the text focused on the rapid implementation of the results of the national dialogue conference, it omitted any reference to the GCC initiative and to outside powers save to the UN. It charged the President with forming a technocratic government and the relevant committee with rapidly completing the draft of the new constitution and submitting it to parliament (which was to be increased to include marginalized forces). It specified giving priority to the elaboration of economic plans of a more socially and economically egalitarian nature. The different political parties signed singly and not as members of two blocks. This marked, for the first time in very many years, the ejection of the GCC, Saudi Arabia, and their Western backers from the driver’s seat of Yemen’s politics. The weeks and months that followed witnessed large, inclusive political meetings. At the same time, Sanaa suffered major terrorist bombings (mostly attributed to al-Qaida) that led to a tightening of security control over the city which has haunted political life ever since. From late 2014, tensions grew between those supported by the Gulf states and the new masters of the city, and between acting president Hadi and both his own party, the GPC now led by former president Saleh, and Ansarallah. On 7 November 2014, on the request of the US, the UNSC imposed sanctions on two Huthi commanders and `Ali `Abdullah Saleh; this was the first time that individuals were so named. In January 2015, following clashes between the presidential guard and the Huthis in Sanaa, Hadi, along with the Vice-President/Prime Minister Khalid Bahah, tendered his resignation.42 The parliament, never having agreed to the extension of Hadi’s term in 2014, could not constitutionally accept a resignation. February 15 the UNSC issued resolution 2201: this emphasized that Yemen’s political transition must continue in accordance with the GCC initiative, the National Dialogue Conference, and the Peace and National Partnership agreement and demanded that ‘the Huthis’ release President Hadi, Prime Minister Bahah, and cabinet members from ‘house arrest’ and withdraw from government institutions in Sanaa (United Nations Security Council, 2015). Acting President Hadi left Sanaa secretly on February 21, the day that the irregular extension of his term for a third year ended. Shortly thereafter, he was reported to have sent a letter to the parliament in Sanaa retracting his resignation.

Beyond legal referent  115 The run-down to war had in fact begun for the Arab and Western sponsors of the GCC initiative. Embassies and Western organizations were shutting their doors in Sanaa, the US announced closure on 10 February, the Saudi on 13, and the World Bank on 18. On 27 February, Kuwait, the UAE, and Saudi Arabia stated that they would move their embassies to Aden. Some weeks later on March 21, in his first televised address since leaving Sanaa, Hadi declared Aden the temporary capital, but on 25 March, as Sanaa forces neared Aden, the Saudi-led Coalition bombing campaign began, and Hadi left Aden for al-Riyadh. From there he issued letters calling for military support to restore his ‘legitimate government’. Almost immediately, jurists cast doubt on Hadi’s legal right to call for such foreign intervention (see e.g. Dyke, 2015). War and citizenship in Yemen As the bombs fell, what did the patrons of the GCC initiative do politically? There were three weeks of silence from the UNSC before it issued resolution 2216 on 14 April 2015. Of the permanent members only Russia abstained, judging the resolution not conducive to peace. The text of UNSCR 2216, which has not been superseded over more than five years of war in Yemen, differs from preceding resolutions in a number of ways. It opens by noting the letters from the ‘President of Yemen’ to the Security Council and to Gulf states asking for ‘support, by all necessary means and measures, including military intervention … to protect Yemen and its people from … the Houthis’. It urges all Yemeni parties to attend a conference in Riyadh called for by Hadi and omits mention of the Peace and National Partnership Agreement while emphasizing the GCC Initiative and the National Dialogue Conference repeatedly. It mentions the good offices of the UN but not Benomar by name and adds the State ambassadors who aided with the GCC initiative. It introduces (clause 15) an arms embargo (now extended from the three individuals identified in November 2014) on two persons, `Abd al-Malik al-Huthi and Ahmad son of `Ali `Abdullah Saleh, and calls on ‘Member States, in particular States neighbouring Yemen, to inspect … all cargo to Yemen, in their territory, including seaports and airports ’. It deplores ‘any attempt by the Houthis to take actions that are exclusively within the authority of the legitimate Government of Yemen’ and notes the ‘destabilizing actions taken by the former President of Yemen, `Ali `Abdullah Saleh, including supporting the Houthis’ actions, which continue to undermine the peace, security and stability of Yemen’ (UNSCR 2216). Two days after the issuance of UNSCR 2216, Jamal Benomar resigned. On April 27, following his last submission to the Security Council, Benomar gave a press briefing. In that, he regretted the rush to war; expressed his fear that the sanctions imposed in UNSCR 2216 would inadvertently stop the passage of humanitarian aid and goods to Yemen; stated that political negotiations between Yemeni parties had continued intensively with wide agreement on all major issues save the presidency; and reiterated that, so long as all Yemeni parties could negotiate without outside interference, peace remained possible.43

116  Martha Mundy Let us return to the text of 2216, drafted by the UK as penholder on the Security Council. While the Council is the highest seat of power, it is not a judicial but an executive or political body. Hence, the resolution merely assumes, without addressing the legal bases for such an assumption, that Hadi heads the ‘legitimate government’ of Yemen (from al-Riyadh). It also invites all member states, and particularly those neighbouring Yemen, to vet the flow of all persons and goods into Yemen (by sea or air). The reason for this is an arms embargo imposed on two individuals (presumably to be added to the three individuals sanctioned by the UNSC in November 2014). The resolution merely omits mention of the Peace and National Partnership Agreement wherein Ansarallah (not ‘the Houthis’) appears as a major Yemeni signatory. In these ways, the resolution excels in the deliberate ambiguity, which has come to characterize its positions on matters of international war and sanctions in the Arab lands since the invasion of Iraq.44 Where the resolution goes beyond ambiguous phraseology is in the section ‘Acting under Chapter VII of the Charter of the United Nations’, that specifies seven ‘further demands’ on ‘the Houthis’ to surrender all arms, withdraw from Sanaa and elsewhere, and ‘cease all actions that are exclusively within the authority of the legitimate Government of Yemen’. In short, albeit with deliberate ambiguity, the resolution outlaws the powers in Sanaa, backs the Yemeni politicians based in al-Riyadh, gives a free hand to Saudi Arabia to control any movement of goods into Yemen, and three weeks into the Coalition bombing campaign fails to mention the same. Such an omission de facto blesses the Coalition onslaught. The UNSC has issued no further substantive resolution in the last five years of war.

A coda Individual citizens of the Western states supporting the war in Yemen do not suffer destruction of their respective commonwealths. The Western governments’ participation in the war brings capital from the Gulf and from the devastated commonwealth of Yemen. That capital flows primarily into limited-liability corporate bodies, enhancing their political power as against that of individual citizens of Western polities. Not surprisingly, Western governments tied to such ‘corporate citizens’ maintain secrecy about their participation in the Yemen war. In this restricted sense, the war may be said to degrade the citizenship of individuals in Western states. By contrast, the effects on Yemeni citizenship of the mode of international governance described above are patent. Clause 4 of the original GCC agreement reads: ‘The GCC Initiative and the Mechanism shall supersede any current constitutional or legal arrangements. They may not be challenged before the institutions of the State’. Leaders of Yemeni political parties signed the agreement named for a regional inter-state body of which Yemen was not a member in the capital of Saudi Arabia. No popular referendum was held on its contents. Clause 4 seemingly has allowed the UNSC to declare as ‘legitimate president’ of Yemen a leader first ‘elected’ as sole candidate for two years, then granted a third year

Beyond legal referent  117 by leaders of Yemeni political parties,45 and thereafter resident abroad in the state leading a coalition in war against Yemen. During the time of this ‘legitimate president’ in Yemen, he oversaw no general elections. Clause 4 has a very long reach. The outside parties to the war have pillaged the Yemeni commonwealth and divided the country into cantons. With the destruction of other sources of income, young men have little choice but to join one or other of the fighting forces. Hunger stalks the land, while there has been no repatriation from financial paradises of the West of the billions traceable to UN-sanctioned persons of the Saleh clan (CiFAR, 2020). It is not that the people of Yemen have not tried to speak: at the end of the first year of the war on 26 March 2016 and of the second year of the war on 26 March 2017, more than a million persons demonstrated in Sanaa against the Coalition war. Who has heard their voices? The transitional authority, the Supreme Political Council in Sanaa, has striven to continue with the work of ministries (Schwedler, 2016).46 Although it maintains control of the most populated parts of Yemen, it does not accept a partitioned country. Meanwhile, professional assassination by the Coalition has eliminated the most promising leader;47 and the self-anointed ‘international community’ dismissed in total silence a comparatively progressive political manifesto from the powers in Sanaa (Republic of Yemen, 2019). More widely, the precedent set by UNSC governance of Yemen should frighten individual citizens in both north and south.48

Notes 1 This is true in the Universal Declaration of Human Rights adopted by the UN General Assembly 10 December 1948 and likewise in the sociological essay of T.H. Marshall, 1950. For a history of rights that gives due weight to the relation between north and south, see Tierney, 1997. 2 Mirowski dissects neo-liberalism as simultaneously an economic and a political programme. 3 For a popular book on the first and a scholarly book on the second, see Hartmann, 2002 and van Harte, 2007. 4 On the former People’s Democratic Republic of Yemen see Lackner, 1985; for an overview political history in English see Dresch, 2000, and for an attempt at critique of the standard history, Blumi, 2018. For more recent political developments in Yemen see the collection of essays in Carapico, 2016 and Phillips, 2011. 5 For the commonalities of the agrarian south, see Patnaik & Moyo, 2011 6 For an overview of the agrarian transformation of Yemen, see Mundy, al-Hakimi & Pelat, 2014. 7 This chapter uses the term Ansarallah, adopted by the movement from the early 1990s, in preference to the term Huthis (usually spelt Houthi in the Western press) which identifies the movement by the family name of its first leaders. That said, when other sources cited here write of the movement as ‘the Houthis’, the identification Huthi/ Houthi should be understood as synonymous with Ansarallah. 8 On the formation of the group in 2010 see Foreign & Commonwealth Office and Department for International Development, 2013, and account of its work at the end of 2013 in Foreign & Commonwealth Office, 2013.

118  Martha Mundy 9 In an early political analysis, I attempted to make sense of this rationale. See Mundy, 2015. 10 A useful compendium of time-lines, press reports, and statements (primarily in English) on the war can be found at https://en​.wikipedia​.org​/wiki​/Saudi​_Arabian​-led​_intervention​_in​_Yemen. The report contains 700 footnotes. 11 See the Yemen Data Project (n.d.) for the periodicity of strikes. 12 Analyses of the pattern of bombing are now available on the Yemen Data Project site, in the New York Times, and the French site Disclose. On fishing see Al-Fareh, 2018. 13 For an overview of arms sales and deliveries as of March 2019 see Parlo-Freeman, 2019. China appears to be a minor supplier of armament in the war. 14 On UK training for the navies of the UAE, Saudi Arabia, and Bahrain, see Miller, 2020. 15 ‘In France, the decision to export arms lies on the responsibility of the Prime Minister, the advice of a commission chaired by the Secretary General of National Defense and National Security, and is composed of the ministries in charge of Foreign Affairs, National Defense and Economy’ (International Federation for Human Rights, 2018). 16 https://made​-in​-france​.disclose​.ngo​/en​/chapter​/yemen​-papers/. 17 The analyses of the Saudi connection in the UK (BAE) occupy much of Sections II and III (pp. 33–234) and the political functioning of armament industries in USA Section IV (pp. 237–431). 18 Occasionally a member of the UK Parliament speaks from direct observation: from the debate on Yemen 26 October 2016 in the UK parliament, Bob Stewart (Beckenham) (Conservative): ‘I visited the air operations centre in Riyadh, where British air force personnel are helping the Saudis in their target planning. I have also talked to the pilots and the operational planners there. They assure me – and I believe them – that they are doing everything in their power to stop innocent civilians in Yemen dying. We should get that point across’. https://hansard​.parliament​.uk​/Commons​/2016​-10​-26​/debates​ /61DFF92D​-1BE0​-4909​-8020​-76FC80CA5136​/Yemen. More generally, however, the degree of military collaboration is visible only through investigative journalism such as the reports by Kennard & Curtis, 2020. For the summary on UK military involvement inside Yemen, see Curtis & Kennard, 2019. 19 It is only when top brass makes a public visit that the curtain is briefly deliberately lifted: the visit of the Centcom Commander General J. Vogel to Aden in 5 September 2018, see The National, 2018. 20 The curtain can also be briefly lifted when troops deployed are injured; see Giannangeli, 2019. 21 For German weapons sales more generally, see the report of Wisotski, 2020. 22 The UK scrapped compulsory military service for men in 1960, the USA in 1973, and France in 1996/2001. Only in France have there been proposals to bring back a form of national service. 23 For an overview updated 10 July 2020 of the last see House of Commons Library, 2020 and the report of the House of Lords Select Committee on International Relations, 2019. 24 Prerogative powers are those of the sovereign (in the name of the monarch) and vested in the government of the day: for the briefing paper of the UK Parliament on the Royal Prerogative see House of Commons Library, 2019. Such were critical to the power of the Prime Minister to take Britain into the Iraq war. 25 The same was evident at the time, but after Stop the War Coalition (StWC) seized leadership of mobilization, it marginalized direct action. That alone, if massive enough, might have stopped the rush to war. In the case of the Yemen war, StWC for the first three years of the war largely ignored the issue. It was constrained by its alliance, for internal UK reasons, with the Muslim Association of Great Britain (MAB), which is led by figures close to the Muslim Brotherhood. 26 In 2017, see http://international​.pcf​.fr​/node​/108790, and in April 2019 as official policy https://www​.pcf​.fr​/ventes​_d​_armes​_la​_france​_doit​_stopper​_ses​_ventes​_d​_armes​_aux​

Beyond legal referent  119 _pourvoyeurs​_de​_guerres. The party is historically close to unions inside French arms industries. 27 CAAT is a non-profit campaigning organization and as such does not benefit from the tax status of a charity nor the legal protections of a limited-liability company. Its submission contained information produced from different sources, some individual, and was backed by written submissions of evidence from four NGOs, named as intercessors in the court case, Amnesty International, Human Rights Watch, UK Rights, and Oxfam. 28 The text of the judgement is available on the CAAT website: https://www​.caat​.org​.uk​/ resources​/countries​/saudi​-arabia​/legal​-2016​/2017​-07​-10​.judgment​.pdf. 29 A short summary of the arguments can be found in Williamson, 2019. 30 The text of the judgement is at https://www​.judiciary​.uk​/wp​-content​/uploads​/2019​/06​/ CAAT​-v​-Secretary​-of​-State​-and​-Others​-Open​-12​-June​-2019​.pdf. For a summary of the arguments, see Habtelasie, 2019. 31 The written statement (Trade Update: Written statement – HCWS339) submitted to parliament is available here https://www​.parliament​.uk​/business​/publications​/ written​- questions​- answers​- statements​/ written​- statement​/ Commons​/ 2020​- 07​- 07​/ HCWS339/. 32 Only the total number, something over 500 incidents, has been revealed. See the record of the short debate following the ‘urgent question’ posed by MP Emily Thornberry (Lab) in the UK Parliament 13 July 2020: https://hansard​.parliament​.uk​/commons​ /2020​-07​-13​/debates​/617B65CA​-CB18​-4EFA​-A3F9​-783EC9184459​/Sal​eOfA​rmsW​ arInYemen. See further the questions posed by Leigh Day, the lawyers for CAAT, to the government as here: https://www​.caat​.org​.uk​/resources​/countries​/saudi​-arabia​/ legal​-2016​/supreme​-court​/2020​-07​-22​.ld​-to​-gld​.pdf. 33 These figures form part of the economic cartels that grew under Saleh to dominate the modern sectors of the Yemen economy, see Salisbury, 2011, p. 17: ‘The importance of these elite commercial networks cannot be understated. A survey undertaken … shows that less than ten major groups from the tribes, military and business elite control 80 percent plus of the country’s import, manufacturing and processing businesses, local commercial banks (and hence credit), telecommunications firms, and most of Yemen’s major transport companies. Most importantly … they control the commercial networks that import and supply basic goods crucial to households, while in many cases also controlling the state apparatus required to implement economic reforms’. On Hamid al-Ahmar, the telegram of 31 August 2009 from US Embassy in Sanaa of released by Wikileaks gives background, see https://wikileaks​.org​/plusd​/cables​/09SANAA1617​_a​ .html. The number of recipients of the cable presages the future coordination described above. 34 For an informed account sympathetic to the work of the ‘GCC Initiative’ see E. Burke 2013. 35 For the English translation of the text of the agreement, see https://osesgy​.unmissions​ .org​/sites​/default​/files​/gcc​_initiative​_yemen​_english​.pdf. 36 The immunity so granted was to render further complex the retrieval of assets abroad owned by Saleh and his family specified by UNSC in November 2014. 37 For the English translation of the text of the implementation mechanism, see https:// osesgy​.unmissions​.org​/sites​/default​/files​/5​-yemen​_mechanism​_english​_official​_v2​_0​ .pdf. 38 Even those sympathetic to such a mandate recognize this in retrospect; see Alshuwaiter, 2020. 39 For an English translation of the revised constitution of 2001, see https://www​.refworld​ .org​/pdfid​/3fc4c1e94​.pdf. The full text of Article (4) reads: ‘The people of Yemen are the possessor and the source of power, which they exercise directly through public referendums and elections, or indirectly through the legislative, executive and judicial authorities, as well as through elected local councils’.

120  Martha Mundy 40 For the text of the agreement, see https://peacemaker​.un​.org​/sites​/peacemaker​.un​.org​ /files​/YE​_140921​_Pea​ceNa​tion​alPa​rtne​rshi​pAgr​eement​_en​.pdf. For the signatories, see https://moragboonpress​.net​/news5440​.html for the signatories. 41 See the press release at https://www​.un​.org​/press​/en​/2014​/sgsm16168​.doc​.htm. 42 A year later, in al-Riyadh, Hadi replaced Bahah with General Ali Muhsin al-Ahmar. 43 Jamal Benomar (Special Adviser to the Secretary-General) on Yemen – Security Council Media Stakeout (27 April 2015) at http://webtv​.un​.org​/watch​/jamal​-benomar​ -special​-adviser​-to​-the​-secretary​-general​-on​-yemen​-security​-council​-media​-stakeout​ -27​-april​-2015​/4199486038001. See also the interview of 19 April 2015 with Oksana Boyko in the RT programme Extreme Diplomacy at https://www​.youtube​.com​/watch​ ?v​=xuHRy03Tes4. 44 Gordon, 2013, notes that such is also true of UNSC sanctions with regard to Iran. See also Gordon, 2018 on Yemen. 45 A student paper concluded that the ‘failure’ of the GCC initiative resulted from its cutting a deal among the ‘power-brokers’, the corporate citizens of Yemen, excluding the bulk of individual citizens, see K. Salmutter, 2017, Student prize paper of the Kuwait Program at Sciences Po, Paris. 46 See the report of Schwedler (2016) from 17 August 2016 on the formation of the Supreme Political Council in Sanaa. 47 Salih al-Sammad was assassinated 28 April 2018 in a professional operation, which was taken by pro-Ansarallah media to indicate either US or Israeli expertise; see ParsToday, 2018 and IUVM Press, 2018. Al-Sammad was an intelligent, charismatic leader and not a religious figure. 48 Only after almost three years of war was there serious debate in the UNSC, albeit without reversal of UNSCR 2216. See the interventions of Bolivia and Russia in the debate on United Nations Security Council, 2018.

References Al-Fareh, A.M. (2018). The impact of the war in Yemen on artisanal fishing in the Red Sea. Retrieved from http://eprints​.lse​.ac​.uk​/91022​/1​/Al​-Fareh​_The​-impact​-of​-war​_Author​ .pdf. Al Jazeera. (2014). Yemen to become six-region federation. Retrieved from https:// www​.aljazeera​.com​/news​/middleeast​/2014​/02​/yemen​-become​-six​-region​-federation​ -2014210124731726931​.html. Alshuwaiter, M. (2020). President Hadi and the future of legitimacy in Yemen. Middle East Institute (14 May). Retrieved from https://www​.mei​.edu​/publications​/president​ -hadi​-and​-future​-legitimacy​-yemen. ARWA. (n.d.). Use of foreign mercenaries. Retrieved from http://arwarights​.org​/foreign​ -mercenaries​-file. Assemblée Nationale. (2008). Fiche de synthèse no 47: la déclaration de guerre et les interventions armées à l’étranger. Retrieved from http://www2​.assemblee​-nationale​ .fr​/decouvrir​-l​-assemblee​/role​-et​-pouvoirs​-de​-l​-assemblee​-nationale​/les​-fonctions​ -de​-l​-assemblee​-nationale​/les​-fonctions​-de​-controle​-et​-l​-information​-des​-deputes​/la​ -declaration​-de​-guerre​-et​-les​-interventions​-armees​-a​-l​-etranger. Bales, M., & Mutschler, M. (2019). German arms in the Yemen war: For a comprehensive arms embargo against the coalition. BICC Policy Brief (2019/2). Retrieved from https://www​.bicc​.de​/uploads​/tx​_bicctools​/pb2​_19​_yemen​_e​_web​.pdf. Blumi, I. (2018). Destroying Yemen: What chaos in Arabia tells us about the world. Berkeley: University of California Press.

Beyond legal referent  121 Burke, E. (2013). EU-GCC Cooperation: Securing the transition in Yemen. Retrieved from https://www​.files​.ethz​.ch​/isn​/166407​/Edward​_Burke_-​_EU​-GCC​_Cooperation​ _Securing​_the​_Transition​_in​_Yemen​_1042​.pdf. Carapico, S. (Ed.) (2016). Arabia incognita: Dispatches from Yemen and the Gulf. Charlottesville: Just World Books. CiFAR (Civil Forum for Asset Recovery). (2020). Yemen’s stolen assets: Past and future. Retrieved from https://cifar​.eu​/wp​-content​/uploads​/2020​/05​/Yemen​-Assets​-EN​.pdf. Congressional Research Service. (2020). Arms sales: Congressional review process (updated 17 July). Retrieved from https://fas​.org​/sgp​/crs​/weapons​/RL31675​.pdf. Cooper, H., Gibbons-Neff, T., & Schmitt, E. (2018). Army special forces secretly help Saudis combat Yemen rebels. The New York Times (3 May). Retrieved from https://www​ .nytimes​.com​/2018​/05​/03​/us​/politics​/green​-berets​-saudi​-yemen​-border​-houthi​.html. Curtis, M., & Kennard, M. (2019). Britain’s seven covert wars: an explainer. Retrieved from http://markcurtis​.info​/2019​/10​/01​/britains​-seven​-covert​-wars​-an​-explainer/. Dresch, P. (2000). A history of modern Yemen. Cambridge: Cambridge University Press. Dyke, J. (2015). Is the Saudi war on Yemen legal? The New Humanitarian (3 April). Retrieved from https://www​.thenewhumanitarian​.org​/analysis​/2015​/04​/03​/saudi​-war​ -yemen​-legal. Feinstein, A. (2012). The shadow world: Inside the global arms trade. London: Penguin. Foreign & Commonwealth Office (2013). Friends of Yemen: How has it performed and where is it going? Retrieved from https://www​.refworld​.org​/pdfid​/55375d834​.pdf. Foreign & Commonwealth Office and Department for International Development (2013). Friends of Yemen: Questions and answers. Retrieved from https://www​.gov​.uk​/ government​/news​/friends​-of​-yemen​-q​-a. Fox-Hodess, K. (2019). How dockworkers are fighting the arms trade. The Nation (16 July). Retrieved from https://www​.thenation​.com​/article​/archive​/dockworkers​-saudi​ -yemen​-strike/. France info. (2019). Armement français au Yémen: ‘Matignon ment’, dénonce le député Sébastien Nadot. Retrieved from https://www​.francetvinfo​.fr​/economie​/emploi​/metiers​ /armee​-et​-securite​/armement​-francais​-au​-yemen​-matignon​-ment​-denonce​-le​-depute​ -sebastien​-nadot​_3399499​.html. Giannangeli, F. (2019). SAS soldiers on aid mission injured in roadside bombing. Express (17 February). Retrieved from https://www​.express​.co​.uk​/news​/world​/1088481​/british​ -soldiers​-injured​-bomb​-yemen​-sas​-aid​-humanitarian​-mission. Gordon, C.J. (2013). Crippling Iran: The UN Security Council and the tactic of deliberate ambiguity. Georgetown Journal of International Law, 44(3), 973–1006. Retrieved from https://digitalcommons​.fairfield​.edu​/cgi​/viewcontent​.cgi​?article​=1018​&context​ =philosophy​-facultypubs. Gordon, C.J. (2018). Yemen: Where is the UN security council? Le Monde diplomatique (6 November). Retrieved from https://mondediplo​.com​/outsidein​/yemen​-where​-is​-the​ -un​-security​-council. Habtelasie, A. (2019). A humanitarian intervention? The court of appeal decision in CAAT v Secretary of State for Trade. Judicial Review, 24(3), 169–181. Hartmann, T. (2002). Unequal protection: The rise of corporate dominance and the theft of human rights. New York: Rodale/St Martin’s Press. House of Commons Library. (2019). The royal prerogative. Retrieved from https:// commonslibrary​.parliament​.uk​/research​-briefings​/sn03861/. House of Commons Library. (2020). UK arms export to Saudi Arabia. Retrieved from https://commonslibrary​.parliament​.uk​/research​-briefings​/cbp​-8425/.

122  Martha Mundy House of Lords Select Committee on International Relations. (2019). Yemen: Giving peace a chance (19 February). Retrieved from https://publications​.parliament​.uk​/pa​/ld201719​ /ldselect​/ldintrel​/290​/29002​.htm. International Federation for Human Rights (2018). French arms sales: ‘indicators of presence’ in Yemen and the necessary reform of control mechanisms. Retrieved from https://www​.fidh​.org​/en​/region​/north​-africa​-middle​-east​/yemen​/fidh​-org​/en. IUVM Press. (2018). Investigating the role of Israel in assassination of martyr Saleh al-Samad. Retrieved from https://iuvmpress​.com​/23537. Kant, I. [1798] (1993). Essays and treatises on moral, political, and various philosophical subjects: Essays and treatises. Vol. 1. London: Thoemmes Press. Kennard, M., & Curtis, M. (2020). British foreign policy declassified: Yemen. Retrieved from http://markcurtis​.info​/category​/yemen/. Koskenniemi, M. (2001). The gentle civilizer of nations: The rise and fall of international law 1870–1960. Cambridge: Cambridge University Press. Lackner, H. (1985). P.D.R. Yemen: Outpost of socialist development in Arabia. London: Ithaca Press. Lebel, A. (2020). Bienvenu à commercy: Nos amis les soldats saoudiens. Amnesty International, Armes. La France. Terre D’Accueil. Retrieved from https://www​ .amnesty​.fr​/actualites​/revelations​-en​-france​-un​-centre​-de​-formation​-pour​-des​-soldats​ -saoudiens. Marshall, T.H. (1950). Citizenship and social class. In T.H. Marshall (Ed.), Citizenship and social class and other essays (pp. 1–85). Cambridge: Cambridge University Press. Melvin, N. (2019). The foreign military presence in the Horn of Africa region. SIPRI Background Paper (April). Retrieved from https://sipri​.org​/sites​/default​/files​/2019​-04​ /sipribp1904​.pdf. Miller, P. (2020) ‘Paralysing a nation’: Evidence emerges of Royal Navy’s complicity in Saudi-led sea blockade of Yemen, Declassified UK (7 July 2020). Retrieved from https://www​.dailymaverick​.co​.za​/article​/2020​-07​-07​-paralysing​-a​-nation​-evidence​ -emerges​-of​-royal​-navys​-complicity​-in​-saudi​-led​-sea​-blockade​-of​-yemen/​#gsc​.tab​=0. Mirowski, P. (2013). Never let a serious crisis go to waste: How neoliberalism survived the financial meltdown. London: Verso. Mundy, M. (2015). Yemen as laboratory: Why is the West so silent about this savage war? Counterpunch (23 September). Retrieved from https://www​.counterpunch​.org​/2015​/09​ /23​/yemen​-as​-laboratory​-why​-is​-the​-west​-so​-silent​-about​-this​-savage​-war/. Mundy, M. (2018). The strategies of the coalition in the Yemen war: Aerial bombardment and food war. Retrieved from https://sites​.tufts​.edu​/wpf​/files​/2018​/10​/Strategies​-of​ -Coalition​-in​-Yemen​-War​-Final​-20181005​-1​.pdf. Mundy, M., al-Hakimi, A., & Pelat, F. (2014). Neither security nor sovereignty: The political economy of food in Yemen. In Z. Babar & S. Mirgani (Eds.), Food security in the Arab world (pp. 137–159). London: Hurst Publishers. Nadot, S. (2019). La France tue au Yémen. Retrieved from https://sebastiennadot​.fr​/la​ -france​-tue​-au​-yemen/. Oxfam International. (2016). Closure of Yemen’s main airport puts millions of people at risk. Retrieved from https://www​.oxfam​.org​/en​/press​-releases​/closure​-yemens​-main​ -airport​-puts​-millions​-people​-risk. Parlo-Freeman, S. (2019). Who is arming the Yemen war? An update. World Peace Foundation, Reinventing Peace. Retrieved from https://sites​.tufts​.edu​/reinventingpeace​ /2019​/03​/19​/who​-is​-arming​-the​-yemen​-war​-an​-update/.

Beyond legal referent  123 ParsToday. (2018). Yémen: qui a tué Saleh al-Sammad? Retrieved from https://parstoday​ .com​/ fr​/ news​/ middle​_ east​- i63020​- y​% C3​% A9men​_ qui​_ a​_ tu​% C3​% A9​_ saleh​_ al​ _sammad. Patnaik, U., & Moyo, S. (2011). The agrarian question in the neo-liberal era: Primitive accumulation and the peasantry. Cape Town: Pambazuka Press. Phillips, S. (2011). Yemen: Developmental dysfunction and division in a crisis state. Developmental Leadership Program Research Paper 14. Retrieved from https://www​ .dlprog​. org​/ publications​/ research​- papers​/ yemen​- developmental​- dysfunction​- and​ -division​-in​-a​-crisis​-state. Republic of Yemen. (2019). National vision: For the Yemeni modern state. Supreme Political Council (Sanaa, 29 March). Retrieved from http://yemenvision​.gov​.ye​/upload​ /National​%20Vision​%20For​%20The​%20Modern​%20Yemeni​%20State​.pdf. Roston, A. (2018). A Middle-East monarchy hired American ex-soldiers to kill its political enemies. This could be the future of war. BuzzFeed News (16 October). Retrieved from https://www​.buzzfeednews​.com​/article​/aramroston​/mercenaries​-assassination​-us​ -yemen​-uae​-spear​-golan​-dahlan. Salisbury, P. (2011). Yemen’s economy: Oil, imports and elites. Chatham House, Middle East and North Africa Programme Paper 2011/02, October. Salmutter, K. (2017). Why did the Yemen transition fail? Sciences Po, Paris. Retrieved from https://www​.sciencespo​.fr​/kuwait​-program​/wp​-content​/uploads​/2018​/05​/KSP​ _Paper​_Award​_Spring​_2017​_SALMUTTER​_Kim​.pdf. Schwedler, J. (2016). Yemeni parliamentarians vote to form a new government. Atlantic Council (17 August). Retrieved from https://www​.atlanticcouncil​.org​/blogs​/ menasource​/yemeni​-parliamentarians​-vote​-to​-form​-a​-new​-government/. Stone, J. (2016). UK government refuses to give MP’s a vote on arms sales to Saudi Arabia as US senate discusses boycott. The Independent (14 September). Retrieved from https://www​.independent​.co​.uk​/news​/uk​/politics​/saudi​-arabia​-arms​-sales​-british​ -us​-senate​-paul​-caroline​-lucas​-a7307546​.html. The National. (2018). US Centcom chief visits Yemen in warning to Iran (5 September). Retrieved from https://www​.thenational​.ae​/world​/mena​/us​-centcom​-chief​-visits​-yemen​ -in​-warning​-to​-iran​-1​.767845. Tierney, B. (1997). The idea of natural rights: Studies on natural rights, natural law and church law, 1140–1625. Michigan/Cambridge UK: Scholars Press. United Nations Security Council. (2014). Resolution 2140 (2014). Retrieved from https:// www​.un​.org​/ga​/search​/view​:doc​.asp​?symbol​=S​/RES​/2140​%282014​%29. United Nations Security Council. (2015). Resolution 2201 (2015). Retrieved from http:// unscr​.com​/en​/resolutions​/doc​/2201. United Nations Security Council. (2018). Unanimously adopting Resolution 2402 (2018). Security Council renews sanctions against Yemen, rejects alternate draft after veto by Russian Federation. Retrieved from https://www​.un​.org​/press​/en​/2018​/sc13225​.doc​ .htm. Van Harten, G. (2007). Investment treaty arbitration and public law. Oxford: Oxford University Press. Wade, R.H. (2020). Rethinking the world economy as a two bloc hierarchy. Real-World Economics Review, 92, 4–21. Retrieved from http://www​.paecon​.net​/PAEReview​/ issue92​/Wade2​.pdf. Williamson, G. (2019). Yemen conflict: Why a British court ruling could matter for Australia. Lowy Institute. The Interpreter. Retrieved from https://www​.lowyinstitute​ .org​/the​-interpreter​/yemen​-conflict​-why​-british​-court​-ruling​-could​-matter​-australia.

124  Martha Mundy Wisotski, S. (2020). Deutsche Rüstungsexporte in alle Welt? Eine Bilanz der vergangenen 30 Jahre. Peace Research Institute Frankfurt and Greenpeace (March 2020). Retrieved from https://www​.greenpeace​.de​/sites​/www​.greenpeace​.de​/files​/publications​/2020​-07​ -19​_gpd​_studie​_deutsche​_ruestungsexporte_​.pdf. Yemen Data Project (n.d.). Yemen data project. Retrieved from https://www​ .yemendataproject​.org/.

Part 3

The refiguration of institutions

7

The capture of the Polish Constitutional Tribunal and its impact on the rights and freedoms of individuals Monika Florczak-Wątor

Introduction The Polish Constitutional Tribunal (CT), though created in 1982–1986 under the communist system, has, almost from the beginning, been a disseminator of democratic values and a guarantor of the constitutional rights and freedoms of individuals. Its judicial activity, often creative and innovative, was regarded as ‘a manifestation of the general success of Polish transformation’ (Garlicki, 2019, p. 141). As well as occupying a strong position within the structure of state authorities, it also became a leading judicial organ in the landscape of European constitutional reviews (Sadurski, 2019, p. 59; Śledzińska-Simon, 2015). Although the strength and independence of the CT were consistently built up over three decades, the Polish governing party took less than five years, in the period 2015– 2019, to completely destroy it. The capture of the CT has had an enormous impact on the level of protection of Polish citizens’ rights and freedoms (Koncewicz, 2018; Bień-Kacała, 2019, p. 208). Moreover, due to the crisis around the CT, Poland has become the subject of the EU Rule of Law Framework which allows the European Council to impose sanctions on countries found to be in serious and persistent breach of fundamental EU values (Kustra, 2016, p. 364; Wyrzykowski, 2018, pp. 34–38).

The Constitutional Tribunal as the guarantor of constitutional rights and freedoms The CT was established in Poland at the end of the communist period on the basis of the amendment to the 1952 Constitution, passed by parliament in 1982.1 The act regulating the organization of the CT and the procedure for its functioning was adopted in 1985.2 The parliament appointed the first CT judges in November 1985 and the first CT judgement was issued in May 1986. The CT, as the authority implanted into a communist system, was weak in almost all respects (Garlicki, 2019, p. 142; Florczak-Wątor & Czarny, 2019, pp. 55–56). During its first 14 years of operations, its decisions on the non-conformity of statutes to the Constitution were not final and required consideration by parliament, which could reject them with a qualified majority. The formal subordination

128  Monika Florczak-Wątor of the CT to parliament was as a result of the principles of the uniformity of the authority and the supremacy of parliament that were in force at that time in Poland. Moreover, prior to 1997, individuals did not have direct access to the CT. Therefore, the CT’s ability to protect the constitutional rights and freedoms was considerably restricted, not only as a result of the limited number of those rights and freedoms provided by the 1952 Constitution, but also due to the limited scope of the competences of the CT, the restrictions concerning the legal effects of its judgements, and the lack of a constitutional complaint. Despite these difficulties, the CT soon became the main guarantor of the constitutional rights and freedoms of individuals in Poland. Its judicial activity was extensively developed after the adoption of the constitutional amendment in December 1989 which declared that the Republic of Poland was a democratic rule-of-law state. From that moment onwards, over the next seven years, CT case law was used as the main instrument in the democratisation of Poland’s political system and in the creation of effective guarantees of individual rights and freedoms. Although constitutional provisions on individual rights and freedoms were not formally amended by parliament during this time, they were deeply modified on an informal basis and supplemented by the CT. Through its case law, the CT not only developed the content of constitutional rights and freedoms, thus making them directly applicable, but also derived additional rights and freedoms from the principle of a democratic rule-of-law state, including the right to a fair trial, the right to privacy, the right to the legal protection of life, and the protection of human dignity. From the principle of a democratic rule-of-law state, the CT also derived further principles that were not expressed in the text of the 1952 Constitution such as the principle of the protection of trust in the state and law, the principle of the protection of acquired rights, the principle of the protection of interests in progress, and the principle of proper legislation. There is no doubt that this type of interpretation, based on the mechanism of the derivation of legal norms from the norms directly expressed in the 1952 Constitution, was of a highly creative nature (Florczak-Wątor & Czarny, 2019, pp. 150–151). However, by using this mechanism, the CT not only adapted the text of the 1952 Constitution to the standards of a democratic rule-of-law state but also supplemented it with new regulations that could not be adopted – due to certain political reasons – by parliament. Most of these regulations were obviously contradictory to the original intentions of the creators of the 1952 Constitution. The current Constitution of the Republic of Poland was passed in 1997.3 It succeeded in strengthening the position of the CT by including it in a comprehensive ‘checks and balances’ system and in a system of human rights guarantees (Garlicki, 2019, p. 143). The CT was shaped according to the Kelsenian model of a constitutional judiciary, with its main function being the review of the compliance of the law with the Constitution (Granat & Granat, 2019, p. 130). The CT was included in the judicial branch and was provided with guarantees for its independence and regarding the final character of its decisions on the nonconformity of statutes to the Constitution. The protection of the constitutional rights and freedoms of individuals comprised one of the main functions of the CT.

The Polish Constitutional Tribunal  129 This protection was mainly provided through the procedures for constitutional complaints and legal questions. The 1997 Constitution adopted a narrow model for constitutional complaints. A constitutional complaint may be brought by anyone whose constitutional rights and freedoms have been infringed by a legal provision, upon which basis a court or organ of the public administration makes a final decision on his/her freedoms or rights specified in the Constitution. Thus, through constitutional complaints, the legal basis of the final decision – not the decision itself – can be questioned. As a consequence of a successful constitutional complaint, the unconstitutional legal provision that led to the complaint is eliminated from the legal system. Following this, the decision based on this provision can be questioned before the ordinary court in a procedure regulated by Article 190, section 4 of the Constitution. Thus, a judgement on the non-conformity to the Constitution of a legal provision on the basis of which a final decision is issued comprises the basis for reopening proceedings or for quashing the decision or other settlement in a manner specified in provisions applicable to the given proceedings. The other procedure through which individual rights and freedoms are directly protected by the CT is the procedure involving a legal question submitted by a court when deciding a case. The requesting court must demonstrate a functional link between its legal question and the CT’s decision – namely, that the answer to such a legal question is meaningful when deciding the case before the court (Granat & Granat, 2019, p. 135). According to case law, if a constitutional problem concerns statutory provisions, a court is obligated to submit a legal question to the CT. However, if such a problem concerns sub-statutory provisions, then the court alone can settle the problem and refuse to apply the provision that is regarded as unconstitutional. To conclude, the CT, during its first 30 years of activity, established itself as a strong guarantor of individual rights, European integration, and democratic governance. Although many of its judgements issued during this time were highly controversial, mainly due to their unprecedented creativity, the CT was appreciated for its independence. Therefore, the evolution of constitutional adjudication in Poland has often been regarded as ‘a quite successful story’ (Garlicki, 2019, p. 141).

The Constitutional Tribunal at the centre of a constitutional crisis The constitutional crisis in Poland began in 2015, just after the current governing party, the Law and Justice Party, won the parliamentary elections. It gained the absolute majority in both chambers of parliament but did not reach the qualified majority required to amend the Polish Constitution of 1997. Therefore, theoretically, the CT should have remained safe, as its legal status and jurisdiction were regulated by the Constitution and, without an amendment to the Constitution, they could not be modified (Garlicki, 2019, p. 146). Moreover, the Constitution provided for a nine-year term of office for CT judges, thus guaranteeing that they

130  Monika Florczak-Wątor could not be removed before the end of their tenure and also ensuring that their tenure would continue during at least two subsequent legislatures. However, these guarantees – and many others – included in the Constitution appeared to be too weak, as the new parliamentary majority decided to destroy the CT’s capacity to control the conformity of the law with the Constitution. The capture of the CT by the ruling party in the period from 2015–2017 was done in a sequence of closely connected stages that initially aimed to paralyze the CT and then use it to support the activities of the ruling party (Sadurski, 2019, p. 61; Koncewicz, 2018, p. 116n). The crisis began with court packing. In 2015, five CT judges ended their tenures (three of them in October 2015, before the parliamentary election, and two of them in December 2015, after the election), and it was clear that the vacancies should be filled with new judges. However, five months before the parliamentary election, parliament adopted a new act in relation to the CT, with a transitional provision that enabled the parliamentary majority to fill all five vacancies (Kustra, 2016, pp. 345–346). Based on this provision, parliament elected five CT judges on 8 October 2015, and after the election, the new parliament, in which the Law and Justice Party had a majority, elected another five individuals as CT judges on 25 November 2015. Consequently, this resulted in 20 elected judges instead of the 15 indicated in the Constitution. In its judgement of 3 December 2015, K 34/15, the CT announced that the legal basis for the election of three October judges had been valid and, as such, there were no vacancies to be filled when the new parliament proceeded to the election of the three November judges. At the same time the CT established that the legal basis for the election of two October judges was unconstitutional due to the principle that the election of new CT judges should be conducted by the parliament of the term during which the vacancies of their positions occurred (Sadurski, 2019, p. 63; Koncewicz, 2016, p. 1753n). Although this opinion was repeated in other CT judgements issued during the next three months,4 the President of the Republic of Poland (formally nonpartisan but associated with the Law and Justice Party) never swore in the three October judges elected by the previous parliament. Simultaneously, between November 2015 and December 2016, six subsequent statutes regarding the organization of the CT and its mode of operation were adopted. Parliament, in trying to prevent the ‘old’ CT from adjudicating unconstitutional statutes adopted by the parliamentary majority, changed the number of CT judges required to hear a case, raised the quorum, and imposed an obligation to hear most of the cases in plenary sessions. Additionally, it adopted a new CT act on 22 July 2016. This act was replaced three months later by three new legal acts regarding the organization of the CT, its mode of operation, and the status of its judges.5 The main purpose of this ‘legislative bombardment’ (Sadurski, 2019, p. 71) was to paralyse the judicial activity of the CT. Many provisions within these new regulations were recognized as unconstitutional in four subsequent judgements issued by the CT in 2015 and 2016, some of which the government refused to publish (Kustra 2016, pp. 349–350).6 In these judgements, the CT strongly opposed the efforts of the parliamentary majority to regulate areas reserved for the

The Polish Constitutional Tribunal  131 Constitution by means of ordinary statutes (Bernatt & Ziółkowski, 2019, p. 494; Koncewicz, 2016, p. 1753n). The next stage of the crisis concerned the appointment of the new CT President in December 2016, which took place with a violation of the Constitution and the new statutes. Initially, parliament created the new institution of a judge who could act ‘as a President of the CT’ to replace the CT Deputy President who was entitled by the Constitution to order the election of a new CT President. At the same time, parliament created a special legal basis for the election of the next CT President and designed the conditions for this position in such a way that only one person (Julia Przyłębska) was able to meet them. Then, the President of the Republic of Poland appointed this person to the position of a ‘judge acting as a president’, thus enabling her to organize the General Assembly of Judges of the CT with the purpose of electing her as a candidate for the position of CT President.7 However, there was no quorum to decide on such a matter and only five judges supported her candidacy. Although no resolution was adopted by the General Assembly of CT Judges, she was appointed to the position of CT President. To this day, the validity of this appointment is still challenged (see Garlicki, 2019, p. 152; Sadurski, 2019, p. 70). Under new authority, the CT has swiftly transformed into an institution that is strongly oriented around supportive collaboration with the governing party. As initially the judges who were appointed after 2015 were in the minority in the CT, the new CT authorities decided to curtail the participation of some ‘old’ judges in the adjudicative process. This was done by the de facto removal from the CT’s panels of the Deputy President of the CT (he was ordered to use his four-month leave of absence), as well as by not allowing three other CT judges to adjudicate in the majority of cases heard by the CT (as their appointment in 2010 was deemed invalid by the Prosecutor General [PG]). Over the next four years, following on from the beginning of the crisis, the CT has been rendered completely subordinate to the governing party, which elected 14 out of 15 CT judges in the period from 2015 to 2019. Since then, the CT has been effectively used for the confirmation of the constitutionality of unconstitutional statutes adopted by the current parliamentary majority.

The Constitutional Tribunal as an authority that legalizes unconstitutional acts The outline of the mechanism for the legalization of unconstitutionality The significant changes that have taken place in the jurisprudence of the CT since 2017 have resulted in a substantial reduction in the level of protection of the constitutional rights and freedoms afforded to individuals. After the CT was taken over by the ruling Law and Justice Party in December 2016, it was used to legalize unconstitutional structural changes, confirm the constitutionality of clearly unconstitutional laws, question the legal status of independent constitutional bodies, and cover up matters that gave rise to public protests. An unprecedented synchronization of the activities of the government and the CT has been noticeable in all of

132  Monika Florczak-Wątor these cases. Cases are referred to the CT at a time determined by current political needs to be resolved in the manner expected by the ruling party. The arguments of the CT contained in the justifications of its rulings demonstrate exceptional compliance with the line of argumentation of the ruling party’s politicians. The process of adapting the judgements of the CT to the needs of the ruling party is no longer concealed by the CT or by the party itself. In the first period of its activity, the ‘new’ CT’s task was primarily to legalize the unconstitutional changes being implemented by the ruling party. As these changes were structural, they should have required constitutional amendments. However, the changes were made through ordinary statutes because the ruling party, as already mentioned, does not have a constitutional majority in parliament. In this respect, the CT was used both to disqualify earlier statutory regulations to enable unconstitutional structural changes to be made and to legalize such changes after they were made. The CT is also used to confirm the compliance of obviously unconstitutional bills enacted by the current parliamentary majority with the Constitution. Acts giving rise to serious constitutional doubts are sent to the CT by the politicians of the ruling party, not so that the CT can refute the presumption of their constitutionality, but to confirm this presumption and end all speculation about their unconstitutionality. Under normal circumstances, statutes passed by the parliamentary majority are usually challenged by the parliamentary minority. However, in Poland, doubts as to the legality of the election of certain CT judges and the President of the CT, and therefore the legality of the activities of the CT itself, meant that the opposition politicians and independent bodies (the Ombudsman, the former First President of the Supreme Court [SC], the President of the Supreme Administrative Court) stopped appealing to the CT to examine the constitutionality of the provisions adopted by the current parliamentary majority. Furthermore, in view of the CT’s obvious settlement of cases in favour of the ruling party, the requests previously submitted to the CT began to be withdrawn from the CT. In this way, the CT has become an instrument that lies in the hands of one political party – the party currently in power. The politicians in this party are the only ones who approach the CT to settle constitutional problems and they do so when there is such a political demand. The workings of this mechanism behind the legalization of unconstitutional law in practice will be shown most clearly through some examples from the recent case law of the ‘new’ CT analysed below. Legalization of the unconstitutional election of the National Council of the Judiciary An example of a ruling preceding an unconstitutional structural change is the judgement of 20 June 2017, case K 5/17, which looked to shorten the constitutionally defined term of office of the members of the National Council of the Judiciary (NCJ) and enable parliament, instead of judges, as had previously been the case, to elect new members to this body. The NCJ is a constitutional body that protects the independence of the courts and the impartiality of judges and assesses candidates

The Polish Constitutional Tribunal  133 for the office of judge before they are appointed by the President of the Republic. The proposal for shortening the term of office of the members of the NCJ and changing the method of their appointment first appeared in the government bill of 14 March 2017 and incited serious doubts among the public regarding its compliance with the Constitution. The election of the members of the NCJ by parliament meant that this authority had become politicized. It was almost certainly for this reason that, one month after submitting this controversial bill to the parliament, the PG, who is also the Minister of Justice, filed a request with the CT to examine the constitutionality of the existing method of appointing members of the NCJ. The CT settled this request within two months (although the average waiting time for the settlement of a case in the CT is over two years), while the adjudicating panel consisted entirely of judges elected to the CT after 2015. When the CT found that the contested regulations were unconstitutional, it emphasized that the lawmakers have a reasonably large amount of freedom to define the method of choosing members of the NCJ. The CT simultaneously held that judges appointed to the NCJ did not have to be elected by judges, even though, in a judgement issued eight years earlier, on 18 July 2007, case K 25/07, it was stated that only judges elected by judges may be members of the NCJ. The election of judges to the NCJ by judges, despite not being explicitly provided for in the Constitution, seems obvious, as the NCJ, filled by judges elected by politicians, would not have been able to effectively protect the independence of the courts. On 12 July 2017, less than one month after the announcement of the above CT judgement, the parliamentary majority passed a controversial act on the amendment of the existing method of electing judges to the NCJ, which did not enter into force because it was vetoed by the President of the Republic under pressure from the public. In September 2017, the President presented his own bill amending the Act on the NCJ. This reproduced the solutions contained in the earlier government bill on the election of the majority of the NCJ members by the parliament. In the justification of this bill, the President of the Republic referred to the above judgement of the CT of 20 June 2017, case K 5/17, and the statement contained in it – namely, that lawmakers have the right to freely regulate the method of electing members of the NCJ. This judgement of the CT was also used by the President as an argument to support the admissibility of shortening the term of office of NCJ members who had been elected by the judges. The presidential bill was passed by parliament within three months, while the changes made to it in relation to the membership of the NCJ politicized it and enabled its subordination to the ruling party. In this way, the constitutional nature of this body, the method of its appointment, and the principles of its operation were changed by way of a statute (Wyrzykowski, 2018, pp. 21–22; Sadurski, 2018). Less than two years later, in its judgement of 25 March 2019, K 12/18, the CT held that the election of judges to the NCJ by parliament was in line with the Constitution. The request to declare the unconstitutionality of the provisions was submitted in November 2018 by the NCJ itself, which was established under these provisions. It mentioned the allegations that were raised publicly about the constitutionality of the legal grounds of its actions, with which, as transpired from

134  Monika Florczak-Wątor the content of the application, it disagreed. Senators of the ruling party submitted a similar request to the CT in February 2019. They did so one month before the hearing before the Court of Justice of the European Union (CJEU) that was scheduled for 19 March 2019 and was supposed to answer the SC’s question with a preliminary ruling regarding the legality of the appointment of the new NCJ and the effectiveness of its decisions when considering the procedure of appointing new judges (C-585/18, C-624/18, and C-625/18). The CT announced its ruling just one month after it received the request from the senators of the ruling party, while the bench consisted exclusively of judges elected after 2015. The CT ruled that the Act that introduced the election of NCJ members by the Sejm was in compliance with the Constitution. In this respect, the CT repeated the view expressed in the judgement of 20 June 2017, K 5/17, that judges to the NCJ do not have to be elected by judges and can therefore be elected by parliament. It should be added that, two years later, in the judgement of 5 December 2019, case III PO 7/18, the SC held that, due to the method of its appointment, the NCJ is not an impartial and independent body and does not give sufficient guarantees of the independence of the legislative and executive authorities in the procedure of appointing judges. Then on 23 January 2020, in case BSA 1-4110-1/20, a panel composed of three chambers of the SC, in connection with the preliminary ruling of 19 November 2019 of the Grand Chamber of the CJEU (C-585/18, C-624/18, and C-625/18), adopted the resolution in which it was stated that due to the manner in which it was constituted, the NCJ does not guarantee that a judge appointed to the bench by the President of the Republic on the NCJ’s recommendation is a proper member of an adjudicating panel. Shortly after that, on 29 January 2020, in case Kpt 1/20, the CT, in its reaction to a request from the Speaker of the Sejm (a politician of the governing party), decided to suspend the SC from exercising its powers to issue such kind of resolutions. Thus, the CT, in being subordinated to the ruling party, has been trying to paralyze the SC, which was at that time still an independent institution. Legalization of the unconstitutional election of the Constitutional Tribunal’s judges An example of a CT ruling legalizing unconstitutional structural changes made by the ruling party is the judgement of 11 September 2017, K 10/17, in which the CT held that courts cannot assess the legality of the election of CT judges by parliament or the correctness of the election of the President and Vice-President of the CT. The CT attempted to use this ruling to close the discussion on the legality of the election of new CT judges and the new President of the CT. The proceeding in this case was initiated by politicians from the ruling party, while the judgement – as in the previous case – was issued within two months by a panel dominated by new CT judges (four out of five judges adjudicating in this case were elected after 2015). The main reason for initiating these proceeding was due to the fact that proceedings were pending before the SC in relation to the legality of the election of the President of the CT. The CT ruled that the statutory provisions, on the

The Polish Constitutional Tribunal  135 basis of which the SC was to examine the legality of the election of the President of the CT, were unconstitutional. Ultimately, the SC announced the decision of 12 September 2017, III SZP 2/17, on the refusal to undertake an assessment of the legality of the election of the President of the CT. This issue still raises serious doubts to this day. In the justification of the judgement of 11 September 2017, K 10/17, the CT held that the election of the CT President is the prerogative of the President of the Republic, who is not subject to control by any state authority, including a court. In this case, the CT also took the first step in the process of legalizing the status of CT judges elected by the ruling majority to positions occupied by judges elected by the parliament in the previous term of office. The CT stated that the legality of the election of the CT’s judges was beyond the control of the state authorities. The status of these judges was legalized by the CT one month later in a judgement issued on 24 October 2017, K 1/17, by a panel that was yet again dominated by new CT judges In this case, the CT ‘reinterpreted’ its previous judgement of 3 December 2015, K 34/15, acknowledging that the CT, in this judgement, did not examine the legality of the election of specific CT judges, but examined the compliance with the Constitution of the provision on the basis of which the candidates for the office of CT judges were nominated. The CT emphasized that it also disagrees with the argument that the given judges were elected for positions that were already occupied … It is only the swearing in by the President of the Republic of Poland that is the act which determines the ability to take judicial actions and, as such, determines the procedure of ending the appointment of the given person to the office of judge of the CT. A judge who has not taken the oath cannot take up his duties. (CT judgement of 24 October 2017, K 1/17) In this way, the judges of the CT, elected in breach of the Constitution to positions occupied by other CT judges, using the authority of the CT and its powers, performed a type of self-legalization act with this judgement. However, their status is still contested, as taking the oath before the President of the Republic is an element of the procedure that was added by statute but not included in the Constitution. Meanwhile, according to Article 194, para. 1 of the Constitution, CT judges are elected by the Sejm, meaning that they become judges at the time that they are elected, not at the time that they are sworn in by the President of the Republic. This, in turn, means that the CT judges elected by the previous Sejm, who were not sworn in by the President, are still CT judges. As such, it was inadmissible for the next Sejm to elect further CT judges to the already-occupied positions. Legalization of the unconstitutional application of mercy by the President of the Republic Another ruling, which was intended to legalize the unconstitutional operation of a public authority post factum, was the CT judgement of 17 July 2018, K 9/17.

136  Monika Florczak-Wątor This unconstitutional operation related to the President’s pardon before the final conclusion of criminal proceedings regarding a politician of the ruling party who was accused of committing the crime of abuse of power (Bień-Kacała, 2019, p. 210). The proceedings before the CT were initiated by a motion put forward by the PG, who contested the statutory regulations that do not provide for the ability to end criminal proceedings in a case in which the President of the Republic had applied the prerogative of mercy with respect to the accused. It should be noted that the applicable regulations did not actually provide for the ability to discontinue criminal proceedings because a pardon can essentially only be applied after the criminal proceedings end with a final verdict, not during the proceedings. This case was settled by a panel dominated by new CT judges. The CT held that the application of the pardon is the President’s prerogative, which remains beyond any control, and furthermore, until the constitutional lawmakers intervene, it is neither possible to modify this right of the President nor to introduce a mechanism for verifying it in a sub-constitutional act or in the line of judgements of the courts and tribunals. (the CT judgement of 17 July 2018, K 9/17) The argument that certain powers of the bodies of public authority remain beyond control or supervision is very dangerous for the protection of the rights and freedoms of individuals. It is also obviously in conflict with both the idea of a democratic state and the principle of the rule of law requiring that each body of the public authority acts on the basis and within the limits of the law. In this judgement, the CT also held that in certain circumstances, the act of an individual abolition may constitute a remedy for biased or even unfair criminal proceedings targeted by the state authorities at a specific person. This is because it transpires that, by law the guaranteed principles of impartiality and objectivity of state officials (in the broad sense) are not observed in practice. (CT judgement of 17 July 2018, K 9/17) Thus, the CT paradoxically assumed that it is the President of the Republic who, by applying the prerogative of mercy, gives a greater guarantee of the just, impartial, and objective settlement of a matter than independent and impartial courts can. This statement must come as a surprise, as the President of the Republic is a politician, an active participant in political life who is not required to act independently, impartially, or objectively. Furthermore, the prerogative of mercy used by the President does not serve the purpose of correcting defective court rulings. Other ordinary and extraordinary judicial remedies, available to the people whose case the court is settling, serve this purpose. Legalization of the institution of cyclical assemblies The CT also confirmed the compliance with the Constitution of another act giving rise to serious constitutional doubts. This act – introducing into the Polish

The Polish Constitutional Tribunal  137 legal system a new institution, namely, cyclical assemblies – was adopted by the current ruling majority. The CT judgement of 16 March 2017, Kp 1/17, should be noted not only because it legalized this controversial type of assembly, but also – and perhaps even above all – because of the new view presented by the CT on the relationship between the individual and the state. This view assumes the subordination of the individual to the state and the radical restriction of the individual’s freedom in order to protect the rights of the majority while privileging the forms of exercising this freedom that are preferred by the state. The proceedings initiated by the President of the Republic in this case applied to an amendment to the Act on Assemblies passed by parliament on 13 December 2016 that involved the introduction of a new privileged category of assemblies referred to as cyclical assemblies. These were to be assemblies organized by the same organizer, in the same place, or on the same route. The assemblies were to take place at least four times a year according to a prepared schedule, or at least once a year on state or national holidays, provided that such events had taken place in the three previous years, even if this was not in the form of assemblies, and had the objective of commemorating events of importance in Poland’s history. The privilege of cyclical assemblies applied to situations where the organizers had the place or route of the assembly reserved on the principle of exclusivity for three consecutive years on predetermined dates. No other assembly could take place at the same time and in the same place. When adopting this amendment, there was essentially only one assembly in Poland that satisfied the criteria to be considered as a cyclical assembly. It was organized on the tenth day of every month by the ruling party – an assembly commemorating the victims of the plane crash in Smolensk that happened on 10 April 2010 in which the political elite died, including the then-President of the Republic of Poland. This assembly eventually turned into a monthly gathering of support for the ruling party. Making this assembly cyclical in nature was meant to guarantee not only the ability to continue the tradition of meeting at the same time and in the same place, but also ensured that opponents would not be there and would be unable to organize a counter-demonstration next to the cyclical assembly. The new statutory regulation was in obvious conflict with Article 57 of the Constitution that guaranteed the freedom of assembly for everyone and did not authorize the parliament to specify an abstract hierarchy of assemblies due to its objective or frequency (Wyrzykowski, 2018, p. 26). In the justification of the judgement, the CT explained that cyclical assemblies require a privilege over other public assemblies because ‘they allow certain socially important values to be displayed and make them a subject of public debate’ (CT judgement of 16 March 2017, Kp 1/17). However, the Constitution does not give a democratic state the right to give privileges to assemblies that serve the purpose of pursuing values that are preferred by the state. The CT added that ‘[the] idea of cyclical assemblies on given topics of public or historical significance facilitates forming specific civic attitudes and has educational functions’ (CT judgement of 16 March 2017, Kp 1/17). Meanwhile, a democratic state is not entitled to educate citizens by indicating preferred objectives or forms through which to exercise their freedoms.

138  Monika Florczak-Wątor The new concept of relations between the individual and the state presented by the CT has no grounds in the currently applicable Constitution. This is because it is a concept that assumes the public authority’s control over the individual by giving privileges by law to ways of exercising the individual’s freedoms that serve the pursuit of objectives set by said authority. As Jerzy Zajadło pointed out in the case of cyclical assemblies ‘we can see a constitution-hostile interpretation, because the solution is everything but compliant with the spirit of the interpretation directive in dubio pro libertate’ (Zajadło, 2018, p. 12).

The Constitutional Tribunal as a storage area The ‘new’ CT is also used by the ruling party as a kind of storage area for matters on which the ruling party does not want to make decisions that are unpopular amongst the public. A good example of this is the matter of abortion. When signatures were collected for a civic bill introducing a total ban on eugenic abortion in November 2017, members of the ruling party submitted a motion to the CT to declare that the applicable regulations authorizing eugenic abortion were unconstitutional. After the citizens filed this bill, which gave rise to huge public protests, work on it was suspended until such time as the CT ruled on the matter. However, the CT did not issue a ruling in this case for two years and, at the end of the term of office of parliament in November 2019, the matter was discontinued. This is because, in accordance with the parliamentary regulation adopted by the current majority, the CT may only consider a motion by MPs up to the end of their parliamentary term of office. Keeping this case in the CT for almost two years allowed the politicians of the ruling party to openly criticize the currently applicable regulations on eugenic abortion without having to make unpopular changes to these regulations. There are many more examples of such controversial laws that are ‘stored’ or ‘shelved’ in the CT in the interest of the ruling party. In this respect, a case can be cited in relation to the refusal of the Head of the Chancellery of the Sejm to disclose the names of the judges who supported the individuals elected by the Sejm to be members of the NCJ with their signatures. Given that, according to media reports, some of the candidate lists for the NCJ were probably short of the required number of signatures,8 the ruling party has been refusing to make these lists public for two years. Meanwhile, in its judgement of 28 June 2019, I OSK 4282/18, the Supreme Administrative Court confirmed that information about who supported these candidates is public information. However, this judgement has never been enforced and, after it was issued, in August 2019, MPs of the ruling party submitted an application to the CT questioning the constitutionality of the Act on the NCJ. The referral of the matter to the CT was used by the ruling party as an excuse for refusing to disclose these lists, despite a final judgement of the Supreme Administrative Court ordering their disclosure. However, even this case was not considered by the CT and, at the end of the parliamentary term of office, the above principle of discontinuation means that it was discontinued (see the decision of the CT of 3 March 2020, K 16/19).

The Polish Constitutional Tribunal  139

The Constitutional Tribunal as a paralyzed institution The above-described activism of the ‘new’ CT that is beneficial to the governing party is accompanied by the gradual extinguishing of its operations as an institution. The adjudicating activity of the CT has noticeably lessened in the last five years compared to the period before the constitutional crisis. In 2015, the year before the crisis began, the CT issued 173 judicial decisions on the issue of the constitutionality of the law. Since the beginning of the crisis, the number of CT judicial decisions has dramatically reduced. According to the Annual Information on the Judicial Activity of the CT, published in December 2019, the CT issued 99 judicial decisions in 2016, 89 in 2017, and only 72 in 2018 (Constitutional Tribunal, 2019). A significant and unprecedented change can be observed particularly in the number of judgements which are judicial decisions based on merits. The average number of judgements for the period between 1999 and 2015 was roughly 70. However, this has changed with the onset of the constitutional crisis. In 2016, the CT issued 39 judgements, nearly half the number of judgements (63) issued in the preceding year. In 2017 and 2018, the number of judgements dropped to 36, and in 2019, for the first time in the history of the CT, the number fell to only 30. Even in 1998, which was the first year of CT activity under the 1997 Constitution, the number of judgements was higher, at 33. However, not only has the number of judgements issued by the ‘new’ CT decreased significantly – the number of cases referred to the CT has also been steadily declining every year since 2016. Before the constitutional crisis, the CT received some 500–600 cases a year (e.g. 530 cases in 2014 and 623 cases in 2015). In 2016, the number of cases referred to the CT dropped to 360 (i.e. nearly half when compared to the preceding year). Following the unlawful appointment of a new CT President, the level of trust in the institution decreased significantly (Monika Florczak-Wątor, 2020, p. 170). Only 285 cases were referred to the CT in 2017, and just 235 in 2018. Again, even in the first year of the CT’s judicial activity under the 1997 Constitution, it received 237 cases. Additionally, the number of constitutional complaints received by the CT has decreased, thus indicating a decrease in citizens’ confidence in the CT. While in the first ten years of the CT’s operation, 160–220 constitutional complaints were submitted annually to the CT, in the period between 2007 and 2015, the number of complaints remained above 300, and in some years, this figure even rose above 400 (to be more precise, in 2014, the number was 375, and in 2015, the number was 408). At the beginning of the constitutional crisis, the number of constitutional complaints submitted to the CT began to fall: in 2016, it received 267 complaints; in 2017 – 234 complaints; in 2018 – 185 complaints (Constitutional Tribunal, 2019, p. 62), and in the first six months of 2019, this figure stood at just 85 complaints. This confirms that the CT is no longer regarded as the guarantor of constitutional rights and freedoms by citizens. Moreover, nowadays, lawyers representing these citizens prefer to question unconstitutional law before the European Court of Human Rights (ECHR), challenging the compliance of the law with the European Convention on Human Rights.

140  Monika Florczak-Wątor However, the most radical change in relation to the CT concerns the number of legal questions submitted to the CT by judges of ordinary courts. Between 1998 and 2016, the number of legal questions submitted grew steadily, and the CT decided on an average of 48 legal questions per year (Granat & Granat, 2019, p. 135). With the beginning of the constitutional crisis, the number of legal questions addressed to the CT decreased significantly. While in 2014 the CT received 80 legal questions, and 135 in 2015, in the first two years of the crisis (2016 and 2017), just 21 questions per year were submitted by courts, and in 2018, even less were, at just 15 (Constitutional Tribunal, 2019, p. 62). Courts having doubts as to the compliance of statutory provisions with constitutional standards began to address questions for a preliminary ruling to the CJEU or to the ECHR. Such questions have been addressed by the SC and the Supreme Administrative Court in connection with the new procedure for nominating judges to these courts. The lower courts have also addressed these questions, for example, in connection with amendments to disciplinary proceedings for judges. From the perspective of citizens’ rights, all issues covered by those questions concern the right to a fair trial which is guaranteed by the Polish Constitution and in times of normal functioning of the state should be adjudicated by the CT.

Conclusion The capture of the CT has had a highly destructive impact on the level of protection of the rights and freedoms of individuals in Poland. The exemplary rulings presented above clearly indicate that the Polish CT stopped exercising its constitutional powers after 2017. It changed from being a defender of the Constitution and its axiology to becoming a guardian of the interests of the ruling party. The activism of the ‘new’ CT comprises a serious threat to individuals, as the CT actively supports the parliamentary majority by cooperating with it in legalizing obviously unconstitutional law. Almost all the legal acts mentioned above and reviewed by the ‘new’ CT apply to individual rights to a greater or lesser extent. These include, for example, statutes restricting the freedom of assembly, the right to a fair trial, and the right to public information. Thus, the CT rulings not only have a direct impact on the functioning of the state and its bodies, but also on the legal standing of the individual. In this respect, the undesirable activism of the CT is accompanied by the gradual extinction of its judicial activity. The number of CT judgements on the (non)conformity of law to the Constitution has lessened noticeably in the last five years compared to the period before the constitutional crisis. The CT also receives fewer constitutional complaints and legal questions. Doubts regarding the legality of the appointment of some CT judges, the validity of their judgements, and the conformity of the election of the President of the CT to the Constitution have resulted in citizens and judges having decreased confidence in the CT and its independent operation.

Acknowledgements This paper has been prepared as part of the research project financed by the Polish National Science Centre (Decision No. 2015/18/E/HS5/00353).

The Polish Constitutional Tribunal  141

Notes 1 The Constitution of the Polish People’s Republic of 22 July 1952, Journal of Laws No. 33, item 232 with amendments. 2 The Act on the Constitutional Tribunal of 29 April 1985, Journal of Laws No. 22, item 98. 3 The Constitution of the Republic of Poland of 2 April 1997, Journal of Laws No. 78, item 483. 4 See the CT judgements of 9 December 2015, case K 35/15; of 9 March 2016, case K 47/15; of 7 January 2016, case U 8/15. 5 The Act of 30 November 2016 on the Status of the Judges of the Constitutional Tribunal (Journal of Laws of 2017, item 2072); The Act of 30 November 2016 on the Organisation of the Constitutional Tribunal and the Mode of Proceedings Before the Constitutional Tribunal (Journal of Laws of 2016, item 2073); The Act of 13 December 2016: The Introductory Provisions to the Act on the Organisation of the Constitutional Tribunal and the Mode of Proceedings Before the Constitutional Tribunal and to the Act on the Status of the Judges of the Tribunal (Journal of Laws of 2016, item 2074). 6 See the CT judgements: of 3 December 2015, case K 34/15; of 9 December 2015, case K 35/15; of 9 March 2016, case K 47/15; and of 11 August 2016, case K 39/16. See also the CT decision of 7 January 2016, case U 8/15. 7 According to 190 sec. 2 of the Constitution the CT, the President of the CT shall be appointed by the President of the Republic from amongst candidates proposed by the General Assembly of the Judges of the CT. 8 The support of either 2,000 citizens or 25 judges was required to successfully nominate a candidate to the NCJ.

References Bernatt, M., & Ziółkowski, M. (2019). Statutory anti-constitutionalism. Washington International Law Journal, 28(2), 487–526. Bień-Kacała, A. (2019). Illiberal judicialization of politics in Poland. Comparative Law Review, 25, 197–213. Constitutional Tribunal. (2019). Informacja o istotnych problemach wynikających z działalności i orzecznictwa Trybunału Konstytucyjnego w 2018 r. Warszawa. Florczak-Wątor, M. (Ed.). (2020). Judicial law-making in European constitutional courts. London: Routledge. Florczak-Wątor, M., & Czarny P. (Eds.). (2019). Oddziaływanie sądu konstytucyjnego na porządek prawny Austrii, Niemiec i Polski. Kraków: Wydawnictwo Księgarnia Akademicka. Garlicki, L. (2019). Constitutional court and politics: The polish crisis. In C. Landfried (Ed.), Judicial power: How CTs affect political transformation (pp. 141–162). Cambridge: Cambridge University Press. Granat, M., & Granat, K. (2019). The constitution of Poland: A contextual analysis. Oxford: Hart Publishing. Koncewicz, T.T. (2016). Of institutions, democracy, constitutional self-defence and the rule of law: The judgments of the Polish constitutional tribunal in cases K 34/15, K 35/15 and beyond. Common Market Law Review, 53, 1753–1792. Koncewicz, T.T. (2018). The capture of the Polish constitutional tribunal and beyond: Of institution(s), fidelities and the rule of law in flux. Review of Central and East European Law, 43, 116–173.

142  Monika Florczak-Wątor Kustra, A. (2016). Poland’s constitutional crisis: From court-packing agenda to denial of constitutional court’s judgments. Toruńskie Studia Polsko-Włoskie, 12, 343–366. Sadurski, W. (2018). Bad response to a tragic choice: The case of Polish council of the judiciary. VerfBlog. Retrieved at https://verfassungsblog​.de​/bad​-response​-to​-a​ -tragicchoice​-the​-case​-of​-polish​-council​-of​-the​-judiciary. Sadurski, W. (2019). Poland’s constitutional breakdown. Oxford: Oxford University Press. Śledzińska-Simon, A. (2015). Midnight judges: Poland’s constitutional tribunal caught between political fronts. VerfBlog. Retrieved at https://verfassungsblog​.de​/midnight​ -judges​-polands​-constitutional​-tribunal​-caught​-between​-political​-fronts/. Wyrzykowski, M. (2018). The vanishing constitution. In W. Benedek, P. Czech, L. Heschl, K. Lukas & M. Nowak (Eds.), European yearbook on human rights (pp. 3–44). Cambridge: Intersentia. Zajadło, J. (2018). Constitution-hostile interpretation. Przegląd Konstytucyjny, 2, 5–15.

8

The rise of authoritarianism in the European Union A hybrid regime in Hungary András Bozóki and Dániel Hegedűs

Introduction Our study focuses on the widening grey zone between liberal democracy and dictatorship, and applies the findings of the scholarship on hybrid regimes to the characteristics of the Orbán regime in Hungary.1 The issue of democracy and dictatorship is not an ‘either-or’ problem; rather it is one that can be best described along a continuum. At the two opposing ends of the scale stand liberal democracies and totalitarian regimes. When categorizing political systems, we cannot overlook their external embeddedness, and the extent to which outside forces influence the political system itself. Just as it is more difficult for an authoritarian regime to democratize if it is surrounded by other authoritarian regimes, it is also more difficult for a democracy to regress to dictatorship if that democracy is a member of an alliance of democratic states. In short, the emergence, existence, and decline of a regime need to be analyzed in light of both domestic and international factors. For the longest time, no consensus has emerged among political scientists about the exact nature of the post-2010 Hungarian political system. The caution about coming to a too early conclusion was understandable given that the past seven years have stood witness to rapid constitutional and political changes. Regime analysts have been dealing with a ‘moving target’. We argue that only in the first period of its existence, that is, in the first two years after the new constitution, adopted by Orbán’s Fidesz party representatives in 2011 and entered into force in 2012, could the regime be described with one of the concepts of degraded democracy (Merkel et al., 2003; Urbinati, 2014; Zakaria, 1997). At the time, many maintained that the regime could be considered democratic so long as it guaranteed free elections. However, defective democracies are dynamically changing and ever-hybridizing political systems, in which there are no fixed rules or any guarantees for the maintenance of the remnants of democratic political institutions (Bogaards, 2012; Merkel, 2004). Since the unilateral modifications of the constitution in 2013 confronting the Constitutional Court’s former judgements and interpretation competence, or the 2014 unfair elections at the latest,2 the Hungarian political system belongs to the category of non-democratic regimes. In a competitive authoritarian regime, which is a sub-type of

144  András Bozóki and Dániel Hegedűs hybrid regimes, political competition may be real, but the broader institutional structure favours governmental forces and drastically decreases the chances of the opposition, and thus, a democratic change of government (Levitsky & Way, 2010). Since 2014, the occasional empirical distinctions between the concepts of ‘illiberal’ and ‘antidemocratic’ regimes have not only decreased but completely evaporated (Müller, 2016). Due to its hitherto overlooked characteristics, the competitive authoritarian Orbán regime belongs to a class of its own in the grey zone. The unique properties of this Hungarian hybrid regime follow from the fact that it is part of the European Union (EU), which is made up of democratic member states. Since member states transfer parts of their sovereignty to the European Union, the EU is both the loci of ‘domestic’ and ‘foreign’ policy-making, that is, as regime theory suggests, it is both the context in which the Hungarian government operates and an integral part of the Hungarian regime itself. Consequently, the EU functions as a ‘regime-sustaining’, a ‘regime-constraining’, and last but not least as a ‘regimelegitimizing’ factor for Hungary, which compels us to describe the current political system of Hungary as an ‘externally constrained hybrid regime’.

Hybrid regime considerations Contrary to expectations, the democratic revolutions of 1989–1991 did not automatically replace dictatorships with liberal democracies. Even though the number of liberal democracies has increased, more noteworthy is the significant widening of the grey zone between democracies and dictatorships (Carothers, 2002) and the rise of new forms of non-democracies (Brooker, 2000). In other words, the number of mixed regimes, or as they are better known, hybrid regimes, has considerably increased (Diamond, 2002; Levitsky & Way, 2002, 2010). While hybrid regimes are far from being identical, the greatest challenge in their categorization has come from the fact that they belong to a transitory category as they are neither democratic nor authoritarian regimes. According to Andreas Schedler, it is a serious problem that the expressions used to describe these transitory categories dampen our sense of danger when it comes to the strengthening of authoritarian tendencies (Schedler, 2006, p. 4). Nonetheless, it is empirically obvious that, besides those countries that make up the pure categories of democracy and dictatorship, there are countries that belong to the intermediate group of mixed regimes. The main theoretical question about classifying hybrid regimes is whether these systems form a third category of regimes between democracies and dictatorships or whether they should be considered as ‘diminished subtypes’ of those two (Cassani, 2012). Given that, as the Hungarian example demonstrates, stable consolidated liberal democracies can fall victim to hybridization, we can no longer consider hybridization as a one-way process or as the defect of democratic transition. This justifies classifying hybrid regimes into an independent category. Definitional features compel us to consider hybrid regimes as an independent regime type that stand between democratic and authoritarian regimes. These features include the

The rise of authoritarianism in the European Union  145 presence of one-sided and unfair political competition as well as the formal existence of a liberal constitution but with serious deficiencies in its actual functioning. Juan Linz (2000) argued that it is counterproductive to use adjective democracies – i.e. democratic subtypes where adjectives are used to mark their differences from liberal democracies – to replace the category of hybrid regimes, because it diminishes the differences between democratic and hybrid regimes, and thus, obscures the fact that hybrid regimes do not live up to the criteria of liberal democracies. We believe that this argument should not only be valid to democracies, but also to dictatorship and hybrid regimes. Modifying the label of authoritarian regimes with adjectives like ‘electoral’ or ‘competitive’ is useful only when it comes to identifying certain forms of hybrid regimes. Hence, those should be differentiated from democracies as well as dictatorships. Due to the wide variation among hybrid regimes, we readily acknowledge that some of them are closer to democracies while others have more in common with authoritarian regimes. Therefore, we find the differentiation within hybrid regimes justified. Treating hybrid regimes as a separate category helps avoid the debate about whether or not democracies with adjectives should be considered as democracies and authoritarian regimes with adjectives as dictatorships.

The Hungarian hybrid regime and the European Union The rise of the Hungarian hybrid regime after 2010 is not the result of copying one or more existing models. As a hybrid regime, the Hungarian political system has several unique features that compel us to regard the developments in Hungary as the formation of a new model (Bozóki & Hegedűs, 2017). This also calls for the partial re-evaluation of extant concepts of hybrid regimes. There are two reasons why the Hungarian case constitutes a unique ‘group’ of hybrid regimes. On the one hand, since 1989 Hungary has been the first – and so far only – state which used to have a stable, consolidated, Western-type liberal democracy, and which has abandoned this democratic regime by transforming its political system into a competitive authoritarian type of hybrid regime. The hybrid regimes that have been hitherto analyzed in the literature emerged due to either the partial democratization of authoritarian regimes or the stagnation of the transition process. Therefore, hybridization used to be seen as a unidirectional process. Its starting point and direction remained unquestioned even when the various concepts of hybrid regimes appeared as partial refutations of the theories of transitions, pointing out how the process of democratization partially or fully stagnated and led to hybridization in some cases (Levitsky & Way, 2002, p. 52). Hungary is an example of how the political system of a stable liberal democracy may erode, which demonstrates that hybridization is a two-way process: sometimes there is democratization while at other times there can be autocratization. The two-way nature of the process needs to be reflected in the conceptual framework of hybrid regimes. On the other hand, Hungary is the first, and currently only, hybrid regime within the European Union. This fact deserves attention not simply because the

146  András Bozóki and Dániel Hegedűs European Union sees itself as a multi-level polity made up of liberal democracies, which are bound together by mutual respect for the Union’s value system as laid out in Article 2 of the Treaty on European Union (TEU). This is formally incompatible with the presence of a member state with a hybrid political regime. The existence of a hybrid regime in the EU is important not only because the European Union put great emphasis on ‘political conditionality’ in the accession process, stipulating that only stable liberal democracies may gain membership in 2004 and afterwards (Sedelmeier, 2010). Regarding regime typology, Hungary’s membership in the European Union is crucial as the EU fulfils a systemic role in the functioning of this hybrid Hungarian regime. Unlike these two unique features of hybridization in Hungary, ‘illiberal populism’ is not unheard of in other member states of the European Union.3 Through populist discourse and the tools of mobilization, ‘illiberal populism’ attacks the determinant features – i.e. liberal constitutionalism, the assumed limitations on the will of the democratic majority – of the liberal consensus that has determined political reality after the regime change (Smilov & Krastev, 2008). This, together with the possession of political power, resources, and support, eliminates the liberal and republican dimensions of democracy (Miroiu, 2014). Pappas (2014) makes the same argument when he calls the Greek and Hungarian political systems ‘populist democracies’. On the other hand, others note the combined influence of ‘paternalist populism’ and ‘illiberal elitism’ (Enyedi, 2016) or evaluate the regime as personalist, racist, and ethnicist, rather than populist (Tamás, 2017). We consider illiberal, anti-pluralist, homogenizing populism as an introductory feature of democratic derailment and hybridization; that is a necessary but not sufficient condition. The sufficient condition is the kind of political power of illiberal actors that allows for the elimination of the institutional guarantees of liberal constitutionalism through a politically unilateral process of constitutional engineering, which has only materialized in Hungary so far.

The systemic functions of the European Union vis-à-vis the Hungarian hybrid regime Theories that describe the institutional structure and functioning of the European Union suggest that the EU should not be considered as an environment in which its member states’ political systems operate but rather as a part of those systems. These theories include the notions of multi-level governance (Bache & Flinders, 2004; Piattoni, 2009), multi-level polity (Kassim & Le Galès, 2010), and multilevel constitutional systems (Pernice, 2009). Thus, the European Union does not only exert its influence through providing a framework, but also fulfils systemic functions in the political systems of its member states. Most scholars who have analysed the post-2010 relationship of Hungary and the European Union agree that the European Union was not capable of standing up effectively to the constitutional engineering process which led Hungary in an authoritarian direction (Halmai, 2014; Kelemen, 2015, 2017; Kochenov, 2014a; Müller, 2013; Scheppele, 2013). The Orbán regime created unequal conditions for

The rise of authoritarianism in the European Union  147 political competition as well as political and constitutional systems that favour the governing forces – that is, the elements that satisfy the definitional requirements of hybrid regimes. The European Union fulfils three different functions in Hungary’s hybrid regime: it serves as (1) a systemic constraint, (2) a supporter, and (3) a legitimizer of the regime. Nevertheless, these functions are not specific to the Hungarian case. The EU would fulfil the same functions in any hybrid regime or defective democracy that is a net beneficiary of the EU’s cohesion policy. Regarding its function as a systemic constraint, the European Union played a Janus-faced role. On the one hand, as expressed in its own discourse of legitimization, the European Commission lacked the political and legal tools to confront effectively the Hungarian government over the dismantling of liberal democracy and liberal constitutionalism except for initiating infringement proceedings against the country (Scheppele, 2014). On the other hand, the joint efforts of the Council of Europe and the European Union, especially through the judgements of the European Court of Human Rights (ECtHR), could secure respect for personal freedoms at a relatively high level. The reason behind these unique developments is that whereas within the EU there is no institutional or procedural precedent4 to proceed against a member state in violation of the EU values laid down in Article 2 of the Treaty on European Union, the protection of human rights and basic civil liberties has longstanding traditions, stretching over several decades, both at the ECtHR and the Court of Justice of the European Union (CJEU). Furthermore, there is a high correlation between the argumentation of these two courts due to the fact that the case law of the ECtHR also serves as precedents in the jurisprudence of the CJEU. Furthermore, political considerations are much less influential in judicial proceedings that concern human rights and civil liberties than in the protection of democracy and liberal constitutionalism. Accordingly, only when its actions have had solid legal basis, either because they were rooted in the legal clauses of EU treaties or in the case law of the ECtHR – for example when the Hungarian government considered the reinstating of the death penalty (Traynor, 2015) – could the European Union successfully confront the policies of the Hungarian government. Even the neutralized Hungarian Constitutional Court, which was packed with justices loyal to the governing Fidesz party, accepts and applies the jurisprudence of the ECtHR, and therefore has declared several key clauses of the much debated Law on Religion5 in breach of the Fundamental Law.6 As a member state of the European Union, Hungary cannot afford to disregard the decisions of the ECtHR frequently and systematically because that would unequivocally and undeniably mean that Hungary was violating its obligation under EU treaties to protect fundamental human rights and civil liberties. In such cases the violation of norms could be determined and then legally defined, and thus would make Hungary subject to firmer actions by European institutions than in case of the less clear-cut violations of the principles of democracy and rule of law. Even though the European Union could not stop the deconstruction of liberal democracy, it did slow down and prevent the undermining of liberal

148  András Bozóki and Dániel Hegedűs constitutionalism and human rights in Hungary. Consequently, it is fair to say that membership in the European Union matters: the EU structurally constrained the hybrid regime. At the end of the day, the human rights and liberties of Hungarian citizens are not guaranteed by such constitutional institutions as the Constitutional Court or the Ombudsperson, because these were neutralized during the illiberal constitutional engineering, but by the European Union and the European Court of Human Rights of the Council of Europe. It is indicative of the decline of the rule of law in Hungary that the number of applications by Hungarian citizens to the European Court of Human Rights increased by a dramatic 1,177 per cent, from 436 to 5,569 between 2010 and 2016, while Hungary’s share of total applications to the court rose from 0.71 per cent to 10.41 per cent in the same period. Hungary’s share of the ECtHR pending cases totalled up to 11.2 per cent in 2016, while the country’s less than ten million citizens represent approximately 1.25 per cent of the population under ECtHR jurisdiction. Hence Hungary has currently the highest number of ECtHR pending cases on a per capita basis and the third highest number of pending cases at all (Democracy Reporting International, 2017). These figures clearly support the claim that the ECtHR plays an increasing, systemic role in the external protection of Hungarian citizens’ fundamental rights, while the number of Hungarian citizens seeking international legal remedy against the judgements of the national judiciary has been skyrocketing during the past few years. On the one hand, the Hungarian Constitutional Court has been reflecting more on the jurisdiction of the ECtHR and CJEU in the field of fundamental rights since 2010 than it has done before. On the other hand, the application of the ECtHR and CJEU case law is also disputed more intensively within the Constitutional Court (Gárdos-Orosz, 2016; Polgári, 2015). The reason behind this seemingly contradictory development is that while the guiding light character of ECtHR/ CJEU case law was never put into question within the Hungarian Constitutional Court, there have been ongoing changes in this regard since 2011, hence conscious reflections in the judgements of the Constitutional Court are unavoidable (Gárdos-Orosz, 2016). Although the Constitutional Court ruled in its judgement7 that the level of protection provided by international legal mechanisms can be considered as minimum standards for the limitation of fundamental rights and freedoms, in several further politically sensitive judgements, the Court did not follow this interpretation and did not maintain these minimum standards (Polgári, 2015, pp. 8–9). In the absence of effective domestic forces, the European Union and the ECtHR have become the most important systemic-level obstacle to curbing basic human rights and moving toward a more authoritarian regime in Hungary. In general, Hungarian political leadership is externally constrained by European law and institutions. It is not easy to demonstrate through examples how the constraining function of the European Union works in practice because it is either a structural phenomenon, like in the case of the ECtHR jurisdiction, or the EU’s prohibitive and coercive actions are not always done publicly. Open confrontation between the European Commission and the Hungarian government emerged only in a limited

The rise of authoritarianism in the European Union  149 number of, and often controversial, cases. One of these concerns the Hungarian government’s interest in reinstating the death penalty in 2015. The unusually decisive reaction of the European Union forced the government to abandon the idea within two days.8 On the other hand, we have to note that Orbán’s initiative primarily aimed at influencing the political agenda and discourse rather than originating from an honest intention to reinstate capital punishment. Given the constraining mechanisms of the European Union, Orbán could anticipate the EU’s firm resistance and that he would provoke effective EU intervention over an issue that Brussels was unmovable about. Indeed, he most likely hoped that as a result the EU would be more permissive in other issues. In other cases, the EU was determined but slow in getting its way. This gave the Orbán government enough time to present both the EU and the concerned parties in Hungary with a fait accompli over such issues as the independence of the Data Protection Office or the premature pensioning of justices. These issues directly concern the question of constitutional checks and balances rather than fundamental rights; yet their impact on fundamental rights is undeniable. In both cases, the CJEU located in Luxemburg determined Hungary’s infringement of European law, but the courts’ decision in each case was limited to compensating the plaintiffs’ damages without a restitution order.9 In the case of the government’s attack on Central European University (CEU),10 the political and discursive reactions of the European institutions and actors were more determined than in any other previous case before, excluding the case of capital punishment. The European Commission proposed the introduction of a new type of ‘broad political dialogue’ with Hungary due to serious concerns about the recent anti-democratic turn.11 Furthermore, the European Commission initiated its infringement procedure with regard to the ‘lex CEU’,12 while the European People’s Party (EPP), the European party alliance of Fidesz, put Orbán under pressure to comply with the Commission’s position.13 Last but not least, EPP’s evading support for the Hungarian regime was also clearly mirrored by the EP Resolution threatening Hungary with the introduction of the famous Article 7 procedure allowing the sanctioning of the norm-breaking member state, which enjoyed considerable support also among MEPs of the European People’s Party.14 Whether the political conflict around the ‘lex CEU’ and the proposed Hungarian ‘foreign agent act’ stigmatizing NGOs receiving financial resources from abroad turns out as clear-cut evidence supporting the regime’s ‘externally constrained’ character, or whether the ‘peacock dance’ repeatedly deployed by Viktor Orbán will be successful again, cannot be actually foreseen. However, bearing the determined character of the EU reactions in mind, it fits the frame of the presented theory of external constraint. The working of the Hungarian political system and the general pattern of Hungarian–EU relations provide more convincing evidence for the EU’s constraining function than the cases cited above.15 In individual cases it is difficult to determine beyond doubt (1) the original intentions of the Hungarian government and (2) the exact influence that Brussels’ opposition had on the final outcome. On the other hand, general tendency is that while as early as 2013 the Orbán

150  András Bozóki and Dániel Hegedűs government made significant advances in the dismantling of the constitutional system of checks and balances and the creation of a lopsided arena of political competition, the curbing of fundamental rights has been done gradually with more caution and repeated references to European standards. However, the European Union not only constrains the expansion of the hybrid regime in Hungary, and thus constrains the rise of authoritarianism, but also contributes to its survival, and paradoxically plays a regime-supporting function. The ruling elite’s appropriation of public resources is a frequent element of the definition of hybrid regimes (Levitsky & Way, 2010), and just as much an organic part of everyday Hungarian political reality (Magyar, 2016). Between 2014 and 2020, Hungary is projected to receive, on average, 3.89 per cent of its gross national income from the cohesion fund of the European Union (Mrak, Richter & Szemlér, 2015). Nearly all the public resources committed to national development policy come from these EU resources. Considering that the reports of both the European Commission and Transparency International found that in about 50 per cent of public procurement procedures there is only one tender offer and 70 per cent of these procedures are riddled with corruption, which often results in a 25 per cent spike in pricing and in an additional corruption premium (European Commission, 2014; Transparency International Hungary, 2015a), it is easy to understand the regime-sustaining function of the EU’s developmental funds in the operation of the machine of corruption in Hungary. If we also take into account the centralized nature and politically organized ‘reverse state capture’ in Hungary, one can see how corruption is supporting the regime. In this process, political and economic ‘entrepreneurs’, often called the ‘political family’, occupy the state from inside, and they operate their own network of corruption (Freedom House, 2016, 2017; Kornai, 2015; Magyar & Vásárhelyi, 2017). The resources of the European cohesion policy add to the abundance of public resources that can be appropriated by the national ruling elite to its own purposes (Transparencey International Hungary, 2015b) and thus contribute to the uneven political playing field.16 Additionally, through increasing market demand and the potential multiplier effects of investment projects, the EU cohesion fund has contributed to the stability and modest growth of the economy, and thus, the political stability of the regime. Consequently, the Hungarian government is interested in preserving the country’s membership in the European Union and, at least during the financial cycle coming to an end in 2020, it cannot (yet) seriously entertain the idea of leaving the EU despite the increasing anti-EU flavour of its illiberal and Eurosceptic rhetoric. For the time being, the decision-makers of the Orbán regime are willing to accept the regime-constraining function of the European Union in order to be able to enjoy its regime-supporting role. In addition to the two above functions, the European Union plays a less significant role as the legitimizer of the regime. As was suggested in the conceptual debates about the nature of the Hungarian regime, theoretically Hungary as a member of the European Union could only be a democracy (Mándi, 2015). While we pointed out above that this reasoning ignores the literature that focuses on the potential sanctioning of the developments taking place in Hungary (Blokker, 2013;

The rise of authoritarianism in the European Union  151 Closa, Kochenov & Weiler, 2014; Kochenov, 2014b; Müller, 2013; Scheppele, 2013), it does reveal the flaw in the European Union’s approach. Article 7 of the Treaty on European Union would have obligated the European Union to initiate proceedings against Hungary if they found Hungary in serious violation of the values laid down in Article 2 of the Treaty. Why this did not happen is the subject of several other studies.17 Regardless of the flaws in Article 7, the fact remains that the lack of sanctions and open criticism of the political developments in Hungary indirectly legitimizes the Orbán regime, and strengthens the self-legitimizing discourse of its leaders who argue for the illiberal but democratic nature of their regime.

Conflict and compromise: Hungary and the EU in 2018–2019 With the national elections held in 2018, Hungarian post-democracy arrived at a turning point. After the overwhelming victory of Prime Minister Viktor Orbán, the outlook for Hungary’s opposition looked grim. Despite some short-lived hopes of an upset before the election, Hungarian voters chose not to dismiss the right-wing Fidesz government, instead rejecting the opposition as a whole. They enhanced the legitimacy of Orbán and his brand of exclusionary, populist paternalism, while the opposition needs to rebuild itself from the ground up. Both the government and opposition campaigns were largely monothematic. The former neglected nearly any references to important issues like health care, education, or even the prospective policy plans of the government. Instead, Fidesz’s messaging focused nearly exclusively on migration and its attendant threats, with repeated denunciations of the liberal ‘fifth column’ of the investor and philanthropist George Soros, who was repeatedly accused of intervening in Hungarian domestic affairs. The opposition’s discourse, meanwhile, fixated on the systemic corruption of the regime. This topic initially appeared to resonate with the electorate, but the opposition parties failed to offer voters their own vision of Hungary’s future. Due to the dominant position of the government-linked media outlets, especially in the countryside, the left-liberal opposition parties in particular faced huge difficulties in reaching a large segment of the Hungarian electorate. Nevertheless, the opposition parties’ inability to coordinate and the hidden mobilization capacity of Fidesz turned out to be the two decisive factors of the election. Even after several weeks of negotiations, there were ultimately only three constituencies where one candidate was supported by all the left-liberal opposition parties against their Fidesz and Jobbik counterparts. The voters could hardly keep track of the parties’ complex cooperation schemes and their confusing withdrawal of candidacies. There was a broad consensus among Hungarian political analysts that Fidesz had the most disciplined and easy-to-mobilize base, but that the party might struggle to effectively reach undecided voters, due to the diffuse but dominant anti-government sentiment among this part of the electorate. From this perspective, Fidesz’s advantages could have been overcome. However, the figures of the election outcome clearly refuted this assumption. Fidesz was able to effectively

152  András Bozóki and Dániel Hegedűs mobilize undecided voters in the countryside. Fidesz gained 300,000 votes more than it did in 2014, frustrating the mobilization advantage of the opposition. At the end, Orbán’s party had exactly the same number of seats as it did in 2014: 133 out of 199, just enough for the constitutional two-thirds supermajority. Capturing 91 out of the 106 individual constituencies and 48.49 per cent of party list votes at a turnout higher than 70 per cent, Orbán won a landslide victory. Despite the monothematic messaging of his campaign, Orbán’s success cannot be explained by one single factor, be it xenophobia, fear of immigration, the economy, or anything else. The key was his flexible formula of semiauthoritarian populist paternalism, predicated on the public’s subordination to a strong state that takes care of ‘the people’ in both a material and psychological sense. Psychologically speaking, Orbán allowed the people to express their innate, irrational fears, often tinged with xenophobia, greed, and outright hate. His politics were tailor-made for the attitudinal structures of post-Soviet Central and Eastern Europe. Orbán offered his supporters self-fulfilment by flattering their prejudices, while liberating the individual from the burden of his or her individual responsibility in a political, economic, and even a broader social sense. Fragmented opposition forces could not elaborate a credible alternative to this.18 Considering its record of radicalization since 2010, the Orbán regime apparently lacks any ability to moderate. It maintains its stability by constantly centralizing power while dominating the political agenda through the invention of new public enemies. There is no reason to expect any kind of self-moderation from the regime. During the 2018 campaign for the national elections Orbán publicly threatened his opponents, mostly representatives of the critical civil society and media, implying he would get even with them after the national elections. Just one day after the ballot, the spokesperson of the Fidesz parliamentary group announced the intention to pass the ‘Stop Soros’ bill, aimed at further restricting the functioning of foreign-funded NGOs associated with the Open Society network and introducing sanctions against their employees. Steps taken in this spirit after the elections undoubtedly contributed to the increasing authoritarianism in Hungary, which has set its sights on the country’s remaining checks and balances: critical civil society, the remnants of free media, and fundamental freedoms of association and the press. The 2018 elections were also a wake-up call for Hungary’s transatlantic and European allies to consider standing up against the erosion of liberal and democratic values in the West. The risk posed by the Orbán regime within the European Union and NATO was not imminent, but it should not be underestimated either. The Hungarian government might have seemed flexible and ready for compromise when it came to European and foreign affairs, but it could play spoiler, increasing both the level of uncertainty as well as the transaction costs in the European decision-making process. Concerning the domestic developments, key international partners should have reconsider whether the founding values of NATO and the European Union, like the rule of law or pluralist, fair democratic competition, played any systemic role in these organizations, and how a semi- (or even

The rise of authoritarianism in the European Union  153 full-fledged) authoritarian system in the heart of Europe with strong, friendly ties to both Moscow and Beijing might affect the functioning of these organizations. The words widely used to describe the current malaise of Western liberal democracies –rhetorical invocations of the ‘populist’ or ‘illiberal’ threat – fall far short of capturing the dire situation in Hungary. As the election-monitoring mission of the Organization for Security and Cooperation in Europe (OSCE) announced on 9 April 2018 the government ‘diminished the ability of voters to make an informed choice’ due to ‘pervasive overlap between state and Fidesz party resources, undermining contestants’ ability to compete on an equal basis’ (OSCE 2018). As this statement suggests, Hungary no longer has a rule of law so much as a very serious democracy problem. The country’s democratic political competition is being systematically undermined; any prospective deterioration of the situation in the future can only tend toward the authoritarian. Key international partners appeared to be reluctant to influence domestic affairs in Hungary, although they possessed some responsibility and the tools were at their disposal to do so. The European Union possesses remarkable financial and institutional leverage over the Hungarian government, while the United States has serious information leverage. The Hungarian electorate, once responsible for pioneering the country’s democratic transition, has failed to halt the country’s slide into authoritarianism. The growing conflict within the European People’s Party (EPP) over what to do with Viktor Orbán’s Fidesz party has been temporarily solved by a compromise in early 2019. Threatened with expulsion or suspension, as proposed by 13 EPP member parties, Orbán submitted himself to the latter under the condition that it was framed as a voluntary move by Fidesz. This suited both sides. It helped Hungary’s prime minister save face at home and in Europe. It also brought to the EPP political relief in its European Parliament election campaign, which was suffering from association with Orbán’s actions. For the first time, Orbán has been stood up to and had to back down from his threat to leave the EPP if sanctioned. At the same time, it showed to the European party groups, the EU, and member states that autocratizing governments respond to pressure, not to coddling. After tolerating the EU’s first competitive authoritarian regime for ten years, the EPP finally took the first step against it. The suspension was only a compromise; nevertheless, future scrutiny and treatment of Fidesz would provide the EPP with an opportunity to demonstrate its commitment to defending European values. The suspension deprived Fidesz of its voting rights in the EPP organs and of its right to propose candidates for party positions, as well as stopping its representatives from attending party meetings. Furthermore, Fidesz would be subjected to the scrutiny of a wise-persons group.19 They would investigate whether Fidesz complies with the conditions set by the EPP leadership, which include the Hungarian government obeying the rule of law and keeping Central European University in Budapest. The question of Fidesz’s status in the EPP was not settled for good, only postponed until 2020. However, the negative impact of even this measure on the influence of Hungary’s governing party was still significant.

154  András Bozóki and Dániel Hegedűs Orbán was not able to take part in decision-making occasions, like the meetings of EPP prime ministers ahead of EU summits. Despite the positive spin and face-saving on the surface, the deal was a humiliation for Hungary’s prime minister. For the first time since he took office in 2010, he was confronted with real political pressure and he blinked. Fidesz had announced that the party would leave the EPP if suspended, but in the end, it agreed to a solution in which suspension was officially a voluntarily accepted status instead of an externally imposed sanction. Orbán was forced out from the EPP in 2021. He appeared to have a Plan B for this case. Both at the level of party diplomacy across Europe and of the Hungarian public, he invested considerable resources in the preparation of a new European party group centred around Fidesz, Italy’s Lega, and Poland’s Law and Justice (PiS). The fact that he did not choose further confrontation with the EPP and put his plan into action for long period of time points to two important conclusions. First, Orbán shied away from gambling on his party’s future political affiliation without knowing exactly the political power relations after the European Parliament elections. This shows he might not be as convinced about the chances of Eurosceptic radical-right forces as he claimed in the government-friendly Hungarian media. Second, there might be significant tensions among these forces, which also include France’s Rassemblement National and the Austrian Freedom Party (FPÖ), that might hinder the birth of the widely feared new Eurosceptic grouping. The conflicts between PiS’s Jarosław Kaczyński and Lega’s Matteo Salvini, and between the FPÖ’s Heinz-Christian Strache and Orbán signal an even wider political divide among the right-wing radicals that cannot be easily bridged. Events that led to the suspension of Fidesz gave EPP an important lesson on how it should have dealt with its enfant terrible during the previous decade. It took a long time for its leadership to realize that those autocratizing governments in East-Central Europe speak the language of power. Instead of offering them concessions, EU institutions, European parties, and member states would rather search for ways to exploit their political leverage. The Orbán compromise fulfilled three goals for the EPP leadership. It temporarily pacified Fidesz critics and preserved the party family’s formal unity. It sidelined Fidesz, neutralizing its effect on the EPP’s election campaign and structures before the European parliamentary elections of 2019. And finally, it allowed all those involved to save face, which appeared to be the decisive factor for Fidesz. Ultimately, this compromise did not have any positive impact on democracy and the rule of law in Hungary. The ‘three wise persons committee’ scrutinized the developments in Hungary and the government’s compliance with fundamental European values in a systemic way. The EPP would have either pushed Orbán to real political concessions, including easing his grip on civil society and the media, or would have eventually expelled the Fidesz party, opening the way for possible EU sanctions on the government. Instead, they decided to maintain the suspension for an indefinite period of time.

The rise of authoritarianism in the European Union  155

Constraining effect revisited: Discrepancy between ‘potential’ and ‘de facto’ impacts in EU politics The democratic backsliding and further autocratization of EU member states that a decade ago would have been deemed as theoretical and political nonsense have now matured into a frequent and mainstream topic of political science, and constitutional and European law. By now, the literature provides important insights into the party political and European legal dimensions of EU-member state interactions during autocratization at the national level; nevertheless a comprehensive, scholarly model of the interactions still appears to be out of reach. Two years ago, we introduced a model that argued that the European Union fulfils various functions that determine the characteristics of the political systems in autocratizing member states. In that paper we claimed that, pertaining to those member states which are net-beneficiaries of the EU cohesion policy (practically all Central and East European member states), the EU constrains, supports, and legitimizes the autocratization process at the national level at the same time. It does so as long as the cohesion transfers are not suspended and official sanctions due to the violation of the common fundamental values of the integration (enshrined in Article 2 TEU) are not introduced. We argued the following way: one can assume that the Hungarian hybrid regime could openly move toward authoritarianism in two cases. First, if the European Union drastically alters the generous nature of the cohesion funds, or if the EU denies or limits the access of member states that violate EU values to cohesion transfers. In either of these instances, the lack of financial motivation could prompt Orbán’s Hungary – and any other future hybrid regime within the European Union – to lose strong interest in remaining in the EU, and Hungary could be expected to leave in order to shake off the EU’s constraining function. Second, if, as a result of its political and economic crises, the European Union ceases to work as a political community of liberal democracies based on mutual values and interests, and thus, it is no longer able to fulfil its above-mentioned constraining function, then we can expect Hungary to move further towards authoritarianism. Considering the current developments both in European and Hungarian politics, one cannot fully rule out the possibility of either of the above two scenarios in the future. During the past two years several new issues arose that on the one hand confirmed the fundaments of our model, while on the other hand urging its revision and adjustment. To that end, in this chapter we put key developments in Hungary’s further autocratization from the last two years under scrutiny, and based on the new empirical evidence the paper offers a new, refined concept of the ‘EU constraining effect’, the key input the European Union provides to influence the characteristics of its autocratizing member states. According to this refined concept, the constraining effect has to be perceived as a dynamic process, the strength of which is rather determined by certain variables of the interactions between the EU institutions and the respective member state, and not as a static constraint determined by objective, structural limits and

156  András Bozóki and Dániel Hegedűs benchmarks set by EU law. Obviously, a level of static ‘potential leverage’ can be identified through the analysis of the legal framework provided by EU law and the embeddedness of the member states into the various (political, institutional, economic, and financial) facets of European integration. However, according to the empirical evidence gathered during the past years the de facto constraining effect of the EU remains far behind its ‘potential constraining effect’, and the exerted leverage in practice also remains behind the potential leverage. Conceptualizing the puzzle in the framework of the Europeanization theory of Tanja Börzel and Thomas Risse (2000), the ‘domestic change’ caused by the autocratization at national level increases the structural ‘misfit’, the incompatibility between the political settings at the European and national levels. Due to the growing misfit, the autocratizing member state faces an increasing level of ‘adaptational pressure’, in our understanding an equivalent of de facto, exerted leverage, to decrease the misfit, abandon overtly authoritarian goals (as it probably might be the case with the Polish judicial reform), and bring its domestic political settings into conformity with the fundamental European values. The political output at the national level caused by the adaptational pressure can be defined as a manifestation of the constraining effect. However, to be able to also operationalize the above concepts, it is key to understand the nature of the interaction: what triggers EU institutions and other political actors, like fellow member states, to exhaust their available political potential and exert real leverage over autocratizing EU members. The outstanding example of Hungary, more precisely the striking difference in the European Commission’s approach toward the Hungarian and Polish cases, demonstrates that the extent of substantial misfit, the substantial undermining of the principles of rule of law and democracy is not the key variable that triggers EU leverage. On the contrary, the ‘Guardian of the Treaties’, the European Commission has been ready to tolerate substantial autocratization and misfit with European values, for example in the case of Hungary, as long as the impression of ‘symbolic’ and ‘procedural compliance’ is maintained by the respective national government. Lacking both the proper objective benchmarks and the appropriate political will to bear alone the main burden of rule of law and democracy enforcement, the two key variables that mobilized the European Commission in defence of European values have been the breaches of symbolic and procedural compliance: if the national government breached its national constitutional norms in a procedural sense or refused even the formal cooperation with the Commission in infringement procedures and in frames of the Rule of Law Mechanism. As Poland violated both rules between 2015 and 2017, while Hungary mostly complied with them until 2017, these variables give a credible explanation for the differences in the leverage exerted by the European institution in the respective Polish and Hungarian cases. As R. Daniel Kelemen argues (2017), the variable of party politics might have also played a significant role in shaping the EU institutions’ behaviour. However, as the party political variable did not cross-cut the impact mechanism of the symbolic and procedural compliance variables, but enforces their effect, currently it is

The rise of authoritarianism in the European Union  157 difficult to adjudge what role the EPP membership of Hungary’s governing party Fidesz played in the reluctant response to the Hungarian autocratization process, at least concerning the European Commission. However, the changing patterns of Hungary’s autocratization after 2017 offer a prime example to demonstrate how the decrease in symbolic and procedural compliance prompts an increase in adaptational pressure and might result in a stronger constraining effect in the European Union.

The escalation of authoritarian tendencies and the reaction of the EU From 2010 to 2016, the Hungarian government effectively deployed the strategy of a ‘peacock dance’, the emulation of symbolic and procedural compliance, to defraud the European Commission and cover up the substantial violation of democracy and rule of law in the country’s autocratization process. The approach of Prime Minister Orbán and his Fidesz party changed in 2016, when the invalid referendum on the in reality non-existing EU migration quotas demonstrated the limits of the state’s propaganda’s mobilization potential based on the single issue of migration. Therefore, Fidesz decided to pluralize the concept of enemies used in the party’s political discourse and extended it to independent civil society and the American billionaire philanthropist with Hungarian roots, George Soros. However, this moves caused significant damage to the government’s relations with EU institutions, especially the European Commission. The public lies lacking any connection to reality that instrumentalized the EU in general and the European Commission in particular as an enemy in the quota referendum campaign undermined the Commission’s perception that the Hungarian government acts according to the principle of sincere cooperation and treats the Commission as a partner and thus harmed the perception of procedural compliance. It was also obvious that the lex CEU targets one single institution, the Central European University, and therefore it can hardly be considered a general norm and both lex CEU and lex NGO were drafted in bad faith. The patterns encapsulated by ‘lex NGO’ were internationally well-known from the Russian practice of cracking down on civil society, which made the authoritarian characteristics of the legislation rather obvious. Last but not least both legislations affected the fundamental freedoms that European integration is based on, the free movement of capital in the case of the lex NGO and the free movement of services in the case of the lex CEU that provided solid legal fundaments for the infringement procedures promptly launched by the Commission after the legislations were passed. In 2018 the Hungarian government further escalated the conflict with the European Union by adopting the ‘Stop Soros’ legislation and the seventh Amendment of the Hungarian Fundamental Law that paved the way for the planned ‘reform’ of the administrative courts that might have seriously hampered the independence of justice in politically sensitive areas like electoral issues or public tendering. With this move Fidesz misjudged how its overtly authoritarian

158  András Bozóki and Dániel Hegedűs and confrontational moves alter the perception of its symbolic and procedural compliance. Beyond this, the party was also unaware of the fact that in the socalled Portuguese judges case the European Court of Justice developed case law on the basis of Article 19 TEU that might turn out to be a real game changer in the protection of judicial independence in the EU, as the case of the Polish judicial reform later convincingly demonstrated. However, the real game changer in the Hungarian case has been the slow alienation of a large group of EPP member parties from the autocratizing track record of Fidesz. As a reaction to the ‘lex CEU’ and ‘lex NGO’ legislation in May 2017 the European Parliament tasked its LIBE Commission to provide a report on whether fundamental European values are under such a systemic threat in Hungary to justify the launch of an Article 7 procedure against the country. The European Parliament expressed its concerns over the quality of rule of law and democracy in Hungary in several previous resolutions, but these resolutions were mainly passed by a simple majority that remained significantly short of the two-thirds majority required to trigger Article 7 by the EP. However, due to the internal division caused in the EPP by the overtly authoritarian moves of the Hungarian government, in 2018, when the plenary session of the European Parliament voted on the Sargentini Report, a large number of EPP MEPs voted in favour of the motion, and by reaching the quorum of the two-thirds majority the EP effectively triggered Article 7 (1) TEU against Hungary. The deployment of Article 7 and the role a significant part of the EPP group played in its support pressed Fidesz to reconsider its future place in the European political landscape, bearing the fact in mind that EPP membership does not appeared to be a firm insurance against EU sanctions anymore. These considerations led to Orbán’s increased flirting with representatives of the European radical-right, like Matteo Salvini (Italy) and Heinz-Christian Strache (Austria); both were later marginalized by their national rivals. Although at the beginning Orbán played his double game once again impressively well and kept the strategic option to choose which political group Fidesz may join in light of the EP elections, the smear campaign launched against Commission President Jean-Claude Juncker in early 2019 backfired and completely isolated Fidesz within the EPP, leading to the suspension of the membership of Orbán’s party. As the results of the EP elections of 2019 completely ruined Orbán’s expectations in a radical-right breakthrough at European level, the Hungarian government ultimately realized that the only way it could minimize the threats to its power (represented by financial cuts in the new MFF, a strong rule of law conditionality, and possible further sanctions) was to maintain its membership in EPP. To this end, Fidesz expressed its readiness to make certain political concessions, a rather new phenomenon in the decade-long history of Hungarian autocratization. In this spirit, the Hungarian government announced the suspension of the implementation of the administrative court reform. Although the pendulum is highly probable to swing back upon the Fidesz’s expulsion from the EPP, from the current perspective key developments in Hungarian politics provide convincing empirical evidence in support of the revised, dynamic

The rise of authoritarianism in the European Union  159 model of the EU constraining effect. The overtly authoritarian moves and confrontational approach of the Hungarian government toward EU institutions undermined the European perception of Hungary’s symbolic and procedural compliance with EU values, resulting in lowering political support from the conservative party family EPP and increased adaptational pressure exerted on the Hungarian government. Lacking political alternatives, for the first time since 2010 the Hungarian government reacted positively to external EU pressure and decreased the misfit between the European and national political settings by suspending the implementation of the administrative court reform and moderating the tone of its political communication.

Conclusions Finally, the question appears of how our ‘externally constrained hybrid regime’ approach relates to the international dimension of democratization. Levitsky and Way (2006) identify the strength of Western influence (leverage) and the density of social contacts to Western societies (linkage) as the two key international factors of internal democratization or hybridization.20 The validity of their argument can hardly be criticized in a global context. However, its explanatory power is rather limited with regard to the recent Hungarian and Polish democratic backsliding processes. The reason behind this weakness can be traced back to the fact that the authors partially misidentify the role and functions of the European Union within the linkage and leverage dimensions. According to Levitsky and Way (2006), it could be deemed impossible that an EU member state linked by the strongest possible economic and social ties to the centre of Western democracy, and being in a rather dependent position relative to this centre in economic and financial terms,21 would slide back from the level of consolidated liberal democracy to the category of hybrid regimes. Especially because the authors attribute a further positive characteristic to the EU beside the evident capability of influencing and the high density of connections between the European Union and its member states. According to them, only in the case of the European Union could a consistent democratization practice be identified, which is not exclusively narrowed down on the electoral dimension of democracy, but embraces the protection of fundamental freedoms and the condition of an even political playing field as well (Levitsky & Way, 2006, p. 381). In contrast to that statement, the European Union rather lacks any detailed benchmarks with regard to the even political playing field, or the quality of checks and balances in its member states. Although a functioning system of checks and balances was considered an important part of the conditions of ‘external political governance’ prescribed for the candidate countries, the European Union doesn’t have extensive competences in the field of ‘internal political governance’ (Schimmelfennig & Sedelmeier, 2005), which could successfully transfer this condition to the member states, either by European law, or in any other form. Opposing the thesis stating that high linkage increases the chance of external intervention to safeguard liberal democracy (Levitsky & Way, 2006, p. 384), in the Hungarian case one could experience the opposite.

160  András Bozóki and Dániel Hegedűs These contradictions can be understood better if one considers the linkage/ leverage theory as a general mezzo-level theory, while the model of the ‘externally constrained hybrid regime’ can be used as a focused, micro-level approach. It does not question the general validity of the mezzo-level explanation, but in the unique environment of the European multi-level polity the insights won by the micro-level model overwrite the previous one. The unique nature of the Hungarian regime that makes it a new model of hybrid regimes begs the question if this regime’s characteristics allow for contributions to the comparative theories of political regimes. We claim it is necessary to treat hybrid regimes that are part of a multi-level polity as a distinct subtype. Although currently this subtype only applies to the relations of the EU and Hungary, the European Union’s role is crucial in understanding the nature of a hybrid regime in a member state. Future research should explore further the European Union’s role in the transformation of the political system of Hungary and other currently democratic states, like Poland, which has stepped onto the illiberal path. Considering the main questions of the contemporary debate about hybrid regimes, we argued that hybrid regimes should be seen as a distinct category of regimes rather than subtypes of either democracies or dictatorships. It is evident today that hybridization can no longer be considered a one-way process or a distortion of the democratic transformation of an authoritarian state. Stable, consolidated democracies may also fall victim to the process of hybridization. Based on such objective definitional traits as the existence but unfair and unjust nature of political competition or the system-level absence of liberal constitutionality, we conclude that hybrid regimes constitute a third group of regimes between democracy and dictatorship. Juan Linz’s argument that it is counterproductive to use adjective democracies to replace the category of hybrid regimes, because it diminishes the differences between democratic and hybrid regimes, and thus, obscures the fact that hybrid regimes do not live up to the criteria of liberal democracies (i.e. ‘the’ democracies), also needs to be extended (Linz, 2000). Hybrid regimes need to be differentiated from not only democracies but also from dictatorships. Hence, augmenting authoritarianism with adjectives like competitive or electoral may be necessary, but not sufficient to the general description of hybrid regimes. Given the variety among hybrid regimes, it is necessary to reflect on several new dimensions and possibly to create additional subtypes within hybrid systems. This way we can avoid treating democracies with negative adjectives (illiberal, delegative, defective, etc.) as democracies and authoritarian regimes with positive adjectives as dictatorships. Our approach, thus, could limit the erosion of the concept of democracy particularly in the field of theorizing and within academia but to a limited extent in the public discourse as well. In sum, we have argued in this study that Hungary’s ‘System of National Cooperation’ belongs to the group of hybrid regimes, and there is a gap in the literature of regime typologies that needs to be filled by analysing and understanding the functions of the European Union in the development of the political systems of its member states. Taking these arguments into account, we have introduced

The rise of authoritarianism in the European Union  161 a new concept of externally constrained hybrid regime in order to describe the Orbán regime and to understand the nature of constant interplay between the community of democratic states and their non-democratic member.

Notes 1 The regime that has existed in Hungary since 2010 is named after Prime Minister Viktor Orbán. Sometimes it is referred to as the ‘System of National Cooperation’, as it is formulated by Orbán, to distinguish his own period from the previous two decades of liberal democracy. 2 Hungary, Parliamentary Elections, 6 April 2014. OSCE/ODIHR Limited Elections Observarion Mission, Final Report (see http://www​.osce​.org​/odihr​/elections​/hungary​ /121098​?download​=true). 3 The political changes taking place in Poland after October 2015, the constitutional crisis in Romania in 2012, and the politics of the first Fico-cabinet in Slovakia between 2006 and 2010 are good examples. 4 Although the experiences of the Austrian case in 2000 still have a deep influence on the contemporary interpretation of Art. 2 TEU non-compliance and its sanctioning, as a matter of fact it neither fulfils the criteria of a serious breach of the EU fundamental values, nor qualifies it for being an ‘EU precedent’, as at that time the concerted action of the 14 Member States did not include EU institutions. 5 Act CCVI of 2011 on the Right to Freedom of Conscience and Religion and on the Legal Status of Churches, Religious Denominations and Religious Communities. 6 European Court of Human Rights, Case of Hungarian Christian Mennonite Church and Others v. Hungary (Strasbourg: ECHR, 8 April 2014), see http://hudoc​.echr​.coe​.int​/eng​ ?i​=001​-142196, and 3144/2015 (VII. 24.) AB Határozat (Constitutional Court decision) see http://public​.mkab​.hu​/dev​/dontesek​.nsf​/0​/A4D​BC78​26F8​5A13​4C12​57B3​ 4002128EB​?OpenDocument. 7 61/2011 (VII. 13.) AB határozat, see http://www​.kozlonyok​.hu​/nkonline​/MKPDF​/hiteles​/mk11080​.pdf. 8 According to the famous statement of Jean-Claude Juncker, President of the European Commission, ‘Mr. Orbán must immediately make clear that this is not his intention. If it would be his intention, it would be a fight’. ‘EU chief warns Hungary over return of death penalty comments’. The Guardian, 30 May 2015. 9 ‘By prematurely bringing to an end the term served by its Data Protection Supervisor, Hungary has infringed EU law’, Court of Justice of the European Union, Press Release No. 53/14. 2014. April 8. To the analysis of the cases, see Scheppele, 2014. 10 The Central European University, a Hungarian-American private, graduate school of Budapest, was established by George Soros, a financier and philanthropist, in 1991. In the spring of 2017, the Orbán government passed a bill to shut down the university in the name of ‘equality’ with state universities. This move has been globally understood as an attack on academic freedom and the freedom of expression, and thus provoked wide-scale anti-regime protests in Hungary. For details, see Müller, ‘Hungary: The War on Education’. 11 Initiated on 26 April 2017, see http://europa​.eu​/rapid​/press​-release​_SPEECH​-17​-966​ _en​.htm. 12 Initiated on 29 April 2017, see http://europa​.eu​/rapid​/press​-release​_MEX​-17​-1116​_en​ .htm. 13 http://www​.epp​.eu​/press​-releases​/prime​-minister​-orban​-to​-comply​-with​-eu​-laws​-and​ -epp​-values​-following​-meeting​-with​-epp​-presidency/. 14 European Parliament resolution of 17 May 2017 on the situation in Hungary (2017/2656(RSP)), see http://www​.europarl​.europa​.eu​/sides​/getDoc​.do​?pubRef=-​%2f​

162  András Bozóki and Dániel Hegedűs %2fEP​%2f​%2fTEXT​%2bTA​%2bP8​-TA​-2017​-0216​%2b0​%2bDOC​%2bXML​%2bV0​ %2f​%2fEN​&language​=EN. 15 Hungary’s EU membership might have played a role in that the police have not used violence against protesters, unlike in hybrid regimes outside the EU (i.e. Macedonia and Turkey). About anti-regime protests see Krasztev & van Til (2015). 16 The contribution of resources that the government captures from the European Cohesion Fund to the uneven political playing field is well-illustrated by the buying up of the commercial TV channel, TV2. The state-owned Eximbank used public funds to help Andrew Vajna, a government commissioner and member of the inner circle of Prime Minister Viktor Orbán, acquire Hungary’s second largest commercial television channel. 17 For analyses of the proceedings based on article 7 of the Treaty on the EU see Bugaric (2014); Closa et al., (2014), Hegedűs (2015), Sadurski (2010); for the political background behind the lack of sanctions see Kelemen (2017). 18 Although the right-wing radical party Jobbik remained the largest opposition party, it suffered a strategic defeat in the 2018 elections. It lost its strongholds in northeastern Hungary and only won one single-seat constituency, ending up with 26 seats overall and receiving approximately the same number of party list votes as in 2014 (barely above 1 million ballots). The political Left, constituted by the Hungarian Socialist Party (MSZP) and the Democratic Coalition, also underperformed expectations. The president of MSZP also resigned after the electoral defeat, leaving the party vulnerable to political and institutional chaos. The green party ‘Politics Can Be Different’ (LMP) won eight seats. LMP has been widely seen as bearing the chief responsibility for the failure of the coordination among the opposition parties. 19 The three wise men group consists of the former Belgian and Austrian prime ministers, Herman van Rompuy and Wolfgang Schüssel, and the former president of the European Parliament, Hans-Gert Pöttering, from Germany’s Christian Democratic Union. 20 Others offered similar evaluations, like Vachudova (2005); or Berg-Schlosser (2008). 21 More than 80 per cent of the Hungarian export goes to the European internal market, moreover, as was mentioned above, the economic importance of the European cohesion transfers totaling up to 3.89 per cent of the Hungarian GDP annually can be hardly overestimated (source: Eurostat—Extra and Intra EU-Trade by Member State and Product Group).

References Bache, I., & Flinders, M. (2004). Multi-level governance. Oxford: Oxford University Press. Berg-Schlosser, D. (2008). ‘Neighborhood effects’ of democratization in Europe. Taiwan Journal of Democracy, 4(2), 29–45. Blokker, P. (2013). Systemic infringement action: An effective solution or rather part of the problem? Verfassungsblog, 5 December. Retrieved from http://www​.verfassungsblog​ .de​/ systemic​- infringement​- action​- an​- effective​- solution​- or​- rather​- part​- of​- the​ -problem/#​.Vb9r5flp​-Uk. Bogaards, M. (2012). Where to draw the line? From degree to dichotomy in measures of democracy. Democratization, 19(4), 690–712. Börzel, T.A., & Risse, T. (2000). When Europe hits home: Europeanization and domestic change. European Integration online Papers (EIoP), 4(15), 29 November. Retrieved from http://eiop​.or​.at​/eiop​/pdf​/2000​-015​.pdf. Bozóki, A., & Hegedűs, D. (2017). Az Orbán-rezsim értelmezései (Interpretations of the Orbán regime). Mozgó Világ, 43(2), 3–21.

The rise of authoritarianism in the European Union  163 Brooker, P. (2000). Non-democratic regimes: Theory, government and politics. New York: St. Martin’s Press. Bugarič, B. (2014). Protecting democracy and the rule of law in the European Union: The Hungarian challenge. LSE ‘Europe in Question’ Discussion Paper Series, 79. Retrieved from http://www​.lse​.ac​.uk​/europeanInstitute​/LEQS​%20Discussion​%20Paper​%20Series​/ LEQSPaper79​.pdf. Carothers, T. (2002). The end of the transition paradigm. Journal of Democracy, 13(1), 5–21. Cassani, A. (2012). Hybrid what? The contemporary debate on hybrid regimes and the identity question. Conference Paper, XXVI Convegno, SISP. Retrieved from http:// www​.sisp​.it​/files​/papers​/2012​/andrea​-cassani​-1445​.pdf. Closa, C., Kochenov, D., & Weiler, J.H.H. (2014). Reinforcing rule of law oversight in the European Union. EUI Working Paper, RSCAS, 25. Retrieved from http://cadmus​.eui​ .eu​/handle​/1814​/30117. Democracy Reporting International. (2017). Judging by results—5 facts on Hungary’s ‘illiberal state’. Retrieved from http://democracy​-reporting​.org​/wp​-content​/uploads​ /2017​/03​/DRI​_Report​_Hungary​_2017​_en​.pdf. Diamond, L. (2002). Thinking about hybrid regimes. Journal of Democracy, 13(2), 21–35. Enyedi, Z. (2016). Paternalist populism and illiberal elitism in Central Europe. Journal of Political Ideologies, 21(1), 9–25. European Commission. (2014). EU Anti-Corruption Report—Hungary, 3 February. Retireved from http://ec​.europa​.eu​/dgs​/home​-affairs​/what​-we​-do​/policies​/organized​ -crime​-and​-human​-trafficking​/corruption​/anti​-corruption​-report​/docs​/2014​_acr​_ hungary​_chapter​_en​.pdf. Freedom House. (2016). Nations in transit. Hungary report. Retrieved from https:// freedomhouse​.org​/report​/nations​-transit​/2016​/hungary. Freedom House. (2017). Nations in transit. Hungary report. Retrieved from https:// freedomhouse​.org​/report​/nations​-transit​/2017​/hungary. Gárdos-Orosz, F. (2016). Alkotmánybíróság 2010–2015 (Constitutional Court, 2010– 2015). In A. Jakab, & G. Gajduschek. (Eds.), A magyar jogrendszer állapota (The state of the Hungarian legal system) (pp. 442–479). Budapest: MTA TK. Halmai, G. (2014). Alkotmányosság és demokrácia (Constitutionalism and democracy). Élet és Irodalom, 3 January. Retrieved from https://www​.es​.hu​/cikk​/2014​-01​-03​/ halmai​-gabor​/alkotmanyossag​-es​-demokracia​.html. Hegedűs, D. (2015). Is there a new impetus or a political paralysis regarding the protection of the EU’s fundamental values? A comparative analysis of policy proposals and adopted procedures from the Copenhagen Commission proposal to the rule of law initiative of the European Commission. Hungarian Europe Society—Friedrich-Naumann-Stiftung. Retrieved from https://www​.europesociety​.hu​/en​/node​/48. Kassim, H., & Le Galès, P. (2010). Exploring governance in a multi-level polity: A policy instruments approach. West European Politics, 33(1), 1–21. Kelemen, R.D. (2015). Europe’s Hungary problem: Viktor Orbán flouts the Union. Foreign Affairs, 20 September. Retrieved from https://www​.foreignaffairs​.com​/articles​/europe​ /2015​-09​-20​/europes​-hungary​-problem. Kelemen, R.D. (2017). Europe’s other democratic deficit: National authoritarianism in Europe’s democratic union. Government and Opposition, 52(2), 211–238. Kochenov, D. (2014a). Europe’s crisis of values. Revista Catalana de Dret Públic, 48, 206–218.

164  András Bozóki and Dániel Hegedűs Kochenov, D. (2014b). On policing article 2 TEU compliance—Reverse solange and systemic infringements analysed. Polish Yearbook of International Law, XXXIII, 145–170. Kornai, J. (2015). Hungary’s U-Turn. Capitalism and Society, 10(1), 3–24. Krasztev, P., & van Til, J. (Eds.). (2015). The Hungarian patient: Social opposition to an illiberal democracy. Budapest and New York: CEU Press. Levitsky, S., & Way, L.A. (2002). Elections without democracy: The rise of competitive authoritarianism. Journal of Democracy, 13(2), 51–65. Levitsky, S., & Way, L.A. (2006). Linkage versus leverage. Rethinking the international dimension of regime change. Comparative Politics, 38(4), 379–400. Levitsky, S., & Way, L.A. (2010). Competitive authoritarianism: Hybrid regimes after the Cold War. Cambridge: Cambridge University Press. Linz, J.J. (2000). Totalitarian and authoritarian regimes. Boulder & London: Lynne Rienner Publishers. Magyar, B. (2016). Post-communist mafia state: The case of Hungary. Budapest & New York: CEU Press. Magyar, B., & Vásárhelyi, J. (Eds.) (2017). Twenty-five sides of a post-Communist Mafia state. Budapest & New York: CEU Press. Mándi, T. (2015). Politikai gondolkodás (Political thought). In A. Körösényi (Ed.), A magyar politikai rendszer—negyedszázad után (The Hungarian political system after a quarter of century) (pp. 13–34). Budapest: Osiris. Merkel, W. (2004). Embedded and defective democracies. Democratization, 11(5), 33–58. Merkel, W., Puhle, H.-J., Croissant, A., Eicher, C., & Thiery, P. (2003). Defekte Demokratien. Bd. 1. Theorien. Opladen: Leske + Budrich. Miroiu, M. (2014). What is left from democracy? Electoralism and populism in Romania. Perspective Politice, 4(2), 7–21. Mrak, M., Richter, S., & Szemlér, T. (2015). Cohesion policy as a function of the EU budget. A perspective of the CEE member states. The Vienna Institute for International Economic Studies Research Report, 400. Vienna: The Vienna Institute for International Economic Studies. Müller, J.-W. (2013). Protecting democracy and the rule of law inside the EU, or: Why Europe needs a Copenhagen Commission. Verfassungsblog, 13 March. Retrieved from http://verfassungsblog​.de​/protecting​-democracy​-and​-the​-rule​-of​-law​-inside​-the​-eu​-or​ -why​-europe​-needs​-a​-copenhagen​-commission/. Müller, J.-W. (2016). The problem with ‘illiberal democracy’. Project Syndicate, 21 January. Retrieved from https://www​.project​-syndicate​.org​/commentary​/the​-problem​-with​ -illiberal​-democracy​-by​-jan​-werner​-mueller​-2016​-01​?barrier​=accesspaylog. Müller, J.-W. (2017). Hungary: The war on education. The New York Review of Books, 20 May. Retrieved from http://www​.nybooks​.com​/daily​/2017​/05​/20​/hungary​-the​-war​ -on​-education​-ceu/. OSCE. (2018). Parliamentary Elections, 8 April 2018. Vienna: OSCE Office. Retrieved from https://www​.osce​.org​/odihr​/elections​/hungary​/373603. Pappas, T.S. (2014). Populist democracies: Post-authoritarian Greece and Post-communist Hungary. Government and Opposition, 49(1), 1–23. Pernice, I.E. (2009). The treaty of Lisbon: Multilevel constitutionalism in action. Columbia Journal of European Law, 15(3), 349–407. Piattoni, S. (2009). Multi-level governance: A historical and conceptual analysis. European Integration, 31(2), 163–180.

The rise of authoritarianism in the European Union  165 Polgári, E. (2015). Az alkotmánybíróság esete az emberi jogok Európai egyezményével (The Hungarian Constitutional Court and the European convention on human rights and fundamental freedoms). Fundamentum, 4, 5–17. Sadurski, W. (2010). Adding a bite to bark: The story of article 7, EU enlargement and Jörg Haider. Sydney Law School Research Paper, 10/01, 4 January. Retrieved from http:// papers​.ssrn​.com​/sol3​/papers​.cfm​?abstract​_id​=1531393. Schedler, A. (Ed.). (2006). Electoral authoritarianism: The dynamics of unfree competition. Boulder & London: Lynne Rienner Publishers. Scheppele, K.L. (2013). What can the European Commission do when member states violate basic principles of the European Union? The case of systemic infringement actions. Verfassungsblog, 1 November. Retrieved from https://verfassungsblog​.de​/wp​-content​/ uploads​/2013​/11​/scheppele​-systemic​-infringement​-action​-brussels​-version​.pdf. Scheppele, K.L. (2014). Making infringement procedures more effective. A comment on Commission v. Hungary, Case C-288/12 (8 April) (Grand chamber). EUtopia Law, 29 April. Retrieved from https://eutopialaw​.wordpress​.com​/2014​/04​/29​/making​ -infringement​-procedures​-more​-effective​-a​-comment​-on​-commission​-v​-hungary​-case​ -c​-28812​-8​-april​-2014​-grand​-chamber/. Schimmelfennig, F., & Sedelmeier, U. (Eds.) (2005). The Europeanization of Central and Eastern Europe. Ithaca: Cornell University Press. Sedelmeier, U. (2010). The EU and democratization in Central and Southeastern Europe since 1989. In S.P. Ramet (Ed.), Central and Southeast European politics since 1989 (pp. 519–535). Cambridge: Cambridge University Press. Smilov, D., & Krastev, I. (2008). The rise of populism in Eastern Europe. In G. Meseznikov, O. Gyárfášová & D. Smilov (Eds.), Populist politics and liberal democracy in Central and Eastern Europe. Working papers Bratislava: Institute for Public Affairs. Tamás, G.M. (2017). The mystery of ‘populism’ finally unveiled. openDemocracy, 24 February. Retrieved from https://www​.opendemocracy​.net​/wfd​/can​-europe​-make​-it​ /g​-m​-tam​-s​/mystery​-of​-populism​-finally​-unveiled. Transparency International Hungary. (2015a). Public Procurement Corruption, 12 February. Retrieved from http://transparency​.hu​/uploads​/docs​/infografika​_angol​.pdf. Transparencey International Hungary (2015b). Az uniós források korrupciós kockázata Magyarországon’ [EU cohesion funds related corruption risks in Hungary]. Retrieved from http://transparency​.hu​/uploads​/docs​/unios​_forrasok​_WEB​_jav​.pdf. Traynor, I. (2015). EU Chief warns Hungary over return of death penalty comments. The Guardian, 30 April. Retrieved from https://www​.theguardian​.com​/world​/2015​/apr​/30​/ eu​-jean​-claude​-juncker​-viktor​-orban​-hungary​-death​-penalty​-return. Urbinati, N. (2014). Democracy disfigured. Cambridge: Harvard University Press. Vachudova, M.A. (2005). Europe undivided: Democracy, leverage, and integration after communism. Oxford: Oxford University Press. Zakaria, F. (1997). The rise of illiberal democracy. Foreign Affairs, 76(6), 22–43.

9

Turkey’s regime transformation and its emerging police state The judicialization of politics, everyday emergency, and marginalizing citizenship Zafer Yılmaz

Introduction Turkey has been experiencing a highly violent regime transformation since the failed coup on 15 July 2016. The vital moments of this regime transformation have already been discussed in the Turkish politics literature to shed light on their significance in terms of the organization of political power, increasing power of the executive, and escalation of authoritarianism in the country. In general, critical studies have mainly prioritized these breaking points to explain how the sovereign power, President Erdoğan, and the Adalet ve Kalkınma Partisi (AKP – the Justice and Development Party), or the new alliance between the AKP and the Milliyetçi Hareket Partisi (MHP – the Nationalist Movement Party) intervened in the ‘ordinary’ succession of political events at particular moments to change the direction of mainstream politics. Although these analyses are highly successful in describing the general evolution of Turkish politics towards a more authoritarian state, they have disregarded the broader political context from which these ‘sovereign interventions’, such as declaring a state of emergency or starting comprehensive military operations abroad, derived their strength. Analyses have been neglecting to a certain extent how everyday politics is structured by ongoing ‘prosaic politics of emergency’ so that these interventions and their impacts have easily been imposed on the opposition and transferred to society via everyday emergencies involving police operations. To properly understand the importance of these historical and critical nodal points, I argue that we need to locate them within a broader political, juridical, and institutional context. Such an analysis allows us to investigate how the ground for the regime transformation has gradually been prepared by ‘ordinary’ but ‘spectacular’ judicial and police operations and run-of-the-mill police emergencies. In that context, a macro-level and political analysis of recent regime transformation needs to be complemented by a mezzo-level analysis of the facilitating legal, institutional, and political environments that have been promoted by the AKP and President Erdoğan. To fill this research gap, this chapter aims to shed light on the gradual evolution of both the judicialization of politics and institutionalization of police emergencies, which have been imposed to facilitate the organization of a smooth and successful transition by preventing the emergence of any opposition

Turkey’s regime transformation  167 to the regime change. I assert that the judicialization of politics, which has accompanied the politicization of judiciary and daily emergencies, has been organized around the principle of increasing the discretionary power of police forces in order to entrench an authoritarian security state. This new form of the security state has been oriented to marginalize appeals to citizenship rights, criminalize political protest, and hence, endlessly securitize politics. In the paper, I trace the construction of an emerging police state, organized around the development of extensive policing mechanisms, back to the early reform period of the AKP, more specifically, to the police and anti-terror law amendments. These laws and regulations permitted the implementation of key practices of the national security mentality, imposed by the military for almost three decades, in a conceptual form more easily defended on ‘liberal’ terms.1 President Erdoğan and the Party enhanced the level of securitization and improved the institutional and legal aspect of the new police state to, first, face the emerging challenges and, second, organize the transition period. The escalating securitization has been backed by daily police operations and the judicialization of politics. Neither the erosion of judicial independence nor the politicization of the judiciary is a new experience in Turkey. The country’s fragmented judicial system, wherein one or more exceptional courts run alongside the ordinary courts and there is a reliance on courts and judges for dealing with main political controversies, such as the nation’s collective identity, the regime’s legitimacy, and the prohibition of political parties, and the intervention of the executive into judicial affairs are well known.2 However, the current state of the judicialization of politics and politicization of the judiciary indicates a historical transformation in terms of the changing relationship between the executive and judiciary and the role of the judiciary in the regulation of politics. As succinctly emphasized by the ICJ report, [it] is clear that in recent decades, the judiciary has been a battleground for different political interests – nationalist, Gülenist, AKP – which have vied for influence and control, and have held significant sway over the judiciary and its institutions at different times. This deeply rooted tradition of politicization has laid the ground for recent moves towards a more direct capture of the judiciary, by the executive itself, not only by political interests associated with or allied to the government. (ICJ, 2016, p. 10) While the executive power has gradually captured the judiciary, politics have been retreating to the courts, and ‘the right to claim rights’ has been broadly marginalized in the country. New extensive policing mechanisms have adorned the police forces with the power to distinguish between citizens deserving protection and others perceived as suspect and as a threat to the new order. Thus, they have opened the way for the realization of new forms of internal exclusions from citizenship. The new police state, organized around the institutionalization of new policing mechanisms and the judicialization of politics, also defines the form of citizenship and

168  Zafer Yılmaz the boundaries of citizen rights arbitrarily based on the political orientation of the legally scrutinized subject. I argue that the legal amendments and regulations, enhancing the police’s authority since 2006, have paved the way for capturing judicial power. These developments have also initiated changes in the nature of the state power and hence, the relationship between the state and citizens in Turkey. President Erdoğan and the AKP have successfully deployed police power and prosaic politics of emergency to both suppress possible challenges and organize regime transformation especially after the July 2016 failed coup. In that context, drawing on the insights of the recent critical studies on policing, the judicialization of politics, authoritarianism, and legality, this chapter aims to provide a genealogy of the link between the regime transformation and the evolution of the new police state with a close scrutiny of related legal documents, security policies, and new institutional arrangements.

The AKP’s brand new strategic legalism: The judicialization of politics and politicization of the judiciary The permanent dominance of a security mentality increased the fragility of the rule of law and use of political rights after the 1980 military coup in Turkey. In particular, the relations between the legislature, executive, and judiciary have been structured around the reason of state and oriented to entrench authoritarian constitutionalism, which is organized around ‘adherence to a constitution whose terms directly and unequivocally subordinate the liberties of citizens to an oppressive conception of public order and security’ (Isiksel, 2013, p. 710). The National Security Council (Milli Güvenlik Kurulu, MGK), established after the 1961 coup as an ‘advisory’ board, dominated Turkish politics and dictated policy priorities, which were designed around security and protecting the dominance of the military.3 The national security state of the 1980s and 1990s institutionalized the legal emergency power, which was dominated by the military. It also institutionalized exceptional courts, such as the State Security Courts, permanent state of emergency declarations, and endless emergency policing. Even if human rights organizations persistently criticized the draconian encroachments on individual rights and freedoms and severe human rights violations because of the security operations and authoritarian legal regulations, security-based mentality and policies remained highly robust up until 2000s. For this reason, reform initiatives by the AKP in its early years of power were seen as valuable steps in solving the perennial problems of Turkish democracy both by liberal intellectuals and EU policy makers. The party rose to power in 2002 with the support of a large coalition, including big capital circles, the so-called Anatolian Islamist bourgeoisie, urban poor, international circles, and liberal intellectuals, as well as leftist and radical Islamists.4 The expectations from the party were high at that moment regarding the rule of law, which were seen as embodying ‘illiberal’ practices, defective, and acting under the dominance of the military. Between 2002 and 2004, the party initiated two major constitutional reforms as well as nine legislative packages (‘harmonization packages’) in accordance with the EU

Turkey’s regime transformation  169 Copenhagen Criteria in addition to the adoption of a new Civil and Criminal Code (Özbudun & Gençkaya, 2009, p. 73). A cursory reading of the reform process can lead us to assert that the first period of the party’s policies on the ongoing problems of the rule of law carries genuine traces of a liberal reform mentality and a sincere will to cure these permanent problems. While this perspective is correct to an extent, I suggest that a closer reading shows that, even in its early period, the party, first of all, followed a strategy of articulating liberal-oriented legal amendments with highly authoritarian security regulations, and, second, found a way to embed liberal-oriented reforms into a legal framework, which were oriented to empower the executive branch at the end of the reform process. Hence, it successfully articulated a legal approach that embraced macro regulations on the rule of law, which was structured around a more liberal mentality, and gradually constructed a security and surveillance state, aiming to repress challenges to the party’s power and political opposition. Comprehensive anti-terror law amendments and police regulations promoting ‘hyper-legalization’ accompanied legal reforms to secure the party’s power. Such hyper-legalization paved the way for a new version of the judicialization of politics, or ‘the transformation of political questions into legal ones’ (Ferejohn, 2002, p. 42). These regulations not only empowered the security institutions, but also catalysed the use of judicial repression strategies to contain challenges to the AKP’s power. In his seminal works, Ran Hirschl defines the judicialization of politics as ‘the reliance on courts and judicial means for addressing core moral predicaments, public policy questions, and political controversies’ (Hirschl, 2008, p. 119). He differentiates three forms of political judicialization: the spread of legal discourse, jargon, rules, and procedures into the political sphere; the expansion of the province of courts and judges in determining public policy outcomes; and the reliance on courts and judges for handling what we might call ‘mega-politics’, meaning the judicialization of the formative collective identity, nation-building processes, and struggles over the very definition – or raison d’être – of the polity as such (Hirschl, 2008, pp. 119–123). Against the double assumption that the judges are non-political, independent, and neutral servants of the law, and that courts are the antithesis of arbitrary rule, recent studies on the transformation of the rule of law in authoritarian countries show that courts and judges are actually highly efficient in consolidating and stabilizing authoritarian rule (Shen-Bayh, 2018, p. 329; Moustafa, 2014).5 Authoritarian rulers deploy laws and courts to (a) exercise state power vis-à-vis opposition, (b) advance administrative discipline within state institutions, (c) maintain cohesion among various factions within the ruling coalition, (d) facilitate market transitions, (e) contain majoritarian institutions through authoritarian enclaves, (f) delegate controversial reforms, and (g) bolster regime legitimacy. (Moustafa, 2014, p. 283) In particular, in order to silence opposition and repress challengers, judicial repression is the best strategy, since it also creates an image of legitimacy on

170  Zafer Yılmaz the side of the government and gives a clear sign to other possible challengers that they will also be prosecuted like the others (Shen-Bayh, 2018). Hence, as incisively discussed by Shen-Bayh, courts can provide a highly efficient stage for repression. The recent period of Turkish politics, structured around conspiracy theories, daily police operations, criminalization of the opposition, and unending political trials, clearly exposed the significance of the courts and judiciary in containing civic activism, avoiding insider challenges, and organizing a regime transition. The courts and trials gained the utmost significance in Turkish politics, especially after the AKP’s rise to power. It started with the Ergenekon case in 2008 and was followed by the KCK (2009), Sledgehammer (2010), Revolutionary Headquarters (2011), Gezi (2019), FETÖ/PDY (2013), and Büyükada cases (2017) (Ertür, 2016; Kars Kaynar, 2018a). The public repercussions of these trials reinforced the impression that politics had almost totally migrated to the courts. The judicialization of politics gained momentum, especially after critical moments, during which the AKP experienced a kind of ‘existential insecurity’, emerging both from democratic challenges, such as the Gezi Uprising in May–June 2013, the success of the Kurdish Political Movement in the 7 June 2015 General Elections, and undemocratic challenges, such as the December 17–25 Graft Probe in 2013, and the failed coup attempt on 15 July 2016. As a response to these challenges, the party appealed both to security and police operations as well as judicial repression strategies, which were mainly anchored in the judicialization of politics. In trying to contain these challenges, the AKP intensified the link between these two phenomena and entrenched a new version of the security state and legality.6 The judicialization of politics, which accompanied these developments as their inevitable outcome, has also intertwined with President Erdoğan’s final aim to introduce the Turkish version of a presidential system as well. In that context, packing high courts also played a highly significant role. With the 2010 Constitutional Referendum, the party changed the composition and powers of the Constitutional Court, the Supreme Council of Judges, and Public Prosecutors (Hâkimler ve Savcılar Yüksek Kurulu, HSYK), introduced the institution of ‘constitutional complaint’, which enables individuals to appeal to the Constitutional Court directly, and realized significant modifications in the composition of the HSYK. The council members’ election process started to embody a more ‘pluralistic and representative’ approach (Özbudun, 2015, p. 45).7 However, it became very quickly obvious that these positive steps were tied with the strategy of increasing the power of the executive over the judiciary. Even if the government had gained significant opportunity to control the HSYK, this opportunity ended with the appointment of numerous members of the Gülen movement to the Court of Cassation (Yargıtay) and the Council of State, since the Gülen movement was allied with the government at the time (Akdeniz & Altıparmak, 2018 p. 9). When the crisis over the new HSYK erupted with the disclosure of major corruption charges on 17 December 2013, the government’s first reaction was to change the ‘Regulation on the Judicial Police’ on 21 December 2013 (Özbudun, 2015, p. 46).8

Turkey’s regime transformation  171 As emphasized by Özbudun, when it became clear that a constitutional amendment was impossible, a group of 78 AKP members of parliament (MPs) presented a bill to parliament designed to radically change Law no. 6087 on the HSYK. The bill was intended to limit the powers of the Plenary of the HSYK and to strengthen the role of the Minister of Justice as its president. (Özbudun, 2015, p. 46) Article 4 of the new law provided unlimited authority to the Minister of Justice to re-organize the HSYK, with the exception of the elected members, whose statuses are based on the Constitution, since the new law stated that ‘with the entry into force of this Law, the positions of the Secretary General, Assistant Secretaries General, the Chairman of the Board of Inspectors and the Vice-Chairmen, Council inspectors, reporting judges, and the administrative personnel shall be terminated’ (Özbudun, 2015, p. 48). Following these events, the government clearly declared an open struggle against the influence of the Gülen Movement followers in the judiciary and aimed to take the judiciary under direct control. The struggle became more apparent in the election of the new HSYK in October 2014 and the government gained significant dominance in the council.9 However, the entire domination of the judiciary has been ensured with the introduction of Law no. 6572.10 To pack the high courts, the government removed the existing members, appointed new pro-government members, and changed the number of high courts chambers (Akdeniz & Altıparmak, 2018, pp. 10–11). Since 2014, the government has followed a strategy in which they combined legislative measures, institutional reforms initiated by the executive, and the arbitrary application of criminal and disciplinary sanctions to dominate the judiciary more effectively (ICJ, 2016, p. 10). After the failed coup of 15 July, the country witnessed a new era of politicization of the judiciary, which has gone beyond packing high courts. Following the failed coup, Erdoğan and the party declared a state of emergency on 21 July 2016 and issued 32 emergency decrees in total, purging more than 4,000 members of the judiciary, including the members of the Constitutional Court.11 More importantly, the government initiated a constitutional referendum during the state of emergency and imposed a regime transition on 16 April 2017. The formula of Erdoğan’s new presidential regime has been dependent on a particular combination of supreme power of the leader, an extremely weak parliament, and elections of a plebiscitary character. The redesign of the relationship between the executive and judiciary has played a significant role in the institutionalization of the new regime and the dominance of the executive. The Constitutional Referendum of 16 April 2017 was passed with 51.41 per cent yes votes. According to the passed amendment, the president can be the head of the party. This means that they are not non-partisan anymore. The president also gained the power to control the judiciary. The members of the HSYK, whose name was changed to

172  Zafer Yılmaz the Board of Prosecutors and Judges (HSK), was reduced from 22 to 13, and its departments reduced from 3 to 2. The president appoints four members directly and the Minister of Justice and Undersecretary of Ministry of Justice continue to be members. The Grand Assembly appoints seven members. This means that the president will appoint a little less than half of the members of the board and if their party is dominant in the parliament, they will appoint almost all members according to their wishes. Considering the power of the board in appointing members to the high courts, taking disciplinary measures, and assigning members to courts, it could be asserted that not even high court judges and courts have any safeguards against the government (Akdeniz & Altıparmak, 2018, pp. 10–11). These amendments have created a legal system within which everything depends on presidential decisions and the executive and judicial power are almost united. In such a system, the president does not have to dictate decisions directly because the system is arranged to push judicial actors to act in line with the president and government’s political priorities. Consequently, we can assert that the Turkish example illustrates perfectly how a new form of legality, reinforced by the judicialization of politics, politicization of the judiciary, and ‘abusive constitutionalism’, has been legally organized and applied.12 As I assert, in line with Corrales’s discussion on Venezuela, this new legality can be called strategic legalism, defined as the ‘use, abuse and misuse of rule of law’ to achieve politically ‘legitimate’ aims, hence, reducing the rule of law to the existence of legal norms by strategically manipulating/abusing legal powers, processes, and rules (Corrales, 2015, p. 38; see Yılmaz, 2020, p. 270). The strategic legalism of the party depends mainly on the expansion of discretionary power in political and legal decision-making processes, the distortion of legal foreseeability, and finally, the politicization of the judiciary, which goes hand-inhand with the ‘judicialization of politics’ (Yılmaz, 2020, pp. 270–271). The recent decisions of the judiciary on freedom of speech cases perfectly demonstrate how this new strategic legalism has been reverberating in the judiciary. After the failed coup, it became highly common to prosecute journalists, writers, or civil society activists on the basis that they give support to ‘three terror organizations of vastly different stripes without being members of these groups’ (Oder, 2019). These terrorist organizations are the extreme leftist DHKP-C, the PKK, and the Fethullahist Terrorist Organization (FETÖ). The Cumhuriyet (daily newspaper) trials can be seen as an embodiment of this approach. The journalists were accused of giving support to these three different organizations at the same time, as argued by Oder, ‘telephone calls for ordering meals or holiday bookings have been regarded as evidence since the restaurant and the travel agency were on a list of FETÖ supporters provided by the intelligence service’ (Oder, 2019). Subjecting statements were made at a time marked by a relatively free environment of criminal investigation, and grounding the indictment and verdict on pseudo evidence became a common pattern in judiciary decisions. Furthermore, the courts began to disregard the judgements of constitutional courts by suspending the principle of constitutional and legal hierarchies of norms (Cali, 2018). This suspension of the basic principles of legality has been disintegrating the rule

Turkey’s regime transformation  173 of law, which has been already under fierce attack due to the violation of the principle of fair trial, the presumption of innocence, the institutionalization of illegitimate confidentiality order, and long pre-trial detentions. In that context, the invasion of the judiciary by the new strategic legalism goes hand-in-hand with the increasing police power and securitization of politics in the country.

Disciplining insurgent citizens: Institutionalization of everyday police emergency and securitizing politics Police power has played a special role in redesigning the state power and society in terms of the principles of the new regime in the Turkish context. As argued by critical scholars, the police directly impact how the rule of law is applied and interpreted, citizenship rights are experienced, internal hierarchies of citizenship are constructed, internal exclusions from the citizenship are imposed, the population is managed, and most importantly, the social and political order are fabricated (Bonner et al., 2018; Feldman, 2010; Neocleous, 2000; Neocleous, 2014; Seri & Lokaneeta, 2018). Briefly, policing is a nodal point of the constitution of state power, organization of regime transitions, and imposition of societal administration. It enables especially the penetration of the infrastructural power of state into the capillaries of society by selectively targeting individual bodies, behaviours, souls, political organizations, social movements, and urban spaces.13 As argued by Seri and Lokaneeta, policing enacts technologies of governance through which, as Michel Foucault noted, power ‘reaches into the very grain of individuals, touches their bodies and inserts itself into their actions and attitudes, their discourses, learning processes and everyday lives’ (Foucault, 1980, p. 39). The reach of police agents in everyday interactions with citizens, backed with the use of force, makes the police one of the most widespread and decisive organs of government and an extended node of stateness. (Seri & Lokaneeta, 2018, p. 57)14 This aspect of policing can be traced to the formation and regulation of more ordinary, and ‘prosaic’ emergency measures (Feldman, 2010, p. 160). The Turkish case strikingly illustrates how an authoritarian government constructed a multiple-emergency dispositive, within which police power plays a special role in managing the population and suppressing opposition. Analysis of the recent police law amendments and regulations shows not only how a new authoritarian political administration has been gradually constructed against the ‘enemies’ of the new order, but also how the boundaries of citizen rights have been re-drawn and everyday repression has been institutionalized by security regulations. These regulations and their implementations have contributed to the emergence of new forms of exclusion from citizenship by criminalizing certain political communities, such as Kurds, Alevis, the women’s movement, LGBTI people, and political opposition in general, all in the name of security in the country. In that context,

174  Zafer Yılmaz we can assert that there is a salient link between the above-mentioned strategic legalism and an increase in the discretionary and arbitrary power of the police, which has intensified the routine violence of the law. Consequently, these regulations have opened the way for the institutionalization of the everyday politics of police emergency, which has intertwined with the everyday repression of political opposition as a state policy. Police laws have long been criticized as being oriented towards prioritizing the continuity of state and public order in Turkey. These laws aim to create ‘a “desired and complacent citizen” since the establishment of the Republic, and bear signs of a “conservative,” “authoritarian” and “patriarchal” mentality’ (Berksoy et al., 2013, p. 11). Authoritarian aspects of police laws particularly intensified following the 1980 coup and rise of the Kurdish political movement against the imposition of assimilationist policies and Turkish Islamic ideology. However, the country witnessed an increasing dominance of state security mentality in police laws and a return of the ‘state of emergency policing’ in a new form, especially after 2007. These regulations found direct repercussions in the changing relationship between the police and prosecution, as well as the institutionalization of new modes for the exclusion of the country’s ‘insurgent citizens’.15 In 2007, the AKP government revised the Law on Police Duties and Entitlements (PVSK) after changing the Laws on Criminal Procedure (Law on Criminal Procedure, CMK (2004).16 The amendments introduced highly important changes on the use of firearms, stop and searches, pre-emptive data interception via telecommunication for investigating terror crimes, and fingerprinting (Altıparmak et al., 2007; Kars Kaynar, 2018a). Police officers gained the right to stop a person solely based on their personal impression gained from the situation and to use firearms during anti-terror operations, even if there has been no open gun fight. The armed attack has been so vaguely defined in the article that police forces could use firearms even against someone who resisted police forces using sticks, marble, or stones (Altıparmak et al., 2007). Meanwhile, the enlargement of police forces’ discretionary power complemented the 2006 Anti-Terror Law, which introduced a highly vague definition of terrorist crimes.17 The ambiguous and vague definition of terror crimes, along with the Turkish Criminal Code (Türk Ceza Kanunu, TCK), became highly useful in both fighting against political opposition and turning legitimate non-violent political protest into an issue of criminal prosecution. Particularly, article 301 (denigration of the Turkish nation), Article 318 (alienating the public from military service), Article 125 (defamation), Article 215 (praising crimes or criminals), and article 216 (incitement to hatred or hostility) of the TCK have been used widely in litigation processes. Additionally, the Anti-Terror Law became one of the most important legal grounds for repressing freedom of speech. The Turkish courts have generally appealed to Article 314 (membership of a terrorist organization), Article 220/227 (assisting a terrorist organization), Article 7/2 (making propaganda for a terrorist organization), and Article 6/2 (printing or publishing declarations or statements by terrorist organizations) in freedom of speech cases. In fact, the concept of terror has been used as the most crucial element of

Turkey’s regime transformation  175 a de-humanizing strategy employed against opposition by state and government authorities. Despite a drastic increase in the enactment of security regulations and laws, it became apparent that the existing laws and legal regulations were not sufficient to suppress opposition in times of serious political crisis. Therefore, following the Gezi Uprising (2013) and Kobane demonstrations, organized against the invasion of Syrian town Kobane by ISIS (2014), the government legalized a Domestic Security Package (İç Güvenlik Paketi), which introduced draconian security regulations, which was approved by parliament in March 2015. The whole package was designed to confer more power to police forces and increase the discretionary power of the police (Kars Kaynar, 2018a, p. 91). However, its impacts went beyond institutionalizing police discretion, giving more power to police in ‘distinguishing between citizens deserving protection and others perceived as suspect and as a threat to the former’ (Bonner et al., 2018, p. 14). In fact, the package turned the authority of criminal prosecution into a law enforcement activity and substantially changed the relationship between the police and judiciary at the end (Aydın, 2015). It broadened the right to use firearms by giving police forces the authority to use firearms against anyone attempting to use any kind of arms, including improvised devices like Molotov cocktails; transferred certain judicial powers to police forces, such as authorizing the police to keep a person in custody for 24 hours without a warrant, or for 48 hours for collective crimes, hence extending the detention period; increased the right to stop and search and granted police forces the right to detain a person and take a statement; and gave police forces the authority to conduct wiretapping for intelligence purposes in urgent situations without a judge’s order. More importantly, the governors and district governor gained the authority to head criminal investigations and execute preliminary criminal proceedings (Aydın, 2015; Berksoy, 2016; Kars Kaynar, 2018a). As succinctly analyzed by Kars Kaynar and Aydın, the security package made it possible for police forces to bypass the courts and judges during investigations and reduced criminal prosecution to a law enforcement activity (Aydın, 2015; Kars Kaynar, 2018a). This became a final step for revitalizing the security state of the 1990s in a new form and the institutionalization of new ‘lawfare’, including ‘the use of penal powers, administrative procedures, states of emergency, mandates and warrants to discipline its subjects by means of violence made actual by its own sovereign word’ (Comaroff & Comaroff, 2009, p. 36). It is a common view among critical scholars that recent regulations not only escalated police abuse but also that the whole justice system started relying on ‘police record law’, meaning that police records were used in prosecutors’ indictments before being transformed into court verdicts (Berksoy et al., 2013, p. 42). In short, the police’s role in the courts became juridical rather than investigatory as the police force became integrated into the adjudication process (Bora, 2012, p. 65; Aydın, 2012a, p. 366). As Özsu (2013, para. 9) sarcastically noted, the professional distinction between judges and

176  Zafer Yılmaz the police was completely abandoned in favour of the police, making it a waste of money to have separate offices for the judiciary and prosecution. (Kars Kaynar, 2018a, p. 95). Consequently, the police minutes became highly decisive in arrest decisions and police forces gained more initiative in determining the context of indictments (Berksoy et al., 2013, p. 8). Phone tapping and similar police intelligence-gathering strategies have actually played a significant role in the court cases against political opposition and social movements since the party’s rise to power. Therefore, criticism of the police force over the fabrication of extra-legal evidence has escalated. Blurring the line between police forces and prosecutors has had direct repercussions in the erosion of judicial independence, and increased executive control and the suppression of opposition. As argued by Akdeniz and Altıparmak, prosecutions and criminal investigations have become the crucial element of the new ‘less brutal but much more effective’ strategy of the government in repressing opposition and suppressing freedom of speech (Akdeniz & Altıparmak, 2018, p. 6). The number of people prosecuted and convicted due to committing ‘an offence on behalf of an organisation, although he is not a member of that organisation’ (Criminal Code 220 § 6) or aiding and abetting ‘an organisation knowingly and willingly, although he does not belong to the structure of that organisation’ (Criminal Code 220 § 7) has been extraordinarily escalated in recent years (Council of Europe, 2016). A short glance at numbers provides insight into the seriousness of resorting to legal instruments and the violence inherent in the law, which have realized political ends (Comaroff & Comaroff, 2009, p. 36). Akdeniz and Altıparmak state that [according] to statistical data regarding cases filed prior to the failed coup of 15 July 2016, between 2010 and 2017 a total of 94,396 cases were filed under Article 7 § 2 of the Anti-Terror Law (TMK) on terrorist propaganda. In the same period, 103,227 decisions were finalised, 26,921 of which resulted in conviction and 15,599 in acquittal … (DAV) … Between 2010 and 2017, the highest number of cases were brought under Article 314 § 2 of the Criminal Code on membership to an armed organisation. In this period, 98,904 cases were filed, making this article even more popular than terrorist propaganda. Of the 88,062 decisions issued in this period, 34,796 resulted in convictions, 13,635 resulted in acquittals and 621 with a deferment of the announcement of the verdict. (Akdeniz & Altıparmak, 2018, pp. 6–7) The ‘hyper-legalist’ era (2006–2020), based on amending existing security and anti-terror laws, enacting new security regulations, and redesigning the security institutions, intensified the everyday emergency in the country and finally led to the emergence of a ‘shadow carceral state’ (Squillacote & Feldman, 2018, p. 135).18 Following the termination of the so-called Resolution Process (Çözüm Süreci, 2013–2015), also named ‘The National Unity and Fraternity Project’ to solve the Kurdish Question, and the escalation of the clashes between Turkish security forces and the PKK in Kurdish cities, the institutionalization of the new

Turkey’s regime transformation  177 police state gained new momentum, ending with enormous human rights violations in the region and ever-increasing suppression of the Kurdish political movement and opposition. In this context, the governing party invented more subtle and sophisticated mechanisms to cope with challenges to its authority and regime transition. These mechanisms granted new institutional arrangements to political authorities, both to anticipate and respond to ‘emergencies’ and to create a ‘climate of violence and fear’ for the challengers. As a result, the division between police forces and the judiciary has been blurred and police forces have gained the authority to act as de facto prosecutors. Recent anti-terror operations, endless political trials, and everyday repression targeting the opposition and ‘usual suspects’ of the country aim to consolidate the new presidential regime and reduce insurgent citizens to a whispering and mumbling public that abstains from open challenge and critique.

Conclusion: Organizing regime consolidation and fabricating new social order As succinctly formulated by Kim Lane Schepelle, [if] making laws in a proper way were not so important for generating political legitimacy, the autocrats would not have bothered being so legalistic. Instead, they are trying to capitalize on the normative force of formal constitutional procedures in order to justify their actions. (Scheppele, 2008, p. 563) The Turkish case also demonstrates the importance of maintaining the façade of democracy and legality in order to protect so-called political legitimacy. Rather than suspending the law, the governing party has done everything in accordance with the letter of the law to deploy judicial repression against its shifting targets. The AKP has developed a mix of distinctive strategies to use, abuse, and misuse the rule of law in order to achieve its politically ‘legitimate’ aims (Corrales, 2015, p. 38). It should be once again noted that the country’s tradition of authoritarian constitutionalism, organized around legal emergency power, anti-terror laws, and a fragmented judicial system, has played a special role in the introduction of this new legality. The party has successfully transformed the elements of authoritarian constitutionalism and empowered the executive above other branches, nearly unifying these branches around the figure of the supreme president. The presidential office has become the dominant office, both in regulating the new legal emergency power and implementing ordinary and more prosaic everyday emergency operations. New security regulations, as well as anti-terror and police law amendments, have eroded the boundary between an exceptional criminal justice regime, structured around sweeping executive powers, draconian encroachments on individual rights and freedoms, and severe constraints on due process and the ordinary criminal justice regime. They have also imposed a new version of fragmented judicial systems wherein ordinary

178  Zafer Yılmaz courts have gained an exceptional character alongside the exceptional courts (Moustafa, 2014; Masferrer & Walker, 2013, p. 13). We can assert that the anti-terrorist and ordinary criminal justice regimes have increasingly morphed into one regime in which the lower standards of the former predominate the other (Masferrer & Walker, 2013, p. 13). The new exceptional criminal justice system is so arranged that any act of opposition can easily be prosecuted as a crime against the regime and hence, the state. The recent episode of Turkish politics has shown that courts can easily turn into a forum of repression (Shen-Bayh, 2018, p. 331). The erosion of judicial independence, entrenchment of a fragmented judicial system, imposition of draconian anti-terror and police laws, and institutionalization of strategic legalism have led to the destruction of public space and increased the vulnerability of political opposition in the country.19 The retreat of politics into the courts and the judicialization of politics have worked both as an repressive political strategy which aims to control and pacify political opposition and also promotes politics based on conspiracy and criminalization. Hence, the impact of the transformation of the rule of law goes far beyond the legal sphere. It has become apparent that the security operations, judicial repression strategies, and criminalization of opposition have enlarged the group of marginalized citizens who defy the social and political contours of the new regime and for whom the presumption of innocence stands inverted. The governing party has proved that the strategy of partitioning, which targets specific populations, mainly Kurds, Alevis, labour movements, and the women’s movement, can easily be superseded with a new one that is oriented to generalize the emergency to the whole country and can be deployed strategically. Working together, and ‘exercising by a range of agencies of policing situated throughout the state and the institutions for administering civil society’, these strategies and policies have provided a highly efficient governmental dispositif to fabricate a new social order organized around the new presidential regime and to create a new docile social body ‘out of individual subject-citizens’ (Neocleous, 2014, p. 13). In that context, President Erdoğan ordered the establishment of the new police unit (Reinforcement Ready Forces Directorate, Takviye Hazır Kuvvet Müdürlüğü), and the AKP- and MHPdominated parliament issued a new bill to provide neighbourhood watchmen with extensive powers, which has been evaluated as an initiation to organize a militia for the protection of the new regime (San, 2020). Additionally, the government have been enforcing the institutionalization of extensive networks of denunciation in society. Anti-terrorism regulations, security policies, and accompanying judicial repression strategies have become a nodal point of the construction and consolidation of the new order, which is based on a highly fragile political body, flexible thresholds located in society to detect transitions between friends who embody the new nationalist, Islamist, and authoritarian order and its enemies, and highly succinct punishment strategies such as ‘civic death’. In that context, if the anti-terror regulations and policies have become the ‘vernacular in terms of which politics is conducted, moral panics are voiced, and populations are ruled’ (Comaroff &

Turkey’s regime transformation  179 Comaroff, 2016, p. xiii), and if they have almost totally captured the moral imagination of the country, then we must consider what kinds of conclusions we can derive from all these political developments, regarding the character of the political community and its future political existence. Even if we are unsure about the details of the counter project of the opposition, the answer of the governing party is very obvious: a political community, surrounded by an endless twilight of a new police state and based on crude force, power politics, and the rejection of justice, equality, and freedom.

Notes 1 Here, I follow the insights of Neocleous’ works on emergency. See Neocleous (2006). 2 For an analysis of the judiciary in historical and contemporary contexts see Coskun (2010), Özbudun (2015), Çelenk (2016), ICJ Report (2016), Akdeniz & Altıparmak (2018). 3 For the historical evolution of the security state, see Balta-Paker & Akça (2010), Jacoby (2005), Kars Kaynar (2018b). 4 For a comprehensive analysis of the background of this support, see Tuğal (2016). 5 For the critique of these assumptions, see Shapiro & Stone Sweet (2002). 6 For the securitization of politics in the AKP era and the evolution of a security state in general, see Bedirhanoğlu, Dölek & Hülagü (2016), Berksoy (2016), Kaygusuz (2018). These operations have been organized by the direct involvement and support of the Gülen movement, which was named first as Parallel State Structure and the Fetullahçı Terör Örgütü (FETÖ) after the breakdown of the coalition between the AKP and the movement in the 2013 graft probe. As succinctly described by Bargu, Gülenists aimed to infiltrate into the capillaries of state power and it seems that they received the full support of the AKP in doing so. They generally ‘resorted to tactics including the leaking of questions on examinations for entry to military schools, police academies, and public employee positions; participation in unauthorized intelligence gathering about the private lives of politicians and bureaucrats; and coordinated disinformation campaigns in the press’ (Bargu, 2018, p. 30). 7 According to the original provision, the Supreme Council comprises the Minister of Justice, the Undersecretary of the Ministry of Justice, and five regular and five substitute members appointed by the President from among candidates nominated by the Court of Cassation and the Council of State. The draft increases the number of Supreme Council members: 21 regular and 10 substitute members (Gönenç, 2010, p. 5). 8 17 and 25 December 2013 became a breaking point in the alliance between the Gülen movement and the AKP since the police and judicial operation disclosed major corruption charges, based on secret wiretapping, involving four cabinet ministers, their relatives, and certain bureaucrats. 9 The Constitutional Court repealed the law, but expelled members cannot return to their previous posts, since Constitutional Court decisions are not retroactive under Article 153 of the Constitution (Özbudun, 2015, p. 48). Second, the Minister of Justice used his new rights, granted by the new law, without delay to appoint two presumably progovernment members to the First Chamber of the HSYK. As mentioned by Özbudun, ‘this was followed by a large-scale transfer operation removing judges and public prosecutors involved in corruption investigations to less sensitive posts, and replacing them with pro-government colleagues’ (Özbudun, 2015, p. 47). 10 The new law added new chambers and new members to the Court of Cassation and the Council of State.

180  Zafer Yılmaz 11 For the measures and purges, see IHOP (2018). 12 Abusive constitutionalism depends on ‘the mechanisms of constitutional change— constitutional amendment and constitutional replacement—to undermine democracy’ (Landau, 2013, p. 191). 13 For the concept, see Mann (1993). It mainly refers to the state’s capacity in penetrating civil society. 14 As argued by Neocleous, Foucault’s ‘focus on the administrative mechanisms through which power operates needs to be politicized, and thus turned into an account of political administration’ (Neocleous, 1996, p. xi). Neocleous developed a theory of policing which is sensitive on integrating the relations between capital accumulation, subjectivity, and state power. 15 Insurgent citizen refers to ‘“for whom the law applies relentlessly and for whom the presumption of innocence stands inverted”’ and who dare to challenge the imposed authoritarianism and country’s unequal citizenship regime’ (Baxi, 2002, p. 59, quoted in Seri & Lokaneeta, 2018, p. 60). 16 There has been significant progress in terms of improving the human right violations in these times as well. As mentioned by Berksoy et al.: ‘[The] CMK that replaced CMUK in 2004 and certain democratic amendments of the period should not be overlooked. In fact, in this period significant legal amendments were made towards fighting torture under custody which was used by the police as a method especially in 1990s to control and suppress oppositional political movements, and which constituted one of the major points of criticism against police practices. The authority of the police to define crime was also abolished’ (Berksoy et al., 2013, p. 8). 17 See Anti-Terror Law, No. 3713. Published in the Official Gazette on 12 April 1991. For the translation, see www​.refworld​.org​/country​,LEGAL,,​,TUR,​,4c4477652​,0​.html. 18 For the new politics of penalty in Turkey, see also Yıldırım & Kuyucu (2017). For the analysis of anti-terror laws in the context of Kurdish issue, see Bayır (2014). 19 In her ethnographic study, Yonucu argues that these unending anti-terror trials create ‘feelings oscillated between hope and despair throughout the entire process of judgment and detention. That oscillation was caused by the ambiguity, unpredictability … and seeming randomness of the entire process’ (Yonucu, 2017, p. 6).

References Akdeniz, Y., & Altıparmak, K. (2018). Turkey: Freedom of expression in jeopardy. Violations of the rights of authors, publishers and academics under the state of emergency. English PEN, 28 March. Retrieved from https://www​.englishpen​.org​/posts​ /campaigns​/turkey​-freedom​-of​-expression​-in​-jeopardy/. Altıparmak, K., Aytaç, A.M., Karahanoğulları, O., Hançer, T., & Aydın, D. (2007). Polis Vazife ve Salahiyet Kanununda Değişiklik: Durdurma, Kimlik Sorma, Arama, Parmak İzi Alınması, Silah Kullanma. Hukuk ve Adalet: Eleştirel Hukuk Dergisi, 11, 117–140. Aydın, O. (2012b). Hukuk Devleti Nerede Biter, Polis Devleti Nerede Başlar? Birikim, 273, 24–29. Aydın, O. (2015). İç Güvenlik Yasa Tasarısı: Anayasal Düzene Son. Birikim, 20 January. Retrieved from www​.birikimdergisi​.com​/guncel​-yazilar​/1155​/ic​-guvenlik​-yasa​-tasarisi​ -anayasal​-duzene​-son#​.XjmHT2rA​-70. Balta-Paker, E., & Akça, İ. (Eds.). (2010). Türkiye’de Ordu, Devlet ve Güvenlik Siyaseti. Istanbul: İstanbul Bilgi Üniversitesi Yayınları. Bargu, B. (2018). Year one: Reflections on Turkey’s second founding and the politics of division. Critical Times: Interventions in Global Critical Theory, 1(1), 23–48.

Turkey’s regime transformation  181 Bayır, D. (2014). The role of the judicial system in the politicide of the Kurdish opposition. In C. Gunes & W. Zeydanlıoğlu (Eds.), The Kurdish question in Turkey: New perspectives on violence, representation and reconciliation (pp. 21–46). New York & London: Routledge. Baxi, U. (2002). The (im)possibility of constitutional justice. In Z. Hasan, E. Sridharan, & R. Sudarshan (Eds.), India’s living constitution: Ideas, practices, controversies (pp. 31–63). New Delhi: Permanent Black. Bedirhanoğlu, P., Dölek, C., & Hülagü, F. (2016). The transformation of internal security and of the state in Turkey during the AKP rule: A class-based analysis. Journal für Entwicklungspolitik, 32(1/2), 21–41. Berksoy, B. (2016). ‘Güvenlik Devleti’, Gözetim-Polislik Ağları ve 2000’li Yıllarda Türkiye’de Üniversite Kampüslerine Yansımaları: Kürt Özgürlük Hareketi Özelinde Bir Değerlendirme. Praksis, 40, 121–151. Berksoy, B., Uçum, M., Başer, Z., & Gönen, Z. (2013). The spirit of the police laws in Turkey: Legislative discourses, instruments and mentality. TESEV democratization program policy report series: Security sector 5 report summary. İstanbul: TESEV Yayınları. Bonner, M.D., Seri, G., Kubal, M.R., & Kempa, M. (2018). Introduction. In M.D. Bonner, G. Seri, M.R. Kubal, & M. Kempa (Eds.), Police abuse in contemporary democracies (pp. 1–27). Switzerland: Palgrave Macmillan. Bora, T. (2012). Diyarbakır Barosu Başkanı Avukat Mehmet Emin Akar ile Söyleşi: Bizim Buralarda... Hukuk? Birikim, 273, 65–69. Cali, B. (2018). Will legalism be the end of constitutionalism in Turkey?. Verfassungsblog, 22 January. Retrieved from www​.verfassungsblog​.de​/will​-legalism​-be​-the​-end​-of​ -constitutionalism​-in​-turkey/. Çelenk, A.A. (2016). The myth of ‘independent judiciary’: The evolution of judiciaryexecutive relations in Turkish politics. Contemporary Politics, 22(2), 232–247. Comaroff, J.L., & Comaroff, J. (2009). Reflections on the anthropology of law, governance and sovereignty. In F. von Benda-Beckmann, K. von Benda-Beckmann, & J. Eckert. (Eds.), Rules of law and laws of ruling: Law and governance between past and future (pp. 31–59). Aldershot: Ashgate. Comaroff, J.L., & Comaroff, J.L. (2016). Preface. In J. Comaroff & J.L. Comaroff. (Eds.), The truth about crime: Sovereignty, knowledge, social order (pp. vii–xix). Chicago & London: University of Chicago Press. Corrales, J. (2015). The authoritarian resurgence: Autocratic legalism in Venezuela. Journal of Democracy, 26(2), 37–51. Coskun, V. (2010). Turkey’s illiberal judiciary: Cases and decisions. Insight Turkey, 12(4), 43–67. Council of Europe. (2016). Turkish Criminal Code, Law Num. 5237, Venice Comission, European Comission for Democracy through Law (Tr.), 15 February. Retrieved from https://www​.venice​.coe​.int​/webforms​/documents​/default​.aspx​?pdffile​=CDL​ -REF(2016)011-e. Ertür, B. (2016). The conspiracy archive, Turkey’s ‘deep state’ on trial. In S. Motha & H. van Rijswijk. (Eds.), Law, violence, memory: Uncovering the counter-archive (pp. 177–194). Abingdon, UK: Routledge. Feldman, L.C. (2010). The banality of emergency: On the time and space of ‘political necessity’. In A. Sarat (Ed.), Sovereignty, emergency, legality (pp. 136–164). Cambridge & New York: Cambridge University Press. Ferejohn, J. (2002). Judicializing politics, politicizing law. Law and Contemporary Problems, 65(3), 41–68.

182  Zafer Yılmaz Foucault, M. 1980. Power/Knowledge. New York: Pantheon. Gönenç, L. (2010). 2010  proposed constitutional amendments to the 1982 constitution of Turkey. TEPAV Evaluation Note. Retrieved from www​.tepav​.org​.tr​/upload​/ files​/ 1284468699​-0​. 2010​_ Proposed​_ Constitutional​_Amendments​_to​_the​_1982​_ Constitution​_of​_Turkey​.pdf. Hirschl, R. (2008). The judicialization of politics. In G.A. Caldeira, R.D. Kelemen, & K.E. Whittington. (Eds.), The Oxford handbook of law and politics (pp. 119–141). Oxford: Oxford University Press. ICJ—International Court of Justice. (2016). Turkey: The judicial system in Peril. Geneva: International Commission of Jurists. IHOP—Insan Haklari Ortak Platformu. (2018). Updated situation report—state of emergency in Turkey, 21 July 2016–20 March 2018. Ankara: Insan Haklari Ortak Platformu/Human Rights Joint Platform. Retrieved from https://ihop​.org​.tr​/updated​ -situation​-report​-state​-of​-emergency​-in​-turkey​-21​-july​-2016​-20​-march​-2018/. Isiksel, T. (2013). Between text and context: Turkey’s tradition of authoritarian constitutionalism. International Journal of Constitutional Law, 11(3), 702–726. Jacoby, T. (2005). Semi-authoritarian incorporation and autocratic militarism in Turkey. Development and Change, 36(4), 641–665. Kars Kaynar, A. (2018a). Withering constitutional state?: Recent ‘police state’ discussions in Turkey. Research and Policy on Turkey, 3(1), 90–102. Kars Kaynar, A. (2018b). Making of military tutelage in Turkey: The national security council in the 1961 and 1982 constitutions. Turkish Studies, 19(3), 451–481. Kaygusuz, Ö. (2018). Authoritarian neoliberalism and regime security in Turkey: Moving to an ‘exceptional state’ under AKP. South European Society and Politics, 23(2), 281–302. Landau, D. (2013). Abusive constitutionalism. UC Davis Law Review, 47(1), 189–260. Mann, M. (1993). The sources of social power: Vol II. The rise of classes and nation-states, 1760–1914. Cambridge: Cambridge University Press. Masferrer, A., & Walker, C. (2013). Countering terrorism and crossing legal boundaries. In A. Masferrer & C. Walker (Eds.), Counter-terrorism, human rights and the rule of law: Crossing legal boundaries in defence of the state (pp. 3–16). Northampton: Edward Elgar. Moustafa, T. (2014). Law and courts in authoritarian regimes. Annual Review of Law and Social Science, 10, 281–299. Neocleous, M. (1996). Administering civil society: Towards a theory of state power. London: Macmillan Press. Neocleous, M. (2000). The fabrication of social order: A critical theory of police power. London: Pluto Press. Neocleous, M. (2006). The problem with normality: Taking exception to ‘permanent emergency’. Alternatives: Global, Local, Political, 31(2), 191–213. Neocleous, M. (2014). War power, police power. Edinburgh: Edinburgh University Press. Oder, B.E. (2019). Independent journalism v. Political courts: The Cumhuriyet trial in Turkey and Strasbourg. Verfassungsblog, 4 Mai. Retrieved from www​.verfassungsblog​ .de​/independent​-journalism​-v​-political​-courts​-the​-cumhuriyet​-trial​-in​-turkey​-and​ -strasbourg/. Özbudun, E. (2015). Turkey’s judiciary and the drift toward competitive authoritarianism. The International Spectator, 50(2), 42–55.

Turkey’s regime transformation  183 Özbudun, E., & Gençkaya, Ö.F. (2009). Democratization and the politics of constitutionmaking in Turkey. Budapest & New York: Central European University Press. Özsu, F. (2013). Balyoz: ‘Yeni Yargı’nın Çöküşü. Radikal, 13 January. Retrieved from http:​/​/www​​.radi​​kal​.c​​om​.tr​​/turk​​iye​/b​​alyoz​​-yeni​​-yarg​​inin-​​cokus​​​u​-111​​6546/​. San, S. (2020). Erdogan’s private police force: A new blow to Turkish democracy. Open Democracy, 22 July. Retrieved from https://www​.opendemocracy​.net​/en​/north​-africa​ -west​-asia​/erdogans​-private​-police​-force​-a​-new​-blow​-to​-turkish​-democracy/. Scheppele, K.L. (2008). Legal and extralegal emergencies. In K.E. Whittington, R.D. Kelement & G.A. Caldeira (Eds.), The Oxford handbook of law and politics (pp. 165– 184). Oxford and New York: Oxford University Press. Seri, G., & Lokaneeta, J. (2018). Police as state: Governing citizenship through violence. In M.D. Bonner, G. Seri, M.R. Kubal, & M. Kempa. (Eds.), Police abuse in contemporary democracies (pp. 55–80). Switzerland: Palgrave Macmillan. Shapiro, M., & Stone Sweet, A. (2002). On law, politics, and judicialization. Oxford: Oxford University Press. Shen-Bayh, F. (2018). Strategies of repression: Judicial and extrajudicial methods of autocratic survival. World Politics, 70(3), 321–357. Squillacote, R., & Feldman, L. (2018). Police abuse and democratic accountability: Agonistic surveillance of the administrative state. In M.D. Bonner, G. Seri, M.R. Kubal, & M. Kempa. (Eds.), Police abuse in contemporary democracies (pp. 135–164). Switzerland: Palgrave Macmillan. Tuğal, C. (2016). The fall of the Turkish model: How the Arab uprisings brought down Islamic liberalism. London: Verso Books. Yıldırım, İ., & Kuyucu, T. (2017). Neoliberal penality and state legitimacy: Politics of amnesty in Turkey during the AKP period. Law & Society Review, 51(4), 859–894. Yılmaz, Z. (2020). Erdoğan’s presidential regime and strategic legalism: Turkish democracy in the twilight zone. Southeast European and Black Sea Studies. Doi: 10.1080/14683857.2020.1745418. Yonucu, D. (2017). The absent present law: An ethnographic study of legal violence in Turkey. Social & Legal Studies, 27(6), 1–18.

Index

Adalet ve Kalkınma Partisi (AKP) (Justice and Development Party) (Turkey) 166, 168, 177, 179nn6, 8; judicialization of politics and politicization of judiciary and 168–173 Aden 107, 108, 111, 115 administrative exclusion 37, 39, 41–42, 50; significance of 42 administrative usurpation and church asylum 42–44 AfD see Alternative für Deutschland (AfD) Afghanistan 45 aggression, significance of 75–76, 83 AKP see Adalet ve Kalkınma Partisi (AKP) (Justice and Development Party) (Turkey) Alternative für Deutschland (AfD) 91, 96, 98–100 AMIF see Asylum, Migration and Integration Fund (AMIF) Amsterdam Treaty (1997) 26–27 Annual Information on the Judicial Activity of, CT 139 Ansarallah militias 114 Antifa 97 anti-immigration anxiety and nativist/ nationalist closure of democracy 55–59 anti-immigration mobilizations 56 anti-leftist frame 97, 99; boundary framing and 98 anti-regime protests 162n15 anti-Semitism 58 arms industry, structure of 110 Asylum, Migration and Integration Fund (AMIF) 27 asylum procedure, as monopolized good 37 Austria 41, 161n4 autocratization 145, 153–158

Bahrain 106, 118n14 BAMF see Federal Office for Migration and Refugees (BAMF) Black Lives Matter 73, 77, 83, 101n3 blended democracy 3 Bolivia 120n48 border struggle, significance of 61 boundary activation 98 boundary framing 96, 97–98 Bürgerinitiative see radical milieu Bürgerwehr Freital 90–91, 101nn5–6; social mobilization of right-wing violence in Germany and 94–100 Campaign against the Arms Trade (CAAT) 112, 119nn27–28, 30, 32 Catholic Church, significance of 51n8 CEAS see Common European Asylum System (CEAS) Central European University (CEU) 149, 157, 161n10 China 118n13 church asylum, as ultima ratio 36–38; administrative usurpation and 42–44; conflict strategies and 48–50; exclusion (EU bounded solidarity 38–39; exterritorialization and administrative responsibilities refusal 39–41; mobility barriers and exclusion modes 41–42); mobilized subaltern-class and 50–51; public administration manipulation and 44–48 citizenship: as bundle of rights 26; as identity and solidarity 23, 25–26; as legal status 22–23, 24, 31; as mode of political participation 23; as system of legal rights 23, 24, 31; see also individual entries citizenship-as-rights tradition 22, 25

186 Index citizenship participation 79–82; de-sanctioning of violence and 83; see also participatory citizenship CJEU see Court of Justice of the European Union (CJEU) collective action frames 96, 97 collective identity 26, 167, 169; prohibited, permitted, and mandated violence and 92–94; social trust crisis and 90, 95, 96, 98 Common European Asylum System (CEAS) 27 Comprehensive Refugee Response Framework (CRRF) 24, 25 Constitutional Court, the Supreme Council of Judges, and Public Prosecutors (Hâkimler ve Savcılar Yüksek Kurulu) (HSYK) (Turkey) 170–172 contestations, of democracies and citizenship 9 Convention on the Rights of the Child (CRC) 11 core framing 96, 97 ‘cosmopolitanism from below’ 29 Council of Europe Commissioner for Human Rights 31n1 country knowledge, significance of 45 Court of Justice of the European Union (CJEU) 134, 147, 148 CRC see Convention on the Rights of the Child (CRC) crisis, significance of 2 The Crisis of Democracy (report) 1 critical terrorism studies (CTS) 101n2 CRRF see Comprehensive Refugee Response Framework (CRRF) CTS see critical terrorism studies (CTS) Declaration of Rights of Man and Citizen, significance of 62 de-democratization of democracy 60 de-humanization 82 Democratic Coalition (Hungary) 162n18 democratic despotism 6, 8 democratic iterations 64–65 democratic procedurality 5 demos 56, 61, 65–66n4; composition of 63–64; meaning and significance of 63 DHKP-C 172 Domestic Security Package (İç Güvenlik Paketi), of Turkey 175 dossier procedure, for church asylum 49

Dublin Regulation 21, 27, 31n1, 42, 43, 45; significance of 41 Duldung 44, 51n5 ECRE see European Council on Refugees and Exiles (ECRE) ECtHR see European Court of Human Rights (ECHR) elections, significance of 79–80 Emotional Enlightenment 77, 83, 86n11 empathic-Christian perspective 46, 51n7 Employment Equality Directive and the Race Equality Directive (2000) 27 EPP see European People’s Party (EPP) equaliberty, significance of 62 ethnic conflict frame 97, 99; boundary framing and 98 EU see European Union (EU) EURODAC 39 European Commission 110, 147–150, 156 European Convention on Human Rights 139 European Council on Refugees and Exiles (ECRE) 31n1 European Court of Human Rights (ECtHR) 139, 147, 148 European Court of Justice 158 European Monitoring Centre on Racism and Xenophobia 27 European Parliament 111, 153, 154, 158 European People’s Party (EPP) 149, 153, 154, 158 European Union (EU) 26–28, 107; authoritarian tendencies escalation and reaction of 157–159; bounded solidarity of 38–39; Charter of Fundamental Rights 27; constraining effect of 155–157; and Hungarian hybrid regime 145–146 (and systemic functions 146–151); and Hungary, in 2018–2019 151–154; Janus-faced role of 147; -Turkey Deal (2016) 21, 40 European Union Agency for Fundamental Rights 27 EUROSUR 39 exclusion and deterrence: of EU 37; political strategy of 22 exogeneity, significance of 58 ‘externally constrained hybrid regime’ 12, 144, 149, 159–161 Facebook and radicalization 95, 96, 98, 101nn4, 7

Index  187 fatalist ethnic conflict frame 97, 99 Federal Office for Migration and Refugees (BAMF) 38, 44–46 Fethullahist Terrorist Organization (FETÖ) 172, 179n6 Fidesz party (Hungary) 143, 147, 151–154, 157–158 flooding 96 Fortress Europe’ metaphor 26 FPÖ see Freedom Party (FPÖ) (Austria) France 41, 66n12, 110, 111, 118nn15, 22 Freedom Party (FPÖ) (Austria) 154 Friends of Yemen’ group 107 Frontex 38, 39

illiberal elitism 146 immigration anxiety 55, 57–59 inclusive citizenship 25 India 81 ‘In Safety and Dignity’ report (United Nations) 19 International Court of Justice (ICJ) 167; Report 179n2 International Federation for Human Rights 118n15 international humanitarian law (IHL) 112 invisible hand 59 Iraq 78 Italy 41, 111

GCC see Gulf Cooperation Council (GCC) GCM see Global Compact for Safe, Orderly and Regular Migration (GCM) Germany 11, 41, 110; see also church asylum, as ultima ratio; social trust crisis Gezi Uprising, significance of 170, 175 Global Approach on Migration 40 Global Approach on Migration and Mobility 40 Global Compact for Safe, Orderly and Regular Migration (GCM) 24–25 Global Compact on Refugees 24, 25 Greece 40, 41 Gülen movement 170, 171, 179nn6, 8 Gulf Cooperation Council (GCC) 106, 107, 112; initiative 113–116, 119n34, 120n45

John Cockerill arms company 110 Journal of Laws 141n5

Hague Programme 28 Hirak movement 114 Hong Kong 1 Hungarian Socialist Party (MSZP) 162n18 Hungary 1, 12, 143; hybrid regime 160 (and European Union 145–146; and systemic functions 146–151); lex CEU and lex NGO legislations of 157, 158; see also European Union (EU) hybrid regime, significance of 12–13, 144–145; see also European Union (EU) hyper-legalization 169, 176 HYSK, see Constitutional Court, the Supreme Council of Judges, and Public Prosecutors (Hâkimler ve Savcılar Yüksek Kurulu) (HSYK) (Turkey) ICJ see International Court of Justice (ICJ) IHL see international humanitarian law (IHL) IHOP 180n11

Kobane demonstrations, significance of 175 Kuwait 106, 115 Latin America 85n5, 86n12 Law and and Justice (PiS) (Poland) 154 Law and Justice Party (Poland) 129, 130 Lega (Italy) 154 legitimacy and legality 81 legitimate violence 78, 80 LIBE Commission 158 liberal democracy 3, 4, 20, 81; hybrid regime in Hungary and 143–147, 153, 155, 159–160, 161n1; spectrum of 5–9 Libya 40, 61, 62 local governance and urban citizenship 28–31 Maastricht Treaty (1992) 23 MAB see Muslim Association of Great Britain (MAB) mega-politics 169 Mexico 61, 85n7 MHP see Milliyetçi Hareket Partisi (MHP) (Nationalist Movement Party) (Turkey) migration, significance of 9–10; see also refugees migration and democracy 54–55; challenging political community borders and 61–63; demos composition and migrant as demos-to-come and 63–64; global forces and national borders and 59–60; nativist/nationalist closure of democracy and anti-immigration anxiety and 55–59; promise of 64–65

188 Index Migration Data Portal 85n8 Milliyetçi Hareket Partisi (MHP) (Nationalist Movement Party) (Turkey) Missing Migrants Project 66n11 moderate ethnic conflict frame 97, 99 modern democracy and state monopoly 93 monopolization 72, 79, 85n6; church asylum and 37–39, 48; of physical force 11; State 71, 78 moral sentiment 55 motivational framing 96, 97, 99 multi-level governance approach 20, 23 multiple correspondence analysis 101n7 Muslim Association of Great Britain (MAB) 118n25 national borders and global forces 59–60 National Dialogue Conference 114, 115 national security, significance of 110, 111, 167, 168 National Security Council (Milli Güvenlik Kurulu) (MGK) (Turkey) 168 national sovereignty 21, 56, 59 ‘The National Unity and Fraternity Project’ see Resolution Process (Çözüm Süreci) (Turkey) nation-state 12, 73, 81; church asylum and 36, 43; citizenship as legal status and 22–23; container-like 9–10; Europe 26; migration and 56, 61, 63; modern 11; as political unit 26; rescaling citizenship and 20–27, 31 nativist/nationalist closure of democracy and anti-immigration anxiety 55–59 neoliberalization 54, 56–58, 60, 65, 66n5 Netherlands 41 non-refoulement principle 28 non-responsibility, idea of 60 non-violent routines, trust in 93–95 Norway 41 Oman 106, 107 Organization for Security and Cooperation in Europe (OSCE) 153 participatory citizenship 11, 73, 83; see also citizenship participation paternalist populism 146 Peace and National Partnership agreement 114, 116, 120n40 PiS see Law and and Justice (PiS) (Poland) PKK 172

Poland 1, 12, 79–80, 156, 161n3; see also Polish Constitutional Tribunal policing, significance of 13, 173–176, 180n14 Polish Constitutional Tribunal 12, 127; as authority legalizing unconstitutional acts (constitutional tribunal judges and unconstitutional election 134–135; cyclical assemblies 136–138; mechanism outline 131–132; National Council of Judiciary unconstitutional election 132–134; President of Republic and unconstitutional application of mercy 135–136); as centre of constitutional crisis 129–131; as guarantor of constitutional rights and freedoms 127– 129; as paralyzed institution 139–140; as storage area 138 political liberty 5, 6 political violence 11–12, 89–92, 94, 100, 101n1 ‘Politics Can Be Different’ (LMP) (Hungary) 162n18 prerogative powers, meaning and significance of 118n24 Private Sponsorship of Refugees (PSR) Program (Canada) 30 Protestant Church, significance of 51n8 PSR see Private Sponsorship of Refugees (PSR) Program (Canada) public administration manipulation and church asylum 44–48 radical democracy 3 radicalization 28, 89–95, 98–100, 101nn1–2, 152 radical milieu 89, 91, 94, 95, 99, 100 Rassemblement National (France) 154 refugees: crisis, and citizenship boundaries hardening in Europe 21–24; Global Compact on migration and timid steps and 24–25; governance of 25–28; local governance and urban citizenship 28–30; significance of migration and 19–21 Reinforcement Ready Forces Directorate (Takviye Hazır Kuvvet Müdürlüğü) (Turkey) 178 republican citizenship 4 Resolution Process (Çözüm Süreci) (Turkey) 176 right-wing populist frame 96; boundary framing and 98

Index  189 right-wing populist movements, significance of 58–59 right-wing violence see social trust crisis Romania 161n3 ‘rule of the people’, significance of 7 Russia 120n48 Sanaa 108, 109, 114–116 sanctuary cities 29, 32n2 sans-papiers movement 66n12 Saudi Arabia 86n13, 108–112, 114–116, 118n14 Sea-Watch 66n10 Sicily 40 Slovakia 161n3 social bonds 56 social citizenship 81–82 social closure 37, 51n2 social movement perspective and terrorism studies 91–92 social trust crisis 89–91; Bürgerwehr Freital and 94–100; prohibited, permitted, and mandated violence and collective identity and 92–94; social movement perspective and terrorism studies and 91–92 solidarization, significance of 42, 51n4; see also church asylum, as ultima ratio Spain 41, 111 state actors and church asylum 48–50 State monopolization process 71; of violence 78 state secrecy 109, 110 strategic legalism 13, 172–174, 178 supranational agencies, for refugees 31 Sweden 41, 110 Syria 78 TCN see third country nationals (TCN) territorial exclusion 37, 39, 41, 42 TEU see Treaty on European Union (TEU) third country nationals (TCN) 27 trans-historic fear, of alien/stranger 58 Transparency International 150 Treaty on European Union (TEU) 146; Article 2 of 147, 151, 161n4; Article 7 of 151, 158, 162n17; Article 19 of 158 Turkey 1, 13, 66n5, 166–168; Criminal Code (Türk Ceza Kanunu) (TCK) 174; disciplining of insurgent citizens in 173–177; judicialization of politics and politicization of judiciary and AKP and

168–173; regime consolidation and new social order fabrication in 177–179 UAE see United Arab Emirates (UAE) UK Home Office 22 UK see United Kingdom (UK) United Arab Emirates (UAE) 108, 110, 111, 115, 118n14 United Kingdom (UK) 80, 110–112, 118n22 United Nations High Commissioner for Refugees (UNHCR) 31n1 United Nations Security Council (UNSC) 107, 109, 113, 114, 120n44; resolution 2216 115–116, 120n48 United Nations Working Group on Enforced or Involuntary Disappearances 85n4 Universal Basic Income 82 Universal Declaration of Human Rights 24, 117n1 universality, significance of 62 UNODC 85n3, 86n12 UNSC see United Nations Security Council (UNSC) urban citizenship and practised solidarity 28–31 US Arms Export Control Act (1976) 111 vagaries, of democracy 3 Vatican Council II 51n8 Venezuela 172 vigilantist self-empowerment, radical form of 99, 100 violence 84n1, 85nn3, 5–7, 10, 101n1, 162n15; citizenship participation and 79–82; democracies and 5, 7, 8, 10–13; de-sanctioning of 83; migration and 54, 60–62; rescaling citizenship and 21, 28; significance of 71–73; theorizing and defining 73–75; as thinking tool for rethinking politics and State 75–78; Turkey and 166, 174–177; see also social trust crisis violence and democracies, significance of 10–11 war, privatization of 110 Westphalian state order, significance of 22 World Health Organization, on violence 74–75, 85n5

190 Index Yemen 12, 78; background of 106–107 Yemen war 105, 116–117; of conditions, for individual citizen political action (knowledge 109–110; legal and direct action 111–112; representation 111); and degradation of citizenship (in imperial

core 109–112; as internationally managed transition 112–115; war and citizenship 115–116); significance of 107–109 zero-tolerance policies, significance of 54, 57, 61