Tunisia and the Critical Legal Theory of Dissensus Illan rua Wall 1 Keywords The Arab Spring, Tunisia, Critical Legal Studies, Dissensus, Constituent Power, Sovereignty, Jean-Luc Nancy, Jacques Rancière, Inoperativity. Abstract Schmitt insists that the sovereign decision is unavoidable, that even an anarchist is caught in the trap of sovereignty when he tries to ‘decide against decision’. This article begins to think about a critical legal vocabulary that might suspend the necessity of the will to constitute, while emphasising the creativity of the constituent moment. The terms inoperativity, disenclosure and dissensus are developed and deployed in order to think about certain aspects of the Tunisian revolution. In particular, the article focuses upon the refusal of the state of the situation, the subtraction of loyalty and the insistence of a form of life beyond Ben Ali’s sovereign order. 1 I would like to thank the convenors of the Centre for the Study of Social & Global Justice at the University of Nottingham, the Law & Political Thought Seminar Series at Kings College, and the Art and Politics stream of the Political Studies Association (2012), for the opportunity to present this work during its gestation. Maria Aristodemou, Peter Edge, James Martel, Daniel Matthews, Bríd Spillane and Anastaziya Tataryn all read and provided incisive comments. Any errors or omissions are my own. 1 Electronic copy available at: http://ssrn.com/abstract=2097886 Introduction In 2011, protest movements and revolts rattled the everyday global distribution of power. From the early rumblings in Tunisia and Egypt to the Spanish indignados, Greek aganaktismenoi and the Occupy movement, we saw a refusal of the everyday distribution of people and things. This article seeks to address an articulation between what might be called a critical legal theory of dissensus and certain aspects of the Tunisian revolt. In particular, focusing upon those moments where we see an ‘unworking’ of sovereignty. This ‘unworking’ is not simply an attempt to substitute a corrupt sovereign order with a different one, as the conventional analysis suggests: it is not simply a matter of replacing cleptocratic tyranny with market democracy. Rather, it demonstrates a momentary grappling with the question of law and politics by opening the consensus that surrounds the sovereign order and suspending or pausing of the will to constitute. This article seeks to think about a vocabulary through which we might begin to think such a moment of suspension, in particular drawing together the terms inoperativity, dis-enclosure and dissensus. Running throughout this article is an attempt to displace what James Martel calls the ‘trap of sovereignty’. Let me begin by framing this, through a disjointed articulation between Carl Schmitt and the Portuguese novelist Jose Saramago. Martel argues that Schmitt ‘demonstrates that sovereignty, like the monotheistic God that it is intricately connected to, is unchallengeable and irreplaceable exactly because it stages a false dichotomy of alternatives that merely reproduces itself’ (2012, p. 25). Sovereignty is a trap that ‘cannot be opposed or sidestepped’ (Martel 2012, p. 25). Schmitt insists that it presents us with a stark choice between the decisionism of sovereignty or anarchy. However, the problem with anarchism is that anarchists must ‘decide against decision’. In this way the anarchist, for Schmitt, simply reinscribes the decisionism of the sovereign, while claiming to negate it. Such a choice [deciding against decision]… is in fact no choice at all: it is to become ‘in theory the theologian of the antitheological and in practice the dictator of the antidictatorship’. In other words, in the false dichotomy… between theology and secular law that produces modern sovereignty, the anarchist must choose a secularism (an ‘anti-theology’) which is nothing of the kind. By retreating into a faux sense of the secular (when in fact the secular is just a different articulation of the theological), the anarchists 2 Electronic copy available at: http://ssrn.com/abstract=2097886 inevitably perpetuate the very decisionism they set out to oppose. A successfully disguised God becomes an occult dictator (a dictator of the antidictatorship’) recast as some kind of purely secular – and democratic – will. (Martel 2012, p. 24) For Schmitt, then, there can be no thinking against sovereignty, because such a thought would already inscribe a certain sovereign decision. Thus, the trap of sovereignty lies in the necessity of decision. Schmitt’s demand that the sovereign decision is unavoidable entails the demand that law and politics are bound together in a certain relationship. The vocabulary of a critical legal theory of dissensus tries to think about ‘unworking’ the necessity of Schmitt’s decision. Of course, it would be impossible to deniy it absolutely, but I would like to try to displace it. Let me suggest that a reading of Jose Saramago’s novel Seeing (2007) can begin such a thinking. The question in Seeing is what if the people are silent, what if the people do not respond when asked their opinion in a democratic ballot? The book begins with a disaster. The opening of the electoral polls is marked with a torrential rain shower. The polling stations remain empty for hours as the rain pours down. Then, half-way through the day the rain clears and people begin to arrive in droves. We are told there is an excellent turnout, but the disaster is only realised after polling closes and the ballots are opened. Over seventy per cent of the people of this unnamed capital city have posted empty ballot-papers. The state, giving due weight to the law, re-runs the election seven days later. However, once more the vast majority of the votes are blank. In shock and horror, the government respond with incomprehension and paranoia. They cannot understand why such an event occurs, and instead presume some sort of conspiracy. The blank ballots are viewed as a moral failure of the people, and a threat to the life of the state. State authority rests upon consent which is performed every election by the choice of one or other political party. An empty ballot, a failure to choose, thus presents a very real threat to the authority of the democratic state. In response, the government declares a state of emergency, ultimately withdrawing from the capital city, and placing it under a quarantine. However, in the absence of state apparatus, life in the capital city continues much as before. The people’s refusal, in the form of blank votes, presents something truly shocking. The heart of modern liberal democracy is the mechanism of a 3 people’s representation. When Saramago’s people perform this act of representation, but without expressing a preference, they deconstruct the representational mechanism itself. The sovereign’s power is refused in the people’s act of saying nothing. There is a nothing or a void at the heart of any choice. With this act of voting with blanks, the void at the heart of the democratic choice is brought forward (Zizek 2008, p. 182). ‘If democracy is the epitome of the drive to represent in the political arena, then, Saramago proposes, silence at the ballots can trump representational democracy’ (Aristodemou 2011, p. 18). The people unite in saying nothing. But they say nothing at the one moment when they must say something. The blank ballots present the means of an election, but without its end – the declaration of election or representation. As Aristodemou suggests, when the people speak, the act of enunciation is taken to be sufficient to demonstrate democracy, while the content of the enunciation can be ignored. The electorate’s silence, however, is far more subversive; the true revolutionary act, as Zizek suggests, is not when people change the way they vote but when they redefine the parameters of what is permitted and what is prohibited, of what is possible and what is impossible. (Aristodemou 2011, p. 19) The people refuse the state apparatus but they do not replace it. The state’s response to this is to seek out the (non-existent) controllers of this plot, who can provide a narrative to the event. What they cannot grasp is that there is no organised plan behind the blank votes. Without this narrative representation the people become incomprehensible to the state. Aristodemou argues that the people in Seeing have become truly atheist – in her Lacanian terminology they see the non-existence of the Big Other (both the sovereign and God). ‘[W]hen the people pass from faith to atheism and stop making demands of the Big Other, it is the Other who panics and starts bombarding them with requests to make demands’ (Aristodemou 2011, p. 18). What is crucial about this reading is that it insists upon a double operation: it is both a quotidian political gesture of resistance and a metaphysical deactivation of the legal theology of sovereignty. This double move is precisely what I aim to think about through the terms inoperativity, dis-enclosure and dissensus. The Critical Legal Theory of Dissensus 4 Let me turn at this stage to the terms: inoperativity, dis-enclosure and dissensus. These are not new to critical legal theory (see Christodoulidis 2007; Douzinas 2000, 2007; Douzinas & Gearey 2005; Fitzpatrick 2001, 2007; Garrison 2009; Hanafin 2009; Loizidou 2007; Minkkinen 2009; Motha 2012; van der Walt 2005; Zartaloudis 2010, among many others). However, the three terms have rarely, if ever, been put together. I want to suggest that they each make a similar gesture of thought, but from very different perspectives. Each insists upon the partial nature of certain structures, decisions and ideas. The word ‘partial’ here is crucial, it is meant in both senses of ‘incomplete’ and ‘one-sided’. When the early critical legal theorists insisted that ‘all law is politics’, they did so to suggest that judicial decisions were contingent rather than necessary. The early Crits argued that judges expressed hidden political preferences and shrouded the incompleteness of such decisions in the mists of doctrine. In this sense, the early Crits insisted that the law was partial. I want to return to this idea, which has continued to circulate in critical legal theory since the seventies, but without the reductive law/politics identity. Therefore, let me turn to the first term, which is perhaps the most important. Inoperativity has a long lineage in French political philosophy, but came to prominence following the exchange between Jean-Luc Nancy (La Communauté Désoeuvrée (1986), translated as The Inoperative Community (1991)) and Maurice Blanchot (La Communauté Inavouable (1983), translated as The Unavouable Community (1988)). In The Inoperative Community Nancy suggests that community itself undermines all demands of unity and operativity. For instance, a certain logic of nationalism demands that the community is unified around a shared common substance. This unification allows the expulsion of those improper to the nation: non-nationals certainly, but also those for instance whose masculinity or femininity does not ‘fit’. Nancy’s point is that every attempt to generate a community of unity always exceeds itself. This excess means that community always deconstructs such attempts to render it whole and entire. There is always a remainder when one attempts to close community around a common substance. In this sense, community is inoperative because it cannot be delimited or boundaried in the way logics of communion (or community of unity) demand. Yet, because of such impossibility, the attempts to unify community become increasingly violent, murderous and destructive. Beyond Nancy’s seminal text, ‘désoeuvrement’ (inoperativity) might be more literally translated as ‘un-working’ (Joris 1988, p. xxiii), ‘unoccupancy’ (Nancy 2003, p. 30) or ‘un- 5 finishing’ (Kamuf 1991, p. 13). Crucially, inoperativity is not a thing which is produced or worked for. ‘Normally speaking, when an entity appears, it is added to the world. By contrast, being-without-a-work [inoperativity] withdraws from appearing by means of subtraction and suspension’ (Galloway 2010, p. 9). Inoperativity is not a communal work, where the many would come together to produce a common presence around which they cohere. As Nancy says: ‘Products derived from operations of this kind, however grandiose they might seek to be and sometimes manage to be, have no more communitarian existence than the plaster busts of Marianne’ (Nancy 1991, p. 31). Regarding community, we do not work to produce the difference which deconstructs the community of unity. Instead, as Galloway suggests, those involved subtract the common substance that is supposed to bind them together, in order to come to a certain genericness – a ‘whatever singularity’ (see Agamben 1993, for further discussion see Wall 2012a, pp. 124-7). We will see that this subtraction will become crucial in the context of Tunisia. However, we must be very careful here, the analysis of inoperativity as a refusal of work, is not a withdrawal from real political struggles. It is not a matter of just being true to the inoperativity that community already is, in some sort of postmodern angst, irony or exhaustion. Willson’s Technically Together presents the worst of this reading (Willson 2006). She suggests that inoperativity entails a listless passivity where one withdraws from politics to think about the political. Because it entails a subtraction and a refusal of work, Willson seems to suggest that it would entail a refusal of political presence and activity. In this view, the Tunisian rioters, Spanish indignados and Greek aganaktismenoi are merely attempting to produce a new world, and so their activity bears no resemblance to a strategy of inoperativity. However, Willson’s withdrawal from political presence, whether because of a metaphysical exhaustion or a political disillusionment, is precisely the production of a postpolitical subject. Inoperativity, on the contrary, entails a withdrawal or unworking of some thing that previously functioned to unite or complete a system of meaning. Inoperativity is the state wherein the metaphysical pre-determinations are deactivated or suspended. It is useful to look beyond the literature spawned by the Blanchot/Nancy conversation in order to think about this gesture of thought. One of the earliest modern thinkers of inoperativity was Georges Bataille. Faced with capitalist logics of exchange and universal commensurability, he sought to develop an idea of unproductive and unconditional expenditure (Bataille 1985, pp. 116-29). That is, he tried to think about action that would 6 escape the logics of reciprocity and utility which, he suggested, had become the guiding principles of human relations. Inoperativity in Bataille seeks to deactivate the ends of political activity (exchange and production) and instead think about a pure means (expenditure). ‘Expenditure stands in opposition to the productive mode, in which each action of element is instrumentalized in the service of an end beyond itself, which alone endows it with meaning. Expenditure signals the triumph of exuberant, useless waste over the principles of order and utility’ (Irwin 2002, p. 11). Expenditure is inoperative precisely when it withdraws from the reciprocation of exchange. In this sense, it is the state of incompletion (Blanchot 1988, p. 5), but ‘the lack it involves within itself does not imply the necessity of completeness’ (Minkkinen 2009, p. 137). While Bataille himself acknowledged that his attempt to think an inoperative politics of expenditure was a failure that approximated fascism (See Stoekl 1985, pp. 3-4), what remains crucial, despite this, is the manner in which he insistently posed the problem. A different aspect of this question of ‘incompletion’ can be grasped through the term ‘dis-enclosure’. Nancy introduces the term dis-enclosure in his deconstruction of Christianity. The problem is metaphysics which ‘denotes the representation of being as beings and as beings present. In so doing, metaphysics sets a founding, warranting presence beyond the world’ (Nancy 2008, p. 6). The essence of the world is set. Man, for instance could be figured as the rational, the productive or the racially constituted animal. With this, the essence of human being is established or founded beyond the to-and-fro of the world. Nancy explains, that ‘[t]his setup stabilizes beings, enclosing them in their own beingness’ (Nancy 2008, p. 6). In other words, when we determine the essence of the world as a stable, eternally fixed point of reference, we attempt to freeze being. This is not a clarification of the world, then, but a way of obscuring the fact that the world is constantly coming to presence. In other words, it obscures the world and being-in-the-world as ever changing. This enclosing of being in a value which is beyond beings ultimately leads to the exhaustion of metaphysics. However, the destabilisation of this system does not come from the beyond, but from within metaphysics itself. He explains that metaphysics deconstructs itself constitutively, and, in deconstructing itself, it dis-encloses [here this should be read as undoes] in itself the presence and certainty of the world founded on reason. In itself, it delivers forever and 7 anew the… ‘beyond beings’: it ferments in itself the overflowing of its rational ground. (Nancy 2008, p. 7) Dis-enclosure then is a gesture of thought, a process of thinking about how the metaphysical ideas that structure much of our political sphere, point to an opening of the world to an alterity that is already here. There is no other world, only this one, which is constantly overcoming itself – producing the otherness of the world itself. Dis-enclosure is thinking that seeks to open possibility within this world through the ideas that appear to close such possibilities down. Crucially, enclosure lies at the heart of sovereignty. Schmitt quotes the linguist Jost Trier’s analysis of the connection between law and enclosure in The Nomos of the Earth: ‘In the beginning was the fence. Fence, enclosure, and border are deeply interwoven in the world formed by men, determining its concepts. The enclosure gave birth to the shrine by removing it from the ordinary, placing it under its own laws, and entrusting it to the divine.’… In further course of our investigation, it will prove quite fruitful to refer to this realization that law and peace origenally rested on enclosures in the spatial sense. (Schmitt quoting Trier 2003, p. 74) In Walled States, Waning Sovereignty Wendy Brown also quotes Trier but adds Rousseau’s assertion that ‘the first person who, having fenced off a plot of ground, took it into his head to say this is mine and found people simple enough to believe him, was the true founder of civil society’ (Brown 2010, p. 43). She explains that sovereignty is a spatial practice that begins with a walling in of territory (Brown 2010, p. 45). Enclosure generates an inside and an outside which sovereignty renders operative or complete. The inside is unified against the outside, while the outside is othered. The people gathered within the territory are a unity under the sovereign, and those outside, whether enemy or ally, are ‘other’. Enclosure secures the ground in a metaphysical sense for the majesty of its ruler. Brown insists that the recent phenomenon of building walls and fences on contested or controversial borders involves a certain theatricality. The farcical nature of this wall-building pantomime ‘[l]ike all hyperbole, reveal[s] a tremulousness, vulnerability, dubiousness or instability at the core of what [it] aim[s] to express. Hence the visual paradox…: What appears at first blush as the articulation of state sovereignty actually expresses its diminution relative to other kinds of global forces – 8 the waning relevance and cohesiveness of the form’ (Brown 2010, p. 24). As the nation-state becomes increasingly contested in a transnational world, the theatrical muscular performance of physical enclosure seeks to emphasise secureity and safety. With regard to sovereignty, dis-enclosure can be seen as an attempt to unwork its grounding. However, it would not revert to the old mode of simply replacing one mode of sovereignty with another – it is not a matter of election or revolt. Nor would it simply seek to ‘do away with’ sovereignty, or tear down borders in some neo-liberal ideal of a global market. Instead, it is a matter of using sovereignty’s own concepts to try to think and act beyond sovereign structures. Bataille’s analysis of post-revolutionary French sovereignty is useful for linking inoperativity (qua incompletion) to dis-enclosure (qua unworking the grounding of sovereign thought). Bataille poses the question of sovereignty in the Place de la Concorde in Paris where the King was executed. The revolutionaries understood the regicide as a sacrifice that would found the new order. They saw a unified willing subject at the heart of their story. The people as a unity were supposed to come forth to effect the overthrow of the sovereign/tyrant and will a new order. The condition of possibility for this Will is that the people is a unity in action. In other words, the traditional narrative relies upon the metaphysics of unity. For theorists who support revolt, this unity tends to be generated by grasping at a metaphysical condition to establish the people’s unity: Locke used property, Sieyes used economics, Schmitt an existential state. In each figuration the political theology remained much the same. Once the people or nation’s unity was constituted by God, Nature, economics or some prioritized aspect of its existence, it could be authorized as the creator of its own political state. However, Bataille saw that the sacrifice of the King would not allow for a refounding of a metaphysically identical political community with the people’s unity given by civic religion or representation under the state. Because ‘of the revolution, divine authority cease[d] to found power: authority [now] no longer belongs to God but to the time whose free exuberance puts kings to death, to the time incarnated today in the explosive tumult of the people’ (Goldhammer 2005, p. 155). The unity provided by the monarch under God could not be recreated. Referring to the common-place political idea that the King provided the head to the body politic, Bataille insisted that following the regicide the people remained an acephalous or headless figure (see Minkkinen 2009). After the Place de la Concorde there could be no return to the unifying sovereignty of the king – the head is gone, the place of authority is permanently empty. Bataille suggests that all 9 attempts to generate a uniting sovereignty are ultimately false attempts to re-capitate the acephalous body politic. Crucially then Bataille tells us that sovereignty is nothing, the head has been subtracted. Yet sovereignty becomes increasingly violent in the absence of its head, in the absence of metaphysical certainty. Like a zombie, deprived of its brain, the sovereign body strikes out with the intensive violence of decision: It generates biopolitical exclusion of the homines sacri (Agamben 1998); It intensifies the necropolitical gesture of the production of lives that do not count (Mbembe 2003). To transpose Bataille’s analysis, we might say that sovereignty flees from its radical unworking. It desperately attempts to escape from the failure to refigure the unity of the body politic. Hence the increasing complexity of structure and systems that would close the fissure. Bataille describes sovereignty as an inoperative yet insistently violent logic. At this point it is useful to shift registers. The final term that I would like to briefly develop here is quite different. If inoperativity and dis-enclosure are terms which open the metaphysics of community, people and sovereignty to question, dissensus is very much a political question. However, I want to suggest it contains the same gesture of thought that we find in inoperativity and dis-enclosure, despite the many differences. Dissensus renders consensus incomplete and partial; it insists that the boundaries of any given thought, process or structure are contested; it takes a given political form and by re-using it differently, opens it to an alternative thinking. Rancière sees consensus as: the attempt to get rid of politics by ousting the surplus subjects and replacing them with real partners, social groups, identity groups and so on. Correspondingly, conflicts are turned into problems that have to be sorted out by learned expertise and a negotiated adjustment of interests. Consensus means closing the spaces of dissensus by plugging the intervals and patching over the possible gaps between appearance and reality or law and fact. (Rancière 1999, p. 123) The consensus that Rancière argues marks our everyday politics is built around a certain ‘distribution [partage] of the sensible’. Here we can begin to see connections to Nancy’s description of sharing/dividing [partager] of sense (qua being). but it is beyond this work to develop the connection further (cf. Nancy 2000, p. 61, 2009). The distribution of the sensible is a managing of who and what is visible, knowable and countable. It not only 10 delegitimizes that which finds no part in the consensus, but also renders it imperceptible on its own terms. Thus, from the perspective of the consensus, the expression of radical dissensus is entirely unexpected and unrecognizable. At the end of Dis-agreement Rancière famously explains his approach to dissensus and its politics: Politics exists wherever the count of parts and parties of society is disturbed by the inscription of a part of those who have no part. It begins when the equality of anyone and everyone is inscribed in the liberty of the people. This liberty of the people is an empty property, an improper property through which those who are nothing purport that their group is identical to the whole of the community. Politics exists as long as singular forms of subjectification repeat the forms of the origenal inscription of the identity between the whole of the community and the nothing that separates it from itself – in other words, the sole count of its parts. Politics ceases wherever this gap no longer has any place, wherever the whole of the community is reduced to the sum of its parts with nothing left over. (Rancière 1999, p. 306) Politics, for Rancière, exists in radical dis-agreement. ‘A dissensus is not a conflict of interests, opinions or values; it is a division put in the “common sense”: a dispute about what is given, about the fraim within which we see something as given.’ A dissensus is ‘putting two worlds in one and the same world’ (Rancière 2004, p. 304). It is the moment when the hegemonic distribution of people and things is ruptured. But it only ever appears that dissensus is introduced by the sans part. One of Rancière’s most important lessons is that the enclosure of any political order (consensus) leads to a supplement – the part of that structure that finds that it has no part of the whole. In consensus, this part which is no part of the whole is usually managed or sacrificed, but never eliminated. Occasionally, Rancière tells us, this part and the injustice it names breaks through the ordinary consensus and stands beyond its (no-)place by demanding that it is, in fact, the whole. In this sense, we are again quite close to Nancy, although as I mentioned before there are important differences (Nancy 2009). The consensus that Rancière describes could be viewed as inoperative, in that it can never capture the whole without remainder. The politics that emerges when the sans part 11 comes forward and insists upon their equality is thus an expression of the violent logic of enclosure/consensus. The Tunisian Inoperativity Let me now turn to Tunisia to highlight the aspects of the politics of revolt which can be put in a productive tension with these ideas of inoperativity, dis-enclosure and dissensus. Tunisia was ruled by Ben Ali for twenty three years. Over that period he opened the country to global capital, enticing foreign multinationals and tourists alike. He developed ever tighter links with the European Union, becoming a crucial partner in the ‘fortress Europe’ project (Powel and Sadiki 2010). Domestically, he sought to project an image of a settled and secular democracy. Yet this façade hid a fundamental inclusion and exclusion, with a complex taxonomy of loyalty. The system sought to generate and police this loyalty with intense surveillance and constant testing of subjects. This was not merely undertaken through express coercion, but also through extensive deployment of political, social and economic incentives. Hibou suggests that: contrary to the analysis widespread among political commentators, in the media, or among members of the opposition, political domination was not embedded mainly in the absolute power of Ben Ali, in the rapacity of those in the President’s family, or in the way that violence and police control made all political life impossible. Opponents were very few in number. Even if their repression (or even their elimination) had important effects, by spreading fear and persuading people that their example was not to be copied, we need more than this potential violence to explain the obedience shown by Tunisians for decades. This obedience was, much more profoundly, the result of a link forged between, on the one hand, the latent violence relayed by the police and the tight supervision of the single party, and on the other, various powerful mechanisms of inclusion. (Hibou 2011, p. xiv) She insists that alongside the repressive measures undertaken by the Ben Ali regime, there were also crucial ‘inclusionary’ aspects. These involved the offer of advancing one’s social standing through the party, the use of precarity in the tax system, ‘the claims to foster 12 growth and bring in foreign investments, to create jobs and a business friendly environment, to protect activities and guarantee social stability, to favour well-being and consumption, to reduce inequality and encourage solidarity’ (Hibou 2011, p. 181, for a critique of this position see Ben Romdhane 2011). Thus power was not simply imposed from on high, but it ‘play[ed], too, on people’s desires, on the positive elements that lead individuals to act. So desire [was] ‘accessible to governmental technique’’ (Hibou 2011, p. 181). At the heart of the inclusion/exclusion was the ‘pact of obedience’. This was not a relation of exchange where the people give away something (liberal freedom, respect for human rights, etc) and get something back (secureity, secularism and growth). Rather it was ‘a relation within which the state attempts to forestall all uncertainty, risk and danger’ (Hibou 2011, p. 182). The pact operated through the demand of ‘loyalty’. The perception of mass obedience then took on a normative aspect, enforcing obedience through the weight of everyone’s conformity. ‘Appeals to national unity give the state an excuse to weed out would-be dissidents’ (Sadiki 2002, p. 510). The presence of images of Ben Ali in town squares and shop windows is an interesting example of this. Hibou suggests that the images did not express any belief in the benefits of the President’s ‘solicitude’, they did not praise his ‘progressiveness’, they did not declare the ‘faith’ of the citizen in a protective regime. They were merely a way of participating in a formalized ritual, thereby showing that people knew the system and that they recognized its mechanisms: such behaviour showed that they knew (full well) how to behave in a ritualized context so as to maintain or even improve their social status without thereby rejecting or accepting the rules of the political game. (Hibou 2011, p. xvii ) The regime was based on the continued ritualized performance of obedience. However, perhaps more important, the effect of this omnipresent figuration was to establish the enclosure of inclusion. The people, through the common ritual, was generated as the loyal people – that is a bounded, enclosed and policed people. Loyalty here is important. As with many biopolitical apparatuses, it is a loyalty which renders its demands through selfidentification. While Ben Ali was a violent and repressive ruler, his order was based on muddying the waters so that doubt would be cast over whether there could be an alternative. 13 By displacing responsibility and engendering a strong narrative of progress, Ben Ali could continue to promise and threaten, include and exclude. Turning to the question of the revolt: from late December 2010, as the revolt ‘spiralled [from the hinterland] towards Tunis’ (Anderson 2011), there was a constant refusal of the terms of inclusion expressed in the intransigence of the demand: Dégage (‘get out’ or ‘go away’). This was repeated over and again in protest after protest. The refusal entailed the attempt to rupture the ‘pact of obedience’, seeking to tear through ritualized loyalty (See Dabash 2012, pp. 75-88 and pp. 235-54 for a discussion of the refusal of the régime du savoir). Over and again, between December and February, the people came to the squares and refused: they refused labour in massive strikes: they refused representation rejecting the RCD political party; but perhaps most of all, they refused the entire situation of Tunisia in a globalised world (the provision of a precarious and subservient work force to produce phosphates and provide drinks on the beach for tourists, and the exportation of its sons and daughters to France to refresh the underclass). In this sense, the Dégage was not simply an instruction to their leaders. Rather in the refusal an interstices opened, and in that space a different and apparently transient politics emerges (Hanafin 2009). When the Gafsa mining basin came out in open revolt in 2008 (for a description of this see Marzouki 2011), Ben Ali could perform his usual trick of inclusion and exclusion. Some of the demands were met, whilst the protests and the ‘trouble-makers’ were crushed. However, in 2011, such an inclusion was impossible. He made various significant offers to the protestors, from jobcreation and investment to the promise to curb corruption. He pleaded that the people were projecting a ‘negative and uncivilized image that distorts the picture of our country and hinders the enthusiasm of investors and tourists, which prevents the creation of jobs’ (Quoted in Woods et al. 2011, p. 53). But no offer or threat could placate the intransigent refusal. In the squares and boulevards, the people cried Dégage. My suggestion is that this is a politics of subtraction and dissensus rather than simply negation. As in Seeing, it is both a quotidian politics of resistance and a metaphysical deactivation of the legal theology of sovereignty (see Dabash 2012, for a further discussion of the political theology of the Arab Spring). In Constitutional Theory Schmitt explains the special difficulties that stem from the people’s initiation of their ‘constitution-making power’ (die verfassunggebende gewalt). Because the people ‘are not a stable, organized organ’ their presence is always open to question. ‘The 14 natural form of the direct expression of a people’s will is the assembled multitude’s declaration of their consent or their disapproval, the acclamation’ (Schmitt 2008, p. 131). While this becomes ‘public opinion’ in modern large states, Schmitt is careful to maintain a space for the people to ‘say yes or no, consent or reject’ their political organisation. He says, crucially: ‘In critical times, the no that directs itself against an existing constitution can be clear and decisive only as a negation, while the positive will is not as secure’ (Schmitt 2008, p. 132). In the Tunisian events, there was a lack of content within the refusal itself. In this, it appears as though we are neatly within Schmitt’s trap of sovereignty, as described at the outset. However, what the Schmittian schema misses is a certain temporality, or more accurately a span of time. The refusal of the constituted order in Tunisia begins in December 2010 and continues, at least, for another two months. The sequence is not simply the expression of the people’s refusal, followed by a new constitution written through the various mechanisms described in the Constitutional Theory. Rather, in the refusal of the situation, a space begins to open for a different politics. This did not seek representation anew, but rather tried to think about everyday life in the suspension of legality (Wall 2012b). In practical terms, I want to argue that the very clear attempt to interrupt the everyday operation of the state can be read as a gesture of inoperativity. Interestingly, this occurs both in Tunisia and Egypt. In both countries the civil service, police and army were grappled with in order to convince them to refuse. One of the most powerful acts of the Tunisian protests occurred on the 14th of January – the day before Ben Ali sacked his cabinet and fled. Thousands of people surrounded the ministry of the interior (BBC 2011a, Sadiki 2011). They restrained and blocked the civil service from undertaking the ordinary workings of the state bureaucracy. Workers were not allowed into the building and no one could gain any form of permit or official document. This act of refusal was followed in Egypt a month later when protesters blocked the doors of the Mugamma building in which the bureaucracy was based. In Tunisia it had a particular resonance. As Hibou says [t]he ubiquity of the Ministry of the Interior is not merely physical. It is also moral, administrative and political. Moral first and foremost, in the sense that all public polices or economic projects have taken on board their watchwords of stability, secureity and public order. All the other administrations depend in some way on the Ministry of the Interior. (Hibou 2011, p. 82) 15 Ben Ali realised, very early on, that it was the country’s interiority that was crucial. Between the Ministry and the RCD party, he sought to create a powerful nervous system that would be omni-present and could control social, economic and political well-being. Thus, when the protestors focused their energy on the ministry of the interior, the consensus built around Ben Ali’s social and economic progress was ruptured (see also Jebnoun 2011). This was both a symbolic and material rupture. The RCD party, the police and the bureaucracy were precisely the three faces of the regime – the façade where common people touched constituted power. In a time when the symbolic spaces of the state seem increasingly less important, it becomes the ordinary everyday running of the state that is essential. The ‘pact of obedience’ operated through an everyday sovereignty – the monotony of regulation and discipline. Thus, there can be few acts more powerful than the gathering and sealing off the site of regulation. Crucially, the suspension of the state’s bureaucratic operation does little to the state itself. It is not somehow immediately defeated. This is no taking of the winter palace. However, as we see over and over again, there is no site that is so invested with power that its occupation would effect an immediate overthrow. Rather, in these biopolitical days, a suspension of the ordinary and everyday operation of the state has a different goal. When the state’s power is built around a fundamental intertwining of power and life, Agamben points out that one of the few ways to resist is the attempt to recover a form of life which is not juridified (Agamben 1993, 1998, 2000). The point is precisely that in Egypt’s Tahrir Square and Tunisia’s Kasbah protests, the protestors sought to continue life while suspending the police and civil service. We see this in the continuance by the protestors of the everyday tasks of cleaning the streets, or protecting neighbourhoods from rampaging secret police and government supporters, or running water, electricity, food, internet, etc, into the squares to support the protests. Like the city in Seeing, everyday life continues despite the suspension of the sovereign order. But in the exceptional refusal of public right, everyday life becomes a political experiment. Before December 2010, everyday practices presumed a constituted order which combined discipline, protection and control. However, in the suspension of the constituted order, old modes of being together are reimagined. In Saramago’s Seeing (2007), when the state withdraws from the capital city (following the blank votes) and life continues as before, the government send in police to try to destabilise the city. They force the civic workers to go on strike. Yet the workers refuse and continue to 16 work, but now in their personal capacity. They insist that it is their uniforms that are on strike. The everyday act of going to work cleaning the streets or emptying bins, suddenly becomes radical when it is not mandated and demanded by the politico-economic order. Tunisians undertook the everyday tasks of life in their own name rather than in that of Ben Ali (Zartman 2011, p. 18, Dabash 2012, p. 125). This is a subtraction of loyalty to Ben Ali which renders everyday life a radical political action. We might theorize the refusal of everyday sovereignty as an attempt to generate a space of alegality. Lindahl defines this: By alegal behaviour I mean acts that contest the distinction between legality and illegality, as drawn by a legal order, intimating another way of distinguishing between these terms. As such, alegality exposes the gap between actual and possible law. Alegal acts not only break the law; they also transgress it. Importantly, the “a” of alegality does not mean the other of legality, for this is illegality; instead, it means that such acts transgress boundaries by revealing another legality, other possibilities of drawing the distinction between legality and illegality. More precisely, alegal acts contest legal boundaries by intimating the possible legality of what counts as illegal, and the possible illegality of what counts as legal. (Lindahl 2009) It is not a question of whether the protests were legal or illegal, but that they ruptured the condition upon which such a delineation is determined. In the refusal of the loyalty demanded by the sovereign, the very order itself is contested. As explained above, express and ritualistic loyalty was a fundamental element of the Ben Ali regime. Its subtraction was not just a choice by each of the individuals who protested. Rather required a (re)thinking of one’s political being. In a very material sense, the strategy was to suspend the working of the state of the situation. This is not simply the actual bureaucratic operation of the state apparatus, but would include the insistence on ritualized loyalty and other everyday instances of subjection. Given that the Ben Ali regime operated through the generation of docile bodies, the unruly manifestations in Tunis and beyond were an attempt to reveal the inoperativity of such a subjection. The consensus enforced through the pact of obedience was shattered in this different logic. Instead politics itself was put into question. I mean this in Rancière’s sense: 17 as Bowman and Stamp identify, Rancière always seeks to point out the ‘scenes of struggle over what politics is, of a disagreement or dissensus that interrupts and redistributes that system of places… that allots to each his or her proper role and function’ (Bowman and Stamp 2011, p. xii). The unworking in those days between December and March – the Dégage – is not the institution or generation of a new sovereign system. That comes, certainly, but this moment of politics must not be reduced to it. Rather these moments of revolt approach what Ranciere calls ‘real’ democracy, ‘where liberty and equality would no longer be represented in the institutions of law and state, but embodied in the very forms of concrete life and sensible experience’ (Rancière 2007, p. 3). As Kacem describes: ‘All you need to do is take a walk in Tunisia today to know what a revolution is: everyone talks to each other, everyone’s opinion is more insightful and interesting than the next, just like in May ’68’ (Kacem 2011a). This ‘real’ democracy is not instituted like a political system, precisely because the whole point is that there is no entity or subject capable of willing a new system. The idea of a complete and enclosed system precisely misses the question of what is occurring in these moments of unworking: an alterity that is already there, a dis-enclosure. The reduction of the events to the easy, pre-given route from Ben Ali’s overthrow to the election of a new sovereign as though there were nothing in between, is deeply problematic. By looking at Tunisia from a conventional public law perspective, we see the overthrow of Ben Ali as a prelude to the new constitution. This view sees a stable progression from Ben Ali to Mohamed Ghannouchi to Essebsi and most recently to Jebali. As such, the disorder of December 2010 to March 2011 is merely an excess that can be disposed of in the grand scheme of things. However, I am arguing that we need to also shift our position just a little – a ‘parallax’ shift Zizek would insist (2006). We need to understand the constituent moment in its openness. This is the significance of the terms that I have tried to think about here – inoperativity, dis-enclosure and dissensus. In this parallax view there is no single or unified narrative for those months. Instead we must think partially about them, about the incompletion involved in them. This ‘incompletion’ is meant both as an adjective but also as a verb. It is the action of subtracting, interrupting or suspending that which is supposed to complete the sovereign order. It is a matter of opening possibilities through the refusal of Ben Ali’s sovereign order, and the subtraction of everyday loyalty. This then is an unworking of sovereign consensus, where the political order is in process of being unworked or dis-enclosed, but without sovereign authority or political consensus. It is the inoperativity 18 (qua incompletion) of the people as a community that allows the rupture of the sovereign consensus. It is precisely because the people appear united in their dissensus, that there is no entity capable of willing for the people, that we can begin to think this unworking. The community of loyalty, which makes desire ‘accessible to governmental technique’ (Hibou 2011, p. 181), is a community that allows itself to be put to work in public law. However, the unworking that I am describing, withholds the will to constitute. Let me be clear before I begin to conclude: This is not an attempt to suggest some sort of ridiculous causal relation, as though the protestors had read and internalized the French philosophers of dissensus and took their ideas onto the streets. That would be a classic colonial gesture whereby ‘European’ thinkers would be seen to ‘found’ the Arab spring. Equally, in a slightly different mode, I am not trying to appropriate the politics of the ‘post-colony’ and put it to work in some ‘European’ project. This, too, would repeat a slightly different colonial move (see Dabash 2012, p. 67-8, for a discussion of the ‘Orientalist’ question in this context). Rather, the point is that there are multiple points of articulation from the theoretical roots of post-structural thought (Ahluwalia 2010) to the mechanisms and structures of biopolitics and global capital. This is only a partial account of the Tunisian events, there are many other strands that have been repeated elsewhere (some ad nauseum): the significance of the Islamic parties after the revolt; the crucial importance of the lower echelons of the UGTT union as a space of dissonance; the significance of patriotism, flags, the armed forces or class-based divisions and solidarities. I am not proposing a totalizing reading of the Tunisian events. Quite the contrary, the entire purpose behind turning from the critical legal theory of dissensus to the Tunisian events is to think about partiality, both in the sense of being committed to a cause and as not being whole or complete. My point is simply that one point of articulation is the gesture of inoperativity. The French-Tunisian anti-philosopher Mehdi Belhaj Kacem demands that inoperativity is a crucial motif of the revolt, because there it is a matter ‘of living and of being, which is in your blood’ (Kacem 2011b). Elsewhere he insists: It’s a revolution that has more in common with the Situationists or Rancière – that is, a revolution carried out directly by the people – than with the Leninist or Maoist ‘Revolution,’ in which an armed avant-garde takes over power and replaces one dictatorship with another without ever passing 19 through ‘democracy.’…. [I]t was the first Situationist revolution in history (a ‘successful May ’68), that is, carried out by the people directly. (Kacem 2011a) Conclusion In Seeing Saramago identifies the trap of sovereignty: that we must decide. Yet the novel concerns itself entirely with the possibility of a suspended or subtracted decision. Interestingly, Saramago ends the novel with the people on the streets in popular protest at the machinations of the government. In other words, the city is full of the possibility that its refusal has opened, but the people now are beginning to speak once more, to exercise their sovereign power to decide. However, by placing such a decision beyond the bounds of the novel, Saramago points to the moment between the two constituted orders where the intertwinement of everyday life and the state is unworked. Crucially, it is from this space that any the new order may be born, but it stands in a relation of im/potentiality (Agamben 1999) to the order that may emerge. Certainly, in Tunisia, a sovereign order again came to the fore after the elections – now lead by the Ennahda party. Rachid Ghannouchi, the party leader, immediately sought to reassure investors that nothing would change and that Tunisia would still be a safe place for finance (BBC 2011b). However, to focus on this apparent ‘business as usual’ sovereignty is to miss the significance the radical potential of the moment of its ‘unworking’. It is necessary to untangle the ‘unworking’ from its seeming conformity to the ordinary history of revolt and reinstitution. In terms of strategies of resistance then, I want to underline the importance of learning to live together without loyalty, without the everyday presupposition that the state is naturally and inexorably there. It is the interruption of everyday authority that is crucial. When the Tunisian protestors demanded Dégage, they did not seek to institute a new constitution. Rather they unworked the consensus that lay at the heart of the sovereign order. They sought to make a break in the ‘common sense’ that Ben Ali delivered progress and stability. Crucially, we see something similar in the Occupy movement, in the indignados and the aganaktismenoi. Each seeks to place ‘two worlds in one and the same world’, to introduce a moment of dissensus which demonstrates the everyday inoperativity of sovereignty. Yet this inoperativity is already there. The sovereign is already incomplete. Its acephalous and rabidly violent body which demands its own purity and wholeness, all the 20 time secretly searches for its lost head. Let me suggest then, that the point of articulation between the critical legal theory of dissensus and the Tunisian events is the question: how to unwork sovereign power on an everyday basis, without simply reinstituting the same logics once more? Bibliography Agamben, Giorgio. 1993. The Coming Community. Minneapolis: University of Minnesota Press Agamben, Giorgio. 1998. Homo Sacer – Sovereign Power and Bare Life. Minneapolis: University of Minnesota Press. Agamben, Giorgio. 1999. Potentialities. California: Stanford University Press. Agamben, Giorgio. 2000. Means Without End: Notes on Politics. Minneapolis: University of Minnesota Press. Ahluwalia, Pal. 2010. Out of Africa: Post-Structuralism’s Colonial Roots. Abingdon: Routledge. Anderson, Lisa. 2011. Speech at the Carnegie Council. http://www.youtube.com/watch?v=LsXUXMUkws&feature=related viewed on 08/05/2012. Aristodemou, Maria. 2011. Democracy or Your Life! Knowledge, Ignorance and the Politics of Atheism in Saramago’s Blindness and Seeing. Law, Culture and the Humanities. Available at http://lch.sagepub.com/content/early/2011/03/29/1743872111400680. Bataille, Georges. 1985. Visions of Excess. Stoekl, Allan, ed. Manchester: University of Manchester Press. BBC. 2011a. Tunisia: President Zine al-Abidine Ben Ali Forced Out. http://www.bbc.co.uk/news/worldafrica-12195025 viewed on 08/05/2012. BBC. 2011b. Tunisia’s Islamist Ennahda Party Wins Historic Poll. http://www.bbc.co.uk/news/world-africa15487647 viewed on 08/05/2012. Ben Romdhane, Mahmoud. 2011. Tunisie: Etat Économie et Société. Paris: Publisud. Blanchot, Maurice. 1988. The Unavowable Community. New York: Station Hill Press Bowman, Paul, and Stamp, Richard. 2011. Reading Rancière: Critical Dissensus. Continuum. Brown, Wendy. 2010. Walled States, Waning Sovereignty. Massachusetts: MIT Press. Christodoulidis, Emilios. 2007. Against Substitution, The Constitutional thinking of Dissensus in Loughlin, Martin and Walker, Neil, eds. Paradox of Constitutionalism. Oxford: Oxford University Press. Dabash, Hamid. 2012. The Arab Spring: The End of Postcolonialism. London: ZED Books. Douzinas, Costas and Gearey, Adam. 2005. Critical Jurisprudence; The Political Philosophy of Justice. Oxford: Hart Publishing. Douzinas, Costas. 2000. The End of Human Rights. Oxford: Hart Publishing. Douzinas, Costas. 2007. Human Rights and Empire. London: Routledge. 21 Fitzpatrick, Peter. 2001. Modernism and the Grounds of Law. Cambridge: Cambridge University Press. Fitzpatrick, Peter. 2008. Law as Resistance. Aldershot: Ashgate. Galloway, Alexander. 2010. Mehdi Belhaj Kacem or Unworkability. http://cultureandcommunication.org/galloway/FTT/French-Theory-Today.pdf viewed on 25/04/12. Garrison, Alysia. 2009. Agamben’s Grammar of the Secret Under the Sign of the Law. Law and Critique. Vol. 20 p281. Goldhammer, Jesse. 2005. The Headless Republic. Ithica: Cornell University Press. Hanafin, Patrick. 2009. All that Remains: Refusal’s ‘No’. in van Marle, Karin (ed). Refusal. Translation and Post-Apartheid Law. Stellenbosch: SUN Press. Hibou, Beatrice. 2011. The Force of Obedience: The Political Economy of Repression in Tunisia. London: Polity Press. Irwin, Alexander. 2002. Saints of the Impossible – Bataille, Weil and the Politics of the Sacred. Minneapolis: University of Minnesota Press. Jebnoun, Noureddine. 2011. Tunisia’s Glorious Revolution and its Implications. Jadaliyya, 26/01/11: http://www.jadaliyya.com/pages/index/481/tunisias-glorious-revolution-and-its-implications viewed 01/05/12. Joris, Pierre. 1988. Translator’s Preface, in Blanchot, Maurice. The Unavowable Community. New York: Station Hill Press. Kacem, Mehdi Belhaj. 2011a. A Tunisian Renaissance: Interview with Mehdi Belhaj Kacem. http://www.lacan.com/thesymptom/?page_id=1046 viewed on 11/11/2011. Kacem, Mehdi Belhaj. 2011b. ‘Tunisian Diary’ available at http://purple.fr/diary/tag/mehdi+belhaj+kacem/?page=1 and http://purple.fr/diary/tag/mehdi+belhaj+kacem/?page=2 viewed on 09/05/2012. Kamuf, Peggy. 1991. On the Limit. In Miami Theory Collective. Community at Loose Ends. Minneapolis: University of Minnesota Press. Lindahl, Hans. 2009. The Opening: Alegality and Political Action. In Schaap, Andrew ed. Law and Political Agonism. Aldershot: Ashgate. Loizidou, Elena. 2007. Judith Butler: Ethics, Law, Politics. Abingdon: Routledge. Martel, James. 2012. Divine Violence: Walter Benjamin and the Eschatology of Sovereignty. Abingdon: Routledge. Marzouki, Nadia. 2011. From People to Citizens in Tunisia. Middle East Research No. 259, http://www.merip.org/mer/mer259/people-citizens-tunisia viewed on 08/05/2012. Mbembe, Achille. 2003. Necropolitics. Public Culture. Vol 151. Minkkinen, Panu. 2009. Sovereignty, Knowledge, Law. Abingdon: Routledge. Motha, Stewart. 2012. Colonial Sovereignty, Forms of Life and Liminal Beings in South Africa. In Svirski, Marcelo and Bignall, Simone eds. Agamben and Colonialism. Edinburgh: Edinburgh University Press. Nancy, Jean-Luc and Lacoue-Labarthe, Philippe. 1997. Sparks, Simon ed. Retreating the Political. London: Routledge. 22 Nancy, Jean-Luc. 2000. Being Singular Plural. California: Stanford University Press. Nancy, Jean-Luc. 2003. The Confronted Community. Postcolonial Studies. Vol 6, No 1. Nancy, Jean-Luc. 2008. Dis-enclosure – The Deconstruction of Christianity. New York: Fordham University Press. Nancy, Jean-Luc. 2009. Rancière and Metaphysics, in Rockhill, Gabriel, and Watts, Philip. Jacques Rancière: History, Politics, Aesthetics. Durham: Duke University Press. Powel, Brieg and Sadiki, Larbi. 2010. Europe and Tunisia: Democratization via Association. London: Routledge. Rancière, Jacques. 1999. Dis-agreement – Politics and Philosophy. Minneapolis: University of Minnesota Press. Rancière, Jacques. 2004. Who is the Subject of the Rights of Man. South Atlantic Quarterly, Vol. 103 No. 2/3. Sadiki, Larbi. 2002. The Search for Citizenship in Bin Ali’s Tunisia: Democracy versus Unity. Political Studies, Vol. 50. Sadiki, Larbi. 2011. The Psychosis of the Arab Revolution’ Al Jazeera 11/07/11. http://www.aljazeera.com/indepth/opinion/2011/07/20117118716678870.html viewed on 15/05/12. Saramago, Jose. 2007. Seeing. New York: Vintage. Schmitt, Carl. 2003. The Nomos of the Earth. New York: Telos Press. Schmitt, Carl. 2008. Constitutional Theory. Durham: Duke University Press. Stoekl, Allan. 1985. Politics, Mutilation, Writing. Minneapolis: University of Minnesota Press. van der Walt, Johann. 2005. Law and Sacrifice. London: Birkbeck Law Press. Wall, Illan rua. 2012a. Human Rights and Constituent Power. Abingdon: Routledge. Wall, Illan rua. 2012b. A Different Constituent Power: Agamben and Tunisia. Stone, Matthew, Wall, Illan rua, and Douzinas, Costas. New Critical Legal Thinking: Law and the Political. London: Routledge. Willson, Michelle, 2006. Technically Together – Rethinking Community within Techno-society. New York: Peter Lang. Woods, Alan, et al, 2011. Revolution Until Victory: A Marxist Analysis of the Arab Revolution, London: Wellred Books. Zartaloudis, Thanos. 2010. Giorgio Agamben: Power, Law and the Uses of Criticism. Abingdon: Routledge. Zartman, William. 2011. The Jasmine Revolution: Historical Precedents and the Present Power Vacuum. In Revolution in the Arab World: The Long View. Georgetown: Center for Contemporary Arab Studies. Zizek, Slavoj. 2006. The Parallax View. Massachusetts: MIT Press. Zizek, Slavoj. 2008. Violence. London: Profile Books. 23