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The limits of Resistance: law or legitimacy

Mahmoud Patel

The word “resistance” has a long intellectual history that, I would suggest, has embedded   meanings and methods in its usage. Resistance has, historically, been a poor way of thinking about structural political change. Anthropology was almost obsessed with the word in the latter half of the twentieth century. As K. Sivaramakrishnan has noted, resistance became a popular research topic at a moment in the 1960s when global capital was encroaching on remote communities in South America and Southeast Asia, producing inequity but failing to incite class revolt, as a Marxist reading of history might have predicted. Anthropologists sought to explain this failure without abandoning a more general Marxist interpretation of history. The result was a turn toward “resistance studies,” spearheaded by the ethnographically-derived theories of James Scott. In a series of influential books published in the 1970s and 1980s, Scott examined how peasants “resisted” capitalism not by taking up arms, but by dragging their feet. The “weapons of the weak” were small acts of non-compliance—an extra sick day here, a week of middling effort there. Through such a framework, anthropologists could continue to think about class relations in historical materialist terms. Resistance studies produced some powerful texts, and influenced subaltern studies, among other fields. However, it met its limit when it ceased to be able to conceive of a politics beyond the strictures of class. Resistance always took place on terms set by the hegemon, the master, or the boss. The resistor was always understood to be playing a game determined and even fixed by capitalism and its agents. In an orthodox Marxist view, how could it be otherwise?

In her 2014 monograph, Mohawk Interruptus: Political Life Across the Borders of Settler States, Audra Simpson offered something of a lifeline to resistance studies by proposing a turn toward refusal. For Simpson, refusal—like resistance—signals a refractory posture before a state or other dominant force. But unlike resistance, refusal means denying the most basic terms of engagement between the oppressor and the oppressed. It means insisting on a different game. In Simpson’s ethnographic example, Kahnawà:ke Indians refuse the sovereignty of both Canada and the United States, owing to these settler states’ ongoing failure to honour territorial treaties, some centuries-old, with Mohawk tribes. Thus Kahnawà:ke people may refuse to present U.S.-issued passports at international border crossings, insisting that these documents have no validity in the first place. This may cause great inconvenience, written off as the cost of fealty to a different sovereign truth. But so too does this kind of action offer fresh associative possibilities. Those who refuse point the way toward new modes of political organization, which others may then join. The gambit of refusal is that people might begin thinking about alternative ways of assembling politically, contra whatever system is currently blocking that alternative. Simpson offers refusal as an alternative to liberalism’s putative gift of recognition, which boxes indigenous people into the very trap that resistance studies eventually encountered—playing the game on terms decided by the powerful alone. Through acts of refusal, indigenous people (for instance) cease asking for settler states to grant them visibility at all.

Simpson has recently written about refusal in regard to our current political moment. What she calls “the ruse of consent” is laid bare in these electoral moments in the USA, Turkey and Syria when people are starting to point to where they think ‘the facts’ lie—where the origin stories are, and what the sturdiness of those stories is—all motivated by the specious grasp on both ethics and truth-telling by the current regime. These double moves are the conditions as well, for and of refusal. In other words, the current administration’s remarkable disdain for the truth is merely a less artful retelling of some hallowed, even foundational lies—that Indigenous people consented to the seizure of their land, that African-Americans, Kurds can become unmarked if they try, that women are fully entitled to their bodies, that economic opportunity is equally distributed, and many more. The decryption of these lies by Erdogan, Trump, Modi, Netanyahu and Bolsonaro may remind us of their contingency, and lay the groundwork to refuse them as a basis of our politics.

J.L. Austin inaugurated performativity studies by attempting to distinguish between performative and constative dimensions of language. He suggested that constatives are either true or false, while performatives instantiate their own event, and thus cannot be said to be true or false within admitted conditions of referentiality. One of the most powerful gestures of critical International Relations was to de-naturalise State sovereignty by emphasising its performative dimension. This resulted in reframing International Relations theory. The notion of performativity questions the methodological foundations and the conceptual protocols of the discipline, notably by challenging the limit between theory and praxis. In her essay ‘Performative States’, Cynthia Weber argues that ‘sovereign nation-states are not pre-given subjects but subjects in process and that all subjects in process (be they individual or collective) are the ontological effects of practices which are performatively enacted’. Drawing on the work of Judith Butler, she suggests that States are constructed discursively in ways that posit the State and its four components – authority, territory, population and recognition – as ‘natural’ and ‘prediscursive’.

While performativity studies have always been concerned with questions of legitimation, these never quite came to the centre of the argument. This might be due to a structural difficulty regarding the ‘juridical power’ of the performative, on which the articulation between performativity and legitimacy relies. Indeed, the performative finds itself on both ‘sides’ of the legitimation process: it must always be legitimated (this is the condition of its ‘success’ or ‘felicity’) and legitimating (because it produces an utterance with juridical value). Performativity is a principle of foundation and conservation, thus blurring the limit between foundational and procedural representations of legitimacy. This double-sidedness seems to imply a tautological circularity which disseminates the origin of legitimacy. The question of legitimation concerns: (1) the performative statement under scrutiny – for instance, such or such practice or discourse of State sovereignty; (2) the legitimacy of the performative conventions which have supposedly legitimated or enabled said practice or discourse; (3) the legitimacy of the interpretative models through which one appraises these matters of performativity-legitimacy. Each one of these analytical levels may, at once or in turn, be envisaged as performative or constative, as legitimating or legitimated device, which allows for all possible confusions, conflations, with the risk to validate, qua performative ontologisation or essentialisation, existing structures of legitimation.

In isolating a performative in view of theoretical or critical appraisal, one must always presuppose (at least provisionally) the presence and legitimacy of contextual conventions that made the performative ‘successful’ or ‘unsuccessful’, and made the critical pondering of this ‘success’ possible in the first place. This interpretative effort involves a performative selection that cannot be entirely neutral, or can only pretend to be so by masquerading itself into a theoretical constative. This problematisation of performative legitimacy directly concerns sovereignty, in as much as sovereign power presents itself as the unchallenged foundation of legitimacy and law. However, like performatives, singular sovereign decisions (characterised, at least in principle, as self-determined and autoposited) may be placed, depending on interpretations or appraisals, on either side of the legitimating–legitimated divide. In all rigour, the logic of performative sovereignty requires that performatives enclose themselves into a perfect, tautological circle of self-justified force and forceful self-justification. The notion of ‘successful’ performative would thus allow the closure of this circle in the fictional moment of its inauguration. In this moment, the performative is force, is legitimacy, is selfhood, is performative, etc. – ‘performative tautology or a priori synthesis’ according to Derrida. This tautological position suggests an absolute self-referentiality, the sui generis capacitating title of a performative power which would ultimately rely only on itself to produce the discourse of its self-legitimation, thus consolidating the phantasm of an ipsocratic coup de force:

A ‘successful’ revolution, the ‘successful’ foundation of a state (in somewhat the same sense that one speaks of a ‘felicitous performative speech act’) will produce after the fact [après coup] what it was destined in advance to produce, namely, proper interpretative models to read in return, to give sense, necessity and above all legitimacy to the violence that has produced, among others, the interpretative model in question, that is, the discourse of its self-legitimation as expounded by Derrida, and as in occupation in North Eastern Syria (Rojava and Afrin) by Turkey, US, Russia and others.

The term ‘success’ thus carries the weight of the argument. The epistemic risk is to validate the phantasm of sovereign ipseity by confirming and closing this ‘hermeneutic circle’ through the authority of another performative. In accrediting this ontological circularity, one enacts, seemingly constatively, but always through some performative interpretation (with practical implications), the ‘success’ of the sovereign performative and of its self-legitimation. Sovereignties thrive on this a priori conflation of performative and constative, because it results in equating sovereignty with its ‘own’ performative power, as if it were indeed the product of its ‘own’ narrative.

If I emphasise the self-legitimating dimension of the performative, it is because self-legitimation or ‘self-justification’ (Selbstrechtfertigung) plays a decisive role in Max Weber’s sociology of domination. Indeed, Weber defines politics and the State as structures of domination (Herrschaftstrukturen) in as much as they acquire and sustain legitimacy: ‘the continued exercise of every domination (in our technical sense of the word) always has the strongest need of self-justification through appealing to the principles of its legitimation’. According to Weber, the need for legitimacy is a ‘universal fact’ concerning all displays of power or force (Macht). Legitimacy modifies power into domination (Herrschaft) by affecting its ‘empirical structures’. In this presentation, legitimation operates according to a logic of supplementarity: self-legitimation contributes to power structures at an essential level by constructing the ‘legend’ of superiority, but is defined as a nonoriginary characteristic of the order since it only justifies already-existing ‘superiorities’ according to Weber. Power, as dominant power, superior mastery, superiority itself, is postulated as already-existing subject, a powerful ipseity which generates its own ‘legend’, the discourse of its self-legitimation. Power comes first, as the factual superiority of a ‘real’ ipseity (the dominant subject: an individual, or a group of individuals), which merely needs to justify this powerful position, and does so because it can. It has the power to do so because it has the power to be itself and thus to justify itself. Power is its own origin, self-present, a ‘prediscursive’ selfness (as Cynthia Weber puts it), a site from which it can generate legitimacy as mere supplement.

Abdullah Ocallan’s incarceration and political philosophy continues to enlighten our path like a candle burns itself out to shed light for others: activists, scholars, revolutionaries and the working class. His imprisonment by the Turkish government served as the catalyst that helped transform social unrest into political action. The neo-liberal Turkish State is in profound and open crisis. Leadership with moral criterion is bankrupt serving the needs of self-interest and Capital. The current crisis is so serious that it is equated routinely with that most scary of capitalist crises, the Great Depression of the 1930s, which had placed a question mark over the very existence of the mode of production. Soren Kierkegaard stated, “the tyrant dies and his rule is over, the martyr dies and his rule begins”. How many have been executed and injured both physically and psychologically by the regime in Turkey? Thousands displaced in the region simply for being Kurdish and above all human. Abdullah Ocalan is and remains an activist through and thorough. He was a vocal opponent of imperialism and anti-racist. His Democratic Confederalism is a radical alternative that provides a solution to the current hegemonic stasis foregrounded by States. He engaged with all progressive individuals and organisations. He was deeply involved in inter-faith relations, women’s empowerment and the building and strengthening of civic institutions. He is an internationalist figure, responsible for inspiring the Rojava project and galvanising progressive intellectual and practical alternatives for the oppressed in the Middle East and beyond.

Little wonder, then, that Turkey its partners in NATO, and its supporters regarded him as a significant political threat. He was the ultimate person of conscience remaining true to his principles.

Globalization and free trade framed with law that derives a false legitimacy has hijacked our most powerful aspirations the will to be Just, free and fair’.  Corporations are granted rights and absolute irresponsibility, through trade laws. The meltdown began a decade earlier with the implosion of a host of flagship financial institutions in the most advanced capitalist states, and continues to this day with the economic decimation of a number of the weaker capitalist states. The livelihood of millions in the Third World is destroyed, and trade agreements privilege arbitrary technocratic and corporate decision-making about the limits of regulation of the market. Abdullah Ocalan’s selflessness and conviction for the greater good exemplifies the lack of principle in these challenged contexts, perpetuated by individuals and supposed post-facist era and post-colonial former liberators that are conduits for the continued exploitation of people under their rule.

Needless to say, the contemporary crisis of capitalism is neither a sudden nor a short-term aberration. For more than a century already, capitalism as a mode of production has been in historic decline, wracked by an ever-deepening contradiction between relations and forces of production, as the former increasingly has become an obstacle to the development of the latter. Overproduction which has been ravaging the heartland of capitalism so relentlessly for the last three years has been gnawing away at its constitution for the last thirty years at least. Since the early 1970s, international capitalism morphed into neo-liberalism has lurched from crisis to crisis, like a drunk who has lost his way. Certainly, it is indisputable that the current crisis is not conjunctural; it is the latest explosion of a bankruptcy which goes to the structural core of the mode of production.

The triumphalism which accompanied the capitalist restorations in the erstwhile Soviet Union and its Eastern European satellites has evaporated. In its stead we see the captains of industry, the lords of finance and the fiscal executives of the biggest capitalist economies scurrying to find ways out of the vice-grip of the crisis. Unsurprisingly, it is public money which has funded the years of capitalist efforts to shore up failing financial institutions and to rescue defaulting national economies. Ordinary working men and women in Turkey and the globe have been saddled with the economic burden of bailing out the system, both in respect of the billions of dollars of public revenue which have been disbursed to imploding sectors of the capitalist economy and in respect of the years of austerity which they necessarily will be expected to endure.

Schumpeter, writing at a time when the Great Depression and the World War which ensued had precipitated a crisis of the capitalist mode of production which was unprecedented, identified a general “atmosphere of hostility to capitalism”, warning that: The public mind has by now so thoroughly grown out of humour with it as to make condemnation of capitalism and all its works a foregone conclusion. The current crisis globally mirrored locally is at least of the same order.

And again, as then, public disenchantment with capitalism is palpable, as ordinary citizens or people realise that it is they who are being made to pay, literally, for the cynical and scandalous excesses of the capitalist class. It has become evident also that conventional bourgeois economics is unable to comprehend the material basis of the crisis. Both Keynesianism and Monetarism have been paralysed in the face of the explosive contradictions tearing away at the heart of the capitalist mode of production. As the crisis has exposed the poverty of neoliberalism and its deification of the free market, so interest in icons such as Abdullah Ocalan has waxed. The need for a rigorous critique of neoliberal Turkey is both necessary and urgent and coupled with concomitant conduct: Action! As exemplified in the conduct of Abdullah Ocalan, and many others who are faced with daily Turkish aggression in the streets, jails, and in communities. Abdullah Ocalan mobilised communities across class, race and status and religious belief based on education and exemplary conduct with principled action despite the forces of Turkey being inimical to reason and serving fascist capital.

The current crisis has placed on the agenda also the interrogation of the legal form. Law is a crucial element of the regulatory structure of Turkey and makes a significant contribution to the reproduction of the social relations of production of the mode of production. The rule of law is the frontispiece of the Turkish neoliberal project and is considered to be emblematic of the liberal ideals of liberty and equality. In combination with a culture of human rights, it is deemed to be the route to justice for all. What a farce! Instead it serves Turkish hegemony.

However, the extended crisis of neoliberalism has placed the rule of law under severe pressure, as increasingly more neo liberal states increasingly embrace authoritarianism as part of their endeavours to stem the tide of disintegration. Liberal jurisprudence, wedded as it is to the idealist notion of law as a system of norms, may bemoan and oppose the assault upon civil liberties but is unable to comprehend its material foundation. Much the same may be said of two of the most conspicuous concomitants of the current crisis, namely, the rampant militarism accompanying the “war on terror” in the advanced capitalist world and the flagrant corruption which has become embedded in the very constitution of global capitalism, manifested daily in Turkey. Both are patently unlawful but are pursued with impunity, leaving liberal jurisprudence foundering because it lacks the analytical resources to apprehend the propinquity between legal relations and capitalist relations. As with bourgeois economics, so with liberal jurisprudence: there never has been a more compelling need to harness the powerful example of Abdullah Ocalan to make sense of the iniquitous legal dimension of capitalism in general and of the current conjuncture in particular.

Abdullah Ocalan’s example of transcending the leader-activist-scholar frame and recognising that being a visionary means being a leader and exemplar for the wider community who has a duty to be a voice of moral clarity to people. His training in mainstream, and experience within the communities had taught him that, especially in contexts of oppression and suffering, it requires some of us to speak out and act firmly and courageously with wisdom, and lend whatever support we can to the oppressed and their families. Maybe not everyone with that training can do it, but some do ― and those that do are obliged not to side with oppression. His imprisonment by the Turkish government served as the catalyst that helped transform social unrest into political action then and may it continue doing so now, and in the future.



İngilizceden Çeviren: Oğul Köseoğlu, Selami Bulut


Direnişin Sınırları: Hukuk ya da Meşruiyet          


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