I bet someone else has already used that title. I bet.
Headline for anyone who isn’t interested: Catalonia has just tried to declare itself independent from Spain after the Madrid government stopped it from holding a referendum on independence, which the Madrid government deemed “illegal under the Spanish constitution”.
Some officials across the EU have even said Catalonia’s declaration amounts to the destruction of the rule of law, a sentiment which is basically meaningless. If the declaration of independence has any meaning, it means that Catalonia is now a country and so is no longer subject to Spanish law. Within the new Catalonia, the rule of law would in all likelihood be satisfactorily upheld. But back to the main issue: the referendum’s legality is yet to be decided. It was put before the Supreme Court and they have until May 2018 to decide whether the Constitution allows a regional assembly to hold a referendum on regional independence from the Spanish state. The Court has also accepted the case deciding whether Catalonia’s assembly has committed “rebellion”. So no-one knows yet whether any law has been broken. I mean talking of the rule of law, I remember hearing about something similar. It goes: “innocent until proven guilty”. No? Did I just make that up?
Anyway, the Madrid government prematurely declared the referendum illegal and sent police in to break up voting. This act itself must surely be illegal. While the referendum stands on uncertain or new legal ground, the repression of innocent civilians and state officials is in a well-dug legal trench, surrounded by a concrete bunker, surrounded by a minefield, surrounded by a wasteland that’s regularly bombed: government repression is wrong. Full stop. Well known.
It’s only once the Madrid government has acted illegally that Catalonia officially abandons the law and declares independence, but even then it’s not so much an issue for forces of the Spanish State as it is for the large minority of people in Catalonia who didn’t want independence. If they, for example, openly declare allegiance to Spain against the new administration then, perhaps, the Spanish government could have a reason to send police or troops in pending the result of negotiations and any appropriate mediation by international bodies such as the EU, NATO, or the UN. Once Catalonia is a nation in its own right, it’s no longer bound by the Spanish constitution and enters a new process of awaiting international recognition, while also trying to convince dissenters not to do anything harmful to the new state. This doesn’t have to involve violence, protestation or repression. But of course it does because not enough people in Spain or Catalonia wanted independence to happen. Also I’m sure most people wouldn’t be keen on their (the Spanish national) government acting illegally in the repression of legitimate democratic forces awaiting a court date. But then I’m not Spanish so what do I know?
I’m writing here as a British citizen and I only heard about this issue – by extension – because the UK government has declared its support for Madrid and against Catalan self-determination. Which doesn’t fit what the UK stands for at all. We’re supposed to be saying to the national government “you should have let them hold a referendum and embarrass themselves with the result” and to the Catalan government “we’ll do our best to help provided that you now wait patiently for your court hearing, after which the issue will be fairly conclusively decided”. Instead, May Johnson is imploding as per usual.
So it’s important that I make a distinction between UK and Spanish politics. The main criticism that Madrid is making of the Catalan declaration of independence is that it’s unconstitutional. Spain has a written constitution. The UK doesn’t. This has always made UK politics more technically flexible, because in effect we are not bound by anything save popular perception and opinion. We claim many things with our legislation and our governmental institutions, but at their root there is no higher power than the British people. We have an (almost) all-powerful parliament, whose sole role is to represent and serve the British people in the best way possible. This could readily be extended to mean that the British Parliament should include all of the British people. In other words, full democracy is legally within our grasp and we can take it whenever we have the popular will for it. That’s the beauty of the famously obscure British legal system and that’s why when it comes to Scottish independence, we can’t say a Scottish declaration of independence is “unconstitutional”, we can only say it’s unpopular. Which is in my opinion a far more powerful thing.
It also means that, despite all of its childish tantrums around the time of the Scottish referendum, our government could never do what the Spanish government is now doing, namely: trying to charge the rebel region’s administration with treason. The Habsburgs are long gone and so, supposedly, is General Franco. So tell me exactly how do you get an elected assembly to commit treason? Well, yeah, the Spanish Supreme Court is going to tell us. It’s also going to tell us whether the referendum breached their constitution.
And I don’t take issue with the court being asked to make a decision. That’s obviously what has to happen according to the Spanish Constitution. But I can take issue with that Constitution. Having it written means that it’s (supposedly) established as a higher power than the people of Spain. The Madrid government likely believes this has been done because the people can’t rule themselves and so a strong constitution establishing strong governments must rule for them. But a constitution can’t do that any more than a king or a parliament can. There is no higher power than what people perceive to be righteous. The Spanish Constitution may be interacting with this truth, but it is not recognising the absolute application of this truth. Firstly you can’t word a constitution such that it is not contradictory or uncertain in terms, and therefore unenforceable in law. Which is why it’s better not to try. Accept that the only law that can be maintained must be popular, and govern accordingly. Even if you pretend not to sometimes.
Secondly, and because of this, a constitution is not sufficient grounds to deny people the right to be part of something else. Because it is a flawed document, limited in its application, it cannot govern the movements and behaviours of people who choose not to be members of the Spanish state. And if a whole region within the Spanish state decides not to remain a part thereof, and then successfully begins a peaceful progression into its own nationhood, there is no part of a constitution or popular opinion outside of their new nation that can legally stop them. Except…
Basically, everyone can do what they want. Nations and constitutions were established to minimise conflict and maximise peaceful co-existence. People agree to those nations and constitutions through a sort of social contract. By definition, that contract is not legal. It’s enforceable only socially – only through co-operation. And it can be torn apart by antagonism. No power decides on the status of a social contract, other than the capacity of its “signatories” to co-operate adequately to maintain the contract, sometimes through negotiation, sometimes through horrifically strict enforcement. Depends who holds the larger share of influence. And how committed people are to the overall goal of minimising violence/destruction/instability – we’re usually surprisingly well-committed to that, you’ll be glad to hear.
But what of laws? Laws are elements of the contract under the “nationhood” section that we can negotiate through representative assemblies. Or at least that’s probably the easiest way of putting them in context. They need to seem permanent and unchanging if people are going to believe in them; our administrations believe that they are necessary to minimise conflict and maximise peaceful co-existence, so we kinda accept them also on those grounds. It’s part of accepting a sovereign government in the first place. I mean you do a deal with the devil, you’re probably going to get the short straw. It’s taken a few thousand years for some nations to reach a state mockingly called “democracy”. And we’ve done damn well with that. The short straw carries on until we completely remove sovereign government. But that’s an issue for another time.
The point here is: the social contract establishes the basis for all government, and referendums on regional independence are essentially demands for a new social contract outside of the existing one. However, before citizens leave the existing contract, they remain citizens of that same contract. Which brings about the issue of referendums – each one is a step closer to the establishment of a new social order outside of the old one, but it’s only the decisive referendum that will create a good alternative. You have less than 50% support, or if you use violence, force, at any time, the new order will be based on that: and it will be weak as a result. Because when you’re talking about a whole new order, a whole new contract, 50% really isn’t enough. In fact, only 100%, unanimous approval will really do. Just because we don’t tend to get it, doesn’t stop it from being the standard. Anything less than 100% approval means people leaving, people being angry, depressed, working less, fighting eachother, harming eachother, endless echoes of social discontent. So you really want to minimise the disapproval. This actually goes for all government, all the time – not just referendums to set up new ones.
And as part of maximising approval (so as to maximise social order, therefore peaceful progression) you don’t want to deny any referendums. In Catalonia, in Scotland, heck maybe in Quebec and other places too, we’re talking about a region that’s culturally, historically, often economically and politically coherent. That’s coherent as a region, meaning it doesn’t have to fit the national agenda. In fact it probably won’t. Nations are mostly maintained by the disunity of their separate regional social orders. If you have a united region, organised, relatively uniform, we’re talking the places mentioned above, then that represents active disapproval for the national social contract. Active “rebellion” of the more subtle kind. Of course it’s not really subtle at all, it’s bare-faced and blatant in economic failure, social unrest and decline of any kind. But we’re used to thinking about rebellion only as a violent crime punishable by death or exile. Proper old-fashioned like. No, it’s much more than that. It seems unconscious or irrelevant because it’s only a bunch of individuals consciously doing it. We think “oh they don’t have an army so they don’t matter”. Wrong. Individuals are the entire content of a society. If any of them are unhappy, everyone gets hurt. Not always much, but always some. And the more people are shat on, the more they shit on everyone else. It’s a butterfly effect of shit.
So if you deny an organised group of these people the right to express their wish to form another order, you’re starting a fight with the fire-breathing lizard you’ve hand-reared from egg to man-eater these last 100 years, just after you’ve helped it have children which are now stored safely in its lair. I.e. You’re being stupid.
Taking it back to Catalonia: so long as one faction in the region is powerful enough (if that faction is supported by over half of the region) to reasonably demand a referendum, then that referendum must be called.
We’ve negotiated the 50% benchmark of minimum legitimacy that tends to apply to most if not all law. It’s long established in an expansion of what the UK calls Common Law – i.e. the law as applied by judges over multiple similar but different cases. The last judge’s ruling in a similar case becomes a legitimate legal reference point in future cases. With the 50% it’s that kinda sentiment that again the UK used to call “the man on the bus”. Basically every judge asking “what does the average guy think?”. Average tending to aim for the middle of a range of data i.e. the 50% mark. Mean – add it all up, divide it by how many there are. Median – pick the middle number in a set. Mode – what’s the most frequently occurring number. Most of what you do with averages is about getting or pleasing the most. Same here. Goes back to the ultimate goal of peaceful progression in a dangerous world. The people responsible for applying the law want to know that it fits broad public opinion. And if it doesn’t they know there will be some kind of trouble.
The present events in Spain are the direct result of the Madrid government’s refusal to co-operate not only with the Catalan separatists, but because of the 50%+ majority by which the Catalan coalition government exists, with the entire region itself. That region’s self-determination is guaranteed by the Spanish constitution. In outright denying and actively repressing their capacity to call a referendum, the Madrid government acted contrary to certain key sentiments within the constitution. Which sentiments amount to a central element of the social contract by which the entire region of Catalonia is joined to the Spanish state. It’s this action, not the Catalan separatists, that will bring this conflict to the point of violence and repression, or, potentially, Catalan independence. It’s not just a constitutional debate anymore, it’s about centuries of regional self-determination, well established as a necessary part of a united Spain. And it’s about denying the recent history of Fascism and unfettered repression.
The Spanish State has fucked up.
But then as we’ve discussed, 50% support for a 100% body of people forming a new society isn’t enough. It’s the bare minimum required for the event to happen without civil war and repression being absolutely necessary. So I’m not supporting Catalan independence here, since in my mind Catalonia doesn’t meaningfully support it yet. I’m condemning, in the most righteous terms I can muster, the Madrid government’s latest breach of Spain’s social contract. Cutting out the rights of an entire region – millions of people – will have consequences. And the UK will only lose from supporting such blatant evil.
Now, if you want the flip side of the coin, about what rebellion involves and how bad it is, well that’s another article incoming. Not only on the principles and historical tendencies surrounding revolutions and the like, but an analysis of what the Spanish Constitution gives Catalonia without it becoming a separate nation. Whoever wrote that Constitution realised separatists could be a big problem for the future of a united Spain. I’m just not sure yet whether they wrote adequate defences against that likelihood.