by Zoran Oklopcic, Associate Professor at the Department of Law and Legal Studies at Carleton University
4. The Secret Graph of Secessionist Calculations
While one might choose to focus on the contradictions and dissimulations which Lockean performances oftentimes require, the Catalan crisis is an occasion to ask a set of less judgmental questions: What is it that compels present-day revolutionary secessionists to follow the script intended to serve struggles against oppressive tyrants and empires, not liberal democrats and republics? What do those who follow it today expect to happen as a consequence of doing so? Or, more precisely: What are Catalans betting on as they perform the role of reasonable revolutionaries—who, in a contemporary dramatization of the Lockean script by the Catalan parliament—make ‘every effort’ to stay on the constitutional path, and who act unconstitutionally only ‘after exhausting all forms of dialogue and negotiation’? What is it that they think they must do in order to increase the chances of their bet succeeding?
Rarely posed, these questions have not been explicitly confronted. The graph below offers a speculative outline of the efforts required, assumptions made, and the effects anticipated by those who perform the role of secessionist revolutionaries according to the Lockean script of exhaustion.
Though the preamble to the 2017 Law on the Self-Determination Referendum fixates on the infamous 2010 decision of the Spanish Constitutional Tribunal as the beginning of a period that culminated in the exhaustion of Catalan political patience seven years later (M1 in the graph above) the preamble also contains an allusive passage that seems to put the oppression of Catalans in a much broader historical frame, suggesting that the right to hold a referendum, and (under the winning conditions) declare independence from Spain unilaterally (also) stem from ‘a confluence of the historical legitimacy and legal and institutional tradition of the Catalan people—interrupted, over the course of centuries, only by force of arms’.
It is unclear how many strategists of Catalan independence believed that their targeted audiences would actually be sufficiently persuaded by their framing of the events prior to the fateful October 1 referendum. Given the reaction of some sovereigntist leaders to the violence that transpired on that day, it is not unreasonable to assume that many in the sovereigntist bloc believed that Catalans ‘earned’ their right to sovereignty: first, in the form of the right to reject the authority of the Spanish constitutional order by organizing a referendum already declared unconstitutional, and then—second—in the form of the right to secede from Spain not only unilaterally, but also immediately, following the victory of the ‘yes’ vote, despite the attempts of the Spanish state to suppress it forcefully. Put formulaically: what ‘earned’ them the right to (4)—in the minds of those who believed so earnestly—was their conformity with the requirements of the Lockean sequence above, (1*), (2*) and (3*).
Today, those who put faith in the rhetorical efficacy of this script—in its capacity to make neutral audiences sympathetic, sympathetic ones active, and the already active ones decisively productive—appear seriously misguided. Beyond the dubious quality of their claims to oppression—step (1*)—what they failed to take into account are two more things: first, the carefully orchestrated multi-year public performances of patient endurance of political injustice—evidenced in the stream of peaceful democratic protests from 2012 onwards—could be challenged by counter-performances. The likelihood of such counter-performances always depends on geography and demographics, and is generally low in highly ethnically homogenous environments.
Not so in Catalonia, as we quickly found out in the aftermath of the referendum. We witnessed not a repeated manifestation of Catalans’ democratic aspirations to secede, but massive outpourings of support for something else—initially, constitutional negotiations without preconditions (i.e. without insisting on the ultimate right of Catalans to secede unilaterally), and then—much more consequentially—in favour of the unity of Spain. In other words, what the post-imperial, 2.0 version of the Lockean script demands from contemporary secessionist revolutionaries—and what a number of Catalan sovereigntists seem to have neglected—is to not only to frame past events in a way that would make the claim (1*) plausible, but also to make the existence of the subject of (2*) and (3*)—not just the ‘people’, but the patiently suffering and legitimately exhausted ‘people’—believable.
In addition to believing that their audience would not doubt the authenticity of the identity of the suffering collective subject, many Catalan performers seem to have assumed that their audiences won’t intuitively grasp what comparative political scientists demonstrate empirically. As shown in Karlo Basta’s groundbreaking article, ‘Social Construction of Transformative Political Events’ (forthcoming in Comparative Political Studies), many Catalan actors worked hard to pre-frame the anticipated dilution of the Catalan Statute of Autonomy by the Spanish Constitutional Tribunal well before the tribunal reached its verdict in 2010. As Basta argues, ‘trying to extract public commitments to a radical framing of the anticipated decision, the [Catalan] challengers [to the constitutional status quo] attempted to trap vacillating incumbents into secessionist positions in case the Court ruling proved to be negative.’ That way, they created a hospitable discursive environment in which an occurrence such as M(1)—which otherwise might have failed to prove so resonant—could take form of a transformative event that functions as a catalyst of what constitutional scholars call pouvoir constituant (or, ‘power-amplifier’ as Basta calls it) ‘demonstrating the unsustainability of existing patterns of political activity’.
The third dubious assumption that Catalonia’s reasonable revolutionaries seem to have made when they placed their hopes in the success of their Lockean performances is the most disturbing. Having invested their energy in enacting (1*), (2*) and (3*) many of them seem to have ignored the possibility that performing (4*) would not in fact be met with critical acclaim by those they counted on to recognize Catalonia as a sovereign, independent state. What Catalan Lockeans assumed, in other words, is that their independence will be ‘earned’ by their past performances—recorded in the litany of grievances (L) at the beginning of the Catalan referendum law, and imagined as confirmed by Spanish police repression on October 1 (1-O). They neglected a far more likely possibility, which starts from the assumption that the acceptance of their project as legitimate (and thus worthy of international recognition) hinges on the size of the perceived legitimacy differential—depicted as an orange triangle in the graph above—which powerful audience members find (in)tolerable. The size of that triangle can only be ascertained through a judgement that deploys a comparison of the nature, frequency and impact of illegitimate acts that both sides resort to in pursuit of their constitutional visions.
For the most part, that judgment is neglected not only by the performers on the ground, but also by those who approach secessionist crises as scholars of secession. What those who approach such crises empirically or normatively ignore is a peculiar way in which power politics and ethics interact on the ground. In that reality, realpolitik remains indissociable from ethical evaluations, which must be made, for the most part, without a reliance on the authority of impartial international umpires. In such environments, to speak of ‘earning’ or ‘deserving’ the ‘right’ to secede appears highly misleading. While Catalan performers seem to have believed that their performances of (1*), (2*) and (3*) entitle them exclaim ‘Enough is enough!’ (as part of their performance of (4*)), ‘Enough!’ is a judgment whose object is not the amount of political violence as such (as in ‘Enough of violence, let Catalonia secede!’) but rather the difference between the parties’ respective contributions to the increase in overall violence. Put formulaically: the greater the contribution to violence on the part of the defenders of the constitutional status quo, the lesser the legitimacy of their attempts to uphold it.
This brings us to the final problematic assumption made by those who invested their hopes in the success of their Lockean performances in the Catalan case. What they seem to have forgotten as they anticipated meaningfully supportive reactions from their audiences is that the Lockean script sets the stage for performances which offer rhetorical opportunities to both sides, not only to those who perform the role of exhausted, reasonable revolutionaries. Rather than casting them as unredeemable villains, the stage directions of the Lockean script allow the defenders of constitutional status quo to improvise within the limits of its underlying logic, for example, by engaging in counter-moves intended to diminish the legitimacy of reasonable revolutionaries’ claims.
One historically popular counter-move might be called frame-stretching, or mnemonic ‘editing’ as Eviatar Zerubavel called it—the purpose of which has been to persuade the audience that the alleged exhaustion of patience—which secessionist revolutionaries claim to have been provoked by the impossibility of the secessionists to suffer long-standing oppression any longer—is actually the opposite: a case of illegitimate impatience, which calls not for the formation of a new constitutional order, but rather for a more patient attitude towards the unresponsiveness of the existing one.1 Another counter-move involves the re-appropriation of patience—either merely rhetorically, or performatively—by those who defend the status quo. Though this claim may seem incredulous in light of the heinous police repression that occurred on October 1, the Spanish government has, in fact, been remarkably successful in evoking the picture of patient self-restraint: not only by taking the back seat and allowing the judiciary to play a leading role in the fight against Catalan secessionism, but also by perpetually broadcasting its commitment to proportionality and the rule of law, even after its response became physically repressive.
5. In the name of the people: conveying expectations and mediating aspirations
Already part of the repertoire of early-modern performers tasked with defending imperial constitutional orders, these two counter-moves remain available to those who defend the status quo of republican constitutional orders as well. Though there is no way to assess how objectively important they are, it is reasonable to assume that they are more efficient in contributing to the moral ‘standing’ of the constitutional status quo than they were at the height of settler colonialism, and European imperialism. Even when contemporary spectators are not particularly taken in by their performances, they will be much more inclined to see the strategic rationale behind the ‘outrageous assertions’ of Lockean revolutionaries. As Max Steinbeis argued in his illuminating post on Verfassungsblog, such assertions
“provoke outrage which seems to justify the outrageous assertion in retrospect and saves the person making the assertion from having to answer for and justify his assertion. The Spanish Government, along with the Constitutional Court and the King, has so far gone out of their way to counter and confirm the independentists’ declaration of enmity with their own, thereby effectively ensuring that all the independentists need to say is: ‘See?!’ What makes you think you’re oppressed? ‘See?!’ What makes you think Spain is a dictatorship and its liberal democratic constitution only a facade? ‘See?!’ ”
Though its probably factually correct to point to a desire on the part of secessionist revolutionaries to provoke the defenders of the status quo to (further) delegitimize themselves in the eyes of relevant external audiences (which would result in a steeper S-line in the above graph), this illuminating observation ignores something, which from the perspective of this essay seems rather important: unless Catalans stage the situation in which they may act as exhausted but reasonable revolutionaries, they don’t stand a chance of ever being taken seriously. In a world in which neither international law nor constitutional doctrine of popular sovereignty gives presumptive dignity to Catalan aspirations, performing some version of the Lockean script enables them to evoke the dignity of their struggle in terms which are universally intelligible and widely acceptable.
This, of course, raises an immediate question. Why should Catalan secessionists be taken seriously in the first place? Shouldn’t a decision to take them seriously (or not) depend on the normative ideals applicable to the situation on the ground, and on the specifics of that situation? I started this essay by critiquing the syllogistic reasoning, which predominates among both scholars and partisans of popular sovereignty, but one may rightly wonder if we could ever pass prudential, ethical and other judgments without resorting to some such syllogism. Put differently: Why would we pay special attention to the theatrical aspect of normative and juridical disagreements if what matters is to find a compelling answer that would resolve them?
The response, in short, is that a focus on theatrical aspects of such disagreements will only make sense if we recognize the three-faced character of the discursive performances of those on the ground who invoke the rights, powers, or sovereignty of their peoples. Those performances are not simply polemical (aiming to contribute to a victory in a specific conflict) or dramatized on a stage (in order to elicit support from the observers capable of contributing to that victory) but are also, in the broadest sense, collaborative: designed to elicit collaboration by conveying specific expectations. In other words, the right to self-determination, the sovereignty of the people, its constituent power or its ultimate authority are more than just the containers of normative prescriptions, weapons in political struggle, or (oblique) descriptions of some aspect of a script of constitutional change; they are also vehicles of communication. What they convey is what is to be expected: for those who invoke them, of those who stand in their way, from all others who observe the conflict from the margin, and about the world, such as it is, in which their conflict takes place. To invoke our right to self-determination, or our authority to decide on the content of our constitution is, therefore, another way of saying, encouragingly: Then and there, you here, you over there, and you—everywhere else—act this way, and not that.
If true, then, that every polemical concept must also be seen as a conduit of expectations, then those who approach them theoretically cannot but intervene in those struggles polemically themselves, and, in doing so, act as arbiters of the legality, legitimacy, intelligibility and sensibility of specific expectations, and as critics of specific theatrical performances. Though constitutional and international legal scholars don’t prefer to look at things this way, perhaps they will overcome their reluctance towards recognizing the practical and polemical consequences of their own scholarly performances. Recognized or not, these consequences exist wherever they choose to broadcast their opinions on the authenticity or relevance of facts, or on the applicability of a certain warrant: be that the right to self-determination, the authority of democratic constitutional order, or something else. Whatever they are, these opinions are always encouragements: Perform then and there, not here and now. Bet on this, not on that, hope for more, not less, worry a bit, not a lot—or the other way around.
What follows from this? In my opinion, quite a lot. If it’s true that specific claims and warrants (as their abstractions), may rightly be understood as conduits of spatiotemporal expectations and expectant emotions (as Ernst Bloch called them), our pre-existing preoccupations with finding correct (or at least superior) answers to eternally recurring W-questions—Who is the people? When may it exercise its constituent power? Where may it exercise its right to self-determination? What justifies such exercise?—will rightly appear as derivative of something far more important.
Though scholars may pretend that in answering these questions they rightly take certain things for granted, what they do instead is infuse their own expectations, hopes, desires, and anxieties into their verdicts of the legitimacy, sensibility or legality of those of others. Those who, like Michael Keating, react to the crisis in Catalonia by arguing that ‘we need better principles on who has the right to self-determination and how’ are in fact misguided. The teachable lesson of the crisis in Catalonia seems quite different: it might be high time for scholars who approach the right to self-determination to stop pretending that the ‘we’, the ‘better’, the ‘who’, the ‘right’, and the ‘how’ can ever be divorced from their own assumptions, anticipations, and specific political aspirations. The time may have come, in other words, to move beyond our obsessive attempts to outwit each other by offering more bullet-proof answers to the 4 W’s and instead enter into a more frank discussion about our own 3A’s—even at the cost of sacrificing some of our intellectual capital and scholarly authority.
This essay, already too long, is not a place to have this conversation. What nonetheless deserves to be highlighted that whatever these assumptions, anticipations and aspirations are, their combined effect is to deny dignity to unmediated political desires. This is why Catalans must stage a scene in which they can perform their legitimacy. No one would take them seriously had they said otherwise: We demand that our aspiration to secede be taken seriously because we really, really, really want it so much! So, instead, they need to perform: not just as exhausted revolutionaries, but also a ‘collective’, which makes the content of its ‘will’ sufficiently clear. In an earlier post, I suggested what may be wrong with these kinds of approaches: encouraged by scholars of popular sovereignty, all such claims (whether made by those who challenge or defend the status quo)—are incredibly easy to unpack, demask, and denuciate. Even when invoked earnestly, they will almost always be interpreted as relied upon hypocritically.
6. Alternative Scripts, Folk Hermeneuticists and Scholarly Dilemmas
Anxiously anticipating the prospect of chaos, anarchy and fragmentation, scholars of popular sovereignty have no interest in lending dignity to nude political desires. Instead, they encourage the use of specific vocabularies that render them intelligible as (i)legitimate, (i)legal, or (in)sensible. What they also encourage, however, are the enacting of performances: acts on the ground intended to provide evidence of the authenticity of the facts that support the claims of the partisan performers on the ground.
And this is why drawing attention to the Lockean Script is so important. It allows all who relentlessly seek to find appropriate answers to one or more ‘W’-questions to pause before doing so, and to ask instead: What kind of performance am I advocating for here? If, for example, I were to argue that clear referendum majorities in favour of secession carry no political or juridical consequences, what then am I suggesting? That Catalans give up their demands in the name of a paradoxically self-constituting ‘people of Spain’? Or, that—if they truly care about their independence so much—they must go all the way and continue to offer evidence of their suffering until the audience recognizes them as enduring too much to bear?
In that case, don’t Catalans deserve fair warning? While they may believe they are participating in a more or less clearly scripted Lockean drama of popular sovereignty, their performance may in fact be taking place on a different stage altogether. While they may believe that they are re-enacting the American Revolution 2.0, their audience may imagine them in a scene more closely resembling a sports match, or a medieval trial by ordeal. To some, the way that Catalan sovereigntists act on the stage might therefore appear less like an existential struggle of reasonable revolutionaries against an oppressive and obstinate regime, and more like a match of legitimacy jiu-jitsu, an oftentimes extremely violent political sport between two, at least initially, morally equal opponents who—in performing oppression, exhaustion, or restraint—hope to induce their opponent to make a wrong move, and in, doing so, score points in the eyes of opaque, but nonetheless, authoritative external referees.
To others, in contrast, Catalan sovereigntists have nothing in common with practitioners of martial arts. They would instead imagine them in a role, which most closely resembles the accused in medieval criminal proceedings who must prove their innocence by enduring some form of ordalium. In that scene, performance takes place not for the pleasure of powerful outside actors, ready to be moved by the Catalans’ patient suffering and quick to act to alleviate it by recognizing Catalonia as a sovereign state. While it’s difficult to say how many Catalans have, indeed, proceeded on the basis of this (to date, erroneous image), it is fair to assume that many of them have taken it quite seriously. How else to explain the shaken incredulity on display in this video—which, at least to this author, doesn’t look like an inauthentic performance? (Interestingly, the performer turned out to be professional actress)
What the protagonist of this video ignores is the highly plausible scenario where the relevant members of the audience don’t rush to Catalonia’s rescue, but choose instead to remain in their seats, either because they simply don’t care enough about its destiny, or because they envision themselves—unwittingly, of course—not as political fellow-actors, but rather as those who, in evaluating the legitimacy of a Catalan ‘right’ to ‘self-determination’, act as the administrators of the undeclared ordalium. In the Lockean script, there is no role for the inquisitors of popular sovereignty. On the stage of the trial by ordeal, however, their role is central. On that stage, Catalan DUI is not a statement of intent, but rather the object of examination, subject to iudiciua Dei—‘passed’ by those who are willing to sacrifice everything—their own lives, as well as the lives of others—in order to establish effective control over the territory of a sovereign state they plan to establish—and in that way prove the authenticity of their professed desire for independence.
At this point, one might ask: DUI, Dei—what does this have to do with scholars who evaluate Catalan and Spanish moral, political and legal arguments? As I argued earlier, there will always be a number of scholars who feel that they have no particular duty to disrupt the performance on the stage. While the aim of this essay is not to convince them otherwise, it might yet be useful to be more analytically precise about what it is, in our imaginations, that dooms scholarly interventions into folk vocabularies of sovereignty and self-determination. The snapshot below, as a conclusion to this essay, is intended as a modest contribution to a debate to come.
Though not intended to make a persuasive case for a more robust public engagement by scholars who approach these vocabularies, it offers evidence of something else: the existence of vibrant folk hermeneutics of popular sovereignty—at least in the former Yugoslavia countries—where ordinary citizens act as amateur comparative constitutionalists, public international lawyers, and moral philosophers, ardently discussing constitutional and other salient differences (or similarities) between the secessions of Croatia and Slovenia in 1991 and the unilateral declaration of independence of Catalonia in 2017. Those influenced by Jim Tully’s vision of public philosophy as a form of civic dialogue would probably suggest that these unwieldy, public conversations about popular sovereignty, constitutional authority and political legitimacy may offer valuable lessons for those who approach those concepts as jurists or theorists. Perhaps. But wouldn’t it be nice—at least in some moments—if theorists and jurists had a more effective way of speaking back to those on the ground; if they had a better way of reminding those who invest their hopes in the success of the Lockean Script that many will suffer if the audiences they expect to move by their performances fail to act as anticipated?
Zoran Oklopcic is Associate Professor at the Department of Law and Legal Studies at Carleton University. In the past, he was MacCormick Visiting Fellow at the University of Edinburgh School of Law, Junior Faculty at Harvard Law School’s Institute for Global Law and Policy in Doha, Qatar, and a Hauser Global Research Fellow at the NYU School of Law. His articles on popular sovereignty, constituent power, constitutional pluralism, and self-determination have appeared in Constellations, Global Constitutionalism, The Canadian Journal of Law and Jurisprudence, and Transnational Legal Theory, among others. His book Beyond the People: Social Imaginary and Constituent Imagination is forthcoming with Oxford University Press in February 2018.
1 Consider, for example, the argument against the American Declaration of Independence, made by the British colonial secretary James Macpherson in 1776. Accepting, for the sake of argument, the substance of the American claim that there should be ‘no taxation without representation’ he still argued that Americans had not yet exhausted all available routes before asserting their sovereignty. Had they, instead of flying to arms, submitted the same supposed grievance [like the counties of Chester and Durham in medieval times] in a peaceable and dutiful manner, to the Legislature, I can perceive no reason why their request should be refused’. In terms of the graph above, what those like Macpherson seek to achieve is not to deny the existence of the incidents of M(1)—M(x), but rather to stretch the right side of the boundary of the EP-frame, as a means of undercutting the sensibility of the secessionists’ (i.e. the American revolutionaries) portrayal of the trajectory O1—O4 as irretrievably ‘ascending’; that is, asymptotically approaching the point at which the extant regime (or state) becomes illegitimate.