by Zoran Oklopcic, Associate Professor at the Department of Law and Legal Studies at Carleton University
1. ’Indy’: What’s in a name?
Since the advent of popular sovereignty at the turn of the 19th century, referendums have been one of the most (excuse the pun) popular techniques of ascertaining the extent of popular support for a variety of far-reaching political projects. Oftentimes viewed as indispensable for demonstrating the legitimacy of secessionist pursuits, independence referendums have only rarely resulted in victories for advocates of the constitutional status quo. Among the 54 referendums that have taken place since the early 1800s, 43 saw the triumph of pro-independence majorities. In terms of their actual success in seceding, however, things predictably look different. Out of the victorious 43, only 22 pro-independence majorities managed to achieve independence peacefully. In the case of the remaining 21, independence either never occurred, or, when it did, took place only after a period of protracted violence.
From this broader historical perspective, the recent Catalan referendum on ‘self-determination’ hardly seems remarkable. Both in terms of the repressive reactions it provoked from the Spanish government, as well the escalation to which it contributed, it easily fits into an enduring pattern of acrimony, instability and violence that has historically accompanied most bids for sovereign statehood. And yet. Though the October 1, 2017 referendum appears quite unremarkable within this wider historical plane, its striking features become obvious when approached from a more parochial, Eurocentric perspective.
What made October 1—together with the events that preceded and followed it— remarkable was not the fact of a referendum, or the violent reaction of the Spanish police, but rather that it was not supposed to happen—not there, not like that. Hoping to witness a constitutional happy ending—akin to that in Canada in 1995, or in Scotland in 2014, it’s easy to imagine the shock scholars must have felt when they realized that a constitutional standoff between two equally liberal and democratic levels of government may still end in street violence and police repression. Events like those on October 1 occur in the periphery, not in the core of liberal democratic constitutionalism—in Eastern, not Western Europe—and in the 1990s, not 2017. From that perspective, October 1 can be described as a Black Swan—an event which students of secession, self-determination, minority nationalism, multinational federalism and constitutional pluralism not only failed to anticipate, but which they also implicitly deemed inconceivable.
October 1 is remarkable for another important reason. As the culmination of a low-intensity constitutional conflict between Madrid and Barcelona, it captured the world’s attention not just as a striking example of the capacity of liberal democracies to act stubbornly, but as vivid evidence of what (for the purposes of this blog at least) might be called a discursive Lazarus effect. What Catalan activists achieved was not just to capture, if only for a short while, the attention of the international public, but resurrection of the vocabulary of the right to self-determination—the justificatory terminology of finality and inalienability, which this public seems to have long ago abandoned. Lying comatose for much of the late 1990s and 2000s—propelling many authors, including this one, to speculate on its ‘expiration’ or irretrievable ‘discursive demise’—the old man of Self-determination sprung back to life in the imagination of Catalan sovereigntists, his shrill voice heard for the first time since the summer of 1991 in the context of another secessionist crisis in another corner of Southern Europe, during the early stages of the dissolution of the former Yugoslavia.
I’ve explored the similarities between these two discourses elsewhere. Here I wish to take notice of another remarkable feature, which the Catalan bid for independence shares with other comparable contemporary sovereigntist projects in Europe. Though some have argued that we live in an era marked by what Dilip Gaonkar called the ‘twilight of political fictions’, a closer look at the discursive moment in which such projects unfold makes one wonder if the twilight zone of popular sovereignty would be a better way to refer to it: a strangely ambivalent collective mood: committed and enthusiastic, yet at the same time casual, almost frivolous. Most symptomatic in that regard is not the carnivalesque atmosphere that sometimes accompanies secessionist mobilization, but rather an increased prominence of cutesy abbreviations—used not out of a need to abbreviate the terms used for the noble aspirations of an otherwise sovereign people—but rather to send a message that secessions and other fundamental constitutional transformations are not a big deal after all.
Take ‘indy’, for example. Indiana Jones’s nickname in the 1980s, and the attribute of a certain kind of rock music in the 1990s, is today a term of endearment for something that was definitely not a laughing matter thirty, or even twenty years ago: an existential challenge to the territorial integrity, national unity, constitutional authority, state sovereignty, and the perpetuity of its people. (The same could be said for various ‘-exits’—Grexit, Brexit, Calexit—names befitting bathroom cleaning products, than events—which if successful—trigger once-in-a-lifetime constitutional transformations with unforeseen geopolitical consequences).
Even if these barely detectible discursive shifts indeed reveal symptoms of a deeper collective psychological phenomenon, it is still not clear what exactly that phenomenon may be: a steadily progressing mass political infantilization, or—to the contrary—collective moral progress of an increasingly mature general population. To those espousing the latter view, the carnivalesque lightheartedness on the streets of Barcelona—even if strategically staged by the Catalan secessionists—would be the most welcome departure from the gruesome imagery of exclusivist ethnic nationalism. Rather than the irruption of a dormant volcano of popular sovereignty, or the tearing of the fabric of national coexistence, multi-year sovereigntist carnival in Catalonia seems to celebrate something much more mundane: the mutually agreed upon re-definition of juridical arrangements between two political units which continue to co-exist as close partners within the ever-changing constitutional kaleidoscope of the European Union.
That, at least, is the understanding secession one might get from the Catalan Declaration of Independence which the Catalan Parliament passed on October 27 2017. Though announcing that they ‘constitute the Catalan Republic, as an independent and sovereign state, a state of law, democratic, and social’, judging from the text of the Declaration its signatories don’t appear to be in any rush to turn its commitments into reality. While the signatories of the 1776 American Declaration of Independence proudly proclaimed that the legal bond between the United States and Britain ‘is and must be totally dissolved’, Catalan parliamentarians merely “urge” the government to ‘adopt all resolutions necessary for the unfolding [“desenvolupament”] of the Law of juridical transition and foundation of the Republic’ passed by the Catalan parliament in September this year.
Among some twenty measures recorded in the Declaration—more than half of which ask of the Catalan government to “promote”, “make aware”, and “elaborate”—the most radical seems to be the one that asks the government to “activate in an immediate manner all the human, public and social resources as well material media at its disposal, in order to make effective the democratic constituent process”. It is no wonder that this elusive, non-committal and judiciously juridical language led some local commentators to conclude that Catalan Parliament’s commitment to Catalonia’s independence should not be taken seriously; that just like the first—allegedly “suspended”, but never properly adopted to be suspended—declaration of independence, the second UDI is also ‘just another lie about the [constituent] process’:
This has been confirmed by Puigdemont himself in his statement [on October 27] when he referred to the need to guarantee “the democratic opposition to the application of Article 155’; within … the Spanish constitutional order and not [to make] the new Republic [a reality]. In short, on October 10 the Government passed the ball to the Parliament and on October 27 the Parliament returned it. And, while none dares to take the final step, all prepare their defense before the [Spanish] courts.
So what game is being played by the Catalan secessionists? A game of ping-pong—played between different factions of the Catalan sovereigntist movement? A game of chicken—with the Spanish government? ‘A slow and dangerous game of political chess’—against Mariano Rajoy? Or some other game altogether? Whatever that game is, it seems to be like no other. Though all who take part in it—on all sides—do so in the name of ‘the people’, various historical analogies don’t do justice to the nature of the political dynamic we’ve been witnessing over the last several weeks.
2. Catalonia is like X: scholarly analogies and their blind-spots
In my earlier online posts on the constitutional and international legal aspects of the crisis in Catalonia, I confronted some problematic aspects of the ways in which scholars approach events such as October 1, and the crisis it escalated, more generally. At this point, I wish to focus not on the scholarly aversion to examining the character of their professional contributions in a wider discursive and political environment—an issue I will revisit at the end of this essay— but rather on another important flaw in their scholarly vision: their failure to notice the interplay between the diversity of scholarly conceptualizations, on the one hand—and the levels of analogical reasoning, on the other. What is being neglected, in other words, is the way in which scholarly interpretations of self-determination, popular sovereignty, constituent power or final authority stem not just from an interpretation of the applicable doctrines, norms and facts on the ground, but also from the analogies used to supplement those interpretations, where Catalonia appears (or not) as X, and Spain as Y (with X and Y being historical examples that cast Catalonia and Spain in an (un)favourable light).
In an earlier post on Volkerrechtsblog, I engaged in a bit of analogizing myself. There, I argued that the discourse used by Catalan parliamentarians resembles that of Croatian and Slovenian secessionists in the early 1991. Indeed, as the randomly selected snapshots below demonstrate, such analogies have had a prominent role in public discourse about the justifiability and prospects of Catalan secessionism within and without Spain. Another popular analogy, particularly among the media, as the snapshot below demonstrates, has been one where Spain resembles an empire, and Catalonia its exploited and oppressed colony. While there hasn’t been a shortage of scholars who have decried the Spanish response to Catalan aspirations as a clear manifestation of the culture of imperialism—allegedly ingrained in the mindset of Spanish political elites—most scholars continued to draw a contrast between the ways in which Spain responded to Catalan secessionist aspirations, and the ways in which similar aspirations were addressed by Spain’s two ‘comparative’ amigos: Britain and Canada—two inspiring examples of how to deal with secessionist conflicts constitutionally and peacefully.
Analogies are Janus-faced: natural and near-inevitable on the one hand, yet immediately suspicious and tenuous, on the other. Present-day Spain is neither communist Yugoslavia, nor an early-modern European empire, nor—for that matter—Canada or Britain. Neither is contemporary Catalonia like Croatia, nor is it the victim of settler colonialism, nor is it Scotland nor Quebec. What makes analogical reasoning intellectually dubious is not that it must rely on comparisons between apples and oranges, but rather the failure by those who deploy these comparisons to remind themselves not to do their work as naive reifiers. Put differently, there is absolutely nothing wrong in comparing apples and oranges as long as those doing so remain cognizant of their own indispensable and inevitably contingent observation and measurement protocols, which allow them to define the terms of comparison— instead of simply presuming the apples’ and oranges’ innate ‘appleness’ and ‘orangeness’.
What makes the analogies used to portray both parties in the conflict a certain way so problematic, is less their oftentimes polemical edge but rather the failure of those who wield them to distinguish analytically between the possible terms of comparison that may be in play each time someone compares two conflicting constitutional visions using the language of popular sovereignty, ultimate authority, constituent power, or self-determination.
At this point I hasten to clarify that the analytical distinction I speak of is not one that can easily, and trivially, be made between the individual terms above. Nor is the analytical distinction I have in mind created by differences in scholarly perspectives—where normative theorists see an ethical prescription, and a constitutional theorist an ontological condition of juridical knowledge, for example. However defined, and from whichever perspective analyzed, these terms all belong—to use Stephen Toulmin’s terminology — to the category of warrants. Whatever the specific case, they have the capacity to function as premissae maiores in syllogisms whose premissae minores are occupied by factual evaluations. The conclusions of such syllogisms are claims—demands to conform to the power, authority, rights, or sovereignty of a particular people, under a particular set of circumstances.
3. Staging Demands, Performing Legitimacy: Catalan Secession as Lockean Exhaustion
But terms such as the right to self-determination, popular sovereignty, or constituent power, are more than warrants waiting to produce concrete claims on the basis of some factual grounds. From a more detached perspective—detached both from the perspectives of those who approach these terms from a scholarly standpoint, as well as those who invoke them on the ground earnestly—they reveal themselves as tools in a political struggle. Those who—like Carl Schmitt and Reinhart Koselleck, for example—would insist on the polemical character of all political concepts would likely meet this conclusion with a familiar ‘But, of course!’ What cannot be shrugged off, however, is the theatrical aspect of every polemical claim made in the name of a sovereign people. Put differently: Those who invoke the will of their people are not just participants in a political struggle, engaging in what Kenneth Burke called ‘symbolical action’. As they broadcast their popular demands, they are performers: actors on a stage, who follow a particular script of constitutional change.
Though followed faithfully, these scripts of constitutional change are almost never discussed openly. Those who preoccupy themselves with the meaning and implications of the right to self-determination, popular sovereignty, and constitutional authority as scholars either ignore them, or when acknowledging their prefigurative power indirectly, treat those who follow their stage-directions unfavourably: as dissimulators, or hypocrites, not as stage performers, who, in mounting a radical challenge to the constitutional status quo, have little choice but to enact the scene as called for in the script, more or less faithfully. Since it most memorably appears in John Locke’s Second Treatise, the most influential modern script of constitutional change is perhaps best called ‘Lockean’. Given the full extent of the assumptions about the nature of the consciousness of those who defy the authority of the extant constitutional order in the name of the people, its full title should perhaps read The Lockean script of exhaustion.
What Locke assumed, and what generations of constitutional revolutionaries—be they secessionists or not—on the basis of that assumption performed is the exhaustion with suffering as the most likely explanation for a decision by revolutionaries—citizens who otherwise suffer ‘many wrong and inconvenient laws… without mutiny or murmur’—to defy the authority of the established constitutional order. In the scene painted by Locke, a revolutionary break with constitutional status quo occurs only after ‘a long train of abuses, prevarications and artifices, all tending the same way, make the design visible to the people, and they cannot but feel what they lie under, and see whither they are going’. According to Locke, ‘the people’ will exercise its constituent power only in conformity with the following sequence, which starts with
(1*) Oppression: extended and documented
(2*) Suffering: patient and hopeful
(3*) Exhaustion: of patience and of hope
(4*) Revolution: as reasonable, and in consequence, legitimate, given (1)—(3)
The main protagonist in this script is neither the people as such, nor an objectively oppressed people, but rather an oppressed people led by reasonable revolutionaries. They are those who were: sober enough (to realize that the pace of change must be slow, because their interests must be reconciled with those of the defenders of the status quo); commendably charitable (towards the failures of human nature to respond to injustice swiftly), and, admirably hopeful about the capacity of those who perpetrate injustice to be persuaded to see the error of their ways, eventually. So when such revolutionaries say ‘Enough!’, they communicate not just the fact of widespread oppression, discrimination, or injustice, but also the fact that their capacity for suffering and hopefulness has been authentically depleted.
This, at least, is what they let be known to the world in the 1776 Declaration of Independence, which marked the dissolution of constitutional bonds between the British Empire and its thirteen American colonies. Echoing Locke, the Declaration starts from an assumption about the character of ‘mankind’—‘more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed’—which, as a second step, allowed them to portray what is today known as a Unilateral Declaration of Independence (UDI) as a justifiable remedy to the ‘long train of abuses and usurpations’, enacted only after their the British remained ‘deaf’ to their calls to respond to their ‘patient sufferance’.
Separated by more than two and a half centuries and the Atlantic Ocean, the same script of patient suffering seems to be determining the political strategy of contemporary Catalan performers. Though less judicious in enumerating individual grievances that Catalonia allegedly suffered under the Spanish constitutional framework, Catalan parliamentarians have made sure to invoke the same tropes (1*)—(4*) which made the American break with the British appear reasonable more than 260 years ago. Or, in the words of the ‘explanatory memorandum’ inscribed into the September 6 2017 Catalan Law on the Self-Determination Referendum:
The act of sovereignty entailed in the passing of this Law is the option necessary to be able to exercise the right of the Catalans to decide on the political future of Catalonia, particularly following the breaking of the Spanish constitutional pact of 1978 … by means of Ruling 31/2010 of Spain’s Constitutional Court. This Law represents the democratic response to the frustration created by the final attempt, advocated by a very broad majority of this Parliament, to guarantee for the people of Catalonia full recognition, representation and participation in the political, social, economic and cultural life of the Spanish state without any form of discrimination. In the previous process, every effort was made to find an agreed way for the people of Catalonia to freely decide upon its future. The Parliament, given the majority mandate from the people of Catalonia, assumes full sovereign representation of its citizens, after exhausting all forms of dialogue and negotiation with the Spanish State.
The farcical character of vital aspects of this narrative is easy to detect: whatever one might think about the egregiousness of the proximate causes of the American revolution, the British Empire was an actual empire, not a de facto republic like contemporary Spain. To claim that the people of Catalonia lacks ‘full recognition, representation and participation in the political, social, economic and cultural life of the Spanish state without any form of discrimination’ just because Catalan parliamentary majorities disliked the way in which the Spanish Constitutional Tribunal determined the extent of the conformity of the Catalan Statute with the Constitution of Spain, flies not only in the face of international legal norms on ‘internal’ self-determination, but also in the face of how most comparable constitutional democracies respond to the demands of ethno-cultural justice and minority nationalism. Likewise, one needn’t be a seasoned constitutional scholar to conclude that the Catalan Parliament’s portrayal of its decision to assume the role of ultimate constitutional authority as a remedy for the train of abuses which started with the Constitutional Tribunal’s ‘breaking’ of the 1978 ‘constitutional pact’ would only make sense if one were to accept that the Catalan parliament has always had an unqualified right to authoritatively determine the existence of such breaches in the first place.
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.