by Boaventura de Sousa Santos / Critical Legal Thinking, 28 September 2017
The Catalonia referendum this Sunday will become part of the history
of Europe, possibly for the worst of reasons. I will not discuss here the
substantive questions, which can be interpreted as being historical,
territorial, respecting internal colonialism or self-determination. These are
the most important questions, without which it is impossible to understand
the current situation. My opinion on them is unassuming. Actually, many
will consider my opinion irrelevant for, being Portuguese, I do tend to feel
particularly solidary with Catalonia. In the same year that Portugal got rid of
the Phillipes (1640) Catalonia failed the same objective. Of course, Portugal
was a very different case, being a country that had been independent for more
than four centuries and ruling an empire spread out through every continent.
Nonetheless, the objectives had some affinity, Portugal’s success and
Catalonia’s failure being more related than it may at first seem. Perhaps we
should remember that the Spanish crown only acknowledged the “unilateral
declaration of independence” of Portugal twenty-six years later.
The truth is, however, that even if these are indeed the most important
questions, unfortunately they are not the most urgent ones at the moment.
The most urgent questions have to do with legality and democracy. I engage
with them here because they concern all democrats in Europe and the world.
As decreed, the referendum is illegal in the light of the Constitution of the
Spanish State. As such, in a democracy it can have no juridical effect. In and
of itself, it cannot have the effect that is its direct objective, i.e. to decide
whether the future of Catalonia is within or outside Spain. The party
Podemos is right in asserting that “a unilateral declaration of independence
is not to be accepted.” But the complexity emerges when the relation between the juridical and the political is reduced to the previous
interpretation. In the capitalist and asymmetrical societies in which we live
there is always more than one reading of the relations between the juridical
and the political. What is different about such readings is what distinguishes
a Left from a Right position regarding a unilateral declaration of
independence. A Left position on the relations between the juridical and the
political would be grounded on the following assumptions.
First, the relationship between law and democracy is dialectical and
not mechanical. Much of what we consider democratic legality in a given
historical moment started as illegality, as an aspiration to a better and broader
democracy. It is therefore imperative to evaluate the political processes in
terms of their overall historical dynamics. In no case can they be reduced to
conformity with the laws of the day.
Second, the rightist governments, above all those led by the neoliberal
Right, have no democratic legitimacy when they declare themselves as strict
defenders of legality because their practices consist in often systematic
violations of the law. I am not solely referring to endemic corruption. I am
referring, in the case of Spain, to the violations of the law of memory
(referring to the crimes committed by the Franco dictatorship), to the
recurrent violation of the statutory regions’ autonomy concerning financial
transfers, for instance, to the violation of constitutional guarantees such as
the right to decent housing or to the implementation of repressive measures
of exception without the constitutional declaration of the state of exception.
The Left must be careful enough to show no complicity with this conception
of legality.
Third, civil and political disobedience is an inalienable patrimony of
the Left. Without it, for example, the movement of the Indignados and the
public turmoil it provoked a few years ago would not have been possible.
From a Left perspective, civil and political disobedience must also be
conceived of in dialectical terms, not in terms of what it means under today’s
legal frameworks, but rather in terms of what it means as an aspiration of a
better future. This evaluation has to be made not only by those who disobey
(and who usually pay a dear price for it) but also by those who can benefit
from such an act in the future. In other words, the question to be asked is the
following one: can it be hoped that the dynamics of disobedience will lead
to an overall more inclusive and more democratic political community in its
totality?
Fourth, the Catalonia referendum represents an act of civil and
political disobedience and, as such, it cannot produce directly the political
results it intends. Which is not to say that it cannot have other legitimate
political results. It may well be the conditio sine qua non to reach in the future
the intended objectives after the necessary political and legal mediations
have been put in place. The Indignados movement was unable to fulfil its
objectives of “real democracy now!,” but there is no doubt that, thanks to it,
Spain is today a more democratic country. The emergence of the Left party
Podemos and many other Left autonomic parties in the regions, as well as
the Mareas (citizens’ movements) are, among others, the proof of this.
Given the aforementioned assumptions, a Left position regarding the
Catalonia referendum could present itself as follows. First, stating
unequivocally that the referendum is illegal and cannot yield the effect it
intends (such statement was made). Second, stating that being illegal does
not prevent the referendum from being a legitimate act of civil disobedience
and that, even without juridical effects, Catalonians have every right to
demonstrate freely in the referendum. Moreover it is a political democratic
action of great importance in the current circumstances (such statement was omitted). This latter statement is what would distinguish a Left from a Right
position, with the following implications.
The Left would denounce the government before the European
institutions and sue it judicially in the European courts for violating the
Constitution by applying measures of the state of exception without formally
declaring it. The Left knows that the complicity of Brussels with the central
government is solely due to the fact that the Spanish government is ruled by
the neoliberal Right. It also knows that simply to uphold the law is moralistic
and useless, since, as I mentioned above, the neoliberal Right only respects
the law (and democracy) when it serves its interests. The Left would get
organized to travel en masse from the different regions of Spain to Catalonia
this Sunday in order to support, with their presence, the Catalonians’ right
peacefully to exert their referendum, as well as to be actual witnesses to
eventual repressive violence on the part of the Spanish government. It would
request the solidarity of all European Left parties and organizations by
inviting them to come to Barcelona and be informal observers of the
referendum and of repressive violence, should it occur. The Left would thus
demonstrate peacefully and, I would emphasize, like true Indignados, for the
right of the Catalonians to a peaceful and democratic public gesture. It would
document in detail all the illegalities by repressive forces and sue the
prevaricators in court. If the referendum were to be violently prevented, it
would be clear that it had happened with no complicity on the part of the
Left.
The day after the referendum, with no juridical effect and whatever
the result, the Left would be in a privileged position to play a unique role in
the ensuing political discussion. Independence? More autonomy? A
Plurinational Federal State? A Free Associated State as distinct from the
caricature that Puerto Rico is? Every position would be on the table and
Catalonians would know that they would not need the local forces on the
Right, which historically have always colluded with the Spanish government
against the popular classes of Catalonia, to make prevail the position that the
majority deemed better. That is to say, Catalonians, Europeans and
democrats worldwide would learn about a new possibility of being Left in a
plurinational democratic society. It would be a contribution of the peoples
and nations of Spain to democratizing democracy in the whole world.
