Laws and legitimacy

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At the heart of events in Catalunya is a difference of opinion about the legitimacy of laws and constitutions.  The legitimacy of the position taken by the central authorities in Madrid stems from the Spanish constitution, which declares Spain to be an indissoluble whole, and the legitimacy of the position taken by the independentistas in Catalunya stems from the results of the last elections and a democratic vote in the Catalan parliament.  And from the perspective of outsiders, those supporting Madrid do so on the basis of upholding the law and territorial integrity of Spain, whilst those supporting the independentistas do so on the basis of both the democratic legitimacy of the Catalan parliament, and the wording of the UN charter, which guarantees the right of all peoples to self-government.

But one of the problems with the UN Charter is that whilst the wording is clear enough, the definition of ‘peoples’ is not; and a declaration of the rights of a ‘people’ to independence depends entirely on how we define a ‘people’ in the first place.  One of the disputes between the authorities in Madrid and those in Catalunya (and in other ‘regions’ of Spain, come to that) in recent years is whether Catalunya is a nation (as the Catalans would prefer) or a nationality (as Madrid insists, on the basis of the argument that Spain is one nation).  The implicit assumption behind that is that a ‘nation’ has rights which a ‘nationality’ does not.  Whilst the UK does not have the same debate about the precise wording, the same conflict exists under the surface, it’s just that ‘nations’ have different degrees of legitimacy.  So the UK Government is quite relaxed about using the same word (nation) to describe both Scotland and Wales on the one hand and the UK on the other, it is clear from their words and actions that they see them as two different kinds of ‘nation’. 

In both cases, the underlying question is about what a nation is and who defines it.  In the case of Spain, clearly the centre believes that it and it alone can define what is a nation, and that definition of nation can and should be imposed on all within its boundaries.  I suspect that there are some in the UK who would really like to be able to take a similar approach.  But nations are a human construct, and largely a subjective one at that.  People don’t consider themselves British or Spanish because the government insists that that is what they are; their self-identity is based on experience and history, and there are probably as many definitions of what it means to be Welsh, for instance, as there are people who claim to be Welsh.  And the same is true for any other identity.

The bigger question for me is why the question of identity or nationhood has any relevance at all here.  If the majority of the people in a particular country/region/area want to take control of their own affairs, why should it matter one iota whether they define themselves (or are defined by others) to be a ‘nation’ or a ‘people’ or not?  It seems to me that that is a wholly artificial barrier to the exercise of sovereignty by those to whom it belongs.  Ultimately, the right of any government to govern the people in the territory it delimits as belonging to it depends on the consent of those people; the right of the UK government to govern Wales, for example, cannot depend on the consent of those living in England, it can only depend on the consent of those living in Wales.  (And, by the same token, the right of the Welsh government to govern, say, Ynys Môn depends on the consent of the residents of that island – but that’s a subject for another post.)

And that goes to the heart of the current crisis in Catalunya.  Had the central authorities allowed the referendum to take place, and played a full part in it, putting their case before the people of Catalunya, opinion polls in advance suggested that there was at least a fighting chance that they would gain the continued consent of the Catalans, for a while at least – as happened in the Scottish referendum in 2014.  But effectively, they’ve simply declared that they don’t need that consent; they have the right to govern without it.  Ultimately, that is probably the best way to lose much of the consent which previously existed.  And it underlines that basic point that, in a debate of this kind, relying on a purely legalistic interpretation loses more hearts and minds that it wins.

Those who argue that law, and adherence to law, are a vital part of modern society are right in principle; but underpinning all law is legitimacy, a much vaguer concept, and that legitimacy always depends on the consent of the governed.  Failure to recognise that is a feature of dictatorship, not democracy.