Catalonia: on popular will, legitimacy and institutional change

We thank Judith Butler for allowing to post her comment, that is part of an ongoing exchange among social and political theorists sparked by Peter Wagner's letter from Catalunya.

(the editors)

4 October 2017,

Dear All,

I very much appreciate being part of a discussion from which I have learned a great deal. I have just a few brief points formulated at a great distance from the urgencies of the situation. The first is that whenever a territory decides to secede or claim independence, it is "illegitimate" in the sense that there is no legitimating procedure for such an action supplied by the state from which independence is sought.

Indeed, every revolution and independence movement at the moment that it decides and declares its independence is illegitimate within the legal terms established by the state. It nevertheless gains legitimacy, if and when it does, by representing a popular will or, indeed, by establishing a new government that gains the recognition of a plurality of governments whose power of recognition matters.

So though we can reasonably argue about whether the movement for Catalan independence represents the will of the people, we can hardly fault an independence movement for seeking to declare its independence, since that action is by definition "illegitimate" as it seeks to claim and cultivate new grounds for legitimation. A people falls outside the terms of one law in order to make another.

It is also difficult to adjudicate whether Catalan independence has the support of what we can call "the popular will" when the vote was suppressed and the voters harassed and injured at polling grounds. So if only 43% voted, and over 90% of those voting voted yes, we have a democratic deficit, to be sure, but what role did the Spanish police and guards have in making sure that the vote could not take place in a peaceful and orderly way?

Although I agree with Peter that democracy has to engage institutions, and not just slogans, I also want to re-state the obvious: institutions change historically, and even democratic institutions undergo historical change. What form democracy now takes will not necessarily replicate all the forms we know. They are not eternal. So we can agree that democracy must take institutional forms and also make room for the creation of new institutions.

Finally, I agree that not all nationalisms are the same, but what about the nation-state? They do tend to make distinctions between who does and does not belong and so rely on exclusionary measures to secure their aims. No nation-state takes form without deciding the terms of belonging and exclusion. About this we should all probably remain sober and awake.

Judith Butler

On 4 October 2017 at 16:30, Pau Sabaté wrote:

Dear all,

for reasons that Svjetlana explained very well (that is, practical involvement in the political situation rather than academical discussion about it) I'm joining the discussion quite late, when a lot of arguments have been made and a lot of very diverse issues have been pointed at. Therefore, it will be very difficult for me to expose my position in a coherent and concise way. Also, a lot of things have been taking place since the first message, so I will probably be answering some of the first arguments pointing at posterior facts, which is probably not the best procedure in such cases. In my defense, I will just say that, after the recent events, it is very difficult for me to place myself in the state of mind I was a week ago.

First of all, I would like to talk about the legality issue. In this matter, I subscribe what Judith Butler recently said. Any independence process breaks the former legitimity and, of course, the former legality. I would like, though, to take this matter a step further. This chain of emails was intended, if I understood it well, as a platform to discuss democracy. Well, maybe we should think for a second what kind of relationship democracy has, and has had, with legality. It has been asked not to use historical comparisons, and I agree to that, but I find it very difficult not to use historical examples. One that comes immediately to my mind is the arrogation of sovereignty made by the French Estates-General and its self proclamation as National Assembly in 1789. It was by all means illegal and it did not follow regular procedure in any possible way. To which extent the delegates of the Third State were representative of a majority of the population is also a matter open to discussion. Still, this illegal coup d'état is generally recognized as one of the most important landmarks in the history of modern democracy.

It is not necessary, however, to go that far in time and space: let's talk about the Spanish Constitution. It was approved by deputies of a wide range of political parties. To gain this approval, though, political parties had to be legalized and their members brought back from exile or clandestinity. The Catalan Generalitat had also to be recognized and legalized (maybe it is not out of place to remember that the Generalitat predates the Constitution and that its legitimity stems out directly from the 2nd Republic - it was restored, not created anew). Well, all these measures were absolutely illegal: they violated the Principios Fundamentales del Movimiento, which was the fundamental law of the fascist regime. The Spanish Constitution, in conclusion, ows its existence to a series of acts of illegality. I wonder if democracy has ever begun in accordance with former legalities and I strongly suspect that, given its own nature, such a case would be hardly possible. Democracy always starts as an illegality.

I talked about democracy "beginning" or "starting", and some of you probably would object that democracy is already the political system in Spain. I think the events of the last days call this into question. The independence of the Spanish judicial power is more doubtful than ever, and I think it is generally accepted, since Montesquieu, that this is one, if not the most important pillar of democracy. The mere existence of the Constitutional Court, whose members are elected by the executive power and by a majority of the legislative chambers (which is often, in a two-party country like Spain, not very differently coloured than the executive) is highly problematical in terms of the separation of powers, and its wide use as a mere extremity of the executive is a clear violation of this principle.

In addition to this, the police, as we saw on Sunday, is acting far beyond their own laws and regulations. Not only is the violence exerced that day out of any principle of proportionality, which alone is a blatant breaking of the law (not to speak about the sexual abuse denounced, which takes matters one step beyond in the degree of criminality), but also the overtly partisan stand of the policemen, that have shouted in repeated occasions various Spanish patriotic and nationalistic slogans, is a transgression of the very law that regulates the security forces and states that they must remain always neutral in facing conflicts between citizens.

The institutions that have to remain neutral, in conclusion, are, at present day Spain, extremely partisan (the last example is the King himself, who, as the Constitution states, has to act as a moderator between opposed parts) and fiercely opposed to one portion of the population. One of the basic principles of any justice is that the same person cannot be judge and part at the same time. Well, the way I see it, this basic principle is permanently ignored by the institutions of the Spanish State.

I would like to add, before definitely concluding this somehow disordered relation of facts, that the actuation of the police last Sunday was not just extremely brutal, disproportioned and partisan, but also not the actuation of a police. Some of you have talked about the behaviour of a riot police (in this case, by the way, it was used when there was no riot at all), but I think we saw quite another thing that day. The arbitrariness of their acts and their territorial spread rather show an employ of terror tactics. I don't see how else the charge of 70 "robocops" against a village of 200 inhabitants in the middle of nowhere, with no strategical significance, or the use of tear gas against families that were holding a popular lunch on the streets of another little village could be explained. The Spanish police, in my opinion, is acting as an occupation force against its own citizens, and Spain is acting as a terrorist State.

In face of all this, I think the real concern for democracy affects most seriously the Spanish, not the Catalan Government. Spain has already become an authoritarian régime and democracy is just apparent. Given this situation, I think we have to come back to the basic principles of democracy. When a régime has become authoritarian, it is one of the basic axioms of the democratic ideal that the people is not only legitimated, but has the duty to overthrow it. I think Spain has manifestly reached this point. The thing is, the majority of Spanish citizens don't seem to pay any attention to this civic duty and do nothing to put an end to this undemocratic régime. The only Spanish citizens that are reacting to this in significant numbers and threatening authoritarianism are those who live in Catalonia. Maybe we should ask ourselves if, leaving aside national or ethnical issues (ethnical issues are already quite left aside, by the way, by anyone excepting Spanish right-wing nationalists, who use it to fuel division inside Catalan society - Podemos tried it once also, but they rapidly dismissed this strategy, fortunately for them and for everyone else), the current situation in Catalonia could not be seen as the only real opportunity (beyond vague promises of a general turning over of the whole Spain which neither are new nor do they seem feasable in the next years) to overthrow a régime that has lost every trace of democratic principles.

As you can figure out, this is precisely what I think and what I am committed to. I think people who know me will agree that I'm not a right-wing neo-liberal kind of yuppy and that I'm not moved by hatred in politics, neither generally in life. In political matters, I consider myself a leftist, and I actively support left-wing independentist organizations like the CUP. Let's not forget that independentism for many years was almost exclusively reduced to these circles, and I think it maintains a significant amount of their ideology. Its adoption by the liberal right is very recent, and we should keep in mind that this same liberal right has lost a dramatical amount of votes since the spreading of independentism, whereas social-democrats and leftists (ERC and CUP) have grown very rapidly. As for the supposed "hatred" being fuelled by independentists, I will take the liberty of speaking about myself. As a translator I have dealt more than once with the Spanish language (which, as a "product" of the Catalan public educational system, I know perfectly although I'm not a native speaker), and I have translated poetry into it. I love it, as I love every language and culture in the world, as I still love, in spite of many things, humanity. But just because of this I take the stand I told you. It is not out of hatred, but out of dignity. There is no hostility to the Spanish people, but to the Spanish Government. I wish the time comes for the Spanish people to act as a free people and as conscious citizens of a democracy, but apparently this moment has not come yet. The general passivity outside Catalonia is quite an eloquent proof of that, I think. So, let's save what can be saved, or rather what nowadays deserves, by its own civic commitment, to be saved. If this triggers a wide reaction in Spain that leads to the restauration (or instauration, for the more skeptical as to the last 40 years) of democracy, I'm sure the Catalan people will stand brotherly in support of our Spanish fellows. But brotherly, as equals, not as a submitted people. Not as an occupied land in the hands of a terrorist State, which is what we are now.

To put an end to this message, I would like to thank you all, but specially Peter for beginning this very enriching discussion. Spaces for debate and divergence are always too few, but I don't see them threatened by anyone else than the Spanish authorities. Yesterday's demonstration, with people carrying Spanish flags embraced and applauded by people carrying Catalan independence flags (as well as Communist, Anarchist and all sorts of other emblems) and taking part in peaceful an also, I'm sure, enriching discussions with them, reassured me about that.

Best wishes to all of you,

Pau Sabaté

On 5 October 2017 at 13:28, Yannis Karagiannis wrote:

Dear Pau,

You say "not to speak about the sexual abuse denounced, which takes matters one step beyond in the degree of criminality". ... Frankly, I think you're winding yourself up. If unverified street-level accusations carry the weight of argument in serious debate, then we're lost. Not only that, but you're losing sight of the need for a control group: what did the Catalan police do reiteratedly against the social protesters of 2012-2014? Does the name Ester Quintana ring a bell? So, rather than winding yourself up against the Spanish, consider that police brutality has been, is, and will remain, roughly the same everywhere.

You also compare the current situation with the Constitution of 1978, focusing on the fact that both were illegal. Sure, but you are forgetting that the Constitution was (a) enacted against a totalitarian regime, not against one of the highest-ranking democracies in the world, and (b) massively supported by all Spaniards, including Catalans --- not just by about 48% of the population. It was a collective agreement to break the law, so to speak. And it's what this hyper-polarizing movement is not.

Last but not least, given that many of us are trying to put forward our left-wing credentials. Yet this is not about hating the right (in that case, people would just vote for the Catalan socialists thereby ousting the PP in Madrid), it is not about the redistribtion of wealth (if that were the case, those municipalities which stand to benefit the most from Catalan tax money staying in Catalonia would not be opposed to the referendum), and it's not about democratic or other about human rights (both sides have done tremendous things, and Catalan secessionists have even debated banning the Spanish language from official use in Catalonia).

This is about ethnicity, and this is why it worries some of us (count me among them) and it excites others.

Yannis

Acknowledgments

Cover photo: Alberto Estevez / EFE / ANP