[Editor’s Note: I-CONnect is pleased to feature a five-day symposium on today’s independence vote in Catalonia. We are grateful to our convener, Professor Zoran Oklopcic, for assembling an outstanding group of scholars to bring our readers helpful context and analysis during this important moment for the region. Oklopcic is a constitutional and political theorist with specializations in constituent power, republicanism, secession, popular sovereignty and the (de)construction of boundaries in public law. His book Beyond the People: A Constitutional Theory of Deep Territorial Pluralism is forthcoming with Oxford University Press. –Richard Albert]
—Zoran Oklopcic, Department of Law and Legal Studies, Carleton University, Ottawa
Today is October 1, and Catalans vote on their independence from Spain. Regrettably, the fears of many seem to be coming true. Instead of a carnival of democracy, or a tense stand-off between protesters and police, we are witnessing scenes of police repression on the streets of Barcelona. Even among those who follow the constitutional conflict between Madrid and Barcelona more closely, this is a remarkable turn of events.
What many have considered to be an elaborate, yet increasingly farcical game of chicken, whose true objective was never the independence of Catalonia but rather the best institutional and financial deal given the circumstances, has turned out to be a veritable standoff between irreconcilable constitutional visions.
However it ends, it already presents a watershed moment between two constitutional eras: one which began in 1978 with the transformation of Spain into what became known as El Estado de las Autonomías, and one whose birth—for better or worse—we seem to be witnessing today on the streets of Barcelona. However this conflict ends constitutionally—with Spain reconstituted as a further decentralized quasi-federal state, or Spain reconstituted as a proper multinational federation, or Catalonia as a sovereign state separate from Spain—the dramatic images of confrontation in Barcelona are more than just deeply disconcerting. For many who approach the conflict in Catalonia as constitutional scholars they will also be politically surprising, personally disappointing, perhaps even professionally disorienting.
Having quietly presumed that a conflict such as this could never happen in a relationship between two democratically legitimate levels of government within an equally legitimate liberal-democratic polity, constitutional scholars—from theorists and comparative constitutional lawyers to comparative political scientists—now confront issues which earlier bids for independence elsewhere—in Canada and in Britain in particular—simply didn’t seem relevant or interesting. Unbound by textual limitations and unburdened by the weighty tradition of popular sovereignty, the pragmatic attitude of the governments of both countries towards the secessionist aspirations of Quebec and Scotland never gave rise to institutional and ethical questions which the attitude of the present Spanish government towards the independence of Catalonia suddenly makes not only intriguing, conceptually, but also urgent, politically.
Having taken Canada (and Britain) as an inspiring example of how to respond to secessionist aspirations, constitutional scholars have never been forced to confront these questions as a matter of principle:
Should a liberal-democratic state be responsive to demands for secession, irrespective of the text of the constitution or the jurisprudence of the courts? If not, why not? Is there anything in the ideals of constitutionalism, beyond suppressed prudential anxieties, that would speak against treating such responsiveness as a supra-constitutional principle? If not, what is the meaning of this responsiveness? Is it to simply tolerate, but otherwise ignore an unconstitutional referendum? Or, does it mandate institutions to take notice of it, and commit to open-ended negotiations? Or, does it mandate the office holders to not only enter negotiations over secession, but also towards the satisfaction of secessionist demands? If so, how is such responsiveness related conceptually and normatively to the ideals of democratic self-government, consent of the governed, affected interests, and popular sovereignty?
Though seemingly only normative and theoretical, these questions call for multidimensional answers, and inter- and intra-disciplinary debates, which—especially in the context of dramatic crises such as this one—ought not to proceed without the perspectives of those on the ground.
In keeping with this aspiration, our symposium on the constitutional aspects of the Catalan independence referendum begins with the contributions of two eminent constitutional scholars from the region: Antoni Abat Ninet (University of Copenhagen Faculty of Law) and Victor Ferreres Comella (University of Pompeu Fabra Department of Law) whose contributions from Barcelona (on October 2 and October 3 respectively) offer different, but equally competent scholarly perspectives on the clash of the Catalan and the Spanish constitutional visions.
On October 4, their takes on the crisis will be followed by the perspective of Stephen Tierney (University of Edinburgh School of Law) perhaps the most influential voice in constitutional debates about the democratic legitimacy of sovereignty referendums.
The ‘official’ part of the symposium closes on October 5 with my contribution, as someone who has had the privilege and the pleasure to convene this symposium, but also—I am quick to admit—whose own position is informed by the personal experience of deja vu—a disturbingly familiar feeling of witnessing, this time at a distance, the dubious effects of the Janus-faced imaginary of popular sovereignty in action: giving energy and enthusiasm to those who invoke the sovereignty of their people, while at the same time depleting whatever reserves of empathy they might have otherwise had for those who invoke the sovereign authority of their own. If only those who now confront a choice of whether or not to escalate this conflict further could be made to reflect on that simple fact.
Suggested Citation: Zoran Oklopcic, Introduction to I-CONnect Symposium: The Independence Vote in Catalonia, Int’l J. Const. L. Blog, Oct. 1, 2017, at: http://www.iconnectblog.com/2017/10/introduction-to-i-connect-symposium-independence-vote-in-catalonia