- The referendum on independence is a move by the regional government of Catalonia. These regional governments were established by the Spanish constitution of 1978, which grants them wide powers and was ratified by a large majority of Catalans. That is, the infrastructure for organizing a local referendum on independence is itself a by-product of the Spanish constitution. That same constitution which makes any secession from the country illegal, as well as any referendum about such secession.
Historically, the Catalan nationalists have used the power granted to them by the constitution to take over the educational system and the local public media, so as to advance Catalan national sentiment and marginalize the Spanish culture and language.
Had they foreseen that some regional governments would use their constitutional extended local powers to gradually implement an unconstitutional secession, perhaps a majority of Spaniards would have rejected that constitution, and instead would have opted for a more centralized constitution, which would have made-it impossible ex-post for a regional government to implement a secessionist referendum, if only because there would not have been any such regional governments.
Or, foreseeing that the Catalan government would try to secede, the Madrid government might have imposed its own anti-constitutional preventive measures, such as a takeover of the Catalan public media and educational systems.
Furthermore, Catalans who oppose independence are put in a catch-22 situation with respect to the referendum. If they vote, they recognize that it is legitimate for the regional government to hold such a referendum, despite that it clearly is not, from the point of view of a believer in the Spanish constitution and an opponent to independence. If they do not vote, they make it more likely that the referendum is won by the independentists.
While the secessionist move is clearly illegal, a deeper question is: Is it legitimate?
Legitimacy is different from legality. Whenever a law or constitution is no longer viewed as legitimate, a crisis arises. For example, until fairly recently, the French civil code prescribed that women had to obey their husbands and could not vote. A philosophy textbook from the mid-1930s that I own, and which is not even remotely socialist or egalitarian, makes fun of the fact that Mrs. Curie cannot vote while any male drunkard can. This is evidence that such restrictions lost their legitimacy prior to being abolished.
The Spanish constitution, while legal, is not considered as legitimate by the partisans of Catalan independence. They would probably claim that they supported the 1978 constitution for lack of a better option, and that this in no ways ties their hands to abide by Spanish unity, a concept they entirely reject in the first place.
This brings the following question: What is legitimate? What is the source of legitimacy?
Modern nationalist movements arose in the mid nineteenth century after a wave of Napoleonic invasions overturned the universalist and cosmopolite ideals of the Enlightenment. Nationalistic political views rest on the idea that states and nations (or peoples) should be matched together. A people is a set of persons who share a common cultural heritage and/or common ethnic traits. German nationalism proposes that German people should all live in the same German state instead of being scattered between a multi-ethnic empire and a handful of semi-autonomous principalities. Slovakian nationalism proposes that the Slovaks be separated from the multi-ethnic Austro-Hungarian empire to create their own nation state. Sionism considers that the Jewish people are entitled to a state and to a territory.
Under this view, Catalan nationalism is legitimate because there is such a thing as the Catalan people, who therefore deserve a state and territory in the same fashion as Estonians or Uzbeks.
Yet by the same token any subset of people within an independent Catalonia, who consider themselves organically Spanish, or anything else, may, provided they control some constituencies, unilaterally secede from Catalonia. They could perhaps emulate the Bosnian Serbs and declare a Spanish republic of Catalonia, or emulate the Crimeans and declare they are part of Spain, with perhaps full support from the Madrid government.
An alternative foundation for legitimizing the Catalan independence movement would be “communautarianism”, or “collective libertarianism”, whatever we may want to call it — a doctrine by which any subset of people (regardless of historical and geographical considerations) may declare themselves a community and freely form a state of their own. Here the key issue is: How do we define what an acceptable such subset is, and by what collective decision process does it decide to become independent? Under this doctrine, the people under the jurisdiction of the Generalitat de Catalunya are no more an acceptable subset than the rich, Harry Potter fans, or people who wear blue glasses. Indeed a key selling point for independence is that through income taxes, Catalunya is subsidizing the rest of Spain. If that argument is valid, then it is legitimate for the rich to create their own community and secede from the poor.
The “comunidades autonomas” created by the Spanish constitution recognize regional identities on organic/historical bases (unlike French regions and departments that were drawn with a flavor of tabula rasa) and at the same time state the limited scope of those identities — i.e. they are not nationalities, just local particularities, and can in no way supersede the Spanish nation. But the Catalan nationalists seem to want to have it both ways. On the one hand they adhere to the Spanish geographical/historical definition of those comunidades while using it to promote their nationalistic agenda. On the other hand they resort to collective libertarianism when arguing that it is not acceptable for Catalonia to transfer money to the rest of Spain.
[NB: A key issue here is the huge mistake that Madrid made by granting full fiscal autonomy to Navarra and the Basque Country.]
- Another issue is the process by which decisions are made within the self-defined community. Majority voting, as opposed to unanimity, is surely illegitimate since opponents are held hostages by being constructed as a minority within a group which (in the absence of any historical legitimation) is artificially designed — for example if the entire “Paisos Catalans”, i.e. Catalunya plus Levant plus Balears plus Roussillon, had collectively voted over independence of the “Paisos Catalans” as a whole, it is likely that independence would have failed, for people in Valencia or Palma have little taste for it. Similarly, independence would have been rejected if the entire country had voted over it. And again, under this doctrine as well as under the organic nationalist doctrine, opponents to independence are perfectly entitled to decide that they want to secede from Catalonia and create their own country, or join Spain, or any other country they wish, subject to mutual consent.
Where does that leave us? A nation by consent is a theoretical fiction. Nations are a by-product of history. A nation is essentially a successful army. Through war, new nations emerge and old nations disappear. The catalan nationalists know that, and they also know that they were never very good militaries. But modern wars can be conducted through other means: money, lawsuits, news, culture, education… These are the weapons that the nationalists have used, and they got very far with them because it was such a taboo to retaliate by military means. Yet we have seen in Yugoslavia or Ukraine that taboos sometimes collapse.