Today is a historical day in many aspects. We will test (although a modified version of) the democratic peace theory. We will test if the EU really has values which shape politics, not that politics shape the values (or lead to temporary and changeable values). We will test the clash between legality and legitimacy. And we will see if a developed country can get into armed conflict (i.e. any sort of civil war or large-scale suppression as we see in Turkey, for example).
First let us look at the main hypocrisy. While supporting Kosovo in their declaration of independence from Serbia in 2008, today the big guy of the EU, Jean-Claude Juncker, said that the EU “doesn’t need any more cracks, more splits”1. Why did they support Kosovo, and why are they against Catalonia? In 2008, there was no immediate problem in Kosovo so that independence would be vital or highly necessary, as is not the case today (which is not to say that there was the prospect of a long-lasting peace in Kosovo, as there is not in Bosnia and Herzegovina today). Why having a “value” yesterday which is different than today?
Following Occam’s Razor and being parsimonious, my only inference is that the EU supported self-determination of Kosovo, and they did not need to worry as the problem was beyond the borders of the EU, although so close to it, because it is based on a value: the right to self-determination. Today we are against self-determination of Catalonia as it is an “interior problem” of the EU, and values are not so important when it comes down to politics.
Another hypocrisy is the main topic in this post, which is not limited to the current events in Catalonia. Spanish Constitutional Court ruled the referendum illegal, as they, highly likely, will rule the declaration of independence illegal too.
The Constitutional Court is one of the biggest gods in in modern pantheons which we call the state. Their verdicts are, at least theoretically, over any other verdict in the state within existing laws.
But, who gave the constitutional court those rights? Being a Turk, I do not remember signing anywhere and accepting the current (or the recently modified) constitution, so its verdicts. I do not remember signing anywhere to be a Turk in the first place, to accept the authority of the state over me.
At this point, some political scientists2 say that state is useful for the order and peace, so we better accept its authority. But how do we legitimize (i.e. make morally acceptable) its existence and laws?
Some big guy, John Rawls, provided one of the best answers to this question. He argued that a liberal state where the principle of equal liberty is at the core of the state and society formation is how we should start. If there is no equal liberty, then there is no justifiable state3. He, then, provides two more principles on how the economic distribution should be made, so that the state can be justifiable4.
But there still exists a problem which was presented almost a century ago by Carl Schmitt and still is on the table. In Legality and Legitimacy he argued that what is legitimate need not to become law, and laws are not so legitimate simply because they are laws5. So, he concludes, we need a presidential system in a pluralistic society so that we can act fast in times of turmoil6.
Do I agree with Schmitt? I partly do: laws are acceptable as long as they are legitimate. So I may rephrase the question: is the Spanish constitutional court’s verdict (ruling the referendum and the declaration of independence illegal) legitimate?
On the side of legality, there is no problem. There is the constitution, and the constitution gives the right to consider these illegal. But on the side of legitimacy, there are big problems.
First things first: no law is Godsend. No law is over legitimacy. In Turkey, for example, we have the anti-terror law, and its second article allows labeling and treating everyone as terrorists7. This is a law, but by no means defensible – unless you are Carl Schmitt or someone like him.
Today we, although arguably, defend self-determination. The steps of this argument is simple:
- No one can know what is better for me than me.
- (because of this or that reason) states are unavoidable.
- Then I should have my own state to pursue what is good for me.
Does it matter if a constitutional court rules against this simple argument? Well, in the real world, of course. However legitimate, because your claim is “unconstitutional” or “unlawful”, you can face even persecution. But in the world which we (at least in our discourse) try to reach, no. Of course in the ideal world there is rule of law. But in that ideal world, we do not accept the imposition of such arbitrary laws.
Therefore I can easily say that the verdict is legal, yet illegitimate.
What will happen now? I do not know. Catalonia does not have a military to defend its “borders”, and they are not internationally recognized (or do not seem to have that prospect) which seems to be one of the sources of legitimacy. So there is nothing to stop Spain if they would even “exterminate” Catalans. Would they? Of course not. But nationalism, and identity politics, starts once and never ends. As a result, I am not that optimistic about the forthcoming days. Although I do not expect armed conflict, mainly because of a) the lack of necessary means and b) lack of political motivation on the Catalan side, I expect three nasty outcomes for the EU:
- Euro would lose some value as Spain is likely to trigger Article 155. We will see what will happen by Saturday, 28 October.
- Both Spain and Catalonia will lose in all cases, sometimes the former more, sometimes the latter. As a result, the EU will lose its political credibility – at least for those that think on the issues of legitimacy, morality, ethics, and such.
- Belgium, the capital of the EU, will be affected from the outcomes. One reason of the decrease in democracy in Belgium is its Bosnia-like social and political structure. Besides, leaders like Orban or Szydło will try to weaken Brussels even more, although they benefit from the membership more than the Union itself.
Will the EU side for short-term political benefits over values, as they did and do in many instances8, or will they, as they do rarely and when there is a political benefit, side with the values? Let us see what the forthcoming days will bring.
- Taken from http://www.bbc.com/news/world-europe-41780116. All other recent quotations, if will be made and unless mentioned otherwise, will be from this page.
- I could not dare to say “we the political scientists”. When will I ever dare?
- Good enough? Well, I believe not. For equal liberty, we need to argue for equal dignity. In other words, dignity cannot be the result but it is the reason of all. But, well, for the sake of simplicity, I leave this discussion aside.
- Although the theory is about distributive justice, I tend to read it as a justification for the state. Please, if you do not know about Rawls’ theory, be aware that this is nothing more than an alternative reading of the text.
- Again, this is my reading of the text and not the main argument of Schmitt. If you are interested in the topic, I highly recommend this book.
- You can guess, I assume, that I am against this conclusion
- You can read a post by me, why are there so many terrorists in Turkey, related to this issue.
- The most important one for me being Koksal vs Turkey decision of ECHR where the court practically said “there is no law, but go and defend your rights within that lawlessness”.