Spain, Catalonia, and the Supposed Authority of the Judiciary
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Spain, Catalonia, and the Supposed Authority of the Judiciary on the Self-constitutive Moment in Adjudication Maurits Helmich 1 # The Author(s) 2020
Abstract
Normative literature on the Catalan crisis is largely occupied with the conflict’s central legalistic problem: can political units like Catalonia be allowed to split off from Spain unilaterally? This article reframes the issue and asks why secessionist Catalans should ever abide by Spanish legal constraints, given that Spanish law is precisely the institution they are politically trying to get rid of. It focuses on the anti-secessionist role played by the Spanish Constitutional Court between 2010 and 2017 and studies three arguments why Catalans supposedly have to accept the Court’s authority. The article contends that two arguments—the “mutual benefit argument” and the “law and democracy” argument—will not be independently persuasive to Catalan secessionists. Instead, the Constitutional Court’s authority must ultimately be grounded in a different type of argument: the “law and order argument.” Secessionist Catalans’ supposed duty to obey the orders of the Constitutional Court is ultimately not rooted in a positive service provided by the Court, but in the disruptive effects of disobeying. That exposes an explanatory defect in Joseph Raz’s influential theory of authority, which seeks to ground authority exercises in a concept in prior reason or their capacity to make our life better. That conceptualization misses the key decisionistic element to political authority: its capacity to constitute our reasons, that is, to define the terms that give meaning to our evaluations. Keywords Catalan crisis . Decisionism . Joseph Raz . Political authority . Secession . Service conception
* Maurits Helmich [email protected]
1
Erasmus School of Law, Rotterdam, Netherlands
Jus Cogens
1 Introduction Three years after Catalonia’s attempt to split from Spain in October 2017, political relations between separatist Catalans and unionist Spanish are still in a complete deadlock. Though most politicians and commentators think that the dispute should be peacefully resolved through dialogue in accordance with (Spanish) law, a crucial question has mostly been left unanswered. Why should secessionist Catalans ever care to show obedience towards Spanish constitutional-legal institutions, now that those are precisely what they are politically trying to get rid of? The controversy has especially re-erupted since October 14, 2019, when the Spanish Supreme Court convicted several Catalan leaders for their role in the 2017 independence movement. Despite human rights complaints raised by the Catalan Ombudsman,1 Amnesty International,2 the UN Working Group on Arbitrary Detention,3 and International Trial Watch,4 nine Catalan separatist leaders were convicted to 9 to 13 years in prison.5 Popular protests followed, with hundreds of thousands of people to gathering on the streets in Barcelona and other places demanding freedom for (what the secessionists see as) the political prisoners. A
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