Constitutional turmoil in Spain over Catalonia and in the United Kingdom over Brexit invites comparisons between their understandings of political order and the best vocabulary to describe it. Both states are going through a real-time experiment in change with wider lessons for the European Union.
The Spanish government cannot agree that Catalonia is entitled to decide whether to be an independent state. It refuses to recognise the recent referendum, saying it is not provided for in the 1978 constitution. It calls on the Catalan government to say whether it has declared independence. If so it will impose direct rule to counter disobedience and illegality and probably call fresh regional elections. It disregards Catalan calls for international mediation and unconditional negotiations, saying independence must be off the table.
This approach by the ruling Partido Popular expresses an intransigent Spanish unitary nationalism with clear echoes of the Francoist past. The party has support for its stand elsewhere in Spain. In 2006 it instigated a successful appeal to the constitutional court against a new statute of autonomy declaring Catalonia a nation and Spain a plurinational state. Scholars studying these issues reach for a new vocabulary to understand them. From Spain, and especially Catalonia, comes the idea of the plurinational state in which different nations and regions can coexist on the basis of shared norms and a common democracy.
It is widely assumed that most Catalans, if given the right to decide, would not choose independence but would settle for such an autonomy in a more federal Spain with a new budgetary agreement. The failure to offer them that option drives Catalans towards an independence most do not want from an intransigent Spain refusing them dialogue, respect and recognition.
Squaring that constitutional circle requires finding a way to reconcile a centralising and unitary assertion of sovereignty with demands for national autonomy. Spain is already well down that path but faces a real crisis in deciding whether to revise the 1978 constitution or possible disintegration.
Devolved
Similar dynamics are at play in the UK over Brexit. Demands in Scotland and Northern Ireland for a different relationship with the EU, reflecting already devolved competences, are rejected by a recentralising government in London expressing the English majority in favour of leaving and a reasserted parliamentary sovereignty.
Unlike Spain’s the UK’s political union is avowedly multinational. Devolution embedded in European law and EU membership since the 1990s is similarly asymmetric, with different powers available to Scotland, Northern Ireland and Wales. But each of them is now subject to centralised decisions on Brexit made in London, with unsatisfactory inputs to policy. Over it all looms the continuing drama of deep division over the direction of travel in the ruling Conservatives.
The Scottish referendum process was legally legitimate in a way the Catalan one was not, which mutes demands that it be reopened to deal with Brexit.
But the legal and constitutional aspects of disentangling from the EU, combined with a reassertive English Conservative nationalism comparable to the Castilian and other ones driving the Partido Popular, raise comparable prospects of disintegration in the UK.
Scotland’s experience of sharing and dividing sovereignty within the UK and lately with the EU has given it a rich tradition of legal philosophy, including legal pluralism dealing with coexisting but compatible systems of law.
Their associated idea of post-sovereignty examines how the traditionally separate and watertight state sovereignty of classical law is now dispersed in sub-national autonomies, supranational integration and global socio-economic flows so that it must be shared and divided rather than centralised again.
From the Northern Ireland peace process comes the idea of conflict-resolution through shared and optional political identities – being British or Irish or both.
From Canada and Quebec comes the idea of deep diversity championed by the philosopher Charles Taylor to discuss ethno-cultural distinctiveness and the politics of recognition required to tackle it.
Drawing on these ideas the Scottish political scientist Michael Keating has compared Spain, the UK, Canada and Belgium in his perceptive and original book Plurinational Democracy: Stateless Nations in a Post-Sovereignty Era. He is now working on how Brexit is affecting constitutional change in Britain and Ireland. He makes a convincing case that wider lessons can be drawn from these cases for the EU itself as a post-sovereign order in which legal pluralism and constitutional diversity can accommodate multiple nationality claims. That can help counter overblown claims from Eurosceptics and sovereigntists that a federal European superstate is the only alternative to national sovereignty.
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