Appeals to democracy have been used and misused by both sides in the dispute over Catalonia’s referendum. For many (but not everyone) in Catalonia, the vote represents a heartening example of popular democracy against an intransigent and high-handed state. In Madrid and other EU capitals, the threat of Catalonia unilaterally declaring independence is an affront to the union’s basic democratic laws.
This division captures an emerging tension across Europe between different understandings of democracy. One concept stresses the rule of law; the other emphasizes the importance of active citizen participation. Both are necessary for good quality democracy, but at times there can be tension between the two. Many of the EU’s problems today stem from exactly this tension. In this sense, events in Catalonia are the result not only of the complexity of internal Spanish politics, but also reflect a more structural problem with the way that European democracy is evolving.
The EU clearly prioritizes the rule of law over participative democracy. The union ostensibly aspires to transcend traditional concepts of national sovereignty, yet it is a club of national governments. This helps account for the EU’s tepid response to the brutality of the Spanish police during the events of October 1. In pointing to the unconstitutional nature of the Catalan referendum, the Spanish and other EU governments have legality on their side. But just when leaders are searching for ways of relegitimizing the EU in the eyes of its jaded citizens, the EU’s apparent ambivalence over the violence can only add to popular disappointment with the union.
Rule of law is not simply about obeying rules. The democratic rule of law is also a matter of how rules are made, how judiciaries are held accountable, and how norms and values gain legitimacy. During the last decade of crisis, the EU and national leaders have tended too far toward a minimalistic definition of the rule of law: rules are sacrosanct and must be obeyed.
For example, think of how economic rules were enforced in relation to Greece and other debtor states expressly against the dynamics of democratic accountability. Indeed, Spain’s potential fragmentation is, at least in part, the legacy of how the eurozone crisis was mismanaged—to the extent that disputes over austerity added fuel to the secessionist fire. Ironically, as EU leaders now meet and declare that crisis over, one key member state is struggling to hold itself together at least in some measure due to the tensions unleashed by it.
If citizens do not have the ability to influence rules and ensure their fair and equal application, there cannot be a fully democratic notion of “rule of law”—the risk is that the latter is no longer legality in the service of democratic rule, but rather cloak for a narrowed understanding of political legitimacy.
On such questions, member states can be shockingly hypocritical. The Spanish government now calls for a strict application of the rule of law. Yet in recent years it has itself been criticized by the Council of Europe for undermining the rule of law through its political control over the judiciary. Madrid called for flexibility in EU rules when it wanted to overrun its deficit, but now insists there can be no flexibility in the application of formal rules when it comes to its own aims to prevent Catalan independence.
It is important not to idealize the Catalan vote. This was not a purely instinctive, bottom-up exercise in people-led democracy. Abrogating parliamentary process, the referendum was stirred up by local leaders—by a part of the political class in Catalonia that has been as feckless, corrupt, and intolerant as its counterpart in Madrid. Yet, there is also an element of community-centered mobilization that has made Barcelona a vibrant hub of democratic innovation in recent years. The warm cooperation and experience-sharing between local democracy innovators in Madrid and Barcelona—with both cities admirably in the lead of a global redesign in community-level participation—stands in stark contrast to the vitriolic insults thrown by both sets of “national” politicians.
Crucially, this is part of a wider trend that is also happening in other EU countries. The desire of citizens to bring democratic accountability back down to local or community level is routinely belittled. Analysts commonly hold it to be synonymous with nationalism, nativism, or populism. But this is a dangerous simplification that misses the many benign elements of such burgeoning local politics.
The point is that the EU does not have a balanced approach to these different elements of democracy, underplaying the importance of local participation. Benign democratic process unequivocally requires a rule of law, but other elements are of equal importance.
This represents a policy challenge in Spain and other EU states. While echoing the Spanish government’s appeal to the rule of law, the Commission has taken a long time to even move into first gear in defending the same principles where these are threatened by governments in Poland and Hungary. Moreover, in these countries many citizens complain that the EU often rides roughshod over local views and concerns. In such instances, rule of law without its democratic handmaiden is a recipe for further popular discontent.
As the current Catalan crisis stems from a failure of moderate political leadership in both Madrid and Barcelona, any outside involvement must proceed from a fully balanced understanding of democratic rights. Levels of mutual hostility between Catalonia and the rest of Spain are running high, and both sides react with aggressive vehemence against the opinion of foreigners that they believe to be too favorable to the other side.
The EU is now running to catch up with events. As in many other instances, in Catalonia the EU has been slow to react and failed to preempt a very predictable crisis. While European politicians are just now switching on to the Catalan issue, this is a crisis that has been brewing for at least two years; it was clear many, many months ago that the referendum would be a crunch point.
More or less everyone is now rightly calling for dialogue. But by this stage, the EU should be able to offer something more concrete than simply saying that it would be good for the two sides to talk. Substantive ideas are needed for what a solution might look like. Although the Partido Popular (PP) government is rejecting EU mediation, the union should be contributing ideas for innovative governance models. Talk of federalizing the 1978 constitution has been around for a long time; yet after the events of last weekend it may now be difficult to enthuse many Catalans with traditional formalized versions of federalism alone. Rather, fresh proposals may be needed around embryonic notions of democratically participative confederalism.
Madrid, backed by EU governments, will win on legality and if the crisis comes down to a strength of force. But each heavy-handed move the government has made against Catalonia since the referendum will surely sharpen the challenge of winning consent for a renewed and positive Spanish “state” project.
The essential point is that forms of new politics are needed for Catalonia but also more widely across the EU—not to subvert but to accompany and oxygenate the rule of law. If the EU doesn’t mold a more rounded and proactive position on Spain’s impasse, and more carefully define balanced rules for defending democracy within Europe, Catalonia will not be the last crisis that it passively watches spiral out of control.