Rafael Domingo Osle, , Full Professor of the University of Navarra and Visiting Professor at Emory University
The Catalan decision
The author says that the enquiry of 9-N would only be legal if its goal was to know the opinion of the citizens. He argues that the only solution to secessionism is through a dialogue between Catalonia, the rest of Spain and Europe.
When it comes to making decisions, two main factors must be taken into account: who decides and what the decision is about. The intention with which the decision is made is part of the who; the circumstances, which are, by the way, quite decisive when it comes to deciding, are part of the what. The decision, by nature, is identified more with the content itself than with the deciding subject. Therefore, once the object is determined, the subject is fixed. Not the other way around. Thus, only after fixing the content of the Catalan question, can we deal with who decides about it.
There is a subject of decisions that, following the model of the conditions, the experts usually call potestative. These are decisions that depend exclusively on the will of a decision-making body. The decision maker is completely free to make the decision or not and in the way he wants because only he has complete and absolute control over the content of the decision. He is only required, as the case may be, to ensure that his decision is in accordance with the legal system. This freedom of decision is total when the object coincides with the subject. Isidro's decision to shave his head to zero to celebrate the Tenth is entirely up to him. His wife Lola may get angry, and may even decide to stop talking to him (also a potestative decision), but the fact that Lola is affected by the consequences of her husband's decision does not mean that Lola should intervene in the decision. Isidro could have given order committee to his wife, but the decision was well taken: it is hers, Isidro's, and hers alone. And the law has little to say about it.
Most of the decisions we make in our global and interdependent society are, on the other hand, mixed or shared, since they do not depend on a single decision-making body, but on several. Thus, Edurne's decision about the possibility of working as a lawyer in New York, Munich, Singapore or Buenos Aires is mixed or shared as it depends on her being offered a work space in each of these cities. This decision will only become optional once she has been accepted by the different firms in the four cities. Then, and only then, she will be able to decide with complete and total freedom.
The existence of potestative decisions allows us to feel truly free. And also powerful. The experience of being able to do something and to do it because one feels like it, as the only reason, is genuinely human.
For this reason, it is a frequent temptation of our species, especially of those most fond of power, to try to convert decisions that must be shared into decisions of their own accord. This has been, is and will continue to be one of the clearest manifestations of abuse of power in the history of mankind. Political and economic corruption has a lot to do with this.
Forgive me for this long introduction, but it is essential to understand my argument, which I hasten to tell: the serious error of pro-independence nationalism, in our case Catalan nationalism, is to try to convert, by all possible means, certain decisions of a mixed or shared nature into merely potestative decisions. And this constitutes an abuse of power, however much it may be politically disguised. For Catalan pro-independence supporters, the decision on Catalonia is exclusively a Catalan issue, even if it affects Spaniards, just as Isidro's decision to cut his hair to celebrate La Décima is exclusive to Isidro, whether he likes it or not and whether it affects his wife more or less. Independentism, like Isidro with his hair, identifies the subject and the object of the decision: the Catalan people and the Catalan territory. The two elements are inseparable. For this reason, in no way is it allowed that anyone outside the country tries to influence the decision: if Catalonia belongs to the Catalans, only the Catalans decide about Catalonia. It will be possible to listen, if it is the case, to the committee of a good friend, of an old partner, like Spain, or of a European expert, but this committee will never be binding, nor will the advisor become part of the decision-making body, for not being strictly Catalan. Is this really so? Should the Catalan question be decided by means of an elective decision? My opinion is clear and forceful: no. All decisions concerning the territory, the territory, the country and the region should be decided by means of an optional decision. All decisions concerning territory, in a globalized society such as ours, are, by their very nature, shared, not elective. Therefore, neither the Spanish people nor the Catalan people can decide unilaterally about Catalonia.
The independence argument is based on an analogy as old as it is false. Territory is considered to the political community what the body is to the human person: a constituent part. Without territory there is no political community, as without a human body there is no human person. Therefore, without Catalonia, there is no Catalan people, because Catalonia is the body of the Catalan political community. The starting point in all nationalism is the territory, not the people, although, at first sight, it may seem the opposite. Therefore, the decision for independence is first and foremost a territorial decision.
But let's go by parts. The Catalan people, like any other people, have the right to make decisions that are not only shared, but also elective. Therein lies precisely their self-government, their identity and even their right to self-determination, which is never absolute and exclusive. The Catalan people can decide on an optional basis on those issues over which they have complete and absolute power, as King Juan Carlos has had the power to abdicate or, in another order of things, the power of the Barca coach to move his bench in a soccer match. But not over the others. The decision of a popular enquiry , in this sense, can respond to the outline of a potestative decision, insofar as the content of the decision is to know the opinion of the Catalan people on a political aspect of collective interest. When, on the other hand, the enquiry becomes a political goal to decide the future of a people, as well as of its territory, things change. The Constitutional Court was right in its ruling on the enquiry when it did not consider the right to decide unconstitutional. It would have been the beginning of the end of democracy. Of course, everything has a limit.
The decision to create an independent Catalan State is not potestative, but shared because every territorial decision is by nature mixed. The reason is that there is no absolute ownership over the territory of a State. Therefore, there can only be a shared decision by all the affected communities. As I have repeated on other occasions, over the Earth, nor over part of it, there is sovereign and exclusive ownership, as modern international law has maintained for centuries, but a joint use, that is to say, a preferential right of use and enjoyment, and therefore differentiable, which in no way can be considered total or absolute. For this reason, neither can the territory of a political community be rightly identified analogically with a human body. The analogy may have its meaning, but it is of no use in this case, because just as the human body is not separable or differentiable from the person, the territory, on the other hand, is separable from its people. Using the analogy, it can be said that the body of a political community is its institutions, not its territory. The Catalan people is not Catalonia, as Isidro is its body, but the body of the Catalan people is, on the other hand, its institutions, which animate and vivify it.
This bodily doctrine, which is at the essence of all nationalism, has the danger of turning the territory into an excluding element with respect to the other political communities. According to it, all political communities are absolute, just as each person can only support a single body. As Spain and Catalonia are two peoples, Spain and Catalonia would need two distinct bodies. However, the territory of a State is not an excluding space, as is a human body, but a relational and shared one, in which a political community develops mainly by interacting with the others, which are also present and benefit from the territory. Any decision that affects the territory has to be shared, not optional. For this reason, the only solution to the Catalan question is open and sincere dialogue between all the communities affected. Catalonia has much to say. Spain, too. And Europe, quite a lot.