Illegal but legitimate

As everyone knows, last Tuesday Spain’s ruling Partido Popular --which enjoys an outright majority in Madrid’s parliament-- rushed a new bill to reform the Spanish Constitutional Court so that this judicial institution may be allowed to fine and even suspend any civil servant or elected official who fails to comply with its rulings and resolutions. This initiative was deliberately devised to tackle a hypothetical scenario of a unilateral declaration of independence in Catalonia. By rushing the new legislation through parliament, the PP seeks to avoid having the Judicial Power, the Council of State and the Prosecution Council pronounce themselves on such a bill, as they would ordinarily do. Is this (ab)use of the law legitimate?

Let us not forget that nation-states, all nation-states today, are recognised internationally not because of a genuine rule of law or because they are democratic, fair or respectful of their people’s basic rights. Rather, they are recognised simply because they exist, because they have managed to impose --even by means of repression-- a political and legal order on a particular territory. In other words, their recognition does not stem from the rule of law, but from the rule of fact.

However, any state that wishes to ensure its continuity needs and aspires to a high degree of obedience and adherence by its population. Some states --the more authoritarian ones-- achieve this by means of coercion (this is what Joseph Nye calls hard power), whereas others --democracies, in particular-- aim to attain this by way of conviction (or soft power), or through a combination of both methods.

The path of coercion or use of force may guarantee obedience to the nation’s laws temporarily but it is exceedingly costly in the long run. Instead, the path of conviction aims to obtain adherence or acceptance from most of the population once it is clear that the nation’s laws are good, fair and they foster freedom, equality and welfare. This is why Spanish jurist Francisco Murillo stated that “a power is legitimate when it obtains obedience without having to resort to force”.

Therefore, when a nation-state garners broad popular support, we can say that it is legitimate. All states have and impose a legality, but not all of them enjoy the same legitimacy. Authoritarian governments often try to enshrine or absolutise the existing legality to pretend, as Hegel would say, that what is legal is (forever) legitimate. But, obviously, that is not so. As with trust, legitimacy is won but can also be lost. When the people become disenfranchised, outraged or restless, the state’s legitimacy decreases, too. For that reason, democratic states are particularly sensitive and alert when it comes to addressing the causes behind a loss of legitimacy. It is precisely this permanent tension between legality and legitimacy that allows democratic nations where the law rules to fine-tune, evolve and improve the social contract and the laws established with its citizens to make them fairer. Otherwise, why would anyone agree to allow themselves to be dominated, if the legality were seen as unfair or harmful or based on oppression and exploitation? In his very own jargon, Max Weber made the point like this: “The legitimacy of an order of domination is measured by the belief in its legitimacy by those who are subjected to said domination”.

The question is, what happens when a relevant section of those subjects ceases to believe or to regard the domination as legitimate, and the democratic State not only does not choose to improve the law but it actually makes it tougher on those citizens? Should the existing legality prevail, even if it has clearly lost its legitimacy, or have the people got a right to disobey it? In my view, when someone breaks the law, they are committing an offence, but when that law is aimed at a specific and significant section of the population, it is not a legitimate law. We are not talking about a law that conflicts with the people’s aspirations (that is rather common), but a law that is sometimes truly opposed to their lives, their livelihood and their welfare. When a single individual strays from the law, we need to think about the offence. When millions of people do, we need to rethink the law.

In advanced democracies, legitimacy is based on legality being the expression of the people’s will. For that reason, legality is never enshrined, absolutised or turned into a dogma in democratic systems based on popular sovereignty. Rather, it remains open to change through the constant exercise of criticism. Incidentally, it is not just me who says so: jurist Elías Díaz said that much, too, in the early 1980s when he referred to the contribution that Spain’s socialists could make to the improvement of the rule of law. I wonder what someone like Felipe González might make of it today.

When the state is endowed with legitimacy, there can be ethical grounds for obeying the Law. Yet when the State loses its legitimacy --because the Law means denying individual, social or national liberties-- there are also ethical grounds to shun the obligation to obey, or even for disobedience. In my opinion, this is part of the institutional drama that Spain and Catalonia are experiencing at present. The Spanish government continues to defend the ultimate, unquestionable validity of the existing laws, often with a restrictive or backward interpretation. At least since the Constitutional Court’s ruling in July 2010, the Catalan government and the pro-independence movement have noticed a drift from the pact originally signed in the 1978 Spanish Constitution and have argued for a new legitimacy, expressed in the Catalan parliament, so that their voice may be heard in a vote on whether the political pact with Spain must continue or not. While allowing Catalans to choose --publicly and democratically-- what they wish to be as citizens with full rights today seems illegal, it is something that many regard as legitimate. The outcome of the plebiscite-like vote on September 27 will allow us to clearly picture how many Catalans truly favour the new legitimacy. Hence its importance and exceptional nature.

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