10/07/2013
Tenured Lecturer of Philosophy of Law at the University of Granada
In September 2002, regional Premier Ibarretxe delivered a speech in the regional parliament in which he defended the right to decide of the Basque people. Since then, we have sunk even deeper in the legal and political crisis opened by this claim. Eleven years later, in January 2013, the Catalan Parliament passed a declaration of sovereignty in which the right to decide was also held, in this case of the Catalan people. What is happening to us is similar to the scuba diver that goes into the depths of the sea and, upon losing orientation, goes deeper and deeper toward the bottom in the belief that he is actually emerging to the surface. We are completely clueless, deep in a sea of problems. To leave them and emerge to the surface we need some clear ideas with which to face the conceptual confusion which currently leads our political life.
I'll give a couple of examples of such confusion. They defend the right of a people to decide based on their democratic legitimacy, because getting people to decide is what's democratic, therefore such a right is but an expression of the will of the people. It's not the right to decide what's actually being defended, but the power to decide. The will of the people is justified because it is a democratic will, but that argument is tautological because saying that the will of the people is democratic is not saying anything new, only that the will of the people is the will of the people. A second confusion is added to this way of arguing, this one considers that the right cannot drown that will but only provide a channel for it, so the right is conceived as entirely subject to the will of the people. This approach involves three problems: first, what act makes people a people? Second, the will of the people is based upon what? And third, does the right depend on the will of the people or rather does that will only acquire reality through the right?
I will answer briefly. A people as such becomes a collective political body by the act of association, by the contract or, we might say, by the Constitution. In our case, the 1978 Constitution establishes a people as the sovereign people, that is, the Spanish people on which sovereignty resides, but not outside the Constitution, but subject to it. This is the reason why the instituted political body always has to act within the limits set by the Rule of Law.
A people is not founded as a moral body in an arbitrary fashion, but must do so on a reasoned basis as there are reasons that justify each of us being subject to the direction of the general will. Such institutionalisation would only be legitimate if three conditions are met: the protection of life and possessions, the consecration of regulations autonomy and eventually, the transformation of our capability for freedom into political freedom.
Finally, if you defend that the right depends on the will of a people conceived in natural terms, as the right to decide is understood, it could not be argued, in turn, that a scrupulous respect for the Rule of Law is observed, as such respect can only happen if the right is not subject to any will. The right has to be understood as the means by which the popular will can be exercised, therefore it is, at the same time, limited by it.
The conclusion seems obvious. There is no right to decide outside the provisions of the Rule of Law, although the power to decide may exist. Let's hope these differences are not elucidated in the field in which naked power solves them.