Legal Unity as Political Unity? Carl Schmitt and Hugo Krabbe on the Catalonian Constitutional Crisis

• Author: Jeroen Kiewiet
• Position: Assistant Professor at Utrecht University, NL
• Pages: 56-72

Jeroen Kiewiet, ‘Legal Unity as Political Unity?’ (2018) 34(1)

Utrecht Journal of International and European Law pp. 56–72,

DOI: https://doi.org/10.5334/ujiel.453

UTRECHT JOURNAL OF

INTERN

ATIONAL AND EUROPEAN LA

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RESEARCH ARTICLE

Legal Unity as Political Unity?

Carl Schmitt and Hugo Krabbe on the Catalonian Constitutional Crisis

Jeroen Kiewiet*

This article offers an analysis of how theories on constitutional revision can help understand

crises that threaten legal unity. The Catalonian crisis represents the case study, and is discussed

from the perspective of constitutional theory. The article starts out from a conceptualisation of

‘legal unity’ as the organisational as well as political claim of constitutions to provide unity within

a certain legal order, which in the end comes close to the idea of a unified national state. The

article refers to the constitutional theories of Carl Schmitt and, the lesser-known Hugo Krabbe,

to help increase the understanding of constitutional change and, to connect these insights to

the Catalonian case. Schmitt’s claim is that constitutional law is indeterminate and thus in need

of the sovereign’s decision. In this analysis, it is made clear that Schmitt’s argumentative scheme

in which a distinction is made between friends and enemies in political conflict is unhelpful in

addressing the Spanish crisis. Indeed, Schmitt moves beyond descriptive and explanatory goals

to defend a normative rejection of liberal political decision-making. By contrast, Krabbe argues

for the determinacy of constitutional law. According to Krabbe, constitutional law is finally

embedded in ‘legal consciousness’, inherent to all human beings, and which can be determined

by majority

rule. Even if this answer may not be entirely convincing, it is maintained that this

theoretical perspective could nevertheless benefit cases such as the Catalonian constitutional

crisis, if as a consequence claims of both the Catalan as well as the Spanish sides based on the

idea of ultimate sovereignty over a demarcated territory were dropped.

Keywords: l

egal unity; political unity; constitutional amendment; revision; change; independence;

Catalonia; Spain; popular sovereignty; political decision; legal consciousness; Carl Schmitt;

Hugo Krabbe

I. Introduction. The Spanish Legal Unity at Crisis

Since September 2017 Spain has been in a state of constitutional crisis. On 6 September 2017, the Catalonian

Parliament approved the act, which would create an independent republic if a majority was reached in the

referendum vote.1 The approved act required no minimum turnout. After the Catalan government held

their own referendum on independence on 1 October, the Spanish Prime Minister, Mariano Rajoy, called the

regional election illegal. The Spanish government sent masked riot police to raid polling sites and confiscate

ballot boxes. On 27 October 2017, the secessionists declared independence in a secret ballot. Prime Minister

Rajoy invoked article 155 of the Spanish Constitution to dissolve the Catalan parliament after it voted to

declare Catalonia an independent republic.2 Once approved by the Senate, this provision gives Spain the

authority to conduct direct rule over Catalonia. The Prime Minister also removed the regional President,

Carles Puigdemont, and the Catalan government. The Spanish Attorney General pressed for charges of sedi-

tion, rebellion and embezzlement against Puigdemont and some members of his cabinet. Subsequently,

they decided to flee to Brussels (Belgium). Rajoy ordered a new election of the Catalonian Parliament on

21 December 2017. In this election, the pro-independence parties collectively won close to 48 per cent of

* Assistant Professor at Utrecht University, NL. Contact: j.kiewiet@uu.nl.

1 Law of 6 September 2017 on the Referendum on Self-determination

notes_context/Law-19_2017-on-the-Referendum-on-Self-determination.pdf> accessed 15 June 2018.

2 Shehab Khan, ‘Catalonia: Spanish Prime Minister Mariano Rajoy Approves Measures to Strip Region’s Autonomous Powers’ The

Independent (21 October 2017).

Kiewiet 57

the votes with a nearly 80 per cent turnout.3 This result allowed them to keep the absolute majority in the

Catalan Parliament and claim 70 out of 135 parliamentary seats. Rajoy’s Partido Popular won only one-fourth

of the seats. Commentators called the Catalan secession attempt Spain’s worst political crisis since democ-

racy was established following dictator Francisco Franco’s death in 1975.4 The Catalonian constitutional

crisis developed in a spectacular way, with the flight of members of the Catalonian government, under lead-

ership of Carles Puigdemont, into exile in Brussels.5 Eventually, following a visit to Finland, Puigdemont was

arrested in Germany after he crossed the Danish-German border.6

The Catalonian constitutional crisis is not just a threat to the political unity of the Spanish national state,

it also affects the European Union and some of its Member States, as the flight of Puigdemont with six of his

cabinet members to Belgium and his arrest in Germany made clear.7 Not only were Belgium and Germany

put into a difficult diplomatic position,8 but also it affected the European Commission, which was forced to

either accept or reject the Catalan claim of independence. The Commission decided to reject this claim.9 In

this article the Catalonian constitutional crisis is theoretically analysed as a threat to the legal unity of Spain.

There will be a special focus on examining the relationship between constitutional change and legal unity.

The Catalonian constitutional crisis is a recent example of an attempt of constitutional change and the

need for an adequate theory of constitutional revision in light of legal unity.10 Constitutional revision can be

viewed on different levels, starting with the amendment procedures, which are provided for in formal con-

stitutions. The exceptional fact of constitutional revision is that it is in fact, as Peter Suber called it, a ‘para-

dox of self-amendment’.11 From a hierarchical point of view, the formal constitution is the highest norm;

therefore, it must contain a revision provision, and the constitution-making power itself formulates these

amendment rules. In contrast to Acts of Parliament, many formal, written constitutions therefore contain

an amendment or revision procedure.12 A problem arises when there is, for instance in the Catalonian con-

stitutional crisis, a wish to change the constitution without using the amendment procedure. That problem

will be theoretically analysed in this article in light of the legal unity of Spain.

An important limitation of this article is that the Catalonian constitutional crisis will be discussed from

the point of view of a Dutch scholar who has no direct access to Spanish sources, and has to rely on Dutch,

English and German sources. Certain misrepresentations of what is at stake in the Catalonian constitu-

tional crisis therefore cannot completely be avoided. On the other hand, this ‘external’ perspective on the

Catalonian constitutional crisis could deliver a more distanced description and analysis of the current crisis.

Another limitation lies in the focus on a constitutional theoretical analysis of the Catalonian constitutional

crisis, which touches upon questions of political philosophy. This article, consequently, does not contain an

analysis from the perspective of international law and, from that perspective, the question of Catalonia’s

3 Ricard Gonzalez, ‘Catalonia’s Crisis Is Just Getting Started’ Foreign Policy (27 December 2017).

4 Sean Murray, ‘Explainer: What Now for Catalonia After the Separatists Secured Election Victory?’ The Journal (22 December 2017)

7/> accessed 4 April 2018.

5 This article refers to the ‘Catalonian constitutional crisis’, and not of the ‘Spanish constitutional crisis’. This is because speaking of

‘Catalonian’ clearly refers to the current crisis, and not some of the historical crises on the Iberian Peninsula. This choice of words

is explicitly not meant as a choice for one side in the crisis (‘Catalonian’ could be interpreted as an expression of the Madrilenian

side of the discussion). No side is chosen. The article is restricted to a description and analysis of a constitutional crisis from a

constitutional and theoretical point of view.

6 Philip Olterman, ‘German Prosecutors Ask Court to Extradite Carles Puigdemont to Spain’ The Guardian (3 April 2018)

www.theguardian.com/world/2018/apr/03/german-prosecutors-ask-court-to-permit-carles-puigdemont-extradition-to-spain>

accessed 4 April 2018.

7 Claudi Pérez & Reyes Rincón, ‘Supreme Court Rejects European Arrest Warrant Request for Puigdemont’ El País (23 January 2018)

516611004_920738.html> accessed 4 April 2018.

8 Ulrich Preuß provides an excellent analysis of the legal difficulties of executing the arrest warrant of Puigdemont and some of his

cabinet members. See Ulrich K. Preuß, ‘Kataloniens Kampf geht nicht um Freiheit, sondern um Identität’ Verfassungsblog (3 April

2018) accessed 8 May 2018.

9 Maïa de La Baume and David M. Herszenhorn, ‘Brussels Defends Use of ‘Proportionate Force’ in Catalonia’ Politico (4 October 2017)

accessed 4 April 2018.

10 Some excellent work on the theory of constitutional revision has been recently done by Richard Albert. Richard Albert, Xenophon

Contiades and Alkmene Fotiadou, The Foundations and Traditions of Constitutional Amendment (Hart Publishing 2017) and in the

Netherlands by Reyer Passchier. R. Passchier, Informal Constitutional Change. Constitutional Change Without Formal Constitutional

Amendment in Comparative Perspective (E.M. Meijers Instituut 2017).

11 Peter Suber, The Paradox of Self-Amendment. A Study of Logic, Law, Omnipotence, and Change (Lang 1990).

12 In some constitutional systems it is more appropriate to speak of ‘revision’ – in France ‘révision’ (Titre XVI: De la révision); in Dutch

‘herziening’ (Hoofdstuk 8: Herziening van de Grondwet);– and in other constitutions of ‘amendment’. I will use ‘revision’ and

‘amendment’ in this article more or less as synonyms, mostly using ‘amendment’ when focusing on the procedure and ‘revision’ for

the overall process.