Maarten Colette is a research and teaching assistant at Vrije Universiteit Brussel and director of De Debatten.
A solitary popstar avant la lettre in Enlightenment Paris and the hero of civilized human liberty who drew his wisdom not from books but from life, mismapped as poisonous fountainhead of totalitarian democracy in our days, the Swiss philosopher Jean-Jacques Rousseau remains a site of controversy among believers and non-believers, and a real 21st century enigma.
In the rather ill-chosen rationalist approach to law and politics of the late Isaiah Berlin: for Rousseau ‘the whole idea of compromising liberty is unacceptable’. Therefore, one only begins to understand the nature of Rousseau’s quasi cosmological grounding of the law in human liberty itself, its motivational force, cardinal democratic potential and spectacular conceptual plot, by downgrading his oft-cited paradox of citizens who are ‘forced to be free’. For Rousseau, the presence in the modern state of citizens who have acquired name and fame through unlawful means marks the onset of inequality and a situation wherein some men (and, for that matter, women) will be dependent on others, rather than being embedded in reciprocal attachments.
In this context, Rousseau in The Social Contract (1762) produced a description of the danger majorities present to minorities in the state: ‘Force is a physical power, and I fail to see what moral effect it can have. To yield to force is an act of necessity, not of will – at the most, an act of prudence. In what sense can it be a duty?’ Unlike inclusive decision-making based on rationally perceived ends, the outcome of a force-based public discourse can only be that a minority will be bound, and fails to flesh out why and how they ought to be bound: ‘A brigand surprises me at the edge of a wood: must I not merely surrender my purse on compulsion but, even if I could withhold it, am I in conscience bound to give it up?’ (i.3)
To a considerable extent, Rousseau’s unfolding of the relationship between law and democracy is akin to the relationship between sovereignty and will, by virtue of defining law in terms of participatory democracy. This leads to a more general point looming large: the relationship between law and democracy ultimately depends on whether one normatively ascribes to a negative (freedom from interference or domination) or to a positive ideal (freedom to shape one’s life within the public sphere) of liberty. Strictly speaking, Rousseau’s original position is that law and democracy address two different questions: law throws light on the question of the object and circumstantial limits of sovereign power, while democracy exhausts the question of authorship and the source of authority that can legitimately underpin the force of law.
But Rousseau also to some degree pursues the reconstructive effort of moving beyond this dichotomy and the praxis of deconstructing law in terms of negativity, because it would prove that ancient conceptions of politics and law were not just blank pages in the history of humanity. One need only to think of (local) institutions of participatory democracy built on a foundation of liberal rights and respect for (the rule of) law, such as referendum processes.
From Paris to Barcelona
In modern Europe politics and law are thought to be the vehicles of bureaucratically organized state power that is vastly different from classical political theory and all its mumbo-jumbo. What is at stake here, in the words of the late Willem Witteveen, is the absenting oneself from ‘law as art’ and the upsurge of ‘usefulness’ and responsiveness to administrative outbalancing. I would suggest, then, that such approach is particularly evident in the unwillingness (incompetence?) of the Spanish government to engage with its erstwhile Catalan neighbours and friends, a reluctance that sits rather uncomfortably with current legal and factual dissonances within its territory. Indeed, it is worth recalling that it is doubtful that Spanish PM Mariano Rajoy considers that any such dissonance exists at all: to rescue Spanish territorial integrity from unilateral independence, Rajoy continues to charge the coercive power of the law and the state with preponderant weight. Given its short-term strategy, it is not surprising that the European Union would be an ally in this project of outlawing Catalonia.
It is therefore remarkable that in an open letter to Commission President Juncker and European Council President Tusk, signed by activists, writers and political philosophers such as Philip Pettit, Yanis Varoufakis, Seyla Benhabib and Antonio Negri, the question of violating fundamental rights and freedoms of Catalan citizens and the rule of law was the first to come up. Thus, while the actions of Spanish government were extremely effective in harassing basic rights and freedoms including the exercise of freedom of peaceful assembly and of speech, such actions cannot be justified as protecting the rule of law. The ease with which the Spanish government declared that ‘the law’ would be carried into effect in Catalonia can only point to rule by law, and cannot provide legitimacy to public authority in liberal democracies. Many observes of the ‘kangaroo referendum’ may as a result be suffering from a great disillusionment with ‘Madrid’.
How dead is Rousseau?
And yet the tragic Catalan episode provides Spain, and in its footsteps the European Union, with potentially transformative credentials insofar that recurring cries for political change and the vogue for secessionism in Europe continue to reveal contradictions of all sorts.
In the first place, it highlights that the project of reconciling law with democracy persists to this day. The events of October 1 and their aftermath have impelled observers to speak anew about such fundamental liberal principles as the universality of rights. Beyond this, however, we incur the risk of losing sight of the fact that liberalism itself cannot be wholly absolved from all the difficulties implied in the specifically modern distinction between law and democracy. While Rousseau’s unconventional ways to distinguish the one from the other may seem at first opaque to us, they raise the kind of awareness and questions for which authoritative public institutions must provide some answers.
In the second place, inasmuch as the time is ripe to recognize that deep cleavages continue to generate paralyzing uneasiness and that historical circumstances in Spain have changed to the degree that robbing Catalan citizens of their utopia may no longer be desirable, thinking about the creation of constitutional alternatives to unitarism (Spain) and to intergovernmentalism (Europe) might be the key to neutralizing citizen’s alienation from political life. Again, the eighteenth century adds crucial historical perspective to such tentative steps in this direction.
Third, the series of events in Spain and the unwelcome prospect of a catadios will in all likelihood motivate the search for a more adequate non-instrumental application of the values and principles enshrined in article 2 TEU. Here, the European bodies have work to do. It implies a perfectionist view of the EU that cannot just aim at processing its internal market, but one that would include giving stability and coherence to political issues and divisive flaws.
Rajoy and Juncker in need of liberal arts schooling?
So long as ‘Madrid’ has the last word in Catalan affairs, ‘Barcelona’ is likely to remain what it is at present. Many valid reasons may be suggested for Spain’s refusal to dialogue with Puigdemont and his Robin Hood justice, or with Catalonia on the topic of constitutional reform. Paying lip service to institutional frigidity, however, might turn out not to be the promised land after all, as Edmund Burke -Rousseau’s most conservative antipode- so eloquently explains: ‘A state without the means of some change is without the means of its conservation. Without such means it might even risk the loss of that part of the constitution which it wished the most religiously to preserve.’ As we noted, one answer to this challenge is to point out the crucial importance of EU value orientation and institutional design. At any event, further thinking and debate may shed a vivid light on all of these phenomena and transformations that have already been foreshadowed at the end of what is rightly called the Age of Rousseau.
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