The UK government agrees with the Rajoy administration, that it is right to defend "the rule of law". The FT's view, predictably enough, is that Rajoy has "the right, indeed the absolute duty, to uphold the law". This, broadly, seems to be the response of most EU leaders. The European Commission has concurred that the referendum was "not legal" and a matter for the Spanish authorities. This leaves the pro-European Catalan leadership looking a little exasperated and perplexed with the EU's stance, and trying to articulate its own claims on the rule of law.
What are we talking about here? What is this "rule of law"? Take a look at Rajoy's jittery self-justification, wherein he conflates the 'rule of law' with democracy:
“Today there has not been a self-determination referendum in Catalonia. The rule of law remains in force with all its strength. We are the government of Spain and I am the head of the government of Spain and I accepted my responsibility.
“We have done what was required of us. We have acted, as I have said from the beginning, according to the law and only according to the law. And we have shown that our democratic state has the resources to defend itself from an attack as serious as the one that was perpetrated with this illegal referendum. Today, democracy has prevailed because we have obeyed the constitution.”
I think this is a very telling response in a number of ways.
The 'rule of law' is, of course, not democracy. Democracy is the rule of the people; the rule of law is the rule of the courts and their retained enforcers. The rule of law is a constraint on democracy. It is by no means incidental that the neoliberal reaction to mass democracy and welfare capitalism was, in part, to argue for the restoration of the rule of law. The role of supreme courts and constitutional courts is to limit what representative institutions may do. That is what the Spanish constitutional court did, by declaring the Catalan independence referendum out of bounds. Unsurprisingly, the legal norm of territorial sovereignty generally acts as an absolute limit on democracy. So, when the Spanish authorities characterise the referendum as an attack on the rule of law, they're describing a particular manifestation of a general conflict between law and democracy.
Second, the 'rule of law' is a misleading phrase, or rather one that requires a bit of unpacking. Of course, the basic idea sounds wonderful: we are all subject to the same rules, and no one is above the law. But laws are generally speaking open to interpretation. That is why there is such a thing as jurisprudence. That is why there are lawyers and judges. If the law spoke for itself, and with only one voice, courts would be superfluous: you could leave it to a computer. And there is nothing intrinsic to the law that settles it final meaning. (On why that is, you should see one of the more recondite Miévillean texts). So, for the rule of law to be meaningful, someone has to put a stop to the interpretations. The rule of law is nothing without coercion. It is nothing without permanent political violence.
In other words, the rule of law has to reduce to the rule of one group of people over another. For the majority of people, for the majority of the time, the rule of law is legitimate. They accept being ruled. And one of the major legitimising factors is that the rule of law is attenuated by representative democracy, with some framework for limited popular input and mobilisation, so that unjust laws being mitigated or overturned.
Now look again at what Rajoy's government has just done in the name of the rule of law. In Catalonia, whose status as a distinct nationality was never reflected in the post-Franco constitutional settlement, the political mainstream had been gradualist and conciliatory. There had been a regional legislative process aimed at drafting a new charter for autonomy since the turn of the millennium. The Spanish constitutional court rejected much of it, and negotiations with the central government went nowhere. Then, amid economic crisis and austerity, the call for independence as a solution began to gain ground. And from 2012 onward, there has been a large and growing movement dominated by middle class youths, aimed at using independence as a means to achieve political reform.
Politically, this movement has been led by Catalan centrist and centre-right forces, pro-European and pro-business: although in the context of the independence movement, both Europe and capital have preferred to keep a distance. There is a left-wing within the independence movement, and a growing radicalisation among younger supporters, but its leaders are moderates, easily amenable to negotiation if the dominant institutions of the Spanish state were likewise amenable.
In response to this, the rule of law has been materialised in the banning of political meetings, extensive police searches within newspaper offices and mail services, seizure of political materials, threats to elected politicians, and ultimately the injury of hundreds of civilians by paramilitary police using rubber projectiles and batons.
None of the specifics of this counterinsurgency operation were dictated by the findings of the constitutional court as to the referendum, which necessarily left the interpretation and enforcement of its findings to the executive. Rather, this brutal denouement is the result of a series of tactical decisions made by the People's Party over the years, seeking to limit Catalan autonomy and identify its interests as a governing party with the long-term interests of the central state. In part, this is about establishing itself, after years of PSOE dominance, as the 'natural party of government' in Spain.
But it has drastically escalated Spain's constitutional crisis. A general strike is afoot, and mass protests are planned. What is more, just as Rajoy's repression before the referendum was broadly opposed within Catalonia, so quite a lot of forces in Catalonia and throughout Spain that are not pro-independence will now support this movement on democratic grounds.
Rajoy can talk all he likes about how "democracy has prevailed because we have obeyed the constitution". He has just exposed the huge rift between these two commitments. In a part of Spain, the 'rule of law' as understood in Madrid has lost legitimacy. And that is because its conflict with democracy has just been made starkly apparent.