Pau Bossacoma Busquets
An egalitarian defence of territorial autonomy. The case of Spain
Revista Catalana de Dret Públic, Issue 62, 2021 92
The Constitution of Spain distinguishes some spheres of equality from others. With respect to the territorial
sphere, Spanish jurisprudence understands the principle of equality as limiting territorial autonomy. The legal
debate rests, therefore, on where to set those limits. With the aim of centralizing and unifying, Spanish politics
often claims the obligation to treat all Spaniards equally while blurring any distinction between spheres of
equality. By contrast, this article sustains that different spheres of equality need to be distinguished. As regards
the multinational sphere, a harmonizing approach between equality and territorial autonomy is defended with
the argument that, rather than necessarily being in conict, the former may require the latter. To this end, the
multinational sphere of equality is analyzed from many perspectives, including the recognition of minority
nations, the allocation of powers, territorial asymmetries, bills of rights, the distribution of sovereignty, and
the pluralization of constituent power.
The structure of this article is as follows. Section 2 makes some introductory remarks on the fundamental
right to equality and its prohibition of discrimination. Section 3 distinguishes various constitutional spheres
of equality, since they tend to involve different conceptions and approaches to equality. Section 4 explores the
territorial spheres of equality in the Spanish Constitution. Section 5 addresses territorial equality in relation
to Spanish politics, and Section 6 in relation to Spanish case law. After these more descriptive and contextual
sections, Section 7 concentrates on developing an egalitarian defence of autonomy under a multinational sphere
of equality. Section 8 presents some ideas on fundamental rights, judicial review and shared sovereignty under
a multinational constitution. The nal section concludes that, rather than equality ever opposing difference,
its multinational sphere often requires constitutional autonomy, distinction and pluralism.
2 Discrimination as unreasonable differentiation
Article 14 of the Spanish Constitution reads “Spaniards are equal before the law, without any discrimination
on grounds of birth, race, sex, religion, opinion or any other personal or social condition or circumstance”.1
This fundamental right to equality tends to be interpreted, in a juridical sense, as prohibiting unreasonable
differential treatment in a similar fashion to Article 14 of the European Convention on Human Rights, which
stipulates that “the enjoyment of the rights and freedoms set forth in this Convention shall be secured without
discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national
or social origin, association with a national minority, property, birth or other status”.
Both the European Court of Human Rights and the Spanish Constitutional Court consider that a distinction is
discriminatory only when it “has no objective and reasonable justication”.2 In the words of the Inter-American
Court of Human Rights, “no discrimination exists if the difference in treatment has a legitimate purpose
and if it does not lead to situations which are contrary to justice, to reason or to the nature of things”.3 It is
common, therefore, to limit different treatment when it is arbitrary, capricious or contrary to human dignity.4
What criteria of reasonableness are to be taken into account? In an early judgement, the Constitutional Court
of Spain introduced a test based on a somewhat communis opinio, namely that the justication of difference
ought to be “founded on and reasonable according to generally accepted criteria and value judgements”.5 The
1 The interpretation of this provision is primarily related to juridical equality, covering both equality in the application of the law and
equality in the law itself. Two caveats are worthy of mention: rst, the margin of appreciation when legislating is generally wider than
when applying the law; second, the principle of equality specially forbids the same authority treating like cases differently. According
to the Constitutional Court, Article 14 prohibits discrimination, but it does not include a fundamental right to be treated differently.
See, inter alia, Judgements 49/1982, 103/1983, 86/1985, 241/2000, and 31/2018.
2 European Court of Human Rights, Case relating to certain aspects of the laws on the use of languages in education in Belgium,
of 23 July 1968; Case Bayev and Others v. Russia, of 20 June 2017. Constitutional Court of Spain, Judgement 67/1982; Judgement
3 Advisory Opinion 4/84, 19 January 1984, on the Proposed Amendments to the Naturalization Provisions of the Constitution of
4 On the value of human dignity in contrast to the value of equal recognition, see Taylor (1992: 25-73). For Taylor, “the demand for
equal recognition extends beyond an acknowledgment of the equal value of all humans potentially, and comes to include the equal
value of what they have made of this potential in fact” (42-43).
5 Judgement 49/1982. See Otto (2010: 1439).