Federalism and the Plurinational Challenge
Stephen Tierney
Stephen Tierney is Professor of Constitutional Theory at Edinburgh Law School and Director
of the Edinburgh Centre for Constitutional Law. He is also ESRC Senior Research Fellow,
appointed to research the democratic merits of the Scottish referendum. He acted as
constitutional advisor to the Scottish Parliament Referendum Bill Committee which has
passed the enabling legislation for the referendum process.
Abstract
Federalism as a concept, as an ideal, and as a system, is of course intimately connected to,
and informed by, the surrounding ideological environment within which it has been shaped,
and so to understand federalism properly we must locate it more broadly as part of the wider
development of liberal democracy. Despite this historical legacy and the ideological
framework liberalism has provided for the construction of federal states, federalism’s close
connection with this one particular political philosophy is rarely discussed and is indeed
generally taken for granted.
I will explore how federalism as both a descriptive and normative term, the close synergy
between liberalism and the normative dimension of federalism, and the very tension that
attends the notion of federalism (combining ‘self-rule’ and ‘shared rule’ - Daniel Elazar) as in
some sense, and at least in certain situations, an ideal model of government - play out in the
context of plurinational states, in particular as these have been explored and analysed in the
recent theoretical turn addressing ‘plurinational federalism’.
The normative challenge here is to pluralise the conception of the demos. This provides stark
challenges in terms of re-thinking federal commitments to autonomy, representation,
recognition, and to our methodological approach to internal sovereignty itself. But it also
presents sub-state nationalists with a difficult challenge when their constitutional claims fall
short of full statehood and seem to call for an expansive realisation of the federal model.
The paper will turn to recent radical constitutional claims in Spain and the United Kingdom
which seek to re-configure these states through the overlapping prisms of federalism and
independence. In particular I will focus upon the Scottish Government’s proposal of
‘independence’ for Scotland which will be tested in a referendum in September 2014. The
proposal for independence falls short of a traditional Westphalian conception of the state and
hints at a form of on-going union between Scotland and the United Kingdom. These claims
test the limits of the federal idea and in doing so offers a fascinating case study into the
capacity of federalism to respond to this new social reality.
Introduction: Federalism, liberal democracy and the demos question
It has been remarked that federalism is under-theorised.1 This is certainly true and this is an
opportunity to build on new theoretical work which has emerged in recent years, for example
1
Feeley and Rubin, On Federalism: Federalism as Tragic Choice ( U of Michigan Press, 2008).
in Publius and Regional and Federal Studies. There are of course many ways in which theory
could intervene to help us understand the conception, institutionalisation and practice of
federal systems. It is possible to shed light on the way federalism is informed by cultural and
philosophical conceptions concerning the nature of liberty, political agency, individual rights,
and national identity and how federalism is shaping constitutional and political cultures. This
is clearly an opportunity to connect federalism to political theory, and in doing so to locate it
in the context of the main ideological trends of our time. I will focus upon this aspect of the
proposal rather than on the second idea – i.e. how federalism is itself shaping constitutional
and political cultures - although the relationship between the two is very likely to be heavily
symbiotic within federal practice.
Federalism as a concept, as an ideal, and as a system, is of course intimately connected to,
and informed by, the surrounding ideological environment within which it has been shaped,
and so to understand federalism properly I argue we must locate it more broadly as part of the
wider development of liberal democracy. Of course, during the 20th century instances of
federalism have emerged from other ideological or even theological backgrounds such as
state socialism and Islam, but the origins of modern federalism, from its first instantiation in
the foundation of the United States to the present day, are tied inextricably to the birth and
development of the liberal model of government.
Despite this historical legacy and the ideological framework liberalism has provided for the
construction of federal states, federalism’s close connection with this one particular political
philosophy is rarely discussed and is indeed generally taken for granted. This is so even
though liberalism as a political philosophy is inherently normative and imbues federalism
with many of its foundational assumptions about the nature of man and society, as well as
with the normative commitments which flow from these assumptions.
We ought to consider not only what federalism is but also how we think about the federal
model and the types of values which have been super-imposed upon it. Of course a reevaluation of the liberal model of federalism could take us in number of different directions.
The issue I will focus upon in this paper is the demos question. Liberal democracy’s principal
normative commitments – to liberty and equality – have largely taken for granted the nature
of the demos as the setting within which these values play out. In particular, it is assumed that
in each state there functions one unified national community from which the rights and duties
of citizenship flow among individuals who are in turn largely undifferentiated, at least for the
purpose of how these values apply, by key markers such as territorially-based identity or
ethnic origin.
This has two relevant and immediately notable implications. The first is that federalism rarely
if ever features in the work of key liberal theorists as a factor which might impact upon their
notions of justice. This is so even for theorists such as John Rawls or Jürgen Habermas who
lived and worked within federal states. A second is that federal theory itself, informed so
much by the ideological underpinnings of liberal democratic thought has, somewhat
paradoxically, also adopted a monistic conception of the demos. I say paradoxically because
one of the oft-stated purposes and benefits of federalism is its purported capacity to
accommodate territorial diversity. Some will reply that federalism, with its division of powers
between centre and territorial government, a notion of shared or divided sovereignty etc.,
does implicitly acknowledge at least the possibility of multiple demoi within the state. I hope
therefore to substantiate below my claim that in general such a pluralisation of the concept of
the demos has not occurred within either the federal state or the federal idea.
Federalism: why does it matter, what is it?
This seminar is clearly not about cataloguing or categorising federal systems; this is the
standard staple of much federal scholarship and while interesting and valuable I don’t intend
to spend much time on this terrain. I do, however, want to make a couple of preparatory
comments concerning the nature of the phenomenon which we are discussing.
The first is a note about relevance. Federalism clearly does matter. There are many federal
states, even though federal scholars disagree markedly as to what a federal state is and how
many there are. For example, in 1994 Daniel Elazar estimated that of the world’s 180 odd
states, over 100 were federal or had some kind of federal arrangement. In 1996, using a
narrower definition, Ronald Watts estimated there were merely 23 federations in the world.
These differences are accounted for of course by a different approach to categorising what a
federal system is. And this is itself illustrates just how contested the terrain of definition is in
the area of federalism.
Indeed, we find a long literature on terminological or conceptual differences, for example on
the distinction between federalism and federation. One school of thought sees the former as a
largely normative concept, in contract to the descriptive properties of ‘federation’ (King).
While others including Elazar and also Burgess and Gagnon see both terms as essentially
descriptive. By this construction, federalism encapsulates the general model of government,
and a federation is one type of system of government within this model, a model which can
also accommodate confederations, unions etc. This broader, functional notion of federalism
can also embrace devolved models of government, which do not satisfy classical definitions
of federalism offered for example by K. C. Wheare, and those which possess some of these
classical attributes but lack others, sometimes called quasi-federal systems.
For my purposes this more fluid approach has been useful. When analysing plurinational
states in the context of federal theory it allows us to engage a number of states which are not
federations in the Wheare sense, such as the UK or even Spain, but which have some of the
characteristics of a federal system, most notably multiple systems of government, the
rationale for which is at least in part the existence of territorial diversity within the state.
But even taking on board the more expansive empirical account of federalism offered by
Elazar and others, it is surely still correct that federalism is more than simply a descriptive
term. If, as I suggest, liberalism has provided the intellectual background through which it
developed, then the overtly normative nature of liberal thought has surely left its mark,
imbuing federalism implicitly with many of liberalism’s values; and again this normative
dimension is also central to the plurinational challenge to traditional conceptions of
federalism which I try to outline in this paper. We are perhaps then left with the fairly clunky
range of categories offered by Ronald Watts. He suggests that it is necessary to distinguish
‘federalism’, ‘federal political systems’, and ‘federations’, with the term federalism reserved
to capture the normative concept used by King. Although an awkward terminological device
it does, when combined with Elazar’s account, allow us to view federalism as a term bearing
both a descriptive/empirical dimension and a normative dimension – a bit like liberal
democracy we might say.
Another important question that stems from the efforts to catalogue and categorise federal
systems, and indeed to pin down the federal idea, is whether a general account of this model
of government is even possible. Is there one general theory that can define a multi-level
government structure which is of sufficient breadth to encompass the great diversity of
systems we think of as federal, and still be of sufficient specificity to constitute a meaningful
genus? This raises ancillary questions such as, are there certain core characteristics and
certain values shared by every instance of the federal model (bearing in mind the normative
as well as empirical dimensions which must be encapsulated by such a model)? Such an
account should be able to set out some common purpose or set of purposes shared in whole or
in part by any federal system, some common system for the distribution of powers, some
common institutional characteristics etc.
When we do turn to the standard purposes which are often offered for federalism we see the
normative dimension of the concept emerge very clearly. These purposes attribute goods
which flow from federalism, or dangers which can be avoided or lessened by it (in this way
presenting federalism as a subset of that other normatively-laden idea – liberal democracy).
Of course, it is beyond the scope of this paper to try to offer a comprehensive account of the
main purposes of federalism and a full-blown account of these goods etc., but for the
purposes of illustration I will mention briefly a few of the key purposes which it is often
claimed are served by federalism since the intimate connection to liberalism is illustrated
thereby:
The control of public power by dividing or sharing it among more than one level of
government (the security argument): This is clearly informed by a liberal approach to
government, for example in the Madisonian tradition of public power as a threat to
private liberty and the role of constitutionalism being to delimit the extent and
potency of government.
Maximisation of economic/public policy efficiency (the efficiency argument): Again
this is informed by a liberal approach to rational individual decision-making,
embracing values such as subsidiarity, the benefits of competition etc.
Maximisation of individual preferences (the rational choice argument): This relates
closely to the second argument but is more overtly informed by the liberal
commitment that individual choice is better reflected through more localised levels of
government.
Two other rationales are less obviously liberal in nature since they seem to recognise that
collective attachments also matter to people.
Maintenance of democracy in a diverse polity (the stability argument): This
recognises that territorial and other differences do exist within certain states, and that
the federal state is more stable if it accommodates multiple polities in a way that
offers a governmental outlet for the discrete preferences of these respective territories.
Accommodation of diversity across a diverse polity (the diversity argument): This
relates to the stability argument but is different in being more clearly normative.
Territorial or ethnic/cultural diversity is advanced as something worthy of protection.
A system of government should be designed to reflect and accommodate the identities
of different groups of people. As the rise of liberal multiculturalism has demonstrated,
this goal is also fully consistent with liberal values, although this relationship is a
highly tense one as I will discuss.
Inherent Tensions in the Federal Idea
I have offered the view that the term federalism is capable of performing both descriptive and
normative functions. As a normative category, therefore, ‘federalism’ offers an ideal form of
a particular model of government, and this form is imbued with a liberal set of
presuppositions which is itself a useful starting point with which to explore its relationship to
the nation-state. But it is also notable that at the conceptual level, federalism as a model of
multi-level government brings with it certain inherent, immanent tensions, embracing as the
concept of federalism does, incongruous and perhaps even mutually contradictory
components.
The federal model is an ideal form of a particular system of government; but that system is by
definition made up of multiple levels. There is a foundational conceptual strain here between
the singular and plural forms of government which the federal model embraces since by
definition the very model of federalism seems to create the conditions for competition
between these different levels of government. In the constitutional foundations of the federal
state there is a tension, and hence a balance to be struck, between singularity and plurality,
and hence between unity and diversity. Elazar describes federalism as the combination of
‘self-rule’ and ‘shared rule’ in a contractual power-sharing relationship. This can manifest
itself in particular constitutional arrangements, e.g. where should the residual power lie? How
can the constitution be amended? We tend to take for granted these inherent tensions in the
federal idea, but to do so is perhaps to overlook the incongruous nature of such an idea,
particularly when it is itself a normative proposal, not only describing but also prescribing
precisely such an arrangement.
The Plurinational State and Federalism
I would like to explore how these various components – federalism as both a descriptive and
normative term, the close synergy between liberalism and the normative dimension of
federalism, and the very tension that attends the notion of federalism as in some sense, and at
least in certain situations, an ideal model of government - play out in the context of
plurinational states, in particular as these have been explored and analysed in the recent
theoretical turn addressing ‘plurinational federalism’.
What is the plurinational state? Over the past thirty years, sub-state national societies in a
number of developed liberal democracies including Canada, Spain and the UK have both
reasserted their national distinctiveness and demanded recognition of it in political and legal
terms. Of course these are not the only plurinational states but they are ones I have
concentrated upon in my research, and they serve as good examples, albeit that they are each
western states with all of the specificities which attend this type of state.2
The turn in constitutional theory which has accompanied this phenomenon contends that the
democratic plurinational state which has reached constitutional maturity within industrialised
states, and is characterised by the presence of more than one national group within the state,
is a discrete category of multi-level polity which in some measure defies the standard
classifications and categorisations prevalent in traditional analytical frameworks of liberal
constitutionalism. The term ‘nation’ has been widely applied to define sub-state territorial
polities such as Catalonia, Quebec and Scotland, not only because this is the self-description
chosen by many citizens within these spaces, but also because it serves to signify the
resilience of these societies as discrete demoi within the plurinational state. This school of
theory centres specifically upon plurinational states as distinct from other institutional models
of diversity; in particular, multicultural states.
The uniqueness of the plurinational state stems from processes of historical development
which have not only brought together different national groups - in itself not uncommon in
models of state formation in the 19th and 20th centuries - but within which sub-state national
societies retained, and today continue to retain, their individuality. The significance of this
distinctiveness does not depend necessarily upon points of cultural demarcation; indeed, the
extent to which national societies, whether sub-statal or statal, are in reality culturally, as
opposed to societally, distinctive is now an issue of some dispute.3 It stems principally from
their role as societies which are territorially concentrated, potentially self-governing and
possessed of the desire for specific constitutional recognition. In other words, these societies
position themselves in a relational way to the state not as internal ‘minorities’, but rather as
polities which are in fact comparable to the state in the way they offer, or have the potential
to offer, an effective site for many if not all of those functional and indentificatory roles
which the state plays in the life of the citizen. Therefore, central to the challenge presented by
sub-state national societies to the host state is a call for the disaggregation of the terms ‘state’
and ‘nation’; those who adhere to the traditional conceptualisation of the ‘nation-state’ as one
politico-constitutional territory encapsulating a unitary national society are charged with the
task of reconceiving the plurinational state in appreciation of its essential societal plurality.
Plurinational states certainly have been criticised in recent years for not giving adequate
constitutional articulation to the reality of their multinational composition. But this is
symptomatic of a deeper philosophical problem, namely a general failure of liberalism not
only to accommodate, but to recognise, the empirical reality of multiple nations within
certain states which are either federal or federal-like in nature, and the normative challenge
presented by this multinational reality. If this is so then liberalism’s failure is also
2
I have recently supervised highly interesting work on China, Sri Lanka and Nigeria as plurinational states, and
these raise very different issues which are beyond the scope of this presentation but which are relevant to
discussion.
3
Moore, M., ‘Globalization, Cosmopolitanism, and Minority Nationalism’, in M. Keating and J. McGarry
(eds.), Minority Nationalism and the Changing International Order, (Oxford: Oxford University Press, 2001),
44-60.
federalism’s failure, not only in its particular practice from state to state, but also
conceptually as a normative project; namely a failure to offer the resources needed for an
articulation of the plurinational federation, and of the issues of justice which should attend
the constitutional construction of such a polity.
The default conception of federalism, as the term is overwhelmingly understood today, is
built upon the terrain of mainstream liberal democracy and as such it implicitly embraces a
unitary conception of the demos. This may seem like an odd assertion to make. As has been
noted, the very project of federalism, and a source of tension within this project, is an attempt
to recognise the plurality of territories and the communities they contain in the constitution of
the state. Indeed, in terms of classical categorisations, the federal state stands in contrast with
the unitary state. It is also the case that one of the purposes of federalism outlined above is to
recognise and accommodate territorial and ethnic diversity within the state. But it is a mistake
to assume that the concept of the demos is somehow obviously pluralised simply through the
existence of a federal state. It is certainly not the case that ‘unitary state’ implies and
instantiates recognition of a unitary demos while ‘federal state’ implies and instantiates
recognition of a plurality of demoi. Firstly, we must distinguish the institutional design of the
federal state from the demotic premise upon which this institutional design is constructed and
which it is designed to serve. Yes the federal state has a plurality of territories, each of which
has its own institutions, each of which is constitutionally recognised, and among which
power within the state is dispersed. However, in the classical conception of federalism, the
‘peoples’ of each of these states are conceived in a categorically different way from ‘the
people’ of the state as a whole. The default position of liberal federalism conceives the people
of the state in a unitary way and this in turn is crucial to the constitutional self-understanding
of the state.
This demotic premise is implicit and until recently was rarely explored in theoretical accounts
of federalism. In this respect it is part of a broader story of liberal democratic theory which in
characterising the state has generally taken for granted the demos question. Liberal
democracy in its theoretical underpinnings brings with it, implicitly, a unitary
conceptualisation of the people of the state, whether that state be unitary or federal. What is
remarkable about many of the classical accounts of liberalism is the way in which they have
not entertained the possibility of a plurality of demoi within the plurinational state. For
example, Ferran Requejo notes that in the work of several leading theorists of recent times
such as Rawls and Habermas, the issue of national pluralism ‘is a question that is not so much
badly resolved as completely unaddressed by the premises, concepts and normative questions
of these theories.’4 For Margaret Canovan, ‘Rawls took for granted that these principles
applied only inside “a self-contained national community” recruited primarily by birth, an
assumption shared unreflectively by almost all those who debated the theory over twenty
years...Rawls’ subsequent elaboration of a “law of peoples” has only made this incongruous
assumption more conspicuous.’5
4
Requejo, F., ‘Introduction’, in F. Requejo (ed.), Democracy and National Pluralism (London: Routledge, 2001),
1-11 at 4.
5
Canovan, M., ‘Sleeping Dogs, Prowling Cats and Soaring Doves: Three Paradoxes in the Political Theory of
Nationhood’, Political Studies, 49 (2001), 203-215 at 204.
This trend in ignoring or simply taking for granted the idea of the nation of the state has in
turn led to an assumption that the liberal democratic state is neutral in cultural or societal
terms. But this is misconceived. As Requejo puts it, ‘practically speaking, all liberal
democracies have acted as nationalising agencies for specific cultural particularisms.’6 And
crucially, in Requejo’s critique, this is the case in federal and decentralised states no less than
in straightforwardly unitary ones.
What’s the problem?
The problem is that many of the normative prescriptions emerging from traditional liberal
accounts have been built upon this monist presupposition. Notions of justice, equality and
fairness have been formulated in relation to a unitary national society. But in fact this has
served to overlook the existence of one dominant national group within plurinational states.
Rights and duties of citizenship are formulated in the context of a unified demos, when in fact
the plurinational polity is sociologically more complex than this.7 Therefore, individual
citizens can find themselves disadvantaged directly or indirectly by the marginalisation of the
sub-state society to which they belong. Notions of justice and fairness are seen to be applied
neutrally to all individuals equally, but this can serve to overlook deeply imbalanced relations
of power between communities, territories and nations within the state. In the context of these
imbalances individuals from place to place and community to community may be affected
very differently by state policies, but traditional liberalism offers no remedy for this sense of
injustice, since justice is itself conceptualised in a demotically unitary context and hence
applied in an individualised and homogenising way. We see this for example in the tortuous
attempts by sub-state nations within countries such as Canada and Spain to achieve
asymmetrical arrangements, and the strong predisposition within the federal model to resist
these.
The school of ‘liberal nationalist’ or ‘ethno-cultural pluralist’ scholars working over the past
two decades have challenged traditional liberalism from within as it were, asserting that
liberalism has failed to meet its own normative standards in the context of the plurinational
state. Liberalism has failed properly to take account of the fact that in the plurinational state
individual citizens relate to the state through the strong and often primary attachments - in
terms of identity and loyalty - which they feel towards a sub-state national society. In this
sense, the right of individual self-determination is fulfilled within a broader condition of
collective self-determination for a particular primary demos. The full recognition of the substate national society as an equal partner in the state is a prerequisite for individual members
of such a society to play a full role in the plurinational polity.
A broader defect here is to take for granted, and in doing so, underestimate the role of
nationalism in processes of state building and on-going state consolidation. We see this in the
reaction of many liberals who critique the recent re-emergence of sub-state nationalism as
6
Requejo 2001 at 4. See also Requejo, F., ‘Democratic Legitimacy and National Pluralism’, in F. Requejo (ed.),
Democracy and National Pluralism (London: Routledge, 2001), 157-177 at 167-9.
7
Carens, J.H., Culture, Citizenship and Community (Oxford: Oxford University Press, 2000) at 161.
though it were a localised virus which ought to be discouraged.8 This serves to miss the
pervasiveness of nationalism, and in particular to overlook its centrality to the very concept
of the state itself. As Benedict Anderson has observed, nationality is a universal sociocultural concept, although particular in its manifestations;9 or as Rogers Brubaker puts it,
ours is ‘a world in which nationhood is pervasively institutionalized in the practice of states
and the workings of the state system. It is a world in which nation is widely, if unevenly,
available and resonant as a category of social vision and division.’10 And it may be in part
because of its very pervasiveness in a world of states that national identity and its political
manifestation, nationalism, are widely misunderstood or largely ignored, even though they
are the central building blocks to the political world we inhabit and the social consciousness
constructed to understand this world. So entrenched are assumptions about the national and
cultural neutrality of the state that political actors at state level, like traditional liberals on the
theoretical plane, will often fail to see how their assumption that the state constitutes a unitary
demos can be deeply flawed. They will tend to identify their dominant national identity with
what they take to be a unitary state identity – again the elision of ‘state’ and ‘nation’. Resina
refers to these people as ‘nationalists in denial…whose nationalism has long been naturalised
by the routines of the nation-state, to the point where it no longer needs to be articulated as
such.’11
Plurinational Scholarship Confronts the Liberal Theory of the State
The emergence of a new wave of scholarship has served to confront the liberal theory of the
state. This has occurred most notably in political theory but new theoretical insights have
themselves been constructed upon the empirical evidence provided by sociology and political
science.
A number of sociologists have, since the 1960s, demonstrated the multinational origins of
certain states, the resilience of multiple patterns of national identity within some of these,
such as Belgium, Canada, Spain and the UK, and indeed the strengthening of sub-state
national attachments from the 1960s onwards within these states. As I noted above, while
sociologists have found national identities to be resilient, they have also found them not to be
particularly thick with markers of membership based decreasingly on ethnic markers and
more on civic models of belonging. Perhaps in consequence of this, they have also found that
national identity remains strong even as cultural distinctions within multinational states and
around the world seem to diminish in an era of cosmopolitanism.12
8
Ignatieff, M., The Warrior’s Honor: Ethnic War and the Modern Conscience (New York: Metropolitan Books,
1998; Barry, B., Culture and Equality: An Egalitarian Critique of Multiculturalism (Cambridge: Polity Press,
2000).
9
Anderson, B., Imagined Communities: Reflections on the Origin and Spread on Nationalism, revised edition
(London: Verso, 1996), 5.
10
Brubaker…. 1996 at 21.
Resina… 2002 at 393. What can then occur is a breakdown in understanding between the host state’s
dominant society, which does not envisage itself as such, and the state’s sub-state national societies which are
perceived by dominant societal actors not as equally valid proto-polities, but as troublesome ‘minorities’.
12
The ever closer alignment of values among nations within states at the same time as nationalist sentiment
within these nations grows has been called ‘de Tocqueville’s paradox’ by Stephane Dion. S. Dion, ‘Le
11
Following from this work political scientists from the 1970s onwards addressed the political
mobilisation of these sub-state nations, and the political and constitutional programmes which
they were advancing. This resulted in a number of important implications for federalism and
federal theory. The first finding was that
contrary to many expectations, political actors adopting the nationalist mantle were for the
most part not backward-looking or reactionary, but espoused values wholly consistent with
the plurality of opinion in modern, Western societies, for example on issues such as social
welfare, citizenship and human rights.13 Furthermore, these nationalist movements have
advanced political programmes that run largely with the grain of changing state power, suprastate integration, and internationalisation of previously monopolistic state functions;
nationalists in Scotland, Catalonia and Quebec for example, situate themselves within the
context of their respective integrating continents in ways similar to state nationalists, and in
some ways are in fact more pro-integrationist.14 In other words, the new nationalism was
found to fit wholly consistently within the ‘progressive’ trend of modern politics, weakening
the negative stereotype with which nationalism has been tarnished.
Another key point for a theory of federalism is that these nationalists were not always
separatist in intention. Overtly nationalist parties often sought constitutional change, and in
particular a move towards greater autonomy and representation at the centre; in other words a
federalising trajectory. There was also a nationalisation of other political actors, to the extent
that support for constitutional change in time stretched beyond traditional nationalist parties
to a broad section of the political class and civil society more broadly. This created the
impetus towards constitutional change which was destined to take polities like Spain and the
UK in a federal direction, and cause constitutional upheaval in already federal states like
Canada and Belgium. This in fact was the most radical nature of the challenge. Secession is
something the traditional liberal state could handle easily, at least on a conceptual level, but
an assault upon the very implicit normative self-understanding of the state was something
else altogether.
Implications for Federal Theory and Practice
With liberal nationalist political philosophers demonstrating how the monistic demos thesis is
deeply problematized by the existence of more than one societal demos within the same
polity, constitutional theorists have begun to address the implications of this theory for
constitutional practice.15
nationalisme dans la convergence culturelle: le Québec contemporain et le paradoxe de Tocqueville’, in R.
Hudon and R. Pelletier, (eds) L'engagement intellectuel : Mélange en l'honneur de Léon Dion (Québec, Presses
de l'Université Laval, 1991).
13
M Keating, Nations Against the State – The New Politics of Nationalism in Quebec, Catalonia and Scotland,
2nd edn. (UK, Palgrave, 2001); A-G Gagnon & J Tully (eds) Multinational Democracies (Cambridge,
Cambridge University Press, 2001).
14
M Keating, Plurinational Democracy: stateless nations in a post-sovereignty era (Oxford, OUP, 2001).
15
Keating, Plurinational Democracy; Stephen Tierney, Constitutional Law and National Pluralism (Oxford:
Oxford University Press 2004).
In particular, we need to re-align how we categorise federal states in light of the
plurinational/uninational distinction. Some states are plurinational some are uninational.
Some federal or quasi-federal states are plurinational in composition, for example, Canada,
Belgium, Nigeria, Spain and the UK (if the latter two can indeed be characterised as quasifederal), while some federations are unitary in demotic composition, e.g. USA, Australia,
Germany. We also need to distinguish the sociological fact of plurinational states from their
government structure. Models of plurinational federalism are now being discussed, but it goes
without saying that simply because a plurinational state is federal in government structure,
that does not mean the federal system in question is designed to take account of this demotic
structure. One clear consequence of the general acceptance of the monistic demos thesis
across states whether federal or otherwise is that a federal state can be plurinational in
sociological terms, without being a plurinational federation in governmental or constitutional
terms.
E Pluribus Unum: the plurinational challenge
I suggested that federalism as an idea brings with it a condition of tension in seeking to
combine one state system of government with multiple sub-state systems; one state territory
and a number of sub-state territories. This challenge is magnified in the plurinational
scenario. By the ‘monistic demos’ thesis there may be considerable diversity in cultural and
ethnic terms within the state, and federalism is one response to this, designing institutions to
reflect diversity, but there remains a foundational understanding that the federation is
composed of one statal people. And so in the federal context we find a category distinction
between one statal or federal people, which embodies the federal nation, and those sub-state
communities which make up the federal state’s constituent territorial units.
It is often the case that plurinationalism is confused with multiculturalism. In this latter
context it may well be conceded that there is one national society within the state which
establishes a dominant set of cultural practices. The question then is how should minority
groups, which are culturally diverse but which each belong to one state demos, have these
differences accommodated in order to do justice to these groups by the standards of
liberalism, while also accounting for the state’s need to build and consolidate the national
demos of the state in order to consolidate cohesive patterns of loyalty and identity to the state.
Deep disputes attend the search for a balance in reconciling the politics of difference with the
politics of nation-building, but there remains agreement that the state is composed of one,
exclusive national society within which this balance must be reached.16
But the sub-state nationalist challenge to the state, including the federal state, is very different
from this; it is a challenge to the very demotic self-perception of the state as a unitary
national site within which only one process of nation-building takes place. A federal state no
less than a unitary state has a dominant national society, and in this sense territorial
‘minority’ groups are ‘accommodated’.
16
Deep diversity of course characterises America as a multicultural society, but the commitment to the existence
of one American nation remains strong. See Posner’s comment on the strength of American national identity
following the attacks in New York and elsewhere in September 2001: Richard A. Posner, Strong Fibre after All,
22-3 Atlantic Monthly, January 2002.
But it is precisely this sense which is challenged by theorists of plurinational federalism.
With the monistic demos thesis comes the assumption implicit in standard liberal democratic
accounts that the national society of the state is entitled to make decisions about how far to go
in accommodating a cultural minority, while pursuing its own nation-building agenda in the
name of societal stability.17
But plurinational federalism questions this very categorical distinction between state and substate national societies, and the notion that only one national society is entitled to engage in
nation-building and –consolidation. Not only does more than one national society exist within
the state, the assumption that ‘the state’ represents a discrete category which is neutral with
regard to culture is contested.18 Rather the state has promoted the nation-building agenda of a
dominant national society which is not an issue in a uninational state, but very much is in a
plurinational one.
The radical claims of sub-state nationalists seek a conceptual reorientation of the nature of the
state. This involves first the recognition of the state’s demotic plurality and that the different
nations of the state form a partnership of equals. The powerful normative claims to be found
in the narratives of sub-state national societies are rooted, therefore, not in the politics of
difference but rather what we might call the politics of similarity. This alludes to the
processes of nation-building and consolidation which remain on-going within sub-state
nations, which run in parallel to the equivalent processes at state level. These principles of
union and equality therefore offer foundational principles for the construction of a
plurinational federal idea, and it is in these ideas of union and equality that sub-state national
societies call for partnership with the dominant society rather than accommodation by it.19
Another important element in constructing the plurinational federal idea (as it is for national
identity more broadly) is history, and indeed historiography. In arguing that alternative and
therefore multiple nation-building projects have occurred within the state, sub-state national
societies turn to history to illustrate this, and in this we also see within such states multiple
historiographies cataloguing different understandings of the origin and nature of the state and
its constitution, with those presented by sub-state nationalists often varying substantially from
the dominant historical narrative embodied in the orthodox constitutionalism of the state. 20
History and how it is told combines then with the sociological reality of different national
17
John McGarry, Federal Political Systems and the Accommodation of National Minorities in The Handbook of
Federal Countries 416 (Ann L. Griffiths ed., Montreal: McGill-Queen's University Press 2002).
18
‘Despite the usual liberal defence of a laissez faire approach to cultural matters, experience indicates that
the state has not been, nor can it be, culturally neutral.’ Ferran Requejo, Political Liberalism in Multinational
States: the legitimacy of plural and asymmetrical federalism in Multinational Democracies 110, 110-111 (AlainG Gagnon & James Tully eds., Cambridge: Cambridge University Press 2001.
19
The agenda of sovereignty and partnership advanced by Quebec nationalists at the time of the 1995
referendum on sovereignty is one example.
20
Eugénie Brouillet, La négation de la nation. L'identité culturelle québécoise et le fédéralisme canadien
(Sillery, Quebec: Les Éditions du Septentrion 2005).
societies functioning today, to present an argument that the state, be it federal or otherwise,
must take account of this reality.
And this inevitably leads to constitutionalism. The real challenge of plurinational federalism
is to be found in sub-state nationalist demands for a radical reconfiguration of the state, a
reconfiguration which has at its root a call to reconceive how sovereignty itself is understood
within the state.21 And these constitutional claims are themselves informed by history. It is
from the alternative constitutional historiographies of sub-state nationalist movements that
constitutional claims are generated which are so different from the discourse of
accommodation, which seek a top-down grant of legal rights to facilitate cultural diversity.
Indeed, the sub-state nationalist constitutional agenda is not driven primarily (or even in some
cases, significantly) by the notion of cultural differences between national societies. The key
feature of claims for the constitutional recognition of national pluralism is control of
decision-making processes within both the sub-state national territory and the central organs
of the state. Constitutional structure becomes a key feature around the issues of autonomy
and representation, and also in terms of the constitution’s very identity and the extent to
which it recognizes symbolically its dual or multiple national composition.
And central to the argument for constitutional reconstruction are the historically informed
narratives of union and equality. The notion that the sub-state territory entered the state either
as a fully-formed, or at least as an incipient, national society, is often central to the
construction of constitutional claims presented by sub-state nationalists. This is true of
debates in, for example, Canada, Spain and the United Kingdom where the vision of a state
shaped from the union of more than one nation remains strong, albeit in different ways, in the
national stories of the Basque Country, Catalonia, Quebec, Canada’s numerous aboriginal
peoples, and Scotland.22 This has been reinforced by memories of the cultural and
institutional distinctiveness which these territories enjoyed at the time of their inclusion
within the state, by affirmations of the central role played by these territories in the process of
state-formation (supplemented, in certain cases, by the conviction that the state’s union nature
was either implicitly or explicitly recognized at these important constitutional moments), and
by the subsequent retention of societal distinctiveness since the union. Together these factors
have tended to create a vision among sub-state national societies that the larger polities to
which they belong are in some sense “union states”.23 In this we see, taken to the extreme, the
tension I have mentioned. Federalism is challenged to be a system that can forge a single
state but in doing so give recognition to this level of deep societal diversity.
21
Stephen Tierney, We the Peoples: Balancing Constituent Power and Constitutionalism in Plurinational States
in The Paradox of Constitutionalism 229 (Martin Loughlin & Neil Walker eds., Oxford: Oxford University
Press 2007).
22
Michael Keating, Plurinational Democracy op. cit.
23
Stein Rokkan & Derek Urwin, Introduction: Centres Peripheries in Western Europe in The Politics of Territorial
Identity: Studies in European Regionalism 11 (Stein Rokkan & Derek Urwin eds., London: Sage 1982); James
Mitchell, Evolution and Devolution: Citizenship, Institutions, and Public Policy, 36 Publius: The Journal of
Federalism 153 (2006).
Related to the narrative of union in the constitutional rhetoric of sub-state nationalism is that
of equality. Parity of esteem was an expression often used in the search for dialogue during
negotiations on what would become the Belfast Agreement in Northern Ireland, but in many
ways it sums up more broadly the constitutional aspirations of many sub-state nationalist
actors in a plurinational state. Visions of union and equality combined for example in the
Quebec nationalist reaction to the patriation of the Canadian constitution in the early 1980s
and in Scotland through the extra-parliamentary campaign in the 1980s and early ‘90s for
constitutional change. And again this is another major challenge for the traditional conception
of federalism.
Plurinational Federation and Sovereignty
The plurinational challenge extends to how sovereignty is conceived within the liberal
democratic state, including in its federal manifestations; and this presents one of the sternest
challenges to traditional federalism. The challenge to traditional constitutionalism is both
methodological and substantive. In methodological terms, the ‘conceptual’ challenge to
traditional constitutionalism often critiques also the narrow positivism which supports a
unitary model of supreme legal power and the artificial distinction it attempts to draw
between the legal and the political; again these monistic models fit nicely with, and share the
same flaws as, unitary conceptions of the demos. Narrow positivism purports to offer a
window into reality; a corrective palliative to those who fail adequately to understand the
self-sufficiency of law’s empire. The error of the narrow positivist, however, is in
overlooking the fact that positivism is itself conditioned by, and dependent upon, assumptions
about reality which may themselves be false. One foundational theoretical presupposition of
narrow legal positivism is that sovereignty can be understood hermeneutically or internally. It
offers a vision from inside the box of politically-deracinated legal power. But it overlooks the
extent to which the legal box itself exists within, and is in many ways conditioned by, the
political environment from which it generates its own strength and its own legitimacy. As
MacCormick noted: ‘A doctrinal understanding of the rules and principles of a system so
understood gives a genuine though partial picture of a social reality.’24 The challenge
presented by sub-state national societies to federal states and to federalism as an idea is one
of a number which call both for a fuller picture of the social reality which conditions legal
form, and with it a better understanding of the nature of legal sovereignty and of its inherent
and deeply symbiotic relationship with political power. As Loughlin reminds us, sovereignty
has both a legal and political dimension. Through this duality, sovereignty is itself a relational
concept, ‘devised for the purpose of giving expression to the distinctively political bond
between a group of people and its mode of governance’.25
Sub-state nationalists call for the expression of this political bond through the constitution,
but they do so in a radical way by suggesting that within the plurinational state the ‘people’
are plural and so, concomitantly, are the political bonds between these peoples and the
different levels of governance which affect their lives and to which they relate through
variegated pathways of identity and loyalty. The challenge in terms of constitutional practice,
therefore, is for the further recognition of this reality in the narrations of constitutionalism by
24
MacCormick, N., Questioning sovereignty law, state and nation in the European commonwealth (Oxford:
Oxford University Press, 1999a) at 106.
25
Loughlin, M., ‘Ten Tenets of Sovereignty’, in The Idea of Public Law.
way of imaginative explanatory and interpretational devices. This is not to contend that law is
subsumed by politics, but it does suggest that dominant interpretations of law can miss the
fact that they are merely interpretations. What is required is a more refined positivist account
which accepts the viability of constitutional law as a discrete set of norms regulating the
relations of political power and governmental authority within a state, but which nuances this
commitment with an appreciation of the ways in which constitutional law is at the same time
relational to, and can only properly be understood in the context of, the broader political
environment which conditions the governmental space. In other words, the interpretation of
constitutional norms is in many ways conditioned by political assumptions, and to present
one particular legal interpretation as the definitive expression of constitutional meaning may
be to miss the influence which highly contingent hermeneutical tools bring to bear upon the
formation of this interpretation.
As I have discussed, another factor which sub-state nationalists often suggest is lacking in
hegemonic constitutional interpretations is a proper regard both for the foundational
‘moment’26 of the plurinational state, and for the deep societal diversity27 which was central
to the significance of that moment and which continues to shape the ways in which the
political and legal relations of the plurinational state are today negotiated. Instead, this
holistic approach to constitutional meaning is supplanted by a narrow formalism which hopes
to freeze constitutional meaning within the frame of the dominant position, often oblivious to
alternative historical accounts. As Jean Leclair puts it: ‘By fiercely trying not to look at the
past (and even the present), and by clinging solely to defining abstract legal norms, which in
themselves have no ontological significance, we deprive ourselves of the power to make valid
choices and thus to give meaning to law which is anything but trivial and which can, on the
contrary, engender legitimacy.’28 The task of rendering the constitution legitimate requires a
preparedness on the part of legal actors to engage fully with the context in which law evolves
and its meaning plays out. As Leclair observes, some will object to his view ‘on the ground
that lawyers are not historians or sociologists.’ However, he rejoins: ‘This, to me, will be
proof that, in their view, the law in itself can give objective responses to complex questions. I
do not believe this. The source of the law and of the political action it justifies is to be found
elsewhere.’29
In substantive terms, and flowing from this methodological/historicist critique, sub-state
nationalists challenge the particular constitutional manifestations of the unitary concept of
legal sovereignty which arise so prevalently in plurinational states, including federal states.
Here they observe that the notion of ‘sovereignty’ or ‘fundamental law’ is itself a product of
extra-legal sources.
26
Ackerman, B., We the People: Foundations (Cambridge Mass.: Harvard, 1991).
Taylor, C., ‘The Politics of Recognition’, in A. Gutmann (ed.), Multiculturalism and the Politics of
Recognition (Princeton: Princeton University Press, 1992), 25-73.
28
Leclair, J., ‘Impoverishment of the Law by the Law: A Critique of the Attorney General's Vision of the Rule of
Law and the Federal Principle’ Constitutional Forum/Forum constitutionnel, 10 (1998), 1-15 at 7.
27
29
Leclair (1998) at 8.
This notion of legal sovereignty has been a central ideological device in legitimising the
dominant, monistic vision with which the plurinational state has masqueraded as the nation of
the state.30 This vision has allowed dominant societies to renege upon the union commitments
made at the time of the state’s formation. The dominant society has been able to crystallise
political power at the centre of the state, presenting it in the guise of legal legitimacy, and
hence entrenching political hegemony in purportedly objective constitutional form. In this
task, states consolidate each other in a collectively supportive structure; this conceptualisation
of unified internal sovereignty has been indulged externally by the sovereignty of ‘nation’states under an international legal order which is itself the progeny of the very entities it
suckles.
In light of the prevailing institutional and normative framework of international law, sub-state
national societies appreciate that their options for change are limited. In the absence of any
serious possibility of improving their constitutional positions through international legal
channels, nationalists in Catalonia, Quebec, Scotland and elsewhere realise that the only route
to improved institutional accommodation, falling short of secession, is through the internal
mechanisms of the very host state constitution which they find to be unsatisfactory. The new
constitutional challenge presented by sub-state nationalists is, therefore, one which calls not
simply for substantive constitutional reform; it is one which in a broader way seeks the
generation of a new constitutional culture within deeply diverse liberal democracies; it
challenges these states to pluralize their conception both of the demos and hence, through a
recognition of the historical foundations of the constitution, of the sources of supreme legal
authority which underpin the origins and continuing legitimacy of the state. If sovereignty
does indeed give expression to the distinctively political bond between a group of people and
its mode of governance31 then, when the conceptualisation of ‘the people’ within the state is
pluralized, and when the reality of modes of governance also multiply to accommodate this
sociological reality, so too must be expanded the state’s vision of the number of important
political bonds which exist between citizen and society within the state; and in this situation,
in order to do justice to the value of these multiple bonds, a pluralization of the very concept
of sovereignty seems logically, and normatively, to be required.
What we see emerging are questions that go to the root sources and normative authority of
established patterns of legal supremacy, creating the conditions for a type of KompetenzKompetenz dispute which we typically associate with sovereignty struggles between member
states and the new legal orders which they have created, in particular the EU.32 As the
constitutional agenda of sub-state nationalism develops across a number of liberal
democracies today, we are finding that these debates concerning the relationship between
union and sovereignty also exist within plurinational states, presenting radical challenges to
the internal manifestations of state sovereignty which are similar in conceptual form to the
external challenges with which states are more familiar.33 And as sub-state national societies
grow more confident in their developing constitutional competences and in the theoretical
30
Rae, H., State Identities and the Homogenisation of Peoples (Cambridge: Cambridge University Press, 2002).
Loughlin op. cit.
32
Karen J. Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in
Europe (Oxford: Oxford University Press 2001).
33
Stephen Tierney, Reframing Sovereignty: Sub-state national societies and contemporary challenges to the
nation-state, 54 International and Comparative Law Quarterly 161 (2005).
31
underpinnings which are maturing in parallel to these changes, it seems we are merely at the
beginning of a process which will demand further rethinking of established constitutional
orthodoxies, similar to that which normative liberal theory has gone through.
Conclusion
Will Kymlicka himself noted:
“A fundamental challenge facing liberal theorists … is to identify the sources of unity
in a democratic multination state … A.V. Dicey once said that a stable multination
federation requires ‘a very peculiar sentiment’ among its citizens, since ‘they must
desire union, and must not desire unity’… Liberal theory has not yet succeeded in
clarifying the nature of this ‘peculiar sentiment.’”34
So the plurinational challenge is a considerable one but it also challenges sub-state
nationalists to be imaginative too. Many sub-state nationalists are now looking for
‘independence’ but when we look at the detail of these proposals, they often do not look like
Westphalian statehood but often more like radical federal proposals as with Quebec in 1995
and as may well be the case in Scotland in 2014. We wait to see what the SNP propose in
their independence model likely to be set out next month. But they have already mooted the
idea of a ‘social union’. This could well offer yet another challenge to federal theory as the
United Kingdom again confronts its reality as a plurinational state.
34
Kymlicka (1995), 192.