5 - The historical formation of common constitutionalism: the rediscovery of cultural diversity, part II

Summary

Diverse federalism and the conventions of mutual recognition, continuity and consent

The next example of a constitutional association based on the three conventions I wish to discuss is ‘compact’ or, as I prefer, ‘diverse’ federalism. In the first chapter we saw that one of the major causes of conflicts and civil wars over cultural recognition is the inability of modern constitutionalism to tolerate multinational constitutional associations with a diversity of often overlapping legal and political cultures. The requirements of one sovereign people (in one of three forms), one nation and one uniform order of modern legal and political institutions make the recognition and accommodation of diversity impossible. The only options available within these parameters are either assimilation or secession, neither of which resolves the problem of recognition under conditions of cultural diversity. The former Yugoslavia is one of the most tragic examples, as Noel Malcolm has argued in his exemplary case study, and the break up of Czechoslovakia is another, non-violent but extremely expensive instance.

Diverse federalism is a means of conciliation because it enables peoples mutually to recognise and reach agreement on how to assemble or federate the legal and political differences they wish to continue into the association. A good example is the confederation of the provinces of Nova Scotia, New Brunswick, Lower Canada (Québec) and Upper Canada (Ontario) to form Canada in 1867. The discontinuity and uniformity school interprets confederation as the subordination of the provinces to the sovereign federal government and the creation of uniform provinces.