Vol. 16 No. 8 (August, 2006) pp.649-652

 

CONSTITUTIONAL LAW AND NATIONAL PLURALISM, by Stephen Tierney.  Oxford and New York: Oxford University Press, 2004.  392pp. Hardcover. £60.00/$140.00. ISBN: 0199265569.  Paperback (2006). £24.99/$49.95.  ISBN: 0199298610.

 

Reviewed by Gonzalo Arruego, Public Law Department, University of Zaragoza, garruego [at] unizar.es.

 

CONSTITUTIONAL LAW AND NATIONAL PLURALISM addresses the nature of the plurinational State from the perspective of Constitutional Law theory. As Stephen Tierney stresses in the preface of his book, though the emergence of sub-state nationalism in liberal democracies has been studied at length since the 1960s, this has been done mainly, not by Constitutional lawyers but by sociologists, political scientists and political philosophers, who have analyzed issues such as the origins and dynamics of the national identities, the impact of the awakening of the national feeling in terms of electoral behavior and political party systems, and normative questions concerning the rights claimed by sub-state national groups. In this sense, Tierney argues that “constitutional lawyers and legal theorists have rarely addressed the sociological reality of the plurinational State as a subject worthy of discrete study” (p.viii).

 

Departing from the work done from these other social science perspectives, the main goal of the book is to provide a new Constitutional Law framework in order to analyze the plurinational State, overcoming the alleged limitations and obsolescence of the traditional dichotomies provided by Constitutional theory (federal-unitary, nation-region, sovereign-subordinate, Law-politics). In this sense, one of the main claims of the book is that the plurinational State is a “discrete category of multilevel polity” characterized by the presence of more than one national group and defying the traditional and standard conceptual framework of liberal constitutionalism. This is the reason why Tierney “argues for a new approach to Constitutionalism, a new suit of clothes which will better fit the deep and real territorial pluralism of our time . . . If this book has a central purpose, it is to explore the possibilities of re-imagining traditional approaches to liberal constitutionalism in order to provide a better alignment between the discipline of Constitutional Law and the needs of the plurinational State today” (p.viii).

 

Focusing on the cases of Catalonia (Spain), Quebec (Canada) and Scotland (United Kingdom), Tierney examines the challenge posed by sub-state national societies, not only to the constitutional structures of their respective host States, but to the fundamental normative precepts that inform contemporary constitutional theory. The election of these case studies finds its justification in four different reasons: (a) the three of them constitute sub-state national societies with strong and distinctive national identities; (b) in recent decades strong nationalist movements have mobilized within them; (c) though they [*650] already enjoy a very high degree of political autonomy, there still remains “a strong political impetus for further constitutional development” within them; and (d) they belong to very different constitutional systems, though all of them are constitutional liberal democracies.

 

Within this framework, one of the main conclusions of the book is that the plurinational State is a viable and valuable model of polity. Tierney argues that in the same way as the State is required to reconsider the reality of its autonomy (sovereignty) in a world of economic interdependence and globalization and increasingly powerful international organizations, sub-state nationalists “are also obliged to rethink whether terms such as ‘sovereignty’ and ‘independence’ are in fact losing their purchase” (p.18). In this context, one of the main ideas of the book is that the plurinational State is potentially an ideal constitutional model for the sub-state national society: “the combination of autonomy and representation or inclusion . . . reflects the deep ambivalence within sub-state national societies which want to step out independently into the global sun while appreciating the political and legal security offered by inclusion in a larger State” (p.19).

 

In this sense, the first of the two parts into which the book is divided, provides a series of normative principles which, according to Tierney, should inform the debate over the better constitutional accommodation of the sub-state national societies within the plurinational State. These are the principles of:

 

a) Self-determination, as each demos within the State possesses a qualified right to determine its own constitutional future, which, in the context of the book, does not necessarily mean secession, but “that [the] national status [of the sub-state national society] should be reflected in extensive autonomy.”

 

b) Representation, which calls for the accommodation of the plurinational nature of the State through full representation of sub-state national societies as “constitutional coequals with the host state national society at the heart of the state, both in the processes by which the Constitution is amended and in the operation of the central organs of governance, including the legislature and the judiciary” (p.126). In the author’s view, recognition of the constitutional role of sub-state national societies as coequals should preserve distinctive nature of the state—in other words, in an asymmetric way with regard to any other sub-state national societies or regions.

 

c) Recognition, which calls for the reflection of the plurinational nature of the State in the overall “spirit” of the Constitution.

 

d) Reciprocity, which reminds the sub-state national society that it owes duties both to the host State national society and to any other sub-state national society. This includes, for example, reciprocally recognizing the national status of any other of these societies, to work in good faith to consolidate the State as a common polity or to fully respect the rights and interests of all citizens within the State. [*651]

 

e) Democracy, which means that seeking constitutional accommodation is only legitimate if it is effected by the members of the group acting democratically. Therefore, “new constitutional models of autonomy, representation and recognition of sub-state national societies, besides requiring the agreement of the host state, are in normative terms wholly contingent upon the subjective will of members of the sub-state national society to bring about such change” (p.127).

 

In addition to these principles, Tierney considers that there are four relevant issues both in practical and normative terms to the question of constitutional accommodation. These are (a) the issue of cultural pluralism, which stresses the importance of inclusiveness and respect for diversity, (b) the issue of fluid identity patterns, which highlights the open nature of the patterns of identity, (c) the issue of host State societal dominance, according to which plurinational liberal States lack societal neutrality (which, among others, means the existence of a dominant society within the State), and (d) the issue of dispersed governance, reflecting the changing role of the Nation State in the age of globalization.  With regard to sub-state national societies, particularly in Europe, absolutist constitutional options like independence or secession become “increasingly redundant” in a context of State interdependence.

 

As noted above, the book is structured in two parts. Part One includes four chapters, focusing on the theoretical approaches to national pluralism, and Part Two (Chapters Five to Nine), deals with the constitutional accommodation of the three case studies, Catalonia, Quebec and Scotland.

 

Chapter Two addresses liberal nationalist theories according to which sub-state national societies constitute a distinct category different from both the dominant national society and other minority groups, but they are also entitled to distinctive constitutional accommodation within their host State, due to their historical and societal particularities and the dissatisfaction felt with their current institutional arrangements. Chapter Three takes this argument further, asserting that sub-state national societies perform important identification and functional roles for the individual member in a democratic plurinational society and refutes the negative visions provided by some social scientists of sub-state nationalism as atavistic and revanchist. Tierney argues that no State is neutral in cultural and societal terms, but also that “it is in fact partly as a consequence of the often oppressive or at least marginalizing, influence of the dominant, statal national identity [sic] that sub-state groups feel the need to seek enhanced recognition and autonomy” (p.47). Part One ends with an analysis of the current challenges faced by Nation States and how sub-states’ national demands have to be located within that context of global political and legal changes.

 

Chapter Five opens the second part of the book with an analysis of the constitutional amendment processes in Spain, Canada and the United Kingdom. These processes are examined in terms of two sets of relationships: the [*652] relationship between the sub-state national society and the host State, which “recalls the principles of self-determination, representation, recognition and reciprocity,” and the interaction of the Government and the citizens, which recalls the principle of democracy. Chapter Six then moves to the study of the substantive constitutional status of the three sub-state national societies through the perspective provided by the principles of autonomy, representation and recognition.

 

Once the constitutional status of Catalonia, Quebec and Scotland, and the procedures to amend the Constitutions of Spain, Canada and the UK in order to fully accommodate the three sub-state national societies have been analyzed, Chapter Seven focuses on the role played by courts in the three national systems. Though the main issue in the chapter is assessment of the decision taken by the Supreme Court of Canada in the Quebec Secession Reference, Tierney also focuses on the role played by the Spanish Constitutional Court with regard to the autonomous communities system, mainly by examining the constitutional disputes provoked by the Organic Law for the Harmonization of the Process of Self-Government (LOAPA), and the situation in the UK. Finally, Chapter Eight examines the recent use of referenda in the management of host-state sub-state relations, and Chapter Nine gives a final overview of the different issues analyzed in the book.

 

In general terms, but especially in the first part of the book, the reader may find Tierney’s argumentation is too linear, even Manichaean, and requiring further explanation. This is especially evident with some of the central theoretical ideas of the book.  For example, Tierney contends that the democratic constitutional liberal State lacks neutrality with regard to sub-state national societies; thus there exists a dominant host-state society with an “oppressive or at least marginalizing” attitude towards sub-state national societies.  This argument is not well developed and needs much more supporting evidence.

 

Problems increase when the reader moves to the second part of the book, where there are a number of factual errors. For example, Tierney’s consideration of the Spanish constitutional system has a number of problems. For example, he describes the eventual constitutional conflicts between the Spanish State and the Autonomous Community of Catalonia, as conflicts between “Madrid and Catalonia;” he considers the process of elaboration of the Statutes of Autonomy in terms of constitutional reform; and, contrary to what Article 152 of the Spanish Constitution prescribes, he asserts that the amendment process of all Statutes of Autonomy is subject to popular referendum.

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© Copyright 2006 by the author, Gonzalo Arruego.