Constitutionalising Secession 9781474201148, 9781849464376

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Preface This is not a book about the constitutional accommodation of nationalism nor a right of nation states to secede. This is also not a historical, descriptive book about secessions and constitutions, nor one about the institutional terms and mechanisms by which constitutional and legal systems could actually manage a secession crisis. Nationalism and technical constitutional law aside, however, this book does consider the normative interconnection between secession and constitutionalism. Secession tensions lay bare certain normative foundations of constitutionalism and of law. A secession crisis prompts, or ought to prompt, the question, ‘Why are we stopping to live and make law together?’ That co-operation comes to an abrupt end in a secession crisis. The book therefore uses secession to refract the elements combining in how we coalesce into a polity and then co-operate to make law. It examines the issue of how constitutions, as a legal fact, coalesce and considers the nature of a constitutional legal order and how norms and legal norms arise. It captures that complex in the idea of associative constitutionalism. Put simply, the book addresses the question of the normativity of law using the optic of secession to focus on how and when laws compel (or not). My starting point is a simple question. What does the law, constitutional law in particular, have to say about a secession bid? Is it merely relegated to keeping its head down and managing the rest of ordinary day-to-day life? The question has its concrete roots in my experiences in Canada, as a Canadian lawyer, during the 1995 Québec secession referendum and thereafter in the legal skirmishing leading to the 1998 Supreme Court reference on Québec secession (albeit only as an interested onlooker). Although Canada is the principal example in the book, the practical and theoretical cover of the arguments does not limit them to multinational and federal states. The question has its theoretical roots in a very fertile seedbed. The question implicates the division between law and politics, the elements of command and obedience, and the debates between a rights-oriented liberalism and its republican form, as well as between liberalism and communitarianism. These are attractive and interesting matters of deep theory to think about. Although I do touch upon them here and there, any real exposition of their arguments must be pursued elsewhere. They would take me too far afield into political theory and beyond the already difficult compass of state-making and state-breaking. The book is drawn from a trimmed and tidied version of my 2007 doctoral dissertation. Other commitments intervened, and the manuscript was left idle (but not the ideas it discussed) for a number of years. When at last returning to it, I was fortunate that the analytic approach and the content did not require extensive updating, the trimming and tidying being another matter entirely. Most significant in that respect was the excising of a lengthy chapter on public international law and self-determination. Firstly, I considered it more important to work on the foundations of associative constitutionalism before being drawn outside their narrower national constitutional origins. Secondly, reviewing the arguments in that chapter in light of more recent work on global, trans­national,

vi  Preface post-national (call it what you will) constitutionalism, I considered the issues to deserve their own, separate treatment. A preface, a foreword, in spite of the name is more often than not composed afterwards, after all the research is done, after completing and reviewing a large number (embarrassingly so, perhaps) of draft versions, and after moments of inspired insight and tortured self-doubt. Little does it truly reflect how much the writing of a book quickly becomes an exercise more lengthy and complex than initial enthusiasm and idealism had planned for or expected. But that reflection is perhaps more than compensated for by its copious mention in prefaces. And rightly so. For, in my case certainly, I can readily acknowledge that my burden was much eased by the advice, ideas and help of a number of friends, family and colleagues on whom I had the privilege of drawing when writing and reviewing the arguments in this book. The burden of trimming and tidying was much eased by the helpful comments and criticism of Jeremy Webber, who pointed out areas in need of reconsideration or clarification. I am very grateful for his investment in testing my premises, arguments and conclusions. I cannot say that I have accepted all of his points, but I have certainly considered all of them in deciding whether to adjust, adapt or risk. The strong foundations of this book were laid during my research and work with André Alen and René Foqué at the University of Leuven Law Faculty, and it was my privilege and good fortune to have been able to benefit from their guidance and expertise when drafting the original manuscript. I also count myself very fortunate to have Hart Publishing and Richard Hart bring this book to completion. Of course, in all of this, the usual caveats apply and any errors, infelicities or misunderstandings remain my burden. Lastly, despite the demands on time and good humour leading to this rather heavy square book with no pictures, my family still digested it all with patience and a smile. That is truly a great privilege to have, and for which I am very grateful.

Table of Cases Canada 2747–3174 Que Inc v Québec (régie des permis d’alcool) [1996] 3 SCR 919................ 355 Ahenakew v MacKay (2004) 241 DLR (4th) 34 (Ont CA).......................................... 133 Air Canada v BC [1989] 1 SCR 1161......................................................................... 357 Alberta (AG) v Canada (AG) (Bank Taxation) [1939] AC 117 (PC)........................... 321 Auton (Guardian ad litem) v BC (AG) [2004] 3 SCR 657........................................... 276 Authorson v Canada (AG) [2003] 2 SCR 40.......................................................355, 364 Baker v Canada (Minister of Immigration) [1999] 2 SCR 817...............................333–34 British Columbia (AG) v Canada (AG) [1914] AC 153 (PC)....................................... 310 BCGEU v BC [1988] 2 SCR 214.........................................................................275, 306 Bertrand v Québec (AG) (1995) 127 DLR (4th) 408 (Que SC)............................................................................ 275, 302–03, 304, 351, 361 Bertrand v Québec (AG) (1996) 138 DLR (4th) 481 (Que SC).....................................................................275, 301–02, 304, 305, 306, 351 Black v Canada (Prime Minister) (2000) 199 DLR (4th) 228 (Ont CA)................355, 357 Black v Law Society of Alberta [1989] 1 SCR 591..................................................... 306 Borowski v Canada (AG) [1989] 1 SCR 342.......................................................306, 313 British Coal Corp v The King [1935] AC 500 (PC).......................................................42 Canada (AG) v Nykorak [1962] SCR 331.................................................................. 266 Canada (AG) v Inuit Tapirisat of Canada [1980] 2 SCR 735........................... 135, 355, 357 Canada (AG) v Ontario (AG) (Labour Conventions) [1937] AC 326 (PC)......... 321, 355–56 Canada (House of Commons) v Vaid [2005] 1 SCR 667.................................................306 Canada (Auditor General) v Canada (Ministry of Energy, Mines and Resources) [1989] 2 SCR 49, (1989) 61 DLR (4th) 673 (SCC)..................................... 3, 313, 361, 365 Canson v Boughton [1991] 3 SCR 534............................................................................147 Cape Breton v Nova Scotia (AG) (2009) 68 CPC (6th) 169 (NS CA)................................170 CBA v BC (2008) 290 DLR (4th) 617 (BC CA)................................................................170 Central Canada Potash v Saskatchewan [1979] 1 SCR 42........................................ 360, 365 CMHC v Co–operative College Resids Inc (1975) 13 OR (2nd) 394 (CA)....................... 170 CMHC v Iness [2004] OJ 771 (CA)............................................................................... 170 Cook v Alberta (Min Environment) (2001) 293 AR 237 (CA)..........................................135 Doucet–Boudreault v Nova Scotia (Min Education) [2003] 3 SCR 3...............................133 Douglas/Kwantlen Faculty Association v Douglas College [1990] 3 SCR 570..................275 Friends of the Oldman River Society v Canada (Min Transport) [1992] 1 SCR 3.... 357, 135 Fraser v PSSRB [1985] 2 SCR 455....................................................................................315 GM v City National Leasing [1989] 1 SCR 641...............................................................266 Gosselin v Québec (AG) [2002] 4 SCR 429......................................................................149 Haig v Canada (Chief Electoral Officer) [1993] 2 SCR 995................... 92, 276–77, 368, 369 Harvey v New Brunswick [1996] 2 SCR 876.........................273, 305–306, 355–56, 358, 361 Hodge v The Queen (1883) 9 AC 117 (PC).............................................................. 169, 267

xii  Table of Cases Hogan v Newfoundland (AG) (2000) 183 DLR (4th) 225 (Nfld CA) (leave to appeal ref’d 191 DLR (4th) vi)......................................................................................... 361–62 Hunt v T&N Plc [1993] 4 SCR 289.................................................................................315 Kourtessis v Canada (Min Nat Rev) [1993] 2 SCR 53......................................................149 Lavigne v OPSEU [1991] 2 SCR 211....................................................................... 275, 306 Liquidator of the Maritime Bank v Receiver General (NB) [1892] AC 437 (PC)...... 169, 267 Mack v Canada (AG) (2002) 217 DLR (4th) 583 (Ont CA).............................................316 Mahe v Alberta [1990] 1 SCR 342........................................................................... 272, 306 Martin v Ontario (2004) OJ No 2247 (20 Jan 2004) (Ont SC, Nordheimer J)................. 361 Martineau v Matsqui Institution Disciplinary Board (No 2) [1980] 1 SCR 602.................................................................................................... 355, 357, 362 McEvoy v NB (AG) [1983] 1 SCR 704.............................................................................355 McKinney v Univ Guelph [1990] 3 SCR 229...................................................................275 Montreal Street Railway v Normandin (1917) 33 DLR 195 (PC).................................... 365 Mooring v Canada [1996] 1 SCR 95...............................................................................355 Morguard v de Savoye [1990] 3 SCR 1077.......................................................................215 Multiple Access v McCutcheon [1982] 2 SCR 161.................................................. 266, 282 New Brunswick Broadcasting v Nova Scotia (Speaker) [1993] 1 SCR 319....... 273, 305, 315, 355–56, 358 Norsk Pacific v CNR [1992] 1 SCR 1021.........................................................................147 Nova Scotia (AG) v Canada (AG) [1951] SCR 31............................................................266 NWAC v Canada [1994] 3 SCR 627............................................................. 93, 276–77, 363 Ontario v Canadian Pacific [1995] 2 SCR 1031...............................................................363 Ontario (AG) v Canada (AG) [1912] AC 571 (PC)................................................... 309–10 Ontario (AG) v Canada (AG) (Privy Council Appeals) [1947] AC 127............................321 Ontario (AG) v Canada Temperance Federation [1946] AC 193......................................360 Ontario (Speaker) v Ontario HRC (2001) 201 DLR (4th) 698 (Ont CA)................. 356, 358 Operation Dismantle v The Queen [1985] 1 SCR 441....................3, 135, 192, 277, 305–306, 324, 355, 357, 361, 363–64 Osborne v Canada (Treasury Board) [1991] 1 SCR 69............................................. 361, 363 Penikett v Canada (1987) 45 DLR (4th) 108 (YTCA) (leave to appeal ref’d [1988] 1 SCR xii)............................................................................. 93, 277, 357, 361–64 Québec (AG) v Blaikie [1979] 2 SCR 1016....................................................................... 42 Québec (AG) v Québec Protestant School Boards [1984] 2 SCR 66.................................272 The Queen v Beauregard [1986] 2 SCR 56........................................................ 267, 273, 315 R v 974649 Ont Inc [2001] 3 SCR 575.............................................................................133 R v Adams [1995] 4 SCR 707..........................................................................................306 R v Big M Drug Mart [1985] 1 SCR 295................................................................... 42, 276 R v Crown Zellerbach [1988] 1 SCR 401........................................................................360 R v Heywood [1994] 3 SCR 761.............................................................................. 363, 365 R v Mercure [1988] 1 SCR 234.................................................................................. 364–65 R v Morgentaler [1988] 1 SCR 30...................................................................................109 R v Morgentaler (No 3) [1993] 3 SCR 463.............................................................. 109, 360 R v Nova Scotia Pharmacy [1992] 2 SCR 606..................................................................363 R v Rahey [1987] 1 SCR 588...........................................................................................306 R v Zelensky [1978] 2 SCR 940.......................................................................................266 Ref re s24 of the BNA Act (Edwards v AG (Canada)) [1930] 1 DLR 98 (PC)......42, 298, 317



Table of Cases xiii

Ref re s94(2) MVA (1985) 24 DLR (3rd) 536 (SCC).........................................................361 Ref re Anti-Inflation Act [1976] SCR 373............................................................... 310, 360 Ref re Authority of Parliament in relation to the Upper House [1980] 1 SCR 54..... 310, 356 Ref re Bill 30, An Act to Amend the Education Act (Ont) [1987] 1 SCR 1148......... 277, 362 Ref re CAP [1991] 2 SCR 525........................................................3, 170, 310, 313, 321, 357 Ref re Electoral Divisions Statutes Amendment Act, 1993 (Alberta) (1994) 119 DLR (4th) 1 (AB CA)................................................................................................ 92 Ref re Initiative and Referendum Act (1919) 48 DLR 8 (SCC), [1919] AC 935 (PC).............................................................................................. 271, 310, 315, 320, 356 Ref re Manitoba Language Rights [1985] 1 SCR 721........................... 7, 133, 152, 268, 271, 276, 310, 315, 324, 364–65 Ref re Newfoundland Continental Shelf [1984] 1 SCR 86...............................................333 Ref re Oriental Orders in Council Validation Act (BC) [1923] 4 DLR 698 (PC)...............316 Ref re Ownership of Offshore Mineral Rights of British Columbia [1967] SCR 792.....................................................................................................................333 Ref re Powers of Disallowance [1938] SCR 78..........................................169, 267, 271, 356 Ref re Electoral Boundaries (Sask) [1991] 2 SCR 158................................................ 92, 310 Ref re Québec Veto [1982] 2 scr 793...................................... 93, 294, 310, 312, 313, 315–16 Ref re Regulation and Control of Aeronautics [1932] 1 DLR 58 (PC).............................310 Ref re Regulation and Control of Radio Communication [1932] AC 284 (PC)...............360 Ref re Remuneration of Judges of the Provincial Court of Prince Edward Island; Ref re Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island [1997] 3 SCR 3............................................................................ 310, 315 Ref re Resolution to amend the Constitution [1981] 1 SCR 753......................3, 92, 265–67, 310, 312, 315–17, 358 Ref re Same Sex Marriages [2004] 3 SCR 698.................................................................. 42 Ref re Secession of Québec [1998] 2 SCR 217......................3, 26–28, 93, 119, 135, 152, 245, 250, 253, 257, 273, 278, 298–300, 308–309, 311, 313–16, 319–22, 324–25, 328–30, 332–36, 339, 343–49, 351–54, 358–59, 361–62, 368–70, 372–73, 375–80 Ref re Upper Churchill Water Rights [1984] 1 SCR 436..................................................360 Rado-Mat Hldgs v Peter Inn Enterp (1988) 65 OR (2nd) 299 (HC)..................................149 Rex ex rel Tolfree v Clark [1943] 3 DLR 643 (Ont CA)...................................................365 RWDSU v Dolphin Delivery [1986] 2 SCR 573....................................................... 275, 306 Roncarelli v Duplessis [1959] SCR 921......................................................... 7, 315, 324, 363 Saumur v City of Québec [1953] 2 SCR 299...................................................................360 Schachter v Canada [1992] 2 SCR 679.................................................................... 133, 276 Sibbeston v Canada (1988) 48 DLR (4th) 691 (NWT CA)....................................... 357, 362 Slaight Communications v Davidson [1989] 1 SCR 1038.......................................... 333–34 Solosky v Canada (1979) 105 DLR (3rd) 745 (SCC)........................................................149 St Anthony Seafoods LLP v Nfld (Min Fisheries) (2004) 245 DLR (4th) 597 (Nfld CA)....135 Stevens v Conservative Party of Canada (2005) 262 DLR (4th) 532.................................133 Stoffman v Vancouver Gen Hospital [1990] 3 SCR 483...................................................275 Switzman v Ebling [1957] SCR 285.................................................................................315 Temple v Bulmer [1943] 3 DLR 649 (SCC)......................................................................365 Thorne’s Hardware v The Queen [1983] 1 SCR 106................................................ 355, 357 Vriend v Alberta [1998] 1 SCR 493.................................................................................276

xiv  Table of Cases Wells v Newfoundland [1999] 3 SCR 199........................................................................364 YMHA Jewish Comm Centre v Brown [1989] 1 SCR 1532.............................................170 United Kingdom Adams v Adams [1971] P 188 (PDA)...............................................................................340 AG v De Keyser’s Royal Hotel [1920] AC 508 (HL).........................................................357 Ashby v White (1763) 1 ER 417 (HL)..............................................................................136 Bates v Lord Hailsham [1972] 3 All ER 1010 (HL)..........................................................362 Blackburn v AG [1971] 2 All ER 1380 (CA)....................................................................378 Bowles v Bank of England [1913] 1 Ch 57 (Ch)..............................................................357 Bradlaugh v Gossett (1884) 12 QBD 271 (CA)................................................................356 Burmah Oil v Lord Advocate [1965] AC 75 (HL)............................................................357 Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) [1967] 1 AC 853...............................340 Council of Civil Service Unions and others v Minister for the Civil Service [1985] 1 AC 374............................................................................................................. 357, 355 Entinck v Carrington (1765) 95 ER 807 (KB)..................................................................357 Hadley v Baxendale (1854) 156 ER 145...........................................................................147 Koufos v Czarnikow [1969] 1 AC 350 (HL).....................................................................147 Madzimabuto v Lardner-Burke [1969] 1 AC 645 (PC).....................................................340 Parsons Ltd v Uttley Ingham [1978] QB 791 (CA)...........................................................147 Proclamations Case (1611) 77 ER 1352...........................................................................357 Rediffusion (Hong Kong) v Hong Kong (AG) [1970] AC 1136 (PC)......................... 277, 304 R v Electricity Commissioners ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171 (CA).................................................................................356 R v Secretary of State for Home Office ex parte Northumbria Police [1989] QB 26 (CA)................................................................................................................357 R(Bancoult) v Secretary of State (FCO) (No 2) [2008] 3 WLR 955 (PC)............................. 3 R(Gentle) v Prime Minister and others [2008] AC 1356 (HL)............................................. 3 Stockdale v Hansard (1839) 112 ER 1112........................................................................356 United States Baker v Carr 369 US 586 (1962)................................................................................ 2, 3, 92 Banco Nacional Cuba v Sabbatino 376 US 398 (1964)........................................................ 3 Busbee v Smith 459 US 1166 (1983).................................................................................135 Davis v Bandemer 478 US 109 (1986)........................................................................ 92, 135 Gilligan v Morgan 413 US 1 (1973).................................................................................... 3 Goldman v Weinberger 475 US 503 (1986)......................................................................... 3 Goldwater v Carter 444 US 996 (1979)............................................................................... 3 Luther v Borden 48 US 1 (1849)......................................................................................... 2 Minnesota State Bd for Community Colleges v Knight 465 US 271 (1984).......................152 Nixon v United States 506 US 224 (1993)........................................................................... 3 Pacific States Tel v Oregon 223 US 118 (1912)..................................................................152 Reynolds v Sims 377 US 533 (1964)........................................................................... 92, 135 Texas v White 74 US 700 (1868)......................................................................................365



Table of Cases xv

South Africa Harris v Ministry of Interior [1952] 2 SA 428 (AD)........................................................340 Ministry of Interior v Harris [1952] 4 SA 769 (AD)........................................................340.

Table of Statutes All legislation should be read to include all amendments up to 2013. Canada Constitution Act, 1867 30 & 31 Vict c 3...................169, 264–67, 271, 273, 296, 299, 306, 309, 315, 318, 336, 340, 342, 355–56, 358, 360, 362, 364   Preamble................................................................................................270–271, 315   ss 56–57............................................................................................................... 267   ss 71–79............................................................................................................... 270   s 90...................................................................................................................... 267   s 91........................................................................... 179, 264, 267, 321, 356, 358, 360   s 92........................................................................................................266, 339, 363   ss 93..............................................................................................................184, 266   ss 94–95............................................................................................................... 266   s 101.................................................................................................................... 312   ss 114–116............................................................................................................ 179   s 123.................................................................................................................... 184   s 133.................................................................................................................... 272 Constitution Act, 1982 being Schedule B to the Canada Act 1982 c 11..........208, 264–65, 267, 275, 277, 296, 299, 305–06, 309, 318, 336, 342, 355, 358, 360, 363–64   Pt I (Charter of Rights and Freedoms).................... 2–3, 6–7, 15, 24, 208, 276–78, 293, 296, 303–306, 308, 321, 350–51, 356, 358–59, 361–62, 364   s 1..........................................................................................................264, 288, 363   s 2.................................................................................................................264, 303   s 3...............................................................................................3, 208, 264, 303, 369   ss 4–5................................................................................................................... 264   s 6.................................................................................................................264, 303   s 7..........................................................................................................264, 303, 363   ss 8–14................................................................................................................. 264   s 15........................................................................................................178, 264, 303   ss 16–20.......................................................................................................264, 268,   ss 21–22............................................................................................................... 264   s 23........................................................................................................184, 264, 272   s 24...............................................................................................................264, 303   ss 25–31............................................................................................................... 264   s 32........................................................................................................264, 275, 306   s 33–35................................................................................................................. 264   s 36...............................................................................................................170, 264

xviii  Table of Statutes   s 37...................................................................................................................... 264   Pt V........................... 265, 269, 272–74, 279–80, 289, 296, 332, 340, 342, 356, 362, 373   s 38..............................................................................91, 184, 264, 269–70, 273, 373   s 39..........................................................................................................264, 289–90   s 40......................................................................................................... 91, 264, 290   s 41...............................................................................264, 269–74, 280, 289–90, 373   s 42.................................................................................................. 264, 269–70, 289   s 43........................................................................................................264, 272, 289   s 44........................................................................................................264, 360, 363   ss 45–49............................................................................................................... 264   s 52......................................................................................... 264, 273, 277, 324, 332 Other Federal Statutes and Bills Alberta Act (1905) 4–5 Edw VII c 3........................................................................... 265 British Columbia Terms of Union 1870.................................................................... 266 Canada Business Corporations Act RSC 1985 c C-44................................................ 127 An Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Québec Secession Ref (Clarity Act) SC 2000 c 26.................................................... 28, 265, 280, 349–351, 354–373, 375–380   Preamble.............................................................................................................. 374   s 1........................................................................................... 352, 353, 359, 366–367     s 2...................................................................................................352, 353, 359, 368   s 3.................................................................................................................353, 365 An Act respecting Constitutional Amendments SC 1996 c 1.................265, 289, 342, 356 Governor General’s Act, RSC 1985 c G-9.................................................................. 265 Interpretation Act RSC 1985 c I-21........................................................................... 365   s 11...............................................................................................................354, 365   s 13........................................................................................................352, 374, 378   s 15...................................................................................................................... 374 Manitoba Act 1870, 33 Vict c 3................................................................................. 265 Newfoundland Act 1949...................................................................................266, 301 Northwest Territories Act RSC 1985 c N-27............................................................. 265 Nunavut Act SC 1993 c 28........................................................................................ 265 Parliament of Canada Act, RSC 1985 c P-1............................................................... 265 Prince Edward Island Terms of Union 1873.............................................................. 266 Provincial Subsidies Act RSC 1985 c P-26................................................................. 170 Rupert’s Land and North-Western Territory Order 1870........................................... 266 Saskatchewan Act (1905) 4–5 Edw VII c 42............................................................... 265 Supreme Court Act, RSC 1985 c S-26........................................................................ 265   s 53...................................................................................................................... 309



Table of Statutes xix

Provincial Statutes and Bills Individual’s Rights Protection Act RSA 1980 c I-2 (Alberta)...................................... 276 Judicature Act RSA 2000 c J-I (Alberta).............................................................149, 303 Courts of Justice Act, RSO 1990 c C-43 (Ontario).............................................149, 303 An Act respecting the Exercise of the Fundamental Rights and Prerogatives of the Québec People and the Québec State, LRQ/RSQ 2000 c E-20.2......................................................................................349–50 An Act respecting the Legislative Council of Québec SQ 1968 c 9............................. 270 An Act respecting the National Assembly RSQ c A-23.1............................................ 270 Avant-projet de loi ‘Loi sur la souveraineté du Québec’, 35th Legislature, 1st Session (6 December 1994).............................................................................. 301 Projet de loi no 1/Bill 1 ‘Loi sur l’avenir du Québec’, 35th Legislature, 1st Session (7 September 1995).................................................277, 301, 303 Rules, Regulations Order in Council PC 1996–1497 (30 September 1996)................................................ 308 United Kingdom Canada Act 1982 c 11............................................................................................... 264 Human Rights Act 1998...............................................................................................3 Quebec Act 1774 14 Geo III c 3................................................................................. 266 International Charter of the United Nations (1945) UNTS 993...................................................... 334 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, GA Res 2625 (XXV) (24 October 1970)................................................................ 334 Final Act of the Conference on Security and Cooperation in Europe (1975) 14 ILM 1292 (Helsinki Final Act)................................................................... 334 International Covenant on Civil and Political Rights (1966) 999 UNTS 171............... 334 Treaty of Paris 1763................................................................................................. 266

1 Constitutionalising Secession?

O

LD HABITS DIE hard. It would seem to require either an intemperate measure of analytic bravura or a misplaced – if not naïve – idealism to suggest that secession could be anything other than a purely political event, and a tumultuous one at that. Indeed, the unilateral rupture and fragmentation of a constitutional order to create or join a separate state would appear to be an issue of so fundamentally and self-evidently a political character that it would exclude by definition, as it were, any possible attempt of constitutional or other law to capture, order and direct its dynamic in any reasonable and efficacious way. Secession represents state-breaking and statemaking: these are political matters antecedent to and beyond the reach of law.1 These matters are for the people to decide, as a basic, constitutive element to any democracy. The very idea of democratic government is that it is for the people to determine the fundamental questions concerning their political and social existence. The law reflects and expresses those value orientations, but does not and may not control or determine them itself. Liberal democratic theory extrapolates this idea by positing a general dividing line between the subjective, problem-solving dynamic, performance/result oriented concept of ‘politics’ on the one side, and the objective, fairness-oriented, principle-neutral, procedural concept of ‘law’ on the other.2 So the law can have nothing really to say or to do in a secession crisis except stand by and await the outcome. How could it be otherwise than that the will of the people should prevail over everything, including and especially the current legal system, constitution included? Secession is a political question in the clearest sense of the phrase. Hence, the question of ‘constitutionalising secession’ or of the ‘law concerning secession’ could never really arise, except perhaps as an academic exercise to demonstrate by counterfactual hypothesis some version of a separation of powers doctrine.3 To accept it otherwise would be unrealistic, and stand the conventional separation of law and politics on its head. It makes no sense, so the argument might continue, to enquire after the 1  D Elazar, ‘Constitution-making: the Pre-eminently Political Act’ in K Banting and R Simeon (eds), Redesigning the State: the Politics of Constitutional Change (Toronto, Toronto UP, 1985) 232, 232–33. 2  See, eg J Habermas, Between Facts and Norms, Contributions to a Discourse Theory of Law and Democracy (W Rehg (trans), Cambridge, Polity, 1996) esp. chs 3 and 4 (law and politics considered through communicative action/discourse theory); C Sunstein, Legal Reasoning and Political Conflict (Oxford, Oxford UP, 1996) (‘incompletely-theorised agreements’); M Loughlin, Public Law and Political Theory (Oxford, Oxford UP, 1992) esp 61 ff (differentiation between the ‘normativist’ and ‘functionalist’ trends to public law analysis); T Peretti, In Defense of a Political Court (Princeton (NJ), Princeton UP, 1999) (‘politicised’ function of courts); F Schauer, Playing by the Rules (Oxford, Oxford UP, 1991) esp. chs 8 and 9 (as something to be overcome); R Dworkin, Taking Rights Seriously (Cambridge (Mass), Harvard UP, 1978) 82, 90 ff and his Law’s Empire (Cambridge (Mass), Belknap/Harvard UP, 1986) 108–13, and ch 6 (‘integrity’); and M Sandel, Liberalism and the Limits of Justice (Cambridge, Cambridge UP, 1982) (the unavoidable and normative role of community grounded beliefs and values). 3   R Strassfeld, ‘If a . . .: Counterfactuals in the Law’ (1992) 60 George Washington LR 339, 397 ff.

2  Constitutionalising Secession? ‘role of the courts in a secession crisis’ except to point out the awkward but inevitable capitulation of the courts to a new political reality. For example, Mahmud analyses 13 cases of regime change or disintegration in terms of Kelsen’s positivist concept of law as a self-standing norm hierarchy. He comes to the conclusion that Kelsen’s concept of legitimacy and validity is impractical and unrealistic and prefers in its stead the US ‘nonjusticiable as a political question’ answer as first worked out in Luther v Borden.4 In effect, the inexorable triumph of effectiveness over legitimacy would seem only to confirm some competing positivist view of law, such as that of Kelsen or that of Hart: The principle of legitimacy is limited by the principle of effectiveness . . . This limitation reveals the repeatedly emphasized connection (so important for a theory of positive law) between validity and effectiveness of law. The norms of a positive legal order are valid because the fundamental rule regulating their creation, that is, the basic norm, is presupposed to be valid only as long as this legal order is effective. As soon as the constitution loses its effectiveness, that is, as soon as the legal order as a whole based on the constitution loses effectiveness, the legal order and every single norm lose their validity.5 (emphasis in original)

Despite their differences in other, more profound aspects of legal positivism, these and other legal positivists postulate the passivity of law, its subordination to or dependency on the political realities of the day, the operative ‘basic norm’ or the sociological fact of the current ‘rules of recognition’.6 But this already begins to show the true colours of the secession issue. By characterising secession as a political issue as opposed to a legal one, we have impliedly (and perhaps also unsuspectingly) assumed a particular doctrine and concept of constitutional law and order. For what is at stake here is not simply the proposition of when or how a newer legal order might supplant an older one. We are really asking about the legitimacy and validity of legal orders, a realisation also adopted by Groarke (among very few others).7 So to propose that secession is a political question, one of morality and politics, and as such forms an a-legal problem in effect begs the question of what constitutional legitimacy entails. It is to rely on concepts of law, politics and the constitution which together foresee very clear and definite boundaries to the meaning and practice of those 4   T Mahmud, ‘Jurisprudence of Successful Treason: Coup d’Etat and Common Law’ (1994) 27 Cornell JIL 49; Luther v Borden 48 US 1 (1849). See also Baker v Carr 369 US 586 (1962) (locus classicus) (Brennan J). See also H Kelsen, Pure Theory of Law (M Knight (trans), Berkeley (Ca), U California P, 1967) 208–11 and his General Theory of Law and State (A Wedberg (trans), London, Russell & Russell, 1961) 117 ff (revolutionary change in legal systems). 5  Kelsen, Pure Theory of Law (n 4) 211, 212. See S Paulson and B Litschewski Paulson (eds), Normativity and Norms: Critical Perspectives on Kelsenian Themes (Oxford, Oxford UP, 1998); B van Roermond, ‘Authority and Authorisation’ (2000) 19 Law and Phil 201; S Paulson, ‘The Weak Reading of Authority in Hans Kelsen’s Pure Theory of Law ‘ (2000) 19 Law and Phil 131; and B Celano ‘Kelsen’s Concept of the Authority of the Law’ (2000) 19 Law and Phil 173 (Grundnorm untenable as based in se, as social power, or as justice). See also C Heidemann, ‘The Creation of normative facts’ (2000) 19 Law and Phil 263 (norms of competence to allow for norm creation). 6   L Green, ‘Philosophy and Law: the Concept of Law Revisited’ (1996) 94 Michigan LR 1687 (unlike Kelsen’s bloodless positivism, Hart is a ‘social constructivist’ for situating law in the social realm as having a history and being a social phenomenon irreducible to any essential ideal) and HLA Hart, The Concept of Law, 2nd edn (Oxford, Oxford UP, 1994). See also (for other versions of positivism) W Waluchow, Inclusive Legal Positivism (Oxford, Oxford UP, 1994); M Kramer, In Defence of Legal Positivism: Law Without Trimmings (Oxford, Oxford UP, 1999); J Coleman, The Practice of Principle (Oxford, Oxford UP, 2001); R Shiner, Norm and Nature: the Movements of Legal Thought (Oxford, Oxford UP, 1992); W Conklin, The Invisible Origins of Legal Positivism (Deventer, Kluwer, 2001). 7   P Groarke, Dividing the State (Aldershot, Ashgate, 2004) (‘remedial right’ view).



Constitutionalising Secession? 3

ideas. It represents a conclusion drawn from, an application of, those presumed but unexpressed – and unargued – concepts. Describing a dispute as a political question or attempting to invoke some variant of the ‘political questions’ doctrine purports to exempt the courts from having to decide certain issues. These issues are seen as better confided to the political branches of government whose experience, resources and decision-making processes are more suited to reaching a determination. The ‘political questions’ doctrine is of long-standing US origin and its modern statement can be found in Baker v Carr.8 Although not necessarily framed in the same terms nor pursued with the same doctrinal fervour, the UK legal system and its heirs (Canada being here relevant) also have a correlative doctrine in the form of privilege and the Crown prerogative. Considerations of the doctrine have taken on renewed significance in the United Kingdom in part with the passage of the Human Rights Act 1998.9 Canadian courts prefer a more functional and pragmatic assessment of politically sensitive issues when confronted with them, relying heavily on their role in the Canadian constitutional framework, especially that of preserving the priority of the Canadian Constitution and constitutional order.10 This has not, however, insulated them from criticism that they have arrogated a too expansive jurisdiction to review government acts and legislation under the Charter of Rights and Freedoms.11 Disputes attracting the ‘prerogative’ or ‘political questions’ designation invariably arise in a constitutional context where the fundamental issue turns on the nature, scope and range of some particular aspect of government and legislative authority in relation to particular rights and freedoms. And as such these controversies cannot but contain highly charged political issues in which the different branches of power, namely judicial, legislative, executive and popular, all vie for a determinative voice in the debate. Situating the court among the other constitutional actors and delimiting its competence and the practical scope to what it can and cannot achieve, as well as differentiating its 8   Baker v Carr 369 US 586 (1962) (Brennan J). See also Banco Nacional Cuba v Sabbatino 376 US 398, 423, 427–28 (1964) (Harlan J); Gilligan v Morgan 413 US 1 (1973); Goldwater v Carter (1979) 444 US 996 (1979); Goldman v Weinberger 475 US 503 (1986); and Nixon v United States 506 US 224 (1993). 9   See, eg R (Gentle) v Prime Minister and others [2008] AC 1356; R (Bancoult) v Secretary of State (FCO) (No 2) [2008] 3 WLR 955 (PC); T Campbell and J Goldsworthy (eds), Judicial Power, Democracy and Legal Positivism (Aldershot, Ashgate, 2000); C Forsyth (ed), Judicial Review and the Constitution (Oxford, Hart, 2000); M Elliott, The Constitutional Foundations of Judicial Review (Oxford, Hart, 2001); and see J Goldsworthy, The Sovereignty of Parliament: History and Philosophy (Oxford, Oxford UP, 1999). 10   Reference re Resolution to Amend the Constitution [1981] 1 SCR 753; Operation Dismantle v The Queen [1985] 1 SCR 441; Canada (Ministry of Energy, Mines and Natural Resources) v Canada (Auditor General) (1989) 61 DLR (4th) 673 (SCC); Reference re CAP [1991] 2 SCR 525, Reference re Secession of Québec [1998] 2 SCR 217. See generally L Sossin, Boundaries of Judicial Review: the Law of Justiciability in Canada (Toronto, Carswell, 1999) 131–200 (comparative (United States, United Kingdom, Australia and Canada) review). 11   M Mandel, The Charter of Rights and the Legalisation of Politics in Canada, rev edn (Toronto, Thompson Educational, 1994); F Morton and R Knopff, The Charter Revolution and the Court Party (Toronto, Broadview, 2000); W Mackay, ‘The Legislature, the Executive, and the Courts: the Delicate Balance of Power, or Who is Running this Country Anyway?’ (2001) 24 Dalhousie LJ 37; P James, D Abelson and M Lusztig (eds), The Myth of the Sacred: the Charter, the Courts, and Politics of the Constitution in Canada (Kingston, McGillQueens UP, 2002); R Martin, The Most Dangerous Branch: How the Supreme Court of Canada has Undermined Our Law and Our Democracy (Kingston, McGill-Queens UP, 2003); P Hogg and A Bushell, ‘The Charter Dialogue Between Courts and Legislatures (Or Perhaps the Charter of Rights Isn’t Such a Bad Thing After All)’ (1997) 35 Osgoode Hall LJ 75 (adaptive construct based on a ‘dialogue’ between courts and legislatures); C Manfredi and B Kelly, ‘Six Degrees of Dialogue: A Response to Hogg and Bushell’ (1999) 37 Osgoode Hall LJ 513; and P Hogg and A Thornton, ‘Reply to “Six Degrees of Dialogue”’ (1999) 37 Osgoode Hall LJ 529.

4  Constitutionalising Secession? nature and function from those other actors by consequence, forms unquestionably a logical precursor to qualifying any situation as ‘juridical’ or not. Our sense of what is or is not ‘legal’ in character relates to our sense of who the ‘law’ actors in a constitutional order are, and what they do. Thus, whether the justification for such exemption refers to the legal character of the dispute, the inherent limits to judicial procedure, resources and remedies, the role of the court, standing, or other like matters, the distillate of all these various rationales ultimately gathers around a preconception of the governing constitutional order and its particular version of the separation of powers.12 In particular, this basket of considerations covers what power and authority the court has to examine a dispute, the rules governing the situation, and how it might calculate a solution that actually resolves the problem. We should understand these three broadly defined categories to represent an analytical mechanism by which to identify the appropriate locus of legitimate decision-making, whether our ultimate referent is a court, a legislature, the executive or simply the people. It is little wonder that these are also the principal focus of the extensive body of US study of the doctrine and its attendant issues of final authority to interpret the constitution, the counter-majoritarian difficulty, and so on.13 That process of identification, and the identification itself, constitute the doctrine of the separ­ ation of powers. All constitutions apply some notion of the separation of powers, not only to protect the judicial independence of courts, but also to demarcate the limits of the jurisdiction and competence of the courts. Of course, the doctrine also serves to parcel off the power and authority of the other branches of social power as well. Separating and dividing social power among different actors and in different aspects represents a constitutional doctrine of general import. And when we work towards situating decision-making authority with this or that constitutional actor, we are doing more than mapping out passively a surface structure to the constitution with interrelations and tension between those actors. By allocating this or that function to the one or other actor, we thereby accept that representative of social power to define and administer the common standards and values which bind us to our fellow citizens in political association.14 To borrow from Havel’s Chomsky-inspired jargon, the legitimacy of decision-making power pertains to the ‘deep structure’ of a constitution. Havel applies Chomsky’s theory of transformative generative linguistics and syntactic relations to establish the ‘deep structure’ of the US Constitution in relation to judicial power. On that foundation he argues 12   See, eg L Henkin, ‘Is there a “Political Questions” Doctrine’ (1976) 85 Yale LJ 597; M Redish, ‘Judicial Review and the Political Question’ (1985) 79 Northwestern Uni LR 1031; R Nagel, ‘Political Law, Legalistic Politics: A Recent History of the Political Questions Doctrine’ (1989) 56 U Chicago LR 643; L Sandstrom Simard, ‘Standing Alone: Do We Still Need the Political Questions Doctrine?’ (1996) 100 Dickinson LR 303; W McCormack, ‘The Justiciable Myth and the Concept of Law’ (1987) 14 Hastings Cons LQ 595 and ‘The Political Questions Doctrine – Jurisprudentially’ (1993) 70 U Detroit Mercy LR 793; and J Choper, Judicial Review and the National Political Process (Chicago (Ill), Chicago UP, 1980). 13   See, eg H Wechsler, ‘Toward Neutral Principles of Constitutional Law’ (1959) 73 Harvard LR 1; A Bickel, The Least Dangerous Branch, 2nd edn (New Haven (Conn), Yale UP, 1986); J Hart Ely, Democracy and Distrust (Cambridge (Mass), Harvard UP, 1980); Choper, Judicial Review (n 12); C Massey, ‘The Locus of Sovereignty: Judicial Review, Legislative Supremacy, and Federalism in the Constitutional Traditions of Canada and the US’ (1990) Duke LJ 1229, 1299 ff; and G Fletcher, ‘The Separation of Powers: A Critique of Some Utilitarian Justifications’ in J Pennock and J Chapman (eds), NOMOS XX: Constitutionalism (New York, New York UP, 1979) 299. 14   See, eg Mandel, Legalisation of Politics in Canada (n 11) and W Bogart, Courts and Country: the Limits of Litigation in the Social and Political Life of Canada (Toronto, Oxford UP, 1994).



Constitutional Order and Disorder 5

constitutional justification to transfer US judicial power to supranational tribunals.15 By ‘deep structure’ I follow Conklin to mean the constitutional order in which people conceive of the basic values, interests, standards of behaviour, and such like, all of which together establish, inform and regulate their mutual and ongoing association.16 Hence, the separation of powers issue goes to the very heart of what a constitutional order is, of what constitutes an enduring, stable and peaceful political association among differing individuals. That core idea and mutual agreement then transforms into the surface structure arranging power relations among the various branches of organised social power. Accordingly, to ask about the justiciability of secession is at one level to ask about who may decide, and how, for and on behalf of a polity’s members, so that the decision may be accepted by them and all others as the grounds for further interaction. At the deeper level, we are called to examine the very mechanics of a constitutional order and the motive forces creating and sustaining it.17 Given all the above, we should pause to realise that we have happily remained within the comfortable margins of constitutional law and theory. Characterising secession as an a-legal, political question hardly achieves the objective of removing it from legal analysis. Quite to the contrary, it puts us right in the middle of an analytic jurisprudence concerning the fundamental ideas of constitutional order and law. CONSTITUTIONAL ORDER AND DISORDER

In the long and turbulent history of social power, a state most conducive to peace, order and general happiness among men is said to be one ruled by and under laws which have been authored wholly by those who are themselves subject to, and administer, those laws. As Mill wrote: There is no difficulty in showing that the ideally best form of government is that in which the sovereignty, or supreme controlling power in the last resort, is vested in the entire aggregate of the community; every citizen not only having a voice in the exercise of that ultimate sovereignty, but being, at least occasionally, called on to take an actual part in the government, by the personal discharge of some public function, local or general.18

Norbert Elias, in his The Civilising Process, took as one of his central theses the overall diminution of violence as a central or prominent feature in our twentieth century existence compared to the life and times of our forebears.19 So inviting is the premise of the decline of violence and the corresponding recognition of the need and benefits of mutual   B Havel, ‘The Constitution in an Era of Supranational Adjudication’ (2000) 78 North Carolina LR 257.   Borrowing also from W Conklin, Images of a Constitution (Toronto, Toronto UP, 1989) (surface levels and deeper levels in the context of constitutional order). 17   G Craven, ‘Of Federalism, Secession, Canada and Québec’ (1991) 14 Dalhousie LJ 231, and adopted by G Marchildon and E Maxwell, ‘Québec’s Right of Secession under Canadian and International Law’ (1992) 32 Virginia JIL 583. See also R Howse and A Malkin, ‘Canadians are a Sovereign People: How the Supreme Court Should Decide the Reference on Québec Secession’ (1997) 76 CBR 186; and J Webber, ‘The Legality of a Unilateral Declaration of Independence under Canadian Law’ (1997) 42 McGill LJ 281. 18   JS Mill, ‘Considerations on Representative Government’ in his Utilitarianism, On Liberty, and Considerations on Representative Government (HB Acton (ed), London, Everyman Library, 1983) 207. See also Marsilius of Padua, Defensor Pacis (A Gewirth (trans), Toronto, Toronto UP, 1998); J Locke, ‘The Second Treatise’ in his Two Treatises of Government (P Laslett (ed), New York, Mentor/New American Library, 1965). 19   N Elias, The Civilising Process: the History of Manners and State Formation and Civilisation (E Jephcott (trans), Oxford, Blackwell, 1996). 15 16

6  Constitutionalising Secession? assurances of peace and security across hitherto international boundaries, that van Creveld relies on it as a central pillar in his prognostications for the decline of the state.20 Now whether Elias’ contention is made out on a larger scale or on a smaller, localised scale, or both, is a matter of debate, just as much as whether its promise for peace and harmony in the twenty-first century will be met. But we may certainly accept without much hesitation one facet of Elias’ thesis, namely that real, gross violence is not a daily experience for most of us in the Western, westernised world, and that we have and seek to have a relatively peaceful existence with one another. The expansion of peace and security over time would thus seem to track the development of popular sovereignty – the will of the people. The premise to the argument would seem to be that the more people can and may control their daily intercourse using standards and criteria of their own making and choosing, the more likely it is that they should comply and co-operate with one another.21 Respectfully intoned here might be the much-used phrases of ‘selfdetermination’ and ‘self-government’. Corresponding to this would be the growth and evolution of constitutionalism, broadly understood as a principle of ordering society and social power according to certain stable publicly-made rules binding (and empowering) officials and citizens alike.22 A constitutional order channels those rougher aspects of popular sovereignty such as mob rule and the oligarchy of elites into a framework of rules, restraints and constraints. This framework provides the reference point and source for the exercise of social power in the name of the ‘people’. This notion of a reference point echoes the idea of constitutional ‘pre-commitment’, referring to the antecedent social agreement and consensus on value orientations constitutive of that society itself, and Sunstein’s idea of ‘incompletely theorised agreements’.23 Constitutionalism gives order and structure to the otherwise unbounded and anarchic application of social power.24 It does so in particular through its concrete manifestation as a body of constitutional law. Constitutional law is the present articulation of that historical process by which a society would characterise and institutionalise the use and control of power among and against its members. In this logical progression from popular sovereignty, through constitutionalism, to constitutional law, we ought to remind ourselves that a principal and express objective 20  M van Creveld, The Rise and Decline of the State (Cambridge, Cambridge UP, 1999) 337 ff; contra T Grant, ‘Review Essay: the Rise and Decline of the State’ (2000) 9 JTLP 309. See generally J Bartelson, The Critique of the State (Cambridge, Cambridge UP, 2001), and G Poggi, The State: Its Nature, Development, and Prospects (Cambridge, Polity Press, 1990). 21   See, eg A Keegan, Democracy in Question: Democratic Openness in a Time of Political Closure (Stanford (Calif), Stanford UP, 2003). 22   TRS Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford, Oxford UP, 2001) 261; JE Lane, Constitutions and Political Theory (Manchester, Manchester UP, 1996) 166–70, 183–85; GFM van der Tang, Grondswetsbegrip en grondwetsidee (Rotterdam, Gouda Quint, 1998) 185 ff, 205 ff. See also C McIlwain, Constitutionalism: Ancient and Modern, rev edn (Ithaca, Cornell UP, 1947); TRS Allan, Law, Liberty, and Justice: the Legal Foundations of British Constitutionalism (Oxford, Oxford UP, 1993); and D Germino, ‘Carl J. Friedrich on Constitutionalism and the “Great Tradition” of Political Theory’ in Pennock and Chapman, Constitutionalism (n 13) 19. 23  J Waldron, ‘Pre-commitment and Disagreement’ in L Alexander (ed), Constitutionalism: Philosophical Foundations (Cambridge, Cambridge UP, 1998) 271, 274–76; R Kay, ‘Pre-commitment Rules’ (1981) Ohio State LJ 187; S Holmes, Passions and Constraint: On the Theory of Liberal Democracy (Chicago (Ill), Chicago UP, 1995) and his ‘Precommitment and the Paradox of Democracy’ in J Elster and R Slagstad (eds), Constitutionalism and Democracy (Cambridge, Cambridge UP, 1988) 195; and C Sunstein, The Partial Constitution (Cambridge (Mass), Harvard UP, 1995) 4 ff. 24   J Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge, Cambridge UP, 1995) 62 ff (‘seven features of modern constitutionalism’) and 183 ff.



Constitutional Order and Disorder 7

of constitutionalism (including constitutional law) is to bridle and rein state authority over individuals.25 It serves to ensure popular sovereignty and not the sovereignty of government overstepping its bounds as the representative of the will of its constituents. Thus, the primary concern for constitutionalism is ordering and regularising the application of government power against individuals so as to avoid arbitrariness, undue interference with individual liberty, and confusion and dispute over the appropriate decision-making organ. And it achieves these objectives by specifying in advance the relevant political actors and their respective spheres of action, and by subjecting them and the entire arrangement to the rule of law. By the ‘rule of law’ I mean the institutionalising of that structure of power-exercising organs into the form of a legal system with the following characteristics.26 First, the expression and exercise of any binding, enforceable authority occurs by way of law.27 Secondly, the author of the law also stands as an addressee thereof. And thirdly, it follows that the laws bind authors and addressees alike.28 Together, these three elements encourage the orderly, responsible and representative application of social power through political agency, and discourage the arbitrary and discriminatory exploitation of some or all citizens. Thus the polity is assured a peaceful and stable co-existence insofar as both official and citizen alike observe the rule of law.29 Nothing here demands as a matter of course that the structure of political agencies, the outline of their respective spheres of action and protected domain of individual rights and freedoms be rendered all or in part into a written document called ‘the constitution’. These principles of action may just as well be intuited or implied in various legislative documents, political practices and legal customs, as in the case of the United Kingdom and Canada, as they may be laid out with varying degrees of care and detail in a series of express constitutional instruments, as in the cases of Belgium, Canada and the United States. Whether the mix of historical accident, intentional act and accretion of custom produces a written document or not, constitutionalism and constitutional law remain directed at controlling the authority of the state. But it should also be apparent that the rule of law and the constitutional order likewise exert control over the various manifestations of popular sovereignty. First, the rule of law commits the expression of popular sovereignty to the forms and actors specified in the constitutional order. Popular will cannot simply disregard established con­ stitutional practices and conventions when these do not suit its particular objectives and intentions, without losing that most important and significant stamp of authority it possesses. This explains the careful attention paid to constitutional interpretation, 25   AV Dicey, An Introduction to the Study of the Constitution (ECS Wade intro) (London, Macmillan/St Martin’s, 1967) 188–96; I Loveland, Constitutional Law: A Critical Introduction (London, Butterworths, 1996) 1–26; R Kay, ‘American Constitutionalism’ in Alexander, Constitutionalism (n 23) 16, 17–25; A Hutchinson, ‘The Rule of Law Revisited: Democracy and Courts’ in D Dyzenhaus (ed), Recrafting the Rule of Law: the Limits of Legal Order (Oxford, Hart, 1999) 196, 198; and R Alexy, A Theory of Constitutional Rights (J Rivers (trans), Oxford, Oxford UP, 2002) esp 179 ff, 223 ff, 260–65 and 349 ff. 26   See generally L Tremblay, The Rule of Law, Justice and Interpretation (Kingston, McGill-Queens UP, 1997); C Sypnowich, ‘Utopia and the Rule of Law’ in Dyzenhaus, Recrafting the Rule of Law (n 25) 178; Hutchinson, ‘The Rule of Law Revisited’ (n 25) 196, and Allan, Constitutional Justice (n 22). 27   L Fuller, The Morality of the Law, rev edn (New Haven (Conn), Yale UP, 1969) (traditional characteristics of law as general, forward looking, certain, promulgated, and so on, to render the expression and exercise of such power clear and comprehensible). 28   TRS Allan ‘The Rule of Law as the Rule of Reason: Consent and Constitutionalism’ (1999) 115 LQR 221, 229, 231, 236; and see, eg Roncarelli v Duplessis [1959] SCR 921. 29   Reference re Manitoba Language Rights [1985] 1 SCR 721, paras 60, 62 ff.

8  Constitutionalising Secession? precedent and custom at times of momentous political and social change which test the deep structure of a polity, in order to mould and characterise those shifts in the deep structure as nonetheless contained and delimited by it. Such a premise underpins, for instance, Ackerman’s We The People: Foundations and We The People: Transformations.30 A similar proposition is suggested by the ‘constitutional faith’ advocated by Levinson, and the argument of ‘moral weight’ underscoring Craven’s and Webber’s positions on the usefulness of a judicial opinion on the constitutionality of secession.31 The intuition here grounding the continuing application of constitutional rules ideates not so much the sense of obligation arising from social contract, a set of rules or promises, but rather a sense of coming into existence, or being recognised, as a political force precisely because a group exists under some constitutional order. That order is necessarily implied in the will formation process and the decision ultimately agreed upon. If a group coalesces out of a mix of objectives and interests, it is the constitutional order which serves as the crucible allowing that amalgam to form in the first place. Thus, to deny the constitutional structure is to deny the deep structure of the polity, and in turn, to deny the existence of the group as a politically relevant formation. It is the following of those rules which impresses the decision with a stamp of legitimacy and validity. Popular will cannot be divorced from constitutional order. Secondly, the rule of law forces the particular expression of popular will through the filters of social values and those particular rights and freedoms inscribed or implied in the formal constitution itself. The filtering process is performed primarily by the courts when reviewing legislation and executive acts for conformity with the constitution. This produces joinder on the issue of whether the courts or the legislature have the last word on an accurate reading and articulation of authentic public will based on the deep structure.32 Channelling public opinion and decision-making into the value framework of rights and freedoms acts as a supervisory and enforcement mechanism to ensure the effectiveness and fairness of the democratic deliberative process. In this fashion, the rule of law and constitutionalism can claim to protect the integrity of democratic, popular will formation. Of course, I recognise that this proposition is nonetheless subject to much debate and criticism in political and legal theory. The principal dividing line is between liberalism and republicanism. Liberalism favours the rights and values counterbalance to the rawer political give-and-take of working out polity’s value orientations. Republicanism, on the other hand, argues that the deliberative process implicitly guarantees an accordance with the deep structure and that the rights counterbalance claimed by liberalism is both superfluous and potentially discontinuous, or even opposed to the deep structure.33 I do not need to take a position here (fortunately) for or against either a liberalism thesis of a separation between law and politics or a republican one of the antecedent integration of 30   B Ackerman, We The People: Foundations (Cambridge (Mass), Belknap/Harvard UP, 1991) and We The People: Transformations (Cambridge (Mass), Belknap/Harvard UP, 1998), see also his ‘Revolution on a Human Scale’ (1999) 109 Yale LJ 2279. 31   S Levinson, Constitutional Faith (Princeton (NJ), Princeton UP, 1988); Craven ‘Of Federalism, Secession’ (n 17) and Webber ‘Legality’ (n 17). 32  Bogart, Courts and Country (n 14) 255–88, 301–19. 33   See, eg, F Michelman, ‘Constitutional Authorship’ in Alexander, Constitutionalism (n 23) 61, and R Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge, Cambridge UP, 2007).



Constitutional Order and Disorder 9

popular will in the law. My concern is the durability and efficiency of the constitutional architecture to contain and direct the currents of popular will formation. My sketch of popular sovereignty drawn through the canon of constitutionalism and the rule of law would begin to trace out an analytical framework with which to assess the constitutional law response to a secession crisis. The principle of popular sovereignty establishes in general terms that citizens are collectively the only legitimate source of all legislative power, and thus the only legitimate author of any law binding them. The rule of law establishes broadly that the author of the laws is an addressee, and that the laws bind authors and addressees alike. Now sovereignty consists in not being subject to any higher law than one’s own will, which of course is mutable. This would suggest that sovereignty acts outside of, or independently of, any given legal framework. Yet the rule of law would clearly reduce sovereignty to an exercise of political will inside a particular legal framework. On this view, however, popular sovereignty would exist inside, in virtue of, a legal framework. Hence, the law (especially constitutional law) represents both the strength and the weakness of the idea of popular sovereignty. The law gives form to, articulates and implements popular will. But at the same time it would seek to control it by limiting the manner and scope of its exercise. All this goes towards suggesting that the core idea to any constitutional order is an adept, sustainable balancing or integration of popular sovereignty with the rule of law. That is, the test of sovereignty is not only its willingness to obey the precepts of constitutional law, but above that, the accuracy with which constitutional law duly translates popular sovereignty into the constitutional order. Has that translation become too restrictive and ossified by institutional pretensions? Has that translation misrepresented, discoloured or omitted significant facets? How well constitutional law provides for, encourages and facilitates the process of value formation and enforcement in society, for the articulation and representation of the constitutional deep structure, will determine how well and effectively (if at all) it can direct authoritatively a secession crisis. A constitutional law analysis of secession attends to the foundations and management of order and disorder in a political association. Disorder: A Secession Crisis A secession crisis is quintessentially a situation of constitutional disorder. In ordinary terms, a secession crisis arises when a section of the polity purports to reject the established constitutional order and to substitute itself as sole political and legal authority over defined territory. Such conduct is sometimes referred to as a ‘unilateral declaration of independence’ (‘UDI’). Examples of UDIs (successful and unsuccessful) abound, including the American Declaration of Independence, the 1965 Rhodesian de facto UDI from the United Kingdom, the 1970 secession of East Pakistan (Bangladesh), and the abortive secessionary movements in the Congolese Katanga region or in Nigerian Biafra. Of course, an act of secession is not necessary to produce a secession crisis. A polity may simply express its firm desire to secede and seek to take the necessary steps to implement its desire. In this latter scenario, it may or may not turn out ultimately that a secession occurs. For example, it is certainly reasonable to say that Canada has faced two secession crises, the first in 1979–80 and the second in 1995. On both occasions, the provincial government in Québec precipitated the crisis by calling for a popular vote, by provincial

10  Constitutionalising Secession? referendum, to approve a proposed authorisation for the provincial government to begin the process of secession. The first secession referendum occurred on 20 May 1980 in Québec, and the government’s ‘sovereignty-association’ proposal was defeated by a majority of 59.5 per cent. The second occurred there again on 30 October 1995. The Québec electorate narrowly rejected the provincial government’s proposal for a ‘new economic and political partnership with Canada’ by a slim majority of 50.48 per cent. Secession inevitably is preceded by and leads to further constitutional stress and dis­ order, characterised by political tension, social conflict and even military intervention. After all, secession by UDI is a form of revolution. The political act of separating polities, or taking steps to initiate separation, carries with it significant collateral social and economic upset, adding to and spurring the very real risk of substantial violent and nonviolent civil disobedience.34 It stands to reason that any attempt to divide a state without absolute or substantial consensus by all political interests will surely invite every possible objection and obstruction, even armed response, as a means of subduing the threat to the state’s continued existence as a whole. See the examples to date of the supposed UDIs in Nigeria, East Pakistan, Ethiopia and Yugoslavia. In addition to any formal state response, individuals and groups both within and without the affected region may react with force in support of or against the secessionary or reactionary forces. Inside the region, violence would serve as a means of coercion and pressure for or against the population supporting secession. Examples abound: Chechyn rebels, the Kosovar UCK, the Tamil Tigers, the IRA and the Islamic rebels of the Philippine Moro region. Outside the seceding territory, similarly violence would be directed against identifiable members of or sympathisers with the seceding group as punishment, revenge or ethnic cleansing. Likewise, such persons may act as a fifth column, to destabilise and to terrorise. And there is also the potential for that type of violence which seeks to profit from government weakness either for its own aims and political motives, linked to or separate from the secession issue. Of course, apart from violence connected to the secession crisis, there may also arise forms of civil disobedience and protest, either to pressure political authorities to take decisive steps (for or against) or to demand participation in decisions on official measures (for or against). Civil strife aside, a secession crisis carries with it significant social and economic complexity, over and above any question of the division of public assets and liabilities.35 It is undeniable that the political act of reconstituting an independent polity carries with it significant legal implications as a result of attempting to or succeeding in establishing a new legal order. Put simply, the reconstitution of sovereignty into a new polity means 34   See, eg J Finn, Constitutions in Crisis: Political Violence and The Rule of Law (Oxford, Oxford UP, 1991); H Wilson, International Law and the Use of Force by National Liberation Movements (Oxford, Oxford UP, 1988); and E Chadwick, Self-Determination, Terrorism and the International Humanitarian Law of Armed Conflict (The Hague, Martinus Nijhoff, 1996). In a Canadian context, see, eg R Young, The Secession of Québec and the Future of Canada, 2nd edn (Kingston, McGill-Queen’s UP, 1998) (assessing the consequences of a secession victory, rather than the constitutional modalities in advance thereof); D Drache and R Perrin (eds), Negotiating with a Sovereign Québec (Toronto, James Lorimer & Co, 1992); P Monahan, Cooler Heads Shall Prevail: Assessing the Costs and Consequences of Québec Secession (Toronto, CD Howe Institute Commentary No 65, 1995); and P Monahan, M Bryant and N Coté, Coming to Terms with Plan B: 10 Principles Governing Secession (Toronto, CD Howe Institute Commentary No 83, 1996). 35   See, eg, Young, Secession of Québec (n 34); Drache and Perrin, Negotiating with a Sovereign Québec (n 34); W Dodge ‘Succeeding in Seceding?: Internationalizing the Québec Secession Reference under NAFTA’ (1999) 34 Texas Int’l LJ 287; and G Carlton ‘When Reality Sets In: Why Québec Could Not Exist as an Independent Nation’ (1998) 7 Detroit College of Law J Int’l L and Prac 465.



Constitutional Order and Disorder 11

that the secession crisis ruptures the hitherto single unified legal system and administration of justice. It is not simply a question of a transfer of legislative authority and judicial loyalty to a new government and sovereign. Secession creates a new legal order. Clearly implicated then are those disputes which involve parties from the remaining polity and the seceding polity. A national case becomes an international case, subject to conflicts of laws rules and the rules concerning the recognition and enforcement of judgments. Public law actions, in particular criminal and tax proceedings, fall subject to the rules that one country will not enforce the punitive laws of another within its borders. Action against the officials or institutions would be recharacterised from administrative or constitutional to actions against independent sovereigns, which thus may attract the benefit of sovereign immunity. For example, national contracts become international contracts subject to appropriate export-import controls; national firms may become internationalforeign firms subject to foreign business regulations; and national property owners may become foreigner owners subject to restrictions on ownership. Immigration and border control regulations would apply, once the dust and boundary disputes have settled. Cases wholly within the new legal system would have to contend with transitional rules as well as the significant issues of precedent and the succession-continuation of legal principles and values. After all, change of constitution suggests a shift or alteration in underlying legal values. All this accounts for (political) behaviour during and after the crystallisation of the political will and resources to secede. Not to be forgotten is the situation prior to the UDI. The antecedents to the secession crisis are equally important considerations in assessing the explosiveness of the situation, the drive and resistance of the seceding polity, and the opposition of the rump state. As Bartkus and Bookman argue, the precipitation of a true secession crisis in which a polity makes serious efforts and commits significant resources to the secession project suggests that the chance or need for success outweighs the costs, risks and deprivations associated with seceding.36 The civility or lack thereof in the antecedent stages should stand as a good indicator as to how much informed debate and how much violence to expect from both parties. More importantly and as I will argue, the degree to which the rule of law and basic rights were respected in the affected region bears heavily on the conduct and (ultimate) resolution of the crisis situation. Indeed, the workings of the rule of law and human rights before the crisis may be said to have begun to influence in no small measure the perception of, and test the legitimacy of, the motives to secede and oppose secession. Let me put this general description of secession into the terms of constitutional order used above. Pursuing the premise of popular sovereignty to its natural limits, we may conclude that any identifiable group ought to enjoy control over its political and social destiny. That is, any such group has a right to ‘self-determination’ which bestows upon it some significant degree of political autonomy. Law and constitutional order ought to operate here in function and in service of the nation, of a people. In effect, these represent elements reflecting a pre-established or already given moral and social unity and coherence among members of the group, constituting them in fact as that group. The constitutional order should not so much frame and organise the mechanisms for action co-ordination among diverse individuals and interest groups, as reflect and articulate 36  V Bartkus, The Dynamic of Secession (Cambridge, Cambridge UP, 1999) 117 ff; M Bookman, The Economics of Secession (London, Macmillan, 1993) 37 ff, 94 ff. See also L Hooghe, Separatisme tussen twee projecten voor natie-vorming (Leuven, Symons/KU Leuven, 1989).

12  Constitutionalising Secession? such an order immanent in the group itself.37 Hence, the legal system, including constitutional law, does not act as a bridge or mediation mechanism to co-ordinate diverse perspectives and interests (or at least does not have to act that way). It merely re-enforces a cultural disposition. And so the idea of the rule of law does not transcend particular group interests and norms and cannot serve as a limit or restraint upon popular sovereignty. This cast of the principle of popular sovereignty harbours within itself the potential for a self-destructive fragmentation when individual groups seek to pursue the entitlement promised them by that principle. Constitutional disorder therefore originates in an imbalance between the rule of law and popular sovereignty. That is, a group of citizens asserts the supremacy or priority of their specific common will and interests over the wider, more generalised interests and standards of a broader cut of society, as taken up in the laws and politics of that state. The latter (so the group argues) dilute or hinder the legitimate aspirations of the group or their realisation, to the detriment of the continued existence of the group. In sum, their narrower, group-specific interests arrogate greater normative weight as standards of behaviour, interaction and reasons for action than the wider, more generalised interests of the larger political community. Given the presumed higher value of those aspirations, and of the continued existence of the group, the only solution would seem the splitting off of the group as its own political and legal entity separate from the larger social assemblage. Thus we come to a secession crisis. The imbalance or disjunction between popular sovereignty and the rule of law opposes the legitimacy of the group’s will and interest to the validity of the law and legal order. The dividing line runs along the proposition that the former is more directly and substantially representative of what members of the group consider binding and authoritative. As a more authentic expression of the group’s common will, the former outweighs the latter, being the normal and expected mechanism hitherto prescribed by the constitutional system for ascertaining the will of the people. ‘Legitimacy’ points to the evaluation of content and process as having a higher standing or authenticity than mere ‘validity’, which refers only to process. By virtue of this normative superiority the group may ignore, reject or supplant existing constitutional norms otherwise binding and effective. They simply decide that these do not apply to them any longer. Thus in a secession crisis, the seceding group claims in effect that it is the only and proper source of all decision-making affecting members of that group, even though the resolution to secede impacts on and concerns all other erstwhile co-citizens outside the secessionist group. Furthermore, the only right the latter have, so the argument continues, is at best one of consultation and participation in negotiating the details of splitting up the country. They may have no say in the determinative decision to separate or not. That a secessionist group’s aspirations and norms take on such a defining and conclusory role as to separate the group from the rest of the polity, suggests a tectonic displacement of the constitution’s deep structure. Supposedly the constitutional order had managed up to this point to modulate and mediate the diverse opinions and interests of citizens. But the secession crisis evidences a rift between a constitution’s deep structure and its surface, as well as a fragmentation of the commonalities at that deeper level associating individuals into a polity. The process of transforming private desires into 37   The hypothesis of both communitarian and republican constitutional theories: M Walzer, Spheres of Justice: A Defense of Pluralism and Equality, new edn (New York, Basic Books, 1984); Sandel, Limits of Justice (n 2) 179 ff and Michelman ‘Constitutional Authorship’ (n 33) 81.



Constitutional Order and Disorder 13

public interests, local concerns into national policy, has been interrupted or has failed completely. Let me pause for a moment in this analysis of secession as constitutional disorder. I have characterised secession in terms of a disjunction between popular sovereignty and the rule of law, more specifically, an attempt to re-allocate the appropriate locus for decision-making and the exercise of social power, and a collapse of the process of creating a deep structure and transforming it into a particular constitutional order. Unlike most other commentators and assessments of secession, I am therefore not pushed to consider the legality of secession from a public international law perspective. For example, Hanna favours international law because of its perception as being unbiased in favour of maintaining the current constitutional order and because the protection of human rights can no longer be considered a matter of domestic jurisdiction in a secession crisis.38 So too does Buchanan, proposing an international legal order for contested secessions, yet without first answering why national constitutional considerations should not govern exclusively or in first instance.39 And in his earlier work, Secession: The Morality of Political Divorce from Fort Sumpter to Lithuania and Québec, he argued for a constitutional accommodation to secede.40 The concepts of sovereignty, law, deep structure and locus of power, all represent constitutional reference points. They delimit the ambit of constitutional order and law. Accordingly, they allow me to frame the legal issues of secession under a constitutional law rubric. A secession crisis clearly requires us to reconsider that transformation process (from deep structure to superstructure). The legal questions pertain not only to defining who gets to decide about state dismemberment and in what manner, but also to evaluating how and why the existing constitutional order could allow the association among individuals at the deep structure level to become radicalised around a particular grouping so as to render it unable to bridge differences and promote peaceful co-existence. With the prospect of an upheaval to the political, legal, economic and social life of a community as caused by a secession crisis, it would seem surprising if constitutional law had nothing at all to offer by way of maintaining peace and order. Since a secession clearly affects a constitution, surely we could expect something by way of a process of constitutional amendment. If the call for secession originates in or refers to certain political or social grievances or to acts of unredressed exploitation or oppression, a normally functioning constitutional order should be able to provide peaceful, orderly and acceptable solutions without succumbing to a fragmentation or dissolution. After all, modern constitutions inevitably guarantee some form of human rights and freedoms. Once we begin to peel away the layers of secondary or corollary issues to secession, and begin to focus on the root causes and motives for secession, the emphasis can move from the purely political and fall on the other side of the equation: the rule of law. Accepting that the self-instituting character of popular sovereignty compels it to express itself in 38   R Hanna, ‘Right to Self-Determination in In re Secession of Québec’ (1999) Maryland JILT 213, 242–45; L Frankel, ‘International Law of Secession: New Rules for New Era’ (1992) 14 Houston JIL 521. 39   A Buchanan, ‘Self-Determination, Secession, and the Rule of Law’ in R McKim and J McMahan (eds), The Morality of Nationalism (Oxford, Oxford UP, 1997) 301, 303–4; his ‘The International Institutional Dimension of Secession’ in P Lehning (ed), Theories of Secession (London, Routledge, 1998) 227, and his Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford, Oxford UP, 2003). 40   A Buchanan, Secession: the Morality of Political Divorce from Fort Sumpter to Lithuania and Québec (Boulder (Colo), Westview, 1991) 127 ff.

14  Constitutionalising Secession? co-ordinated and effective fashion through law (constitutional law in particular), we have good reason to question whether a secession crisis is a law-less, purely political event falling outside the bounds of constitutional law. As a form of political expression, even if one of Elazar’s ‘state-making and state-breaking’, there should be some constitutional legal element to it. Secession should be measurable in constitutional terms. And in providing that measurement, I would argue that we come to understand the deep structure of a constitution and how it can generate normativity, control and obedience. A RIGHT ORDERING OF SECESSION

In its simplest and clearest of definitions, secession represents the unilateral attempt of one section of the polity to disassociate itself from the rest, and the rejection of latter’s political and legal authority over the former.41 A group of citizens declares that henceforth, a different constitutional authority, exercising legal and administrative power, obtains over them and their territory. Put bluntly, secession is the dismemberment in whole or in part of an extant state. For the purposes hereof, it is irrelevant whether the seceding polity would ultimately constitute itself as an independent state or join another state in a fully integrated manner or in some federal way, except insofar as these intentions form or suggest justificatory motives for separating in their own right. Now granted, this states the case in rather strong negative terms. To assuage separation anxiety, the alternate approach generally emphasises the state-building, the pouvoir constituant, aspect of secession. That is, a group of like-minded individuals decide to form their own state, with its own constitution of public officials and administration. It just so happens that to constitute fully this new polity, they have to remove themselves and some territory from another constituted polity. The change of focus does not necessarily extinguish the negative aspects of secession. A secession must necessarily dismantle the polity that existed hitherto, with all the consequent tension and upset that entails. Whether seen as state-breaking or state-making, the obvious ingredient of secession is politics. Little wonder then that the study of secession finds its primary home in political theory. A number of political theorists have attempted to produce a coherent, cogent theory of secession.42 Many treat secession as a wholly political issue: institutional ques41   S Caney, ‘Self-Government and Secession: the Case of Nations’ (1997) 5 J Pol Phil 351, 353; L Brilmayer, ‘Secession and Self-Determination: A Territorial Interpretation’ (1991) 16 Yale JIL 177; Buchanan, Secession (n 40) 4–5, 9–22; L Buchheit, Secession: the Legitimacy of Self-Determination (New Haven (Conn), Yale UP, 1978) 13; J Crawford, The Creation of States in International Law (Oxford, Oxford UP, 1979) 247; Craven, ‘Of Federalism, Secession’ (n 17) 232, and H Beran ‘A Democratic Theory of Political Self-determination for a New World Order’ in Lehning, Theories of Secession (n 39) 30, 34–35. 42   See, eg Buchanan, Secession (n 40); Lehning, Theories of Secession (n 39); M Moore (ed), National SelfDetermination and Secession (Oxford, Oxford UP, 1998); H Beran, ‘The Place of Secession in Liberal Democratic Theory’ in P Gilbert and P Gregory (eds), Nations, Cultures, and Markets (Aldershot, Avebury, 1994) 47, his ‘A Liberal Theory of Secession’ (1984) 32 Pol Studies 21, and his ‘A Democratic Theory of Political Self-determination for a New World Order’ in Lehning, Theories of Secession (n 39) 32; A Birch, ‘Another Liberal Theory of Secession’ (1984) 32 Pol Studies 596; S Caney, ‘Self-Government and Secession: the Case of Nations’ (1997) 5 J Pol Phil 351; D Gauthier, ‘Breaking Up: An Essay on Secession’ (1994) 24 Can J Phil 357; M Moore, ‘The Ethics of Secession and a Normative Theory of Nationalism’ (2000) 13 CJLJ 225; W Norman, ‘Domesticating Secession’ in A Buchanan and S Macedo (eds), NOMOS XLV: Secession and Self-Determination (New York, New York UP, 2003); D Philpott, ‘In Defense of Self-Determination’ (1995) 105 Ethics 352; D Weinstock, ‘Toward a Proceduralist Theory of Secession’ (2000) 13 CJLJ 251; and C Wellman, ‘A Defense of Secession and Political Self-Determination’ (1995) 24 Phil and Pol Affs 142 and his A Theory of Secession: the Case for Political Self-Determination (Cambridge, Cambridge UP, 2005).



A Right Ordering of Secession 15

tions, and constitutional questions are generally left entirely out of consideration.43 For them secession represents primarily an instance of state formation, and they frame the issue of secession using broad principles of political philosophy relating to the formation and existence of states. Accordingly, how they frame secession as a political question, and what answers they receive, depend on what underlying system or conception of political philosophy they adhere to. These models for secession essentially derive from, or are instantiations of, those underlying principles. Any particular model will therefore succeed or fail in the same measure as its parent theory. This is self-evident. The compelling force to any of these justifications for secession must unquestionably rely on, and originate in, the cogency of the underlying conceptions of political systems and political relationships. For example, we cannot reasonably accept a model for secession based on an incoherent or unpersuasive political theory. The theory as premise would not support the conclusion for secession. It follows then that any assessment of a model for secession presumes an understanding and evaluation of its underlying political theory. In other words, explaining how a state may dissolve also explains how the state holds together in the first place: what bonds are being dissolved and why. The primary goal of these political theory models of secession is to provide justificatory reasons for secession. That is, any model of secession should identify when and where secession is permissible, and so, is justifiable. Hence, the reliance on the principles conceived to pertain to when and how states come to be (and continue to exist). The logic to using this approach would seem unassailable. If a state is not formed according to these underlying political principles of state formation, or has in some way violated them, then the state has effectively jeopardised its continued existence. The principles are held to act in necessary and unmitigated fashion (as a matter of human nature) such that their consequences are inevitable (as a matter of human nature) unless opposed by constant brute force. Equally, insofar as a state may arise based on these orthogenic principles, nothing constrains their application only to large territory, multi-national states. They apply with equal, or greater, force to smaller territorially-concentrated groups as well. And when the conditions arise in a larger state entity jeopardising its legitimacy, those principles may well allow for the formation of a new, smaller state; that is, secession. Accepting this logic of state forming and dissolving by these rules should serve to reduce antagonism and opposition when the circumstances of state dissolution do obtain.44 Thus, above all, and consistent throughout all the various political theories of secession, the desire to justify secession means to provide compelling grounds to permit secession, and accordingly, a peaceful transition of political power. Providing grounds for justification offers the hope of maintaining peaceful relations between political opponents. Justification of secession grounds the (constitutional) legitimacy of secession. Now, each model purports to establish a right to secede based on a given set of underlying political principles and its conception of a proper or just political system; that is, 43   Notable exceptions include Buchanan, ‘Institutional Dimension’ (n 39) (international law); Weinstock, ‘Proceduralist Theory’ (n 42) and his ‘Constitutionalizing the Right to Secede’ (2001) 9 J Pol Phil 182 (constitutional law); Gauthier, ‘Breaking Up’ (n 42) (constitutional law); W Norman, ‘Secession and (Constitutional) Democracy’ in F Requejo (ed), Democracy and National Pluralism (London, Routledge, 2001) and his Negotiating Nationalism (Oxford, Oxford UP, 2006) (constitutional law). 44   D Philpott ‘Self-Determination in Practice’ in Moore, National Self-Determination (n 42) 79; Wellman, ‘A Defense of Secession’ (n 42) 171; A Buchanan, ‘Democracy and Secession’ in Moore, National Self-Determination (n 42) 14, 24–30; and W Norman, ‘The Ethics of Secession as the Regulation of Secessionist Politics’ in Moore, National Self-Determination (n 42) 34, 44.

16  Constitutionalising Secession? to give reasons grounding and justifying secession is in effect to establish a right to secede. The right thus established is understood as a moral right or a ‘right of political morality’.45 Indeed, it is treated as a primary right. The ethical structure to that right usually reflects (either expressly or impliedly) the standard twofold positive and negative facets of a right.46 First, the right entails that it is morally permissible to secede (the positive component). Secondly, the right entails that it is morally impermissible to interfere with or obstruct the exercise of that right (the negative component). Or as Buchanan phrases this point, ‘To say that there is a moral right to secede is to say at least two things: (1) that it is morally permissible for those who have this right to secede, and (2) that others are morally obligated not to interfere with their seceding’.47 We might take from this that the first branch makes the claim, whilst the latter considers what legitimate defences exist to the claim. Not true, however: this structure is prima facie clearly weighted in favour of creating a right and offers little or no opportunity to consider limitations to that right. What limitations do exist are built subsequently into the model. This primary right is binding as matter of morality. As such a primary moral right, nothing outside its own definition may trump (limit) it.48 And by virtue of (or perhaps with the intent of) characterising it as such a moral right even though one applicable in the political domain, theorists have generally avoided or neglected to work out the practical, institutional implications of those carefully hypothesised propositions.49 Yet as Taylor and Hart point out, the practice or implementation of a rule is a necessary element or correlate to the formulation of the rule in the first place.50 From a constitutional and legal vantage point, however, it is just those institutional facets which represent the central question of what role (if any) the institution of law and its organs may serve in a secession crisis. Because such theories offer grounds and justification for secession, it seems more than appropriate to examine whether they allow for a legal instantiation of their premises. All the more so, given the suggestion of some, Buchanan and Norman for example, for an institutional version of their theories of secession. Nothing forecloses on the possibility of a legal or, more broadly an institutional version of the theory for secession, simply because it has ascribed to it the label ‘moral right’. In fact, since each theory suggests a moral ground for secession, we should expect to have that calibre of moral perfection to some extent reflected in its corresponding political and legal institutions. After all, if we believe in and desire to live in a just 45   I Berlin, ‘Two Concepts of Liberty’ in his The Proper Study of Mankind: An Anthology of Essays (H Hardy and R Hausheer (eds), London, Pimlico, 1998) 193 (‘Political theory is a branch of moral philosophy, which starts from the discovery, or application, of moral notions in the sphere of political relations.’). See Buchanan, Secession (n 40) 2–9; Beran, ‘Liberal Theory of Secession’ (n 42) and his ‘Political Self-Determination’ (n 41); D Miller, ‘Secession and the Principle of Nationality’ in Moore, National Self-Determination (n 42) 62, 63–64; and Philpott, ‘Self-Determination in Practice’ (n 44) 84. 46  Buchanan, Secession (n 40) 27 ff, and Philpott, ‘In Defense’ (n 42) 356. See also Berlin, ‘Two Concepts of Liberty’ (n 45) 193 ff (positive and negative liberty). 47  Buchanan, Secession (n 40) 27 (emphasis in original). 48   Borrowing from R Dworkin, Taking Rights Seriously (Cambridge (Mass), Harvard UP, 1978) xi and his ‘Rights as Trumps’ in J Waldron (ed), Theories of Rights (Oxford,, Oxford UP, 1984) 153. See also H Steiner, ‘Territorial Justice’ in Lehning, Theories of Secession (n 39) 60 (also referring to Nozick and Rawls). 49  See, eg H Beran, The Consent Theory of Political Obligation (London, Croom Helm, 1987); Miller, ‘Principle of Nationality’ (n 45) 64; and K Nielsen, ‘Liberal Nationalism, Liberal Democracies, and Secession’ (1998) 48 U Toronto LJ 253 (a slightly revised version of his ‘Liberal Nationalism and Secession’ in Moore, National Self-Determination (n 42) 103). 50   C Taylor, ‘To Follow a Rule’ in his Philosophical Arguments (Cambridge (Mass), Harvard UP, 1995) 165, 169–74, 176–77 and Hart, Concept of Law (n 6) 99.



A Right Ordering of Secession 17

and moral society, then its institutions (not the least of which are the laws and the legal system) should accordingly be founded upon and uphold those principles of justice and morality. Thus, if the grounds of any one model for secession prove themselves consist­ ent, coherent and cogent, then our institutional, law-constitution, response to secession should be determined by that model. By examining the various theories for secession therefore, I hope to determine not only when and where secession might be justifiable (as a moral claim), but also whether that moral claim and its grounds are amenable to a constitutional law characterisation. It remains to be seen what form that characterisation will take, if any at all. But we must allow one concession to law, or legal analysis to be precise. A lawyer’s concern developed from assessing the myriad forms and degrees of human relationships for analytic structure and certain, re-iterable standards naturally would seek to parse and analyse any right to secession, so claimed, into its component parts. It seems axiomatic that any right may be reduced to three general elements, namely (1) the nature and scope of the right; (2) the parties to the right; and (3) the limitations or circumstances overriding the present exercise of the right claimed. In anticipation of a more extensive discussion in the chapters following, briefly a right is a formal derivative of a relationship (and therefore itself a type of relationship) between at least two persons which expresses two elements. First are an expectation and enforceable demand for performance by the one against the other of some aspect or all of the conduct articulated by that relationship. Second is some corresponding compulsion to perform ordinarily as expected in the circumstances. It would seem beyond question that to assess the validity of A’s claim to right R against B, we must satisfy ourselves that A is the appropriate person to make the claim, that B is the appropriate person to have the corresponding obligation, that what A is claiming against B does arise on the facts, and lastly, that no other matters prohibit, restrain or otherwise qualify the scope of performance. In the context of the right to secede, we should satisfy ourselves as to the existence, substance and scope of the right so claimed, who may properly exercise it, against whom, and the manner and limitations on its exercise. How we go about this depends in large measure on how we categorise the various secession models on offer. Ordering the Right to Secede A number of convenient ways exist to categorise and label the various models for secession. One way is along an axis between liberalism and communitarianism, currently the two prevalent theories of political systems.51 The closer a model drew to the former point on the axis, the greater the emphasis would be on individual autonomy and the determination of the self. The closer to the latter, the more the theory would then emphasise the importance of group rights and group self-determination. Alternatively, a division of the theories on offer could be into nationalist and non-nationalist camps, 51   See, eg S Caney ‘National Self-determination and National Secession: Individualist and Communitarian Approaches’ in Lehning, Theories of Secession (n 39) 151; A Buchahan, ‘Toward a Theory of Secession’ (1991) 101 Ethics 322, 324; R McGee, ‘The Theory of Secession and Emerging Democracies: A Constitutional Solution’ (1992) 28 Stanford JIL 451, and his ‘Secession Reconsidered’ (1994) 11 J Lib Stud 11; M Rothbard, The Ethics of Liberty (Amherst, Humanities Press, 1982) and his ‘Nations by Consent: Decomposing the State’ (1994) 11 J Lib Stud 1; and L von Mises, Liberalism, 3rd edn (San Francisco, Cobden Press, 1985) 108 ff, and his Nation, State and Economy (New York, New York UP, 1983) 33–35.

18  Constitutionalising Secession? where of course the latter would not restrict secession to groups defined as nations.52 Also possible is a division between ‘realist’ versions and ‘idealist’ versions, the labels more or less explaining the standards for classification.53 Or we could choose to separate the competing theories into categories determined by their dominant characteristics. Generally speaking, the widely-accepted view divides models for secession into the two categories of ‘primary right theories’ and ‘just cause theories’. Primary right theories conceive of secession as a general right, not necessarily triggered by any form of injustice or unjust state, and exercisable more or less at will. Just cause models view secession as a special remedial right, consequent upon particular kinds of injustice. This classification has been formulated principally by Buchanan, and accepted by other theorists.54 Buchanan has also further subdivided groups into ‘associative group’ and ‘ascriptive group’ variants depending upon the treatment of the bonds creating the group on whom the right to secede is conferred. Associative groups are free-forming, whereas ascriptive groups are principally national, ethnic, or cultural, or like-bonded groupings. It should be self-evident from this excursus that any form of characterisation stresses more or less intentionally what is considered to be the most important feature of the theory, its primary grounds for justification, and its underlying political premises. As will become clearer as we proceed, what all these theories actually speak to, irrespective of any particular classification, is an understanding of what grounds our obligations to any (political) authority, and the right or power of that authority to compel or coerce us. Translated into a legal context, they offer an explication of why we obey the law.55 My preference herein will be for a qualified version of the ‘dominant characteristics’ scheme, as the one most amenable to a legally-driven analysis (as set out above). But rather than accept the mere division between the primary right and remedial right approaches, I will append the third category of nationalism-based secession in order to treat more fully the element of who ought properly to hold and exercise any right to secession. Terms of Reference Setting the issue as constitutionalising secession shifts the analytic focus away from events and circumstances during and after a secession crisis, and rather upon events pre52   See, eg Neilsen, ‘Liberal Nationalism’ 254–257; D Miller, ‘In Defence of Nationality’ in his Citizenship and Nationality (Cambridge, Polity, 2000) 24, 27ff, and see generally P Gilbert, The Philosophy of Nationalism (Boulder, Westview, 1998), and J Breuilly, Nationalism and the State, 2nd edn (Manchester, Manchester UP, 1993). 53   See, eg Nielsen, ‘Liberal Nationalism’ (n 49) 273–77; Beran, ‘Democratic Theory’ (n 41) 42; A Margalit and J Raz, ‘National Self-Determination’ (1990) 87 J Phil 439 (‘realist’ side), and Buchanan, ‘Institutional Dimension’ (n 39) 252–53 (criticising the purely idealist camp). 54  Buchanan, Secession (n 40) and his ‘Institutional Dimension’ (n 39) 232–36 (‘associative group’ and ‘ascriptive group’ variants). Variously termed ‘choice theory’ and ‘plebiscitory right theory’: A Patten, ‘Democratic Secession from a Multinational State’ (2002) 112 Ethics 558. 55   It is useful to keep in mind as a touchstone and point of comparison the general work done on the obligation to obey the law, eg J Raz, The Concept of a Legal System (Oxford, Oxford UP, 1980) 121 ff, and his The Authority of the Law (Oxford, Oxford UP, 1979) 233 ff; J Raz (ed), Authority (Oxford, Blackwell, 1990); C Korsgaard, ‘The Sources of Normativity’ in O O’Neill (ed), The Sources of Normativity (Cambridge, Cambridge UP, 1996) 91 ff; D Richards, ‘Conscience, Human Rights, and the Anarchist Challenge to the Obligation to Obey the Law’ (1984) 18 Georgia LR 18; K Greenawalt, ‘The Natural Duty to Obey the Law’ (1985) 84 Michigan LR 1); D Lyon, ‘Need, Necessity and Political Obligation’ (1981) 67 Virginia LR 77; and JL Mackie, ‘Obligations to Obey the Law’ (1981) 67 Virginia LR 143.



A Right Ordering of Secession 19

ceding the actual crisis of separation itself. The analysis of secession as constitutional disorder must be an aetiology, not pathology. For secession claims to resile from current arrangements for co-operation and action co-ordination in a state and to posit a competing authority challenging constitutional supremacy. These matters concern why a constitution should not bind parties right from the start. Why must we assume in these circumstances that the mere decision to secede, to form a separate, sovereign polity is necessarily imbued with transcendent and a priori validity and effect? Just because a group wants to have political autonomy does not make that desire in its substance (and not merely in its realisation) irreproachable and irrefutable in legitimacy. We cannot simply ignore or perfunctorily deny that a constitution controls the actions of all those until such time as it is varied or struck by agreement or in accordance with its terms. Likewise the converse, we may not simply accept the interest and will of a group to secede as legitimate and valid. If secession is to challenge the overriding normative weight of the constitutional order, it must demonstrate why that constitutional order did not have such weight to begin with, or why certain competing associations may supersede its precepts. Secession cannot simply assume the deep structure to be irrelevant. To be drawn into the deep structure of a constitution means to re-assess and confirm, revise or reject those common values, interests and beliefs which link us into a political association. A question of secession puts that deep structure, those underlying commonalities in issue. Hence, it is necessary to investigate not merely what we mean by ‘constitution’, ‘constitutional order’ and ‘constitutional stress’. We are also asked to analyse the nature of legitimacy and validity. In other words, the task is one of explaining and justifying our conception of a constitution and constitutional law. Orienting the issues towards more general, theoretical issues of a constitutional order may appear not only to shift the discussion out of a legal sphere and back into the political, but also to ignore certain fundamental aspects of secession. First, secession must be unilateral. A secession that is negotiated or otherwise proceeds with the consent of the rump state may be a consensual dissolution of a polity, but it is no secession. It is its unilateral, non-consensual character that makes secession so explosive a political issue and a violent, bloody and generally unpleasant situation. Secondly, it signals a full disassociation from the metropolitan state. Secession is not a form of civil disobedience or coup d’état, that seeks change within the existing framework of the state. At its foundation is a desire not to have any further political connection to the metropolitan state, in any of its institutional guises, whether legal, constitutional or political. It seems inconsistent with this desire to expect a constitutional order, let alone constitutional law, to govern a secession. These objections highlight nicely the very real constitutional law content to secession. At one level, I am asking whether a constitution may regulate its own demise, and how. But the issue runs more deeply than some variation on the ‘Kompetenz-Kompetenz’ theme. The question asks whether secession remains a possibility in a constitutional democracy wherein all parties respect, abide by and promote the vales and principles thereof. To be clear, I am not going to address any (requirement of) peaceful negotiations and agreements related to dividing up state territory, population, national debt and national assets, and to establishing trade and other contacts. These circumstances only obtain when the secession has effectively occurred. My issue, in contradistinction, concerns whether a substate group in a constitutional democracy under the rule of law may take a decision to secede to the

20  Constitutionalising Secession? exclusion of all others in the state, and present it to them with the understanding and expectation that the decision will be incontrovertibly accepted as legitimate, valid and binding. Hence, the facet of secession I wish to focus on is the distribution of power, not between government and citizen, but among citizens themselves. Accordingly, I can safely put to one side a number of issues which otherwise might distract from this analytic path. First, it renders little profit to consider in any detail how secession differs from other forms of state dismemberment and from other forms of shifting sovereignty. A country may simply dissolve by agreement of all parties. In such a case, the dismemberment occurs because the relevant political interests consider the state no longer worthy of any continuing commitment. The 1964 separation of Malaysia and Singapore and the 1989 dissolution of Czechoslovakia are good examples. The various political groups come to some agreement or consensus that their common political, social, economic, legal, and like commitments are no longer viable in the current state architecture. The building should be demolished with each left to determine its own future in whatever ways may be at hand, or the structure should be so thoroughly renovated as to leave little of the original in place (here the suggestions of the Parti Québecois for ‘sovereignty association’ come to mind). Or it may simply be the case that there is no longer an effective central, common government, or that the various political units have usurped all administrative and legal functions, thus excluding the central government. The collapse of the central administration may have its causes from weakness inherent in the constitution (the case of the first US Constitution, 1776/1781–87), to changed social or political circumstances, internal power struggles, or third party aggression (the dissolution of the Soviet Union and of Yugoslavia). Likewise, while both devolution and delegation involve the transfer of legal and political authority away from central government to sections of the polity, the structure and intention of the transfer remains comfortably within the confines and supervision of the governing constitutional order. For delegation, there is no severance or distribution of sovereignty in its Dicey sense: the delegation of power entails the continuing supervisory and hierarchical relationship between principal and agent.56 The ultimate source or residuum of power and hence the ability to withdraw the delegation or further qualify or expand it remains with the principal, namely the central administration and legislator. Devolution may be used loosely as a synonym for delegation, or it can represent a conditioned transfer of sovereignty, or a fractioning of sovereignty as in a federal division of powers. To the extent of the grant of its powers, that unit is sovereign in that it is not answerable or subject to a higher level of government. The powers so conferred are not ordinarily retractable, except by special or constitutional procedure including invariably the consent of the unit itself. The distribution of powers to that section of polity is such that no single set of public authorities exercises the whole of sovereignty. Although sovereignty-attributable powers are distributed and shared, the core constitutional hierarchy and polity remain intact as one entity: the overall package of sovereignty and attributable powers is a composite whole. Secession, in contradistinction, rejects shared political and legal authority, for the seceding polity purports to arrogate to itself full Dicey sovereignty to the exclusion of every other polity. For secession, the issue of sovereignty is not the ultimate resting point or form of division of sovereignty, but the origin and nature of that sovereign (constitutive) authority.   W Wade, Administrative Law, 6th edn (Oxford, Oxford UP, 1988) 357 ff.

56



A Right Ordering of Secession 21

Accepting that secession is a unilateral political act does not excuse us from asking whether such an act is within the contemplation of an operative constitutional demo­ cracy, of those living within its borders and under its principles. On what democratic, constitutional grounds could a substate group purport to rely to exclude a section of the population from their basic, fundamental claims to democratic participation and deliberation on constitutional matters pertaining to them? Unilateral acts and constitutional democracy appear inconsistent. It is a question of constitutional law and policy whether the two can be reconciled, if at all. Secondly, once secession enters into a violent and brutal phase, it is unquestionable that constitutional theory has little or no role there, nor any reasonable hope of regulating the situation. All bets are off. (Although it makes for the speculative and interesting question of what kind of constitutional theory and order could exist, if any, in conflicttorn societies.) Evaluating the violence and civil strife caused by secession attempts would draw attention away from the core issues of constitutional authority, legitimacy and validity. So I will assume a peaceful organisation of and attempt at secession, without resort to violence. This entails, moreover, that I do not propose to consider such measures to restrict secessionist activity as prosecution for treason, bills of attainder, imposing martial law, and removing and replacing public officials. Nor will I consider the topics of civil disobedience (including contempt of court). For these matters con­ sidered by convention or tradition to fall within the ambit of legislative and judicial measures for the preservation and protection of public order and the administration of justice, I assume that in the circumstances all parties involved ought and do still recognise the utility and efficacy of discussing and deliberating. This is not necessarily unrealistic or unduly limiting. If a group, secessionist or rump state, trumpets its loyalty to and respect for democratic constitutional principles, then it must be prepared to abide by those principles inasmuch as they regulate or prohibit attempts to secede; or they must show what other, equally persuasive principles apply. And since democracy relies upon deliberation, participation and compromise, democratic principles and resort to violence appear inconsistent. It is a question of constitutional law and policy to demonstrate whether democratic constitutional principles allow for an attainment of goals through violence, or what better reasons exist to override those basic principles. A view on popular sovereignty and the rule of law should reasonably and consistently inform and control the understanding of the entire body of constitutional law, both when constitutional relations proceed smoothly, and when they are under stress or truly fractured. Setting the problem of secession in this fashion opens a different and signific­ antly more interesting path to analysing the tensions between popular sovereignty and the rule of law as manifested in a secession crisis. We can concentrate on the con­stellation of human relationships constituting the political association of a state. A constitution then comes under stress when the bonds of community – those aspects which bring and tie us together into a political association are subject to criticism and objection. A Note on Nationalism Furthermore, I do not propose to consider nationalism and its sizeable scholarly attention in any detail. Notwithstanding its intimate practical and theoretical connection

22  Constitutionalising Secession? with secession, nationalism will not take centre stage here. Norman and Tierney, among others, approach secession indirectly through the optic of a federal accommodation of substate nations.57 A secession option or power is one additional tool in the overall, broader federalist construct of constitutional accommodation of substate nations. Their principal focus, and the value of their work, is shaping or adapting the constitutional structure of a pluri-national state to accommodate the political and social aspirations of substate polities. They focus on creating or recommending options to accommodate (or protect) national groups, usually along federal, confederal, consociational, or like grounds. Whereas they work from the presumption of the political presence and position of these polities, which presence and position entitle them to due political and constitutional recognition, my approach and objectives here are not concerned with strategies to accommodate national identities and defuse nationalist tensions. My concern is instead how constitutions as a legal fact articulate or speak for the political construction among members generating obligations and duties. Many of the issues touched upon here are indeed common to studies of pluri-national accommodation because both paths share a link in constitutionalism. But constitutionalism here is not a understood solely as a device for living well together, but as a process, an activity, of developing common goals, of distributing burdens, and meeting expectations, all of which go to making up the ‘normativity’ of law. It is not so much an investigation of institutional potentials and possibilities, of what the constitution can and should do for me. Instead it mines a level deeper and explores the normative footing to those institutions, of what I do for a constitution and the law more generally. REFERENCE TERMS

Briefly, and for the purposes of outlining here the nature and scope of the investigations to follow, let me introduce some terms under the rubric of associative constitutionalism which I develop in some detail in the chapters following. They describe and clarify the relevant elements constitutive of a political association in support of a constitutional law approach to secession. Any political association is demarcated by its associative relationships. These are the interrelationships among individuals, at an individual level, which identify membership in a group and the practice of being a member in that group. These relationships are comprised of obligations of reciprocation and mutuality. Relationships are always, at minimum, bilateral. They are based upon a set of common associative commitments. Commitments represent that set of particular desires, interests, beliefs and values which we individually pursue and by which we judge ourselves and others. Common commitments obtain because similar desires, interests, beliefs and values exist in the sets of commitments held by any one of a collection of individuals. They are similar, but never necessarily the same. Common commitments fund an association by virtue of allowing us to co-ordinate our actions given that commonality and to enter into obligations of reciprocation and mutuality. Commitments become common by a process of communicating with others, engaging with them, deliberating and evaluating. This process describes the transformative event whereby we adopt another’s 57   W Norman, Negotiating Nationalism: Nation-Building, Federalism, and Secession (Oxford, Oxford UP, 2007) ch 6, and S Tierney, Constitutional Law and National Pluralism (Oxford, Oxford UP, 2007) 133 ff, 256–71.



Reference Terms 23

hitherto private commitment as part of our own personal set. To adopt a commitment requires internalisation. This acts as a filter and moderator, so as to situate and fit that commitment in our extant collection. It entails that a common commitment is never a shared one in the sense of two separate individuals having exactly the same purchase on a central, ideal concept. That is, our common commitments are articulations or instantiations seen through the filter of our own set of commitments. We may all have a piece of the pie, but those pieces are never the same, even in shape and size. Of course, common commitments may coincide with those of others; but this is mere coincidence, more happenstance than natural. The unavoidable necessity of internalisation therefore commits us always to acts of interpretation. We have no direct access to the thoughts, impressions, feelings and senses of our fellows except by communicating with them in word or deed. This fact grounds the deliberative essence of constitutional democracy. Reformulating all of this for secession, a constitutional democracy institutionalises itself around, and in virtue of, associative relationships. The success of the association depends upon the continual engagement of citizens in deliberations, debates, and such like, both at a formal (parliamentary) and informal (civil society) level. These provide the foundation for transformative events, whereby private interests and desires become reworked into public, common norms and values. Our engagement with others depends upon our continuing ability and willingness to transform private desires into public concerns, for that is the foundation to the co-operation and co-ordination necessary and sufficient to build a society. We cannot exist as a society, let alone as a democratic society, if we disregard associative relationships (and the communication and deliberation necessary to foster them) by restricting ourselves to self-interest or to unmediated access to common commitments immaculately conceived without the rough and tumble of a transformative event. A constitution and constitutional law serve to create, foster and maintain (the possibility of) associative relationships. The idea of popular sovereignty conflates the body of commitments and relationships produced through ongoing deliberation with the existence of the deliberative process. And the rule of law represents in part the application of those commitments, and the observance of associative relationships, and in part the nature of associative relationships as necessary and compulsory for the existence of society itself. A secession crisis represents the wilful breach and rejection of associative relationships across the wider grouping of the population. The negating of obligations of reciprocation and mutuality originate in the collapse of commonality to associative commitments, whether in their content, interpretation or application. This in turn suggests that the normal incidence of transformative events has ceased or is defective; that is, the community has divided into two, and neither side is communicating, engaging and co-operating with the other. In fact they may well be excluding members of the other group from participating in deliberations. What is it, then, that prevents the possibility of further transformative events being taken up, of re-establishing common associative commitments? The collapse of transformative events may point to certain faults or failures within the constitutional order itself and its operations which render the necessary communication among citizens difficult or impossible. This points to a hardening of positions relative to certain collections of common commitments. A particular set of interests, beliefs and values may be seen as an inflexible fons et origo from which deviation, compromise or even alteration is forbidden, at the risk of losing something crucial, definitive to the core of being. Such is nationalism. Hence, the narrower transformative event within the

24  Constitutionalising Secession? nation, constituting it as an association, is held to take precedence over any wider cast of possible meanings and interests. Or a particular set may be presumptively treated as contemptible, and likewise those that hold those values, and so on. Their ideas, opinions and presence are forcibly excluded from public deliberation, and they are oppressed, ignored or even abused. In both instances, the commonality, community of commitments and relationships are put under stress by competing interests, values and beliefs. The normal process of co-operation and compromise through deliberation is obstructed. So the central question herein is whether our understanding and appreciation of a constitutional order extends so far as to hold us to its precepts even when that very order is subject to the stress of competing interests. This represents the fundamental aspect of normativity, that a rule binds and compels us even when – and especially when – our interests and desires drive us against it in letter or spirit. After all, we should never feel the tug of the ‘ought’ if it were always part of our nature, to do as our nature dictated. Normativity stipulates precisely something that goes against the grain of who we think we are, what we think is good for us, in our interest.58 Both cases would seem inconsistent with the basic premise of a constitutional demo­ cracy that mandates deliberation and discussion. If a constitution and constitutional law serve to create, foster and maintain (the possibility of) associative relationships, then they have failed completely in the second case. It becomes difficult to talk of ‘constitutions’ and constitutional law’ – let alone democracy – when a section of the population is ostracised. Indeed, treated as a separate polity. In the first case, why should a narrower clutch of commitments be accorded, or be considered to have, priority over a wider spread? A constitutional order mandates full participation of citizens, not merely that of a select and exclusive group. Everyone should participate, especially in proposals affecting the very existence of the state. In short, secession challenges us to justify resiling from our otherwise continuing associative relationships at the wider, state level without fatally injuring democratic constitutionalism. A ‘law of secession’ would either compel us to re-open channels of communication and ensure that the political will to dissolve the state was a consensual decision of all citizens, or be prepared to accept those ostracised as a separate, sovereign polity unless we re-integrate them as full participants in the democratic process. OUTLINE OF THE BOOK

Secession engages constitutional law generally at three levels. The first, and most common, is the interaction of international law principles and municipal constitutional law. I leave that to the side. The second level addresses the right and mechanics of secession in a particular constitutional document or framework. The basic issue in this work is whether any given constitution provides expressly or implicitly a right to secede, or should so provide, and how a constitution might respond to secession. Inasmuch as no provisions for a right to secede exist in a given constitution, a constitutional lawyer may comfortably say either that secession is not really a matter of constitutional law, or that international law may govern in some way or other, or that the amending formula in the constitution should 58  G Cohen, ‘Reason, Humanity, and the Moral Law’ in O O’Neill (ed), The Sources of Normativity (Cambridge, Cambridge UP, 1996) 167, 178–81 (criticising Korsgaard’s Kant-inspired formulation of normativity (‘moral claims’) as originating in our practical identity, from or sense of who we are).



Outline of the Book 25

somehow fit the bill. But this is more a question of formalities, generally after the political will to secede has crystallised with or without effective opposition. This latter perspective says nothing about secession except how it possibly may be effected, and leaves the implications and underlying premises unexplained and unconsidered. The third level, on the other hand, is less technically-oriented than the second. It focuses on constitutional norms and the broader principles operating in the constitutional framework. Whereas the second limits itself to a narrower, more practical view of the constitution, as a set of texts and interpretative rules, the third level examines the normative framework as the constitutionalism of the situation. Obviously this pushes the second level to one further degree of abstraction, whereby the focus becomes the norms and principles informing the more technical legal rules. What we are looking for are simply those principles on which our society is organised and on which we conduct or are expected to conduct our daily affairs. Rather than concerning ourselves with the scope of a constitutional amending formula in the face of a secession crisis, we question instead the first principles of our society, such as its democratic character, its concern for human rights and dignity, its expectations and desires for community, standards and limits of acceptable behaviour, whatever all these may be. Put in a somewhat more laconic way, at issue are the moral foundations of society. Clearly, the analysis has moved from the legally comfortable area of constitutional law per se to the less certain one of constitutional and political theory. Now obviously the second and third levels are related insofar as the second draws upon norms and principles to inform – implicitly – constitutional and relevant law; the third, upon the constitution and law as practical framework or instantiation of the norms and principles. At this third level of constitutional theory, secession should be conceived less as purely some institutional re-arranging inside or outside the current institutional and regulatory framework. This view also includes framing the problem of secession in terms of a constitutional reaction to group demands. Similarly, a constitution should be conceived less as purely a template or map of state, and more as institutional architecture, namely the building of institutions to strengthen and develop the moral foundations of a society. For proceeding further into a more theoretical constitutionalism level argues, importantly, that a constitution represents much more than merely a façade of faceless public institutions, certain rules and some generally worded aspirations. The institutional complexity of creating functioning state machinery more often than not creates in turn an artificial barrier between the state colossus and the principles, relationships, activities and individuals all of which go to make up the ‘Leviathan’. The ‘state’ becomes an entity in and of itself whose will, desires and actions are somehow separate from those of its citizens, and quite often alleged to be unhappily juxtaposed thereto. The ‘mind’ of the state is thus not the ‘mind’ of its officials and citizens, and so a good deal of political theory, liberalism in particular, concerns itself with diagnosing the schizophrenia and prescribing democratic, liberal, and like, treatments depending whether some degree of rapprochement between the two selves is desired. The conception of the ‘constitution’ likewise suffers, either as a metaphor for the state, or as the source of the will of the state, such that the state’s intentions and desires somehow might be elicited from a careful reading of the constitutional text and constitutional law, rather than simply looking at ordinary life. This book addresses whether and to what extent constitutions, and their constitutional law more generally, can make provision for secession. More broadly put, the

26  Constitutionalising Secession? question is what place secession has, or should have under (subject to) municipal constitutional law. The two aspects of the question naturally are different in focus and intent. Whether secession has a place under any constitutional system depends very much on the text of any given constitutional document and the current body of constitutional law and norms. It is principally a factual enquiry, a matter for descriptive jurisprudence. Whether secession should figure in some way in a constitution or the constitutional law and norms is more speculative an enquiry, bordering on politics, legal theory, constitutional theory, and like matters, and pertains more to analytic jurisprudence. The two are nonetheless conjoined inasmuch as the subsuming of secession under a constitutional system in the absence of express provisions therefor depends in a large measure on what analytic stance we take on constitutional and legal theory, and on what a constitution, generally and in particular, should address. By way of general overview, it is my position that secession is indeed a matter appropriate for constitutional law and is governed thereby. Whilst secession provisions are not and should not be incorporated expressly into a constitution, the process of secession is certainly subject to constitutional law and norms. Some inroad to a full grasp of this position (but not its implications) has already been forged by the Supreme Court of Canada in the Québec Secession Reference.59 As such, and to the extent outlined below, secession, as an element of constitutional law, engages the courts at least on that basis, insofar as their jurisdiction permits. Accordingly, secession is more than a purely political (scil, non-legal, non-justiciable) act. To pursue this line of enquiry, I begin in chapter 2 by developing the idea of associative constitutionalism. My purpose is to capture and set in better light the dynamic aspects of a constitution, and to unchain constitutional law from a strictly textual approach. Broadening the watershed of constitutional law in this manner enables formulating a more effective concept of constitution and constitutional order. Effective, that is, not only to describe the process of creating, maintaining, and dissolving a constitution, but also to ideate a concept of law and legal normativity as based in the interaction of people and in their co-ordination of interests, aims, desires, and such like. And it provides a further basis to the arguments above disputing the a-legal nature of secession. Chapters 3 to 7 examine the three dominant models of secession: as a primary polit­ ical right, as a remedial right in the face of oppression, and as the means to realise nationalist objectives. The primary right model draws attention in chapter 3 to the necessity for obligations of reciprocation and mutuality characteristic of any association, a constitutional order no less, and invites criticism for its failure to account therefor. Associative relationships are binding until terminated or altered in accordance with their terms. Popular sovereignty is bounded by the rule of law, embodied in the constitution, and cannot simply discard or disregard the interests and expectations of other members of the polity. Decisions made by society, or any part thereof, are subject to constitutional procedures and principles. The remedial rights model in chapter 4 allows in first instance a concentration on the institutional nature of obligations and associations. Its reference to rights and remedies, in the context of constitutional law, invites us to consider further the necessity for communication and deliberation (and thus, the opportunity for transformative events) as the foundational tenets to a healthy democracy. It reinforces the conclusion of chapter 3   Reference re Secession of Québec [1998] 2 SCR 217.

59



Outline of the Book 27

that no legitimacy properly adheres to a mere decision to secede from a normally functioning constitutional democracy. The collapse of democracy, and its constitutional order, in the face of sustained oppression, opens the possibility of the disintegration of the polity and its separation into two or more separate associations. In chapter 5, I analyse what rights are said to give rise in their breach to secession. The principle of equality among all citizens underlies these rights, and of course a breach of equality is eminently justiciable in se and as a breach of the rule of law. The condition of equality also leads us to consider the question of associative commitments as the glue which binds a polity together. Accepting that associative commitments and relationships bind us together into a polity can bring us easily under the spell of nationalism. Chapters 6 and 7 lead us to setting the borders of political and social co-operation beyond the ‘nation’. Nationalism challenges associative constitutionalism to demonstrate what foundation exists to build interaction and co-operation, other than those ethnic and cultural commonalities naturally occurring in the cultural association into which all of us are born and raised. Our identity is programmed into us, a ‘cultural software’.60 Interacting on any other foundation or in such a way as to vary or substitute elements of that software is extremely difficult, if not impossible, and when attempted leads to inner and outer conflict. Chapter 6 exposes the political associational character of a nation. This renders it susceptible to criticism for artificially and arbitrarily delimiting participation and content in transformative deliberations. And in chapter 7 I fault nationalism for failing to give room to transformative events sufficient and necessary to sustain a healthy, democratic constitutional order. Nationalism leads to a concept of constitutionalism that mandates unacceptable integration or exclusion. With those constitutional terms firmly embedded and secession well ensconced therein, I then turn in chapter 8 to analysing secession in the context of federal constitutional law. I use a federal state instead of a unitary one in order to take advantage of federalism’s division of the state into regional polities having a measure of autonomy in certain matters. Canada serves as my practical, real-life example. Hence, my task is showing how associative constitutionalism bridges these boundaries to ensure state unity and to guarantee the fair and free exchange of norms and values across internal borders. If achieved here, then a fortiori in a unitary state. An exclusively textual approach to constitutional law is seen as fruitless in times of constitutional stress, particularly in a secession crisis. Dismissed are arguments suggesting that secession is implied in or has a greater chance in federal constitutions, or that federations paste over profound cultural and societal division which associative constitutionalism cannot bridge. In Chapters 9 and 10 I consider two institutional responses to secession: the judicial and the legislative. Canada again serves as my example. Chapter 10 provides an extensive review of the Québec Secession Reference in which the Supreme Court of Canada advised on three questions: the constitutionality of an attempt at unilateral secession; the availability of secession under international law; and the relationship of international law to national constitutional law. Seen in the Court’s opinion are the beginnings of a doctrine of associative constitutionalism, at least for Canadian constitutional law. 60   J Balkin, Cultural Software: A Theory of Ideology (New Haven (Conn), Yale UP, 1998) 17–19, 30–35, 51–63, and ch 4.

28  Constitutionalising Secession? And in chapter 11, I examine the peculiar and controversial legislative response to the Québec Secession Reference, the Clarity Act.61 The Act was not only controversial in the Canadian political context, but represents a peculiar view of constitutional law and the Canadian constitutional order. It presents a good example of the pitfall to a positivistic approach to constitutional law. Canada? Canada provides an excellent ready-made test subject for the elements of separation crises. Indeed, Canada has some considerable – practical and legal – experience in hand. In 1995, the Québec electorate narrowly rejected the provincial government’s proposal for a ‘new economic and political partnership’ by a slim majority of 50.48 per cent. This was the second referendum of its kind, the first occurring on 20 May 1980. This first referendum defeated the Parti Québecois’ sovereignty-association proposal by a majority of 59.5 per cent. The 1995 attempt by the Québec government to legislate a secession through a referendum was subjected to two court challenges by a Québec lawyer, Guy Bertrand. The legal skirmishing before and after the 1995 referendum led the federal government to refer these issues to the Supreme Court of Canada for its legal opinion. On 20 August 1998 the Supreme Court of Canada delivered an advisory opinion concerning the unilateral secession of Québec. The Court held that no province had the constitutional right to withdraw unilaterally from the Canadian federation. In order to come to this answer, the Court reviewed the constitutional structure of Canada and enunciated and considered a number of critical constitutional premises. Following the release of the opinion, the federal government purported to seize the tactical advantage of introducing draft legislation ostensibly designed to emphasise the need for a ‘clear question’ and a ‘clear majority’ as grounding any obligation to negotiate the terms of secession. The Clarity Act allocated the task of determining the clarity of the referendum question and the referendum result to the House of Commons alone. Lastly, underlying the Canadian federation is the problem of a tension between politically and socially distinct ‘cultural components’. Canada has two significant and generally distinguishable ‘cultural components’ concentrated in two definable geographic locations: French Québec and English Canada. Those federal components have specific or identifiable constitutional status and powers, which could easily form the basis for complete autonomy and sovereignty. Hence, the Canadian factual context offers a ready-made set of real constitutional, judicial and statutory examples addressing secession, without having to create a speculative or imagined framework. IN A BROADER CONTEXT

The great issues for law have never really been questions of international harmony among nations, but the difficult questions of how to get along with our neighbours. We no longer have the luxury to presume that our neighbours, our fellow citizens, come 61   An Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Québec Secession Reference SC 2000 c 26.



In a Broader Context 29

from the same ethnic, religious, linguistic, political and social stock as we. Each of these modalities of being human represents different ways and standards of behaving with others. Accordingly, we can longer take for granted that all the members of our ‘neighbourhood’ will act, react and think along the same lines as we do, and want the same things we do. The issues and problems of different groups trying to live together, remain at the forefront of political, legal and social agendas in Canada, and are gaining increasing significance throughout Europe. It is not always possible that we can agree to disagree, and then go our separate ways. More often than not, such disagreements (or lack of common bases) lead to conflict or antagonism. Some easily chosen examples are the practice of female circumcision in certain African communities; the precepts of Islamic shari’a (the ‘sacred law’), and the continuing discomforts between the ‘Arab’ and ‘Islamic’ worlds and their Western counterparts, and the political, economic and social circumstances of minority and aboriginal communities in those Western countries.62 Generally speaking, either the opponents will play out the conflict (on a zero-sum assumption of a winner and loser), or they will reconcile and establish some means of avoiding further such encounters. Hence, the public sphere, if it is not to be merely a battleground, must also offer at least a forum for discussion – if not a mechanism for the resolution of differences as well. But then again, nothing in the field of understanding how we deal with one another, of how and why we associate and co-operate (or not), and how we organise and administer our associations, offers any less complexity and uncertainty. The study of our relationships with others, undertaken within historical, anthropological, legal, statistical, philosophical or other context, can offer perhaps no real certainty if we accept that our relating to others (and to ourselves) is in constant metamorphosis and evolution. On the other hand, perhaps there do exist some basic, universal tenets of ‘good behaviour’ among individuals, some ‘necessary relations which derive from the nature of being human’, to borrow from Montesquieu.63 After all, we do manage to co-operate most of the time. One thing is certain, however. It is probably a truism. The only way we should ever find out how we should act with and among each other is by talking to each other, by exchanging thoughts and ideas. No great surprise here. Talking supplements our observations of another person, either confirming or revising what we had believed. For to communicate what we have in mind to another requires us to make it understood: to make precise what we have in mind and to shape it with the appropriate words.64 Communication – talking – forces us to understand our own ideas and make them understood, as much as to understand those of others. Communication of this sort promises mutual understanding. By virtue of the requirement of making our ideas understandable to ourselves and others, communication should expose what meanings and presumptions are shared and not shared. We should thereby come to certain shared, or common, meanings and understandings, from which co-operation and interaction   See generally J Schacht, An Introduction to Islamic Law (Oxford, Oxford UP, 1982).   C de Secondat Montesquieu, The Spirit of the Laws (AM Cohler, BC Miller and HS Stone (eds and trans), Cambridge, Cambridge UP, 1989) Bk I, 3 (‘Laws taken in their broadest meaning, are the necessary relations deriving from the nature of things; and in this sense, all beings have their laws: . . . man has his laws.’). 64  See generally C Taylor, Sources of the Self (Cambridge, Cambridge UP, 1989); A Gutman (ed), Multiculturalism (Princeton, Princeton UP, 1984); J Habermas, The Theory of Communicative Action (T McCarthy (trans), Cambridge, Polity, 1981) vols 1 and 2, and his Between Facts and Norms (W Rehg (trans), Cambridge, Polity Press, 1996); and A Ingram, A Theory of Political Rights (Oxford, Oxford UP, 1994). 62 63

30  Constitutionalising Secession? become possible. And, to complete this truism (or less generously, the platitude) in full form, co-operation is the foundation for human society and well-being. Naturally, this is a rather simplified account of what communication is, and offers. I cannot offer any detailed analysis of the topic here. Rather, it is precisely the core idea of transposing what sits in the private sphere to the public sphere and of the correlate idea of shared or common understandings, that this simple version best emphasises. Now the real complexity to a communicative theory is what it offers in practice: its promise of shared meanings and of co-operation. Any account of communicative theory is susceptible to the limitation that expression at a non-trivial level is an expression of identity, and that a condition for shared meanings and understandings is some element of a shared identity. The more general the element, such as ‘being human’, the less effective and binding becomes the mere fact of sharing that element. Conversely, the more precise the shared element, the tighter the bonds become. So, once we have understood the other person, what then? If we agree, this poses little problem. But what if we disagree? It is also possible that we have achieved no shared or common meanings and understandings in the first place. To abridge a good deal of discussion on the points, the pivotal difference between both poles is a conception of human nature, and in particular, whether there are significant, relevant aspects of human identity common or shared, or even able to be shared, among all human beings. And to say ‘identity’ means more than human nature per se, but nature as mediated by and in society. And let us not restrict the two poles to simply the antimony of liberalism and communitarianism, two particular conceptions of the structure of human identity, among others. To whichever pole we may attach ourselves, we must realise that we are in large measure attempting to give some compass to ourselves, to who we are. Our character, its consciously and unconsciously acquired amalgam of prejudices, wants, needs, beliefs, knowledge, rational and irrational modes, emotions, and such like, determines who we are, and how we behave. The uncertainty derives from an inability – or impossibility – to grasp at once in its entirety that complex creation which is human identity. What difference really is or should be significant and relevant to our conduct? What all this suggests in the constitutional context (and we may guess it easily enough), is the need for some institutional means to allow for expression, debate and resolution of identity-sponsored differences, whether by accommodation or otherwise. ‘Institutional means’ refers to any attempt within a society of individuals to organise, systematise and regulate conduct and patterns of behaviour for that group.65 In the ordin­ary course, this includes the political (and more generally the democratic) process, legislation, law more generally (substantive and procedural), civic organisations, pressure and interest groups, the press, and the like. Many approaches have considered by far the most important instruments of societal power to be those operating ‘from the top, down’, namely the government, the legislature and the courts. These had taken the norms of societal behaviour as more or less the raw material, the ‘givens’, which needed to be organised, moulded and guided into a multicultural reality. Certainly, these aspects of the public sphere are critical. But they represent only half the story. Just as important are the workings of inter-cultural understandings (and misunderstandings) in civil soci65   See, eg T Parsons, The Structure of Social Action (New York, The Free Press, 1968) vols 1 and 2; P Berger and T Luckmann, The Social Construction of Reality (London, Penguin, 1979).



In a Broader Context 31

ety, ‘from the bottom up’. In colloquial terms, understanding begins at home. An imposed set of standards can accomplish only so much, if the people towards whom the standards are aimed have no grounds or desire to adopt them as part of how they want and do behave, and to be perceived by others. This is one reason for the inherent weakness of international law, and international human rights. It is for a constitutional order and constitutional law to ensure that all citizens desire and have the possibility to cooperate in creating values and norms for each other. This requires an emphasis on the associative nature of relationships and commitments joining us together. And once again, in all of this, the idea of human identity remains in the foreground as it should.

2 Associative Constitutionalism THE REALIST’S CHALLENGE

A

T FIRST GLANCE, constitutional law – and indeed any field of national law – would seem to have little if anything to say about secession. Constitutional law, a realist might say, concerns itself with those rules arising out of the constitution which regulate the interrelationships, scope of powers and procedures arising therefrom. Hence, constitutional law operates and exists in virtue of the constitution – inside its framework, so to speak, and not outside. Constitutional law qua law may only exist after a constitution has come into existence. Secession is a matter of high politics, one aspect of constitution making, and thus operates on the periphery of a constitutional framework. Constitution making and breaking are matters falling outside the constitution proper. They may be said to be truly ‘pre-constitutional’.1 Hence, constitutional law (or any related positive law for that matter) is thereby excluded from a secession situation. A fortiori, constitutionally prescribed courts have no say on ‘pre-constitutional’ matters. Secondly, and related thereto, because secession is a matter of high politics, it is not, nor may it be, regulated by law; that is, it is not reducible to legal issues and legal rules. It is entirely non-justiciable, just as are all other ‘political questions’ and political behaviour. Thirdly, and in any event, such are the passions and irrational (or ‘non-rational’, to put it more sympathetically) behaviour aroused by secession that no mere court order could reasonably expect to be effective in the circumstances. According to history, secession entails civil unrest, revolution, civil war.2 And finally, there is no real law at work in war zones.3 It should not be necessary to recite the details, burned into human conscience, of the atrocities committed during the Second World War, the conflicts in Vietnam, Cambodia, the former Yugoslav republics, Rwanda, the Congo, Sierra Leone, Liberia and Iraq. The establishment of war crimes tribunals after the cessation of open hostilities merely reinforces the point. The genteel world of legal

1  R Kay, ‘Pre-commitment Rules’ (1981) 42 Ohio State LJ 187; J Waldron, ‘Pre-Commitment and Disagreement’ in L Alexander (ed), Constitutionalism (Cambridge, Cambridge UP, 1998) 301. 2  See, eg R Premdas, S Samarasinghe and A Anderson (eds), Secessionist Movements in Comparative Perspective (London, Pinter, 1990) esp R Premdas, ‘Secessionist Movements in Comparative Perspective’ in ibid 12 ff; A Heraclides, The Self-Determination of Minorities in International Politics (London, Frank Cass, 1991) (examining the cases of Katanga–Congo; Biafra–Nigeria, the Southern Sudan, Iraqi Kurdistan, Bangladesh, the Moro region–the Philippines, and Eritrea–Ethiopia). 3   H Wilson, International Law and the Use of Force by National Liberation Movements (Oxford, Oxford UP, 1988) 34–36; E Chadwick, Self-determination, Terrorism and the International Humanitarian Law of Armed Conflict (The Hague, Martinus Nijhoff, 1996); I Brownlie, International Law and the Use of Force (Oxford, Oxford UP, 1963); R Falk, Legal Order in a Violent World (Princeton (NJ), Princeton UP, 1968); L Green, The Contemporary Law of Armed Conflict, 2nd edn (Manchester, Manchester UP, 2000); and C Gray, International Law and the Use of Force (Oxford, Oxford UP, 2000). See also M Shaw, International Law, 5th edn (Cambridge, Cambridge UP, 2003) 1013 ff.



The Realist’s Challenge 33

argument does not exist effectively; the habitus of obedience to law is forgotten or cast aside; what law there is, is naked will, brute force.4 The rule of law is exchanged for the rule of the strong in the pre-Leviathan chaos postulated by Hobbes.5 In view of the above, our realist thus concludes fairly that secession and constitutional law do not mix. If we accept the view of what a constitution and constitutional law is, as implied by our realist, then we likely ought to concede the realist’s argument. The critical premise to (and fundamental problem of) the argument is a narrow, restrictive conception of constitution, and constitutional law by consequence. Denying or rejecting a broader view of constitution in favour of a very pragmatic constitutionalism facilitates this drawing of inflexible borders between a constitutional ‘inside’ and ‘outside’, between the political and the legal. By way of contrast, suppose for example that we saw a constitution as an interdependent dense network of relationships ordering society, some of which (but by no means all) were described and fixed by certain documents. Secession then would certainly engage constitutional law as a matter going to the core of those relationships and the ordering of society. Clearly the heart of the issue is our characterisation of ‘constitution’. How we conceive of a constitution in the first place, what we focus upon, what we emphasise, and hence what we diminish, ignore or hide, all this affects our understanding and approach to a constitution under any sort of stress. Form and Function: Structural Concepts The definitions given for ‘constitution’ are as diverse and numerous as those who propound them. The precise objects of their focus change according to what goals the descriptive or analytic jurisprudence seeks to achieve: textbook, commentary, polemic, plea for paradigm shift, globalisation, and so on. Nevertheless, it is possible to discern in all these multiplex definitions the two essential components of form and function, one of which usually represents the critical feature deserving especial emphasis for any given constitutional scholar.6 Form goes to the ‘what’ and ‘how’; whereas function, to the ‘why’. Of course, both are closely intertwined, and no analysis of constitutional law purporting to be complete may treat the one to the exclusion of the other. The feature of this dualism relevant here is that emphasising form leads to a more reified, black-letter law oriented constitutionalism, thereby disabling it from satisfactorily addressing matters of constitutional stress, or simply political change more broadly. Our realist above clearly favours the form camp. Emphasising the functional side, on the other hand, may be more dynamic and responsive to change, but it tends to a purely ‘political’ characterisation, and so also tends to disassociate itself from questions of law and legality. But matters of constitutional stress reveal the necessity, indeed the urgency, to achieve a practicable balance between the two, to direct the heat of conflict more to the remoulding or tempering of the constitution in rational, deliberative, and thus peaceful, ways.7 4   See, eg R Teitl, ‘Transitional Jurisprudence: the Role of Law in Political Transformation’ (1997) 106 Yale LJ 2009; B Orend, ‘Terminating Wars and Establishing Global Governance’ (1999) 12 CJLJ 253; and D Matas, ‘Armed Opposition Groups’ (1997) 24 Man LJ 621. 5   T Hobbes, Leviathan (CB MacPherson (ed), London, Penguin, 1985). 6   I Loveland, Constitutional Law, Administrative Law, and Human Rights, 4th edn (Oxford, Oxford UP, 2006) 2 (not developing the point further, and proceeding along the ‘functionalist’ path). 7   See, eg J Finn, Constitutions in Crisis: Political Violence and the Rule of Law (Oxford, Oxford UP, 1991) 30–42.

34  Associative Constitutionalism Looking at the two elements more closely, form refers to the shape, structure and nature a constitution adopts: that which traces out the architecture of a constitution in all its essential features. At a descriptive level, form emphasises the institutions created by a constitution and the interrelationships among them, and between them and the constitution. Matters of process and procedure relating to decision-making, the division of powers, and jurisdiction are certainly to hand. Rights and freedoms play a role too. They influence the structure and mechanics of the constitutional architecture. At an analytic level, form addresses the means by which we may identify what rules count as constitutional rules: whether such means and rules originate ‘inside’ or ‘outside’ the constitution, and how these authorise other rules.8 It also touches upon the normative operation of a constitution and of constitutional principles. It takes as a given the organs of state as independent actors and sets up the antinomies of individual and state, public and private, so as to test the limits of public and private power, and the structure and working of those organs. It is a view characteristic of the twentieth century. Concepts such as sovereignty, territoriality, conventions, textual or teleological interpretation, all form part of its analytic province. Most textbook constitutional law is of this type. Function, on the other hand, refers to the principles, objectives and needs a society, a government, a constitution and constitutional organs serve. The central questions lean more to the sociological: why society and why government? At a descriptive level, function is characteristically a question of the exercise of power, of force, of legitimacy. Its starting points are issues of limitation, justification, rights and freedoms, of judicial control of legislative and executive power. A functional view enquires why a particular organ does or should act in a certain field or way, and what the countervailing values and goods are. Were we to characterise the formal view as one dominated by validity, then primary to the functional is the idea of legitimacy. At an analytic level, function concerns itself less with particular normative operations deriving from a constitution and more with the proper role of government in society. In this sense, it ratchets up the level of abstraction. It concentrates upon the relationships and interaction among participants in the state, in government and in other organisations. It examines the nature and balancing of values held by society and individuals alike. The ultimate objective thereof is to understand the function those beliefs have in creating unity and diversity, mutuality and antagonism, among people. Concepts such as liberalism and communitarianism, civil society and deliberative democracy all have play. And the constitutional lawyer’s observation would not be amiss, that the functional view seems to demonstrate mostly political theory and little if any ‘black-letter law’. Such a concern would not be not amiss if we were to pursue that school of constitutionalism described by Vile as ‘behaviouralism’. This school concentrated on human nature and politicking, to the exclusion of rules and mechanics of government. An underlying assumption was that it is the ‘relative power of “groups” that provides the independent variables of the political system upon which all other factors depend, and the consequent belief that institutional structures can have little or no significant effect 8   Of particular concern to US constitutional scholars: B Ackerman, ‘Discovering the Constitution’ (1984) 93 Yale LJ 1013, his We the People: Foundations (Cambridge (Mass), Belknap/Harvard UP, 1991) and his We the People: Transformations (Cambridge (Mass), Belknap/Harvard UP, 1998); L Alexander and F Schauer, ‘On Extrajudicial Constitutional Interpretation’ (1997) 110 Harvard LR 1359; N Devim and L Fisher, ‘Judicial Exclusivity and Political Instability’ (1998) 84 Virginia LR 83; R Pushaw, ‘Justiciability and Separation of Powers: A Neo-Federalist Approach’ (1996) 81 Cornell LR 393; and A Reed Amar, ‘Intratextualism’ (1999) 112 Harvard LR 747.



The Realist’s Challenge 35

upon the outcome of political situations’.9 Vile is correct to identify their fundamental error as drawing a ‘false dichotomy’ between the constitution and social forces.10 His view, and one in which I generally share, is the idea of constitutionalism as an integrated equilibrium of function, process and structure, without attaching any importance to the formalistic, pure categories of ‘executive’, ‘legislative’ and ‘judicial’. I adopt here his idea of a political system and government as having the principal functions of rule making, discretion, rule application and authoritative rule interpretation.11 These functions are organised along his two poles of organisation: hierarchy and collegium. This provides the ‘the abiding core of truth in the idea of separation of powers’ reflecting why commentators have long insisted that there are only two functions of government: legislation and adjudication.12 The basis to the function or process of government is not that everything is in flux, but that it is the ‘institutional expression of the value patterns of particular societies’ based on efficiency, democracy and justice.13 So it would be unwise and incorrect, if not impossible, to separate questions of function from those of form, and likewise to classify scholars or theories as form or function based. The relation is much more nuanced – one of emphasis and orientation – because the one is too tightly woven into the other, and at no point is it purely just ‘form’ or ‘function’. Function is predicated upon form, inasmuch as the constitution clearly prescribes the existence, composition and powers of particular organs, thus delineating the organs’ functions. Form takes its cue from function. In the beginning, no doubt the constitutional founders have in mind certain functions around which they will try to build constitutional institutions. In practice, such organs will obviously evolve in form (explicitly or implicitly) as the changing circumstances of political, economic and social life test the operation of the constitution. For instance, we might cautiously venture that most constitutionalists, such as Blackstone, Montesquieu, the authors of the Federalist Papers (Madison, Hamilton, and Jay), Blackstone, Dicey, Schmitt, Radbruch, Hart (and most positivists, such as Simmonds and Raz), and Kelsen, and most constitutional textbook writers, all tend to lean to the formalist side, whilst political theorists and constitutionalists, such as Hobbes, Locke, Rawls, Dworkin, Taylor, Tushnet, Sunstein, Walzer, Kymlicka, McCormick, Vile, and Habermas, generally tend to lean more to the functional side. But as with all such broad brush work, we quickly hasten to add that there are always elements of the other view also present and discernible in their respective work. The key, as with most everything, is simply to achieve a practicable and justifiable balance to form and function. The above differentiation tracks in some measure a continental distinction between the ‘material’ and the ‘formal’ sense of the constitution. The former refers to that collection of norms, principles and ideals, written and unwritten, which establish the basic conceptual framework for a polity and their legal relations.14 The latter are the identifiable and iterable rules and procedures wherein those norms and the like are said to operate or take particular form.15 The parallels between the material sense and function, on 9   M Vile, Constitutionalism and the Separation of Powers, 2nd edn (Indianapolis, Liberty Fund, 1998) 326 (referring to the work of Penn, Namier and Dahl as representatives of the behaviourist approach). 10   ibid 342–44, 361–62. 11  ibid 349–51, 358–61, 380. 12   ibid 372. 13   ibid 381. 14   GFM van der Tang, Grondwetsbegrip en grondwetsidee (Rotterdam, Gouda Quint, 1998) 43–44, 47. 15   ibid 47, 50–58.

36  Associative Constitutionalism the one hand, and form and the formal sense on the other, are self-explanatory. But even here the match is not exact. The form-function division addresses the practicalities of governance, its instrumentality. It is a relationship-oriented perspective on constitutionalism. By contrast, for the continental scheme, the emphasis falls upon the provenance, the character, of the rules in question. It is a rule-oriented view of constitutionalism. Hence the finding of van der Tang of a disillusionment in constitutionalism arising from its conspicuous failure to deliver the peace, order and good government its normative conception promised, and the subsequent reassessment of the origin of values and goods and their place in the constitutional scheme of things.16 He might also have cited ‘civil society revivalism’ in the United States.17 A deeper investigation into the origination of rules may ultimately lead us to the same relationships focus grounding the function view, but not before a necessarily substantial theoretical discussion of rules, thus delaying and distracting us from the issues at hand. The form-function approach is therefore unquestionably the more useful touchstone for examining constitutionalism and constitutions under stress, where the relationships themselves, between institution and citizen and among citizens, are collapsing. Where the above approach leads us naturally points to a premise and basis of a constitutional order as being an ordered set of relationships. Accordingly, I begin with the constitution as an association or grouping. This will take us to the ideas of constitutional projections of authority and the institutional premise of constitutionalism (the idea of structuring deliberative and informed governance). From these concepts I propose to sketch out the peculiar role and importance equality has for situations of constitutional stress and in general as an ideal and foundation for any polity. And of course, inasmuch as this constitutional understanding depends upon orientation, for present purposes it is declared to be clearly more functional than formalist. NATIONAL CONSTITUTIONAL LAW GENERALLY

Constitution and Association Our primary concern and image of a constitution and constitutional law understandably revolves around our relationship with government organs, more so than the structure per se of the state. Modern constitutionalism is predominantly occupied with rights and with controlling or limiting the powers of government over the individual. We tend to take the basic issue of the existence and structure of the state somewhat for granted. Its enduring and pervasive presence is simply a fact of life, leaving the question of quality of life – how well a state does its job of governing – as the focus of our concern. But a constitution is in the first place a structural blueprint. It establishes or announces the existence of a state, and provides that certain institutions and their officials (as extensions of the state) have carriage of particular aspects of the public administration. Practically 16   ibid 321 ff, echoed in P Bastid, L’idée de constitution (Paris, Eds Economica, 1985) 187 ff and F Rigaux, Lois des Juges (Paris, Eds Odile Jacob, 1997) 246–49. 17   See, eg R Putnam, Bowling Alone: the Collapse and Revival of American Community (New York, Simon & Schuster, 2000); N Rosenblum, Membership and Morals: the Personal Uses of Pluralism in America (Princeton (NJ), Princeton UP, 1998); A Seligman, The Idea of a Civil Society (Princeton (NJ), Princeton UP, 1995).



National Constitutional Law Generally 37

speaking, in virtue of a constitution, we accept (or suffer) the existence of a state, a legislature, an executive and judiciary, and the rules concerning their respective scope of authority, their functions and the limits on their actions. A constitution thus identifies and traces out these complex systems of interrelationships, the substance of constitutional law. Because it does so principally in outline only, much of constitutional law consists therefore of understanding and developing the interaction of public institutions, the limits of their power and jurisdiction, both among themselves (separation of powers) and between themselves and citizens (human rights and administrative law). When we talk about the constitution then, we generally have in mind two sets of related rules. The first tells us about the structure of the state and its institutions. This set establishes and defines the basic organs of the public administration, namely the legislative, the executive and the judicial, as well as their workings. It also extends to matters such as special or express powers for the various organs, appointment to certain official posts, duration of tenure, the process of amending these institutions and these rules, and such like. The degree of particularity in the description and definition for each of the organs will naturally vary from constitution to constitution. The second set comprises rules which are intended to place operational boundaries on the range of state power, principally to restrict interference of state officials and institutions in our lives. These include (primarily) rights and freedoms. For most citizens, the second set of rules, rights and freedoms, dominate the perception of what a constitution is. A good deal of what we perceive to be constitutional law concerns how far public institutions and officials may regulate private conduct (and to a lesser degree, tread on the jurisdiction of other institutions), taking these institutions as a given. Indeed, the rights and freedoms orientation to constitutional law dominated twentieth century understandings of a constitution, and continues to do so in the twenty-first century as the portal to dismantling national constitutionalism in the face of globalism. Form’s Legacy: Reification The bifurcation of constitutional law into rights and freedoms, on the one hand, and institutional mechanics, on the other, reflects and reinforces a certain underlying conception of state government. The bifurcation is based upon the premise that the state is a corporation of various departments, exercising an autonomous, independent will as against us, whether concurrent with or contrary to our own. The state persona and will are separate and apart from those of its citizens and functionaries. First, being sovereign, it refuses to share any (government) functions with others but concentrates all of them in its own hands. Secondly, being territorial, it exercises such powers over all the people who live within its borders and over them only. Thirdly, and most importantly, it is an abstract organization. Unlike any of its predecessors at any other time and place, it is not identical with either rulers nor ruled; it is neither a man nor a community, but an invisible being known as a corporation. As a corporation it has an independent persona. The latter is recognized by law and capable of behaving as if it were a real person in making contracts, owning property, defending itself and the like.18

  M van Creveld, The Rise and Decline of the State (Cambridge, Cambridge UP, 1999) 416.

18

38  Associative Constitutionalism Further, that will is supreme on a vertical and horizontal orientation. Vertically, it is final inasmuch as it ordinarily recognises neither correlate nor higher authority: it has neither shared nor delegated power. Secondly, it is supreme in that its will is determinative over our own and demands our loyalty. Horizontally, it arrogates all power to itself in that only it may authorise and limit, and that in virtue of itself only. In sum, then, state power determines and defines in virtue of itself – in effect the nature of sovereignty. Indeed, this is in the nature of the state itself, as summarised in the three important characteristics of (1) a monopoly on coercive power, (2) territoriality and (3) legal persona.19 What distinguishes the state from other corporations are the features of a monopoly on coercive power (the so called ‘attributes of sovereignty’), its territoriality, and ‘the fact that it authorizes them all but is itself authorized (recognized) solely by others of its kind’.20 Coercive power was necessary to compel individuals to certain goals and ends serving external and internal administration and security.21 The monopoly required of such power is self-explanatory, for otherwise its coercive effect could be challenged and defeated. Territoriality is important to define the range of coercive power and the limits of internal and external security. The independent legal persona, as van Creveld argues compellingly, is perhaps the most important feature, inasmuch as it separates public rule from private authority, defines a fixed, continuous locus of power, and makes the state self-perpetuating and self-justifying.22 This conception of the sovereign state as a separate, self-sustaining and extant individual is very much the intended consequence of the historical growth of state power as the expansion of professional, regular administration. The facts and arguments tracing the development of the bureaucratic welfare state need not be rehearsed here.23 Suffice it to say in summary of these arguments, however, that public authority has constantly increased and expanded claims made in and upon private life, for the purposes of external security (war and peace) dividing us from other states, and for internal security (law and order, commerce, currency and taxes), reinforcing that separation from other state groups.24 We in turn have also increased and expanded our claims upon public administration. All this requires effective, regularised administration, supported obviously by dedicated, competent, paid officials. In the result, the system of public administration diminished the real and effective power of the individual ruler by separating the decisions from the decider. At 19   ibid 1, 416; G Poggi, The State: Its Nature, Development, and Prospects (Cambridge, Polity, 1990) 19–25; M Loughlin, Foundations of Public Law (Oxford, Oxford UP, 2010) 190 ff (using the German Staatslehre triptych of territory (Staatsgebiet), apparatus and function of governance (Staatsgewalt), and people subject to governance (Staatsvolk) as a touchstone); N MacCormick, Institutions of Law (Oxford, Oxford UP, 2007) 40 ff relies on the foursome of territory, legitimacy, independence and a recognised and effective government. 20   van Creveld, Rise and Decline (n 18) 1, and Poggi, The State (n 19) 4–18 (discussion about social power and its forms). 21   van Creveld, Rise and Decline (n 18) 154–55. Poggi, The State (n 19) suggests that the state is in fact a cluster of ‘attributes’, being a series of agencies, each having various official functions, and various degrees of coercive power (including sovereignty), as does MacCormick, Institutions (n 19). 22   van Creveld, Rise and Decline (n 18) 416. 23  Poggi, The State (n 19) 30 ff, 109 ff; van Creveld, Rise and Decline (n 18) 128 ff, 137, 239 ff (bureaucracy and welfare), 258 ff (‘apotheosis’ of the state), 354–77 (retreat of welfare). See generally, in an Anglo-Saxon context, J Brown, The British Welfare State: A Critical History (Oxford, Blackwell, 1995) and H Perkins, The Rise of Professional Society: England Since 1880 (London, Routledge, 1989) (reflecting this on a social level is the growth in the professional classes). 24   Leading to the growth of managerial thinking where the entire complex of individuals, society, relationships are reduced merely to things to be managed for efficiency: R Foqué, ‘Het Rechtsbedrijf: Een metafoor op drift?’ (1999) 25 Justiele verkenning 10. See also G Grant, Technology and Justice (Toronto, Anansi, 1986).



National Constitutional Law Generally 39

the same time, it also separated the decision from the individual affected, distancing the connection between the individual qua official and individual qua subject. The creating of a recursive distance between the person deciding, the decision itself and the person affected by the decision, is fundamental to institutional thinking.25 A recursive distance begets procedures, mechanisms, whose values are measured against repetition, structure and efficiency.26 In other words, the recursive distancing reifies otherwise fluid relationships into a set template. Underlying the term ‘reification’ is a complex series of propositions and concepts concerning social relations, meaning and values. By way of introduction, reification means the treatment of subjective elements as objective facts, with the result that the variegated and mutable nature of the former are lost or suppressed. The concept has its roots in Marxism, where it describes the seemingly inexorable conversion of human qualities and labour into measurable economic quantities. The relations among worker, employer and consumer, as well as between the worker and the work-input and product, become de-humanised instruments to be rationally and scientifically managed as part of the overall commodity production process.27 Lukács is credited with developing the concept into a general philosophical concept.28 He deepened the reach of the reification concept, albeit with Marxist pretension and intention, in function of a broader subject–object distinction which consciousness makes when perceiving reality. Starting off from the fetishism of commodities, Lukács sets the problem not only as the creation of things out of human relations – labour and capital – but as an alienation of the worker from his action, the object of his attention and intention. He draws into the analysis of ‘commodity fetishism’ Weber’s theory of rationalisation, distinguishing between substantive, material rationality, and formal, practical rationality, the latter catching qualities, means, efficiencies and efficacity to show (capitalist) reality as fragmented and instrumentalised.29 Lukács intends to re-acquaint the worker with his work by reconstruing the subject–object relationship through the Hegelian ideas of being, mediation and totality. These ideas fed into the historical self which produces and is produced by history, the acting in the world.30 A history-oriented conception of the self is a subject which is always in the state of becoming an object for itself and for others: a self-consciousness. 25   N MacCormick and O Weinberger, An Institutional Theory of Law (Dordrecht, Reidel, 1986) esp 1–2, 6–13, 17–21; N MacCormick, ‘Law as Institutional Fact’ in ibid 49, and his ‘Institutional Morality and the Constitution’ in ibid 171; N MacCormick, ‘Institutional Normative Order: A Conception of Law’ (1997) 82 Cornell LR 1051, 1057 ff (emphasising structural components, rather than performative-functional ones), 1063 (and see W Ewald’s comment thereon (1997) 82 Cornell LR 1071) and his ‘Institutions and Laws Again’ (1999) 77 Texas LR 1429. 26   Underlying systems theory: N Luhmann, Social Systems (J Bednarz (trans), Stanford (Calif), Stanford UP, 1984) 13–15, 16 ff. 27   Caught by Marx’s phrase of ‘fetishism of commodities’: K Marx, Das Kapital, vol 1, quoted and discussed in G Lukács, ‘Reification and the Consciousness of the Proletariat’ in his History and Class Consciousness: Studies in Marxist Dialectics (R Livingstone (trans), Manchester, Merlin, 1968) 86 ff. 28   Lukács, ‘Reification’ (n 27); and see A Arato and P Breines, The Young Lukács and the Origins of Western Marxism (New York, Seabury, 1979) 113–41; A Feenberg, Lukács, Marx and the Sources of Critical Theory (New York, Rowman & Littlefield, 1981) 59–86, esp 61–70; J Grondin, ‘Reification from Lukács to Habermas’ in T Rockmore (ed), Lukács Today: Essays in Marxist Philosophy (Dordrecht, Reidel, 1988) 86, 86–90; and C Varga, The Place of Law in Lukács’ World Concept (Budapest, Akadémiai Kiadó, 1985) 46 ff, 52 ff, and ch 5. 29   Lukács, ‘Reification’ (n 27) 95 ff, 185 ff; Feenberg, Lukács (n 28) 63–65, 74–76, and Arato and Breines, Young Lukács (n 28) 114, 116 ff. 30   Lukács, ‘Reification’ (n 27) 127 ff, 142 ff, 181 ff, 203 ff; Arato and Breines, Young Lukács (n 28) 129–31; Feenberg, Lukács (n 28) 77–84; and Varga, Place of Law (n 28) 52 ff.

40  Associative Constitutionalism It bears aspects of both subjectivity and objectivity without having the essence of the one submerged or overridden by the other. My approach to reification herein discards the Marxism, the economics orientation, and the grand Hegelian scale. I adopt only the central themes to reification, namely the function and significance of intersubjective relations. The focus is not on the creation of ‘pseudo-things’ nor of alienation. I accept without more that objectification is inexorably connected to the rational process, howsoever conceived. Nor do I concentrate on the ‘subject–object’ antinomy, because I take the view that a successful reproduction of valued human conduct, the reproduction being a re-affirmation of its value, represents a question of ethics, of what constitutes the good and the right. As such it sits comfortably within the ambit of law and legal theory. In my view, reification represents an aspect of intersubjective valuation, and reflects the problem of identifying a means to an end, where the end is complex and partially defined, and the means are complex, partial and incomplete. To my mind, Lukács never really asked the critical question underlying the concept of reification: what is lost in that primordial connection between worker and work, between worker and employer? What is the socially significant fact sought to be reproduced without further reflection on its continuing viability and its continuing connection to the true and natural relations among persons? The intersubjective relationship as a process, the crucible of value formation, gives the answer. Reification, for our purposes here, is the ascription of ontological completeness to a particular instantiation of social significance and value, independent of any human participation in or influence over that valuation.31 More simply and generally, reification means reconsidering the subjective, transient character of value as instead objectively prescribed. The value of an outcome to human interaction or of the interaction itself (in light of that outcome) is treated as objectively good, true or right. The human element to the relationship – the intersubjective interaction wherein the value and co-ordination first took shape – no longer signifies, apart from its continued functioning so as to attain or achieve successfully those values, results and commitments. Indeed, such is the ontological weight given to the particular instantiation that it forms the measure or terms in which reality is reconstructed and interpreted.32 We might therefore say that reification arises from the inversion of the ontological perspective of the values and action co-­ ordination issuing from an associative relationship, whereby the social significance and values constituting that relationship are reconstrued as existing independently of and prior to the relationship, rather than as arising in and through the relating process. Individuals thereby no longer participate in the formation and development of social values and norms, but are recipients of, not participants in, the value and co-ordination process. The effect therefore is to create a distance or distinction between an immediate grasp of value and its articulated version. It is also possible to conceive of this division as one existing between Hart’s ‘internal point of view’ and ‘external point of view’.33 31   Other studies of reification good for background and explanation, but with different points of emphasis and approach: P Gabel, ‘Reification in Legal Reasoning’ in J Boyle (ed), Critical Legal Studies (New York, Dartmouth/New York UP, 1994) 25; A Fejfar, ‘An Analysis of the Term “Reification” as Used in Peter Gable’s Reification and Legal Reasoning’ (1996) Capital Uni LR 579; D Litowitz, ‘Reification in Law and Legal Theory’ (2000) 9 S Cal Interdisc LJ 401. 32   Echoed in Varga, Place of Law (n 28) 168–69, 171–73. 33   HLA Hart, The Concept of Law, 2nd edn (Oxford, Oxford UP, 1994); analysed further: D Patterson, ‘Explicating the Internal Point of View’ (1999) 52 So Methodist U LR 67 (normativity attaching only to the internal); D Litowitz, ‘Internal versus External Perspectives: toward Mediation’ (1998) 26 Florida State U LR



National Constitutional Law Generally 41

In other words, reification describes treating a relational concept as having an exist­ ence independent of, and external to, the relationship whereout it springs or manifests itself. It entails thus the reconstruction of the relationship as an instantiation of an a priori state of being without the opportunity of its reflecting that original relationship in some other equally efficacious manner or degree, or of adopting some other articulation thereof, or even another relationship ideal entirely. A relational concept comes into being and has application in function of the relationship it describes. It is internal to the relationship, as being internal to the participants’ point of view, and so is reflexively constitutive of that relationship.34 But for the existence of the relationship, there could be no relational concept. Yet the relationship is also simultaneously re-interpreted through the optic of the relational concept as understood by the parties. A relational concept is always a question of values and valuation. It is, in other words, an evaluative notion, a source of signification, of how and why something signifies for someone as having importance and relevance to him. Moreover, it entails that participants have arrived at a common measure of evaluation and a common evaluation of certain things for which the intersubjective action the action co-ordination – was necessary. Things cannot be reified. Rather, reification refers to a conceptual stasis applied to a process or event. As such, it pertains to social reality, and reflects a tension in the rationalisation of human action in a social setting. In our attempt to grasp and control certain events, things and results so that we can reproduce or avoid them, we produce an abstraction thereof which highlights certain attributes, qualities, and such like. Reification involves the isolation of the relationship, by and through that abstraction, from the elements constituting the process; the fixing of the nature, degree and value of that relationship, and the re-interpretation of the elements in function of the relationship so that they do not signify independently of that relationship. By consequence, reification creates an institution by preserving a set of values, judgements and processes, and by successively invoking them in similar circumstances irrespective of the person deciding or the person affected by the decision. The stability and certainty offered by reification gives the institution its existence separate and apart from those individuals having office in it, comprising it, as if the institution existed and functioned independently of them. The institution is a whole greater than the sum of its parts. Reification is impersonal. It separates the official from the office: the latter is continuing, permanent; the former, temporary, replaceable. Reification is mechanical. It establishes and relies upon fixed and regular procedures, functions and objectives. Reification is also conservative. It separates institutional values and goods from individual, personal ones. This separation has two facets. First, by its crystallising certain values and goods into institutional ones, reification provides some resistance to and insulation from changes and varieties in individual values and goods. The evolution of institutional goods proceeds at its own pace, creating a distance between the values of the ‘establishment’ and those of the population at large. Secondly, reification develops 127 (thus the need for reconciliation and mediation between the two perspectives); and B Bix, ‘HLA Hart and the Hermeneutic Turn in Legal Theory’ (1999) 52 So Methodist U LR 167. 34   Drawing on the idea of ‘agentive functions’ and ‘institutional facts’: J Searle, The Construction of Social Reality (London, Penguin, 1996) esp 20–23, 27–29, 31–56; and P Berger and T Luckmann, The Social Construction of Reality (London, Penguin, 1991) esp 65 ff, 70–85, 97–109 (‘institutionalisation’), 85–96 (‘sedimentation’), and 106–9 (on reification). See also J Searle, Making the Social World (London, Penguin, 2009) (developing and adjusting his theory and arguments found in Social Reality).

42  Associative Constitutionalism its own values and goods in virtue of its mechanical functions.35 These values may or may not be congruent with any given set of private or social ones. Put another way, the interests of the state may not coincide with those of any part of its citizens. As the demands of and on government have increased, so too has our attention upon state and government. It is incontestable that public administration has become pervasive in the government of our everyday affairs, whether or not we want to label this development the ‘growth of the welfare state’, or some other way. There remains very little untouched by government regulation, for better or worse. We have reciprocated by concentrating on the state, and investing substantial attention in the administrative, political level. In so doing, we have drawn upon the very clear advantage of reification. Its impersonal character entails a reasonable expectation that an institution or official will follow procedure to render an impartial objective decision without arbitrary or subjective interference. This represents an indirect limit or control of administrative power. Secondly, its mechanical nature serves directly to limit or control the exercise of power. The institution is bound to its working rules, those fixed procedures and functions, and may only diverge where expressly authorised, such as by prescribed amendment of those working rules. Reification thus imparts stability and certainty to the workings of government. The crucible wherein the three elements of a state, namely power monopoly, territory and persona merge and crystallise into a particular form, is the constitution. Constitutional theory and law exhibit, albeit not unfairly or unjustifiably, a strong tendency to reify relationships into institutions and deal with the mutual attraction or repulsion of those various units. A constitution announces the state, and expresses how, where and over whom it is to make its presence effective. The constitution maps out the architecture of the state and the functioning of its various institutions. It is the reference point, the Archimedean point, which proves or justifies the state’s existence and power. Hence, as van der Tang argues, there has been a demonstrably increasing reliance on constitutions to reify the structure of government in order to achieve the goals of stability and control.36 A constitutional order, and constitutional law more particularly, become reified not merely in terms of the institutionalised structure to social power. There exists as well a very strong tendency to conceptual stasis in the institutional idea of the administering of social relations and in the moral standards these are considered to uphold. This is evid­ enced, for example, by an exquisitely detailed adherence to the constitutional text as the source of constitutional values and principles.37 A constitution is not a ‘living tree’ as Lord Sankey would imagine it.38 So this position ignores effectively the daily intercourse among people, and how associative relationships spring up. It also ignores the recognition that officials are individuals open to the forming of intersubjective associations as well, so that the application of ‘policy’ is not ‘government’ qua thing versus persons, but persons doing things to other persons. Reification at this level also manifests itself in the juxtaposition between ‘social control’ and ‘individual liberties’, common to liberalisminspired theories wherein it is more or less assumed that governments would act against 35   See, eg Luhmann, Social Sytems (n 26) (the self-referential nature of, and development of meaning in, systems). 36   van der Tang, Grondwetsbegrip (n 14) 188 ff, 195–210 (referring to classic constitutionalism), 232, 235–36. 37   As commonly seen in the US ‘textualist’ and ‘originalist’ schools of constitutional interpretation. 38   Edwards v Canada (AG) [1930] 1 DLR 98 (PC) 106–7 (Lord Sankey LC) and adopted in, eg British Coal Corp v The King [1935] AC 500 (PC) and Ontario (AG) v Canada (AG) [1947] AC 127 (PC) (context of the division of powers); Québec (AG) v Blaikie [1979] 2 SCR 1016 (Bill of Rights); and R v Big M Drug Mart [1985] 1 SCR 295 and Reference re Same Sex Marriages [2004] 3 SCR 698 (in Charter of Rights cases).



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individual interests unless subject to some supervening prohibition (viz rights), rather than an interpretation of rights with inherent boundaries and the possibility of a supervening necessity to limit them. Reification has indeed served the immediate goals of institutionalising invasive and pervasive government power. But equally the disadvantage of reification, namely its impersonal nature and distancing, pointed to the necessity of making special provision or place for individual goals and values in the institutional scheme of things. In other words, reification as institutional mechanics alone was found wanting or insufficient to control fully the action of government. As government expanded and encroached further into our daily lives, more of our private domain was taken up into the public, and we needed to reconcile and control that transformation. Some further mechanism was required to moderate (to institutionalise, so to speak) the relationship between the public and the private. The expansion of government into our private domain and its transformation into the public does not occur easily or smoothly. We resist, naturally, and strive to retain as much autonomy as possible, as much control and freedom as possible, for the free play of our own desires, goals, and so on. The resultant tension, as history amply shows, places considerable stress on the extant constitutional architecture. This was the idea of a normative interpretation of the constitution in order to emphasise individual liberty, rights and freedoms.39 Institutionalising personal liberty promised to diminish the conflicts leading to constitutional stress, by further delineating the public from the private. This focus on rights and freedoms has been one of the defining characteristics of twentieth century constitutionalism (albeit not unwisely given the recurrent failures of purely structural or mechanical constitutionalism). Now whether liberty impressed itself inherently in the structure of government, or externally, by Declaration, Convention, Bill or Charter of Rights, the rights approach more importantly re-introduced a place for private goods in co-existence with public ones. The state person had to account for the individual person. But the reified perception of governance would determine the dualist optic through which the solutions were identified. Reification entails a distancing of the public government from the private, of public morality from the private, of official values from individual ones. Hence, charting the solutions followed one of two discernible paths to re-affirm the place of private goods in public life.40 On the one hand, to abridge the distance involves incorporating more of the private in the public sphere. This attempts to correlate or identify private goods with public ones, public values with private ones. For example, this might involve returning practical control of certain public sector matters to the private. Or it might involve submitting government policy and proposed legislation to direct popular approval by referendum. Or it might seek to ground itself on a particular group’s (racial, ethnic, cultural) values, such that they provided an intrinsic guarantee that policy and legislation presumptively conformed to those private ethnic or cultural values.41 On the other, the perception of the state as a separate legal person lends itself more easily to 39   See, eg van de Tang, Grondwetsbegrip (n 14) and JM Coicaud, Légitimité et politique, contribution à l’étude du droit et de la responsabilité politique (Paris, PU de France, 1997) 12–56. 40   M Tushnet, ‘The Possibilities of Interpretative Liberalism’ (1991) 29 Alberta LR 276 (analysis of the various interpretative strands). 41  The republican and nationalist solution: F Barnard, Self-Direction and Political Legitimacy (Oxford, Oxford UP, 1988) 286–300 (on the inheritance of Rousseau); R Dworkin, Law’s Empire (Cambridge (Mass), Belknap/Harvard UP, 1986) 189 ff; and M Sandel, Liberalism and the Limits of Justice (Cambridge, Cambridge UP, 1982).

44  Associative Constitutionalism juxtaposing state and individual as entities, with the additional premise that state power is in some way derivative upon the individual’s consent or authorisation. As a result, the individual’s sphere of action has priority.42 To reconcile state and private action, then, involves dividing clearly the two along the status quo, or in favour of the private.43 This establishes (or re-affirms the place of) a sphere of private action impervious to public regulation, and thus resistant to absorption into the public domain. Such an approach represents the classic ‘negative liberty’ perspective of liberalism, and remains the primary approach to rights and freedoms in constitutional law.44 Hence their bifurcation in constitutional law, tracking in effect their successive historical development. As a consequence, we have tended to separate our public and political lives from our private and social lives. Our political existence has been very much characterised in a dualistic or oppositional form, as the individual against the state. This perspective, for example, whether or not purely liberal in orientation, has very much driven the twentieth century concern over human rights, as establishing zones of private freedom protected from public interference. Our social or private lives, characterised more by mutuality and community, remain for the most part distinct from our political lives. Recognition of this division prompted in the first instance the reaction of communitarian and civil society against a liberal, individual orientation, to erase or blur that boundary. Thereafter, in the opening decades of the twenty-first century, the preoccupation with globalisation and multilevel governance began to calculate cross-cutting transnational and international networks and associations into the public governance equation.45 Private interests could thus be understood to carry public regulation. The continuing division between the public and the private is plainly visible when individual values or goods challenge state ones. Private government, we might say, challenges public government. The solution of dividing public from private, and setting up individual rights against state interests is, of course, no rapprochement of the distancing inherent in reification. The division, or gap, remains and merely reinforces the independence of the state and state interests from the private. Juxtaposing two sets of values affirms the separate existence and equivalent nature of both. How else could they be compared, after all? Hence the emphasis on the normativity of rights, whereby each set struggles to fit into a hierarchy of rules and, naturally, take precedence over the other. Were we to favour the private over the public, we might attempt to build rights into reified public structures, as elements or components of those structures. Thus, rights and liberties become part and parcel of a constitutional organ’s package of rules and proce42   See, eg V Amar Reed and A Brownstein, ‘The Hybrid Nature of Political Rights’ (1998) 50 Stanford LR 915 (group specific rights), and likewise F Charette, ‘Les droits collectifs comme droits libertés’ (1997–98) Ottawa LR 303. 43   Or a mixture of both: W Kymlicka, Liberalism, Community, and Culture (Oxford, Oxford UP, 1989) and his Multicultural Citizenship (Oxford, Oxford UP, 1995). 44   I Berlin, ‘Two Concepts of Liberty’ in his The Proper Study of Mankind: An Anthology of Essays (H Hardy and R Hausheer (eds), London, Pimlico, 1998) 193 ff. 45   Among the ever-growing literature, see, eg C Joerges, IJ Sand and G Teubner (eds), Transnational Governance and Constitutionalism (Oxford, Hart, 2004); M Torrance, ‘Persuasive Authority Beyond the State: A Theoretical Analysis of Transnational Corporate Social Responsibility Norms as Legal Reasons Within Positive Legal Systems’ (2008) 12 German LJ 1573; J Dunoff and J Trachtman (eds), Ruling the World? Constitutionalism, International Law, and Global Governance (Cambridge, Cambridge UP, 2009); N Krisch, Beyond Constitutionalism: the Pluralist Structure of Postnational Law (Oxford, Oxford UP, 2010); and G Teubner, Constitutional Fragments: Societal Constitutionalism and Globalization (G Norbury (trans), Oxford, Oxford UP, 2012).



National Constitutional Law Generally 45

dures. Or we might treat rights as trumps to institutional interests.46 Nevertheless, in both instances, we are dealing with two sets of independent values as we try to coordinate and reconcile them. Like considerations would apply in the case where we favoured state interests. But why should the one really take precedence over the other? A good deal of scholarly work exists, arguing in favour of individual autonomy and freedom, and the appropriate limits to free action. Historical examples support these views, and yet also show a number of cases where state interests clearly took and continue to take precedence over individual ones.47 The point here is not to review and engage these arguments and historical cases, done more extensively elsewhere. It is simply to refer to their mere existence, whatever their persuasive force in relevant circumstances, as an indicia of the continuing gap between private interests and institutional ones, itself evidence of the reification present in our constitutional thinking. If persuaded that this rights approach could not satisfactorily bridge the gap between structure and rights, we might then seriously consider the alternative (already hinted at in building rights into structures) of correlating public and private values. This involves tightening the connection between private life and public life. Institutional interests would presumptively reflect private ones simply because private life would track the public, and vice versa. The best example of this contiguity occurs in smaller communities, such as villages, social clubs, religious groups and some ethnic and cultural groups, where every member knows the other and their contacts are regular and frequent. Hence, the individual values of the members are seen generally to be consistent and homogenous, and to develop more or less synchronously. Translating this to a ‘state’ level would entail either incorporating more ‘direct’, Athenian style democratic governance into the state architecture, or making the population more homogenous. Let us put to one side the more invidious implications of an ethnically or culturally pure citizenship. The correlation solution is not all that more helpful. First, more direct democracy would seem impracticable in larger countries, necessitating a considerable fragmentation of government into workable numbers of citizens. Whether this means government by referendum, or micro-states, self-governing regions or diffuse federations, there is still a co-ordination problem among all these (local) interests, and a problem in the first instance of the allocation of state powers. There is also the question of getting individuals to participate in the political process in ways that are seen to be, and are actually, meaningful. Thirdly and more importantly, we should recognise that we have not really directed our concerns to the central issue of reification. We are tinkering with the mechanical aspect of reification – procedures and systems – but not with the causes of reification in the first place. The premise of the independent state, with interests actually or potentially different from our own, remains. What we need, as is already beginning to emerge from the antinomy between private goods and public goods, is a 46  Borrowed from R Dworkin, Taking Rights Seriously (Cambridge (Mass), Harvard UP, 1978) xi and ‘Rights as Trumps’ in J Waldron (ed), Theories of Rights (Oxford, Oxford UP, 1984) 153. 47   For instance, regarding self-determination, the priority given to state political and territorial integrity; the internment of the Japanese in North America during the Second World War; the internment of individuals in the US military prison at Guantanamo Bay; and the various tribunals and measures undertaken to combat the ‘war on terrorism’. Of less dramatic scope, see generally J Hiebert, Limiting Rights (Kingston, McGill-Queen’s UP, 1996) (examining the Supreme Court of Canada’s approach to limitations on rights under the Charter of Rights, and with particular regard at 33 ff to possible theoretical underpinnings).

46  Associative Constitutionalism less form-inspired approach. What we need, then, is to focus on the relationships among citizens.48 Reification and Constitutional Stress The reification characteristic of a form-oriented view of the constitution conveniently opens the door to arguments that certain matters, goods and values are ‘outside’ the constitution, or ‘pre-constitutional’. After all, there is a division between the public, or the constitutional, and the private. What all this means for constitutions under stress is simply that they are unable to address the challenges internally, except by reference to rules and procedures currently in place. For example, must secession invoke the amending provisions of a constitution? Put differently, are the constitutional tools to address secession limited to the amending clauses or to some express secession provisions? The difficulty lies in the divisions created by reification between the value-forming phase and its institutional form. The constitution represents the crystallisation of certain values, goods, reified into particular institutions. By virtue of the division, private values are thus able to evolve and change independently of public ones. Hence, arguments on values and goods take place ‘outside’ the constitution in the realm of politics or morality where private interests are exclusively at play. Once settled, they are brought into the constitutional order. The effect is to amend the established order – the current structures are modified to account for the revised set of goods and values. Indeed, to transpose, infuse or invoke these new values into constitutional form may require the creation of a new constitution or such substantial change as to be in effect a new one. Hence, the claimed failure of a given constitutional order to appreciate the new values and goods supposedly justifies individuals rejecting the constitution, either by secession or revolution.49 When the constitutional order of institutions and rights comes under stress of direct competition with the conduct of our public lives, the public–private distinction begins to dissolve. Constitutional stress points out the weakness of this distinction, and in turn, the dangers of the reification impulse to form-inspired constitutionalism. The weakness of the public–private distinction is simply that it obscures the private, individual sources of values for public institutions, and their need to draw constantly upon those sources. Accepting without limitation or caution the state persona as someone whose interests are as real as our own substitutes the attention to others, the co-operation and compromise present in private relationships with one of ‘state policy’ for which we have little responsibility. We then forget that those state values and goods are in fact the values and goods of some person, and we tend to forget the extra input of compromise and co48   This discussion of the public–private antinomy admittedly bypasses consideration of at least one of its intellectual touchstones, H Arendt, The Human Condition (Chicago (Ill), Chicago UP, 1989) (identifying a trinity of public, private and social). As a short answer, I would pick up the criticism of H Pitkin, ‘Justice: On Relating Private and Public’ (1981) 9 Pol Theory 327, and her observation that what is critical is not exploring the division, but rather looking for points of connection. 49   R Kay, ‘American Constitutionalism’ in Alexander, Constitutionalism (n 1) 16 (US context) and hence the claim of a ‘pre-constitutional’ democratic right to secessionist self-determination for Québec: D Turp, ‘Le droit de faire sécession: l’expression du principe démocratique’ in his Le droit de choisir: essais sur le droit du Québec à disposer de lui-même; The Right to Choose: Essays on Québec’s Right of Self-Determination (Québec, Eds Thémis, 2001) 489; and ‘Québec’s Democratic Right to Self-Determination: A Critical and Legal Reflection’ in ibid 505.



National Constitutional Law Generally 47

operation in the process of raising these values to authoritative levels. In other words, we pass responsibility for public behaviour (that is, behaviour tolerated in public, by individuals and officials) to the institution, as something beyond our control. In turn, it becomes the minimum standard of behaviour, of our values and goods. Moreover, reification narrows the responsibility of individuals for constitutional, and more widely, public structures and behaviour. The private domain is its own, special autonomous terrain, with ‘private’ taking on the colouration of ‘individual’ rather than the wider ‘social’. The latter becomes more strongly associated with ‘public’, in the sense of ‘state’, such that social concerns are presumptively matters for government (state) policy. The danger with reification is more than its intractability to accommodate changes and diversity in private values and goods. The danger is that a reified structure, given its conservatism, is unable to argue against that change except in virtue of itself. This is to say that a structure’s continued existence as such and its continued functioning as such, represent its justification for rejecting changes. Otherwise it is in the same position as individuals arguing for change – and who is to say that the one view is better than the other? It is little wonder then, given the form approach to constitutionalism and the reification and distancing it entails, that we have become disillusioned with the normative promise of the rights-based constitutionalism of the twentieth century because of the paucity of demonstrable beneficial results.50 The institutionalised or reified form of constitutional thinking undoubtedly has its place, all things being equal. But particularly in the context of constitutions under stress, we need to recalculate our perception of governance. Reification encourages a fixation upon the state as a form of governance, either to the intentional or unintentional exclusion of other government mechanisms. We tend to fixate upon the state because it predominates as the structure of governance for us, because it pervades all aspects of our lives. It underlies the observation that the very nature of the authority claimed by the state is to demand total attention and allegiance. Whether or not this latter expansive theoretical claim ultimately is borne out, the fixation on the state has tended to obscure or forget certain insights into the deeper structures of governance and constitutionalism. One of the important insights of van Creveld is to remind us that we are governed in many different ways, and the state represents only one particular form of government over us.51 And Wheare reminds us ‘constitutional government means something more than government according to the terms of the Constitution’.52 The development of the state as an instrument of governance is the historical product of an increase in those factors contributing to its existence, and the weakening of those obstructions to its operation. But history is replete with manifold types and examples of political organisation, some successful and others not. Other forms of government exist as well, necessitating a broader examination of the concept of governance beyond the narrower range of state interests. Here we can turn to the work of the so-called ‘civil society’ school, an outgrowth of communitarian political theory, for assistance.

  As van der Tang, Grondwetsbegrip (n 14) 244 ff suggests.   For example, van Creveld, Rise and Decline (n 18) ch 1 (several historical or logical antecedents to the modern, bureaucratic and highly-structured state, including tribes and chiefdoms (1–19), and city-states (20–34)). 52   K Wheare, Modern Constitutions, 2nd edn (Oxford, Oxford UP, 1966) 137. 50 51

48  Associative Constitutionalism Civil Society The usefulness and relevance of civil society theory is its attempt to grasp the dynamism and motion present in associating and in maintaining associations. This would either counterbalance the stasis induced by reifying tendencies (the weaker response), or attempt to dissolve or subvert reification. By referring to civil society concepts, I should not be taken to support or underwrite its theory, or communitarianism more broadly. Nor is it necessary to revisit in any detail the debate between liberals and communitarians to make immediate use of some of its critical insights into governance and constitution.53 Briefly, ‘civil society’ is that collection of communities, social groupings and organisations existing between the individual qua autonomous, self-determining agent (as in the Kelsen sense), and the Leviathan state, as continuing, autonomous, self-determining agent with an identity, legal and otherwise, separate from its component inhabitants and officials.54 Walzer defines it as ‘the space of uncoerced human association and also the set of relational networks – formed for the sake of family, faith, interest, and ideology that fill this space’.55 Gramsci, leaning to the Marxist side, defined it as ‘the public space between large-scale bureaucratic structures of state and economy on the one hand, and the private sphere of family, friendships, personality, and intimacy on the other’.56 With similar inclination, Cohen emphasises a tripartite nature dividing civil society from political society and economic society.57 The definitions proffered by supporters and critics alike contain slight variations in scope and emphasis, but the overall idea of civil society remains the same, namely as the denominator for all those associations which have moral and political significance in our private and public lives but which do not form part of the institutional structure of the state. Walzer would further include in the sum of associations of civil society the state itself, albeit as a sui generis association. It establishes the space and conditions for associations to act within it, and it establishes certain overarching or supervening commitments above and beyond the specific ones of particular associations.58 This represents a view peculiar to Walzer and his arguments regarding distributive justice and social commitments. It does not appear to have been generally taken up by other proponents of civil society. The view is not without some persuasive force, but any further consideration of the arguments and issues are beyond the scope of the present work. 53   See, eg M Walzer (ed), Toward a Global Civil Society (New York, Berghahn, 1995), esp M Walzer, ‘The Concept of Civil Society’ in ibid 7 and K Nielsen, ‘Reconceptualising Civil Society for Now: Some Somewhat Gramscian Turnings’ in ibid 41; and R Fullinwider, Civil Society, Democracy and Civic Renewal (New York, Rowman & Littlefeld, 1999). 54   Generally, R Putnam, Making Democracy Work (Princeton (NJ), Princeton UP, 1993); J Cohen and A Arato, Civil Society and Political Theory (Cambridge (Mass), MIT, 1992); Rosenblum, Membership and Morals (n 17) and his ‘The Moral Uses of Pluralism’ in Fullinwider, Civil Society (n 53) 255; J Cohen, ‘Interpreting the Notion of Civil Society’ in Walzer, Global Civil Society (n 53) 35, 37; Walzer, ‘Civil Society’ (n 53) 7 ff; Nielsen, ‘Reconceptualising Civil Society’ (n 53) 45–46, 55, 56; L McLain and J Fleming, ‘Some Questions for Civil Society Revivalists’ (2000) 75 Chicago-Kent LR 301; A Greene, ‘Civil Society and Multiple Repositories of Power’ (2000) 75 Chicago-Kent LR 477; and A Etzioni, ‘Law in Civil Society, Good Society, and the Prescriptive State’ (2000) 75 Chicago-Kent LR 355. 55   Walzer, ‘Civil Society’ (n 53) 7. 56   Nielsen, ‘Reconceptualising Civil Society’ (n 53) 44; see also Etzioni, ‘Law in Civil Society’ (n 54). 57   J Cohen, ‘Notion of Civil Society’ (n 54) 37–38. Likewise, C Taylor, ‘Invoking Civil Society’ in C Taylor, Philosophical Arguments (Cambridge (Mass), Harvard UP, 1997) 208, 213 (Locke stream, 213 ff and Montesquieu stream, 214 ff) and 223, and see also his ‘Cross Purposes: the Liberal-Communitarian Debate’ in ibid 181 (arguing for the ‘dialogic’ republic necessarily made up of common and convergent goods). 58   Walzer, ‘Civil Society’ (n 53) 23.



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Civil society, thus conceived, is said to be the ‘seedbed of virtue’.59 Civic virtues are at stake here: those beliefs, values and practices which contribute to a healthy (political) society. This illuminates the provenance of the ‘civil society’ question, for it hearkens back to those established claims in the history of political theory that the well-being of a society, and especially a democratic society, depends in large measure on the strength and activity of the social organisations and the citizenry as such within that society.60 Of course, the question of civic virtue, as a moral form, itself engages the broader perspective of morality proper. Hence, as may be expected, proponents of civil society theories divide into those addressing moral virtues, the civic being subsumed thereunder,61 and those addressing civic virtues as a species distinct from the moral.62 As such a seedbed, the ‘dense networks’ of associational life represented in civil society prepare and instil in individuals those virtues necessary to co-operation and mutual trust.63 Together, co-operation and trustworthiness comprise the norm of reciprocity, central to the existence and cohesion of any group, community and society (even insofar as these may differ in kind). According to Putnam,64 a central feature to being a good citizen, to good citizenship in general, is trust and co-operation. The dense networks of associations teach individuals civic virtues, co-operation and trust. Individuals build up a reputation, either as trustworthy, co-operative, or not, which reputation obviously affects the scope of play in their particular set of social groups. Citizens active in cooperative groups are personally connected, and are ready to participate in collective endeavours. The obvious benefits of reciprocity and good citizenship redound to the benefit of those groups, of third parties not directly involved, and of society at large. Putnam has termed the feature and measure of civic virtue (thus good citizenship, more broadly) as ‘social capital’. Societies demonstrating higher social capital should exhibit higher levels of political involvement, social organisation, order and stability. They should be healthier societies. The purpose of invoking civil society concepts is the primary point of contest among its advocates and between opponents and supporters of the concept. The perceived lack of health in society, its political, social and moral ills, all as variously conceived, prompted such investigations into ‘civil society’.65 It offered a framework for identifying and working to ameliorate the central problem in society, understood as the lack of civic engagement, of a distance or barrier not only between citizen and the public administration, but also between individuals qua citizens themselves. Civil society was collapsing into rank individualism without any consistent moral direction, and was only loosely   McLain and Fleming, ‘Some Questions’ (n 54) 305; Rosenblum, ‘The Moral Uses’ (n 54) 256 ff.   Etzioni, ‘Law in Civil Society’ (n 54) 358–59, 364; McLain and Fleming, ‘Some Questions’ (n 54) 307, 309–10, 313. 61   See, eg J Finnis, ‘Virtue and The Constitution of the United States’ (2001) 69 Fordham LR 1595. 62   See, eg D Roberts, ‘Gender, Race and Equality: the Moral Exclusivity of the New Civil Society’ (2000) 75 Chicago-Kent LR 555, 558 (‘To the contrary, civil society is the sphere of culture that avoids state domination where values can be freely debated, contested, and changed’); C Eisgruber, ‘Civic Virtue and the Limits of Constitutionalism’ (2001) 69 Fordham LR 2131; and J Rawls, Political Liberalism (Princeton (NJ), Princeton UP, 1993) 382–83 (civil society a ‘neutral zone’). 63   For the phrase ‘dense networks’: McLain and Fleming, ‘Some Questions’ (n 54) 314. 64  One of the founding fathers of the civil society movement in the United States: R Putnam, Making Democracy Work: Civic Traditions in Modern Italy (Princeton (NJ), Princeton UP, 1993), his Bowling Alone: the Collapse and Revival of American Community (New York, Simon & Schuster, 2000) and his Democracies in Flux: the Evolution of Social Capital in Contemporary Society (Oxford, Oxford UP, 2002). 65   See, eg Walzer, ‘Civil Society’ (n 53) 7; Rosenblum, ‘Moral Uses’ (n 54) 255 ff; see also McLain and Fleming, ‘Some Questions’ (n 54); and Etzioni, ‘Law in Civil Society’ (n 54). 59 60

50  Associative Constitutionalism connected by economic interests. This movement, it was argued correctly or not, rested on the theoretical foundations of liberalism, unchecked by or blind to the very real presence of community. Reviving civil society, and so giving greater weight to communitarian theories, seemed to offer a solution to arrest the disintegration of society as a whole. ASSOCIATIVE CONSTITUTIONALISM

Merging these insights taken from civil society and reification, let me begin to formulate a revised understanding of a constitution generally, an understanding equally operative and authoritative even when the constitutional structure is under stress, such as during a (threatened) secession crisis. ‘Constitution’ has widespread application to identify the organisation of a state and its components, a public institution and its elements, a cor­ poration or a charitable or friendly society and their members, a club, association, or team, and the like. As a general concept then, ‘constitution’ signifies three critical elements: (1) an organisation or grouping of individuals; (2) membership (actual or potential, and by implication the division between members and non-members); and (3) a conscious appreciation that one is a member of the group.66 In short, a constitution represents a system of individuals organising themselves into a group. This means that the group is not a congeries of individuals, a haphazard collection, but has regular, recurring, ordered relationships among its members. A constitution functions as a source of, and designates the nature and structure of, relationships among persons at multiple levels, between members, between the group and members, between members and nonmembers, between non-members and the group, and between the group and other groups. Setting all of this into the preferred ‘function’ metaphor, a constitution therefore ought to exhibit a structuring or organisational function and an administrative or normative function, by which the constituents are obliged to observe and maintain that organisation. This tracks the suppositions of civil society theory that forms of continuing association which create moral codes exist between the private and public levels of society, all without needing any sort of documented or express ‘constitution’ or legal system to operate successfully.67 In sum, we have a structural component, a rules (or law) component, and an institutional component to the basic idea of a constitution. My analysis of these components will invoke a concept of ‘association’, and in what follows I will present its more important features. But a word of caution. The terms ‘association’ and ‘associative’ already have a well-developed and established usage in that branch of political theory addressing deliberative democracy and civil society.68 66   Tracking thus B Andersen, Imagined Communities: Reflections on the Origin and Spread of Nationalism, 2nd edn (London, Verso, 1991) as well as communitarianism and nationalism ideas that some subjective, selfconscious element is required for association forming. 67   R Ellickson, Order Without Law: How Neighbours Settle Disputes (Cambridge (Mass), Harvard UP, 1991) (‘iterative relationships’ in ‘close-knit groups’ comprising society provide spontaneous generation of effective social rules for behaviour control, without need for a formal legal system); S Macey, ‘Public and Private Ordering and the Production of Legitimate and Illegitimate Rules’ (1997) 82 Cornell LR 1123 (criticising the diminution of the social and organisational role of law, but not the basic premise of existence of effective social norms). Yet see Cohen, ‘Interpreting the Notion’ (n 54) 37 (referring to institutionalisation through laws). 68  Including M Warren, Democracy and Association (Princeton (NJ), Princeton UP, 2001); P Hirst, Associative Democracy (Cambridge, Polity, 1994); D Sciulli, Theory of Societal Constitutionalism (Cambridge, Cambridge UP, 1992); J Bohman and W Rehg (eds), Deliberative Democracy: Essays on Reason and Politics (Cambridge (Mass), MIT Press, 1997); J Elster (ed), Deliberative Democracy (Cambridge, Cambridge UP, 1992); and S Benhabib (ed), Democracy and Difference (Princeton (NJ), Princeton UP, 1996).



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That usage has its roots in the work of, among others, Parsons and de Tocqueville.69 I do not intend, however, to trade (expressly, disingenuously, or otherwise) upon any assumptions or conclusions held by that school. Moreover, I am mindful of the risks of inducing confusion or inviting unnecessary comparisons. Obviously, there will certainly exist a number of possible parallels between my conception of ‘association’ and the other ones. A conjunction of terminology makes this inevitable. But vital and essential differences of substance and perspective remain. Principal among these is what I aim to capture by using ‘association’ and ‘associative’. The deliberative democracy school concentrates upon the descriptive effort of identifying structures of social organisation. Associations are but one of three media of social groups, the others being ‘markets’ and ‘bureaucracy/the state’.70 The concept represents a category of social solidarity. Focussing on that fact of association and solidarity, the association becomes a separate locus of social power and means of expressing (and advocating) social norms.71 As such, associations under this view function in the civic organisation which underlies and contributes to a broader political association as a whole. For this reason, the predominant concern around ‘association’ and ‘associative’ for the deliberative democracy school is the instrumental or procedural.72 There are two facets to this. First, it refers to how effectively an association can take up and exercise its share of social power in relation to other loci of power (markets, the state), and what in fact the necessary share of power ought to be.73 Associative democracy describes a polit­ ical pluralism, a decentred society.74 Secondly, it refers to how effectively citizens can participate in deliberative exercises, in the act of deliberating.75 But how the convergence of interests occurs to form a common set, and the normative foundations to those common commitments representative of social solidarity, are not addressed. By way of contrast, the terms as used herein represent just that event of convergence, of the act of associating itself. Rather than concentrating upon the fact of an association

69  Warren, Democracy and Association (n 68) 39 ff (for a concise and informative survey of the use of ‘association’). 70   ibid 32–39. 71   J Mansbridge, ‘Using Power/Fighting Power: the Polity’ in S Benhabib (ed), Democracy and Difference (Princeton (NJ), Princeton UP, 1996) 46, 56–59 (‘counterpublics’ to check inevitable and necessary coercion in a democracy); Warren, Democracy and Association (n 68) (esp chs 4 and 5); Hirst, Associative Democracy (n 68) (associations as ‘voluntary self-governing associations’). Hence the importance of preserving difference: IM Young, ‘Communication and the Other: Beyond Deliberative Democracy’ in Benhabib, Democracy and Difference (n 68) 120; C Gould, ‘Diversity and Democracy: Representing Differences’ in ibid 170, 173 ff; and C Mouffe, ‘Democracy, Power, and the ‘Political’ ‘ in ibid 245. 72   Deriving primarily from J Habermas, Between Facts and Norms, Contributions to a Discourse Theory of Law and Democracy (W Rehg (trans), Cambridge, Polity Press, 1996), esp chs 3 and 4, and Appendix 1 ‘Popular Sovereignty as Procedure’. 73   See Hirst, Associative Democracy (n 68); Mansbridge, ‘Using Power/Fighting Power’ (n 71) and A Phillips, ‘Dealing with Difference: A Politics of Ideas or a Politics of Presence?’ in Benhabib, Democracy and Difference (n 68) 139. 74   J Habermas, ‘Three Normative Models of Democracy’ in Benhabib, Democracy and Difference (n 68) 21, 27 ff. And see also A Zijderveld, The Institutional Imperative (Amsterdam, Amsterdam UP, 2000) 104 ff (‘decentering’ and ‘debordering’ of society, and the formation of ‘networks’). 75  See, eg S Stokes, ‘Pathologies of Deliberation’ in J Elster (ed), Deliberative Democracy (Cambridge, Cambridge UP, 1992) 123; J Fearon, ‘Deliberation as Discussion’ in ibid 44; J Cohen, ‘Deliberation and Democratic Legitimacy’ in J Bohman and W Rehg (eds), Deliberative Democracy: Essays on Reason and Politics (Cambridge (Mass), MIT Press, 1997) 67; S Benhabib, ‘Toward a Deliberative Model of Democratic Legitimacy’ in Benhabib, Democracy and Difference (n 68) 67, as well as Young, ‘Communication and the Other’ (n 71) 122 ff, and Gould, ‘Diversity and Democracy’ (n 71) 176 ff.

52  Associative Constitutionalism as a form of social organisation, or even as an ‘institution’ (to use Zijderveld’s term),76 I address instead the forming of solidarity through intersubjective relations. It is the relating which counts, not the product of that relating, the type of relationship produced. In other words, perhaps, the prime concern is the mechanism of relating in such a way to co-ordinate actions and interests rather than its reified form of an already crystallised group with common commitments. ‘Associative’ and ‘association’ as used herein are therefore not primarily sociological descriptors, distinct from ‘political’ or ‘markets’ or ‘the state’. They are general references to the interaction among human beings dealing with one another.77 Hence, there is less urgency and demand to adopt one or other view on deliberative democracy, or even that we necessarily and explicitly commit ourselves to the ‘deliberative’ school of democratic participation. I turn now to a more detailed account of this ‘associative’ concept. Associations, Morality and Values We are governed in many different ways, because we associate in different ways and at different levels. An association may be said to arise when two or more individuals act in concert, in virtue of, or in order to achieve, common objectives or commitments. Any association requires at least two individuals as a condition for mutuality of situation and purpose. ‘Mutuality’ here means a co-ordination of actions and commitments, both in advantage of the common purpose or situation, and for the respective benefits of individual members. On this view of association, a promise, offer, or prospective realisation of some benefit is a determinative factor, a necessary and sufficient condition, for bringing about associative relationships. Associating is thus a purposive activity of individuals; that is, individuals associate for certain purposes, whether clear at the time of becoming members or not, whether consciously or voluntarily or not, and whether or not the purpose is in fact imposed by virtue of membership. The complexity of any association will increase in proportion to the number of members or the number of common objectives. Differences in ways and levels of associating manifest themselves in the variety, nature and scope of the common goals and commitments, in how individuals cooperate and act in concert, in what degree of co-ordination and recursivity their actions have (eg how tightly knit a group), and so on. Our associations represent networks of relationships with other individuals. These relationships arise simply because none of us is alone in the world. There are others around us, and we inevitably bump into one another. We interact in any number of ways with other persons, whether we encounter them by chance or by design, and whether we are consistent in our behaviour or not, over time and circumstance.78 It is not necessary here and now to commit to any particular view on (1) whether associative relationships must be enduring or recursive or both; (2) whether associative relationships are a class of relationship unto themselves, whether the substance and meaning to these relations are 76  Zijderveld, Institutional Imperative (n 74) 22, 35–41 (‘institutions’ distinguished from ‘organisation’ and ‘institutes’) and 121 (unlike a ‘network’ which is informal and without a power hierarchy). 77  In this sense, I am likely closer to Parson’s idea of ‘associative relations’: Warren, Democracy and Association (n 68) 54–56, and thus stand also opposed to Hirst, Associative Democracy (n 68) 45 ff. 78  Zijderveld, Institutional Imperative (n 74) 121 ff (account of ‘networks’, as informal, occasional and without any formal power structure).



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exclusively for the formation of an association; and (3) whether there are any particular preconditions or prerequisites for the existence and maintenance of associative relationships. This depends in part on our view of (2). For example, if we have associative relationships only upon conscious and voluntary goods and objectives, and additionally on recursive and enduring bases, then associations of any meaning or import in our lives are basically limited to a narrow circle of close friends and family. Civil society theory, however, would likely suggest ‘yes’ to all three (the engaged, committed citizen). A relationship identifies how we behave towards other persons, and as such is a complex, composite notion. Behaviour is intersubjective action based on a series of judgements or evaluations, express or implicit, conscious or subconscious. Without intending to invoke a debate on psychologism or psychology, what we are evaluating is quite simply our situation, comprising the circumstances, the other person or persons, and so on currently around us. Our evaluations determine if and how we act and respond to the situation. Do we pay attention or ignore? Acknowledge their presence? Run away? Injure them? Say something or not? Lie or tell the truth? Touch them or not; touch ourselves or not? And the list of decisions goes on. All these evaluations are themselves based upon our standing commitments and perceptions, the latter also being influenced by commitments. Here, ‘commitments’ include not only goals and objectives, but also that entire collection of judgements, morals, values, beliefs, habits, and the like, the totality of which give a person an identity. Any particular set or subset of commitments creates a framework by which any individual decides on a particular course of action, and by which we can understand the type of person he is.79 A note of caution: like ‘association’, the word ‘commitment’ has widespread usage across legal and political theory, with equally diverse meanings. Rather than choose one particular version, I have borrowed certain bits and pieces from all the varieties, but have also taken an own view on matters. Nevertheless, certain core elements remain consistent overall: (1) a commitment implicates binding or obliging one’s self to achieving a certain objective; and (2) a commitment operates from the ‘internal’ point of view. Of varying dimensions, purposes and duration, associations establish and express the multitude of commitments we have, the sum of which go to make up the person we are. (Indeed, associations may even alter in varying degrees our present stock of commitments.) There is already a society, there are already commitments we have adopted (non-original), and already a structure and associations in place. All this influences our set of commitments: we do not come naked into the world of commitments. And what and how we take up commitments includes or presupposes all this foregoing structure, and so on. There is an inevitable and inseparable interdependency. There is no way to be at or return to an ‘original position’, even as a theoretical or counter-factual exercise.80 We are thus committed to accept to a degree a communitarian, republican view of being bounded by certain value and idea ‘horizons’ or frameworks. But these do not fix us inextricably and invariably to their terms: my point is that the mechanism by which associational relationships arise, a ‘transformative event’, allows us to revise and alter those frameworks. To get at this idea of a transformative event, the point of connection 79   See, eg J Waldron, ‘Minority Cultures and the Cosmopolitan Alternative’ (1992) 25 Michigan JLR 751, and C Taylor, Sources of the Self (Cambridge, Cambridge UP, 1989). 80   The ‘original position’: J Rawls, Theory of Justice (Cambridge (Mass), Harvard UP, 1971) and as later modified in his Political Liberalism (Princeton (NJ), Princeton UP, 1993).

54  Associative Constitutionalism between ‘the public’ and ‘the private’, we need first to explore the structure and governance of associations. Government and Constitution Associations exhibit varying degrees of organisation, and it is the presence of some order among individual members which transforms that collection of individuals into an association. It is by this organisation, order or structure that we may identify an association, and distinguish it from other collections of individuals. To organise into an association means the finding of a place for each member relative to every other member in the group. This placement is nothing less than the creation of (a framework of) interrelationships between members, and will of course create some sort of status or hierarchy among members. An order is thus created among the various individual members, and this ordering gives structure to the association. We can also speak of an order imposed on or developing out of the grouping, and each of these suggest a different source of power and authority for the group, by virtue of the origin of the ordering. At a practical level, of course, this entails the arrangement of members, officials, rules practices and procedures, and like matters of form and function necessary for the day-to-day operation of the association in the pursuit of its common commitments. Organisation reflects the need to govern an association; that is, to identify and control members. And organisation also thereby implies rule-making and rule-enforcing. The structure of an association – its ordering of members – is a system of more or less fixed, articulated relationships between members qua members, which control their respective, mutual interactions in given situations. ‘Articulated’ here means definable, knowable and expressible, whether or not explicitly and consciously formulated into a rule. Hence, acting in a certain way simply because people in like circumstances have always done so and expect it so, whether or not any deeper rationale can be given, meets the condition of articulation. These relationships may be tied to an individual or to a situation, or both: they may be assigned or taken on by members for life, for the duration of membership, or for some lesser period; or they may arise in all circumstances, or only in certain, limited instances. For example, a judge or policeman may order us to do something in the context of a court hearing or investigation, respectively, but neither could order us to allow him to jump the queue to cash out his shopping more quickly. We deal with the Prime Minister one way in Parliament or in state business, but in a different way when we sit down to dinner with her as wife or mother. Our relations with our hockey or football coach are not the same as those with our maths teacher or anatomy professor. In business matters, we treat our friends differently than our enemies, strangers and competitors. What the ordering does is to identify members qua members, classify them, and in so doing, affix them with certain obligations to, or claims on, other members. So ordering gives a status or position to individual members, a status that is defined and measured by reference to the other members. Status is that collection of rights and duties vis-a-vis other members held by an individual member. Accounting for all these relationships defines and identifies the structure and nature of the association. In the examples above, all those individuals had a certain position, such as judge, official, father, friend, lover, and so on, and the associations also varied, from state to society, sports club, school and family. These elements of organisation are part and parcel of



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the power relationships established within the association. They determine how the membership is to be identified and controlled. It seems self-evident that the degree to which an association is structured is proportional to the number of these articulated interrelationships, and so the extent to which, and detail in which, the corresponding rules and procedures likewise have been articulated. A highly organised association of individuals should exhibit a complex system of values, rules and procedures to support the network and operation of the various relationships among its members.81 And certainly, any association may be more structured in certain aspects than in others, and the control exerted thereby will be accordingly more articulated. For example, the degree of structure and control exhibited by a constitution is not the same as that of a community-service club, or a family business, or even a religious group. It does not follow, however, that the absence of structure (or rules and practices) necessarily points to a lack of control. This would be to misapprehend the connection between structure and control. Assuming that a state is an association as outlined above, a totalitarian regime exhibits certainly a higher level of control over its members than in a democratic state where rules must be explicit. Yet the former may have very few articulated rules, and be accordingly less structured. True, control is greater, but it bears no relation to state structure per se. What is at play is brute power and coercion in the absence of any organising state structure. Hence, the collapse of a dictator’s regime is usually followed by some measure of anarchy and confusion as different groups compete to replace the dictator because there is no overall structure to keep the extant control relationships in place. The nature and scope of control asserted over an association’s members will determine the nature of the structure and its complexity in operation. A simple monistic association of one leader and many followers obviously is less complex and structured, and more direct, than a leadership subgroup and followers, or a dualist structure of legislature and electorate, or a pluralist conception of multiple centres of controlling power and influence.82 We should recall that the nature of the control of an association is related in turn to what its membership is willing to tolerate, with direct reference to the common goals and objectives of the membership. An association forms around a certain community of objectives. One of the first issues is who should be allowed to join, remain or even be identified with the group, so as to share in the benefits and burdens of membership. This requires some sort of decision. Who should decide, and how? That is the first question in any association, and has special importance to those who find themselves classified as members of an association without having participated in its formation, or having given some express, conscious, voluntary sign of accepting membership. Organisation and structure reflect control, and control in turn means the government of the association.

  See Warren, Democracy and Association (n 68) chs 5 and 6 (developing his typology of associations).   One of the basic premises in N MacCormick, Questioning Sovereignty (Oxford, Oxford UP, 1999) (and see the excellent critical assessment by H Lindahl, ‘Sovereignty and the Institutionalization of Normative Order’ (2001) 21 OJLS 165) and the work of the post-national constitutionalists such as of Krisch, Teubner; and D Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Cambridge, Polity, 1996). 81 82

56  Associative Constitutionalism Government: Control and Authority The concept, and the very need, of government comes into being because of our associating with others, in order to synchronise and reconcile our disparate individual desires, goals and actions. To say that we are governed means simply that some authority is exerted over our individual choices, decisions and actions, so as to constrain us to choose, decide or act in certain ways, and restrain us from others. In particular, we are constrained or restrained in our choices, decisions, actions, and so on with reference to the association’s common goals and commitments. Put another way, government represents the mechanism or means to co-ordinate, order and reconcile our personal commitments with those of an association. And of course, this concept of government (albeit for present purposes much simplified) also applies to the ordering of associations of the private or civil society variety among themselves. By definition, a grouping necessitates some organising and co-ordinating of our individual contributions to and demands on any group of which we are members, else the group could not subsist as such. In the short term, co-ordination is necessary to order and distribute a member’s share of the benefits and burdens. In the long term, not only will there be continuing questions as to co-ordination, but the inevitable variations and nuancing of opinion, interest and commitment ordinarily experienced in living will necessitate some further ordering and decisions as to what is and what is not consistent with continued membership. It seems self-explanatory that allowing members to pursue objectives and fulfil commitments significantly divergent from those originally of the association, and so constricting, restricting or extinguishing the latter, will lead to the disintegration of the association, unless of course there is some means of accommodating new and changed values (and so on) in the association’s pool. Although an association may form around certain more or less clearly defined commitments, there is no guarantee that these commitments will remain fixed, unchanging in content or application, for all members, over time and circumstance. It is undeniable that the values, standards of behaviour, and such like current in a society at a given time and place change over time. And an association does not normally form with its own subsequent dissolution in mind, unless the original purposes were time or circumstance specific.83 In view of our approach through associations, then, we can see that the two fundamental axes to government are control and authority.84 Indeed, they are two sides of the same coin. ‘Control’ here refers to the power to set the range or application of commitments and choices as drawn from the association and the membership. ‘Authority’ refers to the power by which control is exercised. And consistent with the functional understanding of constitution, government control and authority are not simply descriptors or features of government institutions. Rather, they represent processes or operations – active relationships, in other words – between government officials and members of the association. It is important to bear this in mind, in the discussion following and more generally, that control and authority are types of relationship or intersubjective behaviour, and not merely properties of things.

83  See, eg C Sunstein, ‘Constitutionalism and Secession’ (1991) U Chicago LR 633, and his Designing Democracy: What Constitutions Do (Oxford, Oxford UP, 2001). 84   M Loughlin, Public Law and Political Theory (Oxford, Oxford UP, 1992) 11 (referring to Bagehot’s two essential functions of government: ‘the dignified’ (authority) and ‘the efficient’ (control)).



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One of the two prime functions of government is the exercise of control over the range of possible choices we have for decisions and action. Control clearly implies that what we see as possible, as valuable or wasteful, desirable or undesirable choices are in some way regulated by (the authority of) government. Restricting choices, decisions or actions in a certain direction colours those possibilities as illegal, immoral, anti-social, risqué, or like ethically charged epithets, or simply erases them from the spectrum of possibilities so that they never come to mind just as a possible action.85 The control function ensures the application of, the compliance with, and the preservation of, an association’s basic commitments across the entire membership of that association. The control function purports to align the set of commitments of individual members with that of the association where the two may differ in content or application, and thereby to advance and develop associational commitments. And this applies both at a personal, private level of ‘self-government’ as well as at the public, social level. It is not necessary for us to have in mind the government of a state, or corporation or other association. We have just to look in the mirror. Self-government, the keeping of our actions and desires in check with the commitments we believe ourselves to have, is no less nor more than this concept of government. Quite simply, the control function means supervising the application of foundational commitments in daily life. And putting the matter this way already hints at the necessary correlate to control, namely authority. Now the control in question should always be with reference to a set of basic or foundational commitments, which are supposed to be those of the association. After all, we associate in the first place because we share common commitments. Government is supposed to organise us qua members for the purpose of associating. The disjunction between associational and individual commitments requires co-ordination for the sake of the continuing existence of the association. The reference point (at least at the outset) for organising must unquestionably be those foundational commitments. Foundational commitments are of general application to all members, and as such form the benchmark or standard by which all members are expected to act and by which their actions will be judged. Distinguished from these are the other purely individual, subjective commitments which any one member or more may hold. Hence, the implication is that the set of individual commitments for each member contains in some form or fashion these foundational commitments. Thus, the lynchpin of our conception of control are those foundational commitments held in common with our fellow members. They form the basis on which we co-ordinate our actions with, and judge, other members of our association. And the lynchpin of our understanding of an association and associative relations is that intuition of a common-holding of commitments. There are three critical and interdependent aspects bound up in that one intuition. First, the presence of common commitments in our personal collection means that we have internalised whatever those commitments represent, and made them a part of our own set of aspirations, beliefs, wants, interests, and so on. This grounds the normativity of commitments to a degree.86 Obviously with a nod to Hart, we are operating from the 85   See, eg W Kymlicka, Liberalism, Community, and Culture (Oxford, Oxford UP, 1989) and his Multicultural Citizenship (Oxford, Oxford UP, 1995); Taylor, Sources of Self (n 79); A Margalit and J Raz, ‘National Self Determination’ (1990) 87 J Phil 439 (group/community origins of the option horizon). 86   Not to accept the Kant-inspired attachment between morality and practical identity (that we obey a norm because it is a part of who we are, a part of our practical identity): C Korsgaard, ‘The Sources of Normativity’ in O O’Neill (ed), The Sources of Normativity (Cambridge, Cambridge UP, 1996) 102 ff and 132 ff. See the apposite critique of G Cohen, ‘Reason, Humanity, and the Moral Law’ in ibid 167, 174–77.

58  Associative Constitutionalism internal point of view.87 But simply to refer to the internal point of view belies the complex and necessary process whereby we interiorise the commitment. That process allows us to cross the threshold between private interests and public concerns and transform the one into the other. We simply cannot take for granted that everyone in society holds more or less the same set of norms and understands and interprets them in the same way. The constitution and the law provide for some consistency, but nothing in this proposition tells us whether that coherence is a passive reflection of what already exists in a society, or the purpose and function of both. An associational perspective on constitutional order focuses on how we produce community, rather than assuming the result and proceeding from there. The nature of that process, therefore, is the second crucial aspect. To interiorise a norm so that it becomes part of our personal holding obviously requires some intellectual activity on our part. The norm and its meaning must have been presented to us somehow. We must also contemplate the existence of other persons submitting the norm for our consideration and arguing that we adopt it. Thus, communication, language and meaning, is also a factor. And this represents more than just some unilateral action of consuming. Adopting a norm will require some modicum of reflection on its terms and range of application. This entails an interpretation of the norm, allowing for variations in its nature and scope from that first presented to us. And it may entail adjusting it more directly to fit it in with our other currently held commitments. Because we interiorise the norm, we therefore give our own meaning or connotation to the norm. This brings us to the third branch, that of commonality. The process of internalisation must provide some assurance that all those participating in it receive and adopt substantially the same norm, or at least ground the expectation that the same norm is adopted. The holding of common commitments allows us to speak of an association in the first place: it is the ‘glue’ of the association. These provide not merely the connection by which we co-ordinate our actions with our fellows, but the reason why we choose and act in certain ways and not others, characteristic of membership in an association. We are indeed known by the company we keep. So it is important that our personal set of commitments coheres with those of our fellow members if we are to characterise ourselves as members of an association. Obviously, we have no direct access to the perceptions of others. But by communicating and interacting with them, we can acquire a fairly reasonable and accurate understanding of what they think and feel. So the guarantee of commonality lies in the fact of intersubjective contact, of engaging and being engaged by the other. Or, in less cryptic terms, it is only by talking, deliberating and dealing with others in a broad sense, that we may attain common grounds. And this means that associative constitutionalism depends upon ideas similar to those elaborated under the deliberative democracy rubric. Dworkin has proposed similar, but not identical, ideas in Law’s Empire with his concepts of ‘integrity’, ‘associative obligations’ and the true community of principle.88 But there are certain signal differences. An important one is that constitutive principles making up a (political) community and its ‘associational obligations’ come into existence 87  Hart, Concept of Law (n 33) 99, and see also Patterson, ‘Explicating the Internal Point of View’ (n 33) (normativity attaching only to the internal); Litowitz, ‘Internal versus External’ (n 31); and Bix, ‘Hermeneutic Turn’ (n 33). 88  Dworkin, Law’s Empire (n 41) 188, 196–202, 203–8, 211–15.



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through deliberative efforts. They do not exist beforehand. A second one is that deliberation represents a general condition available to all those who would participate in that process. It is not grounded on some prior socially defined allegiance, nor is it reflective of some partiality. There remains one final remark about the interrelated character of these three limbs to our ‘living tree’ of associative constitutionalism. We should quickly be seduced by the siren call of reification if we did not attend to the integrated and interdependent nature of internalisation and deliberation. To recall the language of group rights, developing common commitments is a ‘participatory good’.89 It is a condition of the common enjoyment of a common-holding that they are products of a common effort. In other words, only by participating together in the realisation of those interests can we derive any satisfaction and enjoyment out of them. Their nature renders it impossible to divorce the one aspect from the other without destroying the entirety. That accounts for the corrosive effects of discrimination, oppression, and even secessionist movements, on the health of a polity. For those features undermine the essential, participatory nature of the common commitments holding a political association together. And conversely, a vital feature to any associative constitution is the guarantee and preservation of the preconditions for creating commonality. Now to translate all this into effective terms – and thus to succeed in organising the association in an enduring way – control requires ensuring a continuing commonality among members by guaranteeing not only a central repository of norms for reference, but importantly accessibility to and participation in the deliberative forum wherein members can develop common commitments, and fund that central repository. Hence, a government must exercise authority over members. This is the second prime function of government. Such exercise means to give the control decisions it takes for and on behalf of the members, a binding and effective force: members must comply in virtue of being members. It must be able to compel or coerce members. Authority: Legality and Legitimacy Authority serves as a convenient short-form referent to a structure of power relationships, between those who command and those who obey. Authority expresses itself in the language of command, obedience and obligation; in the form of laws and rules; and in the application of force, benefit and privation. And just as the type and nature of our associations vary, so too does their respective control claimed over our desires and actions. The authority may either be taken or given (or perhaps even a fluctuating combination of both). In the former sense, authority is exercised without the consent or favour of the governed. There is something involuntary, in the sense of force, pressure and compulsion in the obedience demanded. In the latter, authority is exercised with the consent or favour of the governed, which suggests voluntary obedience, a certain acceptance or sufferance of the power. To parse that power relationship, briefly, the necessary elements are (1) that the prescriptive and proscriptive control decisions recur in a regular fashion; (2) with an accept­ ance of the recursive function, implying habitual compliance with those decisions; and 89   C Taylor, ‘Cross Purposes: the Liberal-Communitarian Debate’ in C Taylor, Philosophical Arguments (Cambridge (Mass), Harvard UP, 1997) 189–91.

60  Associative Constitutionalism (3) with like acceptance of those making the decisions.90 Thus, someone exercises authority over us when we are accustomed to following, without question or review, her directions whenever given. It follows from this concept of authority that absent regular recurrence or recursivity, even broadly understood, any other exercise of power over us does not constitute authority per se. That a person threatens us with injury in order to steal something of ours is indeed an exercise of power, but represents merely an isolated occurrence of force. A one-off exercise of power does not represent authority. Should these events re-occur in similar fashion on successive occasions, then we might talk of the exercise of authority, as in ‘taxing authority’, or ‘the authority of the mob’, with the latter obviously doubting the nature of our acceptance. Of course, recursivity does allow authority to build up a certain momentum to the continuation of acceptance, in that acceptance tends to feed off itself. Habits do not require much thought, and establish comfortable routines and reliable expectations. But this can only go so far, for past conduct or habit represents merely a reason in the decision to comply.91 And whether a decision is consciously or unconsciously made, and for whatever reason, it is nevertheless a decision, an action by us at the time of acceptance. Moreover, past acceptance and habit have their historical origins in at least one conscious decision to accept: acceptance is an element independent and logically prior (although connected to) recursivity. Hence, the inculcation to acceptance and habitual compliance stands as the central prerequisite and continuing objective of the highest importance to authority. The association approach provides a full and consistent account of acceptance of authority. Authority and the power relationship articulating it have their foundation in a perception of a community of commitment. We are more willing to allow another to prescribe commitments and their applications for us if we understand or believe that person to have our best interests at heart, to decide in such a way as to engage our set of commitments better than we could on our own. Such a decision, then, should or would reflect a more coherent (overall) definition, interpretation and application of the commitments at issue, at both an individual level and at an associational one.92 That result stands as a clear benefit to us as individuals and as members, as well as to the association. Equally, we may obey the wishes of another if we understand that person to have the capacity to ease or erase our pain and suffering by virtue of our continuing compliance. This latter version makes no necessary claim to any additional, or combined, or merely associational, advantage. It relies on the simple presence or absence of pain. That feature renders this latter version as a minimal and simplistic form of authority. That character finds its best expression in terms of ‘raw power’, where the pain-reducing capacity is merely the promise to forego injuring another (physically or otherwise through the set of commitments) on condition of obedience. The underlying claim here, phrased in the crude terms of pain and pleasure, is that an association and the form and exercise of authority in it become far more important, sophisticated and complex where 90   See generally H Lasswell and A Kaplan, Power and Society: A Framework for Political Inquiry (New Haven (Conn), Yale UP, 1976); R de George, The Nature and Limits of Authority (Lawrence, UP Kansas, 1985); G Christie, Law, Norms and Authority (London, Duckworth, 1982); S Lukes (ed), Power (Oxford, Blackwell, 1994); E Bodenheimer, Power, Law, and Society (New York, Crane Russak, 1973); and A Berle, Power (New York, Harcourt, Brace, 1969) (analysis based on five laws of power: power abhors a vacuum; power is personal; invokes ideology or philosophy in justification; acts through institutions; and responsibility is its correlate). 91   And thus Hart’s development of the internal point of view to distinguish social rule from habits: Concept of Law (n 33) 50–55. 92   Echoing Dworkin’s integrity principle: Law’s Empire (n 41) 226 ff.



Associative Constitutionalism 61

the foundational commitments share not only a (primitive but real) desire to avoid pain, but a (constructive, facilitative) desire to develop pleasures. The commitment to the mere absence of pain is a sufficient, but not necessary, condition for the existence of an association. Hence, the focus hereon in will be the latter ‘benefit maximising’ version of authority. In what circumstances are we willing to allow another to prescribe commitments or their applications for us? The basis for authority in any association rests in large measure on the character of its foundational commitments. The personal, emotional links we have with family, friends and lovers raise the presumption (albeit a rebuttable one) that they have the same commitments as we have, or have our best interests at heart, or would not intentionally seek to injure us. Or a like presumption may arise because the other has the same colour, race or religion, or speaks the same language. These super­ ficial similarities we commonly take to suggest a deeper community of commitments grounding a racial, ethnic, linguistic or religious association. Or we may presume likewise that certain members are better placed, by knowledge or experience or other relevant characteristic, to understand and apply associational commitments. Here, the examples are manifold: councils of elders, parents, teachers, mentors, judges, scholars, wise-men, shamans, divine-right monarchs, popes, prophets, imams, caliphs, priests, and so on. We apply to them for decisions and follow their directions. Or we accept that a member will divest himself of individual interest and render a decision giving consideration only to what purports to be the association’s interests, being thus untainted by a desire for personal gain or fulfilment of his individual interests. Common examples include a corporate director, a trustee or a judge. Obviously, combinations of these various grounds are possible. But one thing remains singularly consistent throughout: the presumption of a common commitment. There must exist a set of common commitments shared between the person deciding and the person seeking the decision. This fundamental condition reflects the bipartite aspect of validity (or legality) and legitimacy underpinning the concepts of common commitments and associations. The call for a decision on common commitments means more than simply a call to re-affirm their presence in someone’s personal collection. To accept the responsibility of deciding on commitments must refer to more than the fact of being a fellow citizen. The power relationship inherent in the basis for decisional authority postulated above establishes that the decider will provide a determinative and binding statement of the commitment at issue, as it ought to subsist in anyone’s personal collection. For simplicity, call the decision-maker the ‘judge’ or ‘legislator’, and the person seeking the decision, the ‘litigant’ or ‘subject’. So by way of simple example, litigants seek out a judge to set out what the law is that binds them and controls their mutual relationship. A legislator promulgates the code of social rules binding on all members. Thus, the judge and legislator must be understood not only to have access to the repository of a polity’s common commitments, but to have the power to give an expression to them that controls directly the conduct of other members. There are two underlying ideas at play here. Authority regards more than the source; it also invokes the concept of institutions. The first idea at play concerns the ability of judges and other constitutional authorities to provide determinative readings of the common commitments sustaining a polity. That is, they function as sources, or reference points, for the meaning of associative obligations. That authority translates into their issuing rules and rulings which we accept as binding and definitive of the solution to our

62  Associative Constitutionalism problem with our neighbour. Sometimes we are tempted to, and do, consider them as the actual repositories of social values and norms. Equally, these constitutional organs may see themselves as such a repository. Of course, in both cases common commitments exist in society at large, and not in any one facet or organ of a polity. Secondly, we have two fixed points of reference in these sources for our associative obligations. On the one hand, we have the political organ issuing rules and rulings. On the other hand, we have that reference to a repository of social values and norms. Put differently, we have here the institution of a legal system and the institution of law. Briefly then, the validity of authoritative decisions pertains to the institutions of a legal system and law. Laws and legal decisions are valid because they emanate from institutions recognised and accepted to have (1) the power to interpret determinatively the commitments at issue and (2) uninterrupted access to the repository of common commitments by which a (political) association subsists as such. These conditions warrant presumptively the legitimacy of the statements or articulations of those commitments and their application to the facts and relationships in question. But that warranty depends upon the tightness of fit (or ‘integrity’, to invoke Dworkin) exhibited between the decision and the general understanding of what the common commitments are. The legitimacy of any political or legal act therefore depends upon its perceived coherence and consistency with, as well as representativity of, the common commitment at issue.93 And included in this is the idea of commonality as funded by participation and deliberation. In other words, legitimacy pertains to the institution of the constitution understood as an associative concept. Before exploring the nature of rules and institutions, let me pause briefly to consider the impact of all this on secession. A group in a democratic polity operating normally under the rule of law decides to secede and to follow through with a proclamation of a unilateral declaration of independence. They will no doubt argue for the legitimacy of their political decision, whether or not they also seek to justify it as legally or constitutionally valid.94 On the view taken here of associational constitutions, that claim to legitimacy is suspect. It would have to rely on some foundational norm in the polity allowing groups to split off at will. This would imply that the idea of commonality was not funded by deliberation and participation of all citizens including those not resident in the secessionist area. Either commonality obtained only as between representatives of groups (a confederation or between states), or the concept of reciprocal and mutual participation and enjoyment – and thus the deliberative democratic model more generally – did not apply or was inherently limited in some respect. The first answer cannot account for the evidence of commonality up to that point, nor the breach of commonality even as between group representatives. The more complex and difficult second answer would deny at least the generality of common commitments. It would argue far more for a restricted scope to community. The primary right model of secession relies on the former branch. The nationalist model chooses the latter course.

93   Tracking F Michelman, ‘Constitutional Legitimation for Political Acts’ (2003) 66 MLR 1, 3–4 (arguing that just because an act is constitutional (scil in accordance with judicial pronouncement on its fit with the text of a constitution) this does not make it ‘legitimate’). 94   See, eg J Woehrling, ‘Les aspects juridiques d’une éventuelle sécession du Québec’ (1995) 74 CBR 293, and Turp, ‘Droit de faire sécession’ (n 49) and ‘Québec’s Democratic Right to Self-Determination’ (n 49). The validity would have to originate in some institutional feature of the polity, such as express law.



Rules and Associations 63

RULES AND ASSOCIATIONS

Now to draw some of the diverse strings of this line of argument together. I have managed to discuss government, control and authority so far without overtly identifying a conception of rules. Indeed, much of the preceding explication has relied on an implicit or generally unexpressed understanding of the nature of rules. Apart from a briefly suggested definition when introducing the concept of an association, I have assumed a conventional understanding of rules, despite the decidedly unconventional approach of associational theory. This was necessary (albeit possibly frustrating) in order to ensure a proper grounding of the concepts of government, control and authority in the foundational concept of association. Absent that underlay, we risked falling victim to reification plain and simple and the classic or traditional discussion of rules, law and morality (thus likely rendering the association concept a misadventure). It is now time to develop the associational view of rules, and gradually work our way towards an application of this view to the most general level of rules, that of a state constitution. Of course I am by no means proposing a general theory of rules, a work whose magnitude is well beyond my more modest intentions here. Rather, in what follows, I want trace out some particularly relevant features of rules as they pertain to associative constitutionalism, and then develop those ideas in light of the demands of constitutional law. The Hart of a Constitution It should now be clear from the ideas of control and authority, and government and association more generally, that an association governs itself by and through rules. That is, the instrumentality of governance is rules, being divisible into rule-making and ruleenforcing. The government of an association is a projection of authority by way of rules: making them and enforcing them. The two characteristics of government, authority and control, are evident in rules, and applied in and through them. The authority element of government speaks to the execution of rules. In turn, this authority is based upon the control aspect, going to the content of the rules. And in all this we must bear in mind that reference to ‘government’ intends the process of governing, the state of being governed, and not some thing or reified process. Starting from the practical perspective of rule-making and rule-enforcing, I take my cue from Hart’s Concept of Law.95 The critical insight of Hart was that not all our ‘laws’ are of the same rank: some are rules about rules. Hart characterised those obligations and claims making up ‘law’ in its ordinary and everyday sense as ‘primary rules’. Laws, rules of the first order, were thus supplemented by a further set of second order rules. These secondary rules were threefold: rules of recognition, rules of change and rules of adjudication. The first identified what should constitute law; the second, what adaptation and change was valid; and the third, whose pronouncements on what the law was and how it applied were valid. ‘Valid’ in Hart’s usage refers to an implied premise in the statement of a primary rule as to what the relevant rule of recognition is, that it applies, and that the primary rule is duly subject thereto (internal character), and together primary and  Hart, Concept of Law (n 33) 89–96.

95

64  Associative Constitutionalism secondary rules comprised a municipal legal system. Moreover, not all rules are truly ‘law’: the differentiation between ‘obliged’ and ‘obligated’ is a matter of the internal point of view.96 The internal point of view is dependent upon the rules of recognition.97 Ultimately, for Hart, the rules of recognition reduced to matters of fact in any given society, beyond which no further logical or metaphysical point lay. This was to be contrasted with, say, Kelsen, who pushed the Grundnorm to the concepts of autonomy and personal self-determination.98 So to recap, there are at least three principal aspects to any rule system. First, there are the rules themselves. Secondly, there are the rules (and officials) deciding how the rules work. Thirdly, there are the rules (and officials) deciding what those rules are. Now, as constitutional lawyers and as citizens, we encounter the constitution as a body of rules, more likely than not without the theoretical conceit of differentiating between ‘primary’ and ‘secondary’ categories. The standard reference materials are first, any written constitutional texts and other legislative instruments; secondly, precedent in the form of past judicial decisions and precedent in the form of conventional, customary practices; and thirdly, public opinion in the form of academic commentary, an own sense of things, and the ideas of everyone else. By these rules, we accept that certain institutions and their officials have carriage of particular aspects of the public administration, up to a certain degree and according to certain conventions and standards. We recognise that under these rules, certain bodies may determine what the law is; under others, when and how the law applies. This is to say that in virtue of a constitution, we accept (or suffer) the existence of a legislature, an executive and judiciary, of their respective scope of authority, of their actions and limits thereon. Practically speaking, we talk and debate issues about the separation of powers, of the division of competences in a federal state, the constitutional source and character of social powers exercised over us, of the ambit and limits of that power and our rights and freedoms. Judging this by Hart’s terms, then, a constitution appears as just such an undifferentiated admixture of primary and secondary rules. On the one hand, there exist primary rules, such as the establishment of organs of state, the division of powers, and rights and freedoms. On the other hand, the constitution also seems to represent a second layer of rules, the rules about rules. The justification ‘because the constitution says so’ or ‘this is unconstitutional’ evidences a rule of recognition. These cover what should count as law and who might issue authoritative and enforceable commands, obligations and rights. When we seek to legitimate or validate an exercise of power over society, our invocation of the constitution counts as a rule about what acts are permissible or not. The entire discussion about the separation of powers and judicial review for constitutionality, so well ventilated in the United States and growing more so in other jurisdictions, stands as a discussion about the secondary rules of adjudication. And of greater relevance hereto, the question of secession and its justiciability quite clearly call upon our understanding of the rules of amendment, the rules of adjudication and the rules of recognition. And 96   Where ‘obliged’ connotes external coercion, and ‘obligated’ connotes consent and accord: Hart, Concept of Law (n 33) 6 ff. 97  Hart, Concept of Law (n 33) 99–102, 105. 98   See B van Roermond, ‘Authority and Authorisation’ (2000) 19 Law and Phil 201; S Paulson, ‘The Weak Reading of Authority in Hans Kelsen’s Pure Theory of Law’ (2000) 19 Law and Phil 131; and B Celano, ‘Kelsen’s Concept of the Authority of the Law’ (2000) 19 Law and Phil 173 (Grundnorm untenable as based in se, as social power, or as justice). See also C Heidemann, ‘The Creation of Normative Facts’ (2000) 19 Law and Phil 263 (norms of competence to allow for norm creation).



Rules and Associations 65

our consternation should only increase as we begin to probe more deeply into these questions, because we then face yet another layer of difficulty in deciding what should count as reasons to persuade and justify, and whether these do constitute legal rules as well for general application. For example, in the case of secession, does the invocation of self-determination and democracy represent an argument of constitutional law, or one of political theory? How do these principles fit into the constitutional scheme, and what of their nature substantiates their authority to permit or prohibit a secession? Or perhaps more simply, what nature do the argument and principles invoked in any constitutional rights and freedoms case actually have? So treating a constitution as a set of primary rules and secondary rules appears insufficient to account for its complexity. Indeed, the more general characterisation of a constitution as a set of rules does not help us much. And it is therefore little wonder that attempts to capture the constitutional essence of secession founder so quickly on a mere analysis of texts and rules, and quickly relegate the problems to political theory and philosophy.99 We cannot identify the heart of a constitution through mere reference to rules and principles. We need a better understanding of the set of rules representing ‘the constitution’. Such an understanding is offered by the principles of associative obligations. Nature of Rules Members are governed by sets of rules controlling their behaviour qua members. Rules will come into being in an association for the purpose of directing and guiding members in their relationships with others, on the basis of individual and common commitments. Quite simply, rules stipulate the nature and the outcome of interaction between members, or more broadly, the conduct of members where associational commitments are at issue. By definition then, a rule intends to give effect to or preserve an associational commitment. As argued above, such a commitment comes to be an associational one by virtue of mutuality and recursivity arising in a relationship between two or more persons. A rule acts as a point of reference, as a short-form device, whereby its being cited as a reason for (expected) conduct invokes mutuality, recursivity, and the underlying norms (substantive commitments). Hence, rules give an explicit or articulated form or shape to the constellation of relationships among members qua members. Or better still, they articulate what constitutes the enduring, recursive element to a relationship between members which is characteristic of that given association. Rules stand as an articulation or instantiation of one or more commitments. By this I mean that a rule embodies or invokes a norm, interprets the norm, and applies it as a more particular instance of the general norm. Without invoking its rich and contested inheritance, ‘norm’ here refers to a recognised benchmark, the normal. The commitments at issue are of general application to an association’s members, and set the 99   See, eg P Monahan, ‘The Law and Politics of Québec Secession’, (1995) 33 Osgoode Hall LJ 1; J Woehrling, ‘Eventuelle sécession’ (n 94); D Matas, ‘Can Québec Separate?’ (1975) 21 McGill LJ 387; R Mayer, ‘Legal Aspects of Secession’ (1968) 3 Manitoba LJ 61; and G Craven, ‘Of Federalism, Secession, Canada and Québec’ (1991) 14 Dalhousie LJ 231. But see R Howse and A Malkin, ‘Canadians are a Sovereign People: How the Supreme Court Should Decide the Reference on Québec Secession’ (1997) 76 CBR 186; and J Webber, ‘The Legality of a Unilateral Declaration of Independence under Canadian Law’ (1997) 42 McGill LJ 281 also recognise the constitutional import to those broader sets of reasons.

66  Associative Constitutionalism standard by which actions are judged. And ‘articulation’ is not merely a descriptive expression of any particular commitment. It is (1) declarative, as stating definitively the commitment at issue; (2) normative, in the usual sense of ‘norm’, as ‘norm setting’; and (3) purposive, as intentionally created and goal-aimed (to declare and resolve). Articulating a commitment in and through does not exhaust the norm thereby. At least, we should not presume that it exhausts all possible applications of the norm to all sets of facts. There may always arise facts and circumstances testing the limits of a rules application. This is indeed the nature of interpretation, especially legal interpretation, whereby we must determine if and how a given rule should govern a relationship and the circumstances thereof.100 Hence, a norm represents a template wherein the rule fits, but the norm template is such as to allow a generous and variable fit. Likewise, the rule is a template for the facts of the case, wherein those facts fit. That fit, perhaps less generous and accommodating than afforded by the norm to the rule, organises the set of facts and relationships into a particular structure with certain consequences and ramifications. In other words, we can think of norms, rules and facts as a recipe. The basic ingredients are the facts, which are the conduct, relationships, commitments, and so on which we experience on a day-to-day basis: what we do and what is done to us. The rule is the set of technical directions, telling us to mix certain facts, in certain amounts, in certain ways. The product of that mixing should be the norm, that foundational commitment. That is what we are aiming at in a rule: to uphold and promote those norms. Now it may be possible to mix different facts, different amounts, and in different ways to get at the same result. The set of possible facts is unlimited. The rule mediates between the evervariable facts and the norm, organising those facts for the norm. The mediation of rules between facts and norms implies the existence of a distance or division between the two. Contrary to at least part of the tradition, I take the view here that this division is not the ‘is–ought’ problem. If at all an issue, that point would arise at the level of applying facts to rules. Rather, the division I contemplate here between facts and norms lies between the perception of our own current set of commitments and the perception of the association’s. The question is one of overlap or intersection: how closely do our commitments harmonise with, observe, track (or whatever other similar language comes to mind) the relevant commitments of the association of which we are members?101 Community and correlation of commitments were the sine qua non for any association, absent which no association could truly be said to exist. Rules test whether or not the overlap or intersection is sufficient and satisfactory, and compel an accommodation or adjustment in cases where this is not the case: hence the ‘ought’ aspect to any rule. For example, it is arguable that such a distance is inevitable and necessary, requiring a necessary mediation of rules between facts and norms. Norms are at least one remove from everyday factual occurrences. Norms are general, non-specific, and implicate or superimpose (depending on how close we wish to invoke natural law) a certain purposiveness and structure to a complex set of facts. Such an ordering is not presumptively explicit in any given set of facts and therefore requires articulation through the medium of rules. 100   See generally A Marmor, Interpretation and Legal Theory (Oxford, Oxford UP, 1992) and A Marmor (ed), Law and Interpretation (Oxford, Oxford UP, 1995); Dworkin, Law’s Empire (n 41) 255 (the idea of integrity and the interpretation of law best fitting and explicating the political structure, legal doctrine and associative obligations of the community). 101   Echoed in Dworkin, Law’s Empire (n 41) 190, 211, 255.



Rules and Associations 67

It would not be entirely correct to say that rules achieve this ordering by establishing, setting or directing patterns of behaviour. This suggests that rules have a content independent of the association wherein they arise. In order to settle behaviour among members (for the benefit of each and every member, present and future, it is implied), rules must relate to certain commonly accepted patterns of behaviour. What rules prescribe and proscribe, and by what standards they do so (often the same, but not necessarily so), must be already known by or knowable to members. First, the rule must address action or interests within the range of a member’s commitments as they intersect with or overlap with associational ones. Secondly and by consequence, the rule must align the prescribed or proscribed action with an associational one, whether implicitly or explicitly, directly or indirectly. Association theory mandates that the content of rules of the association should arise in and from the manifold foundational associational commitments. As a corollary, a rule may not regulate something which is unthinkable or impossible for a member. Put aside the easy argument in support that if such a rule did exist, it would logically follow that someone did think up the regulated situation. If particular conduct or interests fall outside the range of associational commitments, they have no bearing on the association, and have no relevance for any of the relationships characteristic of and for the association. They may well form part of an individual’s unique set of commitments, without appearing in any other’s or any other association’s. Accordingly, it follows that members would not see themselves as bound or required to observe any mutuality, nor consider that their interaction was a (associational) relationship. A rule would fail to have any impact or force on members as part of their set of individual and associational commitments. A fortiori, rules governing the impossible are likewise irrele­ vant and redundant. I recognise, however, that something may become an associational concern simply by virtue of its being regulated, thereby opening debate among members whether indeed the matter is or should be an associational commitment. It is assumed, however, that there exists an arguable basis acceptable to some members for bringing the concern into the set of associational commitments. This basis implies that there already exist related or connected commitments (by analogy, objective, benefit, and so on) in the set of associational commitments. The concern is not entirely foreign or alien to what exists in the association. What all this means is that every rule is dependent upon at least one of the set of associational commitments wherein it arises and in which it has application. Between associations with broad and general commitments and those with limited, narrow or particular ones, we should expect to see differing rules and types of rules. For example, the rules of a family differ from those of a corporation or church group insofar as their commitments differ. Similarly, these examples of associations differ in their regulation from that of the state. Indeed, as the association with arguably the most broadly and widely encompassing set of commitments, the modern state has rules which cover not only an equally broad range, from very general to the very particular, but which envelop and regulate to an extent all other associations, and thus associational commitments, within its compass.102 Importantly, the state, the constitutional order, is that association whose rules supervene all other sets of rules (and hence, commitments), and either 102   Thus giving credence to the claim by Walzer, ‘Civil Society’ (n 53) that the state is indeed a (special) grouping in civil society.

68  Associative Constitutionalism allows or rejects rules and commitments of other associations. This means that the rules of the constitution transcend those of other associations, and it should follow that they trump those rules as well where they conflict. Having thus explored briefly the content of rules, let me mention in passing two other necessary criteria for rules: their generality in application and their consistent application.103 The first, that rules are of general application, requires the rule to govern or operate in like circumstances, whenever, wherever and to whomever occurring. A rule does not regulate a unique event: the rule must apply in the future to other like situations and to other members (predictability criterion). This implies that the rule be formulated in such a way as to cover more than the instant situation, and not thereby be limited in time and circumstance to a unique event (generality criterion simpliciter). Whether or not that event should ever again come into being is irrelevant to the rule. Moreover, the formulation of the rule may refer to a highly detailed and particularised set of circumstances, but the generality condition nevertheless applies to compel the application of that rule to those circumstances whenever arising. When we decide to act one way in preference to another, our action is a unique decision. It is not directly controlled by a rule of conduct unless the reasons for acting include a rule to the effect that whenever such a situation arises, this or that commitment requires such an action. Notice here that the decision process is certainly governed by a rule, namely that individual commitments guide actions, and that a certain commitment compels certain actions above others. The rule acting as a mediator, as a means to fulfilling or getting at a commitment, it will apply whenever the circumstances and the commitment obtain. Nor should it be limited to those particular members who happen to have engaged in the given regulated relationship (common coverage criterion). The rule should apply to all members of the association who happen to come into contact in similar circumstances. In summary, generality as a general criterion speaks to the commonality and coverage of the associational commitment across the membership of the association. This idea of rules articulating common commitments also feeds into explaining why we obey rules. The authority of rules derives from two sources. First, as seen above, the government projects authority upon us, and insofar as rules are an instrumentality of government, it follows that their authority is likewise a projection upon us. And just as such a projection established a division between command and obedience, between issuing and obeying orders, between governor and governed, so too does such a command– obedience division exist for rules relying on projected authority. The internalisation of that authority, establishing the ‘internal point of view’, grounded or motivated obedience to the orders and rules issued under that authority. Moreover, because the content of rules is here argued to be an articulated version of one or more (associational) commitments held in common, and since we all have our own set of individual commitments, we may also point to our own commitments as a compelling reason to obey rules. The compulsion to obey arises naturally from our desire to fulfil our commitments, and the rule tracks naturally the course of action we would, more or less, have taken on our own. Insofar as the rule articulates one of our own individual commitments, we (ought to) follow the rule so as to fulfil that commitment. This is the second source of authority. But the compulsion is neither inevitable, irresistible, nor always consistent. 103   See L Fuller, The Morality of the Law, rev edn (New Haven (Conn), Yale UP, 1969) 33–94 (eight criteria of law/legality: ‘external morality’).



Rules and Associations 69

Articulating the Constitution Rules attempt to give expression to one or more commitments within a factual context, indicating how the commitment should operate or be achieved. This is caught by the term ‘articulation’, in part to avoid any confusion arising from repeated use of ‘inter­ pretation’ or ‘application’, especially in cases of rules operating on facts. Articulation is not merely a descriptive expression of any particular commitment. Simply to set out what such a commitment is in any detail, or even to do so by relaying a number of hypothetical or real examples where the commitment is understood to have operated, is not sufficient. Necessary to articulation in the form of a rule, more than likely; but certainly not sufficient. Describing a commitment does not commit us to its content in an active way, which a rule must do. Description does not mean prescription. The issue here, however, does not really concern authoritative, prescriptive force. Rather, the point goes to the working of the commitment, its operative or functional impetus in any given relationship. A description by examples suggests that the commitment has worked out the solutions, but the examples tell us nothing of the how and why. Articulation – rule formation – must furnish the bridge between the circumstances as we find them, on a day-to-day basis, and the goals, desires, ideas, and so on, representing our individual sets of commitments. Articulation must also bridge the division between each member’s individual understanding of the given commitment so as to establish a shared understanding, a common commitment. We have to bear in mind that a rule is a means, an instrument to arrange conduct among persons. That is, a rule orders the existence and functioning of the relationship between two or more individuals, based on their common or conflicting commitments. It has been one of the principal objectives in the analytic jurisprudence presented here, to inject a functional understanding into law, constitutional law in particular. Consistent with the touchstone of a Lukács-inspired view of reification, the view advocated herein contends that: the distinctive feature of legal phenomenon will not be its being enacted as a law, but its practical application . . . Ontology is not satisfied with the simplistic declaration that the legal norm is socially determined through the process of law-making and the same legal norm turns out to be the only determining factor in the process of law-application, but it enquires about the real components, factors and regularities of the process that take place in the course of law application in their entire complexity, together with their inner contradictions.104

This objective, and that understanding, mandate special attention to the treatment of rules so as not to lose or diminish the character of relationship, or interaction. When speaking of the articulation of commitments as rules, then, we must be careful not to categorise the articulation or the rule (or even the commitment) exclusively as ‘things’. If anything, they are better seen as types of process, types of functions. To say that a rule serves an ordering function in a relationship, means to say that when a rule applies to a particular situation, it provides a context or system for understanding and appreciating the relationship of persons in that context. The rule tells the participants how to fit their perceptions and intentions together, so as to choose an action or course of action in view of the other. A rule provides the instruction or formula  Varga, Place of Law (n 28) 95.

104

70  Associative Constitutionalism establishing how and to what extent we must take into account the other person in pursuing successfully the particular commitments grounding the rule. Articulation represents the means whereby we translate commitments (as ends) into such a formula (as means to preserve or advance that commitment). To reiterate, at the heart of rules, constitutional rules no less, lie the foundational associative commitments of a polity. To invoke rules in a political discussion or a legal argument entails necessarily invoking those commitments by reference. Articulation is thus not merely description; it is also a purposive expression, and a normative one. As to the purposive factor, articulation is both teleological and intentional. The teleological aspect means that articulation is purpose-oriented. Its purpose is to instantiate a particular commitment, to give it a functional role in certain circumstances. The intentional aspect means that articulation occurs not by chance or happenstance, but is specifically undertaken to regulate conduct in an association. As to the normative factor, we mean here normativity, in the standard, usual sense of the word ‘norm’. This refers to the fundamental characteristics discussed above, of rule content, rule generality, rule consistency and rule authority. This view of rules as functioning to order relationships based on a common understanding of certain commitments would appear to require a seemingly complex assessment of the types of commitments actually or potentially at issue, the nature of the purported relationship, the applicable rules, for each party to the encounter. That assessment presumes, moreover, that the various assessments of each party correspond to a large degree. It would seem self-evident that some common measure must exist between members in a relationship, whereby each has some assurance that the one will account for the other in more or less reciprocal measure. Articulation must be a joint exercise among members in the interpreting of the governing commitment and its instantiation in the operative rule. This joint exercise has several elements. First, it is naturally premised on the individuality of consciousness of each member. Secondly, it assumes a common process of interpretation, of the rules, relationship and commitments. Thirdly and by consequence, there must be a language common to members. I take ‘language’ here not in the facial sense of ‘Fortran’, ‘English’ or ‘Ugaritic’, but in the deeper sense of expressive power, concepts, ideas, of designs and desires. This deeper sense does subsume the facial sense of language. It cannot be disputed that absent a common facial language, communication would be, if not impossible, at least extraordinarily difficult and laborious – until, that is, a common symbolisation could be worked out. But from this, we should not assume that simply because two persons speak the same facial language, their interpretative process, interpretations, commitments and articulations will be equivalent or commensurable. Likewise, nor does speaking facially different languages necessarily establish incommensurability and dissimilarity on those points. To tie all of this together then, the set of rules which we formally and materially call ‘the constitution’ represents the articulation of the foundational associative commitments gluing us together as a polity. As an organisation or ordering, a constitution is principally a set of rules. But constitutional rules do not begin and end with the formal sources of law, such as text and judgment, but extend into – and out of – the sphere of social norms which fund our sense of association and political community. We cannot separate a conception of ‘the constitution’ from that collection of commonly-held commitments without returning to the unsatisfactory situation under primary and secondary rules. And by grounding our sense of constitution upon this broader span of associative



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commitments, the nature of associative constitutionalism also requires us to treat the formation of rules, the participatory good of deliberation and internalisation, all as a part of the equation. So when we must decide matters of constitutional import, such as secession, it is not a matter of ‘political questions’ or ‘pre-commitment’ or such like matter which fall outside the ambit of constitutional law and order, or are ‘external’ thereto. Quite to the contrary, we are immediately engaged with the terms of participation, the content of participation and deliberation, and the product of deliberation, all of which articulate the ‘constitution’. Secession is a matter of constitutional law. One might enquire whether almost any regulatory principle might suffice to be ‘constitutional’ under the definition advanced above. That is, the definition fails to identify what a ‘constitution’ is, as opposed to anything else. The law itself might fairly be said to be a source of relationships, governing and structuring them. Does it follow then that the law is ‘constitutional’? In a general sense, it does. The law certainly has some derivative character as constitutional, being the product of officials and institutions having constitutional character, and has some direct character, by ordering our actions. But it is indisputable that the laws governing corporations and shareholders, charitable societies and members, and so on, are laws in the ordinary everyday sense, and not equally designated ‘constitutional law’. This is reserved for the structure of the state and the public administration. There would seem to be something more than simply some form of agglomeration principle required to define a constitution. The objection usefully points to its own weakness. Although it focuses attention upon two fundamental points – what is regulated and with what authority – it leaves the analysis at an intermediate, unfinished level. Critical to understanding a constitution as an organising system for a group is understanding the distinction between those rules by which the relationships function and are enforced, and those which enforce the first set of rules and allow them to function. In other words, the law is the set of obligations a group imposes upon itself, and the constitution is the set of rules and principles by which those obligations are defined and imposed. This second set of rules and principles exists to order the system to control how the system works (including changes), and to monitor for system breakdown (and repair it, if possible). The primary rules obtain their authority in virtue of the secondary rules. The authority of the second set also explains why a political constitution enjoys supremacy over particular other organised, similar groups, such as national, linguistic, religious and minority groups. Clearly, therefore, the emphasis on understanding what a constitution is, as defended here, must fall upon the instrumentality of organising, and not on the organisation, or structure itself. ASSOCIATIONS, INSTITUTIONS AND LAW

We have now examined the nature of associations and have directed some attention to their structures which exhibit organisation to various degrees. Seeing how the structuring of the relationships and commitments of the various members led to patterns of membership action and governance, I outlined what concept of rules was thus implied by organisation. The next step in the explication of the concept of ‘associative constitutionalism’ pushes further into the organising of associations, whereby I integrate the rule character of associations with the concept of law and a legal system, and in particular constitutional law and the state. My immediate objective is to sketch out a theory of

72  Associative Constitutionalism institutions – or better, institutionalisation – and situate constitutional law (and law more generally) in that institutional concept. In effect, it is to fashion the associational concepts into constitutional terms by accounting for the formation of associational commitments through deliberation and participation. In the result, associative constitutionalism and its institutional premise should be able to explicate the regulation of instances of constitutional stress such as secession. A Theory of Institutions Briefly, an institution is an association of individuals (‘officials’) charged with certain tasks concerning the identification, articulation and application of commitments common to a particular social grouping. As an association, an institution consists of an ordered set of relationships among the various members of that institution, subject to all the criteria outlined previously. Thus, an institution will exhibit its own particular set of commitments peculiar to it over and above those held by the officials as members of society at large.105 These institutional commitments will cover relationships as between officials of the institution, and as between officials and members of the public. These include, for example, municipal bylaws, rules and practices internal to a business cor­poration, and religious observances. Those institutional commitments stand as a particular subset to the overall collection of norms common to the polity. By way of contrast, we should not confuse these more formal institutions with the ‘elites’ referred to in some works on secession and political theory.106 While elites likely constitute institutional associations as conceived here, the term carries the specific connotation of a social grouping distinguishable from other social groupings in civil society. Elites exercise political power by virtue of their common-holding and for the purpose of furthering their common-holding whether or not others in the broader community agree (for example, businessmen, polit­ icians, clergy, professional classes, artists, Québec Intellectuals for an Independent Québec). I propose in the discussion which follows, however, to concentrate on constitutionally recognised organs, such as citizens and constituents, the legal system, and the constitutional order. I postulate three distinguishable sets of relationships and associated common commitments which originate out of institutionalisation: (1) the internal, as between officials, issuing from the institutionalising process; (2) the mediate, as between officials and members of the public engaging the officials and also issuing from the institutionalising process; and (3) the external, as between members of society wherein the institution arises, regardless of their status as officials or not. Institutional commitments thus span internal and mediate relationships. Institutional commitments are distinguishable from those generally held by the public on two principal grounds. First, because the former relate to a function the official performs in virtue of his status as such, we tend to concentrate on the nature of the relationship rather than the individual performing the task. The interaction between officials, or 105   See, eg MacCormick, ‘Institutional Normative Order’ (n 25) 1057 ff (emphasising structural components, rather than performative-functional ones), 1063. 106  See, eg A Etzioni, Political Unification Revisited (New York, Lexington Books, 2001); J Breuilly, Nationalism and the State 2nd edn (Manchester, Manchester UP, 1993) 25, 47; A Smith, ‘Nationalism, Ethnic Separatism and the Intelligensia’ in C Williams (ed), National Separatism (Cardiff, University of Wales, 1982) 17, and C Taylor, ‘Nationalism and Modernity’ in R McKim and J McMahan (eds), The Morality of Nationalism (Oxford, Oxford UP, 1997) 31, 43.



Associations, Institutions and Law 73

between officials and members of the public, supposedly transcends the particular individuals who inhabit the particular roles at any given time and place. Unlike fundamental social bonds with their infinite variety, institutional relationships are perceived as templates into which people must fit, rather than creating fresh associational attachments out of whole cloth. What the officials are doing, their ‘administrative’ acts, represents rules and practices to which we must conform if we wish to achieve our objectives.107 Hence, the rules of court prescribe the initiation and carriage of a claim before the courts. The constitution will allot and limit jurisdiction to particular organs and specify the amending procedure. Parliaments have their own rules of practice. All this imparts stability, sturdiness and rigidity to an institutional relationship. It translates into a sense of immutability, a reification of the relationship and underlying commitments whereby that institution and office assume an existence, relevance and value independent of their holders. Thus, we tend to lose thereby the dynamism and variability naturally part of ordinary human relationships and desires. Underlying this is the idea that immutability removes the substance of the matter from the vicissitudes of human understanding and behaviour, that it has tapped into a particular truth, a bit of reality, which ought to apply in all circumstances, at all times, to all humans. This has, for example, prompted the legal realism camp and the critical legal studies camp to shift attention to the particular individual occupying the official role, thereby calling into question the immutability of the template.108 From a legal perspective, we speak of the rule of law, judicial impartiality, the institutions of human rights. When aspects of these are thought absent (intentionally or not), they raise questions, such as in administrative law regarding a right to be heard, a right of appeal, or the rights concerning administrative sanctions; or in constitutional law, regarding the proper role of the courts, or a judiciary independent of political institutions. The second basis for making a distinction resides in the precise function assigned to the institutions, namely the identifying, articulating and applying of norms. At first glance, it would seem peculiar that persons not primarily engaged in the interaction at hand can tell those who are involved how to behave. An institution would appear to supplant, or replace, an authentic and original formulation of associational commitments among individuals, and thus define for those persons in some not insignificant measure what projects, values, desires, wishes, and so on they possess. This may seem at odds with the earlier proposition that these represent the basic functions of associational relationships between individuals in society. But the transfer of these fundamental aspects to co-operation as a society remains consistent with the idea of a community of commitments. The attribution of these functions to some centralised body creates a source or repository of (generally speaking) uniform and consistent meaning, values, and such like, across the entire membership of the social group. That fund of common values serves as an authoritative reference point to guide and govern interaction among all members. An institution would thus claim an independence from individual particularities or peculiarities in its evaluation of the components to the relevant associative relationships. But the authority attaching to an institution’s pronouncements depends, 107   MacCormick, ‘Law as Institutional Fact’ (n 25) 53 ff (‘institutive rules’: when a particular legal status or relationship exists, like a contract, or trust; ‘consequential rules’: the effects of the relationship; ‘terminative rules’: how to end the relationship). 108   See generally W de Been, Legal Realism Regained: Saving Realism from Critical Acclaim (Stanford (Calif), Stanford UP, 2008).

74  Associative Constitutionalism however, on the nature of the attribution or delegation to it. This itself is an aspect of the common-holding among the various members of the group and derived therefrom. At the core of that attribution is the task of deriving norms representative of what the members of that society actually hold as part of their set of respective individual and common commitments. That same membership is equally subject to institutional decrees as they are controlling of it by virtue of their collective delegation of authority to the institution. Hence, we come to the peculiar situation of an institution which, on the one hand, would function as an independent source of universalised meaning and must, on the other hand, constantly refer to and track the meaning as developed in society. Deriving institutional meaning from social meaning establishes the commonality between the institution (through its officials) and the parties subjected to it. To explicate the derivative character of an institution’s stature and functions, let me construct the argument in three steps. First, an institution serves as a repository and dispensary of articulations of social meaning common to all members. The common community of value engendered in and through associative relationships allows members to consult and appeal to other members for reliable expressions of those common commitments. In a (legal, public) dispute, each side will attempt to justify their respective behaviour by reference to the controlling norms purportedly common to both sides. Or each will announce beforehand how they propose to interpret or apply the relevant controlling norms, and thus what elements they consider as lying outside the range of co-operation, and as within the range of autonomous, individual action. Both situations inevitably will entail some form of consultation with a third party (individual or group) whom both parties acknowledge to provide the definitive articulation of the applicable common norms. The parties seek out a third member of the society who can identify and define the content of the norms for both parties, because either side would assume the other’s interpretation to favour self-interest. Since the norms at issue constitute part of the common-holding among all members, the third party member’s interpretation of the binding, operative norms should be not only consonant with the disputants’ own perception (as members), but also reflect and track in substance the content of those norms as generally understood by all members. Naturally, there exists a measure of give-andtake between a mere reflecting of the commitment (social custom) as it is, and giving it a somewhat altered form through legal interpretation.109 That interpretation should nonetheless be otherwise uncoloured by any self-interest in the practical circumstances existing between the parties, except perhaps the expectation that the pronouncements would apply likewise to any dispute in which the third party member was involved. In this fashion the third party serves as a repository or source of binding meaning for the pool of common-holdings of the membership. That type of associating results from a delegation by members of a society to those individuals qua officials. I draw here upon MacCormick who suggests that institutions, and legal ones in particular, arise over time as people develop the habit of referring their disputes for decision more frequently and more consistently to certain persons in the community.110 The existence of that particular institution, thus defined by its procedures, results and officials, also becomes one of the terms of the common-holding. The habit of consultation becomes ingrained over time in a particular society, and thus hard  C Allen, Law in the Making 4th edn (Oxford, Oxford UP, 1946) 107–121.   MacCormick, ‘Institutional Normative Order’ (n 25) 1055–57, and see his Institutions of Law: A Essay in Legal Theory (Oxford, Oxford UP, 2007). 109 110



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ens into one aspect of that society’s common-holding. Habit and convention push us to think of the courts first as the appropriate forum for resolutions of disputes, or the criminal law and imprisonment as the appropriate response to anti-social, injurious behaviour, or to legislation to manage or cure social problems. When individuals refer a dispute to an institution therefore, they accept that the institution provides an authentic and binding articulation of the controlling norms and a similarly controlling appraisal of the conduct in the circumstances.111 An aggrieved party relies on the institution (by agency of its officials) to appraise the conduct of the parties on the basis of that common-holding, and further compel due rectification of the injuries done. It is in fact by virtue of that function, to determine the commitments at stake and delineate their meaning and range of application, that an institution may be said to exist. And it is through such status that an institution claims and realises upon its authority over participants. Whilst we have the legal system clearly in mind here as the archetype, an institution under these terms may be any official instance with some power of decision, from public servant, to minister, through to doctor, parent or referee. An institution thus purports to be an authentic source for the content of common commitments.112 That this hypothesis is well borne out in the history of the English legal system is beyond doubt, but it likely extends not only to other legal systems but to any institution howsoever labelled.113 An historical analysis might work through the creation (in no particular order) of the institutions of the family, clan, tribe, state, parliament, legislature, church, and the multiple business and social organisations we encounter every day. Now, we can speculate on origins. But we should realise in a hard-headed sort of way that no amount of such speculation can alter the situation we face here and now, of alreadyformed social groupings, with their respective sets and subsets of collective, co-operative undertakings, ideals and values. That is the scenario we must address. And I have already suggested the reason of a perceived closer understanding and clearer connection to the meaning of the underlying norms as a basis for why certain persons may have been consulted more frequently, thus giving rise to the current, reified customs today. To summarise this second premise then, in performing its function the institution will identify the general public commitments (as developed out of whole cloth by the individual members) and then reissue them as its own directives, tied of course to further directives specifying how to engage the institution and how the norms should work in practice. The institution converts a public formulation of associational commitments into an institutional one for re-application among all members of the society. This ties the concept of institutions to the outline of rules above. And accordingly it is the institution, through its officials, which therefore will identify the specific elements to an associational relationship, and articulate the controlling norms thereto. Because the officials proclaim the norms effective among the parties who accept that determination, it is the institution’s formulation of the common commitment which counts, not that of the parties themselves.114 (This recalls the discussion of ‘validity’ above.) There remains, however, a residual margin of   MacCormick, ‘Institutional Normative Order’ (n 25) 1057–59.  Allen, Law in the Making (n 109) 121–24, 143–44. 113   See generally W Holdsworth, A History of English Law (London, Methuen, 1976); H Lasswell and M McDougall, Jurisprudence for a Free Society (New Haven (Conn), Yale UP/Nijhoff, 1992) 2 vols, and Lasswell and Kaplan, Power and Society (n 90). 114  See, eg, Allen, Law in the Making (n 109) 298–304. See also G Postema, ‘Classical Common Law Jurisprudence (Part II)’ (2003) 3 Oxford U Commonwealth LJ 1, 11 ff, and his ‘On the Moral Presence of Our Past’ (1991) 36 McGill LJ 1153. 111 112

76  Associative Constitutionalism appreciation, a coherence test between the institutional formulation and the public one to which the former must conform. This adverts to the criterion of legitimacy discussed above. Hence, the institution constitutes itself as a repository and dispensary of authentic articulations of social meaning. Thirdly, for the institution to perform this function, it must project itself as the dominant, or exclusive, source of such meaning (the ‘exclusivity’ thesis).115 By logical extra­ polation, providing the controlling, authentic definition to norms means that other competing sources of meaning are subordinate or disregarded. Otherwise, there exists no reason to prefer the one source over the other. Where an institution does not exercise exclusive jurisdiction over meaning, where it cannot claim to be the origin of norms, it compromises its function to identify and articulate norms for the entire membership. Consequently, it also compromises its existence, dependent as it is on performing those very functions. Members have no more reason to appeal to its expression of the governing norms than their own or any other expression. They have no reason to accept the pronouncements of its officials regarding the content and application of the norms and rights constitutive of their particular interrelationships. For an institutional interpretation to have authority among its members, the members must accept the pronouncements thereof regarding the existence, content and application of common commitments in preference to their own or some other formulation thereof. It is principally upon the basis of those institutional directives that members will structure and measure their behaviour and conduct among other members. ‘Principally’, because the projection of institutional authority always remains subject to the coherence of its pronouncements with the actual commitments as developed by the members themselves by virtue of the institutions’ derivative status outlined above. Hence, it is matter of ‘projections’ of authority because ultimately the individual must decide (unless under some form of present, active coercion), and take the consequences of the decision whatever they may be. Accordingly, the directives of an institution obtain only a preferential stature in the reasoning strategies of members, and not an absolute, exclusive importance. It would follow, then, that to achieve such preferential status, the institution must represent itself as the sole instance wherefrom the controlling interpretations of the relevant norms may issue. The sword of authority is whet upon the touchstone of a society’s common-holding. The exclusivity thesis provides a compelling basis for a concept of authority. Raz offers a similar approach, although with an intention and conclusion converse to the one developed herein.116 Specifically, Raz situates authority in a strategy of reasoning coordinated by rules for action, whereby the directives of an institution are necessary and sufficient to compel obedience despite a competing strategy based on personal reasons for action.117 He terms this the ‘normal justification thesis’. It depends in turn upon the ‘pre-emption thesis’ whereby the directives of an institution are taken as inherently authoritative, regardless of any other reasons in favour or against, and substitute for 115   Echoed in J Raz, ‘The Institutional Nature of Law’ in Raz, Authority of Law 103, 116–120 (parsed into the characteristics of ‘comprehensiveness’ (authority to regulate any type of behaviour in some way), ‘supremacy’ and ‘openness’ (rules of recognition)). 116   J Raz, ‘Legitimate Authority’ in J Raz, The Authority of the Law (Oxford, Oxford UP, 1979) 1, 17–20 (‘exclusionary reasons’), and his Practical Reason and Norms (London, Hutchinson, 1976). See also S Perry, ‘Second-Order Reasons, Uncertainty and Legal Theory’ (1989) 62 S Cal LR 913 and M Moore, ‘Authority, Law and Razian Reasons’ (1989) 62 S Cal LR 827, esp 854 ff. 117   J Raz, The Morality of Freedom (Oxford, Oxford UP, 1986) 53–57.



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(pre-empt) the same.118 The pre-emption thesis assumes that the directives are founded upon considerations already applying to the subjects of those directives (the ‘dependency thesis’) in respect of the subject matter of those directives.119 The critical link, of course, ties the pre-emptive force of an institution’s normative pronouncements to a coherence with the public’s understanding of the content of these norms. In effect this position argues that the normative directives of an institution are authoritative, have author­ itative force, insofar as they track the meaning of those norms operative among the subjects of that institution. Alternatively, it argues that the subjects of the institution have no reason to question the coherence of the institutional formulation of common commitments with what would be their own. In other words, under the exclusivity thesis, an institution projects authority insofar as its pronouncements are in general accord with what the individuals themselves do or would understand to be the case in the circumstances. All this, even on the Raz version, accepts necessarily that the articulation given by the institution to these norms is drawn from and reflects in close measure the understanding or perception of the parties of these norms as drawn directly from their associations with others (the ‘dependency’ thesis). That is, the institutional articulation must track, more or less by definition, a personal understanding or intuition of what the norms are. It is only on this basis that an institution may be said to be a repository of socially authentic values and interests. Hence, the greater the separation of ‘public’ meaning from ‘official’ meaning, the less effective and relevant the institution is: the less authority held by it. The institution no longer fulfils its purpose, and the parties will look elsewhere for that articulation and the application of the common commitments. We might use here the phrase ‘loss of legitimacy’: the institution no longer stands as a repository of socially live (current) and relevant meanings. There is no commonality between the institution and the parties before it. I come then to the next step in understanding the derivative character of an institution. The critical element of any form of institution – the essential purpose of institutionalisation – is the transformation or conversion of the private domain into the public, whereby the normative concepts become of general, systematic application over all the participants in the institution. This covers all forms of institution, from constitutional order through to family. My term for this is the ‘transformative event’, as a short-form descriptor of this entire process. It includes not only the exposure of the normative ideals to others for discussion, amendment, acceptance or rejection along the general lines Habermas has sketched.120 But more importantly it implants (or at least assumes the presence of) the norms as commonly held commitments. It tracks therefore two 118   ibid 57–62. This may be seen as a delimitation of validity of official pronouncements, and lies at the heart of the positivist construction of a concept of law. 119  Raz, Morality of Freedom (n 117) 42–53. 120   J Habermas, The Theory of Communicative Action (T McCarthy (trans), Cambridge, Polity, 1981) vols 1 and 2, and his Between Facts and Norms (n 72). For critical anlysis of the ‘self-organising community’ arranging their collective affairs in a ‘discursive democracy’; H Baxter, ‘System and Lifeworld in Habermas’s Theory of Law’ (2002) 23 Cardozo LR 473 and his ‘Habermas’s Discourse Theory of Law and Democracy’ (2002) 50 Buffalo LR 205; R Fine and W Smith, ‘Jurgen Habermas’s Theory of Cosmopolitanism’ (2003) 10 Constellations 470; J Cohen, ‘Reflections on Habermas on Democracy’ (1999) 12 Ratio Juris 385; and S White (ed), The Cambridge Companion to Habermas (Cambridge, Cambridge UP, 1995), esp G Warnke, ‘Communicative Rationality and Cultural Values’ in ibid 120; D Moon, ‘Practical Discourse and Communicative Ethics’ in ibid 143; M Warren, ‘The Self in Discursive Democracy’ in ibid 167; K Baynes, ‘Democracy and the Rechtsstaat: Habermas’s Fäktizität und Geltung’ in ibid 201; and S Chambers, ‘Discourse and Democratic Practics’ in ibid 233.

78  Associative Constitutionalism processes. The first abstracts and idealises private will and interest into a ‘general will’ and universalised norm of conduct. The second reintroduces that reformulation and abstraction into our private holding of interests, beliefs, standards, desires, and so on. Transformation: Institutional Premise, Constitutional Promise Despite its seemingly overriding theoretical nature, the concept of institutions and of the transformative event do not draw us so very far away from an understanding of a constitution and a constitutional order. These two concepts complete an understanding of associative constitutionalism. Indeed, it is my contention that a constitution is just such an institution, one which articulates the underlying transformative event by which citizens produce the social values and social structure with which they identify. In that respect, the constitution encompasses internal, mediate and external relationships. The constitution comprises internal relationships among the constitutionally prescribed organs of state, and mediate ones (such as in the case of asserting one’s rights). But the constitution also adverts to the ‘external’ ones in which social values and organisation come to be as public, common commitments. It institutionalises that process of conversion, of transformation. The institutional premise of the transformative event is at the heart of the idea of a constitution. That assertion grounds the claim of constitutional law and order to pronounce upon secession efforts. Secession represents the collapse or wilful rejection of the institutional premise. Let me sketch out this critical idea further. It takes more than mere co-incidence to bind someone, or hold someone accountable, to a standard of behaviour. A rule, principle, standard of conduct, and such like is normative precisely because during moments of indecision, antagonism, we reason that we are compelled to follow on pain of condemnation by others and perhaps injury to ourselves. This certainly need not be phrased exclusively in the negative. It can therefore include the desire to be worthy of praise, honour, and so on by our fellows.121 But I would still suggest that the recognition of acting in such a way that is worthy of praise nevertheless indicates some modicum of lingering doubt in us among our various inclinations and possible actions. Where we have no doubt or conflict between our desires and our reflective endorsement thereof, there may exist normativity.122 But it is hard to identify, and we do not recognise it as being ‘normative’. Those moments insert a ‘space’ or ‘distance’ between our desires, beliefs, ideas, and so on, and our rational, decided and intentional adoption of them, converting our energy, ability and imagination to realise them. It is our intellectual capacity to insert a pause or ‘reflective distance’ between our intention and desire and our execution of that desire which represents our moral-ethical capacity and, more broadly, our apprehension of normativity. The normative inhabits the space between the immediacy of our desires and our reflective and active endorsement of them. 121   See, eg F Neuhouser, Rousseau’s Theodicy of Self-Love: Evil, Rationality, and the Drive for Recognition (New York, Oxford UP, 2008) discussing Rousseau’s ‘amour-propre’ and ‘amour de soi’. 122   The phrase ‘reflective endorsement’ is drawn from Korsgaard, ‘The Sources of Normativity’ (n 86). It arises from her adoption and adaptation of Kant’s arguments regarding ethics and morality to formulate her theory of normativity. This she situates in the contiguity between the universalised command of moral principles and our internal practical identity – an identification thesis between moral rules and who we really are. The following draws heavily upon Korsgaard’s analysis.



Associations, Institutions and Law 79

Normativity is thus a form of authority. It acts as a brake or impetus upon our intentions to do or refrain from doing certain things. Its authority originates in projecting a characterisation upon others that they will hold us to account based on an ideal-form of a particular act, type of conduct, behaviour, and so on. The ideal-form originates out of an idealising moment. Our actions are evaluated as against an ideal-form because of the content thereof. It represents a truth-claim, or value orientation concerning the objective, the means employed, and the correlative effects and incidental consequences of that ideal-form act. This would describe that intellectual process of abstracting and generalising from a particular situation so as to claim for it a permanency, invariable reality, which makes it ‘true’, and thus objectify the generalised situation as universally applicable. Hence, there is a significant aspect of reflexivity in the concept of the normative, describing a complex interaction of (1) our concepts projected onto the world; (2) the world impacting upon our concepts; (3) our action in and on the world; and (4) the world’s influence on our actions. To be held to account entails either praise or condemnation, and that projection obtains whether or not we are ultimately held to account. Accountability depends upon our measuring up to standards that we ourselves hold or are expected to hold (so we are led to believe) in virtue of some circumstance or attribute applicable to us. It follows that a repeated failure to hold us to account in that matter removes the normativity to the ideal-form. And it brings the ideal-form into question if we are adjudged by a different standard, for example, reflected in what is commonly described as conflicting ethical or moral standards, or a ‘conflict of cultures’. Put more generally, we are understood to have mutually and reciprocally committed ourselves to adhere to particular forms and standards of conduct when we interact with others. Our reflective endorsement therefore necessarily implicates the existence of others whose approbation, condemnation or even disdain, can spur us to action or stop us. It also implies that reflective endorsement draws upon (our perception of) the opinions, ideas, examples, arguments, and so on, of others. So normativity is a feature not of an individual, solipsistic life, but a social one lived in and among other people. Counting a principle or rule as ‘normative’ means that that its content, scope and range of application regarding a relationship with another – in sum, the core of the commitment – is commonly held. Our relationships with others are governed by those common commitments. Otherwise there exists no guarantee that each party to the relationship would apply the particular commitment C1 as opposed to C2, C3, or some other one, or that the evaluation of conduct would invoke that particular commitment. So such a ‘common-holding’ involves not only a coincidence or similarity of individual conceptions or orientations to some general commitment, but also a referent, a point of reference, external to each individual’s own conception, and accessible by each as the source or determinative conception of that general commitment. That is what I call here the ‘ideal-form’ or ‘common commitment’. The ideal-form is clearly a publicly held conception. The reference point might be to some text, some person, some official, or simply to an assumption of a shared meaning through some ascriptive factor commonly perceived in particular individuals, such as race, religion, history, place, language and other attributes. But it forms a common feature across different individuals. Without the basis of commonality (or ‘universality’ on a more grandiose scale), our judgements of right or wrong conduct would remain subjective assessments applicable only to ourselves. We could not hold another to our normative standards unless they too

80  Associative Constitutionalism held the same standards. Our conception of wrong implies the existence of a normative order, an ideal order of how things should be, and the deviation in reality from that standard. More specifically, and to borrow again from MacCormick, a normative order is an act of human will intending the realisation of an ideal(ised) ordering of affairs, where the idealising is practicable and feasible and is a product of our reflection on the world as it is and as it should be.123 As an act of human reflection and human will, the normative order is by definition subjective and individual because of the autonomy of the subject in moral reflection. It remains so until that set of normative concepts can be demonstrably shown to operate (be held in common) among other autonomous individuals. The latter points to the so-called ‘transformative event’. The transformative event occurs upon the association of individuals based on and leading to a combination and community of individually-held commitments, a sharing of means and ends, so to speak. Whatever our starting point, the public nature of the commitment entails some participation of individuals in a process of arriving at a shared, commonly-held commitment. That process exhibits at least three broadly described necessary phases: communication, idealisation and internalisation. Briefly, communication refers to the discussion and debate extending from the moment when the privately or closely held idea or belief is published, laid open for inspection and comment by others, through its criticism, defence, amendment or variation, compromise, or such like, until all parties agree on or are willing to accept its content and scope. Because we come to know the thoughts of others only through communication, we cannot but engage others in order to arrive at a common-holding. Participation in that discussion is vital. And during the course of that discussion, the commitment is moulded, remoulded, refashioned in such ways and manners as to meet with the agreement of many individuals assessing its content and application from their particular, special circumstances. Accordingly, the process of abstraction seamlessly integrates into the communication process. Its result is the commitment generally agreed upon as creating a norm. It is not sufficient, however, simply to leave the matter at this stage of abstraction. We need also to reconfirm that the common commitment is reinternalised such that it finds a place once again in the private commitments of each person. Normativity is an internal matter residing in the space between the immediacy of our desires and will, and a reflective and active endorsement of them by converting them into action. It presumes the existence of others and their approbation or condemnation. Internalising a common commitment gives the basis on which to argue for the normative perspective of accounting for others. The once private commitment, now a public concern, reintroduces itself into consciousness. Internalisation requires a positive act, not merely a coincidence of commitments in individuals. The latter does not establish nor guarantee the ‘other-regarding’ perspective necessary for normativity, for binding those others to the rule. Indeed, we may go so far as to claim that even where such a coincidence exists, to varying degrees of coherence, a positive act nevertheless occurs by virtue of comparing private versions, thereby establishing a public one supporting the claim to coherence in the first place.

123   MacCormick, ‘Institutional Normative Order’ (n 25) 1053–55 and his ‘Institutions and Laws Again’ (1999) 77 Texas LR 1429. See also Ewald, ‘Comment’ (n 25) (restating and clarifying those points).



A Constitutional View on Secession 81

We should recognise, however, that internalisation does not represent a ‘pure’ adoptive process. By reintuiting or reintegrating the commitment into our private set of values, beliefs and ideas, we are altering both our private set and the common conception as well. The latter instance simply acknowledges that our understanding depends upon our perception, which never stands free of interpretation, preconditions, even mistakes. A ‘pure’ idea or meaning only exists as a theoretical construct derived from our power to abstract. In reality, how we perceive, intuit and express a supposedly ‘pure’ idea or ‘common commitment’ all serve as mediating functions to particularise (and thus limit or constrain). The former instance, acknowledging both the process of debate and discussion and the interpretative conditions of our understanding, further acknowledges that what we reinternalise is generally not the same as the original private commitment first published. Hence, we need to accommodate it (together perhaps with the original commitment) in our collection of values and beliefs. We have to fit it in. And given this fact, this process of reinternalisation can therefore account for that normative distance where we encounter a diversion between what we want to do and what we ought to do. Thus, in sum, we have the transformative event. It is the process whereby an individual’s commitment is taken up by others as their own, and by which they measure the conduct of others and expect to be measured by others (as indeed they generally are). The process of transformation is an intellectual and social process whereby we com­ municate our commitments to others; we abstract and idealise them, and then we reintuit or reinternalise them as part of our original set of holdings. This of course relies on the premise that we participate in the formation of those public goods and concerns. We are realistic enough, however, to know that for the bulk of the rules and norms governing us, we have not participated in their formation. They have been imposed upon us by family, friends, work and country. I have described the transformative event as embodying two separate processes, the first transforming the private into public; and the second, the public back into the private. The second side of the transaction of course allows us to postulate the necessary aspect of commonality and normativity. But much more importantly, it drives us to consider and accept that integral first side as well, whereby our social values and beliefs and the entire structure of society obtain from communication, discussion, idealisation and agreement. That which has been imposed on us is still a product of a discursive process. It remains so. The social values, beliefs, norms and structures from which we derive our identity or describe ourselves bear the indissoluble imprint of a transformative event, and thus the continuing possibility of value changes and reorientations. A CONSTITUTIONAL VIEW ON SECESSION

It takes little imagination and effort to reconstrue this in the form of constitutional order and law. Briefly, the idea of a constitution is the formal articulation of the transformative event obtaining among individuals. Whether we argue that the constitution contains the latter, or stipulates the conditions for the law’s presence, or some other possible formulation, this is of little relevance here. Critical, instead, is the realisation that a constitution is that institution by which we identify, articulate and apply the commitments representative of our common-holding as an association. Its rules derive and depend upon the basic commitments we fashion with one another. Constitutional law is

82  Associative Constitutionalism simply one instantiation, as a rule, of those commitments. And rules, I have argued, are derived from and so shot through with those common commitments as to invoke them whenever a constitutional question becomes live before the courts (among other places). Law in general is another institutional instantiation of those commitments. In all of this, the transformative event stamps indelibly the nature of those commitments as a product of a joint effort, a reinternalisation of interests and beliefs appropriating an ‘otherregarding’ perspective, and the possibility of further mutation and change. What distinguishes the constitutional situations from all other instances of socially established meaning and value? First, the constitution represents the institutional articulation of the transformative event. Its function and practices reinforce the basis of communication, participation and agreement among all citizens necessary to produce social values and beliefs, and organise the distribution and application of social power. In other words, by serving as such an expression of the transformative event, it acts as the marker for the social cohesion necessary to establish and maintain a polity. Secondly, a constitution posits the widest regular boundary of intersubjective contact grounding the transformative event. Although through the institutional premise of the transformative event associative constitutionalism could in theory account for an international set of values, in practice the reality of our contacts with others has not yet progressed beyond state borders. Until such time as a broader reach of contact is practicable and effective, we must content ourselves with the current state of affairs. And I concede freely here that underlying this contention is an undefended premise that the wider the scope of consultation and debate, the better the articulation of a truly common, universal commitment fulfilling its claim to represent reality and truth. Wider seems better than narrower. A constitution provides the framework of organising principles, not necessarily articulated openly or permanent, whereby members of the polity so created may conduct their affairs, pursue objectives, upon a platform of reasonable expectations. That is, a constitution properly regarded is an organisational template to be filled in by individual claims and actions. As such an organisational template, it represents a supervening set of rules authorising lower rules and lower determinations on the basis of those rules. By ‘constitutional supremacy’ then, is meant that this template legitimates all action or that such action is condemnable as illegitimate. The framework is instrumental in character, for it facilitates the identification of principles, the definition of principles, and the application of those principles. The framework provides means and procedures whereby principles may be engaged, discussed and implied. The proper application of rules is the validity criterion. In addition to the validity criterion, the justification of rules is the legitimacy criterion. The legitimacy criterion involves constitutional principles to be engaged within the framework-template. As a framework, a constitution does not necessarily prescribe, nor need to prescribe, the critical values of a society. But it may nonetheless articulate such values in its organising structure. Obviously, certain organisational principles derive more clearly from particular fundamental values than others, and at least reflect which of those values are operative, or which values the principles are trying to apply or fulfil. It is open to a society to identify and prescribe those fundamental values on an ongoing, historical basis. Put into a more legalistic context, rights and remedies exist only insofar as society makes provision for them. This important realisation funds the ‘internal view’ or ‘bottom–up view’ of constitutional law advanced herein, one which places greater emphasis and



A Constitutional View on Secession 83

responsibility on how we ordinarily behave and what we believe and desire, instead of on the dry pronouncements from international organisations and well-papered statements of rights and duties. Unless the commitments the latter represent have been internalised and adopted by a society as their own as a set of commonly held norms, no amount of paper and ink will see an effective exercise and enforcement of those rights and freedoms in that society. The effect of understanding or appreciating that we are caught in a group, binds us to our fellows such that our actions may always be judged in virtue of the organising principles. Members of the group should be aware of the existence of these relationships, if not also their basic content. It is not sufficient that an ordered system be merely applied to a collection of individuals. A mandatory internal character exists as well, requiring of members some conscious appreciation that they are part of a group. In turn, this entails that rules and principles must exist ordering the system, controlling how the system works (including change), and monitoring system breakdown (and repair, if possible). For the reasons given above, the members of the group should also be aware of the exist­ ence of such rules, if not also their basic content. To parcel off one set of the polity from the other so as to restrict who may participate in the transformative event itself represents one element to the collection of public commitments. It is for the community as a whole, whose commitments and concern are at issue, to decide which of those commitments may be specially limited or applied to portions of that community. To assert otherwise is inconsistent with the idea of common commitments and the transformative event. It denies the nature of the transformative event as a participatory good. Those commitments form part of the close-holdings of citizens, which it is not for one part to deny or restrict except by further amendment through a further transformative event. Concretely, to oppress and to discriminate breach the transformative event. Equally, it is not for one section of a community to reject common commitments (read: secession) without a general transformative event (read: constitutional amendment). Otherwise, they should expect to be held to the yet existing common collection. It is through the institutional premise of constitutional law as an articulation of the transformative event, therefore, that constitutional law may pronounce upon the legitimacy (and validity) of secession. Insofar as fundamental values conflict with constitutionally articulated fundamental values, three possible outcomes result. First, if the constitutional premise articulates a value in a sufficiently general way, it is possible for the continuation of both with a reinterpretation of the constitutional premise in light of and on the basis of the new or revised value. This is constitutional evolution. Secondly, if the tension or lack of fit between the two is sufficiently great, then some amendment of the constitutional premise is required in order to give expression to the new or revised value. This is constitutional amendment. Thirdly, if the division between the former value as currently expressed in the constitution and the new or revised value is so wide and irreconcilable (in fact, that most of the initial fundamental values grounding the constitutional order have changed completely), the constitution may collapse. This is revolution.

3 Primary Right Theory

P

RIMARY RIGHT THEORIES conceive of the right to secede as a general right. Although the exercise of the right may be conditioned on certain factors, its existence does not depend upon, nor arise from, specially conferred authority such as a contract, treaty, constitutional document, special relationship, or some sort of promising.1 Instead, what generates the existence of the right is simply the same feature which generates all states and political groupings, namely freedom of association. That freedom grounds the critical element to political obligation: consent. Hence, whatever the status quo, primary right theories assert some form of operative consent establishing submission to the state’s coercive power over a citizen, and the obligation to obey the state’s directives.2 And this consent applies whether we prefer a liberal conception of the state (oriented to individual autonomy), or a communitarian one (oriented to individual definition in and through a group). Secession therefore occurs by virtue of the withdrawal of consent to be bound to a particular body politic. Most importantly for primary right theories, and consistent with their consent view of political obligation, no form or instance of injustice or oppressive conduct need trigger the withdrawal of consent. It is a ‘no-fault political divorce’.3 The nature of freedom of association offers the members of the seceding group continuous recourse to recalculating and revisiting their consent at any time. Among the principal exponents of the primary right scheme (in its more general form) are Beran, Philpott, Copp and Wellman.4 Primary right models also diverge into the two

1   A Buchanan, ‘The International Institutional Dimension of Secession’ in P Lehning (ed), Theories of Secession (London, Routledge, 1998) 227, 230. 2   D Gauthier, ‘Breaking Up: An Essay on Secession’ (1994) 24 Can J Phil 357, 360; H Beran, The Consent Theory of Political Obligation (London, Croom Helm, 1987) 5–7, 2 6ff; and D Philpott, ‘In Defense of Self– Determination’ (1995) 105 Ethics 352, 356–58. See also J Simmons, ‘Justification and Legitimacy’ (1999) 109 Ethics 739, 752 and D Copp, ‘The Idea of a Legitimate State’ (1999) 28 Phil and Pub Affs 3. 3   A Buchanan, Secession: the Morality of Political Divorce from Fort Sumpter to Lithuania and Québec (Boulder (Colo), Westview, 1991) 134 ff. See also H Beran, ‘A Democratic Theory of Political Self-determination for a New World Order’ in P Lehning (ed), Theories of Secession (London, Routledge, 1998) 41. Some, however, introduce, conditions or restrictions such as the viability of the seceding group (eg Beran, Consent Theory (n 2) 37–38, 49–53; Philpott, ‘In Defense’ (n 2) 366) or irreparable injury to the rump state (eg C Wellman, A Theory of Secession (Cambridge, Cambridge UP, 2005) ch 2). 4   Principally Beran, Consent Theory (n 2), his ‘The Place of Secession in Liberal Democratic Theory’ in P Gilbert and P Gregory (eds), Nations, Cultures, and Markets (Aldershot, Avebury, 1994) 47, ‘A Liberal Theory of Secession’ (1984) 32 Pol Stud 21, and ‘Democratic Theory’ (n 3) 32; D Philpott ‘Self–Determination in Practice’ in M Moore (ed), National Self–Determination and Secession (Oxford, Oxford Oxford UP, 1998) 79 and his ‘Defense of Self–Determination’; D Copp, ‘Democracy and Communal Self-Determination’ in R McKim and J McMahan (eds), The Morality of Nationalism (Oxford, Oxford Oxford UP, 1997) 277; and C Wellman ‘A Defense of Secession and Political Self–Determination’ (1995) 24 Phil and Pol Affs 142, and his Theory of Secession (n 3).



Primary Right Theory 85

subcategories ‘ascriptive groups’ and ‘associative groups’.5 This subdivision pertains to the second descriptive criterion to a right: the rights-holder. It represents another way of dividing those who advocate or support a nationalist basis (ascriptive) from those who do not (associative). Strictly speaking, Beran, Copp and Wellman fall into the associative subgroup. Others, most notably Caney, Miller and Nielsen fall under the ‘associative’ heading and might be considered representative of that subdivision as well.6 For the latter, the crux of their models rests on how they establish the peculiar and special nature of the rights-holder, the nation. Briefly, the tenor of their argument holds that political legitimacy and political obligation arise out of being a member of a given nation. To the extent that any larger political grouping among nations occurs, our membership modulates and mediates our legitimacy and obligation to that larger set. Secession is the withdrawal of the group from that larger set. Individual withdrawal is thus considered withdrawal from the nation, constituting a loss of identity, of anomie. The technical weight and persuasive effect in their theories are concentrated in their attempts to convince us that nations exist and may secede. Hence they are better assessed in detail in the later chapters dealing with the nationalist model of secession. There is also a further group, or variant, in the primary right model which pushes the idea of consent and individual freedom to its conceptual limit. Libertarians, such as von Mises, McGee and Rothbard, proffer a rather simplistic theoretical foundation based upon active consent, fundamental individual autonomy, and hence an all encompassing system of private property and responsibility excluding any possibility of public property and developed, formal, public authority.7 A person may choose whom to obey and to whom to be obligated at any time, or revise that choice, and no moral reason exists to prohibit a person choosing one government over another.8 As an extreme version of the liberal consent model, the libertarian camp tends to price itself out of the market as a realistic, credible and practicable theory of state formation and state operation. Its denial of any form of public property, an undue emphasis on private autonomy, and an affirmation of more or less unrestricted private property ownership, also point to unworkable and unrealistic assumptions and expectations in the theory. The libertarian camp perhaps best exemplifies the danger Kant recognised as consequent upon divorcing theory from practice. History and current affairs disprove the possibility of, and existence of, any 5   Coined by Buchanan ‘Institutional Dimension’ (n 1). Analogous is ‘ethnic nationalism’ and ‘civic nationalism’: see, eg M Seymour with J Couture and K Nielsen, ‘Questioning the Ethnic/Civic Dichotomy’ in J Couture, K Nielsen and M Seymour (eds), Rethinking Nationalism (Calgary, Calgary UP, 1998) (a reprint of (1998) 22 Can J Phil (Supp vol 261) 1. 6   S Caney, ‘Self–Government and Secession: the Case of Nations’ (1997) 5 J Pol Phil 351 and his ‘National Self-determination and National Secession: Individualist and Communitarian Approaches’ in P Lehning, Theories of Secession (London, Routledge, 1998) 151; D Miller, ‘Secession and the Principle of Nationality’ in M Moore, National Self-Determination and Secession (Oxford, Oxford UP, 1998) 62 and his Citizenship and National Identity (Cambridge, Polity, 2000) and On Nationality (Oxford, Oxford UP, 1995); and K Nielsen, ‘Liberal Nationalism, Liberal Democracies, and Secession’ (1998) 48 U Toronto LJ 253 (a slightly revised version of his ‘Liberal Nationalism and Secession’ in Moore, National Self-Determination 103). See also A Patten, ‘Democratic Secession from a Multinational State’ (2002) 112 Ethics 558; and A Margalit and J Raz, ‘National Self–Determination’ (1990) 87 J Phil 439 (focussing more on the self-definition of a group). 7   R McGee, ‘The Theory of Secession and Emerging Democracies: A Constitutional Solution’ (1992) 28 Stanford JIL 451 and ‘Secession Reconsidered’ (1994) 11 J Lib Stud 11; M Rothbard, The Ethics of Liberty (Amherst, Humanities Press, 1982) and ‘Nations by Consent: Decomposing the State’ (1994) 11 J Lib Stud 1; and L von Mises, Liberalism, 3rd edn (San Francisco (Calif), Cobden Press, 1985) (esp 108 ff), and his Nation, State and Economy (New York, New York UP, 1983) esp 33–35. 8   McGee, ‘Theory of Secession’ (n 7) 452 and ‘Secession Reconsidered’ (n 7) 21; Rothbard, ‘Nations by Consent’ 5–6 (n 7).

86  Primary Right Theory measure of a libertarian state. For these reasons, I will not examine libertarian political theory and its models of secession further. It follows from this general sketch that any appreciation of the primary right theory of secession requires a somewhat more detailed examination and assessment of the key premise of consent. CONSENT AS PRIMARY

Consent as a ground for political obligation enjoys a long and venerable history in political philosophy.9 By extension, it also represents a key concept in law (contract and tort, for example) and in legal theory. Both legal and political theory share similar objectives in their treatment of political consent, which are to ground the sovereignty of the state and the coercive power of state institutions over citizens. Specifically from a legal perspective, we would look to consent as justification for the legitimacy of state power over us, and our obligation generally to obey the law. We begin to find a clear expression of the concept as a necessary term of any political system in the works of Hobbes, Locke and Rousseau.10 Of course, it is well beyond my remit here to enter any detailed examin­ ation of consent as a central tenet of either political or legal philosophy, and the variations given to its meaning, scope and weight, over time. All this has been already canvassed elsewhere.11 The task at hand is instead a more general one, namely to understand the relationship of consent to political obligation and legitimacy. Our issues are in essence twofold: speaking for primary right theories, what role does consent play in binding us to a state; and speaking more generally, is consent necessary and sufficient to explain or justify secession? Let me begin with a general observation, perhaps already surmised. Consent as a basis for political obligation only becomes an issue for liberal, democratic theories of political systems. Consent has little or no relevance to theories proffering autocratic, or even nationalistic (in its more extreme forms) models for political systems; or more generally, those with diminished regard for democratic organisation. So as a first point, primary right theories cannot but operate on the basis that the ideal state is a liberal, democratic state. That is, primary right theories assume the pervasiveness and universality of democratic liberal tenets. And presumably, by reasonable extension, any non-democratic state is socially unstable and subject to internal (and possibly external) pressures to reform in compliance with these tenets.12 The relevance of this will be seen later in the discussion of the merits of the contending model for secession as a remedial right. 9   The discussion runs the ‘consent’ and ‘contractarian’ streams together; on the distinction: L Green, The Authority of the State (Oxford, Oxford UP, 1990) 158. 10   T Hobbes, Leviathan (CB MacPherson (ed), London, Penguin, 1985) Pt II, ch 7 (esp 227 ff) and ch 8 (esp 228–30); J Locke, Two Treatises of Government, rev edn (P Laslett (ed), New York, Mentor/New American Library, 1965) ‘The Second Treatise’ (hereinafter Two Treatises II), paras 95 ff, 116–20, 21; and J Rousseau, The Social Contract (M Cranston (trans), London, Penguin, 1985) Bk I, chs 6 and 7. See generally P Riley, Will and Political Legitimacy; A Critical Exposition of Social Contract Theory in Hobbes, Locke, Ross, Kant, and Hegel (Cambridge (Mass), Harvard UP, 1982). 11   See generally J Simmons, Moral Principles and Political Obligations (Princeton (NJ), Princeton UP, 1979); C Pateman, The Problem of Political Obligation (Hoboken (NJ), John Wiley, 1979); Green, Authority of the State (n 9) and Beran, Consent Theory (n 2). 12  Locke, Two Treatises II (n 10) ch XIV, 211 ff.



Consent as Primary 87

Consent plays two primary roles, one I would describe as ‘organisational’, and the other, as ‘normative’. As an organisational proposition, consent pertains to the formation of a group, such as a state, out of a collection of individuals. Consent reflects an intention and desire to join a group, to associate with others. The basis for that intention, we might reasonably assume, is the individual’s perception of something desirable and valuable to identity or self-definition in and through membership. Becoming a member fits with the individual’s perception or understanding of self. At the foundation of liberal theory, every individual exercises a fundamental freedom to be and act as that individual chooses. ‘Consent theory respects our belief that the course a man’s life takes should be determined, as much as possible, by his own decisions and actions.’13 This freedom to determine one’s self translates into a freedom to choose with whom one desires to associate. That includes forming territorial communities over parcels of land held by constituent individuals, and thus the association of individuals into a state.14 (For the liberal school, the rightful acquisition and holding of the land also forms a vital component to the moral calculation of the right to form and dissolve states.15 For the communitarians and their nationalism colleagues, that question is more or less implied or buried in the more emphasised concept of historical tenure of particular tracts by a particular group, thereby creating a ‘homeland’.) Hence, every political association will be a grouping of willing partners; that is, our associations are borne out of mutual agreements creating relationships. By agreeing to enter these relationships, especially at the political level, we consent to structure our primordial freedom and order our choices in virtue of that relationship. On this view, consent acts as a sign and trigger for the formulation of a political association. And to foreshadow the discussion on secession, because the gathering together of individuals into a state requires their consent (antecedent or simultaneous, we may assume), their withdrawal of consent naturally implies the loss of legitimate (state) authority and sovereignty over the dissenters. Agreeing to join a group does require some arrangement and adjustment, both on behalf of the new members and of the extant membership to some degree. The recognition of a set of new relationships and responsibilities to persons heretofore outside such consideration implicates change. Whether the required adjustment is a simple one, or requires wholesale renovation, depends in large measure on the nature of the associative relationships themselves, and their elasticity and plasticity. Perhaps to make this point clearer, we might point to the complex adjustments a family endures upon the birth of a child. Or we might consider the tax, social, economic and other implications of a state’s taking in new immigrants. The marginal change may be small, but it still remains a change. Accordingly, the organisational aspect to consent emphasises the actual associating into a group as an act of volition and reason, as one of free will. It makes no expressly moral, normative claims. It remains instead a functional or instrumental idea. The second role, here labelled as ‘normative’, follows from the organisational aspect of consent, and establishes the moral implications to consent. By consenting to join a political association, an individual agrees to submit to and obey the directives of that 13  Simmons, Moral Principles (n 11) 41, 57–69. See also Beran, Consent Theory (n 2) 56 ff; Locke, Two Treatises II (n 10) ch 4, para 95 ff; J Rawls, A Theory of Justice (Cambridge (Mass), Harvard UP, 1971) 108 ff, 335–56; and Philpott, ‘In Defense’ (n 2) 356–57, 363. 14  Beran, ‘Democratic Theory’ (n 3) 36; M Freeman, ‘The Priority of Function over Structure: A New Approach to Secession’ in P Lehning, Theories of Secession (London, Routledge, 1998) 12, 20–21. 15  Buchanan, Secession (n 3) 67 ff, and see T Meisels ‘Liberal Nationalism and Territorial Rights’ (2003) 20 J App Phil 31.

88  Primary Right Theory association.16 These directives generally instruct and compel any given member to act in certain ways or forebear from so acting. Let us call these directives ‘laws’. Obedience arises out of consent: consent to participate in a (political) association entails obeying its laws. By agreeing to enter into associative relationships (especially at the political level), we structure the range and scope of the exercise of our primordial liberty (the choices we make) in virtue of those associative relationships. Consent involves a promise, establishing an agreement between at least two parties. By virtue of the promise, we bind ourselves to act or forebear from acting in the way we have promised. The promise creates expectations on our part and on the part of the correlate party which conform with and accord to the substance of the promise. Such expectations ground claims for their fulfilment, and claims in turn are justified by virtue of the promise.17 Hence, the promising (the consent) serves as authorisation or authority for the making, the pursuit, and import­ antly, the enforcement of those claims. The moral grounds, as commonly expressed, are that we must keep our promises, either as a matter of course (natural law) or sustained, successful social intercourse. Translating all this to consent-based political theory, our consent to being members of a political organisation establishes contact between us and the state whereby we authorise the state to act on our behalf, for our benefit, including the exercise of coercive power for the general good. Our consent obliges us morally and legally to obey the directives of the state, namely the law. A state’s legal authority over an individual derives from that individual’s consent to be a member of that state. Accordingly, consent forms the moral basis to political obligation and the legitimation of state authority over the individual. And consent is more than a mere promise, because we are also agreeing to the actions and authority of third parties, not immediately joined as promisors (viz the state).18 It follows from this, as is noted in those models for secession, that the legitimation of a state’s authority via consent also grounds state sovereignty. A state has sovereignty in virtue of its claim to legal authority over the individual. Authority over an individual arises by virtue of that individual’s consent. Because, for liberalism, the individual is ultimately the locus of sovereignty through basic liberty, that sovereignty thus extends to the state.19 An obvious and central question is therefore the nature of the consent necessary to effect an association. CONSENT, OBLIGATION AND SECESSION

Relying on consent as a ground for political obligation and legitimacy suffers from the central weakness of over-simplifying reality. And inasmuch as a right to secede operates on the basis of a consent model, that right is similarly impaired. The rather straight­  Simmons, Moral Principles (n 11) 70, 192, and Green, Authority of the State (n 9) ch 8.   W Hohfeld, ‘Fundamental Legal Conceptions I and II’ in his Fundamental Legal Conceptions (W Lock (ed), New Haven (Conn), Yale UP, 1924) 36, 38–39 (analogous to the right–claim–duty equilibrium). See also H Steiner, ‘Territorial Justice’ in P Lehning, Theories of Secession (London, Routledge, 1998) 60, 63. 18  Simmons, Moral Principles (n 11) 76, and Wellman, ‘Defense of Secession’ (n 4) 150 ff; 160 ff (‘hybrid model’) and his ‘Toward a Liberal Theory of Political Obligation’ (2001) 111 Ethics 735, 742 (‘Samaritan principle’). 19   Beran, ‘Democratic Theory’ (n 3) 35; Freeman, ‘Priority of Function’ (n 14) 21, and Buchanan, Secession (n 3) 108–10 (in the context of territory); and see T Pogge ‘Cosmopolitanism and Sovereignty’ (1992) 103 Ethics 48. 16 17



Consent, Obligation and Secession 89

forward realisation that the conditions necessary to establish any form of real consent just do not obtain in society has driven the successors to Locke and the other early Liberals to reformulate the nature of the consensual basis to political obligation. That realisation originates out of a perception that we do not, if ever at all, actually consent to our polit­ical and social obligations. Nor do we have a real alternative but to comply with them. As Hume observed: Can we seriously say that a poor peasant or artisan has a free choice to leave his country when he knows no foreign language or manners and lives from day to day by the small wages he acquires? We may well assert that a man by remaining in a vessel freely consents to the dominion of the master, though he was carried on board while asleep and must leap into the ocean and perish the moment he leaves her.20

Indeed, we are born into our political and social circumstances: they are more or less thrust upon us. Inasmuch as we would seek to preserve some consensual element to political obligation, we must accordingly accept a decreasing gradation of consent. This leads us in the first instance to ‘tacit consent’, and thereafter to ‘constructive consent’ under a fairness principle or based on the justness of the institutions. Although Locke had himself appreciated the difficulty, and had to a degree already foreshadowed these other grounds, he nonetheless continued to treat them as direct instances of consent simpliciter.21 What distinguishes later extrapolations from Locke’s treatment is not only their relatively greater sophistication and nuances, but more importantly, a shift of conceptual emphasis away from consent itself. The starting point has unquestionably moved from the joining of a group to being a member of a group, and from a deliberate act of binding oneself, to an act which, in the right setting, has the effect of binding oneself. Certainly consent remains. But it is of diminished importance, and at best implicit in that conduct postulated as the determinative condition for political obligation. By implication, the nature of a right to secede will likewise alter according to the precise formulation of the consent-derivative model used. I turn now to these formulations and their reflection in a right to secede. Insufficiency of Tacit Consent Tacit consent is a deliberate, but indirectly expressed, commitment to a certain state of affairs (including, at its most broad, certain actions or forbearing from same).22 By generally accepted definition, consent must be intentional, and must be voluntary.23 The qualification of ‘tacit’ therefore refers to the sign or expression of consent, and not to the nature of the consenting act itself.24 Accordingly, although tacit consent would of course be unexpressed directly, but instead evidenced by some act (omission principally, or commission), the nature of that act would remain a deliberate commitment to that state of affairs for which the consent was sought. The standard conditions which qualify such 20   D Hume, ‘Of the Original Contract’ in his Essays Moral, Political, and Literary (E Miller (ed), Indianapolis, Liberty Classics, 1987) 465. 21  Simmons, Moral Principles (n 11) 60–61, 72–73, 79. 22   Following Simmons, Moral Principles (n 11) 81–84. 23   See, eg J Plamenatz, Consent, Freedom, and Political Obligation, 2nd edn (Oxford, Oxford UP, 1968) and Simmons, Moral Principles (n 11) 77. 24  Simmons, Moral Principles (n 11) 80, 84 (a ‘mode of expression’).

90  Primary Right Theory an act (apart from ‘Aye, I consent’) as tacit consent are generally fivefold: (1) the situation clearly requires consent, and the participants are aware thereof (intention criterion); (2) a reasonable opportunity to register effective objections and dissent (volition and intention criteria); (3) a limitation period after which no dissents are acceptable (intention criterion); (4) reasonable and effective means of registering clear consent or dissent (volition and intention criteria); and (5) the consequences of dissenting must not of themselves coerce a consent in place of a dissent (volition criterion). Hence, tacit consent remains a deliberate, and deliberative, act of consenting to certain arrangements, and not merely accepting those arrangements after the fact. It is, in effect, remaining silent when asked to voice any dissent or opposition. The tacit consent proposal is hardly convincing. It is unquestionably clear and certain that we have neither tacitly consented to our political associations qua state, nor do we have any real, reasonable opportunity to exercise tacit consent in modern states and under present-day constitutional law. Even if we are immigrants, this does not necessarily indicate our consent to the state and political obligations now governing us, unless of course we made the necessary conscious, voluntary and intentional choice in compliance with the five baseline standards set out above. And when does an immigrant have a right to vote, let alone a right of dissent? For those of us born into a state, we had no opportun­ ity to agree or disagree with the situation – it was simply given to us. Nor is our remaining in a state any evidence of tacit consent, since economic or social factors may eviscerate any real chance to emigrate, not to mention legal or political restrictions. Tacit consent fails to account for the actual state of affairs, by hypothesising from a non-existent ‘original position’ wherein the five baseline conditions apply or did apply. Tacit consent fails to establish a suitable general ground for political obligation.25 Putting this fundamental objection aside, a right to secede based on tacit consent would require circumstances wherein consent to a political association was sought, with a reasonable opportunity to register clear and unambiguous consent within a certain time-frame, and without the consequence of any dissent being so detrimental to the objector as to coerce a consent. The exercise of the right itself would then be the registering of that effective dissent in the manner and at the time prescribed, in circumstances calling for either consent or dissent. It should be emphasised that the exercise of the right is itself not tacit.26 Tacit consent represents at its heart a forbearance of dissent at the critical juncture of forming a political association. The registering of a dissent is in fact on a par (as a mode of expression) with express, direct consent. Instead, the ‘tacit’ element relates only to the condition of state formation, consistent with the general approach of political theory to secession. The critical point becomes therefore the circumstances wherein consent to a political association was sought. And we face the general problem of a substantial elapse of time between the actual formation of the state and the secession crisis now at hand. Now we can side with Thomas Jefferson, arguing that each day calls for an active re-affirmation of our consent to a given political association (and our opportunity for dissent likewise reconferred).27 This is truly a continuing 25   So conclude, among others, Simmons, Moral Principles (n 11); Wellman, ‘Defense of Secession’ (n 4) and ‘Political Obligation’ (n 18); and R Dworkin, Law’s Empire (Cambridge (Mass), Belknap/Harvard UP, 1986) 192–93. 26  Simmons, Moral Principles (n 11) 88 ff. 27   See, eg J Viteritti, ‘Municipal Home Rule and the Conditions for a Justifiable Secession’ (1995) 23 Fordham Urb LJ 1, 8–10, 25–26; and J Falkowski, ‘Secessionary Self–Determination: A Jeffersonian Perspective’ (1992) 9 Boston U IL J 209.



Consent, Obligation and Secession 91

‘no-fault’ right to withdraw from any political arrangement deemed unsuitable or not advantageous at the time. Or we must identify those more momentous occasions in a state’s existence equivalent to a ‘formation’ event, a ‘constituting’ event. Now, surely secession requires more than the mere expression of a dissent to present political arrangements. The Jefferson ideal simply does not square with practice or experience. The existence of dissent and disagreement, and the mechanisms of obtaining consensus and compromise, are part and parcel of modern ‘constitutional democracies’. It also pays little heed to the operation of the majoritarian premise, whereby a majority in a group will also bind a dissenting minority. At its highest, such a dissent would prevent the union of two political associations into a larger one. Dissent would block the execution of the union. And the relevant time and circumstances would be at state formation. But clearly this is no secession, where population and territory separate themselves from an extant state. We are left with the second option, when a constituent association might opt out of some constitutional modification. Taking such a position requires us to identify which constitutional amendments (not all) could attract a right of dissent. The right would either be explicitly set out in a current constitutional instrument or in the amending proposal, or implicitly formulated by way of general constitutional law (such as case law) or constitutional convention. Where a dissent / opt-out provision does exist in the constitution (as in Canada) or in the amendment itself, we generally encounter in those provisions either some form of compensation for the dissenting constituent or an exemption from the amendment.28 Here I would make two observations. First, by providing for a dissent and stipulating what remedies a dissent may occasion, a constitution may reasonably be said to have excluded any other possible aspects of dissent, notably secession. Secondly, and abstracting from those prescribed remedies, nothing in a dissent itself then necessarily compels us to a right to secede. In other words, perhaps secession is not inherent in a dissent right. The range and scope of such a ‘constitutional dissent’ may simply just be a right to compensation or an exemption from certain provisions. This point can be developed further under the following rubric of an implicit dissent right. We may disregard at the outset as implausible and impractical the extreme position that all constitutional amendments carry an inherent implicit right of dissent leading otherwise to secession. It is self-evident that, even generously considered, many constitutional amendments do not realise a fundamental change in the constitutional structure, but merely develop that structure, or clarify it, along currently generally accepted lines.29 Some may indeed institute such change, such as the federalisation of a unitary state (as with Belgium beginning in the 1970s) or a change to the organisation of government. But this pushes us to develop criteria to distinguish amendments in the nature of ‘state formation’ from non-formation events. For now, suffice it to assume that such criteria exist whereby certain types of amendment so alter the basic or overall nature of a state’s constitution, or its present make-up, as to qualify in effect as creating a new constitution. Even on these terms, the mere expression of dissent is more than likely insufficient and 28   Constitution Act 1982 (Can) ss 38(3) and (4) (dissent right) and s 40 (compensation for dissent in prescribed circumstances). 29   Hence Ackerman’s theory of ‘constitutional transformations’ to account for those amendments which were precisely large-scale and non–incremental: ‘Revolution on a Human Scale’ (1999) 108 Yale LJ 2279, We The People: Foundations (Cambridge (Mass), Belknap/Harvard UP, 1991) and We The People: Transformations (Cambridge (Mass), Belknap/Harvard UP, 1998). See also S Griffin, ‘Constitutional Theory Transformed’ (1999) 108 Yale LJ 2115 and S Levinson, ‘Transitions’ (1999) 108 Yale LJ 2215.

92  Primary Right Theory ineffective for a withdrawal of that constituency from the larger association. First, the majority principle could apply to bind the dissenting minority in any event, at least on analogous terms to obliging a dissenting minority to obey laws with whose enactment they disagree. (And as noted above, the need for governance by majority decision tells significantly against a consent-based theory of obligation.) Or some other principle operative in the constitutional and political practice of the state could deny the relevance of dissent or define the class of relevant dissenters in a limited way, but advantageous to the state. Or it could expand the class of persons entitled to vote so as to dilute any contrary votes. For example in Canada, the 1992 Charlottetown Accord, containing inter alia special status for Québec as a distinct society, was put to a nationwide public vote by the federal Conservative government, only to be defeated by non-Québeckers.30 This strategy was seemingly intended to avoid the pitfalls of an earlier failed attempt at a similar privileging of Québec under the 1989 Meech Lake Accord, which required the approval of each provincial legislature. Manitoba and Newfoundland withheld consent. The two Québec secession referenda, of 1980 and 1995, were limited to Québec voters – naturally with the intent of obtaining the ostensible ‘democratic legitimation’ of a ‘democratic majority’ to pursue the secession programme. Further constitutional law examples concerning electoral boundary disputes, delimiting the constituencies in which one may register consent or dissent, and elector qualification disputes are legion.31 The Canadian ‘Patriation References’ provide a good example combining both aspects of majoritarianism and constitutional practice to shut down the dissent of the Province of Québec to proposed amendments to the Canadian Constitution.32 The then Liberal federal government under Pierre Trudeau sought to domesticate the power to amend the Canadian Constitution, removing thereby the formality (perfunctory since at least 1933) of seeking parliamentary approbation at Westminster, and to entrench a Bill of Rights. Québec demurred.33 The federal government pressed ahead, despite the lack of Québec consent. Québec, Manitoba and Newfoundland challenged the constitutional authority of the federal government to obtain from Westminster a binding constitutional amendment. The three provincial reference cases were duly appealed to the Supreme Court of Canada and heard there as the conjoined Patriation Reference case.34 The Patriation Reference case established that no extant constitutional law required unanimous provincial consent to an amendment affecting provincial powers or the 30   See generally J Webber, Reimagining Canada (Kingston, McGill-Queen’s UP, 1994) 121–76; K McRoberts, Misconceiving Canada: the Struggle for National Unity (Oxford, Oxford UP, 1997) 190–221; J Woehrling ‘L’évolution et le réaménagement des rapports entre le Québec et le Canada anglais’ in J Woehrling and J-Y Morin (eds), Demain, Le Québec: choix politiques et constitutionnels d’un pays en devenir (Québec, Septentrion, 1994) 1, 59 ff. 31   On boundary disputes see, for Canada, eg Reference re Election Boundaries (Sask) [1991] 2 SCR 158 and Reference re Electoral Divisions Statutes Amendment Act, 1993 (Alberta) (1994) 119 DLR (4th) 1 (AB CA). For the United States, see, eg Baker v Carr 369 US 186 (1962); Reynolds v Sims 377 US 533 (1964); and Davis v Bandemer 478 US 109 (1986). On voter qualification (not including the right of prisoners to vote) see, for Canada, eg Haig v Canada (Chief Electoral Officer) [1993] 2 SCR 995 (residency requirements). 32   On the patriation saga, see generally J Hurley, La modification de la constitution du Canada (Ottawa, Queen’s Printer Canada, 1996); A Tremblay, La réforme de la constitution au Canada (Québec, Eds Thémis, 1995) 46 ff; D Haljan ‘Negotiating Québec Secession’ [1998] RBDI 190, 205–7 (and references therein); and Webber, Reimagining Canada (n 30) 92 ff. 33   As to the reasons for which see, eg Woehrling, ‘L’évolution et le réaménagement’ (n 30); E McWhinney, Canada and the Constitution 1960–1982 (Toronto, Toronto UP, 1982); and the essays in K Banting and R Simeon (eds), And No One Cheered: Federalism, Democracy, and the Constitutional Act (Toronto, Methuen, 1983). 34   Reference re Resolution to Amend the Constitution [1981] 1 SCR 753.



Consent, Obligation and Secession 93

federal-provincial division of powers. A convention did exist, arising in part from the nature of federalism, requiring substantial provincial consent to such an amendment; but as a convention it was not legally enforceable. Prior to 1981, the federal government did consult the provinces before submitting a joint address to Westminster in respect of constitutional amendments affecting provincial powers. But insofar as this might have constituted some form of convention, the Court found it was neither legally binding, nor significant after 1981 when the amending power did become domesticated and provincial ratification became requisite for amendments. Québec tried its hand once more in the Québec Veto Reference claiming a special power of veto over constitutional amendments affecting the legislative competence of that province.35 This too was grounded in the idea of a constitutional convention. Here too the Supreme Court rejected Québec’s contention, relying on its decision and reasoning in the Patriation Reference.36 We may also combine the objections based on majoritarianism and constitutional practice into a broader, more abstract objection concerning the nature of democratic constitutional practice. That process necessarily involves consultation and discussion of policy objectives and proposals, whereby diverse and opposing viewpoints ultimately come to some sort of workable consensus and compromise, or even no deal at all. This entails that a dissent from a proposal has already been accounted for, and that the final outcome reflects implicitly or explicitly the concerns voiced in the dissent. It would follow that the right to dissent has been exercised and exhausted. Conferring or recognising a further right of dissent applicable to the consensus proposal at a later stage of the political process would treat the earlier expression of dissent as invalid and ineffective, a waste of time and resources – and by extension, likewise, the entire democratic process. It would allow parties to recant and resile from (or in less noble terms, break or ignore) promises made earlier. A rejoinder hereto would emphasise the requirement of an effective dissent. After all, the negotiation process may not be representative of all voices and interests.37 But this necessarily equates dissent with a veto or automatic exemption, whatever the nature of the negotiation process leading to the amendment. The expression of dissent must mean more than just giving voice to discontent. The absence or retraction of consent must be real or concrete, and not merely potential or threatened. Underlying majoritarian rule is an assumption that citizens have equal access and opportunity to voice opinions and arguments influencing the course of debate over general policy. Dissent-as-exception assumes differences (indeed, irreconcilable ones) exist. This rejects equality simpliciter, and substitutes therefor a version of ‘substantial’ or ‘differential’ equality.38 Certain   Reference re Québec Veto [1982] 2 SCR 793.   Leclair attempts to extrapolate from the Supreme Court’s reasoning and decision in the Reference re Secession of Québec [1998] 2 SCR 217 that such a veto would now be recognised and enforced: J Leclair, ‘The Secession Reference: A Ruling in Search of a Nation’ (2000) 34 RJT 885. See also his ‘Canada’s Unfathomable Unwritten Constitutional Principles’ (2002) 27 Queen’s LJ 389. 37   NWAC v Canada [1994] 3 SCR 627 (aboriginal women’s advocacy and interest group not entitled to separ­ate representation in constitutional conference and discussions); Penikett v Canada (1987) 45 DLR (4th) 108 (YT CA) and Sibbeston v Canada (1988) 48 DLR (4th) 691 (NWT CA) (no constitutional breach where Territory governments excluded from constitutional amendment agreement). 38   By analogy, see, eg R Dworkin, ‘Foundations of Liberal Equality’ in his XI Tanner Lectures on Human Values (Salt Lake City, Utah UP, 1990) 1; and C Taylor, ‘The Politics of Recognition’ in A Gutman (ed), Multiculturalism: Examining the Politics of Recognition (Princeton (NJ), Princeton UP, 1994) (‘politics of equality’ and ‘politics of difference’). 35 36

94  Primary Right Theory differences among citizens arguably require separate or different rules and application thereof in order to achieve true ‘substantive’ equality. Hence, ‘effective’ comes to mean ‘exemption from application’. But a claim to exemption under democratic constitutionalism encounters significant difficulty co-existing with the majoritarian operation of modern democracies. First, the enforcement of human rights, especially equality rights and political rights, opens the real possibility of full and equal participation by all citizens in the democratic process, and of striking unfair or discriminatory legislation. By ‘full and equal participation’, I do not expect the ideal, an absolute measure of theoretical perfection, but instead a relative measure, across the entire range of a country’s citizens (such that every one can expect the same opportunities, whether narrow or expansive, depending on the system itself). Hence, the system as it stands does already account for an ‘effective’ dissent, not extending to secession. Secondly, if the entire structure and coherence of a political association (indeed, any association) is to withstand the erosive or fragmentation effects of exemptions to policy and rules intended for all members, a claim for exemption must rely upon a special or distinct status for those claimants (conferring in effect special or additional rights) which constitutes, or already exists as, one of the founding associative commitments of the group. Take, for example, the distinct status claims for Québec francophonie, and the rights associated with that status. These are founded on Québec’s interpretation of Canada’s 1867 origin and the operation of its constitutional and political system.39 Since the 1960s (at the latest), Québec has framed its position, financial and fiscal policy, and provincial claims for jurisdiction locally and internationally, against the federal government and the rest of the provinces on this basis. Indeed, one of the central objectives of the failed 1985 Meech Lake and 1991 Charlottetown Accords was to introduce such a ‘distinct society’ provision in favour of Québec into the Canadian Constitution. Hence, the political association must have that distinct status built into its framework, or it must apply equality across the board. Otherwise the differentiation among citizens will violate the generality and consistency principles of the rule of law.40 In the resultant administrative anarchy, the larger political grouping will fragment into smaller groups where members can expect equal, consistent application of rules, benefits and burdens. In the context of secession and political power, this special status (and the character of those smaller groupings) inevitably revolves around some aspect of nationalism. Two remarks are pertinent here. First, the need for special status indicates that consent simpliciter is an insufficient theoretical basis for secession. Political obligation is better characterised not by consent, but by the underlying relationships between the various constituents. Secondly, the need for special status likewise indicates that secession is not a primary right (insofar as it may be characterised as a right), but a remedial right, one based upon some form of just cause. The violation of that special status, or rights derived from that status, would be a precondition to the existence and exercise of any right to secede. 39  See, eg Webber, Reimagining Canada (n 30) (suggestion of an ‘asymetrical constitution’); Woehrling ‘L’évolution et réaménagement’ (n 30); J Brossard, L’accession à la souvereineté et le cas du Québec (Montréal, PU Montreal, 1976) and McRoberts, Misconceiving Canada (n 30). 40   Including not only law but generally all the rules (political, social, legal) by which a society governs and administers its affairs: TRS Allan, ‘The Rule of Law as the Rule of Reason: Consent and Constitutionalism’ (1999) 115 LQR 221, 229, 231, 236.



Consent, Obligation and Secession 95

That a tacit consent model for secession appears to offer no reasonable solution to overcoming the majoritarian premise helpfully demonstrates that a political obligation, and more broadly an obligation undertaken by participation in a group, does not rely merely on some form of consent. Although consent may have some role in the initial acceptance of the obligation, that obligation does not survive by virtue of some form of continuing consent. The obligation exists not only in function of the individual, but in function of the group at large. Thus, mere dissent is not sufficient to repudiate an extant obligation. Something over and above dissatisfaction or discontent is necessary to effect and justify unravelling the ties of membership and to overcome being bound (as a dissenting minority) by majority decision. Thus, any account of justifiable secession, and an effective right to secede, must include criteria not only as to when a dissent may overcome the majoritarian premise, but also as to when the dissent is sufficient to abrogate the complex relationships existing within a larger political association. Needless to say, this realisation pushes us closer to a remedial, just-cause, model for secession. I freely acknowledge that my version of tacit consent presents a somewhat narrower, more constricted version of the concept than perhaps otherwise understood by other commentators. More specifically, the definition of tacit consent, drawn as it is from the incisive and cogent critique of Simmons in Moral Principles and Political Obligations, excludes broadening tacit consent to cover implied consent based on the enjoyment of benefits provided in and by the political association.41 The acceptance of benefits arguably can establish a measure of consent, albeit not strictly a deliberate act, the content of which is an intention to be bound or to belong to a group. The consent at issue is the acceptance of the consequences which follow from the acceptance of benefits conferred by a group and implying reciprocity. Even an unsolicited gift may create a relationship from which certain obligations may follow, although not necessarily the full range of legal obligations implied by membership in a political association.42 Simmons persuasively argues for the narrower conception as properly following from the conditions and nature of consent which demand a deliberate (voluntary, intentional) commitment.43 With Simmons, I certainly acknow­ ledge that the enjoyment of benefits hypothesis does constitute another possible general basis for political obligation. Whether a successful one or not, it depends on its own merits and not those of the tacit consent hypothesis. So it is now to the former, the next in the line of diminishing importance for consent, that I turn. Insufficiency of the Fairness Principle The fairness principle, briefly and broadly, holds that insofar as an individual enjoys benefits arising out of, or conferred by, a political association, that individual is also morally bound to assume the burdens consequent upon such an association, the chief of which is to obey the laws of the association.44 We might add further nuance to this statement of 41  Simmons, Moral Principles (n 11) 83–85. Dworkin, Law’s Empire (n 25) 192–93 applies the same critique, although without reference to Simmons. 42   Diverging here as well from J Rawls, ‘Legal Obligation and Fair Play’ in S Hook (ed), Law and Philosophy (New York, New York UP, 1964) 1. 43   Even as against Locke: Simmons, Moral Principles (n 11) 79–83. 44   See, eg HLA Hart, ‘Are There Any Natural Rights’ (1955) 64 Phil Rev 175; Rawls ‘Legal Obligation’ (n 42); G Klosko, The Principle of Fairness and Political Obligation (New York, Rowman & Littlefield, 1992); and J Waldron, ‘Natural Duties and Special Ties’ (1993) 22 Phil and Pub Affs 3.

96  Primary Right Theory principle by approaching it from the perspective of the association, rather than from that of the individual. This would allow us more easily to identify the significant elements relating to consent and hence to the nature of the right to secede. Assuming a scheme of social co-operation (the association) which offers mutual benefits and just gains to participants on condition that they co-operate, and assuming further that such co-operation will occasion some measure of burden upon, and sacrifice by, any participant, then any person who has accepted any of these benefits is bound – is obligated – to co-operate in that scheme.45 It follows that such co-operation is, or includes, obligations to obey the law, namely those rules pertaining to the scheme of co-operation. Note here the shift from individual to association carries with it the introduction of co-operation among the members, something not at the fore in an individualcentred account of the fairness principle. And note further that co-operation relies upon not merely the existence of an association but, significantly, the mutuality of members. Mutuality implies a relationship, one defined by equivalence or balancing of sorts whereby the measure of one member to another informs the nature and scope of cooperation between them, and thus the measure of fairness. On this more sophisticated view of the fairness principle, political obligation and political legitimacy depend upon a calculus of reciprocity whereby obligations arise merely from an individual’s participation in some (mutual) benefit, whether or not any consent to participate in those benefits may be explicitly ascribed to the individual. All these elements were already implied in the more general formulation of ‘acceptance of benefits’, and needed just to be unpacked.46 In other words, it is not a necessary element that an individual give explicit or tacit consent to become a member of some mutual benefit scheme for that individual to assume obligations (voluntary or not) and be compelled accordingly. Recall that the tacit consent approach grounded obligations and coercion upon an independent act of consent to participate in the first place. On the fairness principle, an individual has an obligation to co-operate in the mutual benefit scheme in which he finds himself by virtue of the (moral) demand of reciprocity. The moral demand of reciprocity (the obligation of reciprocation, otherwise expressed) may conveniently be divided into three correlative aspects: (C1) the accept­ ance or taking of benefits simpliciter; (C2) the mutuality of benefits, or the balance of taking benefits; and (C3) the relationship wherein those benefits are conferred. The correlative nature of these three conditions imply their inseparability, such that a benefit under condition (1) implies conditions (2) and (3). Likewise, C2 implies C1 and C3; just as C3 implies C1 and C2. Put in a more colloquial way, under the fairness principle there is no free lunch. Assume that a person has taken a benefit (1), the production or conferral of which necessitates some burden or sacrifice generally, or the distribution of which necessitates some restriction or burden (2), and the production, conferral or distribution of which is a co-operative or associative effort (3). Now, insofar as the person has taken the benefit, that person has subjected himself to conditions C2 and C3 which attach to the benefit itself. This entails that the person has brought himself within the association under C3 regarding the benefit, and under C2 for the burdens. This correlative aspect, 45   Rawls, ‘Legal Obligation’ (n 42) 9 ff and his Theory of Justice (n 13) 112 (developing an insight of Hart, ‘Natural Rights?’ (n 44)); Simmons, Moral Principles (n 11) 102–8. See also H Beran, ‘What is the Basis of Political Authority?’ (1983) 66 Monist 487. 46   Developed by Wellman into the ‘Samaritan’ principle: C Wellman, ‘Liberalism, Samaritanism, and Political Legitimacy’ (1996) 25 Phil and Pub Affs 211, and see his ‘Political Obligation’ (n 18).



Consent, Obligation and Secession 97

grounded in the elements of relationships and balancing, frame the idea of reciprocity, which in turn informs the idea of mutuality. Now, before proceeding to the tripartite fairness principle as defining the right to secede, and its various weaknesses and problems, let me quickly explain how the fairness principle fits in the ‘consent as primary’ categorisation. It would seem beyond dispute that the fairness principle diminishes the relevance of consent, or indeed treats it more or less as irrelevant. Recall that the inheritance of consent theory from Locke and Rousseau pinned obligation and coercion upon an agreement to be subjected thereto, an agreement to join or participate in such a scheme, of which a necessary aspect was obligation and compulsion. By contrast, the fairness principle focusses upon the effects of an individual’s effective participation in a benefit scheme, rather than the individual’s decision to join the scheme, to participate in it. A fairness treatment would appear simply to skip the question of consent entirely. Instead, the emphasis falls upon the receipt of benefits, or their mutuality, or the relationship wherein they were conferred, or upon some combination of all three. In none of these components is consent a necessary element. We may enjoy benefits, such as public goods, simply by virtue of being at the right place at the right time.47 Or benefits conceivably may be forced upon us, even if we disagree.48 Mandatory inoculations, water fluoridation and lighting along streets at night represent common examples. Whether a benefit implies some corresponding burden or sacrifice does not depend upon consent: the nature of the benefit is a matter separate and apart. Lastly, our consent is not necessary for us to be members of an association. As an easy example, we are born into a political association as citizens of a particular country. Further, we are treated as being part of a particular culture, race or creed, none of which presumes our prerequisite consent. From this brief undetailed listing, we might conclude that the fairness principle finds no place in consent theory, taken strictly in the Locke sense.49 We should be careful to distinguish here two separate, but related, questions. The first, narrower, question addresses the actual role, if any, of consent in explaining polit­ ical obligation and political legitimacy. In other words, even though we may not consent to join an association and not directly consent to take up its benefits, yet does the fact that we remain in that association, taking up its benefits accruing through membership, allow us nonetheless to formulate a constructive consent? The second, wider, question following from this line of enquiry, asks whether the premise of consent is at all necessary to maintain liberalism, or a like justifiable theory for a political system. In other words, can we attain the same objectives as, and hold the same values of, liberalism – but without having to rely on some concept of consent? This latter issue goes well beyond my present remit. But the former question does have significance here. Inasmuch as we continue to take up the benefits offered by an association, and to remain in an associative relationship, it is strongly arguable that a form of consent to obligation and legitimacy does indeed exist. That is, the fairness principle may well focus on obligations of reciprocation, but the elements thereof imply the necessary consent to  Simmons, Moral Principles (n 11) 117 ff, 122 ff, 138 ff.   R Nozick, Anarchy, State and Utopia (New York, Basic Books, 1974) 90 ff (discussed in Simmons, Moral Principles (n 11) 118–36; and Dworkin, Law’s Empire (n 25) 193–95). 49   Yet see Waldron, ‘Natural Duties’ (n 44), and quaere whether Wellman, ‘Samaritanism’ (n 46) and ‘Political Obligation’ (n 18) seeks to revive a form of fairness and gratitude. See also W Ross, The Right and the Good (Oxford, Oxford UP, 1967), and J Plamenatz, Consent, Freedom and Political Obligation, 2nd edn (Oxford, Oxford UP, 1968). 47 48

98  Primary Right Theory the political structure, as postulated by (classical) liberalism. Moreover, from another angle, when we secede, the fairness principle does not on its face require anything more than a rejection of at least the taking of the benefits and the associative relationship, if not also the mutuality or balancing element as well. A mere rejection or denial of those components to an obligation of reciprocation can be little other than a withdrawal of some underlying, implicit, tacit consent. The fairness principle can thus be understood not to deny consent, but to treat it as implied in the conditions it posits as necessary to exist. Varying the emphasis we attach to each of the three conditions can produce markedly different accounts of the fairness principle, as indeed has occurred for each of the three. The greater the stress on an acceptance of benefits, the closer the link or attraction to a consent-oriented model. That model is sufficiently in doubt as to detain us no further. Placing emphasis on the fairness of taking benefits has led Ross and Plamenatz in particular to develop a ‘debt of gratitude’ approach to political obligation.50 They extrapolate from the private relationship of gratitude for benefits or favours conferred, a public duty or obligation to obey a government. That obedience is the relevant and appropriate means of showing gratitude, or repaying that debt of gratitude. That is, inasmuch as we voluntarily accept (needed) benefits which a government would provide us, and produced at some cost and burden, a basic concept of fairness binds us to repay or reimburse the government in a relevant effective way.51 That way is by obedience.52 Quite apart from serious concern about vagueness to the concept of ‘gratitude’, and the translation of a personal relationship to the public domain, gratitude as a theory of political obligation is also fraught with considerable problems relating to the necessity of obedience as the only or exclusive means of effective discharge of the debt of gratitude.53 Lastly in this survey, highlighting the third condition or relationship tends to draw out a more abstract, institutionalised concept of fairness based, as with Rawls, on ideas of justice.54 A relationship among persons may be characterised by fairness, equality, (inter)dependence: in general terms, the components of justice. Hence, stimulating and maintaining that relationship depends on adhering to justice and just conduct, including obeying the commands of justice. The value and necessity of justice being immediately conceded, we have an innate, inherent duty to pursue justice. It is a duty, and not an obligation voluntarily, consciously or tacitly undertaken. Hence, for Rawls, a ‘natural duty of justice’ exists and compels us to support and obey ‘just institutions’ when they apply to us, or to create them when they do not. Those institutions represent a habitus of established relationships. Simmons, however, demonstrates persuasively the central weakness to this position, being the imposition of a political obligation by an institution without any act on our part to bind ourselves thereto.55 Only when we have made the just institutions apply to us do we undertake the duty to support them. In other words, there is still room for a consent of sorts in our voluntary association with another, so as to enter into a relationship leading to mutuality and obligations of reciprocation.   See, eg Ross, The Right and the Good (n 49) and Plamenatz, Consent (n 49).  Simmons, Moral Principles (n 11) 164–67 (citing as sources Socrates, Kant and Sidgwick). 52  The only ‘effective currency’ for that debt: N Henry, ‘Political Obligation and Collective Goods’ in R Pennock and J Chapman (eds), NOMOS XII: Political and Legal Obligation (New York, Atherton, 1970), and cited in Simmons, Moral Principles (n 11) 186. 53  Simmons, Moral Principles (n 11) 157–80. 54  Rawls, Theory of Justice (n 13) 108 ff, 333 ff; see also his Political Liberalism (New York, Columbia UP, 1996). 55  Simmons, Moral Principles (n 11) 147–56. 50 51



Consent, Obligation and Secession 99

Now, there is not much ground to be gained here in pursuing a detailed examination of these variants to the generalised fairness principle, already done expertly elsewhere.56 Instead, suffice it for my purposes here to recognise in these variants that political obligation and political legitimacy are not simply consent-based. Rather, the formation of political obligations will involve an amalgam of consent, association, mutuality and reciprocity. As soon as ‘fairness’ or ‘gratitude’ is introduced, we have irretrievably started along the path of mutuality, reciprocity and associative commitments. Accordingly, the dissolution of those obligations must also address in turn those same elements. As such, secession cannot be the withdrawal of consent simpliciter by way of a mere rejection of the benefits of political association, but must also account for extant obligations, mutuality and reciprocity within that political association. For a better understanding of this contention, let us convert secession into an expression of the fairness principle set out above. Secession is prima facie either a decided rejection of the benefits and burdens of citizenship in a state, or a claim that those benefits are being denied. First, as a rejection, a secession claim would seek to abrogate the tripartite obligations of reciprocation. Under C1, benefits are no longer accepted. It would follow that refusing to take up benefits prevents the invocation of correlative C2, mutuality. Alternatively, the rejection of benefits may also be understood as itself a rejection of mutuality. The claim also signals an intention to withdraw from the underlying associative relationship (C3). But a problem arises when characterising political association as the receipt of benefits. Merely rejecting benefits is not sufficient. The termination of the associative relationship does not follow simply therefrom. It seems evident that we may refuse one or more benefits at any time without denying the currency and continuation of the underlying relationship. And we can treat the rejection of all benefits or what might be considered as benefits constitutive or defining the relationship as circumstantial evidence of an intention to end the relationship itself. The relationship exists, in other words, independently of the immediate conferral of the benefits. Likewise the purported termin­ ation of the relationship does not itself suffice if the alleged seceding party continues with the uptake of the same (type of) benefits, as in the case of a proposed secession followed by a so-called ‘sovereignty association’. Either the purported resiling is ineffective or a sham, or this continued acceptance of benefits would signal only a varying, but no rupture, of the former underlying relationship (for the purposes of obligations of reciprocation). At minimum then, correlativity under the fairness principle requires of secession at least a rejection of benefits and the additional step or intention of terminating the underlying relationship. While the rejection of benefits certainly constitutes a unilateral act, the termination of the underlying correlative relationship does not. The unwillingness to participate in a relationship can indeed certainly bring about a frustration or ending of present conduct under the rubric of that relationship. But this is only necessarily true for a private, person-to-person relationship. Associative relationships, of the sort to characterise and define political obligations, will continue to control and govern individuals as long as

56   In addition to Simmons, Moral Principles (n 11), see, eg J Charvet, The Idea of an Ethical Community (Ithaca (NY), Cornell UP, 1995) (individualist focus to morality fails to integrate self-interest with an outwardly looking external ‘other oriented’ view inherently demanded of a moral perspective).

100  Primary Right Theory those individuals remain within the jurisdiction.57 They retain their compulsive and coercive nature in the face of civil disobedience in part because of the majoritarian and procedural character to modern democratic states. Institutions will continue to enforce rules as long as the majority supports those rules and the enforcement procedure. They also retain their general coercive nature because the relationships are not bilateral, but multilateral, extending between citizens and various levels of government institutions. The relationship will subsist, including a place for the party desiring secession, as long as the other parties are willing to continue thereunder. This means that a seceding party will have to seek the consent of the other parties to the termination of the relationship. Thus, the abrogation of obligations of reciprocation requires the consent or accord of the other parties to the relationship, inasmuch as that termination may reasonably diminish or injure the expectations of the other party under the relationship. For example, several models of primary right secession propose a general principle of compensation, whereby the seceding party makes good what the rump state loses.58 Whether or not such a principle is justifiable and applicable to secession is not immediately relevant here. Rather, the mere fact that compensation is suggested implies and imposes a bilateral aspect upon the simple withdrawal of consent; that is, secession is not the unilateral act predicated under the primary right model. Indeed, if the consent of the other party is required to legitimate a withdrawal from a political obligation (under the fairness principle), we cannot be dealing with a situation of secession which by definition is unilateral. The second possible characterisation of secession under the fairness principle presents secession as a passive acknowledgement that the other parties have brought the under­ lying relationship to an end, by virtue of their refusing to attribute benefits ordinarily due under obligations of reciprocation. In effect, secession here is the acceptance of the others’ repudiation of the underlying relationship. This denial or refusal to attribute benefits may well be rephrased as an act of oppression or injustice, from a political, constitutional context. Critical to this analysis is, of course, what type and magnitude of denial mandates a termination of the relationship, for some types may simply demand compensation whilst preserving the continuity of the relationship. This question pushes us back to the problem of what benefits, promised and supplied, are constitutive for the existence of a state. And we must also define the nature and scope of a ‘denial’ that satisfies a repudiation of the obligations of reciprocation. But setting these difficult issues to one side, it is nonetheless clear that the discussion of secession under this sub-heading has moved beyond the mere (contractual) formalities of consent, repudiation, and so on. The critical elements of mutuality and associative relationships have quickly and seamlessly assumed central importance to the evaluation of an attempt to secede, demanding to be accounted for. In effect, the fairness principle so considered is driving us on its own 57   Echoed in, eg Rousseau, Social Contract (n 10) chs 6 and 7; Dworkin, Law’s Empire (n 25) 189 ff (under the notion of ‘integrity’) and thus his views in Taking Rights Seriously (Cambridge (Mass), Harvard UP, 1978) ch 8 ‘Civil Disobedience’. 58  Buchanan, Secession (n 3) 104 ff, 114 ff, 136 ff; Philpott, ‘In Defense’ (n 2) 377–78, 382–83; Gauthier, ‘Breaking Up’ (n 2) 364–65. In the Canadian context see, eg R Young, The Secession of Québec and the Future of Canada, rev and exp edn (Kingston, McGill-Queen’s UP, 1998); D Drache and R Perrin (eds), Negotiating with a Sovereign Québec (Toronto, James Lorimer & Co, 1992); P Monahan, Cooler Heads Shall Prevail: Assessing the Costs and Consequences of Québec Secession (Toronto, CD Howe Institute Commentary No 65, 1995); and P Monahan, M Bryant and N Coté, Coming to Terms with Plan B: 10 Principles Governing Secession (Toronto, CD Howe Institute Commentary No 83, 1996).



What is Really Consented To? 101

terms away from its very foundational premise of consent as primary, and pushing us to a remedial rights, just-cause version. That suggests the concept of consent is inherently flawed as a definitive term in political obligation. Before tackling that problem, however, I need to tie off two related issues so as to establish the complete groundwork for the final assessment of the primary rights model. WHAT IS REALLY CONSENTED TO?

The nature of the consent right to secede suggests that consent goes to the existence of the state itself, such that a withdrawal of consent is effective to dismantle the state. A possible counter to this replies that the necessary and sufficient consent at issue is in fact consenting to administration by a state, and not to the state, or its existence per se.59 As Rawls submits, it is perfectly consistent with the ideal of personal liberty that our liberalism-inspired consent confirms our agreement to be ruled by a state. That entails its protecting and preserving our liberty. When we realise that we are born into an extant state, and socialised into its operations, we must also recognise the implausibility of any suggestion that we consent to join a state – unless we have immigrated voluntarily. Rather, our power extends to comply or not with the directives of the state administration. The liberty we enjoy as individuals (citizens) is in fact a liberty defined in and through an extant state, not one of our own making. Thus, when we consciously consent to the state, we are consenting not to the political association as such, but to its due administration. A withdrawal of consent, by way of secession for example, does not operate to invalidate the state and disassociate ourselves from it, but instead functions to repudiate our political obligations to obey that particular state administration.60 Thus, a consent-oriented model of political association leads to a right of government reform or, at its highest, a right of rebellion.61 It does not therefore support a right to secede. Secession is a further, independent step following upon a withdrawal of consent. True, it is dependent upon an initial withdrawing of consent, but that is not sufficient to effect a secession. There must exist further reasons why the taking of property and the affirmation of independent sovereignty are necessary. This objection re-iterates in alternative fashion the earlier criticism of the consent model, that consent alone could not sufficiently account for political legitimacy and political obligation. The former entailed the power of the state to coerce validly an individual, to create legally binding rules and coerce their non-observance. The latter spoke to the moral obligation to obey those rules as rules of the state authority. By freely consenting to the state, citizens have bound themselves to obey the laws of that and observe its political processes.62 Because they are born into a state, their consent may no longer 59   See, eg Rawls, Theory of Justice (n 13) 333 ff; Beran, ‘Democratic Theory’ (n 3) (state as agent of the people) and ‘A Liberal Theory of Secession’ (1984) 32 Pol Stud 21, 25–26, and Caney, ‘Self–Government and Secession’ (n 6) 355 (drawing upon J Raz, The Morality of Freedom (Oxford, Oxford UP, 1986)). 60  Buchanan, Secession (n 3) 10 ff. And this version echoes more distinctly the classic, Locke-inspired notion of a right to rebel: Two Treatises II (n 10) para 222 ff. 61   Classic liberal ground: Locke, Two Treatises II (n 10) Bks XX and XV ‘Dissolution’. 62   F Michelman, ‘Constitutional Legitimation for Political Acts’ (2003) 66 MLR 1 (‘a constitutionally valid act without (moral) legitimacy’); see likewise J Balkin, ‘Agreements with Hell and Other Objects of Our Faith’ (1997) 65 Fordham LR 1703 (the need for loyalty and fidelity to the constitutional process, even if may produce ‘bad’ results); yet see H Klarman, ‘Fidelity, Indeterminacy and the Problem of Constitutional Evil’ (1997) 65 Fordham LR 1739.

102  Primary Right Theory reasonably go towards the political legitimacy of the state itself. Instead, a citizen’s consent at most relates to the administration of the state in a manner consistent with and respecting individual liberty. Accordingly, the withdrawal of their consent immediately touches the question of political obligation. For that withdrawal to address political legitimacy, to deny the state the legitimacy of its coercive powers, there must be a fresh, separate step taken. That extra step, involving territory, shows up the inherent weakness of the consent model. This objection also could serve as a buttress to the criticism of consent models seeking justification for no-fault secession as inherent in an instrumental or intrinsic definition of democracy.63 Recall here that the objective was to find a natural and coherent place in the very nature of democracy for consent-based secession. It would be implicit in a true instrumental or intrinsic understanding of democracy. The consent postulated by liberal theory, under this objection, would accordingly refer to consent to the authority of the state, as political obligation. Insofar as the instrumental or intrinsic value of democracy was to promote individual liberty and the freedom of association, instantiated and effected through consent, withdrawal of said consent would go only to political obligation, and not to the legitimacy of the state itself. Thus, as argued above, to reject political legitimacy requires a new, fresh step, separate from the question of any (antecedent) consent. Consent and Group Rights Assuming for the moment the sufficiency of consent as a foundation, we must be able to translate this understanding of consent as originating in and pertaining to an individual’s autonomy and self-definition to one applicable to a group, operating on behalf of the group. The practical nature and reality of secession requires such a shift from an individual to a group focus. Secession is a group of people wilfully removing themselves and their territory, as an organised entity, from an erstwhile state. It is a form of collective action. Unless we are to accept the extreme solution of an individual’s right to secede posed by some libertarians, we shall have to account somehow for group rights within a liberal theory constructed upon the tenets of individual freedom and autonomy. A group right, it is postulated, attaches to a collection of individuals as a collection, and may be exercised only collectively as a group or on behalf of the group.64 An individual’s right, on the other hand, is held to attach to an individual alone, who may exercise that right fully and independently according to the individual’s own choice and perception of benefit. Secession becomes a group right, but one built upon an individual right. So we must somehow frame consent as the proposed basis for the right to secede not only to account for individual and group forms of consent (as the basis of political obligation and legitimacy), but also for the respective weights to be accorded to each.

63   A Buchanan, ‘Democracy and Secession’ in M Moore (ed), National Self-Determination (Oxford, Oxford UP, 1995) 16 ff, referring to the views of Philpott, ‘In Defense’ (n 2) and Copp, ‘Communal Self–Determination’ (n 4). D Miller, On Nationality (Oxford, Oxford UP, 1995) falls into this category via his idea of ‘trust’. 64  Buchanan, Secession (n 3) 74–79; W Kymlicka, Multicultural Citizenship (Oxford, Oxford UP, 1995) 34–48 and his ‘Individual and Community Rights’ in J Baker (ed), Group Rights (Toronto, Toronto UP, 1994) 17; and D Reaume, ‘Individuals, Groups, and Rights to Public Goods’ (1988) 30 U Toronto LJ 1.



What is Really Consented To? 103

A good deal has been written about group rights, and with a number of different objectives in mind, not the least of which is to situate the concept of group rights in a suitably coherent and consistent manner into general liberal political theory.65 Rather than assessing in detail that material, what suits my purpose best at this juncture is instead a review of those issues for group rights which have a direct bearing upon understanding the consent model to secession. In the first place, I have to refine the concept of a group right stated above. So as to clarify and highlight the difference between an individual and a group right, I must add to the definition the important proviso that the object of the right exists only as a collective, or group, good.66 The objects or substance of the right address that element which is constitutive of the group. This forms the determinative basis for the association in the first place. That which delineates the group as such-and-such a group exists in and by virtue of the group, and not through any one member. In other words, the right speaks to an intrinsic quality of the group. Insofar as an individual is necessary to exercise (or declare the exercise of) the right, that individual acts not as an independent, autonomous self, but rather as a member of a group, on behalf of the group. Thus, a group right is not merely a common claim to a particular good whereby an individual happens to claim more or less the same thing such that the ‘group’ aspect is merely the summation of each individual right. Instead, it is a common claim (or claim on behalf of a community) to a common good whereby what is claimed is the same thing in virtue of its commonality.67 The difference may also be characterised as not a coincidence of goods, but as participation in the same good.68 The foundation of a group right is a group or common good. Whether or not we wish to commit further effort to exploring the differences between the group rights claimant as an individual or as the group itself, the substance of the right itself must be a common interest. An interest, a good, may be ‘common’ in the nature of its production.69 That is, it requires a co-ordinated, co-operative effort among people to produce a certain desired outcome or result. A manufactured article, or peace or democracy, or a conversation, are examples wherein people must co-operate to achieve the result. Some goods, on the other hand, will have a common nature by virtue of their consumption. Whatever the circumstances of their production, everyone may enjoy and consume these goods once they are effected. It is difficult or impossible to exclude anyone from enjoying them. We might refer to them using the economics term ‘public goods’. Now some goods exhibit commonality in both their production and in their consumption. This conjunction is 65   See, eg Baker, Group Rights (n 64); W Kymlicka, Liberalism, Community and Culture (Oxford, Oxford UP, 1989) and his ‘Individual and Community Rights’ (n 64); M Hartney, ‘Some Confusion Concerning Collective Rights’ (1991) 4 CJLJ 293; J Corbett, ‘The Problem of Collective Moral Rights’ (1994) 7 CJLJ 237; and A Marmor, ‘Do We Have a Right to Common Goods?’ (2001) 14 CJLJ 213. 66   See, eg L Green, ‘Internal Minorities and Their Rights’ in J Baker (ed), Group Rights (Toronto, Toronto UP, 1994) 100; Reaume ‘Rights to Public Goods’ (n 64) 2 ff and ‘The Group Right to Linguistic Security: Whose Right, What Duties?’ in J Baker (ed), Group Rights (Toronto, Toronto UP, 1994) 118, 118–26. Kymlicka distinguishes between ‘collective rights’ (community of individual held) and ‘group rights’ (rights internal to a group) in Multicultural Citizenship (n 64) 26–33, 35–38, 45–48 and ‘Individual and Community Rights’ (n 64) 17–19. 67   Reaume, ‘Rights to Public Goods’ (n 64) 9–12. 68   See, eg C Taylor, ‘Cross Purposes: the Liberal-Communitarian Debate’ in C Taylor, Philosophical Arguments (Cambridge (Mass), Harvard UP, 1997) 189–91. 69   See generally Marmor, ‘Right to Common Goods?’ (n 64); Reaume, ‘Rights to Public Goods’ (n 64) and ‘Group Right to Linguistic Security: Whose Right, What Duties?’ in J Baker (ed), Group Rights (Toronto, Toronto UP, 1994); Green, ‘Internal Minorities’ (n 66) and Hartney, ‘Collective Rights’ (n 65).

104  Primary Right Theory argued to be one of necessity, not coincidence or happenstance. It is a condition of their common enjoyment that they are products of a common effort. In other words, only by participating in their realisation can we derive any satisfaction and enjoyment out of those interests. Their nature renders it impossible to divorce the one aspect from the other without destroying the entirety. Examples given here include culture, democracy, peace, friendship, the conviviality of a party, the harmony of an orchestra.70 Commonality as described here recalls neatly the concepts of reciprocity and mutuality underpinning associative relationships. Putting this in a consent and secession framework, the element of ‘common’ thus implicates a continuing agreement among group members to achieve that collective interest through their collective action. Howsoever we may wish to characterise the common interest at stake, as one intrinsic to our humanity, as universal, as rational or as utility maximising, we must first postulate a level of consent among individuals pertaining to this interest, before we begin to evaluate matters of political association and obligation. Because practising the right entails sustaining the right and its content, the consent of individuals to its realisation must require the individual’s membership in that group to precede membership in any wider association. Otherwise, interests of that larger grouping could reasonably override or contradict those group rights, leading by definition to their extinguishment. First comes the consent of the individual to be a member of the group, and then comes any consent of the individual or of the group to be members of a wider political association. First, postulating a notion of group rights interposes another level of consent to the formation (and hence, dissolution) of a political association. Does this change the nature of the right, as given by the primary rights theorists? For example, does an individual’s membership in such a group, and the consent such membership must imply by virtue of the theory, replace, complement or supplement any further, broader consent to membership in the political association? For a group to secede, the group must first come to the decision to withdraw consent on behalf of the group. This is the collective act, as given by an exercise of a group right. But a group is composed of individual members who, by definition, agree (or disagree) with the decision to withdraw. The individual’s withdrawal of consent to remain a member of a political association, insofar as it may be said to be an independent volitional act consistent with the basic tenets of liberal political theory, appears nevertheless conditioned by the terms and demands of that person’s membership in the seceding group. The consent to be or remain a member of a political association would therefore not be an autonomous decision derivative upon freedom of association, but rather a function of one’s antecedent membership in some smaller grouping. Further, such dependence relationships would suggest that the decision to withdraw consent to be a member of a political association (just as much as the initial decision to join one) does not operate according to the principle of consent freely given, consent freely withdrawn. Instead, the consent of an individual functions within the framework of group membership, such that the consent must always be read with the group’s benefit in mind.71 Rather, an individual consents insofar as his group consents alike. And he is doubly disadvantaged for then he is also in the minority of the seceding 70   Taylor, ‘Cross Purposes’ (n 68) (orchestra), and Marmor, ‘Right to Common Goods?’ (n 64) (conviviality at a party). 71   Compare Locke, Two Treatises II (n 10) paras 96–99, 117–20.



What is Really Consented To? 105

group, and no longer a member of the original state. In summary, the interposition of a group rights concept in the secession model, whether or not correct in its own right or whether or not consistent with liberal theory, would nonetheless seem to alter the basic suppositions of the primary rights model for secession. The question of group rights poses other difficulties as well. For example, with the passage of time, the composition of a group changes. This includes the state, and a nation. A group which consents to join a political association will, after the passage of time, not necessarily have the same composition as that group which intends to decide whether or not to secede. Whereas a theory based on individual consent, without reliance on group rights, will provide some rationale for an individual’s membership in a political association by way of express or tacit consent or reliance on benefits, that same rationale does not apply simply to a model relying on group rights. We return effectively to a central problem in conceiving group rights, being their exercise. Where an individual offers his consent to membership, is that consent effective on behalf of his group membership? That is, does the group express its consent through the summation of the majority of concurring individual expressions of consent in whatever other theoretically suitable manner? Or must there be an actual group decision, made expressly on behalf of the group as an entity? Or must we accept that an individual’s decision is always conditioned by group membership, such that an individual’s autonomy must be viewed as a bounded freedom, bounded precisely by certain qualities of membership in one or other groupings? Should we lean to the latter option, we are moving some theoretical distance from liberalism, towards a communitarian outlook.72 And that would require a thorough re-evaluation of the basic premises and assumptions concerning political association and legitimacy. A second issue for those inclined to group rights is to explain why certain groups are more privileged, politically or otherwise, than a state association.73 That privilege extends apparently the right of secession to that group, so as to separate its members and territory from the other members and territory of the erstwhile state. Although a state also represents a group, it would appear that, politically at least, other groups have a more fundamental and a superior status to a state grouping. But this issue shifts the discussion from one concerning the nature of the right to secede per se, to one concerning the nature of the rights-holders. But to return from this digression to the central question for the consent model incorporating some measure of group rights: has the nature of the consent right to secede changed thereby? I have argued that the interposition of a level of group consent does indeed alter the nature of the consent, from one based on a pure and simple assumption of individual autonomy, to one conditioned by an antecedent and controlling membership in a smaller grouping. That version of consent is not the same as first hypothesised under the consent model for secession, where the consent effected 72   Though some would question whether liberalism and communitarianism are at root so antagonistic and opposed to one another: see, eg Taylor, ‘Cross–Purposes’ (n 68) 181. Taylor would re-orient the antinomy between the two, by revisiting the basic ideas and assumptions giving rise to the antagonism, viz the ‘ontological issues’ of atomism and holism, and the ‘advocacy/moral issues’ of individualism and collectivism. 73   Brighouse asks a similar question in criticising nationalism as contrary to liberal conceptions of equality: H Brighouse, ‘Against Nationalism’ in Couture, Nielsen and Seymour, Rethinking Nationalism (n 5) 365. Kymlicka distinguishes the powers and rights of ‘nations’ from immigrant groups: Kymlicka, Multicultural Citizenship (n 64) (taken to task by Y Tamir, Liberal Nationalism (Princeton (NJ), Princeton UP, 1993) and A Buchanan, ‘What Makes Nations So Special?’ in Couture, Nielsen and Seymour, Rethinking Nationalism (n 5) 283).

106  Primary Right Theory a direct connection between individual and polity. Here, two counter-arguments are possible. First, the Beran camp might argue that we have not actually altered the nature of the right to secede in substance. It remains one of consent. Whether the consent of the group or of a set of autonomous individuals, it does not affect the basic tenet of a right to secede based on the simple will of a group of individuals, taken either as a collective or as a sum of the parts. In other words, consent to continuing membership in a political association remains the controlling feature of the right. The motives may have altered from individual ones to group-oriented ones, but this is not significant for the nature of the consent. Secondly, to accept the conceptual difficulties associated with group rights and their coherence with liberal political theory, we might adopt a weaker version of group rights, converting them into common action based on similar grounds for a similarly conceived good. So nothing in the conception or nature of that good should be understood to exist by and in virtue of its being a collective good. But we effectively discard thereby a central tenet of group rights, namely that certain goods – objects of rights – may only exist and be engaged in and by virtue of their group, common, character. Accordingly, this concession puts us right back to the beginning of our discussion of the consent model to secession. Only the objection going to the nature of the right to secede would appear to have force. A rejoinder to the ‘Beran objection’ may take a direct and indirect form. A direct reply would argue that the nature of group rights, and their interposition between the individual and a larger political grouping, renders the idea of simple consent, as based on Locke’s views, conceptually untenable. It is in the nature of any consent expressed on behalf of any group that it be conditioned by the very existence of a group in the first place. An individual’s consent, given in function of his autonomous self-determination, need not presume any antecedent interests, relations, or other such things. The minimal assumption is a thinking, desiring, existing individual. But for a group, that group does not come into existence without such antecedent relations. Those relations, interests and history – together, a ‘culture’ – form a context or framework within which an individual’s consent takes shape. They are the condition for the possibility of an individual’s consent to any membership in larger political associations. They are implied or represented in the choices and decisions made by an individual, given the standard line in group rights theorising. Consequently, holding the right to secede as a collective, group right requires us to admit a version of individual consent that is modulated, influenced and otherwise conditioned upon that person’s membership in some politically relevant group. Furthermore, when that group offers or withdraws its consent to have its members associate with a larger political grouping, it follows that the consent is conditioned upon the bonds and relations creating the group in the first place. A group’s decision will reflect what the members of the group perceive to be in the best interest of the group (and its membership), rightly or wrongly. Group consent may not be divorced from those group commitments founding the group decision to secede. Those commitments represent necessary elements to the concept of consent. That is the nature of ‘conditioned consent’. This point brings us nicely to the indirect rejoinder. Liberal theory unwisely concentrates upon one very narrow aspect of belonging to an association, that of consent. It seeks to construct an overall theory thereupon. This leads to at least two unhappy results. First, liberal theory finds itself lacking to explain (political) association, and



What is Really Consented To? 107

must therefore grasp at additional concepts, such as group rights, common goods, and so on.74 Its initial foundation was set too narrowly, and so its upper reaches become less stable without wider, buttressing concepts. A very important one is the concept of interaction within a group. Secondly, it is clear that any conception of consent may not stand alone, separate from the reasons which motivate its extension or withdrawal. Those reasons will determine the nature of the consent, and accordingly may render the extension or withdrawal of consent justified. More particularly then, the conception of consent, especially within the context of political action and association, is itself not an autonomous concept, but one bounded by justification: the act of joining or withdrawing from a political (or indeed any other) association must be justifiable. Indeed, it is intrinsic to and prescribed by any discussion of a ‘natural ‘right to secede’. Briefly, we understand justification to identify why a certain action was taken and to demonstrate the closeness of fit between the act and those supporting reasons. Any purported justification will be open to criticism for its validity and legitimacy. Validity goes to strength of the identification of reasons and the demonstration of fit, and that legitimacy to the reasons themselves and the closeness of fit. Thus, any reference to consent as a basis for secession must provide justification for why consent was withdrawn so as to effect the right of secession. On this view, what we are really seeking is not simple consent, but ‘just-cause consent’, so to speak. The consent model falters, and gives way to the (stronger) remedial version of secession: secession as a just-cause remedy. And importantly enough, we have also begun to crystallise our first criterion for a legal assessment of any theory for secession. From Primary Right to an Instrumentality Needing Just Cause From this general outline of the controlling propositions, we should have a fair grasp of the real nature of the right of secession advanced by most prime-right theorists. Specifically, they focus upon an individual’s consent to joining a group. They extrapolate from this simple (but hardly simplistic) tenet a direct equivalence, or concurrence, between the conferral of consent and its withdrawal: consent freely given may be freely withdrawn. This pursuit of consent seems a rather narrow point on which to construct any theory of political association and disassociation. Indeed, not even law and legal theory attempt to centre all their hopes and aspirations upon such a single point. Life is too complex for that. The narrowness of the grounds, and the various attempts to build up and out, all have subjected consent-based models to not-insubstantial criticism. In any event, founded as it is in fundamental liberty and autonomy of the individual, the giving and removing of consent also enjoys the status of a fundamental component of the self, and derives therefrom the status of a primary right. As such a right, although there will undoubtedly be reasons to withdraw consent and thus to secede, no specific reasons should serve as preconditions to the exercise of the right, just as no specific reasons precondition the exercise of consent for all individuals. Instead, those reasons are specific to the individual, the individual’s projects, and the circumstances at the time. 74   See, eg Wellman, ‘Samaritanism’ (n 46) and his ‘Political Obligation’ (n 18) (both, the ‘Samaritan’ principle’), his ‘Relational Facts in Liberal Political Theory: Is there Magic in the Pronoun “My”?’ (2000) 110 Ethics 537 and ‘Liberalism, Communitarianism and Group Rights’ (1999) J Pol Phil 13 (both, his rapprochement with communitarianism).

108  Primary Right Theory But if certain reasons should condition the withdrawal of consent qua secession, those reasons represent a prima facie limit on the freedom of association and require justification if to be legitimate and valid. Secession could no longer function as a primary right as required by that model. Primary right theories advance the central claim that the right to secede confers a right to ‘no-fault’ separation. As their principal tenet, these theories hold that the withdrawal of consent to a political arrangement serves as sufficient and effective grounds for secession. How popular will coalesced, and by what arguments and means, plays little if any role in the actual expression of the group’s will. What counts is just the expression of a group’s will to secede, voiced simply as a bare assent to secession. The motives and reasons prompting that withdrawal of consent are irrelevant to secession itself, except to have crystallised and galvanised popular will to separate from an extant state. That is, they may not restrict or constrict the valid expression of a group’s desire to secede, and hence, the right to secede. The right is unconditional. Whether the underlying reasons are true, credible, self-serving or themselves irrelevant, all have no direct bearing upon the legitimate invocation and effective exercise of the right to secede.75 This is certainly not to dismiss the underlying means and arguments, all the campaigning, striving to convince the public on any given issue, nor to treat all that as generally irrelevant or insignificant. But none of this defines the right to secede, as a function of continuing or withdrawing consent. Primary right theories require us to concentrate simply on the expression of consent as the basis for continuing, enforceable political obligations in a liberal state. Simply put, primary right theories do not necessitate any investigation why we consent or why we wish to repudiate our consent in order to make that consent justifiable and effective. Herein lies the fundamental difference between consent models and just-cause models for secession. The latter treat those underlying reasons as determinative: the models justify and condition secession upon only a certain number of grounds. The position of primary right theories seems borne out in the workings of a demo­ cracy. For in a democratic state, the will of the majority finds its voice in a pro or contra result in a popular vote. The net outcome, whether at an ordinary or some supermajority level, is simply either for or against a given proposition, without further qualification or weighting on the grounds chosen for or against that proposal. Public participation in democratic governance is simply a formalised procedure of who may vote, where, when, and what majority in favour succeeds. That institutionalisation does not prescribe further the grounds for soliciting votes in favour or against. The same would apply were we to envision some institutionalised version of the right to secede. Moreover, this would also remain true for a just-cause model similarly reduced to a like institutional procedure. In such a case, presumably, the relevant electorate must decide by vote whether or not the necessary grounds for secession have been made out, such as discriminatory redistribution (discussed in the chapters following). But even there, the expression of the majority’s will would be either a bare ‘aye’ or ‘nay’ (with secession following on an ‘aye’ outcome) without any necessary evaluation of whether underlying 75   Hence the need for the customary add-ons of viability, no disproportionate harm and compensation: see, eg W Norman, ‘The Ethics of Secession as the Regulation of Secessionist Politics’ in M Moore (ed), National Self-Determination and Secession (Oxford, Oxford UP, 1998); Philpott, ‘In Defense’ (n 2) 382–83; Buchanan, Secession (n 3) 132 ff; Gauthier, ‘Breaking Up’ (n 2) 363–66; and D Weinstock, ‘Constitutionalising the Right to Secede’ (2001) 9 J Pol Phil 182, 196 ff.



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reasons were justified or credible. Thus, in a democratic state (or indeed any state), secession would fall or succeed simply on the appropriate outcome, not on the strength of the supporting reasons. Although attractive at first sight, the argument nevertheless leaves us with a rather awkward and confused perception of the state and the functioning of majoritarian rule. It should seem counter-intuitive to adopt a view that just because a section of the population should decide by some local majority that they want to secede, that the rest of the population and state must allow them to go. After all, that type of dissent does not seem sufficient to except a local majority from the ordinary application of ordinary laws under normal circumstances. The minority are bound to obey, on pain of coercion. What really has changed then, when the dissenters claim not a right to be exempt, but a right to secede? In the case of an alleged secession, why shouldn’t such an act permit the (rump) state a reasonable and justifiable armed response to defend its citizens and territory against destabilising and injurious revolution or rebellion?76 Or must a state always fold at the hands of malcontents? Nothing in the primary right theory on its face suggests any decision principle, other than mere capitulation by the (rump) state. But surely capitulation is no rational decision principle. And even at a practical level, the opposing parties will not debate the merits of consent, but rather the reasons justifying the desire to secede. Further, primary right theorists begin to import conditions limiting the right to ‘territorial communities’, defined either by cohesion at an ethnic level or by some voluntary commitment.77 This implies the right is not in fact ‘no-fault’ as claimed, but rather conditioned by those cohesive bonds. Thirdly, at an even more basic level, no democracy requires that its everyday operations be carried by unanimity or anything close to it. There always may exist a dissenting minority. But nowhere is it suggested that merely by dissenting or refusing to consent to a particular rule, law or proposal, the minority is exempted from that rule or policy (unless, of course, expressly so indicated in the terms of the rule or policy). Civil disobedience, as an expression of that dissent, remains punishable unless and until the prohibition is duly overturned by political or legal process.78 This counter-example suggests that more than mere consent or dissent is necessary to loosen the bonds of political obligation.79 Finally, recalling that primary right theories offer their view on consent as a moral foundation as moral grounds for binding obligations, we should also seriously revisit the plausibility and coherence of a position suggesting that we might escape our consensual promises and agreements by simply resiling from them without more. In other words, that moral case permits us, if we no longer wish to be bound, simply to end the arrangement whether the context is contracts law, criminal law, constitutional law or politics – all without giving reasons. The central point to these four concerns is simply that consent itself (or the withdrawal thereof) is an insufficient basis for a right to secede. More 76   See, eg J Crawford, ‘State Practice and International Law in relation to Unilateral Secession’ in A Bayefsky (ed), Self–Determination in International Law: Québec and Lessons Learned (Dordrecht, Kluwer, 2000) 31. 77   Beran, ‘Democratic Theory’ (n 3) 36; L Bishai, ‘Altered States: Secession and the Problems of Liberal Theory’ in P Lehning, (ed), Theories of Secession (London, Routledge, 1998) 92, 94, 97; and H Steiner, ‘Territorial Justice’ in Lehning, Theories, 60, 65 criticise the idea as under-representative of groups in need. 78   See generally Dworkin, Taking Rights Seriously (n 57) ch 4, esp 206 ff; M Kadish and S Kadish, Discretion to Disobey: A Study of Lawful Departures from Legal Rules (Stanford (Calif), Stanford UP, 1973); R Hall, The Morality of Civil Disobedience (New York, Harper & Row, 1971); and eg MacMillan Bloedel v Simpson [1995] 4 SCR 725 and [1996] 2 SCR 1048 (disobedience of court orders enjoining logging protests); R v Morgentaler [1988] 1 SCR 30; R v Morgentaler [1993] 3 SCR 463 (decriminalisation of abortion). 79   Thus Caney, ‘Self–determination and Secession’ (n 6) 355.

110  Primary Right Theory particularly, what informs such a right, insofar as such a right may be argued for, is not the withdrawal of consent simpliciter, but the grounds or reasons upon which that purported withdrawal rests. We need to know why and how a group wants to secede in order to evaluate that act. The actual justification of any purported withdrawal of consent qua secession derives from why and how secession was undertaken. To put the matter more broadly, the right to secede is a right to secede for the right reasons and in the right circumstances. It follows, then, that a right to secession demands at least a justcause model and not a primary right model. Thus, the first general criticism of a primary right model for secession is that its core premise of consent provides no sufficient and satisfactory foundation therefor. The withdrawal of consent cannot substantiate a right to secede for the very simple reason that the withdrawing (or conferring, for that matter) of any consent in the sense required by primary right models is itself an instrumental conception, without content or substance apart from the reasons upon which it is based. This stands as the second criticism of the primary right model. As an instrumental notion, withdrawal so-called is, or is not, justified on the validity of its motivating reasons, not on its own merits. By ‘instrumentality’ and ‘instrumental notion’, I mean to say that the withdrawal of consent is a means or mechanism to articulate, to implement, the real substance of the dispute. An instrumentality is a tool whereby we make manifest or bring to effect a thought, belief, desire or such like interiority. For example, any language is an instrumentality, just as law is an instrumentality for certain basic, common commitments applicable to a given political association. Likewise, consent in this context (and its conferral and its withdrawal) is an instrumentality reflecting concurrence and commonality of certain commitments between individuals. Thus, by arguing that the withdrawing of consent is an instrumental conception, I not only take issue with the sufficiency of consent itself as a concept, but I also suggest that the ‘primacy’ of the right to secede is misconceived, given the instrumentality’s inability to justify itself. For added clarity, it is also possible to reconstrue these objections in terms of a classification problem between the first order reasons and second order reasons modelled by Raz.80 That is, primary right theories offer consent (and secession) as of the class of first order reasons, whereas it is in fact of the rank of second order reasons. The latter are derivative and dependent upon first order reasons for their validity and justification. Such a layering of reasons would also compel us to account for the higher first order reasons, and in so doing, lead us to support a just-cause approach to secession. Consent as Insufficient Grounds On the first issue of the insufficiency of consent theory as the ground for creation or dissolution of political obligation, I follow and generally adopt the criticisms advanced by Simmons in Moral Principles and Political Obligations.81 Consent, whether in the form of personal, historical, majority or tacit consent, or consent by residence, suffers 80   J Raz, ‘Legal Authority’ in his Authority and Law (Oxford, Oxford UP, 1979) 3, 17 ff. See comments thereon by L Green, ‘Law Legitimacy and Consent’ (1989) 62 S Cal LR 795 and S Perry, ‘Second Order Reasons, Uncertainty and Legal Theory’ (1989) 62 S Cal LR 795. 81   Also adopted by Wellman, ‘Samaritanism’ (n 46) and ‘Political Obligation’ (n 18), and echoed independently in Dworkin, Law’s Empire (n 25) 189 ff.



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principally from the unrealistic strictures it imposes upon itself.82 Consent, by definition, requires a deliberate, intentional undertaking to participate in a political association and take up binding obligations.83 But as Simmons points out, few, if any of us, actually do consent or have consented in this fashion to our obligations.84 Moreover, given the conditions upon which a valid consent may be said to arise (such as an understanding of what circumstances require consent, its immediate consequences, a reasonable opportunity to express an effective dissent, and the absence of any coercion to consent), we should be hard pressed to demonstrate compliance with them in modern, democratic, liberal political societies. On the matter of historical consent, he reiterates the common rejoinder that it is not only implausible that our present consent could be grounded on the consent of our political forebears, but also that political obligation is a matter of the here and now, of how we are bound to a state, and how the state as it is now would seek to oblige us. As to majority consent, he rehearses the paradox of a majority’s consent binding a dissenting minority which arises as consent theory attempts to avoid the effective rejoinder that, if one person in a group does not consent, then the government of that group is illegitimate (not having the consent of all) and, accordingly, may not compel obedience (no binding obligation to an illegitimate government). Regarding fair play, which for Simmons comprises principally the first element (taking of benefits) of the fair play principle outlined above, he doubts whether we have actually accepted bene­fits as required, in particular whether what we have taken are in fact benefits, and he questions the plausibility of extending a concept which works moderately well at the level of personal interaction in a neighbourhood or very small group setting, to the much larger and more anonymous setting of a state.85 He also raises the objection Nozick has proposed to the fair play principle, that it may allow for the creation of binding obligations simply by a government’s conferring or imposing open, public goods on its citizens, but goods which they have neither asked for, nor can reasonably avoid or refuse.86 However, Simmons’ reference to Nozick is more to point out weaknesses in Nozick’s critique and understanding of fairness. In particular he addresses Nozick’s vague and misleading treatment of the mere receipt of benefits as sufficient acceptance, and his denying the collapse of the fairness principle into a version of tacit consent by an unnecessary implication of deliberately participating in an association.87 Concerning debts of gratitude (generally equivalent with mutuality conditions C2 and C3), Simmons doubts whether we owe such debts, whether the content of those debts can support a much 82  Simmons, Moral Principles (n 11) 60–61 (personal and historical consent), 71–72 (majority consent), 88–97 (tacit consent), and 95–98 (consent through residence). 83   Distinguishing this morally effective version from a mere attitudinal sense of ‘being in agreement with’: Simmons, Moral Principles (n 11) 94 ff. 84  Simmons, Moral Principles (n 11) ch 2 and 93–94. Green, Authority of the State (n 9) develops a consent theory based on voluntary undertaking commitments to one another as opposed to non-fully voluntary ‘relational obligations’. See also Wellman, ‘Defense of Secession’ (n 4) 151–53, and Buchanan, Secession (n 3) 7 and ‘Political Legitimacy’ (n 46) 699–703. On the matter of the prerequisites for valid consent, see Simmons, Moral Principles (n 11) 76 ff; on the problem of fulfilment, see ibid 81 ff, 191 ff. 85  Simmons, Moral Principles (n 11) 139–41. The interposition of the further components of a relationship in which benefits may be conferred, and of mutuality, do not detract from this point. If anything, they emphasise it by highlighting the importance of personal connections in the fairness account. 86  Simmons, Moral Principles (n 11) 121–29 (Nozick, Anarchy, State and Utopia (n 48) 90–95). Dworkin, Law’s Empire (n 25) 193–95 treats Nozick’s argument as determinative against the fairness principle without much discussion since it allows him to highlight the apparent lack of a community-mutuality element to the fairness principle. Klosko, Principle of Fairness (n 44) attempts to rehabilitate the fairness principle. 87  Simmons, Moral Principles (n 11) 121–29.

112  Primary Right Theory broader sense of obligation, and whether there are ways of repaying the debts other than through loyalty and obligation to the state.88 And on a more general level, he questions the success and fit of such a narrow, inter-personal concept as gratitude transposed to the wider public, institutional sphere.89 I would supplement Simmons’ critique on two counts. First, Simmons concentrates on the formation or creation of political obligations, whereas the task here requires an examination of the dissolution of those bonds – a somewhat different perspective. It is central to my position herein that dissolution entails more than a simple repudiation of any act or component creating those bonds. Secondly, my version of the fairness principle introduces two new elements, mutuality and association, which Simmons has not considered, and which, for example, Dworkin understands as fundamental to political obligation.90 Indeed, in my view, both concepts occupy such a central role to political obligation that they effectively constrain and restrain any attempt at secession to certain, specific grounds. In other words, any properly grounded right to secession will be a just-cause version. Dissolving or exiting from an extant relationship should differ in form and nature from the creation of same. In private law matters, the difference translates into either a requirement for justifying the dissolution, or of following specific and special procedures to withdraw (such as seeking a court order or obtaining regulatory or administrative approvals), or all of the above. The former effectively limits the reasons or grounds upon which an extant relationship may cease; the latter demands evidence, after a fashion, that the exiting party has taken the necessary deliberative steps confirming a (voluntary) desire to terminate the relationship. Examples in law are legion. For example, the dissolution of a corporation must follow specific procedures, and where a shareholder or other relevant interest holder objects, a dissolution proceeds only upon cause shown. In contract, and in promising generally, we are not allowed simply to abandon our obligations when the circumstances or mood suits. We may resile from our contractual promises only upon certain grounds, such as repudiatory breach, mistake, and so on, or by virtue of some overriding reason, such as frustration, lack of capacity or illegality. The dissolution of a trust must follow a special procedure, involving the consent of the beneficiaries. Even emigration and the renouncing of citizenship can have formalities attached. It would be surprising, to say the least, if similar restrictions did not also apply to the dissolution of constitutional relationships, secession in particular. Of course, the creation of certain relationships must also observe some like measure of formality. Clearly, the law imposes those formalities at the outset as a means of ensuring and evidencing that each party has entered into the relationship with some deliberation and consideration. No party may reasonably allege after the fact that their acts were unintended, that they held no responsibility for the consequences of participating in the given relationship. And it is those consequences, in the nature of the relationship itself among the participants, that a dissolution must account for in order to be effective. This, accordingly, points to the importance and significance the law attaches to the continuity and mutuality of the relationship. 88   ibid 185–87. He also dismisses the claim that political obligation may arise out of a natural duty of justice (a duty to support just institutions) as advanced by Rawls, ‘Legal Obligation’ (n 42), in his ‘The Justification of Civil Disobedience’ in H Bedau (ed), Civil Disobedience: Theory and Practice (New York, Pegasus, 1969), and in his Theory of Justice (n 13): Simmons, Moral Principles (n 11) 110–14, 152–54. 89  Simmons, Moral Principles (n 11) 187–88. 90  Dworkin, Law’s Empire (n 25) 195 ff.



What is Really Consented To? 113

As an argument from example, the law demonstrates that we have understood and do treat important relationships as not terminable nolens volens, but as continuing, mutual arrangements subject only to certain implicit or explicit overriding (moral or legal) concerns. Continuity and mutuality, defining a relationship, bar a dissolution or termination of said relationship except on grounds prescribed by them, by the relationship itself, or in some other measure. ‘Continuity’ means an implied presumption that a relationship shall continue without term, except as otherwise determined. ‘Mutuality’ means a link or connection between the parties, one not necessarily given by a dependence or subordination of the one to the other, or by some distribution of benefits and burdens. Continuity speaks to the requirement of a condition or justification for the termination of the relationship. In other words, the relationship continues ‘but for’ some reason which may override its continuing existence. Mutuality, likewise, imposes the necessity of justification (absent mutual consent, which itself might well be considered a form of justification) by virtue of making the interests of the other party relevant factors in any decision based on or in function of the relationship. I take this ‘intersubjectivity’ as being significant or relevant to another as given by the definition of a relationship. It is a definitive feature of a relationship, not only the political, constitutional variety. Once a relationship exists, and in particular, once a political and constitutional relationship comes into being among members of a political association in the nature of a state, that relationship is presumed to continue unless all parties consent to its termination, or the grounds and mechanism prescribed for a dissolution obtain. Let me develop this key intuition further in the constitutional, political context. I begin with the assumption, as the primary right theories instruct us to do, that citizens may renounce their political obligations and connections at will. Recall that the reasons for proceeding with a dismemberment of a state have no bearing on the validity or legit­ imacy of the choice to secede. The Hirschman thesis holds that the more easy it is to terminate a relationship (exit), the less likely it becomes that the parties will work towards a mutually attractive solution (voice).91 Barriers to secession raise the threshold of costs and burdens to secede, thereby rendering compromise and continued co-­ operation the less costly, less burdensome and more attractive strategy.92 Reducing the threshold, a consequence of the primary right theory, diminishes the urge and necessity to compromise, to achieve co-operation and mutually advantageous solutions: why compromise with someone if you do not have to continue dealing with that person? This entails that any reasonable national government must always account for the risk of the exit option in its policy, in addition to proposing and developing policy with that option as a constant risk in the first place. Equally, any reasonable local or regional authority will approach its position, and reply to national policy, with the exit option always in mind. By facilitating the exit option of secession, primary right theories emaciate or dilute the fundamentally important impetus in political associations to agree and cooperate towards maintaining the association intact and functioning, as well as achieving the association’s goals. We should have no difficulty in thus imagining the consequences of instability and uncertainty foisted upon state structure and state operation by such a theory. Because regional interests would effectively determine regional participation or a withdrawal in   A Hirschman, Exit, Voice, and Loyalty (Cambridge (Mass), Harvard UP, 1970) 120 ff.  ibid 79 ff; Buchanan, Secession (n 3) 100, 132–39. See also Weinstock, ‘Constitutionalising’ (n 75) 197–99, and Norman, ‘Ethics of Secession’ (n 75). 91 92

114  Primary Right Theory national schemes, a national government could not expect to develop any coherent, long-term policy unless the benefits and burdens would be anything but constantly distributed evenly.93 Transfer payments, equalisation payments, distributing resources from a wealthier area to a poorer one, are easy examples of what strategic bargaining would likely extinguish. The threat of withdrawal, strategic bargaining based upon local interests, becomes the determinative measure for distribution of benefits on national lines. There is no incentive for a region to look beyond its own locality, or accept responsibilities outside thereof. Uneven distribution would likely occasion regional dissent, and threats to invoke the ‘easy-out’ option.94 Moreover, as already suggested above, the lower threshold raises the incentive for strategic bargaining, whereby the easy-out solution becomes a standard threat to demand benefits and advantages otherwise unavailable in a relationship of co-operation and mutual agreement. And this instability also has detrimental implications for the stability of the international order, which rests in no small way upon the durability of states and state borders. So it would seem to follow that, for the sake of state and international stability, a so-called right to secede may not be a primary right to withdraw consent without more, but rather special constraining or restraining factors must condition its exercise. We can expand further upon the distribution of benefits point, and raise a further objection to a primary right to secession as an interference or thwarting of the legitimate expectations of state and citizen to the continuing production and distribution of benefits in and by the state as presently constituted. These benefits include membership in the state as such, with the psychic and international advantages associated therewith.95 They also include the benefits available under the current political and legal system, and the economic benefits of dealing in an internal economy (as opposed to the costs and disadvantages of international trade), of the common exploitation of natural resources, of shared wealth and burdens, of shared territorial holdings, and of common investment. These expectations flow naturally from the continuing existence of the state, more or less as presently constituted. In other words, we consider our citizenship in a state to entitle us to the receipt of those benefits as a matter of right, as one of the enduring purposes of our membership in the state. That expectation extends not only to the mere receipt of itemised benefits, but also to the levels and quantities of the benefits. It follows that any change in nature, degree or scope of the benefit conceivably interferes with our expectations. Secession clearly interferes with our expectations. Secession, or a right thereto, would certainly create substantial short- and long-term political, legal and economic burdens on both sides of the new international border. First, as may be self-evident, secession would occasion some psychical damage on those remaining in the rump state, as well as any dissenting constituents in the newly separated state, arising from the loss of a sense 93   The term ‘strategic bargaining’ originates with Buchanan, Secession (n 3) 100; adopted by C Sunstein, ‘Constitutions and Secession’ (1991) 58 U Chicago LR 633. See also the exchange between Weinstock, ‘Constitutionalising’ (n 75) 194 and C Sunstein, ‘Should Constitutions Prohibit the Right to Secede?’ (2001) 9 J Pol Phil 350, 353–55. 94   See, eg V Bartkus, Dynamics of Secession (Cambridge, Cambridge UP, 1999); M Bookman, The Economics of Secession (London, Macmillan, 1993); R Premdas, S Samarasinghe and A Anderson (eds), Secessionist Movements in Comparative Perspective (London, Pinter, 1990), esp R Premdas, ‘Secessionist Movements in Comparative Perspective’ in ibid 12 ff. 95  Buchanan, Secession (n 3) 52–64; Kymlicka, Multicultural Citizenship (n 64) esp 76 ff, and his Liberalism (n 65) chs 7–8 (on the importance to human well-being of belonging, in and of itself, and to a particular group). See also Tamir, Liberal Nationalism (n 73) and Margalit and Raz, ‘National Self–Determination’ (n 6).



What is Really Consented To? 115

of prestige, security, and the like. Secondly, it would impose significant start-up costs in the new state for new political, justice, social, fiscal and financial systems and infrastructure. And likewise, in measure, the rump state would face the costs associated with adjusting infrastructure and systems, a narrower home market, and dealing with the new international border, in particular, regarding investment and capital holdings. Nor should we discount the reaction of international financial and capital markets, and the withdrawal of foreign capital (at least in the short term). It is sufficient for present purposes simply to outline in this general fashion what ‘legitimate expectations’ include, without engaging in any more detailed social and economic analysis.96 And as with the instability argument, it necessary here also to include reference to the international repercussions of secession, namely the expectations and interests of the international community in having stable and enduring world order and international boundaries. Significantly, what emerges from this outline is the impossibility of analysing a withdrawal from any extant political association without accounting for the loss and damage a cessation of membership in the state would cause for the other members. For example, accepting the expectations argument may quite reasonably draw us into a balancing of the costs for and against secession as against the benefits for and against. But to come so far would obviously necessitate discarding the primary right version of secession in favour of one that ascribes weights and measures to those items of cost and benefit. The right to secede would exist only where the benefits of seceding would outweigh the costs, and the existence of consent would merely serve as evidence thereof. Taken as a moral proposition in the political morality sought out by primary rights theories then, there can be no right to secede without an accounting for the harm its exercise would inflict on others. The same point is accordingly reflected in the conditions for secession set by such theorists as Wellman, Buchanan and Beran.97 The legitimate expectations of all citizens factor into the moral calculus of secession. And by doing so, legitimate expectations would introduce a condition or qualification to the exercise of the right, relating to the harm or injury to others. This leads inextricably to the conclusion that secession is not properly handled as a consent-based primary right, as a ‘no-fault’ political divorce. Rephrasing this point in the somewhat more abstract terms suggested above of ‘mutuality’ and ‘association’, the crux of the legitimate expectations objection relies on the expectation of continuity and mutuality. First, expectations are, in effect, assumptions that the other party to a relationship (taken broadly to include most intersubjective conduct) will behave and respond in manner and form as prescribed by some commonly held code. By ‘code’, I intend nothing more detailed than some set of socially developed norms and rules of behaviour. Expectations, such as the sort described above, clearly imply some degree of mutuality by virtue of an extant underlying relationship, and of reciprocation insofar as one party may thereby make claims upon the other. In other words, expectations arise out of obligations of reciprocation. Inasmuch as we may ascribe expectations to citizens in virtue of their citizenship, we must acknowledge that we qualify thereby political obligations as obligations of reciprocation. Secondly, and tying this point with that above concerning the presumption of cooperation and continuity in a state, the desire to disassociate or secede thus represents 96   See further Young, Secession of Québec (n 58); Drache and Perrin, Negotiating with a Sovereign Québec (n 58); Bookman, Economics of Secession (n 94); and Bartkus, Dynamics of Secession (n 94). 97   Wellman ‘Defense of Secession’ (n 4); Buchanan, Secession (n 3) (under the heading of distributive justice), and Beran, Consent Theory (n 2) and his ‘Democratic Theory’ (n 3).

116  Primary Right Theory an abnormal set of circumstances whereby the very conditions for association and reciprocation are disputed. The normal reach of consent or dissent does not extend to a wholesale rejecting of mutuality and associative relationships. Instead, a dissent in the nature of secession signals, or is merely evidence of, a much deeper problem with the conditions of mutuality and association. But those conditions then are the actual terms of political obligation, and displace mere consent as the necessary and sufficient analysans of political obligation. And so, we are led to discard the primary right model of secession. Thirdly, and building on the counter-factual, to the extent we ignore the determinative properties of association and mutuality, we risk disconnecting political obligation from any morally grounded and responsible basis for action, turning it into free-for-all anarchy. These objections to the primary right model for secession have their standard replies, broadly fitting into the two categories of ‘speculative’ and ‘procedural correction’. The first, as a retort to the slippery slope argument of increased instability and uncertainty to state affairs, contends that any such alleged proliferation of dismemberment represents a speculative and unfounded inference.98 Permitting secession not only does not entail necessarily that a secession will in fact occur, but that the historical record of secessions also demonstrates that they do not multiply, the one after another, nor that secession in one case leads to secession in another. Moreover, the reply continues, permitting secession on this basis may just as well improve serious co-operation and compromise by equalising bargaining power among central and regional authorities. Finally, the claim of instability and uncertainty represents more a procedural issue or status quo objection, one that does not truly address the central issue and moral grounds for secession. It offers no answer to unjust or immoral state structures or actions which oppress minorities or regions, nor to the foundational issue of freedom of association and respect for the determination of self. The second reply, ‘procedural correction’, suggests that any and all concerns raised have an effective solution in a variety of procedural constructs and limitations. This reply would in effect give ‘teeth’ to the point which we had begun to sketch out above as to the speculative nature of the expectations critique. At a structural level, Kymlicka, Norman, and others have proposed systems of regional autonomy and self-government, most notably federalism, to accommodate regional and minority concerns, and thereby abate any tensions between central, national policy and local interests.99 At a procedural level, Norman has suggested a form of referendum, with constitutionally prescribed rules detailing who may call for a vote, who may vote, when, where, and what majority 98   See, eg Buchanan, Secession (n 3); Miller, On Nationality (n 63); Philpott, ‘In Defense’ (n 2) and ‘Self– Determination’ (n 4); Copp, ‘Communal Self–Determination’ (n 4); Bishai, ‘Altered States’ (n 77); and Beran, Consent Theory (n 2) and ‘Democratic Theory’ (n 3). See also M Jovanovic, Constitutionalizing Secession in Federalized States: A Procedural Approach (Utrecht, Eleven International Pub, 2007) ch 1. Against: Sunstein, ‘Constitutions and Secession’ (n 93) and Buchanan, Secession (n 3) 100. W Norman, ‘Domesticating Secession’ in S Macedo and A Buchanan (eds), NOMOS XLV: Secession and Self-Determination (New York, New York UP, 2003) and his Negotiating Nationalism: Nation-building, Federalism, and Secession (Oxford, Oxford UP, 2006) 203 ff engages directly with Sunstein. Buchanan and Norman attempt to minimise the risks of strategic bargaining with various procedural devices: Buchanan, Secession (n 3) 132 ff; Norman ‘Ethics of Secession’ (n 75) 50 ff (conceding that such procedures can offer only formal, not substantive guarantees against secessionary pressures). 99   W Norman, ‘Toward a Philosophy of Federalism’ in J Baker (ed), Group Rights (Toronto, Toronto UP, 1994) 79 (advocating federalism as ‘overlapping consensus’); see also Norman, Negotiating Nationalism (n 98) and Kymlicka, Multicultural Citizenship (n 64).



What is Really Consented To? 117

would be necessary to carry the resolution to secede.100 Buchanan has echoed this proposal, adding that the triggering event for such a referendum should also be specified.101 Moreover, at a level internal to the supposed procedural right, further limitations have been imposed on those who may exercise the right to secede, being a cohesive territorial community, as well as other qualifications concerning observance of certain fundamental tenets of liberalism. All these measures, it is said, would serve to reduce uncertainty and instability alleged to arise upon recognition of a primary right to secede. As to the relevance of expectations to the right of secession, in broad terms the counter-arguments challenge the assumption concerning a state’s claim to territory, and the overall moral grounds for objecting. The first rebuttal argues that the legitimate expectations argument concedes the existence of a right to secede, and fails to overcome it simply by offering a series of hypothetical practical problems to address the moral substance of the right.102 As claimed against the instability critique of secession, practical problems established no adequate and persuasive moral basis to dismiss the moral right to secede.103 Moreover, the congeries of examples provide no definition nor criteria for what should constitute ‘legitimacy’ and ‘expectation’. The second rebuttal, building upon this line of attack, argues that none of the economic claims override the moral case for secession, in particular when those claims arise ex turpi causa.104 That is, where the economic benefits at risk derive from unfair or unjust exploitation and redistribution, no moral grounds justify the preservation of such immoral, unjust arrangements. And at a practical level, fair compensation (insofar as agreement may be reached on what counts as ‘fair’ and ‘compensation’) can indemnify or cushion most, if not all, economic loss occasioned by secession. The third branch disputes the state’s expectation of title free and clear of competing claims by regional groups. First, where the state has taken possession of the land by annexation or invasion (against the desires of the resident population), that possession is tainted by that act’s assumed inherent immorality and injustice, such that the population retains better title or a higher claim to the return of its territory.105 On a simple balancing test, the right of the state to territory wrongfully acquired is subordinate to that right held by the resident population. Secondly, a state has no expectation of title, as a form of adverse possession as applied to territorial sovereignty, because at a minimum the prerequisite conditions of exclusive possession and an opportunity to reclaim possession do 100   Norman, ‘Ethics of Secession’ (n 75) 53 ff, and reiterated in his ‘Secession and (Constitutional) Democracy’ in F Requejo (ed), Democracy and National Pluralism (London, Routledge, 2001) and his Negotiating Nationalism (n 98) 177 ff. 101  Buchanan, Secession (n 3) 156–57, but his successive work on secession would suggest that the answer is yet to be fully worked out with its institutional requirements and implications in the international sphere, rather than the national one: Buchanan, ‘Institutional Dimension’ (n 1) and his ‘The Québec Secession Issue: Democracy, Minority Rights, and the Rule of Law’ in A Buchanan and S Macedo (eds), NOMOS XLV: Secession and Self-Determination (New York, New York UP, 2003) 238, 260 ff. But cf Norman, ‘Ethics of Secession’ (n 75) 55 (such an additional condition is unworkable for lack of definitive standards and determinative adjudication). 102  Buchanan, Secession (n 3) 88 ff; Bishai, ‘Altered States’ (n 77) 94, 98. 103  Buchanan, Secession (n 3) 102–4. 104  ibid 114–23. 105   ibid 140 ff, and Beran, ‘Liberal Theory’ (n 4) 24–25, 32. For example, the position of the Baltic states under USSR occupation and the claim of East Timor against Indonesian occupation: L Frankel, ‘The International Law of Secession: New Rules for a New Era’ (1992) 14 Houston JIL 521; L Eastwood, ‘Secession: State Practice and International Law after the Dissolution of the Soviet Union and Yugoslavia’ (1993) Duke JCIL 299; and C Chinkin, ‘The East Timor Case (Portugal v Australia)’ (1996) 45 ICLQ 712.

118  Primary Right Theory not exist. A state does not have exclusive possession of the territory, since the subject groups remain. All that has changed is the locus of sovereignty.106 And in some cases, such as at the confederation of Canada, even sovereignty does not change, only the locus of its exercise. Nor do those deprived of their territorial sovereignty have a reasonable chance to protest and reclaim their title without conflict. Accordingly, the principal conditions to establish a rightful claim to adverse possession do not obtain. For these reasons, then, the legitimate expectations argument should present ultimately no impediment to the consent basis to the primary right model for secession. The central difficulty for these various arguments against mutuality and obligations of reciprocation is that they rely on or assume the very premise they seek to rebut. Indeed, I may safely concede to a material degree all these points without undermining the core hypothesis concerning the fundamental nature of political obligation. I can likewise deal with and dispose of these various points under the two general headings of ‘not substantiated’ and ‘procedural correction’. The suggestion above that the moral substance of the right to secede is unaddressed or left unconsidered necessarily requires that such a moral right go beyond mere evidence of a disagreement as given by the drive to dissolve a state. Refusing legitimate expectations, creating political instability, territorial claims, and the like, are merely circumstantial evidence of the real nature and foundation for secession. First, that is undoubtedly the case, but equally circumstantial is evidence of consent or dissent, as argued for by the primary right model. The consent model reflects mere agreement or disagreement, but without any further moral grounding as we have seen above. Unlike the consent model, however, the issues of instability and expectations have the benefit of the underlying moral grounds of obligations of reciprocation, which account for the desired deeper ‘moral substance’. But this requires us – accepting the moral substance critique – to discard the consent version of secession in favour of a just-cause version incorporating the ideas of mutuality and associative relationships. Secondly and a fortiori, the reference to ‘moral substance’ suggests that (a right to) secession is not a ‘no-fault’ affair as predicted by the primary right model, but rather must be evaluated on grounds extending beyond mere consent and dissent. And the fact of such an evaluation cannot but logically drive us to a just-cause theory. The procedural correction, slippery-slope, arguments offer no independent support for primary right theory because either they take as given the primary right model, or (as is more likely) their formal, institutional measures beg the question not only whether secession is justified in the circumstances, but also the more fundamental issue of the nature and scope of political obligation. These institutional measures are in nature reactive, responding to types of political situation. They do not explicate how and why those circumstances came to be. If we accept the procedural correction argument, we cannot but enquire why some states remain united, whilst others suffer bouts of constitutional tension, or even attempts at secession. These questions quite naturally return us to considerations of obligations of reciprocation, and in particular, associative relationships. Here, we are well past any concept of consent. Moreover, accepting the procedural correction arguments on their face could produce a significantly dangerous and impoverished conception of political obligation, by divorcing the fact of obligation from its 106   Whereby the elapse of time without protest of the secessionary group would extinguish their claim to that territory by secession in favour of that of the state: see Buchanan, Secession (n 3) 90–91. Buchanan’s later hypothesis is that questions of territorial sovereignty are not questions of land ownership, but of administrative jurisdiction over the individuals actually owning the land: Buchanan, Secession (n 3) 108–10.



What is Really Consented To? 119

moral underlay. First, it fractures obligations into pockets of special interests, and imposes thus (or presumes) the isolation or irreconcilable fragmentation of those interest groups. That legitimates or validates the immediate conversion of special interests into politically determinative interests whether or not that reasonably should be the case. Secondly, it shifts the emphasis to procedural questions, rather than focussing on an evaluation of the reasons for the continuation or rupture of associative relationships. Indeed, there is no fundamental, necessary call for procedural facility to resolve these admittedly difficult questions on continued association. It makes sense to leave them as complex, difficult issues, to impress on all participants the gravity, the profundity of the issues and events. My position here tracks Sunstein more than that of Buchanan to avoid promoting or facilitating strategic bargaining. Constituents must be forced to address the substantive issues, and not only the procedural ones of secession, and to discuss, debate and negotiate those points. But they must also realise that the moral underlay to political obligation and to associative relationships allows for at least three outcomes to those negotiations: (1) no success for their claims (for or against secession); (2) compromise and adjustment; and (3) success.107 An Instrumental Concept Based on Just Cause The general orientation of consent theory, throughout its entire compass, has been to explain how it is that we divest ourselves of some or certain aspects of our liberty and subject ourselves to political power, in such a way that we nevertheless retain control over our liberty and over the exercise of political power. The work of Hobbes, Locke, Rousseau and those succeeding them have all sought to comprehend and justify this seemingly contradictory transfer (or delegation) of the power of self-direction from an individual to a community which will ultimately issue commands to that individual for the benefit of same. Their unrelenting focus on the individual element to the equation constricts their view of political obligation, or so I have argued, to the very narrow aspects of an expression of volition, namely consent, and the residual liberty interest of the individual. Left more or less untreated in any detail has been the community element to the calculus of political obligation. This too is a significant element to political obligation, especially in the context of the withdrawal from a political community and its accompanying obligations. Concentration on the individual has indeed prompted some to focus on and emphasise the community aspect, thus diminishing the importance of autonomy and individuality. This communitarian view, however, may reasonably be seen as simply a mirror view of liberalism, its obverse, insofar as it concentrates upon that other narrow aspect to the entire picture. It would suffer the same weakness as liberalism in the undue weighting of just one element. Such a blinkered view would blind us to the formation of an association and the significant transformation of private interests into public ones, all of which require attention to the individual contribution to the underlying relationships. After all, on the view I take here of political obligations, and indeed legal ones too, the individual is not merely a consumer, or exponent of a prior determined concept. Instead, 107   Suggested by the Supreme Court of Canada in the Québec Secession Reference [1998] 2 SCR 217, paras 97, 151.

120  Primary Right Theory the individual also participates actively in creating those obligations, as well as for­ mulating and moulding their application. To a degree, I accept the idea of Taylor that certain goods (irrespective of their classification in the greater scheme of things) require active participation as a condition of their enjoyment and vice versa.108 To this end, consent serves merely as circumstantial evidence of a deeper moral assessment and intersubjective bond: the associative relationship. We are not entitled to take for granted, or as a given, the criteria for and nature of the formation of that relationship, as held under a communitarian view. Nor, for that matter, are we entitled to ignore that altogether under liberalism. The idea of an intersubjective bond as definitive of an association is already implicit in the idea of consent. Our acknowledging consent signifies an adoption (as new) or reaffirmation (as already components) of a set of commitments as our own. By extension, similarly, withdrawing consent signifies that we have discarded or devalued those commitments as we understand them to be articulated in the current relationship. Thus, secession qua withdrawal entails a wholesale rejection of certain nationally articulated commitments, or at least their present instantiation in that state. From this it would follow that an impulse to secede is subject to evaluation on the credibility and cogency of its rejection of those values or their articulation, and its proposed replacements. Consent thus serves as a means to identify a judgment of conscience whereby a private interest becomes a public commitment, held and pursued in common with others. An ‘I agree’ expresses more than a will to be bound pro tanto; it contains within itself an antecedent appraisal of ends and means, circumstances (past, present and future), objectives, values and standards (to state the case at its most general) underlying the intersubjective relationship for which our consent to join is invited. Freedom makes man a moral subject. Human acts, freely chosen in consequence of a judgment of conscience, can be morally evaluated. The morality of human acts depends on the object chosen, the end, and the circumstances of the action. Consent merely indicates that some evaluation has preceded the act, and that evaluation is itself subject to moral evaluation. Consent, we might say, is ‘bi-polar’. By that term I want to emphasise that consent is not a unilateral or univocal activity, but implies the existence of at least one other person who has made an offer to enter into some type of relationship with the offeree.109 Consent makes no sense without that antecedent intersubjective framework. After all, we do not consent in a vacuum. We are consenting to the proposal of some other who has invited us to co-operate with him with respect to some objective that we now hold in common. That we now hold such commitment in common arises either from our respective recognition of its comprising already part of our set of personal commitments, or from our adoption of it at the suggestion of the other (because we perceive it at the time to fit within our general set of personal commitments). And we can only come to that respective recognition if we engage or interact with one another. So our consent is an indication of a willingness to co-operate in the achieving of that common goal, based upon our assessment of the goal, the relationship, and what it represents to attaining the goal. This critical idea of bi-polarity (or perhaps ‘associativity’) sits neatly within the work of consent’s progenitors, Hobbes, Locke, Rousseau, and others, subject only to a slight   Taylor, ‘Cross-Purposes’ (n 68) 189–92.   See, eg F Charette, ‘Les droits collectifs comme droits–libertés’ (1997–1998) 29 Ottawa LR 303, 322 (citing Fichte), and R Visker ‘Transcultural Vibrations’ (1994) 1 Ethical Perspectives 90 (developing the thesis of Levinas, that an identity arises out of a necessary interaction with not just one ‘Other’, but many ‘Others’). 108 109



What is Really Consented To? 121

reinterpretation of ‘consent’ as variously described by them.110 What concept they sought to identify by referring to ‘consent’ was not the formalised univocal idea we now take as ‘consent’ simpliciter, as an individual act of simple volition. Rather, better words for their concept would be ‘consensus’ or ‘co-operation’. Here, we take up the suggestion of Locke that individuals who would coalesce into a state do so with particular ends in mind.111 That is, the joining into an association serves certain goals common to all the prospective members who see or come to see their membership as beneficial to their interests. What gives these initially private objectives, or commitments, power to bind and hold together diverse individuals, and thereby assure the potential for achievement, is precisely the co-operation of those individuals in adopting and pursuing those ends in some common, organised way. It is the idea of consensus or co-operation which captures the transformation of the private into the public, so to speak. By ‘consensus’, we should thus understand not only the individual’s extension of consent (the volitional act), but also (1) the antecedent elements of a commonly held commitment, a proposed relationship, the offer to join, the assessment of the terms in light of personal commitments; and (2) the subsequent elements of actually entering into that relationship. The private interest becomes a public one as soon as it is extended to another to be held as his own, when the latter is invited to share in it and in fact does so. Obviously, by that extension, we must also allow for negotiation and amendment to the original proposal: both parties have the possibility and opportunity to adjust the supposed terms until they achieve compromise on common ground. Reinterpreting consent in this way also makes clearer, for example, Locke’s discussion of tacit consent springing from the prima facie acceptance of benefits.112 Rather than concentrating exclusively on the need for a unilateral act of volition, we should appraise that acceptance within the co-operative, consensus framework.113 There may well be some form of unilateral volitional act, but it is one prompted and obtaining within a system of actual or anticipated mutuality-reciprocity (no free lunch) and association. In other words, we can only understand the nature and scope of the acceptance (‘consent’) if we have already accounted for the offer itself. The associative, bi-polar nature of consent, demonstrates that consent, as an act of volition, is more an instrumentality, evidencing a deeper attachment to others. Established governments and their practices must all reflect an articulation of those common values, ideals, goals and objectives. Accordingly, co-operation is vital for constitutional purposes. Most or all of those should be embedded in some way in the very structure and operation of the state, in its constitution. The constitutional authority of the state, whereby it may command and direct its citizens, is accordingly not captured by the idea of mere consent. That fails, inter alia, to address an individual’s participating and realising on the common goals. Nor does consent accurately portray the precise extension of citizenship within a state, inasmuch as it leans unduly to a univocal valence for political objection. It misses or fails to account satisfactorily for the mutuality component, including the possibility of compromise. We take from it therefore a wrong 110  Hobbes, Leviathan (n 10) 228–32; Locke, Two Treatises II (n 10) 95–99, 116–17, 119; Rousseau, Social Contract (n 10) ch 6; and Green, Authority of the State (n 9) 122 ff and 158 ff. 111  Locke, Two Treatises II (n 10) paras 95, 99, 124. 112   ibid paras 119–22. 113   ‘No Man in Civil Society can be exempted from the Laws of it’: Locke, Two Treatises II (n 10) ch 7, paras 94, 116–17, 119. Similarly, the idea proffered here of consensus can also accommodate Locke’s distinction there between someone who enters a political association as a full member, and one who merely submits to a foreign government. Both are forms of political obligation, but the terms of the underlying relationships are different.

122  Primary Right Theory perception of how a state functions, whether and how a state articulates and promotes those common interests and values. Indeed, mere consent is hardly sufficient to establish a state without some antecedent understanding of and agreement on what is on offer. Little regard is paid to the constitutional and political process, to negotiation, intrigue and deliberation, to loyalty, patriotism and momentum, to the institutional premise. The error is compounded when the question becomes not merely the existence of political obligation, but the dissolution of or resiling from the same. The univocal, unilateral nature given to consent on its customary interpretation entails that secession itself may also be unilateral and univocal. The termination of political obligation and connection, on this view, need not consider any mutuality or associative commitments. For example, certain political factions in Québec have claimed that it may unilaterally declare its independence from Canada as a matter of democratic will and autochthonous legitimacy.114 Translated into the primary right model, this view holds that Québeckers have a primary right to withdraw their consent to be citizens of Canada as given by a democratic process of a majority vote. This view pays no heed to the underlying associative relations by which Québeckers are citizens of Canada, and fails by virtue of its reliance on the univocal version of consent theory to account for the bi-polar nature of consent. It treats political obligations and associative commitments as disposable at will. And lastly, in summary, this reliance on the univocal nature of obligations suffers from a complete blindness to their normativity as a function of a holding-in-common and an ‘other-regarding’ perspective. LAW AND POLITICS OF CONSENT THEORY

For the above reasons, it does not follow logically that if consent founds an association, then the withdrawal of that consent should dissolve it; or in other words, that no association may be said to exist or continue to exist without the (continuing) consent of its members. Only in the most extreme form can that be said to be true: namely where all the members are of a mind to dissolve the association. But such unanimity by definition defeats the necessary condition of secession whereby only one section of the members dissent. More generally now, the primary rights theory has shown itself an incomplete explan­ ation and unsatisfactory model for constitutional order and law. It offers little if any explanation on how a constitution comes into existence, why and how it is maintained through consent, and for what purpose (beyond the self-interest of property) it con­ tinues. The theory is too ‘inward looking’, referring to its individualistic and univocal centre of gravity. It fails to appreciate the essential nature of any polity as a co-operative effort where the intertwining of commitments, benefits and burdens, and such like community elements which necessarily go to creating a state, a constitution, constitutional law and legal system in general. A co-operative effort, bi-polarity and associational relationships more generally are the basic building blocks for a polity, constitution, and legal system, including and especially constitutional law. 114   See, eg J Brossard, L’accession à la souvereineté et le cas du Québec (Montréal, PU Montreal, 1976), and D Turp, Le droit de choisir: essais sur le droit du Québec à disposer de lui–même; The Right to Choose: Essays on Québec’s Right of Self–Determination (Montreal, Eds Thémis, 2001).



Law and Politics of Consent Theory 123

This realisation prompted a start at modifying primary rights theory to account for the consensus element. In chapter 2, I had introduced the concepts of mutuality and reciprocity, and associative commitments in general. Substituting ‘co-operation’ for ‘consent’, including as it does the element of volition and mutual association, duly captures in a more explicit and comprehensive fashion what the necessary elements are to bind us to obey state authority. But we needed to translate this initial unformed legal impulse, what we might otherwise call ‘the political’ or ‘the social’ into a more structured form. We needed an institutional mechanism. The need for the institutional premise highlighted the importance of the transformative event in a constitutional order. In summary, the utility of the primary right theory has been merely to establish the ground rules for an effective constitutional theory. It offers little substantial material of its own. This is to be contrasted with a more sophisticated model, one which realistically approaches secession as a reaction or response to oppression. Secession is a remedy, and the model is the remedial right theory.

4 Remedial Right or Just-Cause Theory

T

HE EXAMINATION OF the primary right theory to secession in chapter 3 highlighted the bi-polar nature of consent, from which we developed the criteria of reciprocity and association as fundamental to political obligations. These two ideas, combining into the notion of obligations of reciprocation, informed the intersubjective relationships characterising political associations. These ideas, in turn, led to the suggestion (in a very much Kant-inspired line of argument) that some accounting for the reasons leading to the dissolution of those relationships was morally required in order to terminate them in a morally (and ultimately constitutionally, legally) responsible way. In other words, put shortly, secession required just cause. Whilst fruitful for identifying some of the principal questions confronting constitutional politics and law, and of course political and legal theory more generally, primary right theory proved insufficient and too simplistic as a ground for political obligations, whether in their creation, or more importantly here, in their dissolution. Let us now consider where a just-cause model takes us, in terms of a system of sound constitutional principles for making, preserving and breaking political obligations. The just-cause model conceives of the right to secede as a morally sanctioned assertion of sovereignty over territory by an oppressed group. It is a remedial right in response to oppression. Like the primary right theory, this remedial right is also primary in the sense of not being conferred by, or not arising out of, particular contracts, agreements, constitutional instruments, special relationships or like promising.1 But unlike its primary right colleague, this version does not treat secession merely as an intentional disengagement from a political association. It would also seek to explain the (moral) basis for the removal of territory, as integral to the overall ‘political morality’ of secession, rather than dealing with the question of territory as a collateral or incidental element, as does the primary right model.2 Under classical, Locke-inspired liberal political theory, there exists some right of revolution to force a change of tyrannical, oppressive regime not acting in the best interests of its citizens;3 or equally, one of emigration. But secession

1   Buchanan’s view of the government as agent or trustee for its citizens does not fall under this category, since the remedial right does not arise in virtue of, or inhere in, that relationship (such that any other characterisation of the state-citizen relationship would effectively erase the right): A Buchanan, Secession: the Morality of Political Divorce from Fort Sumpter to Lithuania and Québec (Boulder (Colo), Westview, 1991) 108–11. 2   L Brilmayer, ‘Secession and Self-determination: A Territorial Interpretation’ (1991) 16 Yale JIL 177 also advocates the necessary reference to the competing claims to territory in the analysis of secession. But Brilmayer does not develop any criteria for assessing territorial claims. And in contrast to Buchanan, Brilmayer relies more on practical, legal arguments, rather than arguments from political morality. 3   J Locke, Two Treatises of Government, rev edn (P Laslett (ed), New York, Mentor/New American Library, 1965) ‘The Second Treatise’ (hereafter ‘Two Treatises II’) paras 221–28. A idea of long pedigree: see, eg Marsilius of Padua, Defensor Pacis (1324) (A Gewirth (trans), Toronto, Toronto UP, 1980); Vindicae contra Tyrannos (1579) discussed in G Sabine, A History of Political Theory, rev edn (New York, Henry Holt, 1950)



Remedial Right or Just-Cause Theory 125

allows, in effect, emigration with territory. Hence (continues the reasoning) any moral, political theory of secession should account for the moral claim to territory (or the loss of such claim by the extant state) in addition to the general catalogue of factors speaking to the legitimacy of political authority. Only where neither the moral claims to territor­ ial sovereignty of the seceding party nor those of the state are determinative under the tests proffered by the just-cause theory, does that theory allow resort entirely to other non-territorial moral factors.4 To account for this, the remedial, just-cause version offers a right to secede founded not merely on an active claim by the seceding party to pursue its own interests, but also a prerequisite failure by the state to respect and protect those interests, intentionally or otherwise. That is, under the remedial version, a group has a right to separate itself and its territory from an oppressive, oppressing state; without oppression, there is no right to secede. This implies that the general nature of the right to secede here is a conditioned one. Even if the foundation of a political association is consent, as postulated by liberal theory, the withdrawal of that consent may be exercised only in certain prescribed conditions, only on certain grounds. A further advantage, and in my view critical to the nature of a right, is that the just-cause version thereby also requires a challenge to the party’s interest so as to trigger the moral evaluation necessary to give existence and effect to that right. We need to have the interests of others abutting against our own, with the risk of having all or a part of those conflicting interests unsatisfied, in order to begin talking about rights. Which is to say that a right, political, moral or legal, is that preference given to the range of application for a certain interest relative to, and coordinated with, the ranges of application for other competing interests. The principal exponent of the remedial model is Allen Buchanan. His Secession: the Morality of Political Divorce is the locus classicus for the remedial right theory, where it is first stated in comprehensive fashion. Buchanan’s later work on secession tellingly pursues an effective institutional framework to house the remedial model, and defends the model from his strongest opponents: those who accept nationalism and the ‘national will’ as just cause.5 ‘Tellingly’, because the oppression component to the remedial right theory represents both its strongest, and its weakest, point. On the one hand, the addition of this Hohfeldian counterweight (and whether we package it as a ‘duty’ or not is irrelevant at this moment) provides a baseline or foundation upon which we can build an institutional conception of secession. Oppression suggests a definable, ascertainable and stable criterion, and as such, a realistic standard to evaluate all instances of secession, instead of the willy-nilly voluntarism of the primary right model. The oppression criterion should set the necessary minimum standards of behaviour below which a state should not fall, on pain of losing a section of its territory. As long as a state observes those standards of behaviour, a group may aspire to a situation of greater autonomy or 377–84. Modern expressions: M Kadish and S Kadish, Discretion to Disobey: A Study of Lawful Departures from Legal Rules (Stanford (Calif), Stanford UP, 1973). Yet see J Rawls, Theory of Justice (Cambridge (Mass), Harvard UP, 1971) and ‘The Idea of Public Reason Revisited’ (1997) 64 U Chicago LR 765 (natural duty to support just institutions rendering civil disobedience illegitimate); critiqued by A Whelan in (2001) 111 Ethics 263. 4  Buchanan, Secession (n 1) 113–14. 5   See, eg A Buchanan, ‘The International Institutional Dimension of Secession’ in P Lehning (ed), Theories of Secession (London, Routledge, 1998) 227, his ‘Secession and Democracy’ in M Moore (ed), National Self– determination and Secession (Oxford, Oxford Oxford UP, 1998) 14, and to a lesser extent his ‘What’s So Special About Nations?’ in J Couture, K Nielsen and M Seymour (eds), Rethinking Nationalism (Calgary, Calgary UP, 1998) 283.

126  Remedial Right or Just-Cause Theory independence on demand, but it must be on a negotiated, consensual – and so, peaceful – basis.6 Having such a fixed point renders the remedial right version attractive to, and amenable to, a legal, institutional approach. Buchanan’s position may be seen to receive support in some measure from Birch and Norman.7 But Norman recants to an extent, in part because of his difficulties with the practical application of the just-cause criteria. For the other part, he incorporates a nationalist, multi-nation, perspective in his modelling. In the result he comes to prefer instead a much more proceduralised, formal version, as is clear from his book, Negotiating Nationalism. Birch does not really work out to the same degree the structure of a remedial right, focussing instead on limiting secession to justifiable instances of oppression. Where Buchanan has continued to work on a theoretically grounded application, Schwartz and Waywood have assumed the truth of the tenets and have proceeded from there to establish a series of criteria by which any UN member state ought to assess the secession and consequent sovereignty claims of any local group.8 Their concentration on self-determination as a starting point may not endear them to the Buchanan camp, but does not establish a conceptual divide from remedial right theory. On the other hand, what in particular constitutes the requisite type and degree of oppression presents a good deal of uncertainty and disagreement. Oppression in an extreme form, of physical violence, of economic exploitation and of social depredations, establishes perhaps an easy case where the limits of acceptable behaviour and the (moral) reasonableness of secession are universally acceptable. But not so clear are the instances where a similar immediacy of injury is not apparent, and where a subjective appraisal of the injury assumes a greater weight. Such a problem arises, for example, where a group claims the need to protect its culture, as one recognised ground justifying secession under the remedial right theory. And a culture may be considered to be under threat or under systemic oppression even where the state is not ostensibly doing anything wrong, and indeed, may even be acting within the bounds of human rights provisions.9 Quite apart from any questions concerning the existence of, the need for and the value of a nation or national culture, the uncertainty of what minimal form and degree of oppression is sufficient to trigger the right to secede may frustrate the attempt to provide a cohesive and coherent account for secession except in extreme cases. This would put us right back at the start without a theory, and without any possible institutional, peaceful containment for this type of constitutional stress. With these issues in mind, let me turn now to a closer assessment of the remedial right model, and the oppression criterion in particular.

6   This recalls the inner moral balancing implicit in law, between moralities of duty (minimum standards) and of aspiration (ideals and human excellence), as argued by L Fuller, The Morality of Law, 2nd edn (New Haven (Conn), Yale UP, 1969) 5 ff, 152 ff. 7   A Birch, Nationalism and Nationalist Integration (London, Unwin Hyman, 1989) 63 ff and his ‘Another Liberal Theory of Secession’ (1984) 32 Pol Stud 596; W Norman, ‘The Ethics of Secession as the Regulation of Secessionist Politics’ in Moore, National Self-determination (n 5) 34, his ‘Domesticating Secession’ in A Buchanan and S Macedo (eds), NOMOS XLV: Secession and Self-determination (New York, New York UP, 2003), his ‘Secession and (Constitutional) Democracy’ in F Requejo (ed), Democracy and National Pluralism (London, Routledge, 2001), and his Negotiating Nationalism: Nation-building, Federalism, and Secession (Oxford, Oxford UP, 2006) esp ch 6. 8   B Schwartz and S Waywood, ‘A Model Declaration on the Right of Secession’ (1998) 11 NYU JILPol 761. 9  Buchanan, Secession (n 1) 40, 51–52, 54–55 and 61–64 (case of Québec).



Oppression as Justification for Secession 127

OPPRESSION AS JUSTIFICATION FOR SECESSION

Concept of Oppression The fundamental premise to the remedial right of secession requires the existence of oppression to justify secession: secession is a legitimate (moral) political act, providing it is in response to some form of oppression. Oppression normally refers to discriminatory conduct, or actions which prevent a person from exercising their freedom of action or their human rights.10 Accordingly, I take the definition of oppression for present purposes to be the unjustifiable interference with the interests or commitments of another on a continuing or systematic basis. ‘Interference’ covers, in general, broad terms, all forms of discrimination, of constraining and restraining actions. I assume, moreover, that oppression is a positive act, an act of commission rather than an act of omission. This would encompass an absence of action or a failure to act only insofar as such would represent an ignoring or refusing to comply with the legitimate commands, requests, pleas, and so on, of the thereby oppressed individual or set of individuals.11 In that situation, the act of omission constitutes in effect a positive act of obstruction. It is a legit­imate question, however, whether this conception is unduly restrictive, particularly on a Berlin-inspired view of freedom comprised of ‘positive’ and negative’ elements.12 In such a case, a systematic failure to provide the opportunity or space to exercise the ‘positive’ freedom, but not itself consisting of any form of obstruction per se, could also represent an instance of oppression. Buchanan never really provides a neatly summarised argument making explicit the ethical premises upon which his morally justified version of secession reposes.13 Instead, we are left to extract these premises to his moral argumentation from his assessment of those grounds he finds persuasive for secession, or insufficient to prohibit secession. I would frame his argument as follows. A state’s authority derives from the people the former purports to govern, and serves their mutual advantage and collective interests.14 A state may not legitimately, morally, deprive or jeopardise the interest of any citizen, or group of citizens without compelling moral reasons and compensation.15 (Let us leave to the side the obvious and interesting question of the basis to that moral code, such as 10   And note also its application in Canadian-US corporate law for actions against a corporation, its directors and other prescribed defendants for acts prejudicial to the interests of certain parties: see, eg s 241 of the Canada Business Corporations Act RSC 1985 c C-44 (Can). 11  Rendering ‘oppression’ consonant with ‘discrimination’: T Macklem, ‘Vriend v Alberta: Making the Private Public’ (1999) 44 McGill LJ 197, and F DeCoste, ‘The Separation of State Powers in Liberal Polity: Vriend v Alberta’ (1999) 44 McGill LJ 231. 12   I Berlin, ‘Two Concepts of Liberty’ in his The Proper Study of Mankind: An Anthology of Essays (H Hardy and R Hausheer (eds), London, Pimlico, 1998) 193 ff. 13   Buchanan, ‘Institutional Dimension’ (n 5) 227, and his ‘Toward a Theory of Secession’ (1991) 101 Ethics 322. 14  Buchanan, Secession (n 1) 109 ff (dismissing objections to secession premised on a supposed wrongful taking of a state’s territory) and 56 ff (approving the preservation and protection of culture as a legitimate ground for secession). This is a generally accepted tenet of political liberalism, to which Buchanan is an adherent: see, eg his ‘Political Legitimacy and Democracy’ (2002) 112 Ethics 689, his ‘Institutional Dimension’ (n 5), and his ‘Secession and Democracy’ (n 5). See also S Caney, ‘Self-Government and Secession: the Case of Nations’ (1997) 5 J Pol Phil 351. 15  Buchanan, Secession (n 1) 105–7 (when discussing discriminatory redistribution as a grounds for secession) and 152 (in summary). See also D Philpott, ‘In Defense of Self-determination’ (1995) 105 Ethics 352, 383, and D Weinstock ‘Constitutionalizing the Right to Secede’ (2001) 9 J Pol Phil 182.

128  Remedial Right or Just-Cause Theory mutual advantage, collective interest, or other source, and whether those reasons must be acceptable to all, or to a majority, or only to the affected group.) The moral source of a state’s authority therefore originates in the individual citizen. Acts under state authority not for mutual advantage, collective interest, or like moral reasons, are illegitimate uses of power, and (albeit used here with some trepidation) ultra vires, given the source and nature of the state’s presumed derivative power. Illegitimate acts are immoral acts, by definition having no moral authority or justification, and any control those illegit­ imate acts purport to exercise is likewise illegitimate and immoral. Oppression, by its very nature, causes injustice and is thus immoral. Oppression perpetrated or sanctioned by the state renders the authority of the state illegitimate and invalid, at least as against the oppressed group. Hence, where a state oppresses a section of its population, the state loses the latter’s consent to govern and their obedience, since oppression breaches the terms of agency or trust upon which the state exercises authority over those persons. It is important to bear in mind that Buchanan limits property ownership only to natural persons, and not to the state. The state’s jurisdiction over territory is an extension of its authority over persons.16 Insofar as it has legitimate jurisdiction over its citizens, it has a legitimate claim to control their territory; but once that in personam jurisdiction is lost, its claim to rule over that territory also evaporates by consequence. Accordingly in the case of oppression, the state loses control over them and their property, leaving it open for the oppressed group to provide for its own governance: in effect, permitting secession. The group avoids oppression by creating its own state authority to govern itself. Buchanan, however, might not subscribe to this argument insofar as it proposes a general ground of ‘oppression’ as justification for secession. Buchanan does not refer to, nor make, such a generalisation for the purposes of his remedial right to secede. Instead, in his critical assessment of potential grounds to justify a right to secede, he determines that four reliable, cogent arguments exist, which he treats more or less as particulars, independent of one another. These four are discriminatory redistribution, cultural protection, cultural defence and rectificatory justice. I shall turn to them presently. Beforehand, though, let us settle this possible objection concerning the generalised principle of secession. By generalising in this fashion, I may be vulnerable to the charge of over-extending the real grounds for a secession remedy. Clearly, Buchanan is suggesting that not all forms of oppression will justify secession: only those he cites are sufficient and necessary. But no significant difference exists there between Buchanan’s four grounds and the general principle. They themselves cover all possible instantiations of oppression. For example, a denial of economic or political rights fits under the categories of discriminatory redistribution or cultural preservation. A denial of human rights or of rights of association are likewise subsumed under cultural preservation or discriminatory redistribution. And a denial of territory or political rights fits again under discriminatory redistribution or rectificatory justice.17 Indeed, taking his various categories to cover variously a loss of political, economic, social or cultural rights, what other forms of politically significant oppression might possibly exist but fall outside these categories? Nor does Buchanan establish different standards by which each type of violation of rights can be measured. There are indeed standards, namely that the restrictions on any effective participation in 16  Buchanan, Secession (n 1) 108–10 (when dismissing the objection to secession that it is a wrongful taking of state territory). 17   ibid 40–45, 56 ff, 152–53.



Oppression as Justification for Secession 129

society or political association and on the receipt of benefits therefrom constitute oppression so as to open the possibility of secession. In other words, there appears from Buchanan’s treatment no qualitative difference in moral weight among the four grounds necessitating separate treatment. Of course, such a ranking is possible provided that a similar ranking of moral weight or worth be attributed to the specific content of the right suppressed. But Buchanan does not address this, and I likewise shall not consider it further. We should also note that Buchanan does not provide any determinative criteria of how much oppression in any one of its four figures is necessary, nor who should determine if a case for such oppression is made out, nor who precisely the victims of oppression are.18 Buchanan does not really devote any space to identifying and characterising those who may exercise a right to secede. He also leaves unfinished the precise application of the remedial right to individuals and to groups. And we obtain no more clear a picture from his later work. Nor does the use of a general oppression criterion in any way affect the requirement for a justifiable moral claim to territory. Just as with Buchanan’s four categories, the analysis remains unchanged as to whether the oppression has invalidated any moral claim by the state to jurisdiction over the territory. Recall that under the remedial right version, a political society asserts jurisdiction over land and inhabitants derived from the title to the land held directly by the inhabitants. In view of all this, no substantial hurdle exists in treating the basis of a remedial right to secede as oppression, instead of particular instances of oppression. Unsurprisingly with such a broad definition, we could just as well translate ‘oppression’ into ‘an unjustifiable interference with self-determination on a continuing or systematic basis’. That is, oppression is simply the institutional denial of self-determination. Here, we would extend the generalising to what seems its logical limits. The reliance on self-determination carries with it the real risk of returning to a primary right version of secession, unless we are prepared to defend Buchanan’s more particularised view. The modulation to ‘oppression’ takes its cue from a broad appreciation of ‘interests’ coupled with the premises regarding the nature of individual liberty and well-being, the source of a state’s authority and the latter’s general function. Such a treatment would, of course, emphasise the liberal character and inheritance of Buchanan’s underlying assumptions concerning individual and state. As an aside, it bears noting that doing so would also provide a nice tie-in with international law, and hence a comfortable theoretical foundation for international law.19 Secession, as a matter for international law, would fall within the precincts of self-determination with the condition of oppression signifying the breakdown of legal, political and social order. In any event, all of this neatly reintroduces primary right theory, through a renewed emphasis on self-determination, and its two pillars of choice and consent. Self-determination is a fundamental right (primary right theory), the violation of which (‘oppression’, under the remedial right theory; the denial of self-determination under the primary right version) gives moral account for resiling from political obligations (secession, or the withdrawal of consent). In effect Buchanan’s argument serves to clarify the motives for withdrawing consent, and to supplement the primary right model with the added moral justification for taking property. 18   Beyond attributing the right by necessary implication to whomever happens to be holding the right violated and a more general reference to groups (such as minorities; Buchanan, Secession (n 1) 49 (peoples), 52–56 (cultures), and 139–43). 19   As attempted in Schwartz and Waywood, ‘A Model Declaration’ (n 8).

130  Remedial Right or Just-Cause Theory Accordingly, such generalising would lose any supposed advantage to an understanding of political obligation and rights opened by the just-cause model, which Buchanan’s more detailed approach was intended to disclose. But the translation from oppression to a denial of self-determination is not entirely accurate when measured against the criteria for obligations of reciprocation identified in the previous chapter. Self-determination does not appear able to account for the ‘bipolarity’ of political obligations, referring to reciprocity and association. First, on any reasonable and general understanding of the concept, self-determination speaks first and foremost to the holding and pursuing of a commitment at a solitary individual level. In other words, the concept presents more or less by definition only the view of the self being determined, and the success or failure in the achieving of the self’s objectives. This is no less true for a nationalist approach which sees the nation as a cohesive, coherent and unitary self. Yet there is no consideration of, or accounting given for, the other party in intersubjective relationships. Everything is explicated in terms of the first-­person singular, ‘I’, without room for a ‘we’. The individualistic, or even solipsistic, quality of self-determination entails a blindness, or wilful indifference, to the important analytic criteria of obligations of reciprocation. This stance, and as reiterated in the consent tenet in the primary right theory to political obligation, was the subject of substantial criticism in the previous chapter. Secondly, the shift of emphasis from a breach of concrete (political) rights to a violation of self-determination substitutes an introspective, private assessment of ineffective or unfulfilled definition of self in place of the essential public feature of secession as a breakdown of reciprocity and co-operation among selves. The reference point for polit­ ical association is the cohering or connecting idea of relationships. And so (as I argue below) rights should be understood to represent a co-ordination and ranking of competing interests among (equivalent) members of an association. This conception of rights highlights the requirement for consensus and co-operation among members, grounding the obligations of reciprocation.20 Casting secession in terms of a denial of self-­ determination emphasises only the individual’s immediate gain or loss to self.21 By consequence the reference point for political obligation becomes the autonomous self. And this presumes, rather implausibly, that the individual can define himself independently of society, of his associations with others, such as friends, family, colleagues, neighbours, and so on. That said, however, I should not be taken as supporting a communitarian or nationalist position whereby the individual’s well-being and self-definition is in large measure (if not entirely) a function of his membership in a given culture or nation or like community. I mean only to suggest in very general and unspecific terms that social connections do influence the perception and definition of self, and that no individual can define himself without some reference to and influence from those around him. The degree and intensity of that influence varies according to the individual and circumstances concerned. This reflects more a sort of cosmopolitan openness to selfdefinition than a cultural pre-programming.

20   Echoing the ‘principle of endorsement’: A Ingram, A Political Theory of Rights (Oxford, Oxford UP, 1995) 95 ff, 119 ff, 139–40, 141 ff. 21   Leaving aside a possible utilitarian calculus reducing political obligation to some form of economic calculation: see V Bartkus, The Dynamic of Secession (Cambridge, Cambridge UP, 1999) and M Bookman, The Economics of Secession (London, Macmillan, 1993).



Oppression as Justification for Secession 131

Thirdly, underlying the above two points is the principal weakness of self-­ determination as a concept without ascertainable content.22 Inasmuch as it speaks only to private, individual commitments (the solipsistic ‘I’), it represents only raw material, and still needs refining to make it useable and workable for a society. An individual becomes a member of and participates in society to the extent that he adapts or modulates those private, individual commitments in function of his fellow members; that is, membership in a group requires accounting for and to the other members. And insofar as it incorporates some idea of intersubjective relationships, we may reasonably argue that this already presumes the concepts of reciprocity and association. For these reasons, it is important not to generalise or translate the concept of oppression, as described above, into terms of the denial of self-determination. Fundamental Difference from the Primary Right Model More distinguishes the remedial right model from the primary right one than simply a requirement to show just cause for secession, and a related dismissal of (at least) a pure, unfettered self-determination derivation for secession.23 The conditioning of secession demonstrates a more profound conceptual division between the primary right version and the remedial right one, whether intended by Buchanan or not.24 By positing oppression as a trigger for secession, indeed as a necessary element,25 Buchanan (perhaps unwittingly) shifts the moral fulcrum away from the purely individual and internal, to the inter-personal, external aspect of (associational) relationships. Secession ceases to be exclusively a private, primary act of will, and becomes instead a reactionary, public act. Our moral assessment judges not so much the authenticity of the moral agent and act, as it judges the peculiar success or failure of associating with others and our response to that breakdown of an associational relationship. To do so, that moral evaluation must operate on a more sophisticated level. The elemental (and to a degree, trivial) aspect of authentic personal choice, of volition, is granted, or at least is not doubted in essence. But its particular exercise during the interaction of human beings, among them, in a given set of circumstances, is very much at issue. Secession might even be seen on this view as a moral judgement of the (political) conduct of others. In any event, all of those additional elements are to factor into a moral, political account of secession. And so too in a legal account of secession. It is no simple matter of asserting the presence, the absence or the withdrawal of some idea of consent. Put in more concrete terms, the representation of secession as a reaction to another’s injustice (in the form of oppression) suggests that secession is a remedy dependent upon 22  Buchanan criticises self-determination for lack of meaning as well, but concentrates on the practical impossibilities of defining ‘people’, ‘culture’ and related components: Buchanan, Secession (n 1) 48–53. 23  Which basic distinction and its importance has escaped the notice of some commentators: see, eg K MacMillan, ‘Secession Perspectives and the Independence of Québec’ (1999) 7 Tulane JICL 333, 335–38 (demonstrating significant confusion between remedial rights, primary rights and nationalist based models, and relying perhaps too heavily on K Nielsen, ‘Liberal Nationalism, Liberal Democracies, and Secession’ (1998) 48 U Toronto LJ 253 (a slightly revised version of his ‘Liberal Nationalism and Secession’ in Moore, National Self-determination (n 5) 103)). 24   From Buchanan’s perspective the differentiation at this level is likely unintended because his primary goal is to justify a right to secede rather than a remedy or some other formulation: Buchanan, Secession (n 1) 27–28, 113–14, 150. 25  Buchanan, Secession (n 1) 111, 114, 152–53.

132  Remedial Right or Just-Cause Theory a breach of antecedent rights, and does not represent a primary exercise of those rights as argued for by the primary rights camp, nationalists included. Our associating with others does indeed generate rights, as our respective commitments compete for mutual recognition. When the association fails, or its bonds labour under some stress, we search out some remedy to relieve, avoid or cure the stress and rifts, or unwind the constitutive relationships. At a constitutional and political level, such remedies include secession. But secession does not represent a primary exercise of rights and commitments. Its nature and character, moral, political, legal, and otherwise, derives from those antecedent rights and the breach thereof. Remedies restore the conditions in which an instantiation of the right may obtain, in which the right may be exercised. In no way can secession therefore stand as a right, or the exercise or instantiation thereof. Thus, treating secession a remedy, even under the remedial right model, separates it at a more fundamental, conceptual level from the primary right view. Fortunately too, treating secession as a remedy, not as a right, proves a better account of secession from a constitutional (political and legal) perspective. It offers a better theoretical grasp of certain basic intuitions and concepts of law, legal systems and political obligations. And it offers a more practical and practicable account of how countries and people actually function. These claims, of course, are still to be examined. The first task is the division of right from remedy. FROM RIGHT TO REMEDY

As an instance of political morality, secession relies on its character as an answer to injust­ ice for its moral legitimacy. Secession, we are to understand, is a legitimate political act in response to oppression. Now all this may well confirm our intuition that secession is morally justified in circumstances of oppression, whatever they may be, but does it also mean that a right to secede exists? That secession is a right, moral or otherwise? What Buchanan has justified, whether or not persuasively, is the purported legitimacy of certain (political) acts taken in response to the injustice of oppression. To a legally trained mind, however, acts to rectify injustice or violations of rights are at first sight remedies, not rights in se.26 A breach of a right gives rise to a remedy, the existence and nature of the remedy being dependent and conditional upon the right and its breach. The right and its breach are logically antecedent and separate from the remedy. A remedy is thus the object of a logically prior entitlement but one separate from the right itself. It cannot be the entitlement itself since the remedy must be applied from outside that right so as to restore, or enforce, the right. Nor can it be the object of the prior entitlement, because the fact of a breach (of the right) implies that the objective of the right has been frustrated. And no right reasonably and logically intends its own breach, its own frustration of purpose. To be clear, I argue only against a conflation of right and remedy, and for a real distinction in substance and form between a right and a remedy. But I take no position, at least for now, on (1) whether every right necessarily entails a 26   See, eg E Sherwin, ‘An Essay on Private Remedies’ (1993) 6 CJLJ 89; D Zeigler, ‘Rights Require Remedies: A New Approach to the Enforcement of Rights in the Federal Courts’ (1987) 38 Hastings LJ 665 and his ‘Rights, Rights of Action and Remedies: An Integrated Approach’ (2001) 76 Washington LR 67; M Tilbury, Civil Remedies (London, Butterworths, 1990) vol I paras 1001–5. Yet see G Paton and D Derham, A Textbook on Jurisprudence, 4th edn (Oxford, Oxford UP, 1972) 487 ff (remedies under the heading of ‘remedial rights’).



From Right to Remedy 133

remedy, or even a specific remedy (namely a right to a remedy); and (2) the nature and character of a remedy. It would follow that Buchanan has thus simply argued that secession is a reasonable and justifiable remedy for certain instances of state-sanctioned oppression. Oppression may indeed be just cause for secession, but it does not make secession itself an independent right. What independent rights do exist in the circumstances, are the rights whose violation, qua oppression, occasion the need for a secession remedy. (For Buchanan, these are violations of economic, political, human, and cultural rights, to all of which we shall come presently.) Thus, secession is not a right, of moral character or otherwise, but a means to rectify certain violations of certain antecedent rights. Secession is not a right, but rather a remedy. To press further this notional independence between right and remedy, consider how we rectify an injustice, how we apply a remedy. A right and its breach establish the entitlement to a remedy, as well as what remedy is appropriate and effective in the circumstances. This entails, first, that we must determine what the right at issue is, and whether it has been violated. We then assess how we might rectify the situation so as to give effect to the (exercise of) the right, namely what the right and violation can attract as an effective remedy.27 In so doing, we consider effectiveness not only as a functional (ends) criterion, to re-establish the status quo so to speak, but also as a means criterion, to minimise any further disruption to the present situation and other rights and interests. The greater the disruption and overall destabilising effects of any given remedy, the greater must be the injustice caused by the violation, or the certainty that no other effective remedy exists. It is along these lines that we ought to consider whether a remedy in the nature of secession is appropriate in those given circumstances. The right, or its violation, may not support any specific remedy, or at least such an extreme form of rectification as secession. Or the circumstances may not be appropriate for a secession remedy. Of course, this is not to exclude the possibility that some other effective remedy may exist for the alleged breach of rights in each of the two foregoing situations. But in none of this is the remedy a ‘right’ per se. It is not an entitlement or a claim which defines the circumstances, and determines how we interpret them. The antecedent set of rights establishes that perspective or frame of reference by which we assess the circumstances so as to conclude whether they are good reasons to secede or not. To paraphrase Dworkin, secession does not trump the particular set of circumstances, but is trumped by them.28 Secession becomes but one of a list of possible steps to rectify oppression, conditional upon an appropriate set of circumstances, and the latter’s interpretation in light of given rights and the effectiveness of the remedy. And this would entail an assessment of what type of rights, the breach whereof, should lead to secession. 27   See, eg in a Canadian constitutional context, Schachter v Canada [1992] 2 SCR 679 (what to formulate as an appropriate and effective Charter remedy); Reference re Manitoba Language Rights [1985] 1 SCR 721 (effective and appropriate remedy for a breach of constitutional bilingual language guarantees rendering in effect the entire body of Manitoba statute law invalid, illegal and ineffective); Doucet-Boudreault v NS (Min Education) [2003] 3 SCR 3 (trial judge not functus where retaining post-trial supervision over implementation of Charter remedy); R v 974649 Ont Inc [2001] 3 SCR 575 (costs against the Crown for Charter violation); and the attempts to prevent the merger of two political parties (Progressive Conservative and Alliance): Ahenakew v MacKay (2004) 241 DLR (4th) 314 (Ont CA) and Stevens v Conservative Party of Canada (2005) 262 DLR (4th) 532 (FCA). 28   R Dworkin, Taking Rights Seriously (Cambridge (Mass), Harvard UP, 1978) xi and his ‘Rights as Trumps’ in J Waldron (ed), Theories of Rights (Oxford, Oxford UP, 1984) 153.

134  Remedial Right or Just-Cause Theory We see precisely this sort of reasoning in Buchanan’s evaluation of the circumstances providing sound, weighty moral reasons to secede, or not to interfere with secession.29 In effect, the rights at issue are economic rights (that is, not to be exploited for morally arbitrary reasons, and without compensation), basic civil and political rights, and rights to culture (that is, a right to belong to a culture, and preserve it from forced extinction). A violation of those rights, in the manner specified by Buchanan, opens the door to their rectification through a secession. And any residual hesitation or continuing doubt on this point should quickly dissipate with Buchanan’s treatment of secession as a measure of last resort, where other less disruptive means to rectify the oppression are absent or have failed.30 That is, to characterise secession in this manner as one of a set of graduated responses to various wrongs clearly demonstrates Buchanan’s understanding of secession as a remedy, and not as a right, whether or not he is prepared to concede the same.31 The first of two obvious rejoinders would object to disqualifying a remedy as a right, to the deemed incapacity of a remedy to be a right. This objection in substance denies that the nature of any supposed independence between right and remedy necessarily prohibits a remedy from being a right. Insofar as we may say that an aggrieved person has a ‘right to a remedy’, or that those causing injury have some obligation to repair the wrong, we must be taken to concede Buchanan’s point. The second rejoinder rejects the characteristics or understanding of a right adopted above, especially as applied to Buchanan’s analysis.32 Specifically, Buchanan has drawn his own definition of a right of political morality. Sound moral reasons for seceding, together with sound moral reasons not to interfere with a seceding, constitute his definition of a right for the purposes of his remedial right to secession.33 The two objections are linked, of course, by the common issue of what constitutes a right. An understanding of what a right is, is critical to an understanding of secession. Turning first to the objection from definitions, we are supposedly constrained to criticise Buchanan’s right to secede within the confines of a conception of rights being the junction of ‘sound moral reasons for doing X’, and ‘sound moral reasons not to interfere with the doing of X’. Or, at least, we are not entitled to treat Buchanan’s idea of a right (to secede) as specifically a legal right, and criticise it on that basis.34 It requires us to accept the core premise that the definition of ‘right’ in political morality differs fundamentally from corresponding definitions in law, ethics, economics, psychology, and so on. No significant common ground or unity is taken to exist between, at least, law and political morality/ philosophy concerning rights. Not only is there no common substantive ground, the analytic techniques and criteria also differ in both domains. Such common ground would have allowed us to access, assess and compare one description’s claims for rights from over the border (so to speak) from the other descriptor. Whether a right of political morality should become a legal right requires apparently a transmogrification of the substance of the politi Buchanan, Secession (n 1) 27, 80, 151–52 (definition of a ‘right’).   ibid 60–61 and 152–53. Buchanan’s search for a suitable (international) institutional framework to house the remedial right to secede also relies on this foundation of a remedy of last resort: Buchanan, ‘Institutional Dimension’ (n 5). 31  Buchanan, Secession (n 1) 27, 80. 32   A rejoinder already early anticipated: ibid 28. 33  ibid 27, 80, 152. 34   A caveat already cited early on: ibid 25–28, 151. For to do otherwise, so it would follow, renders the criticism invalid or faulty under at least the ‘straw man’ principle. 29 30



From Right to Remedy 135

cal right by the sine qua non that makes law, law. This latter represents an ontological barrier between politics and law, one which divides supposed political questions, such as secession,35 electioneering,36 ministerial decisions37 and policy,38 from supposedly legal questions, such as trespass, review of tribunal decisions and the scope and range of established rights.39 All this leaves us with three options. First, we may accept the theoretical constraints, and consider whether any internal inconsistencies mar Buchanan’s argument for a remedial right. Secondly, we might demonstrate that Buchanan has himself exceeded the theoretical limitations of his definition, or even that the definition is too narrowly formulated to be useful.40 Thirdly, we may simply argue that the definition is incorrect, a non-starter, and assess Buchanan’s arguments irrespective of his definition. This last option, given the above remarks, clearly requires us to deny the supposed ontological barrier between politics and law, postulated by Buchanan at the outset, and consistently adhered to in his later work seeking out institutional legal frameworks in public inter­ national law in which to house the remedial right. Not surprisingly then, we could find ourselves squarely enmeshed in ongoing theoretical disputes over the nature of the law, over ‘exclusive’ or ‘inclusive’ varieties of positivism, or, rejecting that in favour of natural law, over realism or some aspect of the critical legal theory or beyond. Canvassing these contentions in any degree is not the issue. What will be of significance, however, is signalling the strong and necessary connection of any concept of right and remedy with that of law and a legal system as a whole (the contiguity and overlap of law, politics and ethics), and the persistent difficulty of coherently compartmentalising social morality, political morality and legal morality, of establishing the exclusive borders and boundaries of each of that triumvirate. Pursuing the third option here also integrates my position regarding the second of Buchanan’s objections. The second objection in support of Buchanan’s position would deny any independence, or conceptual distinction, between right and remedy. Developing this argument of a contiguity between right and remedy leads us in two parallel directions. The first would deny any distinction at all. The second, a more nuanced version, would imply remedies as of necessity into the structure of law and a legal system. To deny any distinction between right and remedy supposes a Hohfeld-inspired conception of a right, whereby rights are claims or entitlements against others, created,

  Reference re Québec Secession [1998] 2 SCR 217 would suggest otherwise.  Yet gerrymandering and re-apportionment do constitute legal questions in the United States: see, eg Reynolds v Sims 377 US 533 (1964); Davis v Bandemer 478 US 109 (1986); Busbee v Smith 459 US 1166 (1983); R Ford, ‘Geography and Sovereignty: Jurisdictional Formation and Racial Segregation’ (1997) 49 Stanford LR 1365. 37   Canada (AG) v Inuit Tapirisat of Canada [1980] 2 SCR 735; Friends of the Oldman River Society v Canada (Min Transport) [1992] 1 SCR 3; Cook v Alberta (Min Environment) (2001) 293 AR 237 (CA); and St Anthony Seafoods LLP v Nfld (Min Fisheries) (2004) 245 DLR (4th) 597 (Nfld CA). 38   Operation Dismantle Inc v The Queen [1985] 1 SCR 441. 39   See generally on the political questions doctrine L Sossin, Boundaries of Judicial Review: the Law of Justiciability in Canada (Toronto, Carswell, 1999) ch 4 (United States, Canada, United Kingdom); L Henkin, ‘Is there a “Political Questions” Doctrine’ (1976) 85 Yale LJ 597; M Redish, ‘Judicial Review and the Political Question’ (1985) 79 Northwestern U LR 1031; and R Nagel, ‘Political Law, Legalistic Politics: A Recent History of the Political Questions Doctrine’ (1989) 56 U Chicago LR 643. 40   Adopting this tack, see, eg Caney, ‘Self-Government’ (n 14) 365 ff; L Bishai, ‘Secession and the Problems of Liberal Theory’ in P Lehning (ed), Theories of Secession (London, Routledge, 1998) 92, 96–100; and M Moore, ‘The Ethics of Secession and a Normative Theory of Nationalism’ (2000) 13 CJLJ 225. 35 36

136  Remedial Right or Just-Cause Theory recognised and enforced by a legal system.41 Hohfeld’s pre-eminent contribution was to highlight the indissoluble link between right and duty, as a representation of the compulsory nature of both. Most essays at defining a right and explaining its nature generally settle on a typology of rights with correlative duties, but of varying degrees of proximity. The closer one asseverates a necessary, structured connection between right and duty, the closer one comes to Hohfeld’s position, which defines rights and duties in function of one another.42 Moreover, Hohfeld has no separate consideration of remedies within his taxonomy: all is subsumed under the discussion of duty and enforcement. This reified conception can, for the purposes of clarification, ignore the practicable content of any given right or remedy. It reduces both right and remedy to the formality of an institutionally created and enforced claim.43 Thus, insofar as a remedy creates an entitlement enforceable by one against another in a legal system, it is (perfunctorily) indistinguishable from a right, more traditionally conceived. The more nuanced version, on the other hand, admits of some distinction between right and remedy, but dismisses or diminishes any significance to it by virtue of a correlativity between right and remedy. That correlativity is a definitional and existential constraint upon the institutional concept of a right. Just as there exists a (definition imposed) ‘Hohfeld’ correlativity between right and duty, so too does a similarly formulated, necessary connection exist between right and remedy. Inasmuch as any system of law recognises rights, it must provide for the enforcement and restoration of those rights by way of remedies. Hence, a definition of a right would include the element of correcting breaches or deviations therefrom as an aspect of its compulsory nature. Thus, where a (legal) right exists, so too does a remedy for wrongs done against that right. Wrongs based on rights unknown to law are wrongs unknown to law; that is, those rights offer no basis for the conferral of remedial assistance at law. In such cases there is nothing to repair, or there is simply no wrong done. In this sense, a right to a remedy may be said to exist: ubi jus, ibi remedium.44 This more nuanced version retains the Hohfeld-inspired character of a remedy as an institutional claim or entitlement created, recognised and enforced by a legal system, albeit one conditioned upon the antecedent breach of a right. That a remedy relies on certain preconditions obtaining does not detract from its character of a right under either the general or nuanced views. These conditions – briefly, that an antecedent right exists, that it has been violated, and that said wrong has caused damages – do indeed establish a distinction between (antecedent) rights and remedies. But that distinction pertains to the existence of a remedial right in the circumstances, not to the nature of the remedy as a right. The conditional existence of a remedy does not undermine its compulsory, objective nature as a claim or entitlement. Given facts satisfying those preconditions, the entitlement to a remedy follows. And the legal system will enforce the remedy. Moreover, we might venture so far as to say that even antecedent rights are likewise conditioned upon the appropriate circumstances and relationships existing. It is not every set of facts which gives a right to free association, or to due con41   W Hohfeld, ‘Fundamental Legal Conceptions I and II’ in his Fundamental Legal Conceptions (W Lock (ed), New Haven (Conn), Yale UP, 1924) 23, 36 ff. 42   See R Kramer (ed), Debate on Rights (Oxford, Oxford UP, 1998). 43   Hence the ongoing discussion between will theory and choice/interest theory as the source of rights: see Kramer, Debate on Rights (n 42) and J Raz, The Morality of Freedom (Oxford, Oxford UP, 1986) 191 (rights based on interests). 44   Ashby v White (1763) 1 ER 417 (HL), and see generally Tilbury, Civil Remedies (n 26) vol 1.



From Right to Remedy 137

tractual performance, or to damages, or a right to secede. So contingency is insufficient to divide rights from remedies. The key premises to the contiguity argument require us to accept a conception of a right as a legally-enforced claim or entitlement, and a characterisation of a remedy as such a claim, to complete the identity parade. It is a formalistic, positivistic conception of a right, independent of the content of the right. The source of that content is likely morality or politics, and the content is certainly a question with moral and political elements. All this gives rise to a number of questions, consonant with wide generalisations and with the Hohfeld-inspired conception of rights. Before examining these, let me briefly sum up the conception here of a right. A right is a claim upon another regarding commitment in context of mutual advantage. It is not a claim for a sole or unique benefit. That is, to claim a right is to claim the benefits attributable to a co-operative relationship. These are the mutual and reciprocal benefits of common individual commitments operating and interpreted in the context of an intersubjective relationship. They represent a common space of action co-ordination, and do not refer to a solipsistic, individualistic basis independent of any social setting. A Right Understanding of Secession Buchanan, and those advancing a remedial right of secession, encounter two serious, and likely insoluble, problems to their conception of a right. First, and as alluded to earlier, they fail to appreciate the categorical difference between grounding a right upon the commission of a wrong or violation of a commitment, such as oppression (a negative, reactive basis), and grounding one upon the pursuit of some independently given, self-standing commitment, such as self-determination45 (a positive, pro-active basis). In the latter case, a right based upon self-determination represents the pursuit of that commitment, or is derived in some other fashion from the pursuit of that commitment as an instantiation thereof. The self-determination basis thus provides a primary qualification of the circumstances and the individuals’ relationship thereto. Put bluntly, the right arises directly from an individual’s set of commitments, and defines the individual’s position in those facts. But this is not the case with a negative basis, such as an oppression basis. There, the right arises as a reaction to a wrong being done. The wrong necessarily implies antecedent rights, for it is by virtue of a deviation from those antecedent rights that we may constitute a wrong in the first place. These antecedent rights define the circumstances, as a matter of self-determination, or free speech, or equality. The ‘negative’ right derives from the wrong, not the antecedent rights. It is a right at whose core is the idea of being free from wrongs. A negative orientation to a definition of a right fails to establish the necessary link to the individual’s set of commitments as the primary qualifier. Indeed, that can explain why Buchanan spends most of his effort examining positive rights, the breach of which may entail secession, rather than exploring the nature of the breach itself.46 At best, such a basis can only establish one putative right – a right to be allowed to pursue one’s rights, whatever they may be. This approach is likely too simplistic and overly generalised to be of any use. A right must evidence  Buchanan, Secession (n 1) 48–52 dismisses self-determination as a viable basis for a right to secession.  Buchanan, Secession (n 1) 106 ff; see also his ‘Secession and Democracy’ (n 5) and ‘Institutional Dimension’ (n 5) 25 ff. 45 46

138  Remedial Right or Just-Cause Theory some direct connection to an individual’s commitments, and thereby provide some principal qualification or characterisation to that individual’s presence in a world with others. It follows from this, of course, that the content of a right bears considerable significance for the existence of said right. The second difficulty, following from the above, is the insufficiency of Buchanan’s definition of a right. By setting his terms so generally, so broadly, Buchanan risks circularity or contradiction. Taken on its face, the definition would appear to allow anything to become a right if morally permissible and if interference in the doing of it is morally impermissible. For example, brushing one’s teeth is undoubtedly morally permissible. Now, it should follow that interfering with good dental hygiene is itself morally impermissible; that is, the sound moral reasons under the second arm follow (tautologically) from the moral reasons under the first arm. It is not without significance, on this point, that Buchanan never really argues for a duty (the second branch of the formula) on the state not to interfere with secession. His contention simply denies the state any legit­ imate authority over persons and property, not that a state has a duty not to interfere in the secession movement.47 Now, if the moral permissibility under the second arm does not follow, then we have more of a problem than mere toothache. The moral reasons satisfying the one arm do not count for the same in the other. The reasons justifying a moral right in the one instance do not justify the duty in the second. Either the formula leads to a contra­diction: it is morally permissible to exercise right R and it is also morally permissible to interfere with the doing of right R. Or it judges moral rights and moral duties on separ­ate, apart moral terms: doing right R is permissible under moral code M1, and inter­fering with R is permissible under moral code M2, where M1 is not the same as M2. This violates the correlativity thesis which, in its strictest formulation, defines a right in function of a duty and a duty in function of a right (and in its widest, merely links the two together).48 If this be the case, no (moral) right is free from violation since there exists no correlative duty to comply with it. The right loses thereby its compulsory nature, necessary to the concept of a right. And compulsion, the obligation to obey, is fundamental to the concept of a right, whatever view we might take of its definition being tied to a connection of rights and rules and thus the obligation to obey/conform to legal duties.49 Criticism of the imprecision to Buchanan’s definition extends also to its concrete formulation. Assuming that we can establish that something, like secession, is morally permissible and interference with it is morally impermissible, have we really thus con­ stituted a right to secession? Have we demonstrated the necessity, compulsion, duty and enforceability associated with a concept of a right? Let us first put to one side the 47  Buchanan, Secession (n 1) 27–28, 80, 151–54. By way of corroboration, Schwartz and Waywood, ‘Model Declaration’ (n 8) simply bypass the question of a duty on a state not to interfere in secession when applying the remedial right theory and shift perspective from the afflicted state to UN member states. 48   Insofar as Buchanan may be said to adhere to the Hohfeld system, suggested at least prima facie by his bifurcated definition of a ‘right’. For an explication of the correlativity thesis: R Kramer, ‘Rights Without Trimmings’ in R Kramer (ed), Debate on Rights (Oxford, Oxford UP, 1998) 7, and Raz, Morality of Freedom (n 43) 170 ff. 49   See, eg C Allen, ‘Legal Duties’ in his Legal Duties and Other Essays in Jurisprudence (Oxford, Oxford UP, 1931); A Ross, On Law and Justice (London, Stevens & Sons, 1958); HLA Hart, The Concept of Law, 2nd edn (Oxford, Oxford UP, 1994); R Dworkin, Law’s Empire (Cambridge (Mass), Belknap/Harvard UP, 1985) and his Taking Rights Seriously (Cambridge (Mass), Harvard UP, 1978); Raz, Morality of Freedom (n 43) 166–68, 180, 183–84; and A Ingram, A Political Theory of Rights (Oxford, Oxford UP, 1995) 195. See also R Summers, The Moral Foundation of Rights (Oxford, Oxford UP, 1987) 25.



From Right to Remedy 139

semantic difficulties with the precatory formulation ‘permissible’ and ‘impermissible’, where we might have expected the more directive ‘permitted’ and ‘not permitted’, in service of the compulsory nature of the right. We need also to set aside the obvious problems attendant on any definition of a right, moral or otherwise, namely the stipulation of which moral code governs, how it applies, and which of the interest or will theory we happen to prefer. The division between the ‘will’ theory and the ‘interest’ theory, a divide cut by a deep sea of ink, separates those who found the content of a right upon an act of will or volition of the rights-holder likely made in accordance with his perception of his current interests (will theory) and those who base the content of a right upon an ascription to the rights-holder of particular interests deserving of protection as being fundamental to that person’s well-being (interest theory). Both include an ineluctable requirement to offer some concept of fundamental human nature, with the significant distinction that the interest theory applies its concept, whatever that may be, to what rights are available to a person.50 All this aside, we still have no answer as to how moral approbation of X converts X into a right. It is certainly not self-evident. In part, the fault lies with Buchanan. His definition of a right echoes that of Hohfeld, but does not track it exactly. He imports the condition of moral approbation to give substance to the concept of right-duty. The new term supersedes simple internal (definitional) necessity and adds external elements requiring independent justification. As I have suggested above, that condition is too general, too imprecise and too uncertain to be of any value, even generously assuming the existence of some moral code applicable to liberal democracies. Moreover, the existence of a right to secession means there exists a duty to permit secession. Buchanan never argues for such a duty. And Buchanan does not consider the possibility that secession may form not a right, but a privilege (with a ‘no-right’ correlative), or a power (with a liability correlative), or even an immunity (with a disability correlative). Most likely he ignored the latter because none carry the element of compulsion with them. Without too much struggle and without altering much of any significance, Buchanan’s position may instead be taken to justify secession, not as a right, but as a privilege, or a power. As a leading consideration, his treatment of the state as a trustee and its loss of jurisdiction, of authority to govern creates a situation more of a ‘no-right’ or ‘liability’ (not to interfere with secession) than ‘duty’. But none of this helps us clarify any given act as a right or other than a right. The fault also lies with the Hohfeld approach to rights in general. The Hohfeld contribution to an understanding of rights is limited to an acceptance of the necessary (definitional) correlativity between right and duty, as a function or product of the compulsory nature of the two. His impetus was to examine the legal treatment and confusion surrounding legal and equitable rights, and in personam and in rem rights.51 Hohfeld sought to provide a taxonomy of jural relations, distinguishing between those called ‘rights’, and the rest called ‘privileges’, ‘immunities’ and ‘powers’.52 More fully, the Hohfeld table, comprised of the fundamental terms, set out these jural correlatives and jural contradictories, namely (right/no-right), (duty–liberty), (power–disability) and 50   See, eg Paton and Derham, Jurisprudence (n 26) 287–90, and Kramer, Debate on Rights (n 42). If forced to choose, I would follow Allen’s view that, in truth, a right is an admixture of both will and interest elements: Allen, ‘Legal Duties’ (n 49) 183. 51  Hohfeld, Legal Conceptions (n 41) 65 ff. 52   ibid 36. See also Kramer, ‘Rights Without Trimmings’ (n 48), and NE Simmonds, ‘Rights at the Cutting Edge’ in M Kramer (ed), Debate on Rights (Oxford, Oxford UP, 1998).

140  Remedial Right or Just-Cause Theory (immunity–liability). These terms were themselves not subject to further analysis or definition, except with reference to themselves, and so were ‘fundamental’. He submitted that no right exists without a duty, and no duty, without a right (the so called ‘correlativity thesis’) as a matter of definition. For what is critical to a right, as against all other forms of jural relations, is not its enforceability simpliciter, that it forms the basis of a claim. Rather, it stands as a positive obligation, compelling the one charged with a duty to conform as required by the right. Hohfeld’s analysis, however, goes no further than this. As might be expected, the Hohfeld conception and taxonomy has come under considerable favourable and unfavourable scrutiny.53 His taxonomy cannot, and does not, purport to establish the nature of a right, its content, or any other question associated with the substance of a right – apart from the correlativity thesis. This does not mean that Hohfeld is wrong in his concept of rights, merely that his descriptive jurisprudence is unsuited or unable to explain or ground the nature of rights as a matter of analytic jurisprudence. Because Hohfeld treats a right as a basic particle, not subject to further analysis or definition except in terms of jural correlatives and contradictories, we obtain no understanding of the compulsory character of a right except as a tenet of faith by our equally faithful adoption of the Hohfeld definition. Whether the compulsory nature inheres in the right itself, or derives from some institutional premise via recognition and enforcement, is beyond the descriptive jurisprudence of Hohfeld. Likewise, we must look elsewhere for the source and substance of rights, whether derived from a natural law view or a positivistic view, or one based on the will or interest theories. In sum, Buchanan’s definition of a right, in the context of a putative right of secession, is insufficient. But my contention here extends beyond merely demonstrating how inapt and miscast the Buchanan and Hohfeld inspired version of a right, be it one of secession or otherwise, may be. Secession itself can not form the subject of a right proper; that is, the concept of secession does not fit within a concept of rights, properly stated. First, secession is usually defined in terms of a unilateral termination of extant political and constitutional relationships, the rejection of the benefits and burdens attendant thereon, and the assertion of competing, overriding relationships. Secondly, those relationships import and rely on the ideas of co-operative, associational relationships, of reciprocity and mutuality, as introduced in my critique of the primary rights model in the previous chapter. I identified there an intersubjective bond as definitive of an association, wherein the parties’ respective private commitments arranged themselves into a relationship defined by continuity and mutuality and which thereby became matters of public concern. Thirdly, I take as granted three fundamental (descriptive) intuitions about rights, howsoever described and defined. We know, first, that a right presupposes an extant associative relationship with at least one other person. It makes no sense to speak of a hermit’s rights, or the rights of Robinson Crusoe – at least until the arrival of Man Friday. The existence of such a relationship allows for the competition of commitments, of interests, 53   See generally M Radin, ‘A Restatement of Hohfeld’ (1938) 51 Harvard LR 1141; A Halpin, ‘Fundamental Legal Conceptions Reconsidered’ (2003) 16 CJLJ 41, his ‘Hohfeld’s Conceptions: From Eight to Two’ (1985) 44 Cambridge LJ 435, and his Rights and Law: Analysis and Theory (Oxford, Oxford UP, 1997); C Wellman, ‘On Conflicts Between Rights’ (1995) 14 Law and Phil 271; J Stone, ‘An Analysis of Hohfeld’ (1963) 48 Minnesota LR 877; S Hudson and D Husak, ‘Legal Rights: How Useful is Hohfeldian Analysis?’ (1980) 37 Phil Studies 45, and T Perry, ‘Reply in Defense of Hohfeld’ (1980) 37 Phil Studies 203. The essays in Kramer, Debate on Rights (n 42) aim not at directly undermining or upholding the Hohfeld taxonomy but rather referring to it as a touchstone in the debate between ‘interest’ based and ‘will’ based conceptions of rights.



From Right to Remedy 141

between the parties. Secondly, by asserting a right, we claim a priority for particular commitments of ours, to prevail over the competing ones of the other party in the context of that relationship. The priority translates into a duty on the other to amend his conduct (or commitments) accordingly. Our last intuition recognises the need for some system or structure which declares, assesses, confers priority on the relevant competing interests. Broadly, in other words, we need something to measure priority. Given these considerations, I would offer my own definition of a right as follows. Let me also preface this by conceding that I do not explicate fully nor present in any detail, in what follows, the entire concept and justification for the concept of rights proposed here. I intend merely to sketch out the leading ideas.54 Underlying the entire discussion is the presumption and motivation of a direct application first and foremost to legal rights, albeit with the ultimate goal of application to all rights across the board. A right is formed to the extent to which a party to a relationship may pursue certain commitments considered necessary and sufficient to the complex interactions defining or constituting that particular relationship, in the face of and unimpeded by other competing commitments of the other parties to the relationship. In other words, the conditions for the possibility of a right include certain constituent commitments ordered in some form of relationship. It is assumed that the composition of commitments in a relationship, and the commitments generally coming into play, are not mutually exclusive nor necessarily consistent with each other, nor even aligned with the same objectives in mind. The pursuit of certain of those ‘core’ commitments obtains a precedence not otherwise enjoyed or enjoyable in the other jural relations which regularly allow for the compromise and curtailment of essential commitments in similar circumstances. A (correlative) duty arises to the extent to which the other parties must observe those limits in the pursuit of their respective commitments, and perform the correlative acts in fulfilment of the relationship. This definition is teleological in orientation: it attends to the purpose and nature of the putative relationship right in its social context. It bypasses the unnecessary situating of the source of the right being in will or in choice, and concentrates instead on the arrangement and limits to the various commitments attributable to the relationship. And the definition allows for some evolution in the particular content of a right, as the recognition of the relationship and the arrangement of its constitutive commitments change over time and place. Thus, a right represents our expectation that the counterparty to a relationship will adjust his behaviour and interests to accommodate certain of our own interests in light of the relationship we share. Put perhaps less cryptically yet, when we enter the types of associative bonds contemplated here, we are engaged to pursue the shared idea of what (behaviour, acts, and so on) makes for a successful, effective relationship of that sort, and we measure all conduct as against those norms. The engagement or attachment to those norms originates as a function of entering an association with another, of associating with another. This obtains whether we consciously or intentionally set out to form a relationship of any particular sort with another. Under this proposed formulation it is not necessary to attribute any consensual act to the creation of such a relationship: a person may find himself interacting with another under certain circumstances so as to impose the qualification of a certain associative bond upon the parties in pursuit of their respective commitments. Hence the intersubjective connection may exist at the outset or ex post facto.   An exercise also undertaken by Buchanan, Secession (n 1) 8.

54

142  Remedial Right or Just-Cause Theory That engagement binds us to observe those norms by virtue of the mutuality-reciprocity component to an associative relationship. Recall that associative relationships rely on obligations of reciprocation as necessary elements thereto, the nature of which require a certain mutuality, co-operation, or like expression of reciprocity, among the parties to ensure the fulfilment of the common undertaking. Without such mutuality, there could exist no relationship. Our expectation rests upon that mutuality component, whereby we understand each party to a relationship to include within their respective sets of commitments a set corresponding to the relationship at issue. The context of that relationship therefore qualifies the otherwise socially unhindered, fully discretionary pursuit of individual commitments. This does not quite bring us fully to the mandatory nature of and enforceability of a right. It presents a set of private commitments between subjects. Enforceability and compulsion are public in nature, whereby another person applies some force (actual or threatened) to cause us to behave in a certain way. This force originates in the volitional acts of others, and not by coincidence or natural events. In the context here, it would entail others pressuring us to behave in the way prescribed by their common under­ standing of what is normal and expected in the circumstances. It is a concept of coercion and enforceability as public matters that is echoed in more detailed explorations of the idea of ‘civil society’ as a preliminary and grounding level to social control in its more wide-reaching forms such as religion, state and law.55 Superimposed on, or implicit in, this formulation is the structure or system which defines the relationship and the arrangement of commitments peculiar to it, sets the boundaries to the various competing commitments, and enforces the rights and duties. By ‘system’ and ‘structure’ I mean an organised, accessible set of definitions, strategies of decision-making, precedents, and the like: in effect, a code or set of rules by which we evaluate conduct. Systems refer therefore to social institutions of moral office, whether left at a social level or voiced in politics, law, and so on. Because these ideas refer to what conduct should be, based on what has been so in the past, they are by definition moral ideas, moral norms. Morality, if a definition be required, is generally expressed as right conduct among person, the righteousness referring to a set of conduct markers universalised and generalised over time and place, and based on concepts of relating to others. The source and nature of the systems or institutions are not for present study.56 Suffice it to say that the systems have originated in human history, and have developed more or less inductively throughout history, as they continue to do so today. We could trace them through the organisation of power and social order, the growth of political, social and legal institutions, the standardisation of certain social interactions and the expecta55   See, eg M Walzer (ed), Toward a Global Civil Society (New York, Berghahn, 1995); R Fullinwider (ed), Civil Society, Democracy, and Civic Renewal (New York, Rowman & Littlefield, 1999); J Hall (ed), Civil Society: Theory, History, Comparison (Cambridge, Polity, 1995); D Roberts, ‘Moral Exclusivity in the New Civil Society’ (2000) 75 Chicago-Kent LR 555; L McCain, ‘Some Questions for Civil Society Revivalists’ (2000) 75 Chicago-Kent LR 3001; A Etzioni, ‘Law in Civil Society, Good Society and the Prescriptive State’ (2000) 75 Chicago-Kent LR 355; R Wert, ‘Rights Capabilities and the Good Society’ (2001) 69 Fordham LR 1901; and C Eisgruber, ‘Civic Virtue and the Limits of Constitutionalism’ (2001) 69 Fordham LR 2131. 56   See generally N Elias, ‘The History of Manners’ in his The Civilising Process (E Jephcott (trans), Oxford, Blackwell, 1994) 1, 156 ff and his ‘State Formation and Civilisation’ in ibid 257, 466, 51 6ff; A Etzioni, Political Unification Revisited (Lanham, Lexington, 2001); H Lasswell and A Kaplan, Power and Society (New Haven (Conn), Yale UP, 1976); H Lasswell and M McDougall, Jurisprudence for a Free Society (New Haven (Conn), New Haven Press/Martinus Nijhoff, 1992) vol I; and N Luhman, Social Systems (J Bednarz (trans), Stanford (Calif), Stanford UP, 1984).



From Right to Remedy 143

tions surrounding them, and the steady expansion of stability of social relations, all punctuated occasionally by instability and war. As to where we stand today, we have built up a large body of source material to identify significant relationships and core commitments. These we find articulated in the law, in political principles, moral codes, religions, social behaviour, and such like. So first and foremost we define for ourselves what is significant, and that principally by successive engagements in particular relationships. Reiterating a particular association with others allows us to flesh out our obligations of reciprocation, of the balance of benefits and burdens, of core and non-essential acts attributable to our particular co-operative association with others. And this is no private act. Engaging in associative relations produces a transformative event whereby our private interests and intentions are exposed for all to assess, amend, reject or adopt. We set out what we want, and ask our cohabitants to accept or reject it, quite simply because they have to live with us, and we, with them. Through the transformative event, we achieve the correspondence of commitments allowing us and others to pursue together a co-operative arrangement.57 The making public in this fashion of the relationship and commitments gives them stability and fixity over time and place (provided members of the same group are involved). And it allows us to appeal to those commonly held concepts, and the social agreement thereon, as justification for compelling the other party to honour the common commitments with the limitations on competing individual ones as a member of that society. Thus, insofar as an intersubjective association is recognised to exist between two parties, the parties will be held to that relationship, and the observance of the commitments and limits thereupon count for more than the pursuit of individual interests on an individual basis. In other words, the particular transformation of private interest into public concern, as presently embodied in the given intersubjective bond, possesses greater importance. In consequence, rights are not ‘goods’, objects to which we strive, things we possess, or terms attached to some definition of individual human nature. Rather, they express our present understanding of the composition of fundamental aspects to particular associative, co-operative relations. Of course, understanding a right as a function of a relationship may relieve us of one ontological burden, to identify particular ‘goods’ (based on an explicit or implicit conception of human nature) the pursuit of which translates into correlative rights. But it imposes another, to identify criteria by which we recognise and evaluate relevant relationships and their necessary and sufficient constituent elements. Even here we are never really very far from some conception of human nature, in terms of what is required for a sustained, successful co-operative effort.58 The right itself has no inherent value, but takes its normative content from the specific list and arrangement of commitments constituting the relationship. And this in turn opens up the issue of rights as trumps and as group rights, for it goes to the character of commonality, of mutuality and reciprocity. Trumping envisages a reinterpretation of the relation between citizen and government so that there exists restraint and constraint internal to a right. Group rights attend to the nature of the transformative event.

57   Note here the possible contiguity or application of such concepts as in C Sunstein, Legal Reasoning and Political Conflict (Oxford, Oxford UP, 1996), esp 4 (incompletely theorised agreements); J Rawls, Political Liberalism (Cambridge (Mass), Harvard UP, 1999) (overlapping consensus); or Ingram, Theory of Rights (n 20) (common endorsement). 58   See, eg R Sennett, Together: the Rituals, Pleasures and Politics of Cooperation (London, Penguin, 2012).

144  Remedial Right or Just-Cause Theory Now, without the benefit of an intermediate example, let me move directly to the application of the above concept of a right to secession, specifically a putative right of secession. As will become clear, secession is unsuitable to be a right, and fails to meet the definitional criteria of a right (in this theoretical discussion) on two counts. First, secession repudiates the continuity of the political association constituting a state, and thereby cannot sustain the relationship necessary to establish a right. Secondly, secession disregards obligations of reciprocation, and thereby cannot fund any common core commitments to establish a relationship from which rights derive. Continuity Condition As to the first point, the definition given above for a right assumes that, confronted with a contradictory, competing project, the substance of the right (the core projects making the extant relationship what it is) will prevail such that the relationship may proceed to its end, its objective. This ‘continuity condition’ holds that a right preserves an extant relationship and drives it forward, or at least allows it to proceed without hindrance. But secession clearly intends a permanent breach of an extant association (broadly understood a political one). Secession by definition ruptures the extant relationships within a political and constitutional setting. This would violate the continuity condition. It is contradictory to posit a relationship which has as its core project the denial or rejection of itself. And it is, of course, self-evident that the relationships at stake are those between the members of the seceding group and those in the rump state. The associative projects linking only the members of the seceding group are not at issue: these can create rights as between those members, but not as between them and the members of the rump state. Three significant questions arise from this treatment of secession. First, does an associative relationship include a right to terminate that co-operative effort? If so, then perhaps secession represents that right. Secondly, what of the case where the core commitment is disregarded in the circumstances? The third question is the broadest and most complex: what associative relationships in fact go to creating a state? On the one hand, this requires itemising and explicating the content of particular associative commitments sufficient and necessary for the existence of a polity and a state. What makes up a political association? This would bring us quickly to conventional, extant discussions in political theory and sociology. On the other hand, there is the important functional, performative aspect – the act of associating – which does not rely on specific content. In other words, associations do form around different interests and for different ends, but the act of associating and the maintaining of that connection and those relationships is the same. Associations all rely on co-operation, mutuality and reciprocity. Emphasising aspect has been my focus here, rather than undertaking the work of listing differentiating various types of associative commitments. Thus, for present purposes, I will sketch below a brief response to the first two questions only. There can be no right simpliciter to terminate a relationship, because this would violate the continuity thesis as argued above. But relationships do end. By definition, no right exists independently of some associative relationship having certain co-ordinated commitments. In this sense, the parties may bring their co-operation to a close by agreement at the time or by achieving what they commonly set out to accomplish. This does not fit a secession scenario. Alternatively, the community of purpose which grounded the relationship in the first place may dissolve, leading to the evaporation of the relationship itself. Such a



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dissolution may occur from a wholesale unilateral change in the set of commitments of one party or in the understanding and definition of the core commitments by one party. This scenario could fund a secession crisis, where a state government disregards or leaves unaddressed a seceding party’s allegations that various core commitments (to the state as associative undertaking) no longer correspond in definition or application to the latter’s perception of them. In such a case, the seceding party would claim a termination of the relationship. But this would be as a consequence of the circumstances, and not as a right. In the latter case, the claim of right would be to seek the re-establishment of the pre-­ existing relationship with the previous set of (corresponding) core commitments. Where a core commitment is disregarded or dispensed with, the aggrieved party claims a right to its performance. Failing to accede to a right, disregarding a claim of a right, or generally deviating from the norms defining right conduct under a relationship, all give rise to a claim for a remedy. This is customarily expressed as a breach of a right giving entitlement to a remedy. Although a remedy is linked to a right, it is conceptually distinct. It restores the relationship, but does not itself stand as the relationship or as one of its core commitments. Thus, in the secession scenario described above, where the foundation of a secession claim is the failure to accord due rights (that is, the rightful performance of core associative commitments establishing the state), the rights-holder should be entitled to a remedy. This is, of course, what Buchanan has argued. But he then elides a breach of the extant associative relationships necessary for a state and their defining core commitments with the claim for their rightful performance. In this fashion, he arrives at a right to secession. Mutuality Condition The second grounds upon which secession fails to meet the criteria of a right holds that secession does not represent a core commitment to a relationship. A right assumes that the co-operative effort which both parties engage in offer mutual benefits and impose mutual burdens such that the relationship will be seen to its natural end. This ‘mutuality condition’ requires therefore commitments between the parties which can fund a joint project, or at least sustain peaceful interaction. In other words core commitments must be associative and positive in nature. But secession is committed to denying the possibility and existence of any political relationship in the first place. It is not an associative project, and as such violates the mutuality condition. Secession, as a means, may well reflect another common project or other core commitments (such as the creation of an independent state for a minority group). But it does not itself form a basis for a relationship whereby secession itself is a core commitment. At this juncture those advocating a self-determination or nationalist basis for secession may object that secession is one of the core ideas to self-determination. And self-determination itself is a ‘positive’ and ‘associative’ commitment of the sort which can generate relationships and rights. It creates bonds and associations among people sharing the same projects and standards, such as language, religion, territory, ethnicity, and the like. Indeed, it may even articulate one of the primordial types of human interrelationship, that of culture. Insofar as self-determination may define relationships among persons, one articulation of that commitment is allowing one’s self room from another’s sphere of influence or distinguishing one’s commitments from another’s. (I will come to this in the following chapters.) That would entail secession. Yet whether

146  Remedial Right or Just-Cause Theory or not self-determination constitutes an associative commitment or not, we reiterate that secession stands for the rupture of relationships, not their creation. Groups invoke secession in a self-determination context where they allege that certain underlying relationships and core commitments have been jeopardised, such that their self-­ determination stands in peril. Indeed, that is Buchanan’s very argument. They call upon secession as a remedy, as a means to preserve their self-determination rights. Secession is not the same as self-determination, nor derived from self-determination: it is a device to preserve and bring to fruition the core commitments defining self-determination. Again here, we are called upon to characterise secession as a remedy, not as a right. In summary then, my approach to rights excludes secession as a right because it represents the very opposite of what is required for a right simpliciter. It contradicts the basic criteria and, in particular, the continuity and the mutuality conditions which are necessary to ground an antecedent relationship from whose core associative commitments, rights to performance of those same commitments may arise. But what we have also seen, and consistent with the intuition and conclusion of Buchanan, is that secession is properly considered a remedy to the breach of rights. And it is to the concept of a remedy that we now turn. Parsing Remedies Intuitively, and broadly generalised, a remedy simply cures, or mends that which is broken, or restores the status quo from deviation. In particular, a remedy implies an antecedent state of affairs that stands as the expected norm, and from which there has occurred some deviation unacceptable to one or more participants in that state of affairs. A remedy would thus serve to correct the deviation. For example, from a medical context, it can mean some form of therapeutic intervention, physical or pharmaceutical in kind, because of illness or injury. In a business context, it can mean a solution to solvency and liquidity problems which affect the viability or profitability of the business. In law, it represents a general term covering a range of events, including damages, fines, injunctions, declarations, self-help, imprisonment, procedural orders, and so on.59 Phrased in terms of the above definition, these remedies would seek to mend a breach of some legal relationship or right, or restore the legal status quo; that is, first, there exists an antecedent legally recognised relationship between at least two separate parties (the prior state of affairs). It is self-evident that some standard or norm must exist by which we may establish a deviation therefrom, or that an injury has occurred. Secondly, one of the parties has resiled from or rejected that relationship, or has deviated from conduct expected as usual or normal under such a relationship. Without a deviation, there can exist no wrong or injury for which we may hold a person responsible. The difference, or distance, between the norm and the actual conduct constitutes the wrong, or error. There is no ‘moral luck’, of being innocently in the wrong place at the wrong time.60 Apart from certain conceptual difficulties, it is not relevant. It merely identifies 59   See generally, F Lawson, Remedies in English Law, 2nd edn (London, Butterworths, 1980); H McGregor, McGregor on Damages, 16th edn (London, Sweet & Maxwell, 1997); I Spry, The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages, 6th edn (Toronto, Carswell, 2001). 60  T Nagel, Mortal Questions (Cambridge, Canto/Cambridge UP, 1991) 24–38 and B Williams, ‘Moral Luck’ in his Moral Luck: Philosophical Papers 1973–1980 (Cambridge, Cambridge UP, 1981) 20.



From Right to Remedy 147

remoteness between act and consequence as a analgesic factor to the ethical (and the legal, for that matter) sting.61 Remoteness simply contributes to the practical difficulties of establishing a causal link between agent and consequence. Thirdly, it follows that the deviation is unacceptable to one of the parties, having injured that party or the party’s interests and commitments in some demonstrable fashion. Of course, if the innocent party accepts the deviation or is otherwise not harmed, the question of breach and wrong never arises, nor does that of an appropriate remedy. (Not that a mere breach without demonstrable injury is not an actionable wrong: at law, and viewed practically, the remedy continues to exist (such as damages), but is nominal.) Fourthly, the injured party seeks some redress for the injury done. This is, of course, where a remedy proper comes into play. This explication, however, does not make immediately clear why any type of redress (point 4) should follow upon a breach of some legal right (point 3). Why should there be a remedy in these circumstances? What is an appropriate remedy? We likely accept as an intuitively obvious and convincing proposition that any wrong attracts some declaration of culpability and some measure of retribution. More broadly, errors and abnormalities need to be pointed out and fixed. Culpability speaks to an objective criterion of labelling of certain conduct or events as ‘wrong’ (howsoever defined in the circumstances), and a subjective criterion of recognition of their wrongful nature. ‘Culpability’ here is a general term connoting error, and not necessarily limited to moral turpitude perhaps also accompanied by outrage and disgust. Put bluntly, the culpability element refers to other people telling us we have committed a wrong, and our own (likely shameful) recognition and acceptance of that sorry fact. Retribution speaks to punishing the fault, involving likely some measure of revenge, recompense for any injury done, and protection against any further offence. Both aspects, culpability and retribution, constitute essential elements to any conception of a wrong. Indeed, we should be hard pressed to locate any ethical theory which does not number this proposition as one of its basic tenets. Any number of explanations may attempt to secure this intuition on more reflective, objective grounds. We might advance a psychological and biological hypothesis concerning the protection of our well-being, physical and psychical integrity, where we instinctively lash out at harmful things to defend our own, and warn the aggressor against successive attacks. We might equally advance a social and philosophical hypothesis concerning the proper functioning of the world of things, and of a rational person in society. We need not venture so far as to undertake a concerted attempt to explore these hypotheses, their nature and applicability to law and a legal system. It should be sufficient to rely on the basic intuition, whatever its ultimate foundation, as a given. Deserving of attention, however, are the two attributes of a wrong: culpability and retribution. And just to be clear, it seems beyond question that the concept of a wrong translates into the concept of an intolerable and unaccepted deviation from a norm. Hence, a remedy’s task of correcting the deviation equally subsumes a wrong’s desert of culpability and retribution. Accordingly, these represent two critical ingredients to a remedy. Analysing the intuition above in functional terms, we can say that every (legal) remedy performs at least two tasks. First, inasmuch as a particular act constitutes a (legal) 61   Remoteness is a well-established principle in, at least, the law of damages for tort and breach of contract): see, eg Hadley v Baxendale (1854) 156 ER 145; Koufos v Czarnikow [1969] 1 AC 350 (HL); Parsons Ltd v Uttley Ingaham [1978] QB 791 (CA) and see, eg Canson v Boughton [1991] 3 SCR 534, and Norsk Pacific v CNR [1992] 1 SCR 1021.

148  Remedial Right or Just-Cause Theory wrong, a remedy declares the actor and act as culpable. The declarative function stipulates the act as a wrong, for which is due meet punishment, revenge, retribution, and so on. These latter are the exactions of committing a wrong. This function is self-evident: there is no need to fix what is not broken. And implied in the imprecation is its obverse, namely the affirming of a transcending norm or standard of correct behaviour by which to establish deviant, abnormal, wrong conduct. Obviously, a necessary precondition to characterising something as wrong is to know what is right or correct in the first place. The absence of a correct disposition to the situation logically means that the act itself cannot be wrong, for it just as well may be the correct version after all. ‘Absent’ here means non-extant, and not merely ‘as yet undetermined’, or ‘only established with difficulty’. This is to avoid any confusion with any sort of ethical relativism, and the natural difficulties we would face in establishing a concrete and certain ethical standard for all persons (or even just a large number of them). Secondly, inasmuch as the wrongful act (now so declared) has injured a party or a party’s commitments, a remedy would offer some form of retribution to the victim, whether by punishing the wrong, or by correcting in some fashion the injury done, or both.62 It is naturally assumed that the norm or standard is the preferable situation to one of deviation and error, so that our natural tendency is to seek out and maintain the norm. The norm is the normal situation. Accordingly, when we encounter a deviation, our nature inclines us to restore the norm so far as possible. The remedy acts a device or means to restore the broken relationships or injured commitments as close to their original status as possible; that is, to repair the injury and restore the status quo before the deviant, wrongful or abnormal act. In fine, a remedy would see that done which ought to have been done in the first place, but for the wrongful act. We accomplish that goal by way of various devices categorised under the heading ‘remedy’ or ‘relief’. Those devices achieve the objective of restoring normalcy variously by mandating the removal of certain effects, the refraining from acting, a revising or retracting certain effects and events, or by requiring certain acts of one or more of the parties involved. Remedies seek to undo certain consequences and results, and they may well impose other conditions or actions. Attaining their objective necessarily entails mandating the party at fault to do certain acts, or to have certain things done to that person. In sum, a remedy is the manipulation of present circumstances to effect an outcome equivalent or contiguous with what would have been the case, but for the wrongful act. Thus, under the performative terms I have offered, that a remedy serves to correct deviations and re-establish a right or norm denotes an instrumental function. A remedy is an instrument of that norm or right, to achieve (as an effective cause) that state of affairs represented by the norm or right. As an instrumentality, a remedy is a tool to accomplish a prescribed or desired end whose own inherent content or meaning is derived from, and dependent upon, the ends it intends to serve. That is, the remedy is not an end in its own right, but simply a medium or means to achieve in some fashion the desired end as instantiated by the applicable (violated) right. To constitute an objective in its own right would entail that we might intend it or will it from the outset of our projects and commitments. But this would suggest that we intend the breach which occasions the remedy’s existence. And we must 62   See, eg, the ‘therapeutic jurisprudence’ school: D Wexler and B Winick (eds), Law in a Therapeutic Key (Durham (NC), Carolina Academic, 1996).



From Right to Remedy 149

also accept in addition that we intend the frustration of our commitments and projects, and their subsequent repair. To suggest that we initiate a contractual or other relationship with the intention of breaching it and then paying damages hardly requires serious consideration. Rather, we contemplate the existence and need for a remedy precisely when our plans and objectives have gone astray, when someone has interfered with their expected or natural unfolding from start to finish. It would be a strange matter indeed if we conditioned entry into each legal relationship, be it contract, trust, partnership, or even citizenship with a particular state, upon detailed forethought as to the nature and availability of remedies in case of a violation of that relationship. That said, allowing for the possibility of disputes, or a disintegration of the relationship, or its orderly dissolution, is a matter entirely separate from expecting its breach or violation. As an instrumentality, a remedy whether legal, moral, or otherwise, takes its form and content from the right or norm the remedy intends to maintain. Obviously, the nature of the remedy must also account for the nature and scope of the breach. It is self-evident that a device which purports to correct a deviation or breach must be able to address that deviation in substance. Correction is impossible without knowing what and where the error lies. But it is also self-evident that the remedy must comprehend the right in issue so as to institute sufficient means to restore or rehabilitate the right. Because a remedy would fulfil a right not otherwise permitted to come to fruition because of the act of another, a remedy must be able to satisfy in some acceptable measure the commitments constituting the original right. Absent some connection between right and remedy, there would exist no reason or guarantee that any given remedial device could administer the correction required to restore the status quo. Hence, not only does a remedy presume some antecedent right, what shape the remedy takes depends also on the antecedent right. What constitutes an appropriate remedy is governed by the nature of the right at issue. To clarify this rather abstract explication, let me approach these concepts through a brief and broad consideration of three different types of standard legal remedy: declarations, damages and imprisonment. A declaration, or declaratory judgment, is a ‘formal statement by a court, in the exercise of its discretion, pronouncing upon the existence, or non-existence, of a legal state of affairs’.63 But it does not compel anyone to do anything in virtue of its pronouncement, and thus may not be enforced as such against a defendant, whether by execution against property or by imprisonment.64 An applicant seeks a declaratory judgment (as the name suggests) to confirm and define the legal position – the legal rights – of that party as against another, under a particular agreement, arrangement or law.65 It finds significant and important application in constitutional and 63   Lord Woolf and J Woolf The Declaratory Judgment (London, Sweet & Maxwell, 1993) 1–2, 106–10 and 166 (negative declarations); H Wade, Administrative Law, 6th edn (Oxford, Oxford UP, 1988) 593–94. In Canada, federal and provincial legislation have codified the right to seek a declaratory order without adjunct consequential relief: see, eg R5(22) BC Rules of Court (BC); s 11 of the Judicature Act RSA 2000 c.J-I (AB); s 97 of the Courts of Justice Act RSO 1990 c C-43 (ON). 64   Woolf and Woolf, Declaratory Judgment (n 63) 1 ff. And as a result, it is often coupled with a plea for specific, coercive relief: see, eg Gosselin v Québec (AG) [2002] 4 SCR 429; Kourtessis v Canada (Min Nat Rev) [1993] 2 SCR 53; Solosky v Canada (1979) 105 DLR (3rd) 745 (SCC); and Rado-Mat Hldgs v Peter Inn Enterp. (1988) 65 OR (2nd) 299 (HC). 65  Wade, Administrative Law (n 63) 595; Woolf and Woolf, Declaratory Judgment (n 63) 141 ff, 157 ff, 203 ff (a real interest in the matter in question and an active legal issue, not merely a speculative or hypothetical one). The latter element, however, does not prevent an application for a declaration in respect of a threatened breach of rights, nor in respect of ‘future rights’ (rights, though not yet in existence, but yet treated as such because

150  Remedial Right or Just-Cause Theory administrative law, as a means for individuals to establish their rights as against the government or government agency, and thereby to limit the actions of the latter or to treat the latter’s actions as ultra vires and void.66 In other words, by virtue of its function of determining the rights as between an individual and an authority, the declaration represents a means of challenging administrative acts and decisions, and even the constitutionality of legislation. In the device of a declaratory judgment, we find a means to stipulate, to declare what the operative norm, or right, is as between the parties, and deviation wherefrom would constitute a wrong. The instrumental nature of this remedy on the terms outlined above would, however, seem somewhat remote and abstruse. It is true that we do not attribute directly any culpability to the defendant, for a declaratory judgment merely pronounces upon the existence of a legal right, but not its breach. We must nonetheless bear in mind that a declaratory judgment does not issue out of a vacuum: there must be an active, live issue between the parties. For that to be the case, there must exist already some dispute between the parties on what the governing norm is. Such a dispute will obviously arise where the competing norms justify conflicting ways of acting. A declaratory order therefore acts in service of the governing norm, as a preventative measure to assure a clear recognition of the latter’s operative authority in the circumstances. Indeed, it is self-­ evident that if both parties agree on the nature and content of the norm at issue, a declaratory order is not required. Moreover, by confirming one party’s assertion of the governing norm and indirectly obligating the other to conform thereto, a declaratory judgment satisfies in a very tangible way the retribution function described above. So here we have an instance of the instrumental function (the attempt through the declaration to prevent, or diminish the effect of, that wrongful, deviant conduct). Further, although the ascription of culpability does not figure directly in a declaratory judgment, such ascription does obtain indirectly, for the conduct thus not in accord with the norm declared as operative will by necessary implication be treated as erroneous (and wrongful). Given the real possibility of a claimant pursuing other, coercive remedies for a breach of the norm, a declaratory order thereby ensures the maintenance or restoration of the normal (scil ‘as prescribed by the norm’) order of things. Thus, in the device of a declaratory judgment, we find the presence of a wrong or deviation, actual or expected. So we have a clear instance of the declaratory function, ascribing to a certain state of affairs the ‘right’ or the norm, and to the rest, culpability as a wrong. Although perhaps not immediately obvious, a declaratory order does indeed resemble the theoretical sketch outlined above. Declarations are thus to be contrasted with coercive remedies, these latter including not only a pronouncement upon the existence of the legal nature of given circumstances, but also directly compelling the defendant to do, or refrain from doing, certain things. And if the defendant should disregard this order, the relevant officials may enforce the order against the recalcitrant defendant, such as by execution upon property or by they are certain to come into effect either on a particular date, or on the real prospect of a particular event occurring): Woolf and Woolf, Declaratory Judgment (n 63) 157 ff, 210 ff. 66   Woolf and Woolf, Declaratory Judgment (n 63) 23 ff, 97 ff, 117; Wade, Administrative Law (n 63) 595 ff; and Lord Woolf, J Jowell and A Le Suer, De Smith, Woolf and Jowell’s Judicial Review of Administrative Action (London, Sweet & Maxwell, 1999) 597, 603 ff. The reason for which in Anglo-Canadian law lies in the nature of actions against the Crown, for which, until recently, no coercive orders (such as damages) were available: see P Hogg and P Monahan, Liability of the Crown, 3rd edn (Toronto, Carswell, 2000).



From Right to Remedy 151

imprisonment.67 The obligation may relate, for example, to the payment of damages (liquidated or unliquidated), or to specific performance, or to the return of property, or to be committed to prison. It is a general rule that upon proof of breach of contract (specific performance and restitution aside) or tort, the aggrieved party is entitled to such pecuniary sum as will compensate, so far as possible, the injury and damage suffered.68 The rule of compensation is to return the plaintiff, the party aggrieved, to that position he would have been in, had the wrong not occurred. In contrast to a declaratory order, the plaintiff here must establish not only the antecedent right upon which the claim for damages rests, but also the defendant’s breach of the right, and the nature of the injury and damage caused directly thereby. Now, in the device of damages, we find a clear expression of the instrumental function of a remedy. First, establishing the tortious act or breach of contract (and thus the norm deviated therefrom) attends to the attribution of culpability to the defendant. Then, based on that culpability, retribution is exacted upon the wrongdoer by compulsory payment in reparation of the injury or damage caused so as to restore the injured party into the position prior to the wrong. That position depends upon the antecedent right – one of contract or due care in the examples here – and the nature of the breach (trivial or fundamental) and its consequences (similarly, trivial or serious). Absent the foundation of a right, there can be no breach, and certainly no damages. Damages, of course, do not equate to contractual performance, or to a life without permanent invalidity, or even to loss of life. A pecuniary award cannot return everything to the original position. At best, it can alleviate and offset some of the suffering and costs of care (in the latter instance). And to the extent that damages arguably reduce the value of a promise, of life in general, or of life without a handicap, to a mere monetary value, this certainly invites concern whether the medium of a damages remedy truly respects the ends it intends to serve. Leaving aside questions of appropriate quanta, efficacy and the inherent and historical limitations to the institutions and officials administering remedies, the central point argued here is that a damages remedy serves an instrumental function, derivative upon the declaration of a wrong, whereby the wrong is ‘righted’ so to speak. Let me touch just briefly upon the nature of imprisonment, and in particular, imprisonment as a ‘remedy’ available under the criminal law. The ascription of culpability to an accused convicted of a crime is self-evident. Here, culpability more often than not carries a very strong moral denunciation of the act, over and above merely identifying a deviation from the norm, an error. Punishment figures more strongly as the retribution factor, rather than a compulsory payment of money. Nothing, of course, excludes that possibility, nor any other form of proprietary award. A fine, of course, fits the bill perfectly, but so too does a damages award issuing from a civil proceeding conjoined to the criminal, as is available in civil law jurisdictions. For example, sections 738–741.2 of the Criminal Code of Canada make provision for the amercement of a ‘restitution award’ in favour of the victim.69 Rather, we see that the norm at issue is the public order. Imprisonment is an 67  Woolf and Woolf, Declaratory Judgment (n 63) 1–2, 3–4. See generally, Lawson, Remedies (n 59); McGregor, McGregor on Damages (n 59); C Lewis, Judicial Remedies in Public Law, 2nd edn (London, Sweet & Maxwell, 2000). 68   See generally, A Burrows, Remedies for Torts and Breach of Contract, 2nd edn (London, Butterworths, 1993); G Treitel, Remedies for Breach of Contract (Oxford, Oxford UP, 1988); McGregor, McGregor on Damages (n 59); and Andrews v Grand & Toy [1978] 2 SCR 229. 69   Criminal Code of Canada RSC 1985 c C-46.

152  Remedial Right or Just-Cause Theory instrument of the public order: it attempts to restore the public order by removing the offender for some period from society, and to impress on that offender in some fashion the need to respect the public order. Indeed, it would not be amiss to say that understanding all criminal sanctions, not only imprisonment, as declaratory and instrumental allows us a better grasp of the traditional tripartite function ascribed to them, of revenge/punishment (following from culpability), rehabilitation/prevention (against recidivism), and reinforcement/protection (against others following by example). This discussion has taken us some distance away from the immediate concern of constitutional law, and secession in particular. I have been attempting to establish a performative understanding of a remedy as a means of addressing the question of whether a right to a remedy exists. In so doing, I have postulated two prime functions of a remedy, the declarative and the instrumental. But these functions do not exhaust the performative conception of a remedy. The norms and the enforcement mechanisms upon which this view of remedies is constructed presume some institutional structure. A remedy also has a vital third function, the institutional, whereby it re-affirms the transcendent propriety and bindingness of the norms and the system asserting and enforcing those norms. In other words, remedies and the correlate rights are tied to the institutions wherein they exist and operate. They exist in function of those institutions and are not independent of them. It to this third crucial function I next turn, which element brings us neatly to constitutional law, an answer to the question of whether a right to a remedy exists, and a further criterion to a legal assessment of a theory of secession. Institutions and Rights to a Remedy The condition of the possibility of both the declarative and the instrumental functions to a remedy demands an institutional architecture wherein they may exist and operate. An institutional architecture refers to that set of rules and practices prescribing the identification, amendment, application, and so on, of the norms held jointly by members of that society, and the designation thereby of a class of officials who may declare and administer those rules and practices on behalf of all members. Broadly, and subject to what follows, such structures classify and order the diverse and sometimes disparate components pursuant to certain explicit and implicit ideals and concepts, themselves elements of the common-holding of members of the society wherein the institution exists.70 In the context of remedies, those rules and practices govern what remedies exist for which recognised types of wrong: how and to what extent such remedies will repair the injuries done, on whom the benefits and burdens will rest, and who may grant a particular remedy.71 For clarification, we might allude here to the Hart-inspired terms of ‘secondary rules’, covering rules stipulating how to identify and apply those rules which will ultimately determine the dispute (viz ‘primary rules’). They include therefore rules for the identification of primary rules, rules for the adjudication of disputes, and rules for the 70   For example, the objectives of perfection (a morality of aspiration): Fuller, Morality of Law (n 6); demo­ cracy, federalism, respect for minorities, equality and the rule of law: Reference re Secession of Québec [1998] 2 SCR 217; Reference re Manitoba Language Rights [1985] 1 SCR 721; and R Howse and A Malkin, ‘Canadians are a Sovereign People: How the Supreme Court Should Decide the Reference on Québec Secession’ (1997) 76 CBR 186; and guarantees of a republican system of government: Minnesota State Bd for Community Colleges v Knight (1984) 465 US 271 and Pacific States Tel v Oregon (1912) 223 US 118 (US Constitution). 71  Hart, Concept of Law (n 49) 91 ff.



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amendment of all the rules. But caution is required: nothing herein is meant to adopt or apply Hart’s particular conception of primary and secondary rules. But to say that remedies demand an institutional structure is to state more than simply a cryptic reference to law, courts and the legal system as a whole. It is to affirm the existence of associative relations, the normative force of their common components, and the authority of the officials conferring them. Indeed, the institutional function may be considered a self-referential act. In blunt terms, it means that an institutional act evid­ ences and justifies the existence and authority of that very institution to act in precisely those ways and in those circumstances. Hence, the institutional function of a remedy (like that of a right) accounts for the common-holding of the members of that society, for the normative force originating out of their associative relations and the transformation of private interests to public ones. As discussed in chapter 2, the ordering and structure, the conventions and standard practices, all characteristic of an institution, arise out of a tenure in common of certain fundamental ideals and commitments. An institution arises in the first place by a recurring, regular delegation to (or conceivably, arrogation by) certain members of the task to identify and provide a consistent, coherent articulation to certain common commitments binding upon and authoritative for all members of that group. The delegation of that delimiting function itself represents part of the set of commitments held jointly by the membership. As one of the critical elements thereto, the institution represents a transformative forum, wherein private commitments become public values held by and applicable to all. That transformative qualification, the source of normative authority, funds the institution’s claim to an exclusive jurisdiction in the formulation of norms. That is, the institution functions as an exclusive source of social meaning and values. But that exclusivity is nonetheless conditioned upon the institution’s purpose and attribution of function. It derives its existence and its authority from providing an authentic articulation of those common commitments as developed and present among a society’s membership. The less coherence between the institutional version and the public formulation, the more tenuous the existence and authority of the institution. Similarly, the less the institution performs according to its attributed function, the more tenuous its exist­ ence and authority. In other words, an institution justifies its existence and authority when it performs its assigned tasks. Accordingly, in the first place, the institution’s conferral of a remedy affirms its function as an authoritative repository of social norms. When a party claims a remedy against another, that claim invokes the authority of the official adjudicating the dispute and conferring the remedy, as well as the authority of the public articulation of the definitions to the right, wrong and remedy in issue. An institution’s granting a remedy in satisfaction of a violated right at once declares not only the power of the official to identify and interpret the right (in its associative components). It also declares his power to compel acceptance of that interpretation and commands related thereto; the controlling common understanding of the nature and substance of that right and governing norms (and similarly, of the definition of the wrong), and of what corrects that wrong. And it further serves as an acknowledgement and acceptance by all the parties of this common arrangement. (The reference here to acknowledgement and acceptance is not to suggest a consent or social contract underpinning. It should not be understood to require the prior or concurrent consent or agreement of the parties subject to the process.) The process of claiming a remedy and the substantive elements to that claim function as

154  Remedial Right or Just-Cause Theory components of the set of commitments held in common by each of the parties. Indeed, the very nature of a common commitment requires that it apply to and control the conduct of each person who holds it as one of his set of individual commitments. By declaring culpability and restoring the parties’ positions under a given relationship to the relevant norm, a remedy shows that the common commitments on which a society originates are indeed effective and operative among the membership. Secondly, if the institution wishes to remain in existence as an authoritative repository for social interests and values, it must grant remedies for breaches of those rights it heralds. Were it to fail or refuse to grant a remedy, one of three situations might arise. First, the peculiar circumstances may not have justified finding a breach of a norm and granting the claim of right as alleged. No modelling problem arises here. The norms are still operative and binding as they are assumed to be. Secondly, the institution may conclude that the facts do not give rise to any associative relationship or common commitments. Of course, the relationship and commitments must be of relevance to that institution. Other forms of association among the same parties may take up the slack. For example, in the context of law, this may be a characterisation of a question as ‘political’ or ‘moral’ in nature, and not a ‘legal’ one. But where the general expectation or understanding of the parties does consider the matter to be within the purview of the institution, such a rejection may jeopardise the existence or development of any common commitments based on these particular circumstances and relevant to society more broadly. And on a wider perspective, the fewer the common bonds said to exist between individuals, the weaker the co-operative association among them. Or the institution will find itself marginalised, significantly or not, when the parties develop or turn to a different one that does recognise and enforce those obligations of reciprocation.72 Thirdly, the institution is simply unable or unwilling to provide an authentic articulation to the associative relationships between the parties. This jeopardises the very existence of the institution: the very grounds for an institution’s existence no longer obtain. Like any other private special interest group, it can offer nothing definitive or authoritative to the membership, except merely one possible interpretation of a general norm. It loses that necessary common ascription of being a transformative forum for all members, for which purpose the members qua officials enjoyed special status and exercised special functions. In summary then, it is by granting remedies that an institution justifies its existence. The institutional function of a remedy reinforces the continuing relevance and authority, not only of the social norms at issue, but also of the institutional structures and practices established to administer the same across the entire membership of a society. It is in this third, institutional, function of a remedy that we may locate the notion of a ‘right to a remedy’. To begin with, let us rephrase the institutional function as follows. Inasmuch as an institution, that collection of rules and officials, purports to recognise and enforce norms arising from collective commitments (grounding obligations of reciprocation), an institution must provide effective and efficacious enforcement of rights flowing from those norms. That is, it must grant remedies for breaches of right. This derives from the need to evidence the operation of common commitments, as an assurance to members of the association of a continuing common-holding of values, interests, 72   For example in Canada, sentencing circles and like tribal councils to administer criminal law among certain sections of the aboriginal population; allowing certain religious groups to use arbitration procedures to apply and enforce their own rules among members; and the use of the courts to enforce various human rights standards in place of religious or political institutions.



The Remedy of Secession 155

and the like. If no such common-holding exists, the association dissolves, and each party is left to their own devices and pursuits, as opposing, autonomous actors. This does not mean to say that other forms of association are thereby dissolved, or impeded from formation. It stipulates only that the specific association under discussion will dissolve, and the parties return to some sort of Hobbes-like ‘original position’.73 Now, when a member calls upon an institution, through the agency of its officials, to provide a remedy, that member does so on the basis of the task ascribed to the institution by the membership. By so engaging the institution, the member enters into an associative relationship with it, by agency of the official. By consequence, there exists a set of common-holdings between the officials and their subjects sufficient to create an associational relationship between officials and participants. Significant in the common-holding between official and petitioner (and respondent, as well) are first, the commitments relating to the function of the institution as a promulgator of social norms, common social standards of behaviour; and secondly, just those very norms themselves. That is, the common-holdings comprise not only the specific conduct of engaging the institution and official, but significantly, the common commitments held by all citizens, officials and non-officials alike. The analysis of a right, developed earlier, can now be invoked to demonstrate that a right may be said to arise by virtue of that associative relationship. A petitioning party has a right to have those commitments enforced by the institution, for that is the reason for the institution’s very existence. A right represents our expectation that our counterparty to a relationship will follow, or amend, current behaviour and interests to accommodate our own interests and desires, in consequence of the associative bond we share. Here, the bond between us (both parties to the original relationship, and the official) – indeed the very purpose of the relationship – refers to the institution issuing an authoritative, authentic statement of the norms governing our behaviour. We expect the institution to promulgate behavioural standards, and in such a way that they track in general our own perception of those normative standards. That expectation, in the context of the institution-individual association, produces the right to a remedy. In the result, we should recognise that the ‘right to a remedy’ is an aspect of the institutional function of remedies, and not some inherent compelling characteristic to rights or to the so-called ‘goods’ constituting their objectives. The structural import of this institutional function shows that a right to a remedy in reality attends to the relationship between the individual parties and social institutions. The commitments issuing out of that relationship ground rights and remedies respecting those commitments, but the condition for their possibility (‘rights to have rights’, ‘rights to have remedies’) resides in the institutional form given them. THE REMEDY OF SECESSION

The attempt to understand and criticise the remedial right model of secession has moved some distance from a mere point-by-point assessment of the latter’s various premises. I maintained from the outset that the remedial response of secession constrained us to examine more closely the antecedent rights, the breach of which had   T Hobbes, Leviathan (CB MacPherson (ed), London, Penguin, 1985) 185–88, 223–27.

73

156  Remedial Right or Just-Cause Theory triggered the secession crisis. The remedial right model held a right of secession to originate out of those rights and their breach, but was unable on its face to account for its privileging of secession as a right. It simply derived the right on the basis of those antecedent rights, without more. Secession appeared correctly to be a remedy, but not a right. To get a proper understanding of the model’s weakness here, it was necessary to investigate at some length (albeit in far from detailed fashion) the theoretical underpinnings to the model’s central ideas, namely right and remedy. It is now time to weave together the diverse threads of the argument into a coherent, uniform whole so as to show its productive application to a remedy of secession. Considering Buchanan’s position that oppression was the foundation to a secession incident exposed an implied premise that a breach of certain critical, antecedent rights was necessary to constitute oppression. Taking up an analysis of rights then showed that secession itself could not be a right. It failed as a basic commitment, and failed to meet the basic criteria for a right, in particular the continuity and mutuality conditions. This left secession being, if anything, a remedy. For a better understanding of remedies, I parsed them into their three performative attributes: declarative, instrumental and institutional. The declarative function ascribed culpability to an act and thereby confirmed the governing norms. The instrumental acted as an efficient cause, purporting to restore the status quo, or its equivalent, to a relationship, before the disruptive, deviant conduct complained of. The means by which a remedy achieved this principal purpose connected the remedy to the right itself so that the commitments at issue could be examined and evaluated. The remedy was thus drawn from the same pool of commitments as the right in issue, and so, from the associative relationships grounding them. The institutional function, lastly, affirmed the existence and authority per se of the institution, and the operation and authority of all the common commitments at stake, including the ones leading to the establishment of the institution. The institutional component provided us with a basis for a right to a remedy, reflecting the interaction between institution, official, and those subject to the institution. Now, if secession is indeed a remedy, the analysis of the performative structure of a remedy should apply nicely to secession. This entails showing how secession exhibits the declarative, instrumental and institutional elements of a remedy. More importantly, so as not to be an idle intellectual exercise, this tripartite analytic formula ought to reveal something more about secession when applied thereto, about its place in constitutional law and politics. Specifically, it should explain whether and how secession fits as a concept of constitutional law and politics by virtue of its instrumental and institutional aspects. But I face almost immediately two significant problems. If secession is indeed a remedy, I have to reconcile the fact of secession with the instrumental function. More to the point, I have to explain why severing pre-existing associative relationships qua secession could possibly serve as a means to restore or rectify associative relationships, as required by the instrumental criterion. Recall that the instrumental function of a remedy purported to restore and preserve the status quo, or its equivalent, by correcting deviations from the accepted norms, or standards, of conduct, and repairing damage done therefrom. If I am to avoid inconsistency or contradiction, I shall have to identify what, in the pool of common commitments and relationships, secession is in fact preserving or restoring. Secondly, the institutional criterion requires showing which institution has the purpose and authority to administer the rights and norms relevant to the secession



The Remedy of Secession 157

remedy. Recall that an institution arose out of the community of interest among all parties, to provide authoritative and authentic expressions of the norms binding both sides and held in common by both sides. Hence, we must find some institution spanning both sides of the secession dispute, with authority over both groups. A national one may seem out of the question given the very division of interests presupposed by a secession crisis. And it seems only too clear that referring to the international level begs the question blatantly whether the seceding entity has any status there at all (whatever that may be), and even then choosing to refer to international fora may be faulted for an apprehended bias in favour of finding just some form of status to invoke international conventions. It also begs the question whether there exist in that context the necessary common foundational commitments to create obligations of reciprocation, associative relationships and the relevant institutions. Both criteria would thus seem to spell their own defeat as a means to explain a remedy of secession. The instrumental and institutional criteria, however, prove to be far more effective tools at situating secession in the realm of constitutional law and politics than otherwise might be expected. Their strength originates in their derivation from the foundational concept of associative relationships. When we are compelled to examine secession as a breakdown and dissolution of associative relationships, we come quickly to understand that secession is a matter internal to the polity as a whole. The commitments and relationships at issue are no longer presumptively held in common by all citizens and binding them all alike. The community of interest creating an association, like a state, is doubted or attacked, diminishing the perception of mutuality and reciprocity among individual citizens. This in turn affects the projection of authority of all state institutions. ‘Internal’ refers to the foundational commitments held by each individuals as part of their set of interests, ideas, desires, and such like, in common with every other individual, and thus binding them all together in organised form as an association (such as a state). These are none other than the constitutional premises of any state. On this view of secession, we are better able to identify the performative implications of secession as a remedy. Responsibility for Constitutional Collapse Secession exhibits two basic features. First, it presents a dissolution of the commonholdings among citizens comprising a particular state society. This we have by way of definition. The disintegration of the common (political, social and legal) bonds points to an extant or seriously imminent constitutional collapse. This means not the evident, formal collapse of a state and its trappings, but the evaporation of associative bonds, together with the correlatives of mutuality and reciprocity, binding the diverse members into a coherent, organised body politic. A constitutional collapse, in associational terms, means the disappearance of an organised community of individuals who wish to and do co-operate and exist in relative harmony. Secondly, that disintegration is nevertheless relative, for it does not extend across the whole body of members. Instead, it refers to a division of society into broadly two separ­ ate groupings. Each of the groups retains, within the confines of its respective membership, all the necessary and sufficient characteristics of an associative grouping; but each is (intended to be) separate and apart from the other. This extrapolation follows as well

158  Remedial Right or Just-Cause Theory by definition. Accordingly, it would follow that a secession scenario presents us with the collapse of a constitutional association based upon the formation of two pools of common associative commitments, each collection supposedly separate and independent of the other. 74 The precipitation of a secession crisis, its source, is thus to be found in the development of at least two overriding sets of common-holdings within an erstwhile unified body of members. The disassociation, as apparent in the crisis, arises from a perception of the two sets of common commitments as mutually exclusive, antagonistic, incompatible, or howsoever we may wish to describe the situation. By virtue of such incompatibility and antagonism, members of the one group accordingly find themselves prohibited from productive interactions with members of the other, of the sort to establish harmonious associative relations based on mutuality and reciprocity. To the contrary, their intercourse may display the marks of strife, conflict, and anything but co-operation. There is just no common ground on important aspects to any associative relationship. Hence, constitutional collapse depends on the incompatibility of the two sets. Significantly, however, the development of incompatibility does not simply refer to two groups of individuals growing apart in the meanings they attribute to what constitutes essential and durable forms of interaction. The focus of the disassociation is the inability of either grouping to accommodate or incorporate the other. How that intract­ability and loss of co-operation may originate is for later consideration. A complete failure of accommodation and co-operation allows for the formation of opposing collections of foundational associational commitments which then trigger a secession crisis. Communication between the sides fails, whereby the consequent frustration of the transformative event produces a (perceived) unilateral imposition of beliefs, norms and values of the one group upon the other.75 Without transformative communication, there can exist no common tenure among the two groups of members of these commitments: they are presumptively without common foundation. And the consequent rejection of the commitments, rightly or wrongly, as ‘foreign’ or inapplicable to the subject membership produces the political and social rifts described by secession. In practical terms, and in the usual turn of events, the formation of two competing associations typically means the creation of a majority and a minority. The minority coalesces out of the larger membership of a society, the remainder being denominated as an undifferentiated majority. For example, in Canadian discussions about secession, a customary distinction is drawn between ‘Québec’ and the ‘rest of Canada’ (sometimes referred to as ‘ROC’), as if everything and everyone outside Québec were of a uniform, 74   For example, Québec’s claim to a ‘distinct society’: J Brossard, L’accession à la souveraineté et le cas du Québec: Conditions et modalités politico-juridiques (Montreal, PU Montreal, 1976); J Woerhling ‘L’évolution et le réaménagement des rapports entre le Québec et le Canada anglais’ in J Woerhling and JY Morin, Demain Le Québec (Québec, Septentrion, 1994); B Cleary, ‘Les trois peuples fondateurs: l’assise du Canada de demain’ in M Seymour (ed), Nationalité, Citoyenneté et Solidarité (Montréal, Liber, 1999) 329; J Jensen, ‘Recognising Difference: Distinct Society, Citizenship Regimes and Partnership’ in R Gibbins and G LaForest (eds), Beyond the Impasse: Toward Reconciliation (Montréal, IRPP, 1998) 205; R Howse, ‘Post Charlottetown Constitutionalism: A Review Article’ (1994) 26 Ottawa LR 487 and reply of R Johnson in (1994) 26 Ottawa LR 511. For example, the Flemish versus Walloon character in Belgium: W De Wachter, De dualistische identiteit van de Belgische maatscahppij (Amsterdam, KNAW, 1992); T Van Dijk, Blijven wij buren in België? Vlamingen en Walen over Vlamingen en Walen (Leuven, Van Halewijck, 1996); and B Maddens, J Billiet and R Beerten, O dierbaar België? Het natiebewustzijn van Vlamingen en Walen (Leuven, ISPo/SOI, 1994). 75   Along the lines of communicative action envisioned by J Habermas, A Theory of Communicative Action (T McCarthy (trans), Cambridge, Polity 1986, 1987) vols I and II, and his Between Facts and Norms (W Rehg (trans), Cambridge, Polity Press, 1996).



The Remedy of Secession 159

undifferentiated, single stock, and there existed no significant differences among the other regions of Canada.76 As noted above, the relationship between majority and minority may only come about if there has been an attempt to integrate and accommodate all members into a broader society. Differences may already exist among members, and smaller associations may already exist, but they do not constitute a ‘minority’ until the foundational common commitments of those associations begin to exclude co-­ operation and reciprocity with the rest of the larger membership. The minority takes certain of its defining associational commitments as privileged, having preferred them over competing (and supposedly contradictory) majority ones. And the majority takes on its coercive mantle when it ignores or overrides the desire of the minority to exclude certain generalised, public commitments from the sets of commitments held by its respective membership.77 It is conceivable as well that by reasons environmental, historical, social, or other, a distinction between two groups in society gradually arises by self-generation, as it were. In such a case, a secession crisis would signify that the foundational, basic commitments of the one prohibited interaction with the other; that is, the one was antagonistic, inconsistent or contradictory to the other. This proposition does require accepting, however, that certain or entire sections of social common-holdings may be incapable of existing in common, in community. It is the sort of claim made by those advocating nationalist models of secession, and to which Buchanan adverts as well.78 In a secession crisis, the members of the seceding minority group claim that it is impossible for them to interact as equal members with those of the rump group, in a larger, combined society. Put in more practical terms, the minority’s grievance generally cites the majority as unwilling or unable to accommodate the minority in its social, political and legal structures and functions. For example, in the case of Canada, the commonplace examples are the grievances of Québec over non-recognition as a distinct society and the rejection of constitutional amendments to that effect.79 The majority’s rejoinder generally cites the minority’s refusal to compromise and integrate, based on an unjustifiable hard-line claim to privileging certain characteristics exclusive to the minority. Hence, a secession crisis is just that because the one group attempts to impose their collective beliefs, standards, norms and ideals on the other, irrespective of the latter’s own common-holding. This applies equally to the majority as it does to the minority. As a 76   See R Young, The Secession of Québec and the Future of Canada, rev and exp edn (Kingston, McGillQueen’s UP, 1998); J Webber, Reimagining Canada (Kingston, McGill-Queen’s UP, 1994); K McRoberts, Misconceiving Canada (Toronto, Oxford UP, 1997); Gibbins and LaForest, Beyond The Impasse (n 74); A Cairns, ‘Why is it so Difficult to Talk to One Another?’ (1997) 42 McGill LJ 63; and Howse ‘Post Charlottetown Constitutionalism’ (n 74). Yet M Keating, Nations Against the State: the New Politics of Nationalism in Québec, Catalonia and Scotland (London, Macmillan/St Martin’s, 1996) 65–113 attempts to explicate the nature of Québec nationalism, and at 108–9 recognises the unreality of reifying the ‘rest of Canada’ as a coherent block. 77   A Bickel, The Least Dangerous Branch, 2nd edn (New Haven (Conn), Yale UP, 1986) (‘tyranny of the majority’). 78   See, eg, Philpott, ‘In Defense’ (n 15) and Nielsen, ‘Liberal Nationalism’ (n 23). Buchanan, Secession (n 1) 52–61 refers to cultural preservation and cultural self-defence as grounds for a remedial right to secede. 79  Webber, Reimagining Canada (n 76) esp ch 7 (arguing for asymmetrical federalism); McRoberts, Misconceiving Canada (n 76) (deep-seated resentment between Québec and the rest of Canada such that constitutional patriotism unsuccessful); Gibbins and LaForest, Beyond The Impasse (n 74) (re-arranging the federation); Cairns, ‘Why is it so Difficult’ (n 76) (failure of the Meech Lake and Charlottetown Accords). See also R Watts, Processes of Constitutional Restructuring: the Canadian Experience in Comparative Context (Working Papers, 1999, Institute of Intergovernmental Relations, Queen’s U) (on file) 11 (provincial concerns over asymmetry).

160  Remedial Right or Just-Cause Theory result, constitutional unity, as an associational concept, suffers. This stress usually entails that the majority demand the minority to adopt certain or all majority commitments, in preference to competing minority ones, on the basis of the minority’s inclusion in the general set of society. Each side assumes (given the absence of a genuine trans­ formative forum) its respective foundational, delineating commitments are privileged over the other’s. When and how one group may privilege its particular commitments, and when and how it must compromise is, of course, critical. We will come to that presently. But for the moment, we can assume that both sides claim unjustifiable privilege for their respective commitments. That claim for privilege is unjustifiable primarily because that claim remains unmediated by a transformative event involving both sides. As remarked above, the division between majority and minority arose and persevered because of a frustration of the transformative event. The absence of viable transformative communication leads to constitutional stress, and a breakdown of the association. On associative terms, the privileging of commitments represents the conferral of a right. Moreover, such can only arise out of transformative communication whereby each might arrange their private commitments into a public norm and value with the underpinning of obligations of reciprocation. Consequently, we are driven to ask the question by whose hand has (attempts at) the transformative event failed, and continues to fail? Whose intractability, of the majority or of the minority, in seeking a foundation for common association and collective interests has produced the failure or dissolution of co-operation, mutuality and reciprocity? Should the burden of fault fall primarily on the minority, their claims to privileged commitments obtain within the framework of the general collection of public standards, norms, and the like, understood to govern the entire society, majority and minority components alike. And we of course may be taken to assume by implication that the majority remains willing and able to engage in genuine transformative communication. Hence, the transformative discussions, arguments, and so on, which have hitherto delineated those foundational commitments, apply likewise to the minority’s claims. They comprise part of the larger society and are bound likewise by the common-holding. A desire to alter, amend or introduce new foundational commitments must occur through the standard channels of transformative debate. That is, it must occur within the institutional framework of the society wherein all citizens may participate, in order that the private interests become public ones. Hence, the confection of particular new commitments among particular members of a society does not confer special, foundational or otherwise privileged status on those commitments relevant outside of that membership. They are not self-justifying or self-privileging. Rather, they remain derivative upon the others binding society at large together, until transposed to that level in appropriate public fashion. (This translates into the proposition that the claims of a minority or region do not have political importance until they have a foundation in the realm of national commitments.) In this instance, the general societal commitments remain in force over the minority, as enforced by the relevant ‘majority’ institutions. On the other hand, should the majority be primarily at fault, then their claim to privilege relies upon the denial to the minority of any feasible transformative forum. The intransigence of the majority to engage in transformative communication removes the general societal qualification to the commitments they foist upon others. The majority advocates thus its own particular interests, and not general normative ones binding all the membership of the society, minority and majority alike. And that translates into the



The Remedy of Secession 161

oppression of the minority. Oppression was defined above as unjustifiable interference with the interest or commitments of another on a continuing or systematic basis. Impressing its own interests upon the minority denies to the majority any reasonable basis of mutuality and reciprocity. Oppression is a clear statement by one set of individuals (whether at a public or, more likely, an institutional level) that the victim group is not worthy of mutuality and reciprocity. They are not equals. Hence, any form of cooperation is rebuffed, where co-operation would require the natural compromise and balancing of benefits and burdens among the parties. Oppression works to undermine, compromise or vary minority interests, desires, projects, and all that which is bundled up in the idea of a ‘commitment’, without the accord of the minority. It forces upon the minority likewise such norms, standards and beliefs which have not been interiorised by the minority, and perhaps for which no reasonable basis exists in the current commonholding of the minority allowing for due and authentic compliance. Moreover, oppression may also serve to affix by default the delineation of two groups in society, the oppressed and the oppressor, whether or not there exists in fact any difference in foundational commitments between the two memberships. Clearly, the majority is inter­ fering in the commitment set of the minority. That interference is unjustifiable given the majority’s refusal to provide an opportunity for transformative discussions. Where that interference continues across the whole range of interactions between majority and minority (on a systematic basis, in other words) the majority denies the minority any participation in the creation and maintenance of due associative, constitutional relations. All members, by virtue and by definition of their membership in a society, may take part in the transformative event whereby the society arrives at its controlling norms of behaviour. In associative terms, that forms the basis of a right. Denial of that right constitutes a deviation for which a remedy may issue. The systematic nature of the denial of rights of participation reveals the closure of the majority to transformative communication involving the minority. To rescue the minority’s right to a transformative forum, to give effect to that right, secession therefore allows the minority to reconstitute itself as an association fully independent of the majority, with all the allied, necessary trappings and functions. In brief summary, then, secession allows a seceding group to constitute its own organised society (read here, ‘state’) out of the circumstances of a collapse of any extant constitutional arrangements in a larger society. Secession is occasioned by constitutional collapse of an association. That collapse is due to a systematic failure in transformative communication, which failure is the intentional act and responsibility of the majority. The failure translates into the majority’s systematic oppression of the minority. Such oppression is a breach of the minority’s right to participate authentically in a society. Secession is therefore a remedy for a minority’s oppression by the majority. It is not available to any group absent constitutional collapse arising from denial of access to a transformative forum. It is not a right. Implications of Transformative Failure: Remedial Secession In this explication of secession are the three performative elements to a remedy. Let me recast the discussion above to make their role and their implications for constitutional law more explicit.

162  Remedial Right or Just-Cause Theory First, the declarative function impugns the collapse of constitutional relations between the parties brought about by acts of systematic oppression. An association in the nature of a body politic requires all members to participate in the transformative event by which their respective private interests and projects might transcend their individual situations and attain a universalised or idealised expression applicable across the entire membership as a norm. Oppression ignores or represses that necessary element to associational relations. It deviates from the norms of mutuality and reciprocity inherent therein. Culpability and fault reside with the majority, who by dint of their numerically larger membership can attempt to force the minority into unwilling, perfunctory compliance with the wishes of the majority. Clearly, this puts us well beyond treating secession as some instantiation of consent among individuals and groups, as suggested by the primary rights camp. Naturally, we have still to consider what type and degree of oppression is necessary and sufficient to trigger a secession crisis. That depends in turn on the fundamental rights, interests and norms afflicted by the oppression, and thus declared sufficient and necessary for a viable associational polity. This brings us to the instrumental criterion (examined in the next chapter). The second remedial function, the instrumental, would attempt to re-establish an effective transformative space for the minority in the face of the majority’s systematic refusal to allow members of the minority their rights of participation in that larger social grouping. I characterised secession above as a means to rescue the minority’s collective commitments from eradication or diminution at the hands of the majority, by allowing it to reconstitute itself as a separate body politic. Members of the seceding group could create their own transformative event on their own terms. Secession thus serves as an effective and efficacious tool to re-establish and ensure the minority’s right to participate in associative constitutionalism. Of course, in that situation the transformative event is reconstituted to extend only so far as their members. This does not entail, however, ascribing some inherent presumptive value to the common-holding of the minority. Rather, it stands as a comment about constitutional and social procedure: citizens must have equal access to those institutional fora wherein they define social norms and standards governing all members. A minority’s associational commitments, delineating membership in the minority association, took on special status not in virtue of their content per se, but in virtue of their being products of social interaction intended to govern an association of diverse individuals. And they govern that association at an organisational, structural level. A minority provides one of the many sources of ideas, perspectives and arguments to the public articulation of a society’s over-arching values. Under normal circumstances, that contribution is not determinative in its own right. It offers no absolute, final position to be accepted on pain of social upheaval. Rather, it is to be weighed together with all the other perceptions and opinions aired by other individuals and groups. But the exclusion of a minority’s views impairs not only the content of the ultimate articulations, for it excludes and eliminates one source of meaning and ideas. In addition and significantly, it also impairs the system of transformative communication and associational relationships themselves: hence reference to a ‘structural, organisational’ level. To exclude ideas or reject them out of hand, to deprive citizens of any realistic participation in the government of society, to oppress them, all undermine the basic elements of reciprocity and mutuality necessary for associative relationships. To impose one set of opinions or views without the possibility of deviation, opposition or alternation renders a genuine transformative event impossible.



The Remedy of Secession 163

Consequently, a minority’s associative commitments assume political significance to all members of a body politic, majority and minority alike, because the majority shuts out the minority from any measure of realistic, productive co-operation in society in the transformative event and in social institutions. An association independently formed through secession would restore for the minority associative constitutional relations. If secession as an effective remedy is to grant an association independent status, it must reflect and affirm certain important and critical features of associative relationships which allow us to coalesce into a body politic. It must also rely on some conclusion as to which associational relationships are critical for state formation, and why. For, a contrario, their absence makes associational constitutionalism otherwise impossible. A remedy’s instrumental character linked the remedy proper to the commitments it purported to restore or re-invigorate. Secession reconstituted the association for the purpose of assuring access to transformative communication. Accordingly, this in turn points to the pool of commitments at issue. They are those controlling how we relate and associate, and not simply those pointing out goals, achievements, things and results to strive for in particular areas of human endeavour. We might term the former ‘structural’ or ‘institutional’ commitments with the intention of linking them to the earlier analysis of institutions. The latter, we might call ‘substantial’ or ‘aspiration’ commitments. Institutional commitments pertain to the process of associating itself. These are primarily at risk in cases of oppression. The absence of the structural components which arrange how people might come together into a transformative event hinders the creation and development of commitments on substantive matters. In terms of oppression and secession, preventing the minority contribution to the public articulation of social norms (and thus constraining all discussion in favour of majority determined interests) hampers productive, sustainable association and the development of a society, a community. This in turn draws into question what rights, commitments, what level of participation, what type of institutional structure, all allow for effective participation of the membership. It should be clear regarding this examination of the instrumental function that secession does not engage any sort of ‘pre-constitutional’ commitments or principles ‘outside’ or ‘transcending’ a constitution.80 Instead, secession as a remedy draws upon the pool of commitments out of which the state has been constituted. Accordingly, the instrumental criterion places secession squarely in the realm of national constitutional law and politics. Secession addresses constitutional terms directly, the will and desire of people to live together as an organised body of some sort. And as such, all citizens of that erstwhile state are called upon in a secession crisis to evaluate their respective sets of commitments, and consider whether the necessary community of interest exists, as part of the transformative event creating the necessary public, universalised character to those foundational interests, objectives and desires. Everyone must have some participation in the process. Secession is not simply giving effect to the self-serving desires of a special-interest group over and above existing generalised foundational commitments. A secession crisis engages 80   R Kay, ‘Pre-commitment Rules’ (1981) Ohio State LJ 187; J Waldron, ‘Pre-Commitment and Disagreement’ in L Alexander (ed), Constitutionalism (Cambridge, Cambridge UP, 1998) 30; C Sunstein, The Partial Constitution (Cambridge (Mass), Harvard UP, 1995) (‘incompletely theorised agreements’); and S Holmes, ‘Precommitment and the Paradox of Democracy’ in J Elster and R Slagstad (eds), Constitutionalism and Democracy (Cambridge, Cambridge UP, 1988) 195. See also M Foley, The Silence of Constitutions (London, Routledge, 1989) 3–11; and J Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge, Cambridge UP, 1995).

164  Remedial Right or Just-Cause Theory the entire country, all of its citizens, to reconsider the existence and operation of the transformative event and give effect to it or not. Moreover, taken together with the reference to institutional commitments and the reconstitution of associations, we come neatly to the institutional criterion. The institutional function of a remedy, as we saw, justified the existence of the organisation administering the remedy through its promulgation and application of authentic statements of the governing norms between the parties. In secession, we encounter a minority group attempting to separate itself from a larger social order by its own action. Hence, the minority grasps at the remedy itself, and not through mediation of any other institution, pace the desires of international law scholars. In other words, the institution conferring the remedy is the (minority) association itself. Without further nuance, this realisation may well encourage us to adopt not only a purely political view of secession, to the exclusion of law and other disciplines, but also a nationalistic view of secession, based as it is upon minority cultural associations. But we have in the institutional criter­ ion, and implicit in the other two criteria as well, enough to warn us against following the national path. That a minority group may secede exists not in virtue of its being a minority qua minority (as defined by a specific ensemble of common commitments) but as an associational entity. That is, the content of the minority’s common-holding is not as important as is the existence of an organised structure of commonly held commitments. For it is the existence of the institutional commitments and access to a transformative event which secession intends to preserve. In effect, a seceding minority does not appeal to its own capacity, but to the institution of a society for access to a transformative forum, otherwise barred it by the majority. And we understand here the institution, or even concept, of society to be a fully operative association based on obligations of reciprocation modulated by norms originating out of a transformative event. What Gives Rise to Remedial Secession? We can focus the questions to a degree in the context of secession by asking what type of associative commitments could establish a secession? In other words, what rights must have been breached to establish our cause of action for the law of secession? We cannot properly assess secession as a remedy, let alone any legal remedy, without first understanding what rights it purports to re-establish, to repair. Thus, in the next chapter, I propose to consider in greater detail the grounds suggested by Buchanan which legitimate a remedial right (or remedy, as argued here) to secession. Having completed that analysis, we will be in a better position to evaluate the remedial rights model as a coherent and cogent constitutional theory for modulating a secession crisis.

5 Remedial Secession and Disassociation

T

HE PREVIOUS CHAPTER concluded that secession was, if anything, a remedy occasioned by a breach of certain antecedent rights. But it was not a right, whether one independently established by virtue of inherent characteristics, or by derivation as a ‘right to a remedy’. Notwithstanding the differences established between right and remedy, a remedy certainly remains connected to a right as an effective cause for the correction of any deviation from a right and the allied repair of any loss or injury. The declarative and instrumental functions of a remedy entailed a reiteration and restoration of the controlling norms and commitments underpinning the claimed right. Absent that connection, a remedy could not satisfactorily assure an effective and efficacious correction to any deviation. Naturally, then, we ought to examine what social norms and common commitments might reasonably be restored by severing all (political) association. At first sight, this appears somewhat contradictory by virtue of the approach here to rights, remedies and associational relationships. How could breaking an association restore an association? I had begun to sketch a tentative solution above, preserving Buchanan’s conclusion that secession is a remedy (of sorts). It characterised the systematic oppression of a group as a rejection of any co-operative undertakings with that group and the rejection of the obligations or reciprocation necessary to found associational relationships, for which secession allowed both sides to pursue their own associational groupings independent of one another. Thus, the antecedent rights at issue speak to the formation and preservation of specifically political associations, ‘states’ by another label. I will continue to track Buchanan by examining the rights he suggests as sufficient to ground a remedy of secession in light of this proposed solution. Buchanan cites four types of right: (1) discriminatory redistribution; (2) cultural preservation; (3) cultural self-defence; and (4) rectificatory justice. I will deal with each in turn. DISCRIMINATORY REDISTRIBUTION

Discriminatory redistribution by a state perpetrates such an injustice against a certain group as to render illegitimate the state’s continuing authority over that group, and thereby justify that group’s secession from the state.1 Discriminatory redistribution, as developed by Buchanan, means a distribution of (principally) economic benefits systematically working to the disadvantage of some group, while benefiting others in morally 1   A Buchanan, Secession: the Morality of Political Divorce from Fort Sumpter to Lithuania and Québec (Boulder (Colo), Westview, 1991) 38–45, 114–21. See also the practical working out of the claim in V Bartkus, The Dynamic of Secession (Cambridge, Cambridge UP, 1999); and M Bookman, The Economics of Secession (London, MacMillan, 1993).

166  Remedial Secession and Disassociation arbitrary ways. In other words, the state system consistently works to benefit one group to the cost of another, whether by outright exploitation, regulatory legislation, distribution of goods and services, distribution of financial or fiscal gains and burdens, or some other like means, and directly or indirectly.2 Buchanan also suggests that a state may perpetrate serious injustice, discriminatory redistribution included, against some group even where that government respects all rights (under positive law), including minority rights.3 That is, the mere protection of rights of equality and of property is not in itself sufficient. As long as property rights permit some form of state redistribution, there remains the possibility of discriminatory redistribution: rights to private property cannot catch all of its forms. Equality rights address the legislative process implementing, and interpretation of, the redistribution policy, not its actual content, such that a majority may legislate discriminatory schemes without ostensibly violating legislative or judicial equality provisions and rules. Positive rights, at least under Buchanan’s view, are more guarantees of procedural standards than of substantive ones.4 Now, the legitimacy of the state depends upon providing a framework for co-operation among its citizens, and avoiding any systemic discrimination against any group.5 Discriminatory redistribution violates the fundamental responsibility of the state, that government (the state) operates for the mutual genuine advantage of all its citizens. For Buchanan, this also means that the government does not exploit or expropriate its citizens’ resources without compensation. Having conceded that both formulations are vague, he prefers the latter (no exploitation) to the former (mutual genuine advantage), because the latter avoids the controversial setting of standards or criteria for assessing what ‘mutual genuine advantage’ really is, and further, already permits a redistribution of benefits leaving only the question of morally justification.6 This fundamental responsibility rests upon the platform of liberal political theory and Buchanan’s conception of state sovereignty. By virtue of this fundamental breach, the state may no longer claim to exercise legitimate political authority over the victim group. The loss of that claim entails a voiding or sub­ ordination of the state’s claim to jurisdiction over that territory and its resources. Absent any other reasonable means to avoid or remedy this injustice, a victim group will obtain a better claim to the territory than the oppressor state, and thus may justly secede. Shortly put, then, a systemic discrimination against any particular group in favour of another, based on morally arbitrary reasons, represents a fundamental breach of the state’s duty to that group of citizens. By consequence, the state may lose jurisdiction over that group and the territory on which it resides. That is, it is morally impermissible 2  Buchanan, Secession (n 1) 41, 42; R Premdas, S Samarasinghe and A Anderson (eds), Secessionist Movements in Comparative Perspective (London, Pinter, 1990) (especially R Premdas ‘Secessionist Movements in Comparative Perspective’ in ibid 15 ff); Bartkus, Dynamic (n 1) 167 ff, 202 ff (rise in benefits; fall in costs); Bookman, Economics (n 1) 94–95, 114–15, and A Hirschman, Exit, Voice, and Loyalty, (Cambridge (Mass), Harvard UP, 1970) 120 ff (exit opportunity). 3  Buchanan, Secession (n 1) 42–44. 4   Quaere whether Buchanan’s premise of equality rights is too narrowly defined under the US constitutional model: compare from a Canadian perspective, F DeCoste, ‘The Separation of State Powers in Liberal Polity: Vriend v Alberta’ (1999) 44 McGill LJ 231; T Macklem, ‘Vriend v Alberta: Making the Private Public’ (1999) 44 McGill LJ 197; C Davis, ‘Vriend v Alberta: Law v Canada; Ont. v M & H: the Latest Steps on the Winding Path to Substantive Equality’ (1999) 37 Alberta LR 683; D Galloway, ‘Three Models of (In)Equality’ (1993) 38 McGill LJ 64. 5  Buchanan, Secession (n 1) 45. See also A Buchanan, ‘Secession and Democracy’ in M Moore (ed), National Self-Determination and Secession (Oxford, Oxford UP, 1998) 25 and his ‘Institutional Dimension’ in P Lehning (ed), Theories of Secession (London, Routledge, 1998) 241 ff. 6  Buchanan, Secession (n 1) 43–44.



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for the state to continue to assert jurisdiction thereover. Attempts by the victim group to separate itself and its territory from the oppressor state become morally permissible. By virtue of the redistribution being discriminatory, it sets the issue outside the range of concern for distributive justice, except insofar as the discrimination itself constitutes a violation of distributive justice principles requiring some remedy. The gravamen of the dispute is simply the absence of distributive justice, as opposed to merely conflicting, divergent views of what distributive scheme ought to obtain in the circumstances. So, applying Buchanan’s test for a right (what is morally permissible, and correlatively, impermissible), naturally we arrive at a Buchanan-defined right to secede by virtue of the injustice of discrimination. Quite apart from its theoretical weight in service of a political morality of secession, the economic exploitation argument enjoys not inconsiderable popularity and support among current secessionist groups and parties (as it always has), and among other analysts of the secession phenomenon.7 Versions of the economic exploitation argument do feature prominently in the political platforms and public statements of secessionist groups. But these rarely evidence a clear, serious injustice of deprivation or exploitation. Rather, they tend to play on fiscal and financial policy and the redistribution of public resources: either too much is being given away, or not enough is being allocated to the region. For example, in Belgium, the essence of the economic complaint has been (in its most grotesque form) that a wealthy Flanders supports a lethargic Wallonia through large (federal) transfer payments, federal subsidies and power-sharing arrangements, but all (1) without anything concrete and equivalent in return; (2) without Wallonia making significant efforts to improve its economy; and (3) spending Flemish largesse in ineffectual, even wasteful, ways.8 While having been given regular ventilation by the Vlaams Blok/Vlaams Belang, a right-wing nationalist political party, that party has lost much of its popular support and political presence in recent elections at all levels (perhaps not unsurprisingly). That support has in large measure has shifted to the Nieuwe Vlaamse Alliantie (NV-A), also a right-wing nationalist party, but having a broader base of support and offering a more polished message. Moving away from more overt criticism and attacks, its message revolves around the fiscal and financial responsibilities of each of Flanders and Wallonia, which cannot be otherwise than based on a necessary and growing political autonomy for each region. Those responsibilities and that autonomy reflect the different situations of each region, differences in no small measure due to fundamental cultural divisions between the two groups. Rather than interdependence, the NV-A promotes a greater independence for each region, thereby allowing each the 7   See generally, Bartkus, Dynamic (n 1); Bookman, Economics (n 1); Premdas, ‘Secessionist Movements’ (n 2); and A Heraclides, Self-Determination of Minorities in International Politics (London, Frank Cass, 1991). See also B Coppieters and M Huyssure (eds), Secession, History and the Social Sciences (Brussels, VU Brussel Press, 2002); R Levesque, Option Québec (Québec, Ed De l’Homme, 1968); and J Lamasse, Le devenir de la nation Québecoise (Québec, Septentrion, 1993). 8   On the constitutional and political structure of Belgium, see A Alen and K Muylle, Handboek van het Belgisch staatsrecht (Mechelen, Kluwer, 2011); and A Alen and D Haljan (eds), ‘The Constitutional Law of Belgium’ in A Alen and D Haljan (eds), The International Encyclopaedia of Laws: Constitutional Law (Deventer, Kluwer, 2012). See also E Witte, J Craeybeckx and A Meynen, Politieke Geschiedenis van Belgie van 1830 tot heden, 6th edn (Brussels, VUB Pr/Standaard, 1997) 137, 180 ff, 355–84; L Hooghe, A Leap in the Dark: Nationalist Conflict and Federal Reform in Belgium, Western Societies Program Occ Paper 27 (Ithaca (NY), Cornell UP, 1991); M Uyttendaele, Préçis de droit constitutionnel belge. Regards sur un sytème institutionnel paradoxal, 3rd edn (Brussels, Bruylant, 2005); and P Delwit, JM De Waele and P Magnette (eds), Gouverner la Belgique (Paris, PUF, 1999)

168  Remedial Secession and Disassociation responsibility and benefit of choosing its own policies and course, with the ultimate objective of marginalising or erasing national, federal levels. Rather than outright secession, the idea is to evolve into independence, moving the federal state (formerly a unitary one prior to the 1970s) into a confederal arrangement and beyond, within the safety-net of the European Union. The growing popularity of the NV-A, and its electoral successes, have also motivated the other major Flemish parties at the federal level to adopt forms of soft confederalism within their policy platforms.9 In Canada, the economic complaint is a recurring character in the repertory of the Parti Québecois (PQ), a politically dominant left-wing, nationalist, secessionist party based only in Québec.10 Fairly, though, it also makes a regular appearance in the manifestoes and electoral programmes of almost all the provincial political parties. The gist of the argument, facts and figures aside, is (1) that the federal government takes away too much from the provinces and provincial control, and returns less to the provinces, or to some provinces (despite greater need); (2) that the provinces have a better idea on how and where to allocate resources; and (3) that the provinces should have greater control and more jurisdiction to accomplish this, or at least the federal government should curtail its attempts to interfere in matters of provincial jurisdiction. In Canada in particular, the redistribution argument emphasises less the benefits accorded other provinces, and more the benefits retained by the federal government (at the cost of the provinces) and the federal failure to accommodate regional / local needs in its policies.11 It should not be necessary to investigate at any length or in any detail the nature, substance and evidence for these claims, a task already accomplished elsewhere.12 What is important for present purposes, however, is to understand the convenience and prevalence of such arguments, especially in federal states, or those with strongly pursued regional identities. In such cases, there is a conjunction of three critical elements. First, the economic exploitation argument can rely on a sizeable measure of inherent force and attractiveness. After all, the argument really derives from the fundamental human interests of subsistence, sustenance and security. Whether or not in true fact the exploitation complained of does or could actually compromise those interests, it is sufficient for the argument to have effect merely by suggesting it to be the case, to play upon themes of expropriation of property, impoverishment, of the notion ‘mine, and mine alone’.13 Those human ‘goods’ are so basic that any reference to a threat or peril to them suffices to strike some chord. But this generalised political discontent in itself hardly translates into revolutionary fervour or a secession crisis. It may serve as a baseline, a recurring theme, to keep political disharmony active. Yet something still seems lacking to draw 9   The left-of-centre SPA (www.s-p-a.be), the centrist CD&V (www.cdenv.be), and the right-of-centre Open VLD (www.vld.be). 10  See www.pq.org. The party returned to power in 2012 (albeit with a much more muted sovereignty message), defeating the Liberal Party of Québec under Jean Charest. The Liberals had been in government since 2003, after some nine years of PQ government: Parizeau (1994–96), Bouchard (1996–2001), Landry (2001–03). 11  See R Watts, Processes of Constitutional Restructuring: the Canadian Experience in Comparative Context (Working Papers, Institute of Intergovernemental Relations, Queen’s University, 1999) (on file) detailing the focus on which provinces would be the biggest losers from proposed constitutional changes during the 1990–92 attempts to amend the Canadian Constitution. 12   R Gibbins and G LaForest (eds), Beyond the Impasse: Toward Reconciliation (Montréal, IRPP, 1998); R Young, The Secession of Québec and the Future of Canada, rev and exp edn (Kingston, McGill-Queen’s UP, 1998); A Cairns, ‘Why is it So Difficult to Talk to One Another?’ (1997) 42 McGill LJ 63. 13   All of which ideas comprise a good chunk of Locke-inspired political theory: J Locke, Two Treatises of Government, rev edn (P Laslett (ed), New York, Mentor/New American Library, 1965), ‘The Second Treatise’ (hereinafter, ‘Two Treatises II’) para 95 ff (political society for protection of property), 138 ff, 222 ff.



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the point to a crescendo. Secondly, we are saddled with the national obligation to contribute to a national pool of revenue and resources for distribution to all our fellow citizens. That source of complaint applies as much to our neighbour as it does to a neighbouring region. Thus far, both elements apply just as well to any state. There is nothing yet to distinguish one group from another, to establish some notional boundary between ‘us’ and ‘them’. The third element, however, is the formal division of the state into separate regions exercising a degree of politically autonomy, and is peculiar to federal states. A unitary state with active regional identities might also qualify, insofar as those identities have some political recognition and authority, either by self-government initiatives, or as political forces at the national level and in political institutions. Here, we have conveniently the borders between a regional ‘us’ and a ‘them’ across that border. A federal system will package, more or less neatly, regional identities, whether existing before or in virtue of those administrative regional divisions. Provincial and like boundaries in any federal system will always separate populations in one province from another. The sense of separation is mitigated in part at the federal level by a common currency, free movement of goods and persons across borders, a certain uniform body of federal law, and so on. Accordingly, the argument will play upon the existence of an internal border as more than a simple administrative division. Obviously, the objective is to reinforce the separation of citizens in one region from those in another, thereby weakening the sense of community relationship, mutual responsibility and common enterprise. Whether or not true in substance (superficial differences always existing to some extent), the local border will signal the purportedly different nature of the respective citizenry and of the problems and needs that each face in the same fashion as if it were an international border.14 That difference in nature speaks to public institutions separately organised and run, and naturally, distinctive common commitments exclusive to that population suggesting these to be incompatible with those held across the border. For example, different applications of policy are taken to represent, not variations on a single theme, but rather fundamentally different commitments. The principle of subsidiarity comes to represent a source of autochthonous constitutive power emanating from a sovereign people rather than an administrative (and constitutional) principle.15 The principle holds that, given the division of powers characteristic of federalism, jurisdiction over legislative or administrative measures which affect purely local or specific individual interests should be attributed to local governments. Other matters, such as of general, national or inter-provincial importance, are better allocated to the federal government level. The conversion to a constitutive tenet substitutes the administrative, ascriptive rationale with an associational, definitional one, confirming after some fashion an alleged right of a people to self-governance. In effect, the internal boundary tracks a more deeply set and experienced associational divide between two polities. And the greater the sense of difference, the greater the 14   For example in Canada, each province is sovereign over its own territory, population, economy and social matters to the extent such jurisdiction is conferred on it by the Constitution Act 1867: see, eg Hodge v The Queen (1883) 9 AC 117; Liquidator of the Maritime Bk v Receiver Gen (NB) [1892] AC 437; Reference re Powers of Disallowance [1938] SCR 78. 15   See, eg K Wheare, Federal Government, 2nd edn (Oxford, Oxford UP, 1951) 16–22, 32–34; F Delmartino and K Deschouwer, ‘Les fondaments du fédéralisme’ in Centre d’Etude du Fédéralisme, Le Fédéralisme: Approches politique, économique et juridique (Brussels, De Boeck Université, 1994) 11, 31; R Ergec, ‘Les aspects juridiques du fédéralisme’ in ibid 37; and K Lenaerts, P van Nuffel, R Bray and N Cambien, European Union Law, 3rd edn (London, Sweet and Maxwell, 2011).

170  Remedial Secession and Disassociation dilution of the proximity and community of interests needed to sustain a moral obligation for the welfare of another – something more than just a sense of responsibility for another’s welfare. Equally, the greater the resentment towards the centralising or arrogating force of the federal government’s powers.16 And the slope of resentment becomes fairly slippery once the sense of moral obligation to a fellow citizen dissipates. More specifically to the case of secession, the key question then becomes whether this sense of resentment can translate itself into effective political dissent, or can join and feed extant political discontent.17 But the continuing existence of federal systems, in spite of heartily expressed discontent with redistributive policies, suggests that something more than regionally contested fiscal and economic schemes need to inform the purported right to remedial secession. In any state, some redistribution of wealth will occur between regions, through government investment subsidies, transfer payments, and like public aid. For example, regional economic equality is a constitutional provision under section 36 of the Constitution Act 1982 (Can) although its legislative and judicial force is uncertain and untested in substance.18 This aid would be funded out of the pool of tax revenues. First, at no level of government, from municipal to national, are the revenues to that general fund actually or notionally divided into regional contributions for account with regional expenditures. Instead, revenues are pooled as a bulk, and are then distributed according to government fancy or reason.19 Further, taking the regional contribution point to its extreme, a city street, quarter or neighbourhood should then also have a claim that it receive a share of municipal expenditure equivalent to its assessments. Thirdly, in a federal system, both the component subnational states and the national, federal governments will have some taxing powers – a lesson learned early in the first attempt at a federal state, the United States.20 Further, it should always be possible to identify each region’s percentage of the total fiscal contribution to the federal treasury. Since it is unlikely that all regions of a (federal) state should enjoy similar levels of continuing prosperity, just as it is unlikely that each region should have an equivalent share of natural resources, a net imbalance will always exist in transfer payments. Over the course of time, there will be net outflow of wealth from a consistently prosperous, wealthy region to other poorer ones. The duration and extent of the outflow will naturally depend upon the relevant economic and social considerations giving rise to a

16   Importantly, this latter point of federal disregard for (effective) subsidiarity is not treated in Buchanan, Secession (n 1) as an aspect of discriminatory redistribution, or at all. 17   See, eg Wheare, Federal Government (n 15) 49 ff (forces of separation); J MacPherson, ‘The Future of Federalism’ in S Randall and R Gibbins (eds), Federalism and the New World Order (Calgary, Calgary UP, 1994) 9; R Gibbins, ‘The Challenges of New Polities and New Social Movements to the Future of Federalism’ in ibid 17; D Elazar ‘Federal Diversity and Rights’ in L Katz and G Tarr (eds), Federalism and Rights (New York, Rowman & Littlefield, 1996). 18   See, eg Cape Breton v Nova Scotia (AG) (2009) 68 CPC (6th) 169 (NS CA) and CBA v BC (2008) 290 DLR (4th) 617 (BC CA); and A Nader, ‘Providing Essential Services: Canadian Constitutional Commitments under Section 36’ (2003) 19 Dalhousie LJ 306. See also the Provincial Subsidies Act RSC 1985 c P-26 (Can) (obligations of the federal and provincial governments under instruments creating or admitting other provinces and arising out of ss 114, 115, 116 of the Constitution Act 1867). 19   P Hogg, Constitutional Law of Canada, 4th edn (Toronto, Carswell, 1998) 155 ff; Reference re CAP [1991] 2 SCR 525; YMHA Jewish Comm Centre v Brown [1989] 1 SCR 1532; CMHC v Co-op College Resids Inc (1975) 13 OR (2nd) 394 (CA); and CMHC v Iness [2004] OJ 771 (CA) (spending power of the federal government not subject to provincial human rights legislation). 20   For Canada, Constitution Act 1867 s 91(3) (federal jurisdiction) and s 92(2) (provincial jurisdiction).



Discriminatory Redistribution 171

growing, stagnant or shrinking economy.21 Finally, and in view of all the above, reliance on contested fiscal and economic schemes, even if ‘morally arbitrary’, would seem to beg the question of what actually constitutes ‘discriminatory redistribution’ sufficient to trigger the right to secede. If the discriminatory nature to a distributive scheme represents the critical attribute causing a rupture in a political union, whether or not that polity was already under stress in virtue of the scheme of distribution, what then is the content of discrimination? To answer that, we must already have some preliminary idea of what a distributive scheme entails, what a non-discriminatory, just scheme would consist of, and by whose standards we could measure the justice or injustice of the scheme. In other words, we are incorporating parts or entireties of variegated and contested theories of distributive justice into the prerequisites for remedial secession. (Obviously this invites the question of what effect this may have on a theory of remedial secession, such as leading to signific­ ant uncertainty and disagreement over the basic premises for secession, now including the concept of ‘discrimination’.22) We shift thereby our attention to circumstances prior to the allegedly discriminatory incident, prior in the sense of an antecedent ideal, normal state of affairs, and (if applicable) just to such a point in the history of the polity itself. Discriminatory redistribution therefore attends to a breach of a prior ideal state of affairs. Recalling earlier criticism that Buchanan’s approach to secession actually feeds off oppression and as such implies the existence of some positive, antecedent right, we may now recognise here the critical turning point. Discrimination as the Violation of Equality Rather than putting the cart before the horse by focussing on the breach so as to ground the right claimed by Buchanan, we ought instead to investigate those circumstances, those rights, standing as the norm, and by whose violation we might claim the remedy of secession. Thus, to assert that secession is a remedy presumes some concept of an ideal, properly functioning political association: it assumes certain constitutional fundamentals. These are the sine qua non of such a political association. Absent those constitutional principles – or by virtue of their breach – the polity is destined for collapse, likely by secession. So what are those constitutional elements? We have nothing explicit in Buchanan. But he would seem to take as a given that systematic negation of discriminatory redistribution entails by logical inversion systematic equality, an equitable distribution scheme. His underpinning of liberalism strengthens this assumption. And as a further clue, we have his emphasis on the necessity of actually sharing benefits and burdens in society as grounds for government legitimacy.23 Equality here is not merely procedural, but must be substantive. Otherwise a ‘just’ state may nonetheless practise discriminatory redistribution simply by following the rules. Hence, one of the principal premises (if not the determinative one) to any constitutional structure for a political association is equality.   For Canada see www.fin.gc.ca/access/fedprov-eng.asp.  Buchanan, Secession (n 1) 114–24; K Dowding, ‘Secession and Isolation’ in P Lehning (ed), Theories of Secession (London, Routledge, 1998) 71, 78–79; and L Bishai, ‘Secession and the Problems of Liberal Theory’ in ibid 92. 23  Buchanan, Secession (n 1) 43–44. 21 22

172  Remedial Secession and Disassociation Secession becomes, then, a remedy for an unanswered violation of the core political right of equality. That the core of the right here demands systemic equality, or at least no systemic dis­ advantage, would presume naturally some notion of ‘systemic disadvantage/systemic equality’. Buchanan offers no definition therefor, nor of the ‘morally arbitrary reasons’ characterising the balance of (economic) advantage and disadvantage as ‘discriminatory’. He does provide, however, several examples where secessionist forces could be said to have relied on forms of the discriminatory redistribution argument: the US South (a protectionist tariff against imports to support fledgling Northern industry, and burdening an import-dependent South); Basque Spain (percentage of Spanish tax revenues paid exceeded by three times the amount of government expenditure there); Biafra (22 per cent of the Nigerian population, 38 per cent of all tax paid, 14 per cent of all government expenditure); Katanga (58 per cent of all Congolese tax paid, 20 per cent of all government expenditure); and the former Soviet Baltic republics (burdened with excessive levels of Soviet industrial pollution).24 Since he rejects arguments based on efficiency (Pareto model) as necessary and sufficient justification for secession in favour of unspecified ‘moral considerations’, we may reasonably conclude that discrimination must mean something more than a simple balancing of fiscal, financial, or other like burdens, with the correlate benefits.25 Buchanan offers some further guidance to his understanding of discriminatory redistribution in his rejoinder to objections that secession would serve as a means to avoid obligations to redistribute wealth imposed by the requirements of distributive justice.26 In other words, any redistribution will attract complaint as ‘discriminatory’, being a convenient way to avoid the responsibility for transferring some wealth and resources to poorer sections of a state. Claiming discriminatory redistribution and proceeding with secession on that basis permits the seceding group (presumed here to hold the wealth) to convert its obligations of justice, arising out of its membership in a co-operative effort, to obligations of charity, as owed to strangers. Importantly, the former are taken as compulsory; the latter, as voluntary, non-compulsory. Since a redistribution of wealth occurs in every state, to some degree, the risk of secession is thus self-evident. Buchanan’s counter to these objections tests the source of ‘justice’, derived either from a concept of reciprocity (justice as mutual advantage) or from some subject-centred theory.27 Under the first construct, co-operation is the defining element, and so the obligation (of distributive justice) continues so long as co-operation exists. Distributive justice presupposes co-operation. But this affords no answer to secession, since secession questions whether it is just to continue co-operating or not. It is not the case that justice would require continued participation in a co-operative scheme when no longer advantageous to one party. That co-operation is fundamental to distributive justice is not really disputed. The question of how far the obligation continues to bind in the face of disadvantage is, of course, the heart of the matter.28 Nor does the first construct address the 24  ibid 41. For a more detailed discussion on Biafran, Katangan and other secession attempts, see, eg Heraclides, Self-Determination (n 7) and Bartkus, Dynamics (n 1). 25  Buchanan, Secession (n 1) 45–48. 26   ibid 114–23. 27   ibid 116–17. He refers only to his ‘Justice as Reciprocity versus Subject-Centred Justice’ (1990) 19 Phil and Pub Affs 227 for this ‘watershed issue’. 28  Buchanan, Secession (n 1) 117–18, 122–23. On partiality, see, eg J McMahan, ‘The Limits of National Partiality’ in R McKim and J McMahan (eds), The Morality of Nationalism (Oxford, Oxford UP, 1997) 139; and T Hurka, ‘The Justification of National Partiality’ in ibid 107.



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problem that not all citizens are net contributors to the co-operative surplus from which surplus the obligations spring. Under the second construct, other, morally significant features of the subjects of the obligations define the nature and scope of those obligations, over and above merely some reciprocal benefit.29 But this entails that closing a co-operative relationship does not necessarily terminate any extant obligation of distributive justice between the parties. Since the existence of such reciprocity is not a condition to an obligation of distributive justice in the first place, the termination of that relationship may not lead to the extinguishing of that distributive obligation. Ultimately, the scope and nature of the distributive obligation imposed depend upon the individuals involved. And Buchanan helpfully (for us) offers the concluding observation that the real, determinative moral question is just how much the better-off individuals should transfer to the worse-off, and the extent of that obligation, both within and across international boundaries.30 The real question is indeed the nature and scope of the morally-grounded relationships existing among members of a society. What (distributive) duties we owe to others and what those duties demand of us all derive from our relationships with others, whether it be in function of family, friendship, marriage, public service, business, or the like. Thus, as Buchanan ultimately recognises, any theory of distributive justice, and by extension any theory of secession, must first account for the types of co-operative relationships existing between individuals. A fortiori, it seems self-evident that we must first have some understanding of what those relationships are, and how far they bind us, before we may claim that certain acts have effectively terminated the co-operative effort. A purely economic rationale is not sufficient. Our interaction with others does not operate entirely, or even partially, on an economic assessment of the potential capital benefits accruing to us. We do not wholly or exclusively understand our relationships with others as a calculation of material profit and loss, of efficiency gains. There are commitments, other than to material gain and loss, which draw us together in common enterprise.31 For lack of a better descriptor, they are ‘morally-grounded relationships’, or ‘associative relationships’. Those relationships, including the rights and duties derived from them, create and reflect the links out of which an association comes into being. This intuition is critical and fundamental. By rupturing those links and abusing those relationships, we jeopardise the continuity of the associative effort. Consequently, discriminatory redistribution does not mean simply an uneven distribution of profit and loss, burden and gain. We must understand it as an active disregard for the balance and community of interests in an associative relationship. Such disregard may take the form of an unequal distribution of economic burdens, but it is not restricted thereto. It may also encompass an unequal or divisive allocation of public services, positive rights or other non-­ economic goods. But at its heart, discriminatory redistribution constitutes such conduct as to oppress and suppress the active participation of at least the other party to an associative relationship. It is, in brief, a denial of the equal status of the other, ceteris paribus, in forming an associative relationship and in determining the content thereof.  Buchanan, Secession (n 1) 118.   ibid 121. 31   B Barber, ‘Can Democracy Survive the War of Tribalism and Globalism’ [1997] RCS 1, 9–11 (suggesting but not exploring a distinction between market forces and constitutional/social ones); and see J Elster, ‘The Market and the Forum’ in J Bohman and W Rehg (eds), Deliberative Democracy: Essays on Reason and Politics (Cambridge (Mass), MIT Press, 1997) 3. 29 30

174  Remedial Secession and Disassociation

Equality, Commensurability and Associative Relationships The key idea to be extracted from ‘discriminatory redistribution’ is the necessary kernel of associative equality to these morally-grounded relationships (to use Buchanan’s terminology) constitutive of any association. Buchanan’s own analysis has in fact led to expressing the concept of discrimination (and oppression, by extension) in terms of associative relationships. This is not a cryptic reference to some model or measure of equality, nor an attempt to ground some type of procedural equality. If discrimination represents a breach of some conception of equality, and discrimination is more accurately expressed in terms of undermining associative relationships, then it would follow that equality forms an integral component to associative relationships. As seen above, it matters little what, if any, concrete instantiation of distributive justice happens to exist, or indeed which particular theory of distributive justice we may choose to formulate. What scheme of distributive justice does exist will be determined by the governing associative relationships, as the natural outcome and purpose of those relationships; considerations of mutuality and reciprocity will delimit the particular distribution scheme. That discriminatory redistribution is a breach of distributive justice, howsoever conceived, also entails therefore a breach of the associative relationships (‘morally-grounded relationships’ per Buchanan) founding the distributive scheme at issue. Because of the discrimination, the mutuality and reciprocation which are elemental to associative relationships, vanish. In their place comes a very clear picture of the (forcible) imposition of the one’s commitment upon the other, and the disregard or rejection out of hand of the latter’s. The one side refuses to treat the other as a party capable of entering into an associative relationship, of participating in a transformative event where both parties work to prescribe the normative conditions governing their joint, co-operative undertaking. Quite the contrary, one side determines and imposes those norms and the structure of the interrelationship. The one side arrogates power to command norms because of the ascribed incapacity of the other party. Those attributes selected by the one party to distinguish it from its purported counterparty render the latter incapable of entering into an associative relationship. The terminology by which we label this situation, such as a lack of equality among parties, or a lack of identity, or a differentiation, or discrimination, and so on, is irrelevant. One party is simply treated as not equal, or not the same, as the other and is excluded from the social and moral commerce creating any viable, sustained association. We can hardly be expected to form or maintain co-operative undertakings with others who insist on privileging and preferring their commitments and attributes over ours in all circumstances. And without that co-operation, any association is doomed to dissolution, subject only to perfunctory co-existence through coercion. Discrimination therefore harms an association, such as a polity, precisely because it re-establishes or creates divisions and boundaries antagonistic to achieving a community of commitments through a fully participatory transformative event, the very purpose of which is to bridge such divisions. That discrimination in the ordinary course represents differential treatment based on factors irrelevant to the proposed relationship or the treatment itself. What determines the relevance of factors is naturally the central question. I have suggested that it is the nature of the associative relationship, that is, the commitments pursued in common, which will in large measure delineate relevant matters.



Discriminatory Redistribution 175

Discrimination divides and compartmentalises individuals in such a way as to interfere with the associating process among them. Discrimination therefore describes more than the mere fact of distinctive sets of commitments and differentiating attributes among individuals. Associative relationships presume that the individual parties approach their intersubjective contact from separate and distinctive vantage points. The associative process overcomes such divisions so as to establish co-operation and a common-holding of commitments in normal circumstances. It follows that discrimination must create insurmountable obstacles to the confection of co-operation, mutuality and reciprocation. The distinguishing feature, then, between a coming to agreement in spite of differences and discrimination is the treatment of the divisions between the parties, quite clearly. The divisions are such as to prevent or render impossible the adoption of any common ground between the parties. The social and ontological significance given to the peculiar differentiation at issue establishes an incommensurability between the parties. The differential treatment produced by discriminatory redistribution imports an incommensurability between the commitments of the one group and those of the other. By ‘incommensurability’ I mean an impossibility to compare and measure the difference between two quantities because of the absence of a common metric.32 Generally, we compare two or more objects in virtue of a single attribute, and thus determine whether each possesses that attribute in greater, lesser or equal shares. That system or means of measurement may exist only if the objects each possess that particular attribute. For example, ‘dog’ and ‘brown’ as things in themselves are incommensurable, absent some common feature predicated of both. But if we were to take the two examples simply as words, then we would have commensurability in respect of their property of being English words, involving number of letters, vowels, consonants, grammatical function, and so on. Now, where discrimination obtains, the peculiar attributes selected to distinguish one set of humanity from another certainly also serve presumptively to distinguish the thoughts, desires, wishes, values and aspirations of the one from the other. And the division extends beyond the merely subjective (‘my view’ and ‘your view’) to the objective. The alternative constitution of reality and the consequent variation in truth values concerning the justification of beliefs and perceptions do not simply arise by virtue of phenomenological or epistemological reasons, but are supposed or prescribed by ontological reasons.33 An entirely different ‘reality’ held by each side represents a separate, independent and competing set of facts and values, without apparent common ground. By consequence, we lose the condition for the possibility of reaching common ground, that all human values and ideas reflect and expose only a different part of a single, whole 32   H Mather, ‘Law Making and Incommensurability’ (2002) 47 McGill LJ 345 (especially cardinal and ordinal incommensurability, real and rational incommensurability); and see also L Kornhauser, ‘No Best Answer?’ (1998) 146 U Pennsylvania LR 1599; E Posner, ‘The Strategic Bases of Principled Behaviour’ (1998) 146 U Pennsylvania LR 1599; R Chang, ‘Comparisons and the Justification of Choice’ (1998) 146 U Pennsylvania LR 1569 (differentiation between what justifies and choosing, and the moral weight or force by which it justifies: former open to incommensurability; the latter, not); L Katz, ‘Incommensurable Choices and the Problem of Moral Ignorance’ (1998) 146 U Pennsylvania LR 1465; B Bix, ‘Dealing with Incommensurability’ (1998) 146 U Pennsylvania LR 1651; B Chapman, ‘Law, Incommensurability and Conceptually Sequenced Arguments’ (1998) 146 U Pennsylvania LR 1487 (similar to Mather, and following the distinction in Chang); and C Sunstein, ‘Incommensurability and Valuation in Law’ (1994) 92 Michigan LR 779 (advocating pluralism and openness). 33   See, eg C Taylor, Sources of the Self (Cambridge, Cambridge UP, 1989) (cross-cultural inarticulacy).

176  Remedial Secession and Disassociation truth of how things really are.34 Those excluded from our group are also excluded or isolated from our perception of reality, from our common-holding of values, beliefs, standards of behaviour, goals, and so on. Absent a common truth and common access to truth, the separate views of reality and their attendant consequences on human behaviour and values postulate a fundamental incommensurability between the two groups. For a resolution to this, we are left with either the presumptive acceptance as valid of all points of view, and attendant values (a type of ontological relativism given by an inescapable epistemological relativism), or a view inspired by Schmitt that opposition is a sign of enmity requiring conquest and integration. Oppression obviously embodies the latter solution. Conversely, if a common foundation underlies our standards of behaviour and our various kinds of interaction, then there should exist, at least theoretically, some single, common basis to which all parties can refer in the assessment of their own commitments and those of the other. The common basis allows for a commensurability between opposing commitments. We can scrutinise and be critical of our own set of commitments and those of the other party in such a way as to recognise the strengths and weaknesses of the opposing sides, and so come to a compromise.35 That compromise, the cross-application of commitments, and the joint confection of norms through a transformative event, are of course critical to sustaining an associative relationship. The foundation of any association is the community of purpose, the set of common commitments shared by and binding together the members of the association. That set of common, foundational commitments originates in associative relationships. Those relationships produce the community of commitments through the transformative event, which establishes a common set of measures for members’ conduct, articulated in the form of laws. For individuals to find common ground and to undertake a common enterprise, they must accept obligations of reciprocation, characterised by mutuality and reciprocity. Those characteristics exist on condition of a commensurability among commitments (and, so far as necessary and relevant, commitment holders). In other words, there exists an equivalence between the competing commitments or their specific instantiations. While hardly an original premise in and of itself, that commensurability serves as a primary condition for compromise and agreement does lead to understanding how equality acts as a significant structural criterion in associative relationships and, by extension, in constitutions and constitutional law. First, commensurability denominates a certain measure of quantity or preference or both. A single or shared metric exists to compare and weigh the relative intensity or quantity of the selected attribute in each of the samples. For example, two is greater than one, but less than three. Many concepts of equality, distributive justice and political theories of equal democratic participation, to name but a few, play upon the cardinal branch of commensurability to establish equality. Ordinal commensurability pertains to the hierarchy among the concepts or things compared. One item is either superior, inferior or equal to another: it trumps the other,

34   See, eg B Tingle ‘Redeeming the Promise of Our Laws’ (1992) 30 Alberta LR 1324 (no such common truth, nor common access to any such truth). Like premises can be found in the work of the legal deconstruction movement, the ‘Critical Legal Studies’ school. 35   Echoed in C Sunstein, Legal Reasoning and Political Conflict (Oxford, Oxford UP, 1996) 4 ff (incompletely theorised agreements underlying compromise); doubted in Taylor, Sources of Self (n 33) ch 3, 105 (‘hypergoods’: strongly valued goods).



Discriminatory Redistribution 177

is trumped by it, or neither.36 Ordinal commensurability expresses a preference or priority of one over the other, and derives from the cardinal form. It is only by virtue of one choice possessing more of something, or achieving more or in a better way, that we conceive of a preference for the latter, whether or not we actually articulate a quantification of the relative weights of any shared quality or telos. For example, we may rank certain human rights in preference to others, even though we would be very hard pressed indeed to identify and quantify in coherent and cogent fashion that value held in common by all those rights which serves as the common metric. Yet we should not mistake that inability to identify a uniform metric with ‘incommensurability’. The result is rather unpleasant. Hence, Mather divided incommensurability into a ‘real’ form (ontologically incommensurate) and a ‘rational form’.37 Postulating the absence of that common metric, incommensurability makes any choice in those circumstances unjustified, arbitrary, aleatoric.38 Secondly, equality presumes commensurability. The creating of incommensurability through discrimination renders equality impossible. Equality is indisputably a quantitative measure of comparison between separate and apart entities. The condition for the possibility of that comparison is a common metric in respect of some aspect held in common by the comparators. Dividing the comparators by virtue of incommensurability therefore renders the comparison impossible, deprives it of any meaning. Discrimination is just such a dividing. It represents the expression of a preference (ordinal commensurability) whilst denying or controverting the prescriptions of a quantitative comparison (cardinal commensurability). The latter acts to foster the perception of an incommensurability. The preference stands for our own set of commitments, for which we reject alternative attempts or variations out of hand. And our rejection originates out of the contention that our own commitments have purchase on the truth. We should recognise in this representation of discrimination-incommensurability more than just the oppression on which Buchanan constructed his just-cause theory. As will be evidenced in the two succeeding chapters, nationalism and national theory exhibit an unpleasant partiality among one’s own members and one’s own national commitments based precisely on arguments of incommensurability. Whether of the ordinal variety (distinct cultural values) or of the cardinal variety (the better purchase on the good life) or both, a purported incommensurability underscores the claims for their own, exclusive public sphere. A constitutional democracy, on the other hand, requires such equality as preserves an ordinal and cardinal commensurability among commitments and proposed commitments. Thirdly, the equality between commitments does not relate to their commitment holder, nor to their mere existence. Their equality refers instead to their (ultimate) derivation from a common source and objective. These commitments are products of human invention. Directed (let us assume for the moment) to the well-being of human existence as a whole, their consequent commensurability on that basis allows us to compare and evaluate them. Such differences do not prohibit us from evaluating their success and desirability. Accordingly, we may accept, reject or amend all or parts of those commitments. For 36   Mather, ‘Incommensurability’ (n 32) gives the examples of a ranking of cards in a game and rights of free speech trumping economic growth. 37   Echoed in J Raz, The Morality of Freedom (Oxford, Oxford UP, 1986) 322–24. 38   Thus, Chang, ‘Comparison’ (n 32) (attempting to allow for incommensurable choices, but common justificatory values and arguments).

178  Remedial Secession and Disassociation example, we may attribute a distinction in commitments to a cultural difference, where the standards and modes of human behaviour have developed in separate directions over time. Equality is a signal criterion to associative relationships. Sketched in broad terms, the idea of equality espoused here defines its essential requirement of sameness in terms of participation. Particular individuals have no better or more privileged a claim to knowing the truth, or having their desires and needs fulfilled, than anyone else. We all have but a partial and much obscured view of what really is and should be the case. But when we combine with others, and together evaluate what we know, we should be able to obtain a better grasp of the overall picture. Of course, administrative and practical difficulties would impose limits on the size of any grouping of individuals out of which we could expect to achieve any practicable solutions. But set this problem to the side for the moment. The more problematic aspect is the presumption that the wider the consultation among individuals, the more likely it becomes that we obtain a clearer picture of reality. No implicit nor explicit guarantee of a true and correct view of the world appears to exist in the simple proposition of group discussion. More talk, more interaction, does not appear to imply necessarily the conclusion of a clearer universal picture. In part this returns us to the practical problem noted above. In part it refers to a more fundamental concern about how we conceive of and determine what is true and good. Relying on a discussion model may hold us to a concept of truth and good which depends upon the consensus of the moment, instead of the classical model of an independently subsisting truth and good. Rather than enter into that discussion, I propose to escape this choice by sitting on the fence: because the conversation contemplated by the transformative event is intended to secure an agreement on a certain point and co-ordinate expectation and action, it may be understood either under the rubric of ‘consensus’ or as an intentional investigation designed to elucidate underlying truth and goods. There is no need for either one. What is important, however, is just that fact of deliberation. This concept of equality, applicable to associative relationships, stands in contrast to distributive versions which inform current constitutional and political ideas about equality. The latter conceive of equality, whether procedural or substantive, as a quantitative measure for normative value. They first postulate a single measure by which to measure the quantity of identicalness, whether in terms of outcome, opportunity, status of the participant or like attribute.39 Quantity becomes quality, the quality of being the same size. The idea of equality advanced here, by contrast, is a performative concept, not a distributive one. Performative equality provides the rationale or justification for searching out a common distributive metric. Whether or not distributive equality exists, retires to a latter stage of consideration. This certainly approaches a more sophisticated and abstract concept of procedural equality, characteristic of some deliberative and democracy models in political theory.40 Participants in the political process ought to have the same opportunity to voice opinions, to determine the legislative and political direction of the polity, and so on, as members of the same political and social under­ 39  J Knight and J Johnson, ‘What Sort of Political Equality Does Deliberative Democracy Require?’ in J Bohman and W Rehg, Deliberative Democracy: Essays on Reason and Politics (Cambridge (Mass), MIT Press, 1997) 279, 280–82. And see J Bohman, ‘Deliberative Democracy and Effective Social Freedom’ in ibid 321; Davis, ‘Vriend v Alberta’ (n 4) and Galloway, ‘Three Models’ (n 4) (analysis of how the equality and non– discrimination principle is and ought to be applied under s 15 of the Charter of Rights). 40   See, eg T Christiano, ‘The Significance of Public Deliberation’ in J Bohman and W Rehg, Deliberative Democracy: Essays on Reason and Politics (Cambridge (Mass), MIT Press, 1997) 243.



Cultural Preservation and Self-Defence 179

taking. Idealising the sameness criterion on Kant-derived or -inspired premises of the moral and ontological autonomy of humans produces a similar result. Putting to one side the distributive notions of how much access, voice and effect makes two positions or two participants equal, we would then comprehend the moral and ontological auto­ nomy of humans to condition the commensurability between individuals, as thinking, willing and needing entities. This, of course, would require further argument as to how autonomy establishes commensurability and not simply an incommensurability condition. Such a conclusion necessarily treats autonomy as an instrumental idea serving merely to divide one individual from another and to reject the possibility of some type of collective consciousness. Autonomy would therefore not condition an inherent validity or legitimacy of individual action, will, thought, or such like. The examination of the discriminatory redistribution grounds has proven to be a most fertile source of reflection for this analytic jurisprudence of secession and constitutional order, most significantly by virtue of its introducing the issue of equality. The calculus of equality refers not to a distribution of benefit per se, but to a performative version pertaining to participation in the public deliberative domain which constitutes the self-government aspects in a constitutional democracy. Equality necessitates a commensurability among a society’s members – not in virtue of being members, but in respect of their ideas and opinions driving the transformation of private interest into public concerns, of private identity into a public one. Denying the common metric of human interest and will so that opinions become fixed begins to undermine the assumptions of equal access and recognition necessary for a constitutional democracy. I turn next to the second grounds advanced by Buchanan for secession. CULTURAL PRESERVATION AND SELF-DEFENCE

Secession is also justifiable, and thus constitutes a right for Buchanan, as a means to protect a culture at risk of dissolution.41 Such is the moral weight ascribed to membership in a culture that it supports a likewise morally urgent claim to the protection and preservation of that culture. Membership in a culture has value for the individual and has inherent value.42 In the first place, membership in a culture offers an individual a meaningful context for choice.43 The relationships defining a culture recognise and organise goods and values, facts and phenomena, standards of behaviour, and so on, in a (seemingly) coherent way. That structure facilitates the individual’s understanding of all that is around him. A culture sets a horizon of what behaviour, thought, desire and action is possible, permissible, or not. It stipulates what options we may have, what 41   C Wellman, A Theory of Secession (Cambridge, Cambridge UP, 2005) ch 3 relies on culture and selfdetermination to identify the group entitled to secede, but not the basis or reason to secede which falls generally under the primary rights model. 42  Buchanan, Secession (n 1) 52–61. 43  Buchanan, Secession (n 1) 53. This is a widespread claim made for the function of a culture: see, eg S Caney, ‘National Self–Determination and National Secession: Individualist and Communitarian Approaches’ in P Lehning (ed), Theories of Secession (London, Routledge, 1998) 151, 163; W Kymlicka, Multicultural Citizenship (Oxford, Oxford UP, 1995); A Margalit and J Raz, ‘National Self-determination’ (1990) 87 J Phil 439; B Anderson, Imagined Communities, rev edn (London, Verso, 1996); D Copp, Morality, Normativity and Society (Oxford, Oxford UP, 1995); M Moore, ‘The Ethics of Secession and a Normative Theory of Nationalism’ (2000) 13 CJLJ 225 and her ‘Political Liberalism and Cultural Diversity’ (1995) 8 CJLJ 297 (criticising J Rawls, Political Liberalism (New York, Columbia UP, 1996)).

180  Remedial Secession and Disassociation commitments we should foster and pursue. In other words, a culture offers a way of looking at, perceiving and understanding all of the variegated facts, experiences and events which make up the world. Some of these it teaches us to ignore; others, it invests with varying degrees of significance. Hence, it follows that a culture occupies an import­ ant, if not controlling, position in the formation of a human identity, in the determination of self and of who we are in the world.44 In the second place, membership in a culture has intrinsic value as participation in a community.45 That is, apart from the instrumental worth of membership as allowing for participation in the goods provided by a group, mere belonging to a group is itself valuable. Although left undeveloped by Buchanan, presumably participation has value because it works against a solipsistic, isolated and insulated view of the world. We are not alone; we must, and do, live with and among others. Moreover, to continue this line of thinking, this awareness of others grounds the values of equality, respect and human dignity. All these values are critical to a well-functioning society and depend upon our relationship to, and presuppose an awareness of, others. It would follow from all of the above that to lose one’s culture would in effect cause us to lose a sense of self, of a place in the world, together with an accretion of anomie, despair, and like (psychical) problems associated thereto. Hence the moral urgency to preserving a culture under threat of dissolution. And, according to Buchanan, secession would offer an effective means of insulating the culture from these forces imperilling its existence. The right to secede based on culture is nonetheless a conditional right to cultural preservation. The right does not immunise a culture against the (natural) forces of change and dissipation. Rather, the right to cultural preservation rests upon a minimum liberal allowance of a right simply to belong to a culture, whichever that may be. In particular, Buchanan would emphasise that the principles of liberal political theory do not recognise any right to belong to a particular culture (especially one which promotes and practises behaviour pernicious and illegitimate under liberal standards), nor a right to support of any given culture.46 Accordingly, under the right to secede for the preservation of a culture, that culture must observe the minimum standards of justice (of course, as prescribed by liberal theory, whatever they may be), and it must not therefore aim to establish an illiberal state.47 Furthermore, as a precondition to the exercise of the right, alternative ways of preserving the culture, less disruptive to the current structure and boundaries of the extant state, must be exhausted, unavailable or inadequate.48 The preference for courses alternative to secession for cultural and minority protection is more frequently heard now in scholarly critiques of secession.49 For Buchanan, these mechanisms of preserving a 44   C Taylor, ‘Self Interpreting Animals’ in his Human Agency and Language (Cambridge, Cambridge UP, 1985) 45, 62 ff (‘subject-referring feelings’) and his ‘Language and Human Nature’ in ibid 215, 225–26, 231–35, 237 (‘expressivist’ view); R Poole, Nation and Identity (London, Routledge, 1991) 60 ff, 67. 45  Buchanan, Secession (n 1) 54; D Philpott, ‘In Defense of Self–Determination’ (1995) 105 Ethics 352, 353. 46  Buchanan, Secession (n 1) 55–56 (taking this premise as more or less self–evident). 47   ibid 101. And these requirements also make a not infrequent appearance in primary right theories, consistent with their liberal theory roots: Dowding, ‘Secession and isolation’ (n 22) 79–80; Buchanan ‘Institutional Dimension’ (n 5) (on Copp and Miller); Bishai, ‘Problems’ (n 22) 97–98; and Philpott, ‘In Defense’ (n 45) 382–83. 48  Buchanan, Secession (n 1) 59–61. 49   See generally R Bauböck, ‘Why Stay Together? A Pluralist Approach to Secession and Federation’ in W Kymlicka and W Norman (eds), Citizenship in Diverse Societies (Oxford, Oxford UP, 2000) 366 (federalism to accommodate self–determination of national minorities); Bishai, ‘Problems’ (n 22); W Kymlicka, ‘Is



Cultural Preservation and Self-Defence 181

culture remain of a type insulating it, but by means of conferring greater autonomy on the group within the current state structure. First, greater or expanded group rights and group autonomy may be achieved through the laws of property and contract.50 These cover what property rights a person may hold and in what fashion. Secondly, and following Kymlicka, a more direct means is to confer special group rights, rights ascribed to members of a group in function of that membership, and for the protection and support of that membership and group, such as self-government.51 Thirdly, special group property rights may directly establish new collective property rights. All of which may also impose costs and burdens on members seeking to exit the group, or obstacles against non-members seeking to enter or profit from the group and its territory.52 And as a last condition, neither the extant state nor a third party must have a valid claim to the territory itself claimed by the seceding group.53 The moral interest in preserving a culture does not have priority over the valid territorial claim of the extant state. Although a pressing interest, it has less moral weight than situations of actual injustice or cultural extinction. Only where that territory is not yet subject to any existing valid claim may that moral interest ground a claim to title sufficient for legitimate secession. Cultural protection also has a further, narrower instantiation, and is treated separ­ ately by Buchanan.54 Under the heading ‘cultural self-defence’ the threat of dissolution here obtains as the actual, real steps of an aggressor state, or state-sponsored party, to extinguish all aspects of a culture. History is replete with grotesque examples of exterminations, genocides, ethnic cleansing, and the like. Colonial expansion, with and without its share of the above horrors, also serves as an example. Buchanan draws an analogy to justified self-defence under tort and criminal law. Buchanan’s analogy is of course open to question. The key premise is the extrapolation from physical integrity and security to cultural security and integrity. The general examples of self-defence taken under both tort and criminal law establish the conditions of imminent harm to one’s person. They are absent in ‘cultural self-defence’. No easy rejoinder exists because of the presence of aggression, for then the self-defence element pertains to defence of one’s physical security and integrity, not to that of culture.55 In any event, under that concept an individual may use all means reasonable and of necessary degree to repel the attack, an attack not initially provoked by that individual’s conduct. Translating this to a state scenario, a cultural group may secede if that action is reasonable and of a degree necessary to defend against its forcible extinction. An aggressor state loses any legitimate claim to the territory subject to the secession, having failed Federalism an Alternative to Secession?’ in P Lehning (ed), Theories of Secession (London, Routledge, 1998) 111; A Eide, ‘Peaceful Group Accommodation as an Alternative to Secession in Sovereign States’ in D Clarke and R Williamson (eds), Self-Determination: International Perspectives (London, Macmillan, 1996) 94 and his ‘In Search of Constructive Alternatives to Secession’ in C Tomuschat (ed), Modern Law of Self–Determination (Dordrecht, Kluwer, 1993) 139. 50  Buchanan, Secession (n 1) 57. 51   ibid 57–58, and citing Kymlicka, Multicultural Citizenship (n 43). 52  Buchanan, Secession (n 1) 58. 53   ibid 60–61. 54   ibid 65–66 and adopted by Philpott, ‘In Defense’ (n 45) 378. 55   On the concepts of self-defence in tort and criminal law, see generally, L Klar, Tort Law, 3rd edn (Toronto, Carswell, 2003); R Heuston and R Buckley, Salmond and Heuston on Tort, 21st edn (London, Sweet & Maxwell, 1996); J Horder, ‘Self-Defence, Necessity and Duress: Understanding the Relationship’ (1998) 11 CJLJ 143; H Stewart, ‘The Role of Reasonableness in Self–Defence’ (2003) 16 CJLJ 317 (addressing Fletcher and Gardner); P Kazam, ‘Reasonableness, Gender Difference and Self-Defense Law’ (1997) 24 Manitoba LJ 549; and K Ghanayim, ‘Excused Necessity in Western Legal Philosophy’ (2006) 19 CJLJ 31.

182  Remedial Secession and Disassociation in its fundamental responsibility that government (the state) should operate for the mutual, genuine advantage of all its citizens. Likewise, a state failing to protect a particular group against some aggressor also loses any priority to its claim of jurisdiction over the territory, and the victim group obtains title to the territory for its own self-defence. But this argument is vulnerable to the effluxion of time, whereby the population has changed over several generations, including integration with that of the aggressor state, and where social, political and economic interests have become integrated and inter­ dependent. In other words, the right to rectification for historical grievances may fade or abate over time, with a reciprocal strengthening of the aggressor state’s right by adverse possession.56 Indeed, it would be the continued possession of the land with the know­ ledge, consent and participation of all the population, of aggressor and indigenous stock alike. Moreover, from a moral perspective, to hold succeeding generations to full account for the misdeeds of their forebears would require accepting a premise of ‘original sin’ indelibly tainting the successors, even where the current generation did not participate in the acts, nor would act the same way given similar circumstances. That the latter did benefit from the wrongs, however many decades prior, would suffice. Quite apart from obviously questioning the validity and enforceability of such a premise, which nation, country or cultural group today could escape taint? The passage of time merely sets up limitations to minimise disruption of the international order and establishes customs built up over time, but does not extinguish the right to secede.57 Buchanan also makes the point that, insofar as the state’s right to territory rests upon adverse possession, the conditions required for justified adverse possession must obtain. Specifically, he cites (1) an open occupying; (2) an owner’s full and effective opportunity to protest and reclaim the land; (3) an occupying continuous over a specified duration; and (4) an exclusive occupying. But an aggressor state finds itself already in difficulty under conditions (2) and (4), as Buchanan comfortably observes.58 It is implausible and unrealistic to expect that any annexing state would allow even the remotest attempt to fulfil condition (2), quite apart from a likely stream of continuous protest. And unless the aggressor state conducts a programme of ethnic cleansing, possession of the disputed territory is unlikely to be exclusive. Even conceding the instrumental and inherent importance of culture to our life does not necessarily lead to accepting either Buchanan’s premise of a conditional right to cultural preservation, or the possibility of secession as a remedy therefor. First (and in anticipation of the discussion of nationalism based models), Buchanan leaves undefined the term ‘culture’ and its appurtenant elements.59 It would seem self-evident that only through an understanding of the constituent elements to any culture can we identify which of those are under threat of extinction so as to justify resort to the secession remedy. Moreover, we simply may not assume away the possibility that all those components to a culture bear equal moral, structural, functional, and such like importance. 56  Buchanan, Secession (n 1) 88–91; L Brilmayer, ‘Secession and Self–Determination: A Territorial Interpretation’ (1991) 16 Yale JIL 177, 195 ff. Quaere the aptness and closeness of fit of the private law concept of ‘adverse possession’ to a public law situation. 57   Echoed in Buchanan, Secession (n 1) 88. 58   ibid 90–91. 59  ibid 52–64. Perhaps his reference to W Kymlicka, Liberalism, Culture, and Community (Oxford, Oxford UP, 1989) should be taken to incorporate by reference Kymlicka’s understanding of culture.



Cultural Preservation and Self-Defence 183

What definition of culture we employ may allow us to compromise on certain components which are not as highly valued as others, or those which may not run so deeply into the foundation of a culture’s identity. For example, a kilt is obviously not as fundamental to Scottish identity as is a yarmulke to a Jewish one, a turban to a Sikh, or a chador to a Shiite woman. And it would seem not speaking Gaelic is less damaging to Scottish and Irish identity than is not speaking Flemish Dutch to a Fleming. And if we are unable to compromise on these points, then perhaps we will at least accept some adapting, without having to invoke any remedy or without having justification to pursue more disruptive remedies or secession. In virtue of what aspect of culture, then, is oppression thereof sufficient and necessary to trigger a remedial right? Since Buchanan treats this ground as distinct from that of discriminatory redistribution, we must therefore take cultural oppression to comprehend something other than the former’s discriminatory conduct. But without some prior conception of culture, we are simply left to drift on the chartless seas of speculation. Moreover, Buchanan’s right to cultural preservation does not necessarily exclude restricting its scope to the loss of the entire artefact of culture. An impairment of one or other aspects to a cultural identity may not necessarily amount to a loss of culture, particularly where we understand ‘culture’ along much the same lines as Waldron.60 On Waldron’s view, culture is a collection of behavioural patterns, some of which we inherit or absorb unconsciously, some of which we adopt consciously, some of which we accept in part, and all of which we are free to change, discard or strictly observe as we see fit. Contrast this to understanding culture as an integrated whole, where the alteration of any one component changes the entire cultural identity.61 Each of the two conceptions of culture would produce significantly different rights of cultural protection. Under the former, Waldron-inspired version, such a right would operate only if the entire present manifestation of culture is threatened (or at least sufficient cultural elements to render the entire package inoperative or ineffective). Thus, any threat to any aspect would trigger the right. Nor does Buchanan’s elucidation of the two imply a preference for one or the other version. His treatment is simply too general and undetailed, with too much left undefined, for us to conclude in favour of one or the other. To be fair, these criticisms do not necessarily undermine the possibility of the existence of a culturally justified remedial right to secede. Rather, they demonstrate weaknesses in the treatment of the nature of the right, which if exploited may perhaps extinguish, fundamentally change or limit the right as conceived by Buchanan. I will return to culture when assessing the nationalism-based version of secession in a subsequent chapter. We encounter similar problems equally relevant to the nature of this aspect of the remedial right and obscuring what represents an act of cultural dissolution sufficient and necessary to trigger the remedial right. Buchanan allows for the natural forces of cultural change, but does not describe nor specify what he means by ‘natural’ forces (and the implied converse ‘unnatural’ forces). Obviously, any answer thereto depends in large 60   J Waldron, ‘Minority Culture and the Cosmopolitan Alternative’ (1991) 25 U Michigan JLR 751 (contra); IM Young, Justice and the Politics of Difference (Princeton (NJ), Princeton UP, 1990) 44–45; and C Gould, ‘Diversity and Democracy: Representing Differences’ in S Benhabib (ed), Democracy and Difference (Princeton (NJ), Princeton UP, 1996) 171. See also W Connolly, Identity/Difference: Democratic Negotiations (Ithaca (NY), Cornell UP, 1991) 190 ff. 61   See, generally Kymlicka, Multicultural Citizenship (n 43) and his Liberalism, Culture, and Community (n 59); C Taylor, ‘Nationalism and Modernity’ in R McKim and J McMahan, The Morality of Nationalism (Oxford, Oxford UP, 1997) 31; and Y Tamir, Liberal Nationalism (Princeton (NJ), Princeton UP, 1993).

184  Remedial Secession and Disassociation measure on an antecedent definition of culture. If a culture is the present expression of those standards of behaviour, the values, desires and ideas we have accumulated from our interactions with others, then any interaction may conceivably change the present composition of our ‘cultural identity’. Culture, on this view, is an evolutionary, dynamic, psychical framework for social behaviour. Natural forces would therefore include any and all forms of human interaction as the usual source for our cultural components. But human interaction covers co-operative, antagonistic, violent and peaceful forms. What, then, is sensibly left for ‘unnatural’ forces? Indeed, what is left to give the right to cultural preservation (as a right to belong to any culture) any content? Inasmuch as we exclude, say, coerced changes or changes imposed by majority or by law, our view of it has already assumed at least some criteria of consensus, co-operation, individual reflection and volition, and the prima facie equal value of all intersubjective modes of conduct. Take as a further example Québec’s claim to be a distinct society within Canada (and indeed, within North America). This claim rests upon the principal grounds of the prevalence of French, the civil law system, and certain social conventions and customs being more pronounced in it than in other Canadian provinces.62 It characterises itself as a culture under more or less constant threat of dissolution by virtue of its political and social (demographic) position in an Anglophone, common law, Americanised North America. To resist dissolution Québec has claimed many, and received some, political powers to insulate it against the Anglophone majority.63 A hasty assessment might characterise this siege mentality as an exercise of Buchanan’s right to cultural preservation. This, however, begs the question. There remains the important question of whether the circumstances demonstrate the operation of ‘unnatural’ forces of cultural change and dissipation. After all, history clearly evidences the changes and dissipation of a number of languages, social systems, cultures, and the like. What makes cultural assimilation or absorption immoral? Unacceptable? Buchanan offers us no criteria, nor grounds or means of assessing whether the claims of Québec are indeed justified, let alone justifiable under the concept of ‘culture’. Nor do the liberalism grounds underpinning Buchanan’s exposition assist, a fortiori given his rejection of a self-determination basis to secession. Without some idea of the permissible and impermissible changes to a culture, Buchanan’s right to cultural preservation appears to have no content. While it seems implausible to deny someone any culture at all, it is less far-fetched to speak of a transformation, substitution or replacement of cultures, or even simply of a fundamental change to a culture. A right to preservation 62   See D Karmis and AG Gagnon, ‘Federalism, Federation and Collective Identities in Canada and Belgium: Different Routes, Similar Fragmentation’ in AG Gagnon and J Tully (eds), Multinational Democracies (Cambridge, Cambridge UP, 2001) 137, 145 ff; K McRoberts, ‘Disagreeing on Fundamentals: English Canada and Québec’ in K McRoberts and P Monahan (eds), The Charlottetown Accord, the Referendum, and the Future of Canada (Toronto, Toronto UP, 1993) 249, and his Misconceiving Canada: the Struggle for National Unity (Oxford, Oxford UP, 1997), esp chs 1–3, and 8; J Webber, Reimagining Canada (Kingston, McGillQueen’s UP, 1994) ch 2; J Lamarre, Le devenir de la nation Québecoise (Québec, Septentrion, 1993); J Woerhling, ‘L’évolution et le réaménagement des rapports entre le Québec et le Canada anglais’ in J Woerhling and JY Morin, Demain Le Québec (Québec, Septentrion, 1994) chs 1–2; B Cleary, ‘Les trois peuples fondateurs: l’assise du Canada de demain’ in M Seymour (ed), Nationalité, Citoyenneté et Solidarité (Montreal, Liber, 1999) 329 (Anglophone, Francophone, and aboriginal); and J Jensen, ‘Recognising Difference: Distinct Society, Citizenship Regimes and Partnership’ in R Gibbins and G LaForest (eds), Beyond the Impasse: Toward Reconciliation (Montreal, IRPP, 1998) 205. 63   For example, Constitution Act 1867 ss 93, 93A, 133 and Constitution Act 1982 ss 23, 59.



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implies the need to resist changes to the current (cultural) instantiation. That in turn demands some argument for the value or significance of the current instantiation, or at least of the (morally, anthropologically, psychologically) effective and acceptable process of cultural change.64 We find none of this in Buchanan. Nothing in Buchanan conveys why culture A may not be replaced, in whatsoever way, by culture B or even just culture A1. Even invoking the implied tenets of liberalism does not assist Buchanan, insofar as these changes occur through the normal interaction of people without external coercion or force. For the right to cultural preservation to have some content, Buchanan ought to show within his scheme of political morality why maintaining culture A is morally right, or obversely, why resisting culture A1 or culture B is morally right. Without this justification, we cannot say that we have reasonable grounds to accept Buchanan’s contention for a remedial right to secede based on a conditional right to cultural preservation, unless we are satisfied with its rather simplistic meaning of not being deprived of any culture whatsoever. This weakness of the right of cultural preservation suffers further amplification in its failure to account for oppression of widely dispersed minorities. In fact, it is a criticism often wielded against proponents of any variant of the right to secede, primary right, remedial right, or such like. The criticism points out a seeming incongruity between the weight accorded to culture and cultural preservation, and the restriction of effective protection to larger, territorially concentrated groups.65 Kymlicka would go so far as to restrict cultural protection to indigenous groups, arguing that immigrants should be presumed to have chosen accommodation over preservation.66 If culture has such importance and value as claimed, then the right to cultural preservation should apply to anyone. Restricting it to a member of a larger, territorially concentrated group, demonstrates not only the limitations of the argument for cultural preservation as a whole but, more importantly, undermines the argument for a right to secede based thereon. Bishai, for one, concludes for this and other reasons that secession represents neither a remedy nor a right nor, more broadly, a solution for any political conflict.67 The consent basis to the primary right theory is clearly insufficient without some account for territory. A liberal basis is clearly insufficient without some account for community. And a remedial rights basis is clearly insufficient because it denies the remedy to the otherwise deserving.

64  Echoing arguments for the privileging of cultural differences: eg Knight and Johnson, ‘What Sort of Equality’ (n 39) 279; A Phillips, ‘Dealing with Difference: A Politics of Ideas or a Politics of Presence?’ in S Benhabib (ed), Democracy and Difference (Princeton (NJ), Princeton UP, 1996) 120; Gould, ‘Diversity and Democracy: Representing Differences’ (n 60) 171; Kymlicka, Multicultural Citizenship (n 43), his ‘Individual and Community Rights’ in J Baker (ed), Group Rights (Toronto, Toronto UP, 1994) 17 ff, and his ‘Human Rights and Ethnocultural Justice’ (1998) 4 RCS 213; C Taylor, ‘Shared and Divergent Values’ in his Reconciling the Solitudes (Kingston, McGill-Queen’s UP, 1994) and his ‘Nationalism and Modernity’ in ibid 43 ff; A Buchanan, ‘What’s So Special About Nations?’ in J Couture, K Nielsen and M Seymour (eds), Rethinking Nationalism (Calgary, Calgary UP, 1998) 283, 302 ff (critiquing the position). 65   Quaere if the problem would persist in an arrangement premised upon consociational theory. The difficulty, of course, is that political power and law operate on a territorial premise. 66  Kymlicka, Multicultural Citizenship (n 43) and see the critique of Kymlicka’s supposition by Y Tamir, ‘Theoretical Difficulties in the Study of Nationalism’ in J Couture, K Nielsen and M Seymour, Rethinking Nationalism (Calgary, Calgary UP, 1998) 65, 79–84, and by Buchanan, ‘What’s So Special About Nations?’ (n 64) 300–1. 67   Bishai, ‘Problems’ (n 22) 98, 104, 105, 107. See also M Freeman, ‘The Priority of Function over Structure: A New Approach to Secession’ in P Lehning (ed), Theories of Secession (London, Routledge, 1998) 12, 25.

186  Remedial Secession and Disassociation A Nationalist Application of the Oppression Grounds? Buchanan is closer to a nationalist basis for secession than he would care to admit for his cultural preservation grounds. He does, of course, reject a nationalist basis to selfdetermination qua secession.68 But when cultural survival justifies secession, nationalist claims to self-determination, of the same order, follow close behind. The imposition of the various conditions accomplishes little to insulate Buchanan’s position from grounding a nationalist secession claim. The nationalist position couches itself comfortably in the broad concept of self-­ determination, and in various international instruments pronouncing a ‘right of self-determination’ for peoples and minorities. Political boundaries ought to match ethnic-cultural boundaries. In effect, the nationalist position confers an entitlement to a separate state on every ‘people’ or ‘nation’.69 Against this Buchanan raises a number of the standard objections.70 First, we encounter the impossibility of defining ‘people’ or ‘culture’ in a way allowing for consistent, coherent and reasonably certain application. Secondly, no state is culturally pure. That is, every state contains an array of diverse cultures (insofar as anyone can define them). Indeed, history demonstrates clearly that ‘culturally pure’ states are a rare if not impossible occurrence. So, to uphold the nationalist premise would then penalise or discredit a state which would strive to accommodate the various cultures and cultural differences within it, where such accommodation generally serves as a marker of liberalism and fairness.71 Thirdly, the multiplicity of cultures invites a fragmentation of the world political order into an ever-shifting congeries of micro-states.72 Such a fractioning would invite political and economic instability, impose economic costs and lead to impractical international political dealings.73 Buchanan adds a further objection, drawing upon Gellner, that achieving for each nation its own political space comes at a prohibitive moral cost of ethnic cleansing or assimilation, or at least the frustration of some or all of the national aspirations of other groups.74 This would follow from there being more nations in the world than space for them, and the interspersion of different national groups over the same territory. All these points draw Buchanan to reject a narrower concept of self-determination which equates self Buchanan, Secession (n 1) 48 (‘least plausible of justifications’).   M Walzer, ‘The Politics of Difference: Statehood and Tolerance in a Multicultural World’ in R McKim and J McMahan, The Morality of Nationalism (Oxford, Oxford UP, 1997) 245 (a question of getting the boundaries right); R McKim, ‘National Identity and Respect among Nations’ in ibid 258, 258–59 (political dimension of nationality is having an own state); J Breuilly, Nationalism and the State, 2nd edn (Manchester, Manchester UP, 1993) (nationalism is fundamentally a political movement for centralised control); K Nielsen, ‘Liberal Nationalism and Secession’ in M Moore (ed), National Self-Determination and Secession (Oxford, Oxford UP, 1998) 127; D Copp, ‘The Idea of a Legitimate State’ (1999) 28 Phil and Pub Affs 3. Yet see O Dahbour, ‘The Nationalist State as a Political Community: A Critique of the Communitarian Arguments for National Self–Determination’ in J Couture, K Nielsen and M Seymour, Rethinking Nationalism (Calgary, Calgary UP, 1998) 311. 70  Buchanan, Secession (n 1) 48–53. See also his ‘What’s So Special About Nations?’ (n 64). 71  Buchanan, Secession (n 1) 49–50. 72   J McGarry, ‘“Orphans of Secession”: National Pluralism in Secessionist Regions and Post–Secession States’ in M Moore (ed), National Self-Determination and Secession (Oxford, Oxford UP, 1998) 215; D Philpott, ‘Self– Determination in Practice’ in M Moore (ed), National Self-Determination and Secession (Oxford, Oxford UP, 1998) 79, 91–92. See also J Duursma, Fragmentation and the International Relations of Micro-States: Selfdetermination and Statehood (Cambridge, Cambridge UP, 1996). 73  Buchanan, Secession (n 1) 49. Freeman, ‘Priority of Function’ (n 67) 12 discounts the ‘balkanisation’ argument as does Moore, ‘Ethics of Secession’ (n 43) (though attributing the point to the Primary Rights camp). 74   E Gellner, Nations and Nationalism (Oxford, Blackwell, 1983) 2. 68 69



Cultural Preservation and Self-Defence 187

determination with autonomous, sovereign national self-government. He is content to preserve, even utilise, self-determination as a vague, loosely-defined, and just as looselyunderstood, term connoting various degrees of cultural autonomy. In other words, he opposes the presumption of a right to sovereign statehood accorded to a culture. His arguments instead address the flaws to preserving such a right. But sweeping away the presumption does not likewise extinguish a nationalist ground for secession based on self-determination. No relevant difference obtains whether we call it a ‘cultural’ basis or a ‘nationalist’ basis for secession. The link between culture and political sovereignty remains. Buchanan has merely shifted focus from culture per se to oppression of the culture requiring, so to speak, that the content of the presumption be proven, rather than be assumed as true. Indeed, the result of Buchanan’s cultural protection argument coupled with his vague, undefined terms preserves the nationalist position quite effectively. It would be incorrect, however, to conclude that the nature of the remedial right to secede, as advanced by Buchanan in particular, admits of direct mapping onto a nationalist framework, albeit one that would justify the immediacy of the connection between nation and state. To justify that connection quite obviously demands some explication why nationhood entails statehood, of why giving full effect to a culture, a cultural identity, may only be fully and effectively accomplished through the institution of state. Attempts at justifying the nationalist model commonly rely on a triumvirate of political participation, individual identity and social obligation.75 Culture links individual identity with social obligation, and links social obligation with political participation. Recall that the primary right model for secession established that a significant source for an individual’s well-being is said to arise in the freedom to choose and pursue various projects and commitments; in effect, the development of an individual’s identity. As well, purported controls or restrictions on this freedom, and hence on well-being, were arguably only permissible where the individual had effective, full, equal participation in the determinations leading to the imposition of those controls. Democracy was said to give that voice and participation to an individual, with the result that under a primary right version, the individual could decide either simply to withdraw (secede) without more, or, if denied participation, also resolve to withdraw. Nationalists interpose the cultural connection between the expansion of identity and effective, legitimate control. Culture is that which provides the framework for an individual’s perception of self, how to behave, and of the available commitments by which to express himself.76 An individual finds himself always attached to a given culture, very broadly defined as a collection of individuals who communicate and behave in certain ways peculiar to the group. Buchanan acknowledges as much. Cultural membership is a special relationship among members, for their relationships involve an entire set of stand­ ards, values, modes of behaviour and communication not necessarily explicit nor general 75   D Miller, On Nationality (Oxford, Oxford UP, 1995) 11 (nations inherently political), 88 ff; C Taylor, ‘Why Do Nations have to Become States?’ in his Reconciling the Solitudes (n 64) 40, especially 53 ff (political independence as indispensable to recognition and realisation of cultural-linguistic community). And see Buchanan, ‘What’s So Special About Nations?’ (n 64) 291–92, 299 ff (addressing Kymlicka, and Margalit and Raz). Wellman, Theory of Secession (n 41) 108 ff denies this ‘nationalist principle’ and that only national groups have a (primary) right to secede. 76  Culture representing the optic or horizon for an individual’s grasp on the world: Margalit and Raz, ‘National Self-Determination’ (n 43); Kymlicka, Multicultural Citizenship (n 43), and his Liberalism, Culture, and Community (n 59).

188  Remedial Secession and Disassociation to that type of relationship. This binds them more closely together with other members. From this, it is perhaps easier to understand the extrapolation made that a society may only really function properly based on a trust among members, such trust excluding those not recognised to be of and from that society.77 Culture links individual identity with social obligation. Accordingly, only through the medium of that cultural framework, continue the nationalists, can an individual’s participation and deliberation on social matters, as well as controls on that person’s well-being, be full and effective. The voices heard, the interests considered, the benefits conferred, and the restrictions imposed by the state will be those of the members of the ruling or dominant majority culture. Membership in the majority culture ensures effective representation, responsible, appropriate controls, and due regard and promotion of (that culture’s concept of) well-being. Put another way, a nation-state best furthers the ideals and practices of the nation, of that culture, and hence the well-being of its individual members. Culture links social obligation with political participation. Selfdetermination at an individual level tracks self-determination at a political level through culture. Efficacious self-determination at the individual level depends upon efficacious self-determination at a state level. Since culture determines effective individual selfdetermination, it also determines effective political self-determination. All this translates for the nationalists into a right to secede based on culture, namely, that cultural differences justify secession so as to allow that culture a political instantiation for its better expression. Clearly, on this formulation, the right does not have a remedial nature: oppression is not a necessary element. At its highest, oppression may be implied in the right, thereby triggering its invocation. But oppression by no means becomes an essential element to the right. Moreover, although Buchanan and the nationalists both regard culture as instrumentally and intrinsically valuable, culture functions differently for each to justify a right to secede. Put bluntly, culture represents for Buchanan an end; for the nationalists, a means. I explore nationalism more fully in the following chapters. Let me turn to the last grounds offered by Buchanan. RECTIFICATORY JUSTICE

The forcible integration of a territory and its population, hitherto independent or part of one country, into the holdings of another, grounds a claim for remedial secession as a means to restore that territory to its rightful owners and to its citizens their rightful status, the status quo ante bellum.78 This basis for secession appears self-evident. Operative here is the basic (moral) intuition that we exercise a right to have and enjoy what is our own, free from the uninvited interference of others. Following Buchanan then, we extrapolate from private property to public, and hold that our ownership of our state and status as citizens thereof ought to be free from uninvited interference by other states, an example of which is annexation. Interference in the nature of annexation or incor­ 77  JS Mill, ‘Considerations on Representative Government’ in his Utilitarianism, On Liberty, and Considerations on Representative Government (HB Acton (ed), London, Everyman Library, 1983) 361–63; Miller, On Nationality (n 75) 24–25, 90–96; D Kahane, ‘Divided Society and Civic Fellowship’ (1999) 7 J Pol Phil 267; and D Weinstock, ‘Building Trust in Divided Societies’ (1999) 7 J Pol Phil 287. Doubting: S Caney, ‘Self–Government and Secession: the Case of Nations’ (1997) 5 J Pol Phil 351, 357. 78  Buchanan, Secession (n 1) 67–70, 89, 106–14 (Buchanan’s concept of ‘state territory’).



Rectificatory Justice 189

poration constitutes theft, and allows us the right or power to recoup or repossess our own property. To undo the annexation, to recoup our state and status, is in effect to secede. This straight-forward instantiation of the remedial right is, however, subject to three provisos. First, the circumstances may not support the claim to rightful ownership asserted by the seceding population.79 On the one hand, the composition of that group’s membership may have changed significantly so as to bear no longer any close or clear relationship to the original group divested of their territory. Nevertheless, the lapse of time itself does not necessarily extinguish the claim, but rather introduces a moral claim against secession based on the current composition of the population. But how we might measure the resemblance of a group’s present membership to a previous collection, and the degree of resemblance necessary, are important questions left unconsidered by Buchanan. This problem extends beyond establishing merely direct ancestry to some degree of remove. We must factor in the integration of peoples, the commingling of family lines between conquered and conqueror, colonised and colonist, recognising too that this may represent or be understood as an attempt to dissolve the national culture, thus creating a continuing grievance. And should we desire to avoid accusations of concentrating only on race, we must also consider the extent and effects of an integration of commitments between conquered and conqueror, colonised and colonist. This latter aspect to the problem, unsurprisingly, would return the discussion to associative relationships. On the other hand, to continue with the first proviso (and putting to one side matters of membership), the seceding group may not be able to assert ‘clear unambiguous title’ to the territory.80 Their acquisition of it may itself be tainted with illegitimacy, rendering their territorial claims as morally unsound as those of the recently annexing state. The obvious practical difficulty with this proposition, as Buchanan himself raises, is history. Few if any modern states have come by their title to their territory by morally sound means, without stain (in varying degrees) of some immoral, illiberal conduct. And the choice of any date from which to assess claims to title appears unquestionably arbitrary. It may be that this second branch has but limited application to time and place immediately following an annexation, leaving us with yet a further question if the struggle for independence really is a matter of secession. On a broader perspective, we may also experience mild conceptual discomfort with the underlying liberal premise of an individual’s title to property, and its extrapolation to state jurisdiction over same.81 The idea of title seems at first glance derived from a state structure, and not vice versa. Title only has relevance within the organisation and institutions of state administration. Moreover, Buchanan’s idea of state government acting as agent or trustee for its citizens, rather than as owner of state territory itself, may raise considerable hackles with any equity lawyer. No doubt Buchanan may have drawn some inspiration from the long-standing US ‘public trust’ doctrine.82 That holds that the state’s management and disposition of natural resources and the environment is characterised in trust  Buchanan, Secession (n 1) 68, 69.   ibid 68, 110–11. 81   ibid 108. 82   J Hoffman, ‘Speaking Inconvenient Truths: A History of the Public Trust Doctrine’ (2007) 18 Duke ELPF 1; J Jackson, ‘Lessons from an Ancient Concept: How the Public Trust Doctrine will Meet Obligations to Protect the Environment and the Public Interest in Canadian Water Management and Governance in the 21st Century’ (2012) 23 J Env LP 175L; and see L Sossin, ‘Public Fiduciary Obligations, Political Trusts, and the Equitable Duty of Reasonableness in Administrative Law’ (2003) 66 Saskatchewan LR 129. 79 80

190  Remedial Secession and Disassociation and fiduciary terms with present and future generations being the fiduciaries. Although the terms apply as a constitutional, political construct, they play nonetheless on the legal content developed for those types of relationships. Quite apart from raising significant questions regarding the meaning and application of the concepts of equity, trust and agency, in those circumstances, the legal concepts must be rendered too generalised and so evacuated of any precise, established meaning so as to fit the constitutional situation. I do not propose to critique the matter, however. Suffice it to say that it seems to come down to a sort of public interest litigation and judicial review of government acts, rather than a question of true fiduciary duties. The second proviso allows for the possibility of morally compelling reasons intervening to prohibit or prevent a secession attempt, notwithstanding an otherwise valid or undisputed claim to territory. The moral force legitimating an otherwise valid claim may diminish or subside in the face of competing moral reasons for postponing or extinguishing the right altogether.83 Buchanan offers no explication for what those competing moral grounds might include. We may reasonably anticipate, however, Buchanan to rely here as elsewhere on the principles of distributive justice. Where the interests of the rump state have become so intermingled with, or dependent on, those of the seceding group, the separation of the two might lead to a catastrophe for either or both. This assumes a degree of interdependence, primarily economic, between seceding and rump groups which defies satisfactory and sustainable apportionment by means of the seceding group simply paying out financial transfers and economic compensation.84 Further, it would be reasonable to expect that, absent further overriding factors of oppressive conduct by the rump state, Buchanan would agree that the moral rationale speaks against secession where the consequences of secession were to leave a state in an economically, socially and politically worse situation. And the metric for these consequential advantages and disadvantages would naturally be some version of liberalism. It therefore takes little investigation to appreciate that the central weakness to this proviso is just that prescription of the critical principles and their moral weights. Which version of liberal morality is to prevail? Who is to judge it? How are we to assume a commensurability between the moral perspectives of the seceding group and those of the rump state? Assuming such a commensurability, why could there not exist a solution just short of secession? What kind of liberal moral theory do we accept when some moral considerations may outweigh or trump others? Allowing for moral counterpoint hardly advances the need for an understanding of the real (and unanswered) question, being the kind of moral reason applicable here, and in what way. The third proviso reiterates a central contention of Buchanan that the (moral) basis for secession extends beyond the rather limited boundaries of rectificatory justice. Buchanan accepts and approves of Brilmayer’s contention that a claim for secession must have some territorial foundation, and not merely an ethnic or cultural one (if at all).85 Ethnicity has collateral relevance by keeping the sense of wrong alive in the current membership. Historical grievances, according to Brilmayer, actually establish the normative claim to territory erepted through secession and serve as justification for the act of secession. In effect, Brilmayer contends that the improper annexation or joinder (by way of colonisation, conquest, and so on) of a territory creates the historical grievance.  Buchanan, Secession (n 1) 111, 113–14.  Buchanan, Secession (n 1) 105; see also Philpott, ‘In Defense’ (n 45). 85   Brilmayer, ‘Secession and Self-Determination’ (n 56); Buchanan, Secession (n 1) 68–69. 83 84



Law and Politics of Just-Cause Theory 191

Brilmayer’s proposition may thus be considered a precursor or correlate version of Buchanan’s rectificatory justice argument. But Buchanan rejects any limitation of that territorial claim to some historical event of unjust treatment and annexation. To argue for that proposition is one of Buchanan’s central goals. (To be fair, Brilmayer did not consider whether other rationales might exist. Her primary objective was to ground the international law catch-phrase of self-determination in territorial holdings, and conduct respecting that territorial holding.86) Whilst historical grievance may well found a claim to territory and further, a claim for secession, other types of complaint may establish the necessary moral and territorial grounds for secession. For example, discriminatory redistribution and cultural preservation represent for Buchanan just the sort of additional compelling grounds. LAW AND POLITICS OF JUST-CAUSE THEORY

Characterising secession as a remedy for oppression requires us naturally to enquire as to what sort of oppression could give rise to so uncommon a measure. Buchanan has suggested four categories of rights, which we reduced to three general entries: discrim­ inatory redistribution, cultural preservation and self-defence, and rectificatory justice. The first addressed a breach of the principles of distributive justice. Although its primary concern was the economic exploitation of a certain class or section of a state’s population, distributive justice could extend to the unfair or harmful allocation of anything able to be classified as goods, rights, duties or burdens. The second addressed the right of an individual to be a member of a culture. Consonant with its liberalism underpinning, this did not entail a right to one culture or other, but merely a real and effective opportunity to join and participate in any given culture. Nevertheless, where the relevant culture was under threat of dissolution, Buchanan conceded that secession could occur on the very narrow and restrictive preconditions that all attempts at less disruptive special rights for greater cultural autonomy were exhausted, that the culture did not propose to establish an illiberal state, and that the metropolitan state (or some third party) did not have a better claim to the territory in question. Equally, secession could ensue where the threat of dissolution originated out of the oppression or attacks of the state or a third party state (and the metropolitan state declined or was unable to defend). The last ground tracked the developments in international law concerning decolonisation and the condemnation of foreign occupation and subjugation. Apart from the second category, however, we are left with no clear and definitive answer on what rights are at stake. And even in the second instance, we would have some difficulty locating that right in the usual and customary packet of constitutionally grounded rights and freedoms. Even granting for the moment the presence of discernible rights, there remained the difficulty to find uniformly for each any satisfactory and practicable criteria to identify and quantify the oppression necessary to trigger a claim for the remedy. Obviously, certain broad parameters exist. But such generality does not assist in a particular case because it does not define nor delimit the core elements sufficient for application. And to the degree that the parameters reduce simply to listing examples, we then have two options. First, we can play a categorisation game and seek  Buchanan, Secession (n 1) 68.

86

192  Remedial Secession and Disassociation to characterise the oppression as one sort or another.87 Secondly, we can begin to abstract general principles and formulate a general definition of oppression. The discussion of discriminatory redistribution yielded the core idea to the oppression grounds: equality. This had to be understood not as a distributive concept, but as a performative one relating to a real and effective opportunity to participate in the formation of common commitments. The meaning of oppression, and its effect on the health and welfare of a polity, returns us to the discussion in the prior, general chapter on the remedial rights model. If secession is a remedy, and that for oppression, then the injustice of oppression must pertain to dissolving the bonds of association. The concept of a remedy developed here emphasised the repairing or restoring of a relationship to its normal state insofar as that remained possible and practicable. The relationships funding a political association are associative ones, based on common commitments arising out of transformative events. The call for restoration by forming two separate polities then adverted not only to the collapse of the conditions necessary and sufficient for producing commonly held associative obligations, but to an inability to re-engage the population as a whole in transforming their private aspirations into public goals. Practically speaking, oppression itself divides the state into two separate polities. Is it any wonder then that one group wishes to crystallise that status by secession? So the more important question is not ‘what form of oppression?’, but ‘why is there oppression?’. The search for a legal understanding of secession must concentrate on the ‘before’ situation, when groups are claiming discrimination, oppression and a lack of equality at the hands of a government or another section of the population. This, of course, neatly opens the way for the courts and the legal system to play a role in a secession crisis. It is beyond dispute that the courts and the legal system have as one of their principal tasks the enforcement and preservation of the rule of law.88 They have the duty to ensure that both government and citizen alike keep their mutual and reciprocal promises to uphold and obey the law.89 It is for the courts to ensure that the conditions necessary for transformative events – equality among citizens and participation in the political process – remain viable. Questions of due process, equality, civil and political rights, all fall within even a narrowly set sphere of jurisdiction. Accordingly, the courts may hold either side to account for any failure therein. While this assertion seems uncontroversial in ordinary circumstances of a breach of an individual’s rights in a particular case, it would perhaps test acceptability in the case where a group asserts its democratic right to secessionist self-determination in an otherwise healthy and functioning constitutional democracy. We could revert once more to arguments concerning ‘political questions’ and the divide between law and politics. But it is here that associative constitutionalism offers a short, decisive answer. Secession, as a unilateral act, violates the institutional premise of a constitution: its guarantee and application of a transformative event to the arrangement and distribution of social and political power. The conditions of that premise require at least the participation of all citizens in deliberation on such a fundamental question pertaining to the content, source 87   See, eg D Kropp, ‘“Categorical” Failure: Canada’s Equality Jurisprudence – Changing Notions of Identity and the Legal Subject’ (1997) 23 Queen’s LJ 201 (a critique of this sort of classification strategy). 88   See, eg Operation Dismantle v The Queen [1985] 1 SCR 441 (per Wilson J). 89   TRS Allan, ‘The Rule of Law as the Rule of Reason: Consent and Constitutionalism’ (1999) 115 LQR 221, 229–31, 236.



Law and Politics of Just-Cause Theory 193

and scope of their common commitments. And since the courts have as much responsibility as the other organs of state to ensure and protect the viability of the political association, they may hold that group to account for its violation of those fundamental conditions, by declaring the secession attempt not merely unconstitutional as invalid, but unconstitutional as an illegitimate exercise of social power. Of course, where the courts (and the legal system more broadly) do not enjoy the ability, desire, independence, power or respect and obedience sufficient to perform that critical task, then constitution stresses will lead to the fragmentation of the polity (if not already in progress). Indeed, the absence of those basic elements to a properly functioning legal system already suggests the collapse of the constitution, of a polity as a political association. The institutional status of the courts and legal system themselves depend upon and draw upon the common commitments and associative obligations obtaining among citizens. And as acknowledged, where the constitution has collapsed entirely, there is no reasonable basis to speak of the operation of law. So, the remedial rights theory offers the best possibility for structuring a legal answer to the question of secession. Unlike the primary rights model, it starts from the premise of an operating, unified state. Rather than the exercise of an original right which has no real bearing nor explanation for the unity of a state, the remedial rights model characterises the impetus to secession as the claim for a remedy occasioned by a breach of a right. That breach I have described as a form of constitutional stress which attacks the institutional premise, the very core of the constitutional order. And as one of the institutional guardians of that order, the courts are empowered to ensure its continuing efficacity not only by protecting and enforcing the base conditions, but by condemning deviations therefrom as invalid and illegitimate. But before I can begin to work out the implications and ramifications of this position, I need to assess one last competing model of secession, which draws some of its grounds from the cultural protection arguments. More significantly, it would accept the concepts of the transformative event and associative commitments but then as bounded by the historical co-incidence of, among other attributes, a proximity, race, creed and language. Hence, associative commitments would be presumptively limited to a specific group. That model is, of course, nationalism.

6 Nationalist Theory of Secession

I

N THE DEVELOPMENT of an analytic jurisprudence for secession and for constitutional law more generally, the nationalist model represents a natural third step to the elaboration of the concepts of associative commitments, obligations of reciprocation, and the transformative event. At the first stage, I attempted to show how primary right theories failed to account for the social bonds and obligations. Ascribing such inordinate weight to individual autonomy rendered primary right theories untenable for a constitutional jurisprudence seeking to comprehend secession, let alone a theory of law in general. At the second stage, I considered how remedial right theories, relying on the concept of oppression, did account for the social aspects of associative commitments and obligations of reciprocation and did not impinge upon the transformative event necessary to convert private dispositions into public standards. Specifically, the remedial perspective of the model implicated an antecedent set of social bonds and obligations which instances of oppression or distributive injustice threatened to extinguish. Rather than leaving this matter of social cohesion as an unexpressed implicit premise, it may seem reasonable and certainly more direct simply to begin with it, as the overriding condition sine qua non. In other words, this revised view would begin by emphasising social bonds and obligations, and would ascribe overriding importance to that social group. From here it is no great step to asserting the importance of group identity and group autonomy, and thus to the theory of nationalism and nationalist secession. On its face, nationalism would then seem the natural and logical culmination of a constitutional theory based on associative commitments, obligations of reciprocation, and the transformative event: the creation of a cohesive social group. A first impression, however, might sense a possible contradiction between the solidarity-forming nature of associative constitutionalism and the self-enclosing, border-forming nature of nationalism. Or, at least, a discontinuity: why should associative commitments and obligations of reciprocation among individuals not extend beyond national boundaries? Put another way, the central question under nationalist secession is whether there exist natural national boundaries to constitutional solidarity. THE CORE OF NATIONALIST SECESSION: NATIONAL SELF-DETERMINATION

Secession, for nationalism, has significant instrumental value as a tool to realise the ultimate and necessary aims of a nation, the pursuit of its goals, unhindered by any obligation to heed or comply with values, concerns or objectives external to its own. That is, secession offers a means by which members of an ostensible nation assert full, exclusive political and legal control over their own social-cultural, political and legal development as an autonomous community. A statement of the principle may take the following



National Self-Determination 195

form. Insofar as a nation exists, a nation is entitled to such political autonomy to propagate its own values and institutions among its membership, and to protect the same from dilution, extinction or alteration by force of values and institutions external to the nation’s own. A nation (even if a majority) would thus be entitled to secede from a political unit if that degree of political autonomy were necessary and sufficient for the nation to cultivate its identity and objectives.1 The existence of a nation is usually effortlessly conceded.2 The primordiality of the nation seems to arise out of ideas originating with the Romantic movement or a fixation on ethnic attributes.3 Political autonomy may include arrangements involving less independence than secession would provide, including the minority rights model advocated by Kymlicka.4 What needs protection includes both values and institutions and members and membership. Absent from this definition is of course reference to a homeland, or more broadly, territorial claims. These claims factor into the definition of the ‘nation’ as such, for it is often by reference to those people living in a particular area – a ‘homeland’ – that we may begin to mark off particular national groups as distinct from other groups. 5 By understanding such a combination of political autonomy and the cultivation of national identity and objectives as a nation’s self-determination, we arrive at the commonly accepted definition of nationalist-inspired secession. Expressed in its more customary guise, nationalist secession is an instantiation of the right to the self-determination of a nation. A nation’s right to secede depends upon the right of the nation to ensure and enjoy its own well-being or, as often expressed, the ‘flourishing’ of the nation. A nation is taken 1   See, eg D Copp, ‘Democracy and Communal Self-determination’ in R McKim and J McMahan (eds), The Morality of Nationalism (Oxford, Oxford UP, 1997) 277 and his ‘The Idea of a Legitimate State’ (1999) 28 Phil and Pub Affs 3; N MacCormick, ‘Nation and Nationalism’ in N MacCormick, Legal Right and Social Democracy: Essays in Legal and Political Philosophy (Oxford, Oxford UP, 1982) 261 and ‘Is Nationalism Philosophically Credible?’ in W Twining (ed), Issues of Self-determination (Aberdeen, Aberdeen UP, 1991) 8; S Caney, ‘Self-Government and Secession: the Case of Nations’ (1997) 5 J Pol Phil 351; M Freeman, ‘The Priority of Function over Structure: A New Approach to Secession’ in P Lehning (ed), Theories of Secession (London, Routledge, 1998) 12; and K Dowding, ‘Secession and isolation’ in ibid 71. 2   See, eg, S Tierney, Constitutional Law and National Pluralism (Oxford, Oxford UP, 2007); W Norman, Negotiating Nationalism: Nation-Building, Federalism, and Secession in the Multinational State (Oxford, Oxford UP 2006); Y Tamir, ‘Theoretical Difficulties in the Study of Nationalism’ in J Couture, K Nielsen and M Seymour (eds), Rethinking Nationalism (Calgary, Calgary UP, 1998) 65, 84–87, and her Liberal Nationalism (Princeton (NJ), Princeton UP, 1993); A Birch, Nationalism and National Integration (London, Unwin Hyman, 1989) 4 ff (citing Kedourie’s three tenets); D Miller, On Nationality (Oxford, Oxford UP, 1995) esp ch1; W Kymlicka, Multicultural Citizenship (Oxford, Oxford UP, 1995) and his Liberalism, Culture and Community (Oxford, Oxford UP, 1989); A Margalit and J Raz, ‘National Self-determination’ (1990) 87 J Pol Phil 439; K Nielsen, ‘Liberal Nationalism and Secession’ in M Moore (ed), National Self-determination and Secession (Oxford, Oxford UP, 1998) 103 and his ‘Cultural Nationalism: Neither Ethnic nor Civic’ in R Beiner (ed), Theorising Nationalism (New York, SUNY Press, 1999) 119; C Gans, ‘The Liberal Foundations of Cultural Nationalism’ (2000) Can J Phil 441; and F DeCoste, ‘Persons/Peoples/Polity: Interrogating Neonationalism in Québec’ (1998) 4 RCS 290, 307. 3  A Smith, Nationalism and Modernism (London, Routledge, 1998) and P Gilbert, The Philosophy of Nationalism (Boulder (Colo), Westview, 1998). 4  Kymlicka, Multicultural Citizenship (n 2), his ‘Is Federalism an Alternative to Secession’ in P Lehning (eds), Theories of Secession (London, Routledge, 1998) 111, his Politics in the Vernacular: Nationalism, Multiculturalism and Citizenship (Oxford, Oxford UP, 2001). See also Y Tamir, Liberal Nationalism (Princeton, Princeton UP, 1993); and A Eide, ‘Peaceful Group Accommodation as an Alternative to Secession in Sovereign States’ in D Clarke and R Williamson (eds), Self-determination: International Perspectives (London, Macmillan, 1996) 9 and his ‘In Search of Constructive Alternatives to Secession’ in C Tomuschat (ed), Modern Law of Self-determination (Dordrecht, Kluwer, 1993) 139, 147 ff. 5   M Moore, ‘The Ethics of Secession and a Normative Theory of Nationalism’ (2000) 13 CJLJ 225 (territory an essential part to secession and nationalism); L Brilmayer, ‘Secession and Self-determination: A Territorial Interpretation’ (1991) 16 Yale JIL 177.

196  National Theory of Secession to flourish in measure of the control it has over its own affairs: its determination of its self. What makes nationalist secession a right, is precisely its function in service of the right to national self-determination. Even if a nation’s resort to secession may occur only in extreme circumstances, like cultural oppression or genocide, the right to secede remains present but latent in the nation’s general right to self-determination. In summary, secession represents one particular instantiation of the right to national self-determination. The concept of a right to national self-determination roots itself philosophically in the idea of individual self-determination, of the individual’s definition of and responsibility for himself.6 The concept owes its currency and political presence to Woodrow Wilson, who applied the term as a rationale for dividing up the German and Austro-Hungarian Empires after the First World War, and to its subsequent incorporation into the jargon of the League of Nations, and of its successor, the United Nations. Under the auspices of the United Nations, the notion first served as one of the chief rationales for decolonisation. In the post-colonial period, it has sought out new ground, attempting to modulate political settlements and rights in pluralistic states. The international law version of selfdetermination considered. Let me concentrate instead on the foundations suggested for a right of national self-determination. Self-determination at an individual level is generally considered to be a fundamental, inalienable human right. Indeed, it would not exaggerate the case to claim that the right to self-determination is the right to be human, the right to define one’s self in all facets through one’s own choices and the acts of commission and omission thereupon. Much can be said (and has been) about self-determination’s genesis and its place in the history of ideas.7 The proposition of an auto-generative human self, of one creating its own form and substance, marks a significant turn in the philosophical construction of humanity.8 The self is minimally determined beforehand by supposed universal, natural laws (apart from, perhaps, certain biological, physiological matters) and is maximally determined by its experience of and interaction with all that it encounters. This perception of the auto-generative self engages a series of other significant ideas, including freedom, autonomy, moral compulsion, responsibility, interest and will. All these ideas play out more or less in direct proportion to a further primary concept, the well-being of the self. The greater the freedom, say, or responsibility, or presence of volition, then the greater the well-being of the self. All of which has been expounded upon at various lengths, and to varying degrees of cogency. Critical to self-defining is the degree of control which the self exercises over its own development, its own choices. The greater that control, the greater its inherent well-being, whether or not the choices and their respective outcomes actually produce any material benefit for the self. The core idea here stipulates that the act itself of choosing (and not the choice per se), or, perhaps more comprehensively, the act of deciding, represents the life-affirming act of being human, and thus its status as a ‘fundamental human right’. The process of deciding is, of course, no simple matter in and of itself, let alone its description. But what we need here 6   See Tamir, Liberal Nationalism (n 4) 35 ff; B O’Leary, ‘Ernest Gellner’s Diagnoses of Nationalism’ in J Hall (ed), The State of the Nation (Cambridge, Cambridge UP, 1998) 40, 45 and Caney, ‘Self-Government’ (n 1). 7   See, eg C Taylor, Sources of the Self (Cambridge, Cambridge UP, 1989) and his ‘Nationalism and Modernity’ in Hall, State of the Nation (n 6) 191; Margalit and Raz, ‘National Self-determination’ (n 2); Tamir, Liberal Nationalism (n 4); R Poole, Nation and Identity (London, Routledge, 1999); and H Beran, ‘A Democratic Theory of Political Self-determination for a New World Order’ in P Lehning (eds), Theories of Secession (London, Routledge, 1998) 32. 8  Taylor, Sources (n 7) 495 (in summary).



National Self-Determination 197

to extract are the two critical propositions connecting a self to its well-being, and its well-being to the power of deciding. Such a conception of the human self quite obviously grounds liberalism and a political theory relying on the mechanism of social contract. But further reflection on the external influences upon the development of self should suggest to us that the auto-generative capacity of the self does not operate ex nihilo, nor de novo, for each case of decision. At the very least, past choices have a cumulative effect in varying degrees upon the present constitution of the self, and its present and future chosen extrapolations. Moreover, quite simply, we are also products of our upbringing. We do not emerge as fully-formed sentient beings with a full set of commitments and decision principles already in hand. Our experiences impress upon us from our earliest days a certain character, a certain way of seeing things and of thinking. Such a baseline and framework extends throughout our life in the form of acculturation, namely, the absorption of and functioning in and through a given cultural setting. More specifically, our parents, friends and relations teach us to prize certain things and disregard others. We enter close associations with others, wives, husbands, teachers, colleagues, and so on, all of whom likewise leave their imprint upon us, as their social network did on them. We in turn impress our values and beliefs upon others, including most importantly our children and friends. All this social interaction pressures us to act in certain ways; guides our beliefs, decisions and actions; gives us a certain perception and way of structuring what we experience of the world. These reflections, admittedly only the briefest and broadest of sketches, would lead some to revise and qualify the auto-generative capacity of the self as constrained and restrained within the limits set out by those social experiences. A self may well exercise the power of choice in pursuit of its autonomy and well-being, but it is a power conditioned by culture. As described above, we acquired our view of the world – of what was possible, valuable, contemptible, desirable, irrelevant, and so on – from our social setting. It was in large measure a learned perspective. Our cultural setting determines the range of possible choices, what is valued or not, and so on.9 The nature and degree to which such conditioning controls the actual decision process provides much for debate, but beyond dispute is the acceptance of not insignificant cultural control on the development of the self.10 Accepting that perceptible and imperceptible cultural influences modulate self-­ determination draws the nation inexorably into the definition of individual self-­ determination. A culture supposedly establishes and conditions our decisional framework. It provides not only a language for expressing ourselves to others, but also a language for making sense of the world around us.11 The absence of or exclusion from some culture would therefore leave us without a foundation, a reference point or context by which we might interpret the world and make choices in and about it. ‘The conception of identity is the view that outside the horizon provided by some master value or some allegiance or some community membership, I would be crucially crippled, would 9  Miller, On Nationality (n 2) 22–26 (not an exclusive horizon), 41–44 (inescapablility of an imposed national identity); Kymlicka, Multicultural Citizenship (n 2) 83–84, 89 ff; Poole, Nation and Identity (n 7) ch 2; Tamir, Liberal Nationalism (n 4) 84 ff; and A Margalit, ‘The Moral Psychology of Nationalism’ in R McKim and J McMahan (eds), The Morality of Nationalism (Oxford, Oxford UP, 1997) 74, 82–83. 10   DeCoste, ‘Persons’ (n 2) 307 ff. 11   C Taylor, ‘Language and Human Nature’ in his Human Agency and Language (Cambridge, Cambridge UP, 1985) 217, 235, and ‘The Importance of Herder’ in his Philosophical Arguments (Cambridge (Mass), Harvard UP, 1995) 79.

198  National Theory of Secession be unable to ask and answer questions effectively, and would thus be unable to function as a full human subject.’12 Hence, our definition of our selves occurs necessarily in and through a culture and not independently of it. NATIONALISM’S GLOSS ON REMEDIAL RIGHTS: A PRIMARY RIGHT TO CULTURAL IDENTITY

The integration of a national animus into individual identity provides the foundation for a nationalism-inspired right to secede. Interfering with the national animus compromises the right of a nation’s members to their individual self-determination because one’s culture provides the individual a context of choice and meaning to all that is around him. In effect, the nation’s welfare ranks above that of any individual and certainly that of any (multinational) state. The nation provides the framework or context necessarily grounding the former. The latter is by definition derivative and dependent on a thriving national animus. It would follow from this priority given to national interests and values that the nation ought to take whatever steps may appear necessary for the advantage and advance of those interests and values. So external interference need not trigger nationalist secession. Political independence, via secession, represents a means for such advance in particular circumstances, whether or not the nation suffers present oppression. Only where it might clearly be demonstrated that seeking independence would injure a nation and its prospects of thriving would secession then be contra-­ indicated. The full ramifications of all this might be better appreciated by assessing it under the terms of the remedial right model. On its surface, the remedial right model would not seem that much at odds with nationalist secession. The model provides for a right to secede as a remedy to various forms of oppression. These were bundled into the four categories of discriminatory redistribution, cultural preservation, cultural self-defence and rectificatory justice. Interfering with a community’s political, economic or social existence (triggering nationalist secession) could easily be characterised for remedial secession as oppressive conduct, particularly with the application of a widely-defined principle of equality. That included not simply non-­ discrimination (formal equality) but also positive discrimination (substantive equality). Regarding a social or culture basis, the remedial right theory made no special provision for cultural identity or solidarity. It allowed for secession in cases of an active interference in cultural membership and in the continuing existence of cultures, as well as in cases of wilful indifference to the pending dissolution of a culture. But the remedial rights model did not require prerequisite group solidarity or cohesion: the act of oppression defined the group. The model focussed on the triggering event of oppression, and thus rendered irrele­ vant, or at least insignificant, the issue of any pre-existing cohesion, solidarity and groupfeeling among the group’s members. Oppression would either compress individuals into a group by virtue of discriminating against them on the same basis, or give those oppressed a common enemy by which to develop associative bonds. (Of course, oppression may simply strengthen the bonds already existing among group members.) Remedial secession framed its model with the disintegration of political cohesion and solidarity, without specifying how and why that cohesion and solidarity came to be. 12   C Taylor, ‘Why Do Nations have to Become States?’ in his Reconciling the Solitudes (Kingston, McGillQueen’s UP, 1994) 40, 45.



National Self-Determination 199

Nationalism, in contrast, frames its model for secession with just those reasons for creating cohesion and solidarity. It is but a short step, a quick transformation, from a right of individual self-determination to a right of cultural identity. By definition, a determination of self is a definition of an identity, and the formation of an identity obtains within a cultural framework. That framework represents a common pool of meanings, commitments, values, and such like, joining its members together and conferring upon them an identity in common. So, given this understanding that an individual’s identity is a culturally bounded one, an act of self-determination is in effect an instantiation of some cultural ideal. Individuals are bound to one another by, and engage one another on the basis of, their common cultural heritage. So cohesion and solidarity exist in a national community by virtue of its being a nation, by having a national identity reflected and instantiated in the identities of the national membership. Cultural solidarity drives the collective will of the nation. Of course, injustice may stimulate the national will and resolve to secede, but injustice does not stand as a condition precedent for secession as it does with the remedial right model. Secession is an expression of the collective will of a national group to determine and administer its own affairs in ways it sees as appropriate and effective for it, when it sees fit, in pursuit of its national identity. Rather than being a reaction to or triggered by injustice or oppression, the right to secession on nationalist terms represents one instance of the nature and powers normally attributed to any organised culture. We can thus express the right to secede under the nationalist banner variously as a nation’s right to its culture, or as the right of the nation’s members to their culture. Or simply, it is a culture’s right to exist, where existence implies not only existing simpliciter, but also development, advancement, thriving, and such like. Secession’s character as a right derives from the primacy of the nation: the priority accorded self-determination as an elemental human right refers to the priority of the national animus. ‘Nationalists stress the inescapable social aspect of personal identity, and suggest that the only way in which individuals can realise themselves to the full is by identifying with the nation, serving it, obeying its customs, and unreflectively celebrating its greatness.’13 But this relies on more than a simple extension and analogy to the rights character postulated for individual self-determination. The element of a national animus must have priority over any other element to the determination of self, such that the individual’s well-being (via self-determination) depends principally upon the anterior healthy development of the national animus. Otherwise, compromising the development of the national animus (restricting the nation’s self-determination in other words) would not necessarily injure individual self-determination: individual well-being and identity could rely more heavily on other, non-national, factors. Hence, the nature of the right to secede under a nationalism banner depends clearly upon an ethical priority accorded to the values and institutions of the nation. ‘Ethical priority’ signifies a normative claim weighting the national values and institutions for its members as superior to all others. It is an idea caught by national partiality, the partiality of members for their nation, its members, and its institutions, values, and 13  Tamir, Liberal Nationalism (n 4) 17, 83 ff. See also Margalit and Raz, ‘National Self-determination’ (n 2) 448 ff; Miller, On Nationality (n 2) 41–44 (national identity imposed and inescapable), 74 (moral partiality to insiders); Taylor, ‘Why Do Nations’ (n 12) 53 ff; DeCoste, ‘Persons’ (n 2) 308–9; O’Leary, ‘Ernest Gellner’ (n 6) 69; J Glover, ‘Nations, Identity and Conflict’ in R McKim and J McMahan, The Morality of Nationalism (Oxford, Oxford UP, 1997) 11; and R Goodin, ‘Conventions and Conversions or, Why is Nationalism Sometimes so Nasty?’ in ibid 88, 90 ff.

200  National Theory of Secession so on.14 As primary, the national connection thus precedes and qualifies any other form of connection or relationship among persons which serves for individual self-­ determination. Moreover, it precedes and qualifies any other form and source of individual identity. A national culture is no mere reflection or summed articulation of a set of individuals determining themselves. Rather, it is the defining instrumentality by which a self constitutes itself. An individual identity is true to its cultural form the closer individual self-determination tracks the idealised form of the national character.15 Consequently, the ‘nation’ and its welfare assert an encompassing significance and priority qualifying an individual’s package of intrinsic, defining rights and freedoms. The development of a thriving human self becomes inextricably dependent upon, and measured by, a developing, thriving nation. Hence, the success or failure of individual self-determination depends upon the success or failure of the nation’s pursuit of its own identity and objectives. A nation has an own ‘self’, an identity, open for self-­ determination. This brings us neatly to the central distinction between the primary right theory and the nationalist model. Nationalism’s Affinity for Primary Rights: the Nation as Rights-Holder The priority accorded to national commitments over individually developed ones cements the separation of a ‘nation’ as an existing entity, from the individuals making up the nation at any given time. Just as a corporation is separate from its directors, shareholders and creditors, so too is a nation distinct from its members.16 Like a corporation, a nation as a whole under the nationalist view is greater than the sum of its parts. Any one individual can instantiate but a part of the national culture. And it follows that culture stands apart from individual identity, as an idealised form external to its particular instantiation in an individual. A nation thus has an existence and consciousness distinguishable from those of its particular members at any given time. Only the nation as a collective and common animus, representing past generations and guiding future ones, can encompass all aspects of a culture. Without such a differentiation between the nation and a national member, there could be no priority accorded to a nation’s commitments. Such a priority presumes a common reference point, a shared set of associative commitments and intersubjective values and standards. That reference point must be able to survive the death of any number of members and replicate itself in new members. It must form a common element in the individual sets of commitments of each national, for it is such a shared reference which bounds their individual identity. Moreover, to avoid corruption or wholesale change in its content, this set of commonly held commitments cannot depend on any one member or set of members for its full definition and articulation. By virtue of being ‘shared’ commitments, then, they cannot be tied to any particular member, but must in some sense 14  J McMahan, ‘The Limits of National Partiality’ in R McKim and J McMahan, The Morality of Nationalism (Oxford, Oxford UP, 1997) 139; T Hurka, ‘The Justification of National Partiality’ in ibid 107; and Miller, On Nationality (n 2) ch 3 (using the concept of trust). 15   DeCoste, ‘Persons’ (n 2) 307 ff. 16   O Gierke, Political Theories of the Middle Ages (FW Maitland (trans), Cambridge, Cambridge UP, 1987) xxviii et seq (corporation as organic (continental) or fictional (Anglo–Saxon)); F Beiser, Enlightenment, Revolution, and Romanticism: the Genesis of Modern German Political Thought (Cambridge (Mass), Harvard UP, 1992) 223 (the Romantics ‘looked back with longing on the corporate order of the Middle Ages’).



National Self-Determination 201

transcend individual members. Such transcendence obviously can span generations so as to produce the evolving ideal-type constituting a nation and national identity, and can ensure their continuity in the future. I do not mean, however, to press the distinction between a nation and a national so far as to suggest that a nation could subsist independently and in the absence of any members. My more modest goal is to highlight in nationalism the differentiation between nation and national member, and the former’s treatment in consequence as a separate, subsisting entity capable of bearing rights. If we accept that a nation is such an independent entity capable of holding and exercising rights (in the same way perhaps that we speak of a state as such an entity or likewise a corporation), then we can set the nationalist model of secession squarely in a primary right framework. For then we are dealing with the consent of a nation to remain in or depart from a political construct involving other (national) groups, depending on the collective will of the nation. The actors in our constitutional theory become, not individuals, but cohesive groups: organised sets of individuals exhibiting a solidarity logically prior to and independent of that solidarity which arises out of a co-operative political arrangement. So this purposive character does not merely track the simple expression of self-determination, association and consent under the primary right theory. These concepts operate in function of an priority claimed by the nation, and accordingly are defined and exercised on the ultimate basis of the controlling national cultural identity. The consent, association and self-determination are that of the nation, for the benefit of the nation. The resolutely liberal individualism underpinning the primary right model is recast into communitarian terms of group rights, group action, and individuality expressed and qualified by participation in a group and group identity. Hence, the purposive nature serves not merely the individual, but rather the nation and the individual as an instantiation or element of the nation. For liberals and liberalism, however, this represents effectively the denial of individualism and true self-determination. As such it is a particularly significant weakness and a most dangerous consequence of nationalism.17 Summary: Different Strokes for Different Volks A nationalist model, in summary, ascribes a right to secede to a particular rights-holder, the nation, which then exercises that right as an instrument of self-determination. The nation is a collectivity and community which stands apart from the individual members, who themselves instantiate and reflect aspects of the national culture in their respective exercise of (individual) self-determination. The identity of national members is dependent on and derivative from the national identity. A nation exercises its right to secession where to do so would further the preservation and development of the identity characteristic and exclusive to it, whether or not triggered by outside interference or oppression. Thus, a nationalist right to secession is a right of a nation to sufficient political control over its own identity and destiny. Of course, a number of complex presuppositions comprise this broad statement of a nationalist right to secession. In drawing out nationalist secession from national selfdetermination, assumed as self-evident or at least readily available, are definitions for   DeCoste, ‘Persons’ (n 2) 313–15, 318–19, 320–21, 323–24, 334.

17

202  National Theory of Secession ‘nation’ and ‘nationalism’. Equally assumed is the existence of a definite nation, and a state wherein it is situate, yet from which the former is nonetheless distinguishable. We also presume an understanding of a nation’s identity and objectives, including as they pertain to an individual’s own identity and objectives and as they relate to social, economic, political and legal matters. We accept that political autonomy represents the only, the best or the preferred instrument for achieving nationalist goals. We understand not only that self-determination is a right, but moreover that it is attributable to a nation. And we assume, by speaking of such a right, a nation’s goals to have priority and to be privileged over other sorts of goods, identity and objectives – at least certainly over those of some over-arching, encompassing state. At a more abstract, legalistic level, a nationalist right to secede therefore justifies itself in virtue of the rights-holder, and not in virtue of any antecedent, independent rights held. That is, the defining of a rights-holder (the nation) also implicitly establishes and defines what rights are held, for example, the right to secede. Our rights and entitlements may be said to arise, not out of any arrangement or relationship we happen to engage in, but out of who we are, our identity. Rights do not necessarily exist independently of ourselves, in idealised relationships. Nationalism is just such a reflexive, subject-oriented system of rights, whereby the bearer of rights is the determining moral, legal factor in the existence, evaluation and application of said rights.18 By way of contrast, the remedial right model attempts to structure morally independent grounds for secession, and thereafter specify to whom it applies. The independent nature of those moral grounds refers simply to a type of ethical algorithm which prescribes the nature and effect of a specified relationship irrespective of, or abstracted from, those who may enter into such a relationship. Second order criteria apply to determine who may engage in such relationships, and whether they have done so effectively. The evaluative moral aspect therefore attends to the value and virtue of that type of relationship, of human interaction, howsoever it may reflect upon the characters of the individuals in the relationship. Its moral aspect thus does not derive from a moral evaluation of the actors themselves. The converse, a moral dependency, would describe an algorithm where the existence of the relationship, the standards and moral evaluation would apply only to specific persons because of who they are. In other words, it is the identity, the character of the actors in the relationship which determines the nature, and value and virtue of the rights arising in that relationship or, indeed, in spite of it. That is the case with a nationalism-based right to secede, and with group rights more broadly. Although we might consider this latter category as a sort of ‘office-holder’s morality’ where the relationship element has already been defined and accounted for in a prior morally independent system, we risk thereby a failure to recognise or give sufficient weight to the latter’s implied premise that the office itself, the identity of the rightsholder, has itself significant independent moral weight. It is precisely because the rightsholder is just such an entity, or holds such a position in society, that it may enjoy certain rights not equally attributed to others. Rights under this view inhere in, are attributed to, a person according to the characteristics that person bears. Who or what that person is bears the imprint in some measure of pre-existing social relationships. That is, who a person is, is definable to a degree in terms of established, recurring interrelationships in 18   L Brilmayer, ‘Propter Honoris Respectum: the Moral Significance of Nationalism’ (1995) 71 Notre Dame LR 7.



National Self-Determination 203

a society. The moral dependency algorithm I suggest cannot be understood as exclusively and solely dependent on a moral agent’s internal characteristics. Some measure of relative social positioning, of pre-established social interrelations, do signify here. Nevertheless, the key criterion remains that rights depend upon characteristics held by, attributable to, that actor independent of the relationship itself. These characteristics could be any number of subjective definers, such as physical attributes, specialised knowledge, past deeds, wealth, and so on. These will vary from person to person. So too would the nature of the rights held. At issue here ultimately is the balance of moral equality fundamental to any ethical or legal analysis. Broadly, the principle of moral equality holds that like-situated moral agents be adjudged equally, on equal terms. More specifically, whether A and B, or A and C, or C and D enter relationship X, they will be held accountable in like degree and on like terms for their conduct in X. Moral independence anchors its concept of equality in the relationship itself, with the assumption that A, B, C and D are equal moral agents. The central question is, of course, what if any differences distinguish the moral or legal evaluation of (A relx B), (A relx C) and (C relx B)? Differences among them are signific­ ant to the extent that they alter the (idealised) character of X. On the other hand, for moral dependence, equality is anchored in the identity of the moral agent, the rightsholder, before they enter into any (morally or legally significant) relationship. Their subjective, personal status will determine or qualify relationship X such that X is analytically subordinate to the standing of the actors engaged in X. Translating all this into legal terms suggests a concept of constitutional law, and law in general, with a restricted ability to mediate and co-ordinate human interactions. When law anchors its assessment of a right, duty and remedy in the person and not in the relationship between persons, it assumes a pre-existing set of standards which it is the task of law to enforce as given. While any legal system operates on a foundation of implied or express social norms, the standards at issue here do not mediate and coordinate interactions in the ordinary course, but rather categorise each party into his predetermined role pattern. His capacity and entitlements depend on what he is, not what he was doing. The risk, of course, is not only restricting persons to particular roles, options and benefit, but also the conclusion that within the multi-national or multi-­ cultural state there exists different law for different people, depending on their identity. While this may have unfortunate consequences in matters of human rights, it may not be so very important in the institutional setting of constitutional law where the question of the jurisdiction of state organs is very much a question of characterising the person and not the relationship. But in that institutional setting, an identity-based law and its aspect moral dependency create a ‘pre-constitutional’ or ‘pre-legal’ set of entitlements which the constitutional structure and legal system ought duly to reflect, and which by definition trump any rights and duties conferred by them. In a secession context, it is this set of considerations which underlie arguments that secession falls outside of the precincts of constitutional law, indeed, of law in general, and that principles of selfdetermination, democratic legitimacy, and the like, are ‘pre-constitutional’. That is, they are somehow external and superior to the entire constitutional system.19 We may not 19   R Kay, ‘Pre-commitment Rules’ (1981) Ohio State LJ 187; J Waldron, ‘Pre-Commitment and Disagreement’ in L Alexander (ed), Constitutionalism (Cambridge, Cambridge UP, 1998) 301. And see, in the case of Québec, D Turp, ‘Options d’avenir politique et constitutionnel du Québec’ in D Turp, Le droit de choisir: essais sur le droit du Québec à disposer de lui–même; The Right to Choose: Essays on Québec’s Right of Self-determination

204  National Theory of Secession suppose here some precondition, for example, illegitimate political action or violation of constitutional principles, to invoke these ‘external’ norms because any precondition would inevitably render these norms ‘internal’ to a valid subsisting constitution, and subject them to that constitution. In other words, national commitments have a special, prior status to civil or political rights arising out of the particular constitutional arrangements (insofar as the two conflict). Obligations of reciprocation between cultural alikes, in other words, are of greater moral weight than those obtaining between cultural unalikes. And this would return us to the above risk of having different laws for different people in the same state. Of course, this is hardly a problem if each nation can exercise a right to secede and thereby establish a culturally homogenous state. But has nationalism provided us with a persuasive constitutional theory to substantiate its claims that a nation is a rights-holder, and of its concept in particular of a right to secede? THE NATION AS THE SUMMUM BONUM

Expressed in a more particular and analytic way, three distinct claims are conflated in the nationalism-based right to secede: the three basic tenets of nationalism, so to speak.20 The first is a descriptive assertion, claiming that humanity is divided into discernible, distinct nations. A corollary to this is the criteria for identifying individual nations.21 I would formulate this premise (to the nationalist argument) as follows. A nation (or national identity) exists, having a distinctive and individual set of characteristics and values as expressed in its peculiar institutions, structures and as reflected in and through its members. Thus, it is inevitable and necessary that every individual belongs to one culture. It seems self-evident that any theory of nationalism must of necessity argue for, or at least postulate, the existence of nations. The second tenet is a normative assertion, claiming that our inevitable membership in a given nation necessarily imposes obligations of allegiance or fidelity to those values, characteristics and institutions peculiar to that nation.22 Phrased differently, we will prefer (or cannot do otherwise but prefer) the values, characteristics and institutions of our nation for the sake of realising our ident­ ity, participating in society, and making sense of the world.23 This carries the implication (Québec, Eds Thémis, 2001) 349, 351–53, 355; ‘Le processus d’accession à la souveraineté et le droit à l’autodétermination du Québec’ in ibid 425, 431–35; ‘Le droit de faire sécession: l’expression du principe démocratique’ in ibid 489, 496–97, 503–4, and ‘Le droit démocratique du Québec à l’autodétermination: réflexion critique et juridique’ in ibid 531, 539. 20   See, eg J Breuilly, Nationalism and the State, 2nd edn (Manchester, Manchester UP, 2001) 1–2; DeCoste, ‘Persons’ (n 2) 304–5 (referring to Breuilly); Tamir, Liberal Nationalism (n 4) 63–69, 73–74; Miller, On Nationality (n 2) 22 ff, 82 ff and ‘In Defence of Nationality’ in D Miller, Citizenship and National Identity (Cambridge, Polity, 2000) 24, 27–31 and ‘Secession and the Principle of Nationality’ in ibid 110, 113 ff. See also Norman, Negotiating Nationalism (n 2) 4–5, 37–39. 21   L Greenfeld, ‘Is Nationalism Legitimate?’ in J Couture, K Nielsen and M Seymour (eds), Rethinking Nationalism (Calgary, Calgary UP, 1998) 93, 93 ff; Miller, On Nationality (n 2) 17–18, 22–26, 32–36 and ‘Secession’ (n 20) 113–14, 117–18, 120. See also Gilbert, Nationalism (n 3) 8–14. 22  Y Tamir, ‘Pro Patria Mori! Death and the State’ in R McKim and J McMahan, The Morality of Nationalism (Oxford, Oxford UP, 1997) 227; Miller, On Nationality (n 2) ch 3 (concept of ‘trust’); B Barry, ‘Nationalism’ in D Miller (ed), The Blackwell Encyclopaedia of Political Thought (Oxford, Blackwell, 1987) 353 (quoted in Nielsen ‘Cultural Nationalism’ (n 2) 120). 23   Suggested by Miller, On Nationality (n 2) 74–75, 78. See also Tierney, National Pluralism (n 2) ch 3.



The Nation as the Summum Bonum  205

that refusing to acknowledge and follow our cultural basis and identity leads to a loss of self: an anomie. Given the existence of a nation, this tenet would confer a purpose or function for that nation. The third tenet is a prescriptive assertion, declaring that the normative claim of national preference is achieved through national self-determination. At issue are the criteria by which that self-determination may be achieved as a political reality. Postulated here is the necessity of political autonomy – self-governance, self-determination – for the nation as the best means to express and cultivate a national identity.24 The premise can be rephrased as follows. The realisation of the priority of national commitments requires effective autonomy from any other cultures so as to arrange and administer a nation’s affairs in ways consistent with, and in advantage of, its own values, characteristics and institutions. A corollary hereto is that the greater the autonomy, the greater a nation and its membership can realise upon that priority so as to propagate the national identity. The greatest degree of political autonomy entails, of course, a separate sovereign state: the result of secession. That the three premises form a logically consistent argument is indisputable. If a nation exists, then its commitments have normative superiority over all others. To realise upon that superiority means the nation must be able define itself and determine its status in the world. Thus, a nation has a right to self-determination, which may include secession as the fullest form of self-definition and self-determination. If there are weaknesses or flaws in the argument, then they are to be found in the content of the premises themselves. Moreover the argument, as it so stands, does not prima facie exclude the nationalist model for secession from being subject to a constitutional law treatment.25 Its only claim is that a particular entity has a particular right. Nothing is alleged regarding the constitutional character of that right, nor whether it is a ‘pre-­ political’ right. There is nothing in the bare position outlined above that exempts that right from being subject to constitutional law, or that renders it inconsistent with constitutional law. Of course, nationalism does indeed claim to fall outside of the regulation of constitutional law. The nation is a ‘pre-political’ entity; constitutional law is derivative out of the nation, and secession is most definitely outside any reasonably justifiable ambit of constitutional law. These claims originate in the two central premises to the nationalist model, that of a nation’s existing, and the normative superiority of its commitments. What we understand a nation to be, and how it works, will determine our take on nationalist secession. A Concept of a Nation The certainty by which the existence of a nation is asseverated corresponds to an equal uncertainty as to a definition and criteria for nationhood. ‘The . . . more important source of ambiguity about nationalism is the extreme difficulty of defining the social unit 24  Tamir, Liberal Nationalism (n 4) 72 ff; Miller, On Nationality (n 2) 82–84, 85, 87–90; B Anderson, Imagined Communities, rev edn (London, Verso, 1991) 7 (nation imagined as sovereign); Gilbert, Nationalism (n 3) 14–15 (quoting Weber); and E Hobsbawm, Nations and Nationality, 2nd edn (Cambridge, Canto, 1992) 9–10, 186–88, 191. See also Tierney, National Pluralism (n 2) 38, 41, 67, ch 4; Norman, Negotiating Nationalism (n 2) 4, 33–37; and M Hechter, Containing Nationalism (Oxford, Oxford UP, 2000). 25   Thus Norman, Negotiating Nationalism (n 2) ch 6.

206  National Theory of Secession which, according to nationalist principles, is entitled to govern itself.’26 It is fair to say that we are simply expected to assume and accept the existence of nations, without more.27 The primary aim of most studies favouring nationalism is not to establish the existence of nations, but to provide the best means of describing them, or delimiting them from other nations and other forms of association. Of course, that description in turn colours the nature and scope of nationalist rights. Hence, we are expected to assume that any nation will ultimately strive for self-determination, and that our task is merely to ascertain the most efficient and practical means to achieve that operation. Unlike the individual’s version, however, it remains unclear at theoretical and practical levels precisely what the nation is ‘determining’, and how it goes about doing so. And it is upon this uncertain foundation of a not-all-too clear understanding of its rights-holder that nationalism constructs a right of secession which supposedly arises intrinsically and by nature of that rights-holder. Yet there is something instinctive to proclaiming the existence of a nation, some deeply seated psychological, emotive force – a ‘gut feeling’ by any other name. This gut feeling is reminiscent of the apophthegm of being perhaps unable to define ‘elephant’, but being still able to recognise one when it crosses the road. What the nationalist sees is a litany of differences between him and ‘the others’. Our culture is not the same as yours, even if there may exist here and there some similarities. We have a different language and history from you. We have a different way of doing things, and of looking at the world. We can see it (if we so choose) in all that we do, think, say, eat, play, and so on; in how our politics work, and how our legal system runs. These are tangible differences. Even if the differences are less noticeable, we still sense them as soon as we cross the border and find ourselves among strangers. Our culture may not be any better or worse than yours, but it is ours. Indeed, we can be open to new experiences and ways of doing and thinking about things, but our principal touchstone remains our cultural core. It is from and within that context of meaning that we can make the necessary choices about our lives and who we are (or want to be). That is what really counts for us: our culture – our national being – is peculiar to us; it comes from us, out of us, and for our benefit.28 This strong emotion should give us reason to pause and consider what arguments are advanced in support of the existence of nations. Here, I follow the example of other reviewers, Breuilly and Smith in particular, to clarify the argument types into a series of categories (although not necessarily contiguous with those Breuilly and Smith propose).29 First are the biological and psychological arguments, which seek to ground our impulse to form and exist in nations in our genetic and psychological constitution. In other words, it is just the way we are.30 The objectives to these arguments are to dispute 26  Birch, Nationalism (n 2) 5. See also Decoste, ‘Persons’ (n 2) 297–98, 305–6 (and footnotes thereto), 310 ff; Tamir, ‘Theoretical Difficulties’ (n 2); Breuilly, Nationalism (n 20) App 1; Smith, Nationalism and Modernism (n 3) 221–27 (summarising his conclusions on the survey of the various models of nations and nationalism); Gilbert, Nationalism (n 3) (also a survey); Miller, ‘In Defence’ (n 20) 28 (as with Renan, a matter of belief); Poole, Nation and Identity (n 7) 10 ff (adopting the flexible ‘imagined’ or subjective approach of Anderson, Imagined Communities (n 24)); Tierney, National Pluralism (n 2) 34–44. 27   Decoste, ‘Persons’ (n 2) 312 n 105 (‘articles of faith’). 28   Capturing Hegel’s idea of a nation not merely ‘in sich’ but also ‘an sich’. 29  Breuilly, Nationalism (n 20) App 1 and Smith, Nationalism and Modernism (n 3). See also Gilbert, Nationalism (n 3). Tamir, ‘Theoretical Difficulties’ (n 2) 84 ff suggests this is a normative exercise rather than a descriptive one. 30   Goodin, ‘Conventions’ (n 13) 92 ff (information costs). See also P Wade, Race, Nature and Culture (London, Pluto Press, 2002).



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the standard claims that nations and nationalism are modern phenomena, that they do indeed date from before the eighteenth century.31 The rest of the categories operate on the assumption (express or implied), drawn from Hobsbawm and Gellner, that nation and nationalism signified only after the Industrial Revolution, the dismemberment of the ancien régime and the firm establishment of some form of popular rule. Situating the nationalist impulse deep within us fixes nationalism with an indisputable truth claim, with legitimacy (moral and political) and with an inescapable unavoidable presence in political and social endeavour. How could we deny our true nature? The second category, economic arguments, play upon the development of the modern industrial economy. The demand for labour adaptability and mobility, the correlate features of uniformity and standardisation, and the rapid flow and exchange of capital (labour and monetary) together formed the impetus for a common link binding capital within political and economic boundaries, so as to generate a uniform ‘high culture’ supervening those more localised exponents.32 Such an encompassing culture would in effect standardise the workforce. A common set of understandings and values, promoted through a uniform minimum degree of education and a common, uniform language, would guarantee a pool of standardised labour capital for use in all forms of industry. A large measure of government intervention and co-ordination is, of course, required to achieve this universal degree of minimum standards.33 But the use of state power in this setting does not aim to produce a solidarity necessary for nationhood, except as a byproduct resulting from the common factors instilled in citizens. Such solidarity, based as it is on state control, would tend to equate the nation with the state (or at least not differentiate the two). The third category collects arguments advancing political causes, in particular the interrelationship of elites, public administration and the sources of power. From this viewpoint, nations and nationalism represent a modern phenomenon following upon the dissolution of the ancien régime and the rise of popular power. The disappearance of the monarchy as an effective force of political unification, and the resultant dispersal of power across a broader constituency, necessitated some replacement so as to ensure political-state cohesion. To take Breuilly’s version as representative in general terms, nationalism is a movement to bind together people across a particular territory so as to gain and use state power.34 National groups aspire to form political communities, and for their political aspirations to be fulfilled, they require a jurisdictional domain (or territory) in which they can be self-governing. 31   See, eg Hall, State of the Nation (n 6) esp C Taylor, ‘Nationalism and Modernity’ ibid 191 and T Nairn, ‘The Curse of Rurality’ ibid 107. 32   See, eg E Gellner, Nations and Nationalism (Oxford, Blackwell, 1983) and his Culture, Identity, and Politics (Cambridge, Cambridge UP, 1987); Hall, State of the Nation (n 6) (essays reviewing the ‘Gellner hypothesis’); Smith, Nationalism and Modernism (n 3) chs 2 and 3; Breuilly, Nationalism (n 20) 22 ff (conflict of communities and socio–economic class), echoing E Hobsbawn, Nations and Nationalism, 2nd edn (Cambridge, Canto/Cambridge UP, 1992) ch 6 and App I. Also within this category exists the choice between Gellner’s ‘top-down’ perspective and Nairn’s ‘bottom-up’ version: Smith, Nationalism and Modernism (n 3) chs 2 (Gellner) and 3 (Nairn). Hence also the Marxist approach: Breuilly, Nationalism (n 20) 407 ff. 33   As suggested by the example of English social and economic history: see generally W Reader, Professional Men: the Rise of the Professional Classes in Nineteenth Century England (London, Weidenfeld and Nicolson, 1966); H Perkin, The Rise of Professional Society: England Since 1880 (London, Routledge, 1990). 34  Breuilly, Nationalism (n 20) 1–3. See also C Gans, ‘Statist and Sub-Statist Self-determination’ (2000) 13 CJLJ 185, 186–88 (‘statist’ nationalism); Margalit and Raz, ‘National Self-determination’ (n 2) (definition of national self-determination); Tierney, National Pluralism (n 2).

208  National Theory of Secession National groups, in other words, are not pure membership organizations, particularly in so far as they aspire to have some political and institutional reality; and self-government does not apply to members (of the national group) only, as is the case with voluntary associations or religious groups, but within a territory.35

Such a proposition (and to some degree the economic version above) directly controverts the ‘pre-political’ asseveration of the first category and of the general position laid out above. This version suggests instead that the nation coalesced after the constitution of the state, as an instrumentality of the state, upon means and ideas employed by extant political power – most definitely not the nation.36 The fourth category develops the ideas advanced in the third and, to a degree the first, in order to suggest an ideological basis to the creation of nations.37 This category moves beyond an examination of the instrumental exercise of political power to consider explicitly the basis for state power. In other words, state power would rely on the reasons for individuals coalescing into a society. And this, of course, raises expressly for the first time the criterion of legitimacy to state power. To return to the content of this category, an ideology serves to unite and co-ordinate individuals and their behaviour along certain standards by virtue of an indoctrinated or inculcated system of beliefs. The beliefs are not intended for proof by public demonstration, depending instead upon an act of faith. More often than not, such an act requires blind, unquestioning adherence. Accordingly, the reason for their binding force has less to do with their content, and more in some explanation of our psychological make-up as social beings. Religion often finds itself cited as such an ideology, and we need not search too long for nationalist examples based on Islam, Catholicism, Protestantism, fundamentalism, and similar ‘-isms’. Nonetheless, the secular character of twentieth and twenty-first century societies has shifted influence from religion (where it has not served as foil for a religiously motivated nationalism) to a-religious, political ideologies such as Marxism, and those founded principally on high principles of freedom, equality, and a wash-list of sundry human rights.38 Significantly, citing a cultural basis to nationhood would also fall under this category. A culture is itself a form of ideology, as defined above, being at its core a system of beliefs uniting people and co-ordinating their mutual behaviour. Whether the culture’s defining elements rest upon traits and beliefs derivative from common race, ethnicity, history, religion, customs, or the like is irrelevant. These features may reflect the intensity of the beliefs held, or their public expression, but they nonetheless all intend to unify those who duly evidence them and to control their behaviour.   Moore, ‘Ethics of Secession’ (n 5) 241–42, 243.   Thus A Van de Putte, ‘Democracy and Nationalism’ in J Couture, K Nielsen and M Seymour, Rethinking Nationalism (Calgary, Calgary UP, 1998) 161; and F De Wachter, ‘In Search of a Post-National Identity: Who are my People?’ in ibid 197 (the connection with the political principles of liberty, fraternity and equality). See also R Beiner, ‘Arendt as a Critic of Nationalism’ in R Beiner (ed), Liberalism, Nationalism, Citizenship (Vancouver, UBC Press, 2002). 37   J Balkin, Cultural Software: A Theory of Ideology (New Haven (Conn), Yale UP, 1998) 17–19, 30–35, 51–63, and ch 4. 38   For example, Trudeau’s attempt to ground a ‘pan-Canadian’ nationalism in the constitutional guarantees of the 1982 Charter of Rights and Freedoms (Can): P Trudeau, Le Fédéralisme et la societé canadiennefrancaise (Montreal, Eds HMH/MacMillan, 1967); J Webber, Reimagining Canada (Kingston, McGill-Queen’s UP, 1994) 53–62, 65–66, 116–17, 178; K McRoberts, Misconceiving Canada (Oxford, Oxford UP, 1997) 55 ff, 137 ff. 35 36



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It is not the place here to evaluate in any detailed way the relative merits and weaknesses of these various arguments. Indeed, as with most such things, the true answer probably draws on all those rationales. Instead, I want to consider these various positions not for the worth of their contents per se, but for the mere fact of their being advanced as argument. This renders the converse, what was not expressed or iterated, also significant. First, all four categories aim to demonstrate the foundation to and genesis of political cohesion and social solidarity. This suggests that the matter of unity or solidarity is not something to be taken for granted. So, in tackling the concept of a nation we are in fact addressing the broader question of the nature, function and scope of unity and diversity in and among people. Why solidarity exists, and the limits thereof, are without question fundamental issues for law, especially constitutional law, for they pertain to the role and authority of law in a social group. Secondly, political, economic and ideological descriptions of nationalism all implicate equally human agency in the formulation, culture and propagation of nationalist sentiment. What brings a nation, and nationalist claims, into existence is the product of deliberate human action, volitional conduct, conscious human effort. In whichever construction we might prefer, from the biological to the ideological, we implicitly accept that a nation is a constructed collectivity, constructed out of some attributes we consider the group’s members to have taken as mutually and reciprocally significant. Moreover, the attributes represent the basis for a sustained and sustainable solidarity among the group’s members. Political, economic, ideological elements or biological characteristics provide the associative force to bind together the group’s members. A nation thus conceived would appear to be a grouping of individuals who purport to demonstrate certain likenesses and a solidarity in virtue thereof, based on the particular social significances ascribed to those likenesses, the existence of unity and solidarity, and the existence of the group. A nation is an intersubjective construct whose existence relies on continuing interactions between individuals. Even the first category, the psycho-biological case, may be said to offer simply a structural explanation herefor. It requires nonetheless someone to put that process into operation, and try to give some idea with sufficient genetic or psychical tags and significance to catalyse the nation. Nations are artefacts, manufactured goods; or, to put it another way, a nation is the result of a solidarity-forming exercise among individuals. Applying these observations to the nationalist model for secession produces the result of treating secession as realising upon a division between the nation’s construct of solidarity among its members and the wider field of solidarity among them and the members of the rump state. Members of the seceding nation exhibit a different sort of connection to one another than they do to non-nationals, even if fellow citizens. Because that mutuality is constructed out of intersubjective contacts, some significant difference in the intersubjective relationships among nationals, and between nationals and nonnationals, must naturally exist. Hence, there is a need to explore further the concept of a nation as a mutuality constructed out of intersubjective contacts. Culture of a Nation Certain common factors recur in the various working definitions for a nation, such as culture, history, language, religion, territory and racial/genetic heritage. Their precise

210  National Theory of Secession conception, their respective combination and relative weights, all vary from definition to definition.39 In general terms, however, most working definitions focus on some mix of the following objective and subjective elements.40 Under the objective heading, we expect to find a common language and culture, and a definable territory of enduring and historical residence.41 Racial or ethnic factors in any event take a subsidiary, less important place overall, so as to diminish the risk of justified or unjustified accusations of racism, not only against the particular conception of nationhood proposed, but also against the ideas of nationhood and nationalism in general. The category of culture subsumes some of the function of the ethnic element, given the often unexpressed, implied premise in culture of a common ethnic background (history, territory and manners) as the motive force in propagating the culture. Under the subjective heading, we would anticipate some common belief in or awareness of membership in a group exhibiting those aforementioned characteristics.42 Glover and McKim can be understood to re-orient the criterion as a more deeply seated psychological component to our human make-up in the form of a need to belong and be seen to belong, which ultimately emerges as some form of ‘tribalism’.43 Tamir, however, questions the necessity of the subjective criterion having in view Kymlicka’s distinction between immigrant and national groups. She finds the criterion a contingency insufficient to ground an entitlement, and an easy source for injustices.44 But amending the criterion to require simply the potential to hold such awareness in common provides a response to Tamir’s real objection, which is to allow for any cultural group’s development of a political consciousness. (This brings us nicely to the real issue of the real nature of a nation as a structural and political force.) That shared consciousness or willingness to co-operate as a political force certainly supposes some form of subjective awareness. Thus, we can conclude that the basic structure to what a nation is involves certain tangible reference points (objective standard) and the mutual recognition of and use of them by ostensible members (subjective standard). The objective criteria establishing the existence of a nation clearly refer to the necessary presence of some sort of associative bonds between those individuals said to comprise the 39  R Ware, ‘Nations and Social Complexity’ in J Couture, K Nielsen and M Seymour, Rethinking Nationalism (Calgary, Calgary UP, 1998) 133, 138, 139–40, 141; Greenfeld, ‘Is Nationalism Legitimate?’ (n 21) 94–95, 105 ff; G Nootens, ‘Liberal Restrictions on Public Arguments: Can Nationalist Claims be Moral Reasons in Liberal Public Discourse?’ in J Couture, K Nielsen and M Seymour (eds), Rethinking Nationalism (Calgary, Calgary UP, 1998) 237, 240, 244; W Norman, ‘Theorising Nationalism (Normatively): the First Steps’ in Beiner, Theorising Nationalism (n 2) 51, 53, 55; and Hobsbawm, Nations and Nationalism (n 24) 9–11. 40  Tierney, National Pluralism (n 2) 32 ff; Norman, Negotiating Nationalism (n 2) 33 ff. 41   See, eg I Brownlie, ‘The Rights of Peoples in Modern International Law’ in J Crawford (ed), The Rights of Peoples (Oxford, Oxford UP, 1988) 1, 5; Miller, On Nationality (n 2) 17–24 and ‘In Defence’ (n 20) 28, 29–30; Taylor, ‘Nationalism and Modernity’ (n 31) 33; Goodin, ‘Conventions’ (n 13) 95 ff; J Licthenberg, ‘Nationalism, For and (Mainly) Against’ in R McKim and J McMahan, Morality of Nationalism (Oxford, Oxford UP, 1997) 158, 159–60; Poole, Nation and Identity (n 7) 68–69; N MacCormick, ‘Nation and Nationalism’ in Beiner, Theorising Nationalism (n 2) 189, 191. See also Kymlicka Multicultural Citizenship (n 2) (linguistic component emphasised) and Anderson, Imagined Communities (n 24) (culture and language). 42   Miller, ‘In Defence’ (n 20) 28, ‘Secession’ (n 20) 113–14, and his On Nationality (n 2); McMahan, ‘Limits’ (n 14) 107; Decoste, ‘Persons’ (n 2) 305, 307 (double subjectivity: political and personal/identity). See also Anderson, Imagined Communities (n 24). 43   Glover, ‘Nations’ (n 13) and R McKim, ‘National Identity and Respect among Nations’ in R McKim and J McMahan (eds), The Morality of Nationalism (Oxford, Oxford UP, 1997). See also Taylor, ‘Nationalism and Modernity’ (n 31) 36 and ‘Why Do Nations’ (n 12) 44–45, 56, as well as Greenfeld, ‘Is Nationalism Legitimate?’ (n 21). 44   Tamir, ‘Theoretical Difficulties’ (n 2) 79–84.



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nation. The criteria identify what is suggested as the significant elements founding a mutuality among members. Just as remarked above concerning the fourfold typology of nations, underlying the descriptive claim that nations exist stands a further implicit claim purporting to account for the solidarity among members. For it is precisely that solidarity which constitutes the nation as such. Without associative bonds, there simply is no nation. Hence, asserting the existence of a nation by describing it as bounded by a particular language, history, territory, religion, customs, and the like, itself represents a justificatory rationale why and how a particular group of people have united in a sense of co-ordinated beliefs, values and behaviour. By asserting the existence of a nation with reference to certain descriptors, then, we make the implicit claim that those descriptors are the necessary and sufficient ingredients to overcome any diversity and fuse individuals together. In other words, we are not simply describing a nation; we are also arguing for a particular understanding of human existence and interaction in the world. Specifically, the matter of solidarity and unity would not be an issue without an antecedent assumption that significant diversity among human beings already existed, out of which solidarity must spring. Thus, the objective criteria assume an instinctive or rational drive to surmount the presumed primordial differences among human beings, and they propose the means considered necessary and sufficient to bridge these differences. After all, if agreement and unity were the natural condition of mankind, we should expect more attention spent on the reasons and solutions for disagreement, rather than vice versa. This is not to recommend the adoption of a Hobbes-inspired view of the condition of humanity where individuals are constantly in competition with one another. Rather, it is to remind us that the concept of solidarity cannot simply be assumed or taken for granted. The concept of a nation relies on whatever concept of solidarity is employed. An examination of the various bonds of association listed as objective criteria should lead us to conclude that the fundamental associative character to a nation is a solidarity based on a common culture. A nation originating out of those factors is a nation based on cultural solidarity. Indeed, it was assumed here that nation and culture are interchangeable concepts, at least as sets of common associative commitments. The criteria of a common language, customs, religion, history, territory and ethnic background stand as the hallmarks of a culture. Intuitively, we understand of a culture first and foremost the tangible differences between groups of people and by which those groups demonstrate a cohesion and similarities, including language, religious beliefs, customs, art and music, dress, racial and physical characteristics, and character traits. Thereafter we might refer to various social structures, such as political, legal and economic systems, although we probably would qualify these as being reflections or articulations of those afore-mentioned descriptors of human beings. And we tend to attribute these features to inhabitants of a particular geographic area. These are all the same things which we experience as binding us to our cultural fellows as a national unit. So our intuitive understanding of culture tells us that it is a common culture which binds into a nation. From a different perspective, the hard evidence before us is a set of individual persons exercising individual choice in a co-ordinated fashion. This co-ordination is more than the product of positive law, rules, and such like, for even these instances point to an antecedent agreement, a prior understanding held in common. The co-ordination identifies or points to a set of shared values, norms, meanings, language, and so on – in the terminology used herein, a set of common commitments. Sharing and co-ordination of

212  National Theory of Secession this type are taught to or nurtured in an individual through his participation in a society. An individual thereby internalises a society’s habits, language, norms and values (inasmuch as they can be attributed to ‘a society’ and not simply to one’s parents, friends and associates) and thus applies them in daily intercourse. This development of an individual identity, out of learning and experiencing norms, meanings, significances, is what Herder and the Romantics referred to as Bildung, or what we might call ‘culture’. The idea of a process of growth, accretion, life and death, are all intrinsic to the word ‘culture’. And by its very definition, culture is an intersubjective concept, for it requires an interaction between individuals and their environment to produce in each the growth of meaning and value. Hence, solidarity comes out of the interaction between individuals and out of the consequent common position held by both. Critical to the existence of solidarity among individuals therefore is culture. The manufacture of a nation is the manufacture of culture. Culture represents the real basis and content of solidarity among people.45 The role of culture owes its importance to the work of Rousseau and Herder, and the revisions proposed by the later Romantics, such as Hegel.46 Cutting through the encrustations of so much thinking on culture to reveal its inner core, we encounter (perhaps surprisingly) an individual self, by whose consciousness of its needs and imperfections – in short, its position in the world – it strives to find an order to things about it, a modus vivendi, so that it can persist and change in conjunction with, and even control, its environment. To do so in such a co-ordinated fashion evinces a legitimacy (a right to be, to exist) to this selfdirection.47 A self exhibits a ‘bi-polarity’. 48 On the one hand, it is a spirit having a will to achieve, to explore and fulfil its potential as a thinking, creative being. On the other, it is an agent in the world, prone to the weaknesses and hazards therein, and the possibility of failing to realise upon its will. The finding of a modus vivendi is a process of growth, change, development and evolution. Herder used the term ‘Bildung’. ‘Bildung’ referred to the forward growth of the self, whilst its converse ‘Tradition’ referred to the backward-looking uptake of conventions, and the like; but Tradition is not mere replication.49 This would deny the dynamism of the process, and I propose to use Bildung to cover both aspects. So the key features of Bildung are (1) its character as a dynamic process of growth and adaptation; and (2) its function of collecting and arranging for the self meanings, significance and values. Although an exact equivalent in English is difficult to find which encompasses all the nuances to the term, ‘culture’ does a very good job of approximation, on condition that 45   See, eg Miller, On Nationality (n 2) 22 ff, 49 ff (underpinning ‘national partiality’), 90 ff (‘trust’); Nielsen, ‘Liberal Nationalism’ (n 2) 104 ff and ‘Cultural Nationalism’ (n 2) 120–21; Kymlicka, Multicultural Citizenship (n 2) and Liberalism, Community, and Culture (n 2) (‘societal cultures’), and ‘From Enlightenment Cosmopolitanism to Liberal Nationalism’ in his Politics in the Vernacular: Nationalism, Multiculturalism and Citizenship (Oxford, Oxford UP, 2001). See also W Kymlicka and C Straehle, ‘Cosmopolitanism, NationStates, and Minority Nationalism’ in ibid 221; and Taylor, ‘Why Do Nations’ (n 12) 40, 46 ff, and ‘Nationalism and Modernity’ (n 7) 36 ff (Gellner and the shift to ‘horizontal, direct–access societies’). 46   F Barnard, Self-Direction and Political Legitimacy (Oxford, Oxford UP, 1988) 232 ff (discussing Herder); Taylor, ‘Why Do Nations’ (n 12) 46 ff; A Smith, The Antiquity of Nations (Cambridge, Polity, 2004) ch 5. 47  Barnard, Self-Direction (n 46) 256–59 (Herder drawing an analogy to existence and propagation in the natural world). 48   ibid 158, 173 (‘bi-polarity’), 192 ff, 220. 49   ibid 172–74, 229, 233–36. See also R Beiser, The Romantic Imperative (Cambridge (Mass), Harvard UP, 2003) 28–30 and ch 6.



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we understand the term as used in its biological and dynamic sense, and not merely the more petrified sociological usage which tends to lose itself in the details of art, language and customs. In the biological sense, culture represents a colony of living cells. We can transpose that to human life in terms of intellectual, spiritual and physical development of a person over the course of his lifetime. In the person there exists a colony of ideas which thrive, die, mutate and evolve according to the stimuli applied. To be sure, the actual content of the ideas is important. But it is the metaphor of living I want to focus on here, and the image of our beliefs, ideas, values and like cultural exponents as springing from different stimuli, and reacting and adapting to them in various ways as interdependent organisms normally do. ‘Acculturation’ captures some of that nuance as well. Accordingly I can compress those other objective elements such as language, history, race, religion, into the broader category of ‘culture’, and justifiably treat them as incidents of culture, and not as independent elements. This is not, however, to diminish their importance to a culture. It is merely to set them in the proper perspective. They remain the signals for identifying a culture, rather than a list of independent ingredients necessary for composing one. In that sense, a shared history, a common language, the same ethnic background, are products of a culture, rather than the preconditions for one. For example, Herder attributed significant importance to language as a defining feature of culture, as do those favouring nationalism after him.50 But language itself, like race or history, do not (on the view expressed here) go to making up a culture independently, to defining a culture. They certainly may go to describing one. They reflect the interaction, co-operation, and even conflict among a group of people over time and place. And it is that activity of interacting, of living together, that I seek to highlight in the use of ‘culture’. To repeat, culture emphasises a process, the performance of an activity, and not merely or exclusively the result of that action. The development from consciousness to conscience cannot occur without interaction in and with the world, specifically, our natural surroundings and other people.51 Such is the nature of being ‘situated’ beings. In particular, we need other people to ‘complete’ ourselves, so to speak. It is in our dynamic interaction with others that we develop a common language, common and co-operative commitments, and, importantly, methods of agreeing and disagreeing. Over time, we build up together a common history of these transactions, and that history infuses our current dealings.52 Our interaction with others sets out the limits of what we may do and what may be done to and around us. In fixing such limits, we must evaluate our desires and will as against those of others. Hence, an understanding of and giving effect to our interests, and those of those we consider our fellows, constitute the context or bounded space wherein our interactions occur. Autonomy and heteronomy are not opposite poles, but create a shared space to get things accomplished through co-operation (‘Zusamenwirken’).53

50  Barnard, Self-Direction (n 46) 236, 237–38, 302–3. See, eg Taylor, ‘Why Do Nations’ (n 12) 49–50, 53–54, 55–57 and his ‘The Politics of Recognition’ in A Gutmann (ed), Multiculturalism: Examining the Politics of Recognition (Princeton (NJ), Princeton UP, 1994) 25, 52; Anderson, Imagined Communities (n 24); and Gilbert, Nationalism (n 3) 115 ff. See also D Schneiderman (ed), Language and the State: the Law and Politics of Identity (Montreal, Eds Yvon Blais, 1989); and Balkin, Cultural Software (n 37) 81 ff. 51   F Barnard, Herder on Social and Political Culture (Cambridge, Cambridge UP, 1969) and his Self-Direction (n 46) (culture and nature). See also van de Putte, ‘Democracy and Nationalism’ (n 36) 180–87. 52  Barnard, Self-Direction (n 46) 226 ff (via ‘Tradition’). 53  ibid 155, 217 (‘Billigkeit’), 243–46.

214  National Theory of Secession The common space shared by individuals, comprising their interactions and their natural surroundings, establishes the basis for social solidarity. By ‘solidarity’ I mean a sense of mutuality and reciprocal obligation held in common by diverse individuals and based on a common-holding of certain interests and the qualifications or boundary limits to their realisation. It is the possibility of reproducing particular outcomes in particular interactions in particular circumstances which supports this idea of solidarity. We expect that we can depend on others for specific things up to certain limits, and vice versa, because of our past interactions with them and the prospect of future contacts with them given our common habitat. It is in these recurring interactions that we are always working out the nature, scope and limits of our mutual co-operation, in the very literal meaning of that word as operating together, side by side. Hence, at the core of the idea of culture is a dynamic evolving process of creating meaning and significance with our fellow human beings and surroundings, by interacting with them on some regular basis. In fine, culture is intersubjective contact over time building up open-textured precedents of values and norms, having inter-generational continuity. The idea of community espoused here is one of interlocking interests and desires, rather than the holding of identical derivatives. The commitments comprising our common-holding do not purchase their similarity from a single transcendent commitment stipulated in advance, a priori, as might be prescribed in group rights or communitarian theory. Any such transcendent similarity arises only ex post facto by reconstruction. Moreover, that reconstruction would achieve only a loose generalisation, a broad unfocussed abstraction which could apply to any person at any time. It would obscure or ignore the facet of interlocking conceptions, of individual articulations of interest and desires bounded by, or conditioned on, interests and desires of others. (It is this realisation which arguably triggers and underpins Sunstein’s suggestion of ‘incompletely theorised agreements’ as constituting the basis for a liberal conception of ‘constitutional neutrality’.54) Both Herder and Rousseau argued that solidarity could not be imposed from above, externally from the self, but had to originate from within as an internal disposition.55 Its internal origin depended crucially on maintaining open channels of interaction with others so as to preserve the dynamic evolution of an individual selfencapsulated in Bildung and Zusamenwirken. Barnard distinguishes between Herder and Rousseau on this point. Rousseau argues for the interposition of a ‘Legislator’ to lead the people to a realisation of their ‘common will’, thus a closing off of the borders of the nation to ensure the purity and uniformity of that common will.56 Later Romantics, despairing of the attempts of the people alone to fashion a ‘common will’, fastened upon this idea to reinforce their plea for a centralised distribution of what the ‘common will’ ought to be.57 Hence the well-paved road to a modern notion of a ‘nation’ as a positivistic culture. Given all this, we must realise that this community of meaning has a local character, a local foundation. The natural surroundings and the recursivity of our relations with those surroundings and cohabitants exert a specific and determinate influence on the 54   C Sunstein, The Partial Constitution (Cambridge (Mass), Harvard UP, 1995) and his Legal Reasoning and Political Conflict (Oxford, Oxford UP, 1996). 55   Acknowledging in the process their debt to Montesquieu: Barnard, Self-Direction (n 46) 291–92. See also J Levy, The Multiculturalism of Fear (Oxford, Oxford UP, 2000) 19–23 (on Montesquieu). 56  Barnard, Self-Direction (n 46) 235, 238–42, 256, 272–73, 292, 304. 57  Beiser Enlightenment (n 16) 223 ff, 235–39.



The Nation as the Summum Bonum  215

meanings and significances comprising a culture. That peculiar constellation of circumstances creates an environment wherein a culture may develop in its own way. It also constitutes the boundary conditions within which a culture exists. And since the constellation of circumstances differs for every grouping, no one culture is just the same as the other. Every culture has its own lifeworld proper to it. Every culture has its own set of options for development proper to it.58 Every culture has its own authentic identity. This should lead us to conclude that the natural boundaries of a culture are those delimiting the area of recurring intersubjective contact, wherein Bildung and Zusamenwirken obtain. Such a conclusion is not, however, without its difficulties. First and foremost, the reach of our regular interactions with others is quite narrow. Those contacts are limited to family, friends and some business acquaintances. Even if we can attest to some sort of significant contact with others in our neighbourhood, we would be hard pressed to demonstrate the same in the larger social circles of cities, regions, provinces and states. Our modern life, especially in an urban setting, is fraught with anonymity. But a nation, as claimed by nationalism, occupies a much larger geographical area than a neighbourhood or village. The watershed of its defining commitments ranges over a greater number of individuals, most of whom have never met. Secondly, our modern life distinguishes itself from previous eras by the ease and accessibility of communication among different people across large geographic divides. Our contacts and dealings with others are not restricted any longer by natural circumstance, making travel and communication long and arduous. Whatever jargon we may use, such as ‘cosmopolitanism’, ‘globalism’ or ‘multiculturalism’, Bildung and Zusamenwirken must account for a much broader base of interaction than previously contemplated.59 Therefore, if a nation is to press its claim as being an extant distinctive cultural entity, it will have to invoke something more to ensure its cultural homogeneity and stability. Subjective Standard: Imagining a Nation The localised character of a culture arising from recurring contacts within a particular habitat explains why a subjective standard or element becomes necessary to broaden the watershed of ‘culture’ so as to cover a wider population who do not presumptively share those original preconditions of recurring contacts in a habitat.60 The subjective element represents the process of abstracting from a collection of meanings and significances to stretch the bounds of cultural cohesion. In order to overreach the narrower compass of intersubjective cohesion making up a cultural group, members (1) must abstract from the collection of meanings and significances a central pool of dominant or determinative characteristics; and (2) must attribute these to themselves and to others whom they wish to accept or recognise as fellows. The subjective element in nationalism theory is then very much concerned with the imposition of solidarity, rather than its manufacture. That imposition, whether intentionally or merely assumed to occur naturally, would not 58  Barnard, Self-Direction (n 46) 223–24, 227, 236–39 (originating in Herder’s contention about the awkwardness and inauthenticity of French customs in the German setting). See also Beiser, Enlightenment (n 16) 206–7, 216–18. 59   R Beiner, ‘1989: Nationalism, Internationalism, and the Nairn–Hobsbawm Debate’ in R Beiner, Liberalism, Nationalism, Citizenship (Vancouver, UBC Press, 2002). 60  Anderson, Imagined Communities (n 24) 6–7.

216  National Theory of Secession be required but for the possibility of a transformative event reaching a completely other conclusion on common values and beliefs. Hence, ‘subjectivity’ is perhaps better read not as ‘arising from within’ but as ‘rendering subject to’. Accepting the original idea of culture espoused by Herder as an internal process of developing a community of meaning and values (also internally) through interaction with others and with the natural world, the subjective element to the concept of a nation introduces an artificiality, an external element. This is not as paradoxical as it may seem at first glance. The image of ‘internal’ and ‘external’ represents here simply a handy means of tracing the boundary between an idea, desire or belief that originates authentically within us, and something that originates in another, and is imposed on or transferred to us. The idea of local contacts creating values and norms carries with it an intrinsic limiting factor prohibiting any effective and natural extension of the concept to larger groups, let alone that which we customarily refer to as a ‘nation’. To broaden the catchment zone for a ‘nation’ or ‘national culture’ beyond the presumed naturally occurring, narrow territorial incubator, we must identify in others or ascribe to them the fundamental characteristics we understand to define ourselves. In so doing, we begin to abstract, not only from our own original commitments, but also from any of the presumed natural territorial conditions generating the latter. We sketch out an image of, or imagine, these abstracted, ideal characteristics. Moreover, the ascription of like commitments to others is not merely a passive recognition of similarity. Just like at the local level, the baseline of common commitments grounds expectations and evaluations of social behaviour, and represents thus a normative proposition. We sketch out an image of, or imagine, the type of people who embody those characteristics and how they behave. Ascription of similarity produces not merely an ‘internality’, of mutual recognition, of an imagined point of commonality. It also mandates an ‘externality’, a point of commonality imagined to exist independently of any particular group member, and to bind each equally. Thus, the subjective element challenges the proposition that a nation can be naturally anything more extensive than a local group, or that solidarity can arise naturally from within such a group in the first place. Any more widely distributed solidarity based on the cultural contacts contemplated by Herder is not simply ‘imagined’. It is purely imaginary. What one local group imagines to define itself and its members will not be the same as another’s selection. The perceived solidarity distributed widely over a group of individuals signals more than just the relativity of those traits taken up as definitive for that group, that ‘nation’. The necessity for imagination implicates our conscious actions to accept and internalise those common commitments and attributes which have been somehow already identified and defined. We are not producing common commitments, in line with the first branch of the transformative event, nor are we expected or asked to. Instead, nationalism restricts us to the second branch only. Thus, the nation is indeed an ‘imagined political community’, to use Anderson’s well-accepted phrasing.61 But it is not ‘political’ simply in the sense of seeking sovereign political power for its members (as Breuilly sees it).62 The ‘deep attachments’ contributing to the formation of that commun­ 61  ibid 6; Poole, Nation and Identity (n 7) 10–18 and Tamir, Liberal Nationalism (n 4) 63–69 relying on Anderson’s hypothesis. But compare Smith, Nationalism and Modernism (n 3) 131–42 (an over-generalisation). 62  Breuilly, Nationalism (n 20). Smith, Nationalism and Modernism (n 3) chs 4–5 criticises like-minded commentators (Tully, Giddens, Kedourie) and in Antiquity (n 46) presents a view opposing a (purely) political characterisation and motive.



The Nation as the Summum Bonum  217

ity require a mechanism to ensure the continuing accurate imposition and replication of defining (and abstract) national commitments across its membership and across local conditions.63 A nation is first and foremost ‘political’ in the sense of being a means of situating and applying social power: of exercising political power over its members. Nationhood is both the product of an explicit political process and the means by which that process would attain its ultimate goal of sovereign social power. The feature of imagination, then, points to an essentially instrumental conception of a nation. Recalling the discussion on Herder, the ‘state of nature’ in fact presents us with a multiplicity of smaller groupings of individuals. For a wider solidarity to obtain, we must establish a means to connect these diverse groups together in some cohesive fashion, and by extension, to exclude others. We achieve this by a selection of desirable traits which outline ‘the nation’, and by their imposition upon a wider grouping of individuals. Nationhood serves as the conceptual short-form for the positing and super-imposing of common commitments. All this requires social organisation. Such organisation proposes a controlling body, the ‘elites’ and ‘intelligentsia’ who choose, impose and recognise membership traits through political and social instrumentalities, language being primary.64 Indeed, Anderson traces out this political character of nations at the hands of such ‘political elites’, as variously formed and characterised over history. But Anderson never explains how those elites come to associate, opening him up to criticism.65 A political process constructed upon a shared language in which elites exercise the power to define the common-holding and ensure their uniform adoption, application and transmission, is the fundamental and basic mechanism. It would be easy at this point to digress into complex and extensive debates about the unifying force of language, religion, economics, politics, and such like, both as an inherent aspect of each, and as an express artefact of social control. Gellner is the focal point for these discussions, which cover the political range from Marxism to liberalism.66 Gellner’s thesis was primarily an economic one, that a desire for economic progress and prosperity drove elites to rationalise and make uniform language, education, and so on, to create an educated working class who could function efficiently and adapt to technical processes of production.67 Nothing here should be understood to adopt or advocate Gellner’s view on nationalism. All this would merely obscure, at least in the short term, my own thesis here that nationalism purposefully constrains the replication of desired common commitments and equally restrains the development of new and alternative commitments. (To anticipate what follows, nationalism involves a reification of culture.) So rather than succumbing to a digression, I will continue focussing on the associative character of nations. Returning to the argument, imagination serves the overriding political process as a means by which that process encourages and maintains cohesion among the group  Anderson, Imagined Communities (n 24) 7 (although he never directly examines or explains them).   For example, Gellner, Nations and Nationalism (n 32) 140–42 (in summary); Taylor, ‘Nationalism and Modernity’ (n 31) 40, 41, 43–47; Greenfeld, ‘Is Nationalism Legitimate?’ (n 21); Breuilly, Nationalism (n 20) 25–35, 46–51; and Smith, Antiquity (n 46) ch 7 and Nationalism and Modernity, 32 ff, 63–66; 91–92, 97 ff (on Kedourie’s theory of nationalism as ideology). 65  Smith, Nationalism and Modernism (n 3) 137; Breuilly, Nationalism (n 20) holds a pragmatic, power-­ oriented view. 66   See, eg Hall, State of the Nation (n 6); and Smith, Nationalism and Modernism(n 3) 27–46. 67  Gellner, Nations and Nationalism (n 32) 35–38, 45–49, 55–58, 140 ff (summary); and Smith, Nationalism and Modernism (n 3) 27–46. 63 64

218  National Theory of Secession membership. It masks, in its overt claims to a subject-oriented act of imagining, the presence of an externally defined ‘objective’ set of values and beliefs. Because the natural position is one of many diverse cultural groupings whose members have coalesced around daily interaction, to project solidarity across the whole range of them requires not merely a passive abstraction, but an active interposition and imposition of the desired common traits and attributes thus abstracted. It is no great concession that the basic or original position arises out of intersubjective interaction at a narrow, local, small-scale level. But in truth, it matters not whether we speak of family, neighbourhood, clan or tribe. All these are irrelevant. What counts is the understanding that at the core of a nation are intersubjective relationships producing associative obligations and common commitments. Reconciling all those among diverse groupings is the task of the institutional premise of a nation: its inherently political nature. That is, a nation must articulate and enforce its prescribed commitments and associative relationships within and through some organised social structure. Accordingly, we should evaluate nations not merely in terms of the falsity or genuineness of their tenets and attributes, but based on the means, the ‘style’, in which the nation is imagined.68 But this is not to say the same thing as Anderson. We must analyse a nation in terms of the mechanism it employs, through the various ‘styles’ or cultural artefacts as suggested by Anderson, to project, maintain and enhance solidarity. Language, religion, history, and such like artefacts are derivative upon, and serve to transmit, the primary ‘style’ of imagining, being the articulation of associational commitments. Thus, a nation’s ‘style’ of being imagined as used herein is a performative concept, referring to the source of and means of preserving social cohesion. It considers the distribution and application of social power and control. And that, of course, brings us neatly and comfortably within the orbit of constitutional law. Certainly, a nation’s claim to sovereignty, to be answerable to itself and no other, indicates that the ultimate goal or objective of national commitments is a claim to the truth value of the contents of those commitments. This is no different an assertion than that made by associative constitutionalism in its liberal formulation. For if no truth claim were asserted, then no reason would exist to demand or insist upon their replication in subsequent and similar relationships. But whereas associative constitutionalism leaves open the possibility that, in the formation of like and subsequent relationships, new or varied commitments may arise, nationalism prescinds from that potential mutability. Unlike associative constitutionalism which holds that the only means of access to truth is through the considered agreement of many different people at a single point of conjunction, the truth claims for nationalism refer not to this continuing agreement and the conditions therefor, but to the degree of replication of some external, metaphysical Archimedean point representing the collection of antecedently defined ‘national commitments’. Whether or not nationalism further qualifies its truth claim to be valid only for any one particular nation, and no other, the ontological assertion restricts any room for compromise: relativising truth entails diminishing or denying that ‘objective’ truth. Inasmuch as the essential character of the nation is given by those tenets, any variation or substitution or disappearance of them alters by definition the character of the nation. For nationalism, the source of truth and thus the adhesive power to solidarity do not originate in a particular process of personal transformation. Instead, they rely on the  Anderson, Imagined Communities (n 24) 13, 15.

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degree or extent to which individuals can manifest those ideal commitments in their behaviour. In sum, this discussion of the subjective-subjecting element of nationalism explains the central and critical role played by the second tenet to the nationalist argument, the normativity hypothesis. That is, we affirm and experience the truth in and to our exist­ ence inasmuch as we fulfil our obligations of allegiance to national values and ways of behaving. Nationalism postulates the need for an exacting replication of those defining relationships and common commitments. For the replication of cultural relationships and their outcomes serve as a guarantee of the truth. The truth is re-accessed and reaffirmed each time members of a nation relate, and in this or that particular way. To meet the demands of replicating cultural rights, the nation must create and impose rules within some defined social framework. Otherwise it cannot hope to achieve any co-­ ordination and uniformity linking the smaller, truly cultural groupings. Reconciling those among diverse groupings is the task of the institutional premise of a nation: its inherently political nature. That is, a nation must articulate its prescribed commitments and associative relationships within and through some organised social structure. We come therefore to an understanding of a nation as an institution in the sense described in chapter 2. The institutional premise to nationalism is the preservation and replication of those defining common commitments and associative obligations. The manifest structure to the institutional premise is a constitution. The institutional premise gives us the image of a nation as a political expression or concept whose organising principles project solidarity among its members. And we cannot fail to observe the co-incidence of this idea of nation with that of the equally political idea of a constitution. Indeed, the projection of solidarity (as the management of unity and diversity) is precisely a function of the constitution. Now at one level, we could triumphantly draw ‘nation’ and ‘nationalism’ into the fold of constitutional concepts, with the other political entities subject to constitutional precepts and norms. This has clear significance for a constitutional analysis of secession. It brings nationhood within the boundaries of constitutionalism, and so subjects it to constitutional law, and the rule of law more broadly. A nation, as such a political entity, may not simply ignore the rules of engagement. But this would be to overlook a far more significant conclusion at yet another level. The analysis of the ‘style’ in which a nation imagines itself, its constitutional composition, also affords the opportunity to criticise nationalism as an effective, desirable form of constitutional arrangement. The emphasis upon particular relationships, certain common commitments, upon relating to our fellow nationals in a specific way, moves from the sphere of ‘habitus’ to that of ‘ritual’. By this distinction, I want to emphasise a transposition of consciousness and conscience from how we interact with others (perform­ative mode) to what we do (an objectifying mode). Our attention moves from an attentiveness to others and our co-ordination of action at that time to an attention only to the substance of our behaviour so as to satisfy the now objectified, ritualised common commitments, irrespective of the other person and actual circumstances. The solidarity which nationhood projects is manufactured from those commitments, not from the manner in which those commitments are created, maintained or changed. Socially authentic values and beliefs do not originate in the intersubjective interaction of citizens. They co-exist as already given. And such interactions merely (or ought to) reflect those values and beliefs without the addition of the potential for change. The values and beliefs of a nation are the

220  National Theory of Secession products of an overtly political process, whose objective is to project and confirm a solidarity among fellow nationals. In effect, we lose in it the ‘other regarding perspective’ in its active sense. What becomes important is that we imagine our relations with others to reflect as closely as possible, not an authentic transformative event, but a certain form and outcome. Authenticity lies not in the original production of social meaning and significance, but in the closeness of fit with some preconceived and received result. And by virtue of that, we also encounter the inflexible hardening of constitutional processes and structures. For the constitution must guar­antee and ensure the accurate replication of those defining relationships and common commitments. The workings and structure of a constitution become restrictive and constrictive, rather than permissive and providing the basic conditions or guidelines for a range of acceptable social standards. We lose the dynamism of an authentic production of social meaning, of the continuing elasticity of and interplay between private and public interests, and receive in its place (as argued in the following chapter) a reified culture.

NATIONALISM AND POLITICS

Let me pause here to collect the various strands of the argument so far. If culture is the art of living well, politics is the art of living well together. A nation – nationalism – traverses both. A nation is a political concept formed out of a projected solidarity upon its ostensible members. Our life among and with others is marked out by series of interlocking groups whose fluctuating membership happens to be those for whom the defining commitments are of prime importance at that time. Each of those components offers its own centre of gravity for values and beliefs. These arise out of local, repeated inter­ actions with others. These localised, small-scale crucibles of value provide the space in which to grow a culture, or equally, to culture values out of an association. But ‘culture’ is too narrow a concept to cover a whole ‘nation’. The solidarity said to exist in and through a nationalist conception of society is based on an image of culture representing a part or selection of its components. To cut across those divisions, nationalism has to select and abstract from all this variety and diversity, and project its package of values back onto those individuals recognised to be part of the nation. Thus, the projection of solidarity forms the core of the nationalist concept. Solidarity exists in and through the intersubjective co-operation among fellow nationals. First, projection requires an instrumental organisation which constitutes its ‘political character’. The nation exhibits an organised structure, a hierarchy of authority. Secondly, the organising principles are the point of coalescence to form a nation. They are the national commitments and relationships which any national must internalise, practise and observe in order to demonstrate his identity as a member of that nation. Thirdly, these commitments do not arise by virtue of nationals interacting. Rather, those interactions merely affirm and evidence the antecedent existence of the commitments, as a natural state of intersubjective relations in these circumstances. National solidarity refers not to a co-operative, performative concept based on participation on equal and fair terms, but an actual union or consensus on substantive values and beliefs, on the social goods which are irreplaceable and unmissable. Ultimately, nationalism represents a political stance on where the limits to social co-operation ought to be set. Those limits trace out the boundary between different con-



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ceptions of important social goods for different societies. And because they are vital and highly valued, they determine the horizon of possibilities for nationals. Secession under nationalism is the political right to define one’s own boundaries and one’s own co-­ operation in light of national social goods and without regard to extant boundaries and co-operation (that is, the current constitution). Hence, nationalist secession claims that a political entity (nation) has the right to vary unilaterally the conditions and validity/ viability of its political relations. Considerations on Subjectivity in Nationalism By framing the concept of nation as the product of intersubjective contact, I want to expose thereby three significant features of nationhood all too often obscured by conventional approaches. Moreover, it brings an understanding of ‘nation’ neatly in line with the criteria outlined above for self-determination, and with the earlier discussion concerning associative commitments and obligations of reciprocation. The first proposition holds that a nation is simply a set of fundamentally intersubjective character traits. To be a member of a nation means to hold a series of commitments in common with others, which commitments define how we relate to other persons and things around us. What distinguishes us from other members of other nations is precisely how we deal with our surroundings and those persons around us. Thus, a nation is simply that constellation, that set, of supposedly common intersubjective character traits as given at any time and place for any particular member. And it would follow that a nation persists only insofar as those commitments are systematically and uniformly replicated in successive social interaction. Any such contact contains the possibility to alter the composition of the national character unless otherwise supervised. Moreover, because such intersubjective relationships constitute the nation, the subjective element – the imagined connection to those outside our regular sphere of contacts – can offer no real boundary condition to establish the outer limits of a nation. The instance of two people engaging each other holds the potential of revealing a similarity of commitments beyond what might customarily be considered the primitive psychological-biological border to a nation of culture and ethnicity. Likewise, even within that presumptive border, such contact might reveal so great a divergence of commitments as to undermine or prohibit any solidarityforming exercise. And even the presumptive community given by culture and ethnicity does not offer in and of itself a real guarantee of a substantive, actual solidarity of commitments. Yet nationalist secession would build the castle of its theory on the shifting sands of intersubjectively determined character traits. We can now begin to understand already much more clearly the inherent, irrepressible drive in nationalist theory to political expression and an instrumental, institutionalised conception of these defining character traits. The second proposition holds that intersubjectivity represents an epistemic condition allowing for the possibility of acquiring the relevant national framework of commitments. National commitments do not manifest themselves in us a priori at birth. We can not situate ourselves in the world and develop (common) commitments except through what we know and learn through our actual interactions with others. A process of socialisation guarantees the uptake of the necessary values, meanings and perspectives. We have no other access to the constellation of national commitments but through the process of socialisation with and among fellow nationals, specifically and importantly,

222  National Theory of Secession family and friends. Socialisation here means a repeated set of encounters and inter­ relationships with other persons in which substantially the same commitments, in nature and scope, obtain. In more simple terms, socialisation means learned patterns and habitual behaviour. A nation is, if anything, a product of nurture, not nature. As its central feature, the epistemic condition at once confirms the critical antinomy of ‘self’ and ‘others’ in matters of self-determination, whereby a consciousness defines itself in relation to and in reflection of others. Although we are determining our own identity in function of the world around us, we are influenced in that decision process by the value orientations taught to us. The question remains how we balance our own ‘internal’ freedom of decision and the ‘external’ influence of others. This is echoed by van de Putte who suggests the philosophical issue is the balancing of the tension between one view of society as ‘revolutionary nation’ and another of the ‘Romantic nation’.69 The former having a socially created meaning, gives priority to reason and freedom, and disregards natural anchor point. The latter pins humanity to particular natural, determined, historically given forms: ‘facticity, fatality, and finitude’. Whatever the answer to that question, the epistemic condition nevertheless denies the possibility of a pure and coherent uptake of the relevant national framework of commitments. Intrinsic to the epistemic condition is the absence of an immediate transference of commitments from the national repository, whatever that might be, to the individual’s consciousness, to the self. The individual orientation inherent in the epistemic condition necessarily renders untenable the possibility of a self participating directly in group-held values. We have no direct, unaltered access to pure ‘public’ ideas, ‘group norms’ or ‘shared norms’. The self necessarily mediates that uptake of social behavioural and value orientations, so that what it actually and ultimately internalises is its own conception and understanding of the substance of that commitment. This translates in less abstract terms to the proposition that everyone has their own understanding, interpretation, meaning, and so on, about things. And it follows that there exists an institutional guarantee of at least external, exterior consistency. For example, in matters of law, the courts normally fulfil that operation. Individual consciousness remains the primary touchstone for moral and ethical decisions, not the group. Moreover, and following upon this, the intrinsic coherence of a ‘nation’s identity’ claimed by nationalism theories also falters because of the individual orientation inherent in the epistemic condition. Coherence proposes that all national members by definition possess in substance the same national character traits, the value orientations, desires, interests and perspectives, all by virtue of being socialised in that particular national community. In order to achieve such coherence and solidarity in the substance of national commitments across the various members, proponents of nationalism must either impose some external means of ensuring such consistency, or postulate a means of coherence intrinsic to the intersubjective process and epistemic mediation which constitute a member’s acquisition of his national character traits. Now, it is self-evident that an external means quite clearly denies the existence of any internal coherence. It was that intrinsic, internalised solidarity claimed for national identity which was to set off nationalism from other political theories of solidarity-forming exercises, by attributing to national identity some special status apart from an open identity and solidarity possible among any number of different persons. This leaves nationalists the claim of intrinsic coherence, despite   van de Putte, ‘Democracy and Nationalism’ (n 36) 190–92.

69



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the epistemic condition in intersubjective relationships. For intersubjectivity limits us to the sum of all the associative interactions we experience, including unique, one-time-only events. All these, by dint of time and space, are rather limited to our immediate circle of friends, family and social and work contacts. And the epistemic condition not only restricts our awareness and intake of social standards and norms to that material to which we have direct access just through those limited number of interactions, but also denies the possibility of a ‘pure’ uptake, as discussed above. Nationalism purports to overcome these limitations in building a consistent ‘national identity’ accessible by all national members by projecting a select few, highly generalised, intersubjective commitments qua cultural habits as definitive of its ‘self’, and then by denying the transformative antecedents to those commitments in a reification of their (ethical) status. This brings me to the third proposition. The selection, arrangement and imposition of those intersubjective traits upon a wider group constitutes the manufacture of a solidarity characteristic of politics. The members of an ostensible nation can only ensure effective representative transmission of the necessary national identity, absent regular contact among all members, by institutionalising the update and recognition of national traits. Hence the treatment of a national culture as an ‘encompassing culture’. The political instruments of social organisation ensure a uniform representation of national culture from member to member. But the nature of solidarity has certainly changed. We have moved far from a natural, inherent sense of unity to an externally imposed one. If we trace out a concept of a nation along the lines suggested by nationalism (even to exclude at the outset the political aspect), the mere fact that a nation aspires to a wider compass and invokes a subjective element means that the concept of a nation inevitably becomes a concept of political manufacture. Its need for a common application of solidarityforming conventions does not differ from the same need experienced in a multi-national, poly-ethnic state. Indeed, nationalism offers no alternative understanding of the question of solidarity, the managing of unity and diversity. As a political concept, a ‘nation’ is commensurable to any political organisation, including a state. It can be embedded in a state, and is subject therefore to the overriding rules and conventions regulating the larger political system, namely, the constitution. It has no ‘pre-political’ existence, for its existence and existing are intrinsically political. Accordingly, where a nation claims a right of self-determination, or a distinct status within a state, or other special political rights and privileges, we are quite certainly debating constitutional law matters. Next Steps: Who’s the Boss? The references here to ‘culture’ intend not only the commonplace understanding of cultural life, made up of patterns of social relationships and behaviour, music, literature and similar pursuits, but also a structural understanding of culture, represented in its formal and institutional organs. Applying the terms developed by Margalit and Raz, and Kymlicka, we are expected here to view a national culture as an ‘encompassing culture’, whose ‘institutional completeness’ (to use Buchanan’s term) distinguishes it from other more loosely organised cultural groupings.70 A nation, unlike those other cultural 70   Margalit and Raz, ‘National Self-determination’ (n 2); Kymlicka, Multicultural Citizenship (n 2) and Liberalism, Culture, and Community (n 2) (‘societal cultures’); and A Buchanan, ‘What’s So Special About Nations?’ in J Couture, K Nielsen and M Seymour, Rethinking Nationalism (Calgary, Calgary UP, 1998) 283,

224  National Theory of Secession groupings, has the organisation and capacity to exercise independent political force.71 This distinction, critical to an understanding of nation and nationalism, points to the foremost objective of nationalism theory, that of securing political power for a particular group of individuals calling themselves a ‘nation’. It is a decided preference of most who advocate some concept of nationhood to begin with a differentiation between ‘nations’ and ‘nationalism’.72 Nations are the pre-­political instantiations of a cultural identity.73 They exist as such. Nationalism, on the other hand, represents the political instantiation of that collectivity, by which we are to understand the organisation of that collectivity into a political group, such as a state, the administration of the community’s life, the government of individuals, and the exercise of force on behalf of the community (to catch all possible facets of ‘political’). To borrow the phrasing of Hobsbawm and Gellner, nationalism urges the contiguity of a nation’s boundaries with those of a state.74 Hence, by this differentiation, the concept of a nation may rest in comfortable isolation from the more turbulent disputations over political claims. For those arguing in favour of a gentler, more digestible version of nationalism, this permits some theoretical distance and insulation from those all too common extreme examples and tragic instantiations of nationalistic behaviour. It is also reflected in the distinctions between ‘civic nations/nationalism’, ‘cultural nations/nationalism’ and ‘ethnic nations/nationalism’, the last being the pariah of the lot. Moreover, any problems signalled against particular forms of nationalism need not undermine nor challenge an admission at the outset that nations do indeed exist. But the underlying intention, or at least the result, speaks less to some strategy to compartmentalise disputes over conceptions of nationalism, and more against a separate concept of nationalism itself. By virtue of the distinction between nation and nationalism, a nation effortlessly becomes conceptually antecedent to its particular political instantiation. The kernel of all political power resides therefore in the nation. To put this in more customary terms, the nation is sovereign and accordingly, is the source of all legitimate state power. The nation, by exercise of its collective will (or howsoever we may wish to express the process) chooses from time to time to express itself in some given political form, and accordingly reserves to itself the right to alter or revoke that instantiation consistent with its position as the source of all political power. Our accept­ ance of the existence of a nation obliges us expressly or implicitly to accept that political power already exists, at least in inchoate form, in the national collectivity and does not come about through the separate, subsequent transformative event of unattached indi-

288–89. See also Tamir, Liberal Nationalism (n 4) 19 ff (on the sociability and the need for social terms of reference for humans), 65 ff (people, family, tribe); Miller, On Nationality (n 2) 22 ff. As to other cultural groupings, see, eg Kymlicka, Multicultural Citizenship (n 2) (immigrants); L Bishai, ‘Altered States: Secession and the Problems of Liberal Theory’ in P Lehning (ed), Theories of Secession (London, Routledge, 1998) 92 (dispersed minorities); and T Musgrave, Self-determination and National Minorities (Oxford, Oxford UP, 1997) (‘peoples’, ‘minorities’). 71   See Tierney, National Pluralism (n 2). 72   See, eg Tamir, ‘Theoretical Difficulties’ (n 2); Ware, ‘Nations and Social Complexity’ (n 39); and De Wachter, ‘In Search of’ (n 36). Yet see M Seymour, J Couture and K Nielsen, ‘Questioning the Ethnic/Civic Dichotomy’ in J Couture, K Nielsen and M Seymour, Rethinking Nationalism (Calgary, Calgary UP, 1998) 1; and D Schnapper, ‘Beyond the Opposition: Civic Nation versus Ethnic Nation’ in ibid 219. 73   See, eg Ware, ‘Nations and Social Complexity’ (n 39) 135–36; De Wachter, ‘In Search of’ (n 36) 198–201, and Goodin, ‘Conventions’ (n 13). 74  Hobsbawm, Nations and Nationalism (n 24) 5–10, 189–92; Gellner, Nations and Nationalism (n 32) 1–2.



Nationalism and Politics 225

viduals interacting in the private sphere.75 The shared identity which exists by virtue of our membership in a collective community provides us with a representative political identity. Political identity is thus a transferred identity, not a transformative one as postulated by (principally) liberal theory, where individuals with diverse interests compromise and agree so as to transform themselves into a cohesive group. Nationalism is thereby reduced to a merely descriptive term referring to the attribute of political expression in a nation. We do not obtain a clear view of the relationship between nation, culture and the source of political power and the solidarity of the citizenry. Unless we are content merely to presuppose, ignore or bury the issue in this manner, we are forced back to a consideration of the elements in the concept of a nation, and the reasons given for its supposed solidarity and homogeneity. That examination of the normative authority of national commitments is the task of the following chapter.

75   De Wachter, ‘In Search of’ (n 36) 198–201, 209–10, 216–17 (framing the ‘philosophical problem’ in the concept of a nation-state as an uncertain or unspecified relation between the pre-political cohesive nation, and the political, cohesive state, and arguing that nationalism is in fact a modern form of (supplemental but necessary) political cohesion); Barnard, Self-Direction (n 46) 48 (communal traits and sentiments may affirm or reinforce civic relations, but they do not define them (Rousseau); nor do civic relations derive from communal relations).

7 Nationalism and Association

T

HE PREVIOUS CHAPTER argued that a nation properly considered is a political entity and does not stand as a ‘pre-political’ one. This political essence of a nation, one grounding the descriptive claim to nationalist-based secession, leads naturally to its administrative and legislative character. Organisation implies regulation, through consistency, certainty, coherence. Hence, the conclusion that a nation is an organised political entity implies that it has a normative character, that it makes normative demands, imposes obligations on is members. Accordingly, a nation is a creation of, and subject to, constitutional precepts as is any other state. A nation does not transcend or stand outside matters of constitutional principle. And so, when it claims a right to secede, we are rightly able to consider its claim as a question of constitutional law, albeit one more politically highly charged than any other. The critical concept leading to this conclusion was the projection of cultural solidarity, referring to the unity, cohesion and allegiance exhibited by members of the nation. In particular, cultural solidarity among a group of persons constituted the necessary and sufficient condition for establishing a ‘nation’. The recurring intersubjective contacts between inhabitants of a particular territory would generate certain expectations and commonalities among them, relating to their living together and their personal goals and satisfaction. And one generation would pass on these common elements to the other. In order to maintain this homogeneity of commitments across the generations, and across more than a peculiar, limited habitat and limited set of actually recurring interactions, certain social organisations (institutions, by any other word) had to come into existence. A homogeneity and continuity expected of a (natural) nation required an institutional basis for the successful self-­ replication of its defining associative commitments. And that essential institutional character produced the fundamental political character to a nation. Positing this inherently political nature and institutional character of a nation does not, of course, prove or disprove the validity or legitimacy of the national model to secession. To be considered still is the further premise to the nationalist argument that the values and obligations to a nation deserve a priority over other common commitments and associative obligations. Indeed, insofar as the political situation of nationals compel them to co-operate and relate to non-nationals on a regular basis, as in a multicultural, poly-ethnic state, the associative obligations and their underlying commitments are secondary or dependent upon nationalist ideals. As such, if these latter values and relations impinge upon, threaten or otherwise attempt to vary nationalist commitments, a nation is justified in seeking to separate itself from non-members because of that priority. Thus, nationalist secession, even conceding the political origins of a nation, relies upon the antecedent premise of the priority and protection of national commitments. What is the viability of this claim as a constitutional proposition?



Nation and Identity 227 NATION AND IDENTITY

Protection of Identity What had initially prompted examining more deeply the idea and nature of a nation was the claim of the nationalist model that a nation holds a right to secede just because it is a nation. In other words, the right inheres in the rights-holder because of what it is. Accordingly, the substance of any given right would depend upon what we understood to be the nature and character of that particular rights-holder. This concept of rights was to be contrasted with one which grounded the content of any given right in the nature of the relationship between the parties. I drew from this distinction a further division between ‘morally dependent’ and ‘morally independent’ grounds. Anchoring the concept of rights in the identity of the rights-holder assumed an antecedent set of norms and standards, a prior moral foundation upon which the ascription and content of rights depended. Such rights were thus ‘morally dependent’. On the other hand, taking the relationship as the starting point implicated an equality between the parties and thus originated its own moral framework out of their interaction. The analysis and reconstruction of the idea of a nation in the previous chapter thus invites a reassessment of the claim of the nationalist model in light of a nation being a constellation of interpersonal relationships comprising a culture. It would follow from that reading of a nation that its right to secede, held in virtue of its being a nation, should be understood to derive from, or depend on, protecting and maintaining the rights of its nationals.1 Those rights entail specifically engaging with one another in the ways they have customarily done over their lifetimes. The right to secede is derivative upon the right of the members of the nation to interact in that way specific to nationals. For a nation to secede means quite simply that the nationals seek a political space in which to carry on their lives as nationals, free from what they perceive to be foreign or external interference. The ‘national character’ or ‘national identity’ is to be found in those two features. That is what gives them value and significance. Conversely, it makes their contamination or loss intolerable and undesired. Nationalist secession strives to insulate the particular relationships and their specific outcomes. So nationalist secession is defensible inasmuch as, and insofar as, it protects national culture. That justification in turn relies upon a conception of society and human life in which value and importance reside in participating in a particular nation. Membership in a particular national culture is a fundamental value.2 Looking at the situation practically, our daily life sees us engage on a regular basis with certain other individuals. We interact with our family, in the narrow sense of partner and children, and in the wider sense of parents, in-laws and relatives. Then there is our set of friends. Beyond that we engage with others in a professional or business situation. We can also include our church, and sports and other hobby affiliations. All 1  D Miller, On Nationality (Oxford, Oxford, Oxford UP, 1993) 109–13; Y Tamir, Liberal Nationalism (Princeton (NJ), Princeton UP, 1993) 72–77. 2   See generally, W Kymlicka, Multicultural Citizenship (Oxford, Oxford UP, 1995); R Poole, Nation and Identity (London, Routledge, 1999); and A van de Putte, ‘Democracy and Nationalism’ in J Couture, K Nielsen and M Seymour (eds), Rethinking Nationalism (Calgary, Calgary UP, 1998) 161; and F De Wachter, ‘In Search of a Post-National Identity: Who are my People?’ in ibid 197.

228  Nationalism and Association this creates a picture of multiple, interlocking and overlapping associational relationships, each having its own focus and orientation. To borrow Zijderveld’s phrase, we live in a ‘decentred and borderless world’.3 Thus, a series of flexible networks is created rather than a single solar system of values around which gravitate all our particular attachments. If we accept that an identity arises out of certain constitutive relationships with specific individuals, we might describe our national identity as the sum of all these more specific identity-forming attachments.4 But overlapping identities, of course, do not guarantee us the single, consistent and coherent package of associative commitments and associative relationships which we assume define a ‘national identity’. Nationalist secession, protecting as it does a given national culture, obviously implies that one particular set of commitments obtains an overriding importance. That set defines the ‘national culture’, in its entirety. But if our identity as a whole consists of, by admission, a series of overlapping allegiances and identities, what makes one part or set take on a controlling influence? There exist two possibilities. First, a particular identity set is made relevant and determinative because of discrimination or oppression. Because our identity sets are interlocking, a threat to one undermines the others, and in turn undermines our identity as a whole. Hence the protection of that one set becomes critical and urgent. If we sense our identity as an aboriginal Québecker is threatened by illiberal, oppressive measures, then we may more easily coalesce into a group linked by those particular traits for protection. Honneth, for example, argues that we generalise instances of individual disrespect (lack of recognition as being worthy of esteem) into the disrespect or lack of recognition for a particular identity group, and as such this motivates collective action of resistance.5 (Implicit herein is the assumption that the reformed group will be more attentive and provide the needed recognition.) Needless to say, this puts us squarely within the remedial rights theory, where secession serves to remedy continuing oppression. It is most certainly not the primary right urged by nationalist theory. So to give effect to nationalist aspirations, we must turn to the second possibility where one value set is simply made important for the sake of creating a group. That is, a particular collection of values, beliefs, ideas and other attributes, a particular orientation to others and the world, represent the defining kernel to who and what we are. These core associative commitments guide and control us in all that we do, think, believe, imagine, and so on, or so we are led to believe. These form our national identity. The practice of these associative relationships and associative commitments can only occur fruitfully among fellow nationals, for it is only by interacting with them that we can project, affirm and revitalise these values and beliefs. And because our identity depends upon a vital and active set of national commitments sitting at the core of who and what we are, our well-being as individuals (as nationals), we need to ensure a space wherein we can realise upon our nationalist commitments and relations, protected and insulated from other ideas and beliefs which could undermine or diminish the former.6   A Zijderveld, The Institutional Imperative (Amsterdam, Amsterdam UP, 2000) 20–21.   See, eg J Waldron, ‘Minority Cultures and the Cosmopolitan Alternative’ (1992) 25 U Michigan JLR 751; Poole, Nation and Identity (n 2); B Walker, ‘Modernity and Cultural Vulnerability: Should Ethnicity be Privileged?’ in R Beiner (ed), Theorising Nationalism (New York, SUNY Press, 1999) 141; and G Lachappelle, ‘L’américanité du Québec ou l’émergence d’une identité supranationale’ in M Seymour (ed), Nationalité, Citoyenneté, et Solidarité (Montreal, Liber, 1999) 97. 5   A Honneth, The Struggle for Recognition (J Anderson (trans) Cambridge, Polity, 1995) 162–63. 6   S Caney, ‘Self-Government and Secession: the Case for Nations’ (1997) 5 J Pol Phil 351, 361 ff; C Taylor, ‘Why Do Nations Have to Become States?’ in his Reconciling the Solitudes (Kingston, McGill-Queen’s UP, 1993) 40, 53. 3 4



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To affix such importance to just the one set amidst all those other overlapping identities means that the political character of a nation serves to project those national commitments and national relations on the current membership (and will ensure the continuing projection on future members). For it is only by virtue of those national commitments that we have a defining, national, identity. Projecting those attributes ensures the solidarity of the nation by confirming them as the standards by which others are to be recognised and by which our desires, interests and actions are to be measured.7 The solidarity which springs from our allegiance to fellow nationals and national identity is one which is imposed upon us, admittedly by the contingencies of birth and upbringing.8 It is because the solidarity is projected upon us, transmitted to us from ‘outside’, from a point external to us, that we develop the sense of a national culture as being preordained, a permanent and necessary feature that is peculiar to our situation and life. We do not develop these values and beliefs spontaneously: they are passed down to us. And that perception of national relationships and obligations as above and external to us characterises their normative status and informs their normative priority. The nation is the summum bonum: the normative ‘other-regarding’ perspective is here replaced with the ‘nation-regarding’ perspective. Priority of National Identity: Enforcing the Boundaries The second tenet of nationalism draws an ‘ought’ from an ‘is’. It moves seamlessly, it would appear, from the descriptive claim of a nation’s existence to a normative claim of the national identity’s priority over other individual collective ones, of the nation’s priority over individual members. Inasmuch as a nation represents the projection of a pre-ordained solidarity of commitments among a number of individuals, those commitments – the very connectors among members – must take precedence over any other conflicting ones.9 Absent this precedence to the national ideal, the nation would be at real risk of dissolution, for it follows clearly that any alteration to or substitution of the very constitutive stuff of a nation itself must necessarily alter the character and face of that nation. Allowing for such easy mutability and dynamism in the national character would contradict, or at least undermine, the stability, permanence and solidarity present by definition in the concept of ‘nation’. National commitments must accordingly stand apart from those ordinary, variable commitments we form on a day-to-day basis. Moreover, those national standards must control or inhere in our day-to-day choices in function of the character-forming solidarity and stability they claim to offer. Hence, the existence of a nation entails the primacy of national ideals of how a given life should be led over any others. National commitments have thus an ethical priority. By ‘ethical priority’, I mean that an individual’s commitments must conform to and follow those of the nation. That is, members of the national community will assess and 7   ‘Recognition’ per Honneth, Struggle for Recognition (n 5); and C Taylor, ‘The Politics of Recognition’ in A Gutmann (ed), Multiculturalism: Examining the Politics of Recognition (Princeton (NJ), Princeton UP, 1994) 25 and his ‘Nationalism and Modernity’ in R McKim and J McMahan (eds), The Morality of Nationalism (Oxford, Oxford UP, 1997) 31 (‘dignity’). 8  Poole, Nation and Identity (n 2) 73. 9   J Levy, The Multiculturalism of Fear (Oxford, Oxford UP, 2000) 71–76, 81; Poole, Nation and Identity (n 2) 35, 53–55; Tamir, Liberal Nationalism (n 1) 50 (disintegration of national identity and the proliferation of ‘private cultures’). See also S Tierney, Constitutional Law and National Pluralism (Oxford, Oxford UP, 2007).

230  Nationalism and Association evaluate an individual’s conduct on the basis of how closely and successfully he can model his behaviour and character on the national ideal. In a certain sense we are all nationalists. We consciously or unconsciously give priority to the commitments of our nation-state over those of any other organisation. That is, our natural and instinctive fidelity is to the state of which we are citizens.10 Our citizenship marks out our membership in the state, and it is a condition of our continuing membership in that political association that we observe the commitments of that group. We evidence our allegiance by obeying the norms and laws of our state, by accepting and participating in its polit­ ical system, and by perhaps feeling a sense of pride or shame at the successes or failures of fellow citizens. Lawyers in particular are nationalists in this sense, for we would generally apply national law exclusively of, or in preference to, any other system of law, and we tend to be quite critical of the rules, practices and policies in other systems. Adherence to and obedience to the norms, conventions, laws and rules of a group evidence a priority accorded to group commitments over all others. It is a condition for membership in any group, however large or small. It hardly requires argument that, but for our fidelity to those group commitments, the group itself would not exist. An association is defined by and comes into existence in virtue of those commitments which its ostensible members share. That is just what binds people together and establishes the condition of membership. Although it smacks of tautology, an association relies on the continuing existence of that which brings us together as such, namely the common associative commitments. Group members must set the commitments of the group above any others (insofar as the latter may conflict with the former). Inasmuch as a nation as an association exists, national commitments must take priority over all others. This priority comprises two aspects. The first tracks what we might ordinarily characterise as fidelity to the group. The second, however, objectifies group solidarity and inverts the fidelity relationship into one between self and those facts of solidarity. On the first, ‘group fidelity’ arm to priority, the mere fact of membership in a group and the consequent adherence to the group standards naturally entail a certain degree of precedence of group commitments over individual ones. The solidarity we experience in a group setting arises from the coherence and consistency in members’ conduct achieved through co-ordinating our own personal commitments with those of the other members, of the group at large. Ordinarily prescribed community norms stand as a common reference point to evaluate any member’s conduct. They provide the basis upon which we may sanction a fellow member whose desires and choices conflict with or deviate from those community standards, and compel him to conform. We need look no further for easy examples than to the law. As a general rule, the commitments embodied in law have priority over an individual’s given circumstances of irreconcilable conflict. A member of a legal community is not free to do as he wishes, but must conform to at least some enforced minimum standard of socially-prescribed behaviour as articulated in law. But the ethical priority indicative of nationalism goes well beyond a mere expectation of some coherence of commitments among community members in virtue of their membership. The descriptive criterion ties the existence of our identity, that which we are, to our cultural situation. We have an identity in virtue of our membership in a culture, delineated by the norms, projects, and the like comprising that culture. Those commit10   B Yack, ‘The Myth of the Civic Nation’ in R Beiner, Theorising Nationalism (New York, SUNY Press, 1999) 103 (in contrast to previous eras, matters of identity combined into political allegiance).



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ments define who we are because they determine how we evaluate the world, and how we are likewise assessed by it. Culture settles an ethical framework on an individual, by virtue of a particular member’s birth and socialisation in it. Nature and nurture merge. Hence, our ethical stance sets not just one foot in our relationship to society, individuals, around us (the associative co-ordination of activity), but sets a necessary second foot in our cultural inheritance (the source of value orientations and action-plans). And so the ethical priority at issue here is the existence of such an ethical framework as an antecedent given, beyond the immediate capacity of members to control its content and development through their associative relationships. These become instead articulations or reflections of a prior existing ideal, rather than the actual creative instance of public value formation. Such ethical priority is characteristic of all forms of nationalism. What differs is simply the primary ethical constructs taken as definitive of the national character. For example, to use the four categories of nationalism developed above, we can say that ethnic or cultural nationalism relies upon the dominant cultural model as the necessary ethical ground.11 Political versions of nationalism will depend on constellations of civil and political rights.12 Economic nationalism offers its own ethical conception of what is necessary to achieve and maintain the good life.13 And the ideological forms of nationalism present easy examples. Intuitively, there exist three general reasons justifying why we give priority to group commitments. First, we may be compelled, or feel compelled, to adhere to the group’s prescriptions instead of our own desires and interests. Here, compulsion refers to any coercive force, rather than any conjunction of a free-standing desire or interest on our part to do what is demanded of us. Life in a police-state or under a totalitarian regime represent easy examples. But we experience just this sort of compulsion in less traumatic circumstances when we travel to a foreign land and do business there, drive there or undertake any other type of mere rule-following behaviour. Of course, we are acting on a very personal interest or desire to avoid the unpleasant consequences of standing out, of causing a disturbance. But our co-operation does not rely on a necessary, genuine belief in and valuing of the substance of our obligation. That does not form a part of our set of personal commitments. We might say that we have an ‘external point of view’ only, and lack an ‘internal point of view’. Secondly, our unquestioning allegiance to group commitments may be the unreflective product of training. Conditioning or acculturation impresses upon the mind a certain intellectual perspective and framework by which it perceives and interprets the world around it. Part of the conditioning includes reposing confidence in those who affix these 11  See, eg P Gilbert, The Philosophy of Nationalism (Boulder (Colo), Westview, 1998); Tamir, Liberal Nationalism (n 1); A Margalit and J Raz, ‘National Self–Determination’ (1990) 87 J Phil 439; K Nielsen, ‘Liberal Nationalism and Secession’ in M Moore (ed), National Self-Determination and Secession (Oxford, Oxford UP, 1998) 103 and his ‘Cultural Nationalism: Neither Ethnic nor Civic’ in R Beiner, Theorising Nationalism (New York, SUNY Press, 1999) 119; and C Gans, ‘The Liberal Foundations of Cultural Nationalism’ (2000) Can J Phil 441. 12  See, eg J Breuilly, Nationalism and the State, 2nd edn (Manchester, Manchester UP, 2001); Gilbert, Nationalism (n 11); and Poole, Nation and Identity (n 2) 13   On the ‘Gellner thesis’ see, eg E Gellner, Nations and Nationalism (Oxford, Blackwell, 1983) and his Culture, Identity, and Politics (Cambridge, Cambridge UP, 1987); J Hall (ed), The State of the Nation (Cambridge, Cambridge UP, 1998) esp R Szporluk, ‘Thoughts about Change’ in ibid 23; B O’Leary, ‘Ernest Gellner’s Diagnoses of Nationalism’ in ibid 40; and N Mouzelis, ‘Ernest Gellner’s Theory of Nationalism’ in ibid 158. See also Poole, Nation and Identity (n 2) 18 ff.

232  Nationalism and Association frameworks in us, such as parents, teachers, friends, and in those who administer them, such as the courts, and political and religious officials. Naturally, these paradigms of values and meanings must also themselves engender some confidence in their contents, for as history shows, nothing short of naked force would ensure the primacy of those commitments over others. Developing such frameworks requires a measure of knowledge, daring and concentration which most of us do not possess. Not only must we challenge the validity and credibility of the orthodoxy, but we must also therefore challenge the validity and credibility of those institutions and officials who promulgate the orthodox views. The costs in effort and time of reconditioning ourselves are thus prohibitive.14 It is easier simply to do as we were taught, and be a team player, not to rock the boat. After all, we are creatures of habit. Here, we might speak of the group’s commitments being mapped onto ours, of them being superimposed on or transferred to us. Accordingly, unlike the first category, an ‘internal point of view’ does exist. Lastly, the priority we accord group commitments may reflect a genuine conjunction of interest with the group, whereby our commitments coincide with those of the group.15 We share with other members certain common commitments, which community of interest binds us together in the group. (When we apply this to the level of cultural groups and nations in particular, this category assumes that we came to acquire those commitments outside of those ‘encompassing’ groups.) That set of group commitments then is very much our own set, and when we favour them, we are in effect pursuing our own commitments. The success or failure in achieving the group’s desired ends reflects on our own success and failure; likewise, a success or failure of a fellow member reflects on us and the group. We experience this as a sense of pride or shame, as the case may be.16 Thus actively associating with others implicates its own motive for conferring priority on group commitments. Moreover, the durability of common values and beliefs, and the simple fact that members all adhere to them, underscores our sense of self-value by participating fully in a truth, of holding onto an actual thread in the fabric of reality.17 Conversely, being ostracised or excluded from a group, or suffering discrimination, can undermine our sense of being worthy enough to reveal and share in such a truth. Even being accused of deviating from group prescriptions may have a similar effect. In less lyric terms, by seeking out or affirming membership in (cultural, political) associations we would be identified as possessing certain qualities and observing certain norms and conventions, which in turn define us in the form of an identity. Membership gives us an identity, a place in the world. Allegiance and obedience to the group’s commitments stands as evidence of our having such an identity or such a place in the world consistent with our interest and desire. In this third category, we speak of moving from a passive 14   J Glover, ‘Nations Identity and Conflict’ in R McKim and J McMahan, The Morality of Nationalism (Oxford, Oxford UP, 1997) 11; and R Goodin, ‘Conventions and Conversions or, Why is Nationalism Sometimes So Nasty?’ in ibid 88, 90 ff. 15   See, eg D Philpott, ‘Self-Determination in Practice’ in M Moore (ed), National Self–Determination and Secession (Oxford, Oxford UP, 1998) 79 and his ‘In Defense of Self-Determination’ (1995) 105 Ethics 352; D Copp, ‘Democracy and Communal Self-Determination’ in R McKim and J McMahan, The Morality of Nationalism (Oxford, Oxford UP, 1997) 277; and D Miller, ‘Secession and the Principle of Nationality’ in M Moore (ed), National Self-Determination and Secession (Oxford, Oxford UP, 1998) 62. 16  C Taylor, ‘Cross Purposes: the Liberal–Communitarian Debate’ in his Philosophical Arguments (Cambridge, (Mass), Harvard UP, 1997) 181; and Poole, Nation and Identity (n 2) 71. 17   Thus Gans, ‘Liberal Foundations’ (n 11). Perhaps an explanation of the Dreyfus case which Yack, ‘Myth’ (n 10) 112–14 finds puzzling: Dreyfus remained loyal to ‘France’ despite enduring frightful indignities because of his identity.



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internal point of view, as in the unreflective situation, to an active one of the sort contemplated in classic liberalism and the primary right theories of secession under the rubric of ‘consent’. What underlies this tripartite categorisation of priority is a conception of how the self relates to a group. Our connection to an association, in short the nature of our associating, requires us to compare and assess our set of commitments with those published by the group. Specifically, we must consider our fit into a group, by determining the integration of group commitments with our own. The above categorisation represents, in descending order, greater degrees of integration, degrees of tighter ‘fit’ with the group. The more the group reflects what we consider valuable, the closer our bonds of association. But all this nonetheless presumes a separation of ‘self’ from ‘group’ or ‘membership’. We remain able to distinguish in ourselves what originates from us as rational autonomous individuals, and what comes from being a member in a group. Only on this basis can we perform the evaluation of how we fit into the group, of how closely we are integrated in the group. Even the unreflective instance contains a moment of evaluation, albeit one abridged of course by the reflex of conditioning. There remains necessarily a conceptual distance between the authentic self and the self qua member in order to allow for the existence of a relating between self and group. So to speak of ‘priority’ assumes a differentiation exists or may exist between those commitments originating from a member, and those originating out of an association. Nationalism argues that members of a nation always prefer, or can do no other than prefer, their own values, meanings, conventions and norms. Whenever a national considers what he wants to achieve in life at that moment and how, he will choose the course of action determined under his own cultural precepts, and not those of his own devising (were that possible) or those of some other culture. But by virtue of the conceptual distance between self and membership, we must be able to distinguish between what we want and desire, and what the nation or other association demands of us. If a member of an association, such as a national, prefers the norms, conventions and values of his nation over all others, logically he must be able to choose between two or more desirable but competing alternatives. The differentiation occasioned by the concept of priority necessarily entails the possibility of a real choice. The choosing excludes or discards all options but the one chosen. To prefer one option over another inevitably attributes a higher value to that choice, and diminishes the others. The selected course of action stands as a precedent. Thus, there exists a commensurability between the various options, and some means to organise, compare and evaluate them. Because nationalism, by its essential characteristic of solidarity, holds that nationals are compelled or directed to choose national commitments over others, nationalism must therefore treat its national commitments by consequence as norms. Priority implies normativity. The choice of one option over another – the act of preferring – reflects its normative character. A concept or idea cannot, however, constitute a norm (be it in the guise of rule, law, convention, norm, or such like) unless it stands in potential or actual opposition to our immediate interest and will. A conjunction of interest and will with a norm simply does not allow us the means to distinguish between the two. When we do as our nature dictates, we can hardly speak of ‘following norms’ or ‘normative behaviour’ in anything but trivial, unhelpful terms. Likewise, when we act on impulse or out of desire, our behaviour does not observe or deviate from any norm. It is only when we perceive an inconsistency or conflict between own commitments and those of the group that we

234  Nationalism and Association experience a group norm and its intrinsic priority. For only in such circumstances does the norm expose its essential characteristic of being compelling, of obligating certain conduct. The same stands for law: an identical conjunction of interest and legally prescribed conduct does not confer on the former any ‘legality’ in and of itself. Only where the driver chose at the dead of night on a deserted street to stop at the red light rather than ignore it does his conduct merit the description of ‘normative’. Referring to the conceptual distance where the unattached self seeks to fit itself into a group, the normative character of national commitments requires the self to choose them over any others and integrate them into the set of personal commitments held by the self. We cannot speak of a preference among commitments unless we are able to measure the one against the other and unless the one may displace the other. We have to arrange and organise our own set of commitments with those claiming priority in and through group membership. The precise means by which we undertake this is not relevant for present purposes. Let me simply describe the process as one of ‘internalisation’, which means the comprehensive intellectual process of understanding, interpretation, analysis, evaluation, and lastly, judgement. Thus, in recognising priority, the choosing self is internalising commitments fashioned outside itself. Even where, as in nationalism, the claim is one of a contiguity between personal commitments and those of the group, the normative features of the latter retain their external characteristics so as to require their internalisation by a choosing self. We may be reminded here of Renan’s remark of a nation being a ‘daily plebiscite’ where each day brings fresh opportunity to affirm or reject the associative commitments of the nation.18 The ‘internal point of view’ represents no static condition or attribute. Instead, it refers to the process of internalising ideas, of making values, meanings and rules one’s own. It is a matter of transforming a self. Obeying norms, rules and laws is very much an active deed, not a passive one. To pursue this idea of a transforming process somewhat further, let us reconsider the role of the group in light of the observations on the normative character of group commitments. A group or association is simply an arrangement of members and commitments where members’ interactions obtain on the basis of, and in the expectation of, published group norms, conventions, rules, and such like. In order to function as such then, group norms have ethical priority. An association is therefore a system of action co-ordination serving as a normative framework. Hence, the role of the group is to fund a public space in which the transformative process may occur, allowing the individual to confirm his relationship to the group by adopting and adhering to the group’s prescriptions. The ‘public space’ refers not to private contemplation but to the ‘real world’ where we interact and communicate with others, where our actions are judged and responded to, and thus where we evidence our allegiance and fidelity to the group in how we behave with others.19 Not surprisingly, this concept of a transforming process impels a rapid connection to the idea of identity formation. For in our choosing to interact and co-ordinate our behaviour according to certain norms, this internalisation of commitments clearly defines who we are in what we do and believe. Nationalism may, at this juncture, object to what it would undoubtedly characterise as an overly broad and unnuanced picture of identity formation based on deciding to join a nation or not. Such a picture suggests that a person may spontaneously generate   E Renan, ‘Qu’est ce qu’une nation?’ in his Oeuvres Complètes (Paris, Calmann–Levy, 1947–61) vol 1, 887.   Echoing, but not adopting, eg H Pitkin, ‘Justice: On Relating Private and Public’ (1981) 9 Pol Theory 327; and H Arendt, The Human Condition (Chicago (Ill), Chicago UP, 1989). 18 19



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interests, desires, projects, values, and such like, without some social context, some cultural background. And, so continues the objection, the differentiation between individual and group commitments and the attribution of priority may misrepresent the actual normative import of nationalist commitments. Because national norms are already embedded in a person’s evaluative framework, the ideas of a transforming process and of ‘fit’ may better apply to associations occurring within a nation or culture, but not to a matter of belonging to a nation itself.20 The transformation process may occur, but within an already formed group framework. The public space represents the limiting or boundary conditions to what transformation the attached self may undergo. Any ‘transforming event’ occurs within a public space, and not outside of it. This confirms the further assertion that a nation is a primordial, and certainly ‘pre-political’ entity. If there is a question of priority, it is one of relating options based on frameworks external to that sanctioned by a nation. Every person, whether they realise it or not, belongs to a nation. All choices and beliefs reflect a cultural qua national basis. In instances where a national encounters a different value framework in his interactions with others, the individual will prefer his own culturally-situated one, whether intentionally or not, in understanding and evaluating the foreign framework. Preferences can only arise on the grounds of what we know, understand and value. Even if we adopt new and fresh commitments as a result of our interactions with other cultures, those commitments will have been modified to suit and fit our cultural framework. Priority as a preferring is a directed choice, since we cannot escape our cultural situation. Thus, priority under nationalism ought to be conceived as an ontological concept addressing our intellectual make-up rather than an exercise in splitting hairs over ethical concepts. Nationalism can thus acknowledge priority more as an active claim, rather than a concession. Nationalism holds that an individual’s entire context of significances and understanding is fashioned from a particular social and cultural crucible. Accordingly, the tensions and conflicts engendered in daily life with fellow nationals are in fact already accounted for in that cultural framework. The cohesion and consistency claimed by a nation from its members obtains at a more general level, one which allows for the possibility of conflicting interpretations and articulations. Some might suggest such terms as ‘opentextured’ or ‘thin, not thick’ concepts.21 It would be an unrealistic assertion to attach a high degree of particularity to national commitments, especially given the very real existence of courts, politically active cultural communities, purges, and cultural unity and cultural purity movements. If nationalism demanded perfect homogeneity, these counter-examples should not exist. So national solidarity does not necessarily require full consistency within its cultural framework, provided the differing articulations remain within the bounds of the general, open-textured commitments. As a result, there can be no real possibility of a conflict between national-cultural norms and individually held ones. If we accept the national objection, we ought to distinguish two types of priority claim, one applying to the boundary conditions establishing a nation, and the other applying within national borders to the particular instantiations of those concepts.   Yack, ‘Myth’ (n 10) 107 ff (criticising Habermas).   See, eg Tierney, National Pluralism (n 9) 64. See generally, J Rawls, Theory of Justice (Cambridge (Mass), Harvard UP, 1971); B Williams, Ethics and the Limits of Philosophy (Cambridge, (Mass), Harvard UP, 1985) 127 ff, 140 ff; and M Walzer, Thick and Thin: Moral Argument at Home and Abroad (Notre Dame, Notre Dame UP, 1994). 20 21

236  Nationalism and Association Thus, Tamir, like other liberal nationalists, argues that liberal nationalism is pluralistic and accommodating of other nations and of non-conformism, in an attempt to char­ acterise nationalism as a form of ‘patriotism’ to a particular group rather than to a constitutional order.22 In fact constitutional law provides an excellent analogy. A constitution represents the set of boundary commitments defining the state. Within the ambit of the text and conventions, certain more particular interpretations on rights, constitutional practices and rules, and institutional organisation will arise and compete for precedential status. In other words, our abiding attachment (conscious or not, chosen or not) to these ideals represents a type of ‘constitutional patriotism’.23 The difference between constitutional law and nationalism, of course, is simply that we cannot choose the boundary conditions of our nation. Accepting open-textured values, beliefs, meanings, and so on, as claimed by nationalism should lead us to question just how generally they ought to be stated. For it would follow from our distinction between boundary or fundamental conditions and their derivative or operational instantiations that the former have a greater generality and higher priority so as to serve effectively as controlling norms. We encounter here a problem. What is it that distinguishes one nation from another? Surely it is the differing articulations of the defining associative commitments. But where those articulations remain expressed generally at the boundary level, we have no real principled grounds to distinguish between nationals. For example, assume that Texas, Flanders and Québec are nations. If we are to distinguish them as nations, we need something more than their being liberal democratic communities. Excluding language, there are few if any significant differences at a general level. We need the particularity found in the actual practices of those values, demonstrating their differing approaches to intersubjective relations. And we would also need to establish the replication of those practices, in satisfaction of the solidarity requirement. Absent these detailed differences, nationhood is truly an empty claim. Contrary to the nationalist objection, we do need ‘thick concepts’ as boundary conditions. Identity and Transformation The public space formed by any grouping, any association, represents a transfer point for ideals, beliefs, values, examples, and so on. By engaging one another and interacting with one another, we create, adopt, project and enforce the common commitments which contribute the binding links forming us into just that association. From that process of interaction, therefore, not only do the concrete results of associative commitments and relationships derive, but also a sense of self by virtue of participating in the process. Our identity originated in the equilibrium established between participating in the value creation process, on the one hand, and the values actually created, on the other. That process of exchange required mutual and reciprocal recognition of the participants as persons whose ideas and arguments could and did count as much in the debate and  Tamir, Liberal Nationalism (n 1) 51 and 78 ff. And see also Tierney, National Pluralism (n 9) 36, 48, 58–67.   J Habermas, Between Facts and Norms (W Rehg (trans), Cambridge, Polity, 1996) Appendix I ‘Popular Sovereignty as Procedure’ and Appendix II ‘Citizenship and National Identity’, and his The Inclusion of the Other (C Cronin (trans), Cambridge, Polity, 1999) esp ‘On the Relation between the Nation, the Rule of Law, and Democracy’ 129 and ‘On the Internal Relation between the Rule of Law and Democracy’ 253. See also F Michelman, ‘Moral Identity and Constitutional Patriotism’ (2001) 14 Ratio Juris 253, 269. 22 23



Nation and Identity 237

deliberation as everyone else’s.24 And inasmuch as certain attributes accorded a person’s proposals or arguments greater or lesser weight, those attributes were accepted within that social framework by the participants as having just that effect. Those conditions relating to the status and structure of the conversation were, of course, themselves products of that or some other deliberative agreement.25 Accordingly the identity we developed in and through the transformative event is precisely a transformative one. The idea of a self comes into being as ‘transformed’ and ‘transforming’ entity, rather than as some vessel needing to be filled with one or other set of attributes. Perhaps we best can describe it as an identity always becoming, and never really attaining a stasis or final point. Because the transformative event involved all participants in value formation and internalisation, the values so produced retain necessarily a relative, mutable potential which activates whenever we engage those values with one another. And the solidarity we enjoy relies not exclusively or simply upon the product of our relating to one another in particular ways, but in that relating itself. It originates from the means of production as much as (if not more than) the product itself. Even to the extent that we prize certain concrete values, we value them not as consumable goods in se, but as reflecting closely the conditions for ensuring an efficient, flexible and co-operative production process. When we introduce the concept of the priority of national commitments, however, we lose that sense of participating in a dynamic production process, and become more consumers of social goods. Because these goods are understood to reflect core truths of who and what we are, we measure ourselves, our private commitments, our relations as against (our perceptions of) these social goods. Our initiative and imagination become really secondary or derivative upon ensuring an attentive and effective replication of those social goods. All our social instrumentalities, of language, art, literature, political and legal systems, education systems, economic systems, become tooled and geared to producing and maintaining the sufficient and necessary conditions of replicating those social goods. Because abstracting from, varying or replacing national commitments and relations entail a change to the kernel of national identity, careful regard, exacting attention and centralised control must be given to the replication of key national beliefs and values. The dominant ethical conceptions do not constitute options available to the nation’s membership. Quite the contrary. They are mandatory. A national must conform to them just to be a national. The relevant commitments constituting the definitive ethical set for that nation must inhere in and guide a national’s daily choice and action. It is selfevident that without such a presence in a national’s psychological constellation of values and perceptions, those commitments could not exercise or even contribute to the identity-forming power ascribed to them. A national is true to himself only when his choices and actions reflect the national character, those commitments. ‘Nationalists stress the inescapable social aspect of personal identity, and suggest that the only way in which individuals can realise themselves to the full is by identifying with the nation, serving it, obeying its customs, and unreflectively celebrating its greatness.’26 Deviating from them,  Honneth, Struggle for Recognition (n 5) (recognition as intersubjective status).   Recognising the possible problem of instituting an unending reductio to some ‘original position’, but simply presuming that everyone comes to the table as free and equal: Honneth, Struggle for Recognition (n 5). 26  Tamir, Liberal Nationalism (n 1) 17. See also Poole, Nation and Identity (n 2) 69–74, 82 (yet acknowledging the possibility of other ‘identities’ being available); Margalit and Raz, ‘National Self–Determination’ (n 11) 24 25

238  Nationalism and Association it would follow, separates himself from his ‘true’ identity, with all the negative psychological consequences which follow therefrom. Our sense of self and the recognition we seek from others pertain to how closely we meet the national ideal. We must rely on the detached and particular practice among ostensibly fellow nationals. Thick concepts of intersubjective relationships form the requisite boundary conditions. Accordingly, social interaction becomes absorbed in distinguishing its collective identity from all others, and therefore in replicating national ideals. We encounter a fetishism of culture and cultural attributes. Nationals can recite distinguishing features as if religious incantation.27 For that is how nationals are to distinguish one nation, one national, from another sort.28 So the public space formed by and for the nation certainly represents a transfer point too. It serves to transfer an identity, not transform interaction and the sense of self and other into one.29 A national identity is a transferred one, not a transformative one. The public space in nationalism does not act as preserving the conditions for the possibility of developing an identity; rather, it imposes an identity. This second aspect to ethical priority under nationalism gives precedence to national commitments, not just in virtue of action co-ordination, but also because of the identityconstitutive nature of those commitments. The epistemological claims and practical constraints of achieving a common understanding and of integrating action plans among different individuals are subsumed in an over-reaching ontological claim of certain human commitments having an existence separate from particular individuals and having a continuity and permanence not attributable to more immediate human interests and desires. Here, the hypostasis of certain commitments characterising the descriptive method of nationalism achieves its ultimate objective of reifying those choice cultural commitments. Thus, we come to an idea of nationalism as the reification of culture. Cultural attributes achieve an ontological status as external to and independent of intersubjective interaction, reflecting their critical normative status as guarantors of social solidarity, unity and the integrity of a nation’s boundaries. So, to return to Anderson’s imagined community, the key question is identifying and explicating the nature of any community in the style of its imagining, of how it conceives itself. Do we concentrate on transfer, or on transformation? If we choose the latter, then 448 ff; and Kymlicka, Multicultural Citizenship (n 2) 84 ff (the necessity and value of cultural memebrship) and ‘From Enlightenment Cosmopolitanism to Liberal Nationalism’ in his Politics in the Vernacular: Nationalism, Multiculaturalism and Citizenship (Oxford, Oxford UP, 2001) 201, 208 ff. 27   For example, in a Canadian context, just what Québec culture is apart from the obvious difference of a French-speaking population (and so ignoring similar groups in the provinces.) is left undefined in J Webber, Reimagining Canada (Kingston, McGill-Queen’s UP, 1994) 40 ff; K McRoberts, Canada: the Struggle for National Unity (Oxford, Oxford UP, 1997); J Carens (ed), Is Québec Nationalism Just? (Kingston, McGillQueen’s UP, 1995); and C Taylor, Reconciling the Solitudes (Kingston, McGill-Queen’s UP, 1993). In a Belgian context see, eg W De Wachter, De dualistische identiteit van de Belgische maatscahppij (Amsterdam, KNAW, 1992); J Billiet, B Maddens and A Frognier, ‘Does Belgium (Still) Exist? Differences in Political Culture between Flemings and Walloons’ in M Brans, L De Winter and W Swenden (eds), The Politics of Belgium: Institutions and Policy under Bipolar and Centrifugal Federalism (London, Routledge, 2009) 50; and J Billiet, B Maddens and R Beerten, ‘(Sub)national Identity and Attitude towards Foreigners in Flanders and Wallonia (Belgium)’ in B Saunders and D Haljan (eds), Whither Multiculturalism? A Politics of Dissensus (Leuven, Leuven UP, 2003) 185. 28   Yet see Tierney, National Pluralism (n 9) 36, 40, 59, 60 ff (liberal nationalism not as embedded, encompassing and holistic as suggested by other nationalists or critics). 29   The focus of the critique in F DeCoste, ‘Persons/Peoples/Polity: Interrogating Neonationalism in Québec’ (1998) 4 RCS 290, 307 ff.



Sources of the ‘National’ Self 239

we must emphasise intersubjective contacts and communication. If we choose the former, transference, then we take up the nationalist model of boundaries and exclusion as import­ ant. The transference ideal espoused by nationalism entails for a constitutional order and legal system the instrumental utility as transferring specific ideals, values, and such like. We resort to the law as a source of authentic social value and as the necessary means to control and enforce the uniform common commitments. We lose thereby the sense of a constitution as a merely structural guarantee of associative solidarity, one which arises not in the constitution itself, but in the process of communication it is meant to institutionalise. But revitalising and re-activating the link between culture and (national) group solidarity (the idea of solidarity as the twofold consequence of interaction and agreement) and the concept of culture as a (dynamic) process are the fundamental premises to rejecting nationalist secession, and to grounding associative constitutionalism. SOURCES OF THE ‘NATIONAL’ SELF

It would appear to follow seamlessly from the premise of human differentiation into nations that each nation should have, or at least pursue, the means to give effect to and develop its own unique characteristics without interference from other nations. Not only would there be no real reason to continue to emphasise that differentiation, but it should have long disappeared as a continuing presence in the fact of human existence. In the first place, however, the very real and active role of national claims in current politics across the world, whether of the Scots and Welsh in the United Kingdom, the Québecois or First Nations in Canada, the Basques in Spain, the Flemish in Belgium, the Tamils in Sri Lanka, or the various claimants across Indonesia (to name but a few), re-affirms the common observation among nationalism theorists that national self-determination and nationhood are permanent, irrepressible features of human society. Indeed, it seems selfevident that all national claims may be distilled simply into the desire to have the space and freedom from interference to arrange and administer their nation’s affairs in ways consistent with, and to the advantage of, their own values, characteristics and institutions.30 Moreover, in the second place, it would seem inherent in the nature of that differentiation that every national should aspire to see his national commitments clearly and expressly articulated or reflected in social institutions and social codes of behaviour.31 The expression of national traits permeates all aspects of human endeavour. National self-determination is clearly the crux of the case for nationalist secession. But the prophetic certainty with which proponents of national self-determination discuss the range and limits of such self-determination in terms of a practical, pragmatic political and legal philosophy is matched by an equal uncertainty as to just what the entity precisely is. 30  As argued by, for example, W Norman, Negotiating Nationalism: Nation-Building, Federalism, and Secession in the Multinational State (Oxford, Oxford UP, 2006) and Tierney, National Pluralism (n 9). 31   Underlying the claim to a right to one’s national culture: eg Kymlicka, Multicultural Citizenship (n 2) 88 ff; Tamir, Liberal Nationalism (n 1) 35 ff, 72 ff; Levy, Multiculturalism (n 9) 71–73, 76; Margalit and Raz, ‘National Self–Determination’ (n 11); Poole, Nation and Identity (n 2) 72 ff, 82 (although national identity should have priority in all matters, since it ‘rarely claims to be a comprehensive moral doctrine’); K Neilsen, ‘Liberal Nationalism, Liberal Democracies, and Secession’ (1998) 48 U Toronto LJ 253. See also J McMahan, ‘The Limits of National Partiality’ in R McKim and J McMahan, The Morality of Nationalism (Oxford, Oxford UP, 1997) 139; and T Hurka, ‘The Justification of National Partiality’ in ibid 107.

240  Nationalism and Association In the nationalist model, the connection between secession and self-determination clearly rests upon the concept of autonomy.32 How then are we to understand self-­ determination? National self-determination would mean that a nation is determining its national character, its ‘national self’. Specifically, national self-determination gives expression to those intrinsic properties which characterise the national entity as such. A ‘determination of self’ sounds cryptic or coy, unless we can offer a more precise meaning to ‘determination’. Self-determination represents ‘self-defining’ acts of choosing for one’s self. This follows from an analogy drawn from or derivative upon the individual’s form of self-determination. Self-determination clearly requires autonomous decisionmaking, an area of freedom of action and from interference, in order to exist and function properly. When sufficient autonomy allows self-determination to function properly, it gives rise to ‘well-being’. And a high degree of autonomy translates into (political) independence. Hence, ‘well-being’ and autonomy would appear to be central and fundamental aspects to self-determination. Pursuing this idea then, the determination of the self at its most simple level intuitively involves actions of and upon a consciousness, thereby framing that consciousness through its perception of phenomena, including itself. Actions of consciousness are first a recognition of its own interests and desires, things which signify for that consciousness. Secondly, they consist of concrete realisations of those interests and desires.33 We may therefore understand self-determination as the expressive and reflective action of identifying, choosing and pursuing interests and desires.34 Self-determination is an expressive action because it expresses for those around us what interests and desires we consider significant to have and to realise upon. Self-determination describes us to others, and situates us in the world. It is also a reflective action, for it requires us with varying degrees of intensity to examine ourselves and consider what kind of person we are, would like to be, and would like to be perceived as. Hence, self-determination requires us to describe and define ourselves in what we can and wish to accomplish – again, in relation to our circumstances and surroundings. And it follows clearly that such a description of self in and for the world represents simply the claiming of an identity, in the sense of a means of identification among all the other undifferentiated and differentiated phenomena making up the world. By self-determination, we give ourselves an identity in the world, a place in the world. To claim an identity, to define one’s self both for others and one’s self, implies not only the anterior condition of a consciousness having the capacity and power to generate an identity, but that the consciousness itself must generate its own identity. Whether a consciousness actually takes concrete steps (as acts of commission) or simply allows things to happen to it (as acts of omission), those decisions pertain to the inner workings of the consciousness, such that an identity may be said to arise ‘from within’. As much 32   See Tamir, Liberal Nationalism (n 1) 35 ff, 48–52, and 74; O Dahbour, ‘The Nation–State as Political Community: A Critique of the Communitarian Argument for National Self-Determination’ in J Couture, K Nielsen and M Seymour, Rethinking Nationalism (Calgary, Calgary UP, 1998) 311, 312–14; Tierney, National Pluralism (n 9) 52 ff, 67–68, ch 4; and Norman, Negotiating Nationalism (n 30) ch 3. 33   For a similar analysis, see Poole, Nation and Identity (n 2) 61–63. See generally, P Berger and T Luckmann, The Social Construction of Reality (London, Penguin, 1991) and J Searle, The Construction of Social Reality (London, Penguin, 1995). 34   C Taylor, ‘Self–Interpreting Animals’ in his Human Agency and Language (Cambridge, Cambridge UP, 1985) and his Sources of the Self (Cambridge, Cambridge UP, 1989). See also Poole, Nation and Identity (n 2) 59–61.



Sources of the ‘National’ Self 241

popular and academic psychology has shown, attempts to superimpose the characteristics of an identity upon a consciousness ‘from without’, without their interiorisation by the consciousness, will be met with rejection. A forced interiorisation usually results in the standard list of psychological disorders and trauma. Thus, it is for the consciousness itself to decide what signifies for it. This brings us neatly back to the concepts of autonomy and well-being. We understand in the concept of autonomy just those elements of unforced decision-making relating to the expressive and reflective aspects of self-determination, and of an identity arising thereby from within. Through its guarantee of a range of uncoerced decisions, autonomy can serve the well-being of a consciousness. The ability to claim a place in the world, as belonging to it and having some understanding and control over events, means for us that we can and do signify in the world for others. We do not simply fade into the mass of undifferentiated phenomena which constitute the world. Recognition by others (in function of self-determination) as a particular person, as having an identity, affirms for someone not only their mere existence qua consciousness. Such recognition import­ antly also affirms the nature of that person as an identical, equal and evaluative consciousness whose ability then likewise to make decisions underscores its existence. Accordingly, we understand in the ‘well-being’ of a consciousness the fulfilment of its nature and existence just in those elements of autonomous decision-making relating to the formation of an identity, a place in the world. All this assumes, of course, that we can offer some reason why the analysis of self-determination should turn on the ‘well-being of a consciousness’ and ‘identity formation’ in the first place, and indeed why ‘self-determination’ is an issue at all. All of these questions distil quite easily to a single problem (as with the main problem of ident­ ity and identity formation): what is the nature of the self in the world? Who am I? What am I supposed to be doing here? Why? And who are those others over there and why are they all staring at me? (It hardly bears mention that this is one of the perennial, central problems for human thought, absorbing much ink and paper.) The concentration on the self and the formation of an identity represents the Cartesian inheritance of pragmatic rationality following upon the dismantling of the sacred and mythical explanations for the existence of things, and their reason and value in existing.35 Our one certain starting point and our one certain reference point for understanding ourselves and the world around us is our capacity to reason. We have no other access to understanding reality. Understanding reality, what is around us, is the only means we have of controlling what happens to us. Put in basic biological terms, our continued existence depends on our being able to manage our environment, which we achieve by understanding reality through reason. Reason, or rationality, is not merely some form of data processing and classification, but more importantly an ability to recognise relationships and inter­actions among things, and to situate ourselves reflexively in those relationships and interactions. Hence, a necessary part of understanding our environment is figuring out who we are and how we fit into things (the reflexivity aspect). Or in terms of self-determination, our desire to understand and manage our environment necessarily implicates the formation of an identity in relation to our situation in the world. Giving an identity to ourselves and to everything else we perceive allows us to structure and arrange all that is around 35   Taken up by eg J Habermas, Between Facts and Norms (n 23) and his A Theory of Communicative Action (T McCarthy (trans), Cambridge, Polity 1986, 1987) vols I and II; and Taylor, Sources of the Self (n 34). It is also reflected in the legal positivism of the Critical Legal Studies school and Legal Realism.

242  Nationalism and Association us (including ourselves) in some meaningful way.36 Existing as a consciousness inevitably implies its self-determination, as constituted expressively and reflectively. What we need to extract from this rather abstruse discussion is the functional arrangement between the formation of an identity (determination of self) and its purpose of situating that self in the world. Self-determination, in the acts of deciding constitutive thereof, formulates a pattern of interactions. That pattern identifies in what manner that particular consciousness will relate to, and will perceive relationships among, all those things around it. In effect, who we are refers to how we live. Taylor suggests in his Sources of the Self that this relationship is the essential and determinative thread tracing out the history of human thought.37 His overall proposition is that who we are relates to the way we are in the world, and the way we are in the world reflects our judgements on, or critical appreciation of, that world. These judgements obtain within certain valuation frameworks, the character and content of which (or the understanding and perception of which) have developed throughout human history. The content of these frameworks are determinations of what is, or is not, ‘good’, ‘worthy’, ‘important’, and so on, for human beings as such. In brief, we are known by our commitments. According to Taylor, the character and content of these evaluative frameworks reflect a tension generally organised around three competing sources for such value orientations: divine/transcendental; natural/immanent; and self/existential.38 Each of these represents a different measure and means of claiming or expressing the truth of the values ascribed to various things and relationships. These sources populate the frameworks with their respective criteria or standards by which we judge the value of what is around us. Taylor suggests that the tension may arrange itself into three broadly defined categor­ ies: (1) the sources issue – the uncertainty and division over constitutive goods; (2) the instrumentality issue – the disagreement over our place in the world as disengaged instruments of reason, or as having a deeper and more ‘fullfilling’ connection to things in the world as they truly are; and (3) the morality issue – the question of our being able to meet the standards set by our moral frameworks, and what wholeness of self that could provide. How we fit these three issues together, and what emphasis each has, determine together the nature of each of our identities. In considering these, we should set to one side questions of how closely we are tied to the historical self-identity issue, making it thus impossible for us to render objective, historically uninfluenced consideration of the structure of frameworks in general. In other words, analysis cannot present an objective view: it is in fact merely re-iterating an interpretation dependent upon its own historical and cultural particularities. The same objection might be levied against Taylor regarding his ontological claims about the nature and origins of evaluative frameworks. After all, perhaps he is unable to step outside his (historically developed) framework and reveal to us the real figures, and not merely his own version of the shadows, of how it is to be in the world. We can then also ignore the issue of the self in the world, whether as the Platonic participant in the order of things, the Cartesian ‘I’ against all else, or the existential ‘I’, hoping for some deeper connection, sometime, somewhere. Finally, we ought also to put to one side any con36   Combining Searle, Construction of Social Reality (n 33) esp 20–23, 27–29, 31–56; and Berger and Luckmann, Social Construction of Reality (n 33). 37  Taylor, Sources of the Self (n 34) ch 1 (‘inescapable frameworks’), ch 2 (‘moral space’-identity as a narrative and quest), and 495 ff. 38   ibid 498–99.



Sources of the ‘National’ Self 243

cerns we might have about ethics pursuing its analysis from a basis of ‘goods’, as if evaluative judgements or objectives could be so objectified, as things. Taylor never really takes the time to explain what we are distinguishing between, or preferring, in our qualitative distinctions. Nor does he indicate whether these distinctions require choices among two options, or three, or more, or whether the choices are simple or complex based distinctions. All this saves having to rehearse and reconsider the arguments concerning associative obligations from chapter 2 above. So the nature of the tension identified by Taylor originates in how each of those three general categories is defined, individually, and in relation to the other two, and what weight each exercises relative to the other. In a sense, we might say that it is this tension which establishes an ‘identity’. Different ages and different places in human history have all manifested different identities. This follows from the organisation of and relative weights accorded to the three sources, particular to that time and place. This localisation of meaning and value owes its existence to what and how qualitative distinctions arising out of the sources have been instantiated, articulated, voiced and applied. Given the fact of the tension, and the localisation of circumstance and language, identities and the evaluative frameworks supporting them, it should not be assumed that identities from different periods or from different places may be mapped onto one another, even at some abstract level, to reflect a unity in qualitative distinctions, in sources and their articulations, among all humanity. At best, according to Taylor, we must simply be aware of the multiplicity of sources, and the variety possible in articulations of their content. The tension between the sources suggested by Taylor can be reduced to a general set of antinomies: (1) Is the self connected to the natural order, ‘in’ the world, or is it disengaged? (2) Is the essence or nature of things ‘in’ them, or is it a collected representation, via reason? (3) Is order ‘in’ the world, or is it ‘created’? Taylor himself, consciously or unconsciously, establishes the progression of, and duality to, these questions in his historical treatment of the developing map of moral sources upon which an identity grounds itself. For example, once we accept that the self is a rational instrument detached from the world, it would follow that the next question is one about our perception and understanding of things in that world, and whence the ideas and order of that world come from. If we then accept the historical progression Taylor outlines, and hence the triumph of reason and rational order which we are in large measure ourselves responsible for creating, what then do we use to judge the correctness or virtue to our representations of reality? Indeed, do we have any such standards, apart from ourselves and our choices? Or is it only by choosing that we confer value, at least until a competing option is chosen? The most interesting feature of Sources of the Self is the connection of an ontological claim with an ethical claim. Taylor’s concept of an identity combines an ontological claim (what is a self or an identity) with an ethical claim (what is good or the good life), and ties the former inextricably to the latter one. In other words, who we are is in large measure given by what standards we would follow, by what value judgements we make. To use the terminology developed herein, our commitments define us, rather than the inverse of our identity defining our commitments. What also follows from this ontological and ethical link is an equally interesting failure by Taylor to deal at any length with the question of ‘self’ and ‘others’. Taylor does touch upon the question indirectly, and implicitly, perhaps, in the discussions on the framework of the self, but never as a potential and important ‘source’ antinomy. Other human beings are not given a special status (a question unto

244  Nationalism and Association itself) as objects in the world – with or against us or both. This issue might be rephrased as follows: is the ‘other’ necessary to define my identity, or may it be defined independently of the ‘other’? This critical concern has clear implications for political theory and legal theory, insofar as both represent attempts at getting diverse and multiple selves to co-operate and co-exist in a productive and beneficial way. Accepting Taylor’s proposition that we are known by our commitments, by what we ostensibly value (the expressive aspect of self-determination implicating the reflexive), then the definition of self is itself more than a mere constitutive act: it is an evaluative act which in effect creates things when it ascribes meaning and value to those things, events, features, and such like in the world and their respective interrelationships. Selfdetermination thus has an essential ethical character, and it is through that ethical character that the ontological aspect (what it is that exists) comes to fullness. I use ‘ethical’ here in its broadest sense of a system of recognising and attributing the predicates of good, right and true to objects. This ethical composition to self-determination has repercussions for our concept of selfdetermination as a life-affirming act of deciding, and of autonomy. We have moved beyond simple confirmation of the proposition that the expressive aspect to self-determination reveals the nature of the reflexive, reflective one. First, we must understand the well-being of a consciousness in self-determination as the ease with which it sits in and relates to its surroundings based on its evaluation of them. It is not the act of deciding itself that affirms the existence and value of a life, but it is rather the actual content of those decisions in the creation of a constellation of relations, meanings and values which mark well-being. The measure of well-being becomes therefore the cohesion and consistency of a system of values, of the minimisation of conflicts and inconsistencies in the perceived arrangement of relationships which make up society. This bears close resemblance to Dworkin’s concept of integrity, of providing the best possible interpretation to (legal) phenomena, so as to accent them as a harmonious, coherent whole.39 We are therefore obliged to examine the content and result of those decisions taken in pursuit of self-determination as an essential element to understanding self-determination. Drawing thus the content of commitments inevitably into question renders untenable the implicit or explicit division between an external, observer’s perspective of self-­ determination, and the internal one of the consciousness involved, as made by ‘culturallysensitive’ liberalism, as much as those of communitarianism and nationalism.40 This view holds that what and how decisions are made in pursuit of self-determination should play no part in, or at least do not detract from, the overall analysis of the nature and scope of that concept. An observer cannot access the real content to another’s commitments, those acts of identity formation/confirmation. This would follow from the personal responsibility aspect, the interiority requirement, to such decision-making we noted above. Accordingly, the view allows for the removal of the content of decisions made in pursuit of self-determination from the overall analysis of the need and worth of self-determination, and presents only the act of deciding for assessment. And since self-determination unques  R Dworkin, Law’s Empire (Cambridge (Mass), Belknap Press/Harvard UP, 1986) 183–208, 214–16, ch 7.   See, eg Tamir, Liberal Nationalism (n 1); Gans, ‘Liberal Foundations (n 11); Caney, ‘Self–Government and Secession’ (n 6) and his ‘National Self-determination and National Secession: Individualist and Communitarian Approaches’ in P Lehning (ed), Theories of Secession (London, Routledge, 1998) 151; P Gilbert, ‘Communities Real and Imagined: Good and Bad Cases for National Secession’ in ibid 208; and M Moore, ‘The Ethics of Secession and a Normative Theory of Nationalism’ (2000) 13 CJLJ 225. 39 40



Sources of the ‘National’ Self 245

tionably plays such a critical and fundamental role in our psychical make-up, we are left with little sensible option but to acknowledge self-determination, and move unquestioningly on to promoting its occurrence and protecting it, whatever the contents.41 From a constitutional point of view, then, accepting this view entails accepting the decision of a national community to secede as presumptively valid and legitimate, and moving on seamlessly then to negotiating the terms of the separation.42 But given the above analysis following upon Taylor’s combination of the ethical with the ontological, we cannot divorce how we live from what we are. Criticism by others of the value and desirability of how we are prepared to live clearly leads to criticism of acts ostensibly of self-determination (who we are). Perhaps not too surprisingly, we have come once again to the concept of the transformative event. For in that process of developing public concerns from private desires and interests, the double movement of publication/deliberation and reinternalisation brings the presence of others inescapably within our individual self-determination framework. It is precisely in that double movement, which mandates an open texture and open boundary to value formation, that an identity is formed. Cutting off one branch, as nationalism proposes, can only serve to stunt the development of self-determination. The result can only be an undeniable, unavoidable impact of ‘others’ on our supposedly personal, interior acts of self-­ determination. They must have a role in that decision-making process. At a constitutional level, then, a (secession) decision of a national community is not presumptively valid and legitimate such that the reasons for so deciding are beyond criticism and rejection by the rest of the state’s population. Secondly, and following upon this, the role of autonomy shifts from a condition for the possibility of self-determination to a side-effect or result thereof. Autonomy, as suggested above, referred to the elements of unforced decision-making relating to the expressive and reflective aspects of self-determination, and of an identity arising thereby from within. Under the conventional liberal and nationalist theories of self-determination, only the capacity to make uncoerced choices based on uncoerced desires and interests could guarantee the authentic representation and expression of the self. And it was this authentic representation of the self that represented the crux of self-determination. For liberalism, this operates at an individual level; for nationalism, at the collective level of the nation’s identity. Hence, autonomy was a necessary condition precedent of a truly self-determining consciousness. But under the reformed view of a socially-oriented, intersubjective concept of self-determination, autonomy would serve merely as a means by which a self would insulate the sources it relies on to render its evaluative judgements. Insulating those sources removes them from an active questioning of their reliability and relative weight. 41  Hence the difficulties for liberalism theory in addressing one problematic consequence of self-­ determination being the possibility of producing an ‘illiberal’ state: H Beran, ‘A Democratic Theory of Political Self-determination for a New World Order’ in P Lehning (ed), Theories of Secession (London, Routledge, 1998) 32, 54; D Miller, ‘In Defence of Nationality’ in his Citizenship and National Identity (Cambridge, Polity, 2000) 24, 37–38 (oppression of minorities); Nielsen, ‘Liberal Nationalism’ (n 11) 117 (assuming it away); A Buchanan, Secession: the Morality of Political Divorce from Fort Sumpter to Lithuania and Québec (Boulder (Colo), Westview, 1991) 34–35; L Bishai, ‘Altered States: Secession and the Problems of Liberal Theory’ in P Lehning (ed), Theories of Secession (London, Routledge, 1998) 92, 98, 101, 104. See also Kymlicka, Multicultural Citizenship (n 2) 35 ff (attempting to reconcile culture-oriented ‘collective rights’ with liberal tenets). 42   On which, see chapters 9 and 10 regarding interpretations given to the Reference re Secession of Québec [1998] 2 SCR 217 and an Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Québec Secession Reference SC 2000 c26 (Can).

246  Nationalism and Association

LAW AND POLITICS OF NATIONALISM THEORY

This brings to a close two long and complex chapters on nationalism. I can summarise the basic argument as follows. A nation is and relies on a political process which imposes a series of values and goals instrumental to its self-preservation. As a political process, nationalism involves associative commitments and associative relationships, and the transformative event. By focussing on the content of associative commitments rather than the mechanism of their creation, so as to ensure an accurate replication of national values and relations, nationalism accords an ontological status and ethical priority to national commitments. Such a status and priority reifies the culture. But the concept of a self, grounding self-determination, possesses both a constitutive and an evaluative aspect. The latter engages the self as one among others, and opens up the perspective of the self regarding others and taking them into account. This recalled in different terms my exposition of the transformative event. Because the issue of identity cannot simply focus on the constitutive aspect and yet remain blind to the normative, evaluative aspect, it cannot insulate its decisions from the criticism of others. Autonomy, as used in the context of self-determination, does not constitute a basis for or justification of decisionmaking. It serves as a boundary of convenience, insulating and isolating the sources upon which the self would apply to arrive at its decisions. It operates on the first branch of the transformative event, to curtail debate and restrict those who might otherwise be recognised as contributing participants. Because it would interfere in the open texture and open boundary aspect to the formation of associative commitments in this way, it cannot offer any presumptive justification to national self-determination. Nor can it insulate that portion of democratic will formation from a broader evaluation (acceptance or rejection) by the entire polity. Translating this more closely into a constitutional argument, I begin with the basic assertion that the associative constitutional model requires a full transformative event without limitation or constriction. The deliberations of citizens must always contain the potential for full and complete substitution or variation of established associative commitments. They must be ‘constitutional patriots’ in the sense of adhering to the open, dynamic process of participation, deliberation, agreement, and reinternalisation, whether or not they have particular views as to what constitutes the ‘good life’. That process and its inherent potential for substitution or variation always renders possible the full or partial adoption of their particular private beliefs as public standards. The constitutional order must guarantee to all citizens the opportunity to participate in the formation of public values and beliefs. This should not send us off on the tangent of arguing for specific participatory rights in the actual political process, and of comparing the weight of voice and vote in legislative and policy debates. Our inheritance from civil society should remind us that values and norms arise first at a local level, and that a constitutional system must allow these ‘seedbeds of virtue’ the necessary breathing space and private attention to produce what fruit they may. Hence, while the associative constitutionalism model therefore necessitates a mix of freedoms and guarantees for representative and responsible government, it mandates above all that a society, facilitating and encouraging the engagement of citizens in value formation at all levels, must constantly remind itself that values, beliefs, ideas, and so on, are socially authentic only inasmuch as (1) they incorporate and accommodate the



Law and Politics of Nationalism Theory 247

views of as broad a constituency as possible; and (2) they represent a morality of aspiration which recognises its relativity, mutability and fallibility. Nationalism, as we have argued, fails on both accounts. For the issue of secession, the nationalist model’s attempt to exclude the rest of the state’s population from deliberating on the nation’s decision to secede and on the resultant fragmentation of the state and associative commitments must fail. The decision to secede is not for one section of a constituency to make: it is for all to consider and deliberate upon. For example, the purported attempt by Québec to withdraw from the Canadian federation cannot be seen as a legitimate expression of democratic willformation, absent the participation of the rest of Canada in that decision. As an attempt to rescind associative commitments, secession necessitates a reconsideration of those commitments. The transformative event thus implied contains, of course, the possibility that those associative commitments may change, and result in a new constitutional order. But that occurrence may not occur by excluding one or other section of the population. Moreover, the nationalist model’s incomplete and unsatisfactory constitutional grounding produces in fact a result contrary to that sought. Assuming that the metropolitan constitutional order did not perpetuate nor condone oppression and abuse against that national community, the national community will form one of the many layers of value formation encouraged and maintained by the constitutional order. That substate nation will have associative commitments particular to its members. The commingling of different networks and standards of recognition (in the Honneth sense) imposed by a multi-nation state threatens the consistency and continuity of a national network. Nationalism argues that secessionist self-determination is a right of a nation in order to realise upon, preserve and strengthen its network and standards among fellow nationals. But the tendency of nationalism to reify cultural attributes and interaction entails that fellow nationals will never escape from certain fixed patterns of societal recognition. Their status in the new national community will reflect the applicable values and beliefs, the same ones active in that community before secession. For some, such as professionals and elites, a newly independent national community may offer an improvement to and strengthening of their social position and authority, and thereby a betterment of their recognitional status. For others, nothing will have changed, except a reinforcement of the recognitional level previously held, and that without the possibilities for variation offered by some overriding recognitional (read: associative constitutional) structure.

8 Constitutional Text and Context

T

HE PREVIOUS CHAPTERS have spent considerable time evaluating the three principal models for justifying secession. The primary right, the remedial right and the nationalist theories aimed to articulate the grounds for legitimating and validating secession, the dismantling of an extant state. As such, these models for con­ stitutional disassociation implied or drew upon specific theories of constitutional asso­ ciation which advanced grounds for political coherence and authority. In the previous chapters then, those models of constitutional association were assessed through the optic of how they saw the dissolution of the polity. The measure of cogency that con­ sent, co-operation and participation or national identity had as a persuasive explication for the forming and maintaining of a polity depended on their respective views on the disassociation of the polity. How the constitutional bonds might unravel thus exposed the strength and durability of those bonds as the basic stuff of a constitutional order, of a political association. In the result, both primary right/consent and nationalism/national identity revealed significant doubt and question whether they offered adept, enduring bases to sustain an enduring constitutional association. The bonds of association they posited appeared ultimately either too fragile and vulnerable or too narrow and exclu­ sionary. The remedial right theory was, however, acceptable, if only because it simply presumed the breakdown of whatever associative bonds existed in the first place, but did not really commit itself to any particular theory of association. This conclusion, of course, in no way spells the end for consent or for nationalism as political ideas and ideals. Both remain active components in the political vocabulary to articulate features of political association and to give them a constitutional form. But the features they do give expression to must nonetheless be seen and assessed in the wider context of the association. They are not independent or self-sustaining grounds which generate their own island of (privileged) legitimacy and validity within the larger polit­ ical association of the state. The associative commitments represented by nationalism and consent are simply additional ingredients in the larger pool of associative commit­ ments crystallising into the constitution. Whether they or others receive greater or lesser prominence, or more or less pronounced articulation, in the constitutional framework of a state depends upon the political conversation among all the members of the polity. This also underscores the point to recharacterising a constitution in terms of an associating based on mutuality and reciprocity, of cohesion relying on common commit­ ments generated by a (public) ‘transformative event’. Identifying a constitutional-legal approach to secession has always been a question of understanding the bonds of associa­ tion in the first place. The construction and maintenance of a state, of any political asso­ ciation, will have a markedly different outcome depending on its deep structure – the source for its associative relationships. That same structure will influence how it might



Constitutional Text and Context 249

dissolve. For example, the primary right/consent theory and the nationalism/national identity one relied on smaller, more cohesive and homogenous groupings than extant at the formal state level. The decisions of those groupings, from the individual to substate nations, have an immanent legitimacy and validity as the basic political building blocks. The constitution of a state is constructed (or ought o be constructed) out of those build­ ing blocks, and must therefore also accommodate their decisions without significant challenge to the substance of their claims. Associative constitutionalism questions the ability of these theories to produce a coher­ ent, integrated constitutional structure beyond some type of (temporary) confederal asso­ ciation. Associative constitutionalism, on the other hand, sees the constitution as a framework of organised and organisational power creating certain supervening rules con­ stituting the group as such and facilitating the identification of other rules, policies, values necessary for the day-to-day maintenance of the association. Hence decisions affecting the group, the association, as a whole require the attention and participation of the group membership as a whole. Even if, at the very minimum, the determination is merely to have certain elected or unelected representatives settle the question. And consequently, it fol­ lows that any resolution to secede, to dissolve the association, must be made within that encompassing framework. It is not a matter of simply suffering or condoning a smaller polity to decide the issue for everyone else, and then leave the rump to react in a way deemed in some way to be appropriate. The point of decision to secede comes within the constitutional framework of the association. It is subject to a transformative moment, a transformative event. On that understanding, associative constitutionalism ‘constitution­ alises’ secession. In other words, to ‘constitutionalise secession’ therefore means not simply bringing the decision and rationale within the wider, national constitutional pro­ cess of deliberation and negotiation, but also opening the claim for secession to rejection, modification or acceptance. But if secession is indeed subject this way to constitutional principles and procedures, does this entail that a constitutional instrument ought to be read as having some sort of provision for a secession crisis? Does constitutionalising secession also mean constitu­ tional provisions regarding secession? Does secession need to be written down in the constitution? It is necessary to distinguish two possibilities here. The first covers an express reference in some constitutional document to secession in advance of or during a secession crisis.1 Such a provision would presumably purport to organise and regulate the conduct of a secession bid, or prohibit one. In addition to matters of enforceability and justiciability, the question of the efficacy of those constitutional clauses is also prominent. Can a constitutional clause really control a political pavement? Can the con­ stitution really force us to where we do not want to go?2 There is no guarantee of peace, as the cases of Yugoslavia and Burma show. Does ‘post-national constitutionalism’ mean that political configurations and political associations ought to be, or will, become more flexible and transient? The diversity and fluidity of our globalised contacts and 1   See, eg R Iglar, ‘The Constitutional Crisis in Yugoslavia and the International Law of Self-Determination: Slovenia’s and Croatia’s Right to Secede’ (1992) 15 Boston College ICLR 213; B Bagwell, ‘Yugoslavian Constitutional Questions: Self-Determination and Secession’ (1991) 21 Georgia JICL 489; and see P Radan, The Break-up of Yugoslavia and International Law (London, Routledge, 2001) and his The Legal Regulation of Secession: Lessons form Yugoslavia and Canada, Macquarie Law Working Paper 2007-5 (2007). 2   S Levinson, ‘“Perpetual Union”, “Free Love”, and Secession: On the Limits to the “Consent of the Governed”’ (2004) 39 Tulsa LR 457, 483.

250  Constitutional Text and Context interactions may require a continuing process of state-making and state-breaking, with an equally foundational shift in our understanding of ‘state’. The second case covers reading into a constitution some reference to secession. This implicit reference to a secession bid would likewise identify in the current constitutional principles and architecture either a permission and regulation, or a denial and suppres­ sion, of a secession bid. This is obviously an interpretative exercise which runs the risk of coming full circle by concluding that secession is outside any constitutional provision. It is also an exercise determined by the particular constitutional and political history of any given state. Needless to say, the implied reference case raises a number of questions, not the least of which is determining which institutions have the power and responsibil­ ity to perform this exercise and settle the various disputes. There is also the more general question of why a need exists in the first place to refer to some express constitutional point of authority, a question also arising under the first scenario of an explicit constitu­ tional term. A further overlay to these two options is federalism. A federal constitution may be understood as already beginning to carve up political power and political association, or as recognising that a state is an assemblage of various polities. Hence, federalism seems likely to play into the interpretive exercise of characterising the constitutional architec­ ture and political association as responsive to secession and the political autonomy of substate groups.3 The question, of course, is whether such a predilection in favour of centrifugal politics is inherent in federalism, or whether it is dependent on factors exter­ nal to a federal constitutional model. This acknowledges, as with the second case of implying constitutional coverage of secession, that the individual history and constitu­ tional condition of the given federal state may affect the answer. Thus, for example, the deep structure of the US or Australian federation may not be necessarily presumed to be the same as that of Canada or Belgium, other than in very abstract and instrumentalised terms. Accordingly, the influence of federalism-based arguments on a secession bid by a substate unit in one may not carry over in principle and as a rule to the others. That, of course, remains to be seen in what follows. In the examination of these issues below, pragmatic considerations have led me to concentrate on the Canadian constitutional order as the principal reference example under the categories of implied reference and federalism. It is a federal state with a stable constitutional order under the rule of law. Its federal divisions are considered to reflect certain substate national identity divisions. And it has generated two provincial seces­ sion referenda (1980, 1995) and a widely consulted 1998 advisory opinion of its Supreme Court on the constitutionality of a provincial secession bid, along with the wealth of commentary accompanying them.4 Nevertheless, I acknowledge that a fuller examina­ tion of the issues, and thus lengthier exposition, would compare the history, constitu­ tional structures and political life of a number of federations. Accordingly what follows herein is merely a sketch of the leading ideas and principal lines of argument.

3  See, eg W Norman, Negotiating Nationalism: Nation-Building, Federalism, and Secession in the Multinational State (Oxford, Oxford UP, 2006); S Tierney, Constitutional Law and National Pluralism (Oxford, Oxford UP, 2007); and F Requejo (ed), Democracy and National Pluralism (London, Routledge, 2001). 4   1980 and 1995 referenda in Québec; Reference re Secession of Québec [1998] 2 SCR 217.



Of Text 251

OF TEXT

Few written constitutions provide explicitly for secession.5 In the first place, it seems nothing less than self-evident that, when the constitution is newly-minted, the notion of secession would be a remote and unlikely contemplation. As a rule of thumb, founding a constitution, a state, has never seemed a labour undertaken with a fixed term in mind, as with, say, a contract or trust or even a corporation. Nor is it one in which relations once forged are seen as resiled from lightly. In the second place, most constitutions that do or did expressly address secession in some way hardly represent stellar examples of constitutional practice and relations. The Eastern Bloc constitutions of the USSR, Czechoslovakia and Yugoslavia disintegrated together with the respective political regimes propping up those states. In the case of Yugoslavia, the collapse of the federal state and then the Serbia–Kosovo construction was accompanied by much violence and suffering. The Czechoslovak Republic proved unable to reconstitute itself after the fall in 1989 of communist domination, and dissolved without any public consultation or approval. The Burmese-Myanmar constitutional order has suffered a number of years of military rule and repression. On the other hand, St Kitts and Nevis have managed to continue peaceful co-existence after a filed 1995 referendum on the secession of Nevis. And Ethiopia is at last managing after a fashion its tenuous existence as a pluri-national constitutional order, without further fragmentation after that of Eritrea. Be that as it may, the converting of earnest aspirations for an enduring union into constitutional form does not impart upon them some overriding normative force suffi­ cient to prohibit for all time any attempt at radical change or secession. This would be unrealistic and unjustifiable. It would deny political change and social evolution which trace out human history. The political and social forces which drive the engine of consti­ tutional cohesion also produce the friction and pressures which put that cohesion under stress. Constitutions and constitutional orders evolve as the polity evolves. There is always the potential for substate polities to develop, whether coalescing out of some perceived national identity or out of more raw political ambition. For example, immi­ gration-emigration can change the balance or concentration of people within an existing polity so as to create majorities and minorities. No constitutional order is truly immune from the possibility of secession or fracture (albeit perhaps remaining only latent). So it represents a measure of prudence and pragmatism to address the possibility of dissolu­ tion, even if the chances of a secession bid presently seem remote. In so doing, not only does the constitutional architecture create the necessary framework in advance, but it demonstrates an openness and fair attitude to all types of fundamental constitutional change. And it can begin inculcating the necessary respect and observance of constitu­ tional norms should the occasion arise. 5  See the examples given in C Sunstein, ‘Constitutions and Secession’ (1991) 58 U Chicago LR 633; P Monahan, M Bryant and N Coté, ‘Coming to Terms with Plan B: Ten Principles Governing Secession’ in D Cameron (ed), The Referendum Papers: Essays on Secession and National Unity (Toronto, Toronto UP, 1999) 244, 250–52, 255–58, and Table ‘I’. See also H Osterland, ‘National Self-Determination and Secession: the Slovak Model’ (1993) 25 Case West Res JIL 655; S Massa, ‘Secession by Mutual Assent: A Comparative Analysis of the Dissolution of Czechoslovakia and the Separatist Movement in Canada’ (1995) 14 Wisconsin JIL 183; P Pithart and M Spencer, ‘The Partition of Czechoslovakia’ in M Spencer (ed), Separatism: Democracy and Disintegration (Washington DC, Rowman & Littlefield, 1998) 185.

252  Constitutional Text and Context For some states, in particular ‘multi-national’ ‘pluralist’ states, the risk of secession and secessionist politics is nonetheless often neither latent nor dormant. Political and social forces agitate in certain states with varying degrees of intensity for significant constitutional change including secession (whether the real, ultimate goal or not).6 Here, the central question for constitutional scholars and lawyers is not whether change and secession might occur, but whether and how it might be managed.7 The objective is pragmatism, irrespective of the theoretical or moral claims justifying a secession bid. Introducing a secession clause into the constitution answers the pressing need for authoritative regulation of a volatile situation. But the rationale for a secession clause also extends to those states whose minority groups have not yet crystallised to any significant degree into politically active secession claimants. The presence of an exit option secures for those groups a measure of political power to counterbalance any over-reach by the majority’s interests. It would, in terms of associative constitutionalism, prevent a deformation of the transformative event by the exclusion of a minority’s voice and participation. Perhaps more concretely, a secession clause confers on the rights-holder a degree of political coercive power. According to Wellman, this would improve the quality of decisions and the decision-making process by removing the majority’s monopolistic control of power.8 The use of a secession clause as a shield can also be understood in a more positive light, if we follow Norman.9 A secession clause can signal the recognition and accom­ modation of the rights-holders as political equals, or at least politically significant. Rather than as a response to a secession crisis, such a clause is understood to diffuse the various tensions which could generate a secessionist movement. The clause represents one anchor point in a constitutional architecture confirming a partnership among con­ senting component polities. It bears noting that this arrangement suggests on its face a largely confederal character to the state. Whether or not borne out in reality, it is none­ theless clear that a secession clause of this sort whose underlying objectives concern the overall composition of a state reveals the associative relationships and foundational commitments of the state. And this reflects my underlying contention here concerning the deep structure of a constitution, as seen through the optics of disassociation. Underscoring all these reasons and justifications for introducing a secession clause into a constitution, is the claim that formalising secession within a constitutional frame­ work subjects a tense and volatile situation to the calming regularities of the rule of law. A constitutional, legal provision serves to minimise the risk of violence and the disrup­ tions to economy, stability and daily life. A secession clause would fix in a clear and express way certain terms and conditions for secessionist politicking and referenda. It would remove those matters from debate, from the political fray of the moment. By con­ sequence, so continues the reasoning, no one side could seize on and define issues to the disadvantage of the other side, thereby diverting attention and resources to resolving those marginal issues. Fighting these marginal battles only serves to clutter up and   See, eg Tierney, National Pluralism (n 3).   See, eg Norman, Negotiating Nationalism (n 3); D Weinstock, ‘Constitutionalising the Right to Secede’ (2001) J Pol Phil 182 and his ‘Toward a Proceduralist Theory of Secession’ (2000) 13 CJlJ 251; and M Jovanovic, Constitutionalizing Secession in Federalized States: A Procedural Approach (Utrecht, Eleven International, 2007), and his ‘Can Constitutions be of Use in the Resolution of Secessionist Conflicts?’ (2009) JILIR 59. 8   C Wellman, A Theory of Secession: the Case for Political Self-Determination (Cambridge, Cambridge UP, 2005) 138 ff, 155. 9  Norman, Negotiating Nationalism (n 3) 208 ff. 6 7



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obscure the real issues and arguments regarding independence by secession. Hence, a secession clause should reduce costs and uncertainties in the lead-up to and in the aftermath of a (successful) pro-secession referendum. In doing so, it may also help clar­ ify the position and role of the international community.10 If the constitutional control of a secession bid does in fact achieve its objective of soothing and channeling heated passions into constructive political negotiations and a peaceful result, intervention by international actors and states for humanitarian and political ends can be avoided, as well as the international community influencing or dictating an outcome to the crisis. If, however, the subjecting of a secession crisis to internal management and control fails to moderate tensions, then the perception of a general collapse of the constitutional and political order can comfortably justify international interference in the internal affairs and sovereignty of an erstwhile state. Hard Realities of Drafting Notwithstanding the many honourable motives for including a secession clause in a constitution, the realities of producing an actual clause allow little of them to material­ ise. There are significant difficulties to the undertaking. Those in favour of an explicit constitutional provision usually end up suggesting a general clause which prescribes some minimum percentage of votes necessary for a successful referendum result in favour of secession; that is, if they even attempt to formulate one. The deciding referen­ dum is not a national vote, but one held in the region seeking to secede and voted on by those prescribed as citizens of that region. Also, taking up a suggestion in the Quebec Secession Reference, there must be a ‘clear question’.11 Less clear, however, are the details of which groups might have the benefit of such a provision and the relevance of the grounds for politicking for secession. (I will come to this shortly.) In any event, a pro-secession outcome translates then into a legitimate claim to secede – a right to secede – and a corresponding duty on the rump state to negotiate (in good faith) the terms of the separation. Additional qualifiers refining the process have been also suggested as a guarantee of a truer, more representative gauge of public opinion. These include mini­ mum intervals between referenda rejecting secession, and consecutive referenda to con­ firm a settled political will to secede as against a ‘vanity’ secession.12 For the most part, these proposed clauses remain procedural in nature, concentrating on the minimum support required to pass a secession resolution. Notwithstanding their contention that constitutionalising secession would reduce the scope and frequency of dispute, most proponents ultimately recognise that the details of the process for organis­ ing and conducting such a referendum, the interpretation of the results, and any negotia­ tions or discussions ensuing therefrom will have to be fleshed out on an ad hoc basis, at best by legislation debated and passed at the time. Even Norman, advocating the most detailed and complex of secession clauses, nonetheless recognises that no single clause 10  Jovanovic, Constitutionalizing Secession (n 7) 18 ff and his ‘Resolution of Secessionist Conflicts?’ (n 7) 7 ff. See also A Buchanan, Justice, Legitimacy and Self-Determination: Moral Foundations for International Law (Oxford, Oxford UP, 2003). 11  Jovanovic, Constitutionalizing Secession (n 7) 188 ff. 12   See, eg W Norman, ‘The Ethics of Secession as the Regulation of Secessionist Politics’ in M Moore (ed), National Self-Determination and Secession (Oxford, Oxford UP, 1998) 34; and Weinstock, ‘Constitutionalising’ (n 7) 197 ff and his ‘Proceduralist Theory’ (n 7).

254  Constitutional Text and Context could or would comprehend the myriad of points needing to be addressed.13 Many issues would have to be left for subsequent legislation. The realities of the situation do not comfortably and safely allow for anything more than a generalised, or bare, procedural clause so as not to foreclose on possibilities not perceived at present. Getting such a clause, howsoever it may be drafted, into the constitution raises another problem. Obviously because there are few, if any, ‘new states’ or ‘new’ constitu­ tions, such a clause would likely be inserted as an amendment to established constitu­ tions during a period of significant political and constitutional change. Given the assumption that multi-national states are less settled in their constitutional affairs, such periods of change would presumably not be that uncommon. But given the contentious nature of secession and its underlying elements, can we really expect politicians to open that Pandora’s box in an already tense climate of political bargaining and power-play? The cross-cutting interests between the state and substate levels and among the substate units themselves create a complex, complicated arena in which to work out issues. The gravity of the secession issue and its natural resonance with the grand notions of iden­ tity, self-determination and consent recommend addressing it directly on its own as a separate constitutional issue, rather than a part of the mix in the usual horse-trading to ordinary constitutional amendments. Yet it is just that potent mix of political, social and other ideals that would generally cause politicians to shy away from the secession issue until absolutely necessary, until facing an actual secession crisis. Practical impediments to drafting a clause, however, are no real bar to introducing a secession provision into a constitution. Nor do they answer the (political) reasons for having such a clause in the first place. Generality and lack of specificity or particulars to constitutional provisions are no more a weakness or strength than restrictive, constric­ tive detail. Indeed, the bulk of constitutional law is the interpretation of vague, unclear and general constitutional terms. Indeed, apart from its rather unconventional subjectmatter, a secession clause would be no different in character than any other conven­ tional constitutional provision. It is simply a matter of finding a practicable, politically acceptable balance to how general and how specific the prescriptions are. Moreover, this course may well serve a further, secondary justification for including a secession clause within the (established) constitutional architecture. Starting that conversation, begin­ ning the public deliberations on the issue of secession may be that ‘healthy catalyst that stirs up apathetic states from their monopolistic slumber and invigorates countries with competitive incentives’.14 A Questionable Achievement? The practical impediments to drafting a secession clause point, however, to more funda­ mental problems, and these do go to the substance of the arguments. The stated objec­ tive of a secession clause is to reduce the potential and scope for dispute during a secession crisis. Because the need remains for additional legislation or agreement on a number of matters in the heat of a secession crisis, the potential for significant, persistent dispute and disagreement, together with the risk of opportunistic politicking, still  Norman, Negotiating Nationalism (n 3) 177–79.  Wellman, Theory of Secession (n 8) 155.

13 14



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remains extremely high in the circumstances. The rewards in power and position gained and the costs of power and position lost make the game very much worth playing to the full. Moreover, having an express constitutional clause does not guarantee stemming the likely flood of litigation which would threaten the smooth and regular conduct of the secession procedure (whatever that might be) promised by such a clause. If anything, it provides a convenient target. While the mere possibility of secession may have become moot, it can be expected that the clause itself will be open to varying interpretations on who may claim what, when, and in what circumstances. It can also be expected that attempts will be made to test (constitutionally and otherwise) each piece of legislation and every agreement, and subject them to different interpretations. This in turn raises a fresh point of contention. So the presence of a secession clause in a constitution offers no real tangible advantage over its absence, based on a dispute-reducing rationale. Indeed, the mere fact of having a clause permitting or prohibiting secession, as much as its necessary generality, cannot really dampen the explosiveness of the situation. Frankly, no constitutional clause in and of itself wields that kind of authority. At its highest, having a particular entitlement or duty or other matter taken up in the constitu­ tion merely provides a quick reference point to justify some act or response. It is not the only reference point, particularly if the claim is to overcome or reject the purported legitimate authority of the constitution. Nor does a written constitution, like the ratio­ nal, calm argument it would support, stand in the way of concerted action by individu­ als or groups intent on redefining, transforming the constitutional order. If circumstances arose in which a majority of citizens sought or did not oppose the dissolution of the state or its amalgamation into an larger entity, nothing in the constitution could stop the momentum of social and political will. Proposing a secession clause seeks to contain within the constitutional architecture the forces similar to those active at founding. And even those latter forces remain problematic to conceive, let alone harness and manage, in a constitutional way.15 The return of the seemingly inescapable theme of politics supervening law recalls the realist’s observation set out at the beginning of chapter 2. The clause and the constitu­ tion will inevitably collapse under the strain of a secession crisis, producing unhappi­ ness, misery and oppression in varying measures. Hence, the true value and justification of such a clause must be found not in its promoting a calm, rational approach to seces­ sion, but rather in defining the character of the constitutional architecture and political association. In arguing a constitutional term, we are really never very far from politics and questions about the fundamental nature of law and obedience.16 Those practical impediments show up the presumptions and implied terms underpinning the idea of a constitutional order and political association. How or even whether those problems should be overcome, reveal the concept of political association articulated by the consti­ tution. That articulation is ultimately grounded in primary right/consent, nationalism/ national identity, associative constitutionalism, or some other theory. Disassociating a polity by constitutional means entails understanding how a polity associates by constitu­ tional means. This prompts five observations on a secession clause in a constitution. 15  See, eg M Loughlin and N Walker (eds), The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford, Oxford UP, 2007) (reinvigorating debate on the active and passive nature to a constitutional identity delineated in terms of law and politics, both seemingly complementary and inconsistent at the same time). 16   Levinson, ‘Perpetual Union’ (n 2).

256  Constitutional Text and Context As a first observation, suggestions for a secession clause ultimately resolve themselves into a ‘nolo contendere’ provision imposed on the rump state. The clause confers on the rights-holder howsoever defined therein (if at all) a unilateral power to secede and man­ dates some form of bilateral agreement on the terms of departure. If the rights-holder complies with the procedures set out in the clause and collects the required percentage of affirmative votes from its region, then the rights-holder may negotiate the terms of its departure. The rump state is then obliged to negotiate in good faith those terms, and come to some sort of bilateral arrangement. Although the rump-state may have partici­ pated fully in the run-up to the referendum vote by campaigning against secession, its citizens have no voice in the actual decision-making act. That power is reserved to voters of the region in issue. Moreover, because such a proposed secession clause would steer clear of requiring any explicit justification for triggering the secession process, the reasons for seeking secession would at best form part of the overall arguments in favour of or against inde­ pendence. Hence, the constitutional clause remains true to the fundamental nature of secession, being the unilateral ereption of territory and population from an extant state. Such a clause does not create a ‘consensual secession’, a dubious oxymoron to say the least. At its highest and most generous formulation, such a clause might be understood as providing for a ‘consensual dismemberment’ of the state. This idea presumes the con­ sent of the ‘other side’ to the actual decision itself to dissolve the state, and not just its assent to the terms and conditions of amputation. That a dismemberment clause was taken up into the constitution might well suffice. The clause could be understood to rep­ resent the unconditional and prior consent of the erstwhile rump to the separation of any qualifying population. Thus the rump would have no grounds effectively to contest a secession bid, other than a region’s compliance with the prescribed procedure. The net result of seeking to constitutionalise secession in this (procedural) way is to give credence to the primary right theory of secession. The basis of this constitutional provision is to ascertain whether the required majority in a region seeks independence, and if so, to frame negotiations on the terms of departure. Here, we have the primary right theory in so many words, whether taken on its own or as an instrumentality of nationalism theory. Whatever the nature of consent to belong to the wider polity, a vote in favour of secession is a clear, active withdrawal of that consent imposing an obliga­ tion on all parties to negotiate its practical consequences. But as I have argued at length above, the primary right/consent model exhibits fundamental weaknesses in conceiving of associative relationships grounding a polity. Seeking to constitutionalise secession in this way therefore imports those weaknesses into the political association and constitu­ tional order, seeding its own demise. Moreover, it is not without some measure of irony, to my mind, that Norman’s sup­ port for such a clause comes close after dismissing out of hand primary right theorists (and after a fashion, nationalist and remedial right theories).17 In the same vein, Norman criticises Buchanan for not building sufficiently or at all on the latter’s theory of seces­ sion when arguing for some constitutional recognition of secession that ultimately is proceduralist.18 Yet accepting Norman’s own suggestion for a secession clause means  Norman, Negotiating Nationalism (n 3) 183–88.  Norman, Negotiating Nationalism (n 3) 182, 186 (referring to A Buchanan, Secession: the Morality of Political Divorce from Fort Sumpter to Lithuania and Québec (Boulder (Colo), Westview, 1991); yet see his Justice, Legitimacy and Self-Determination (n 10)). 17 18



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that once the secession course has been plotted and achieved, the rump state has little option but to accept and deal.19 While he does raise as one of the issues for a possible secession clause the roles of the people in the country as a whole in a referendum or ref­ erenda, no consideration is given to that issue. Indeed, one may justifiably and comfort­ ably conclude from his entire argument that the people as a whole (let alone the erstwhile rump state) have no say in whether or not to secede. Thus Norman maintains a conven­ tional view of secession. It matters little that the constitutional rationale for the clause is given as ‘democratic rule of law’ or ‘democratic federalist’, when clearly the underlying theory is to favour a nationalist, primary right reading of a constitutional order as given by the ‘seven principles of recognition’ (partnership, collective assent, commitment and loyalty, anti-assimilation, territorial autonomy, equal right of nation building, and mul­ tiple and nested identities).20 As a second observation, a secession clause would treat constitutional relationships like contractual ones, which in a private law setting can provide for their own demise, like for example those in trusts, partnerships, corporations, and so on. The temptation or incentive to read constitutionalism through the lens of consent theory, and secession through primary right theory, again proves irresistible. Moreover, those private law associations can rely on an over-arching legal framework to give structure to and govern those particular actions, and even address matters not provided for in the agreement or constitutive instrument. For the constitution, public law, on the other hand, an analo­ gous legal framework does not really exist. Of course, for those so minded, this could offer a portal through which to assert public international law as a supervening legal order structuring and governing national constitutional and legal orders. This assertion is far from being generally accepted or acceptable. From another angle, incorporating a secession clause into a constitution does not necessarily exclude public international law attention. The risk of a secession dispute escalating into conflict despite best efforts to manage it under constitutional law will always include the prospect of foreign interven­ tion, if only on humanitarian grounds. Because the constitutional order recognises the possibility of secession/dismemberment, any secessionist bid can be invested with some degree of constitutional legitimacy for international purposes. Compliance with the con­ stitution, with the prescribed terms and conditions, will establish firm grounds for for­ eign recognition of the seceding entity regardless of the underlying reasons for secession. That compliance will likewise make it much more difficult for the national government to expect international acquiescence to its resisting of the secession bid even if only a vanity secession. Non-compliance, on the other hand, does not necessarily entail inter­ national rejection of the secession claim. The claim may persuasively invoke remedial grounds, which as a substantive matter ought not to be hindered by procedural niceties. And political advantage (irrespective of constitutional niceties) may always motivate foreign interference. So even at an international level, the tangible benefits of a constitu­ tional provision on secession are questionable, while presenting a net downside risk for national unity groups. As a third observation, any proposed secession clause will likely leave a central ques­ tion unanswered: who has the right to invoke the secession procedure? Particularising the rights-holder in advance will inevitably exclude some other potential candidates.   See also Tierney, National Pluralism (n 3) 263 ff (based on his reading of the Québec Secession Reference).  Norman, Negotiating Nationalism (n 3) ch 5, 208.

19 20

258  Constitutional Text and Context Which groups are privileged to the detriment of others will reflect not only the underly­ ing theory of secession, but will also reflect the fundamental nature of the constitutional order, the basis of the political association. Declaring which substate groups may secede declares those groups as the fundamental constituents of the polity. On the one hand, itemising groups in terms of a closed list of administrative units (states, provinces, regions) or substate nationalities will accord recognition and a measure of power to them as extant polities. It will emphasise a constitutional association of those polities (confederation) rather than of citizens. It may also freeze the composition of the state without consideration of addition, amalgamation or extinction. We should not forget that (at bare minimum) other groupings, ones formed subsequently such as immigrant minorities, may actively seek the right as well in this brave new pluri-national state. On the other hand, having an open list and itemising the preconditions for a group to be recognised as a rights-holder presumes that some administrative, judicial or ad hoc body can determine when and where such a body politic arises. Here too, the matter of why certain groups are recognised and not others remains a fertile ground for continuing dispute. Quite apart from the question whether any third party is practically and indis­ putably capable of making such a determination, this assumes at the very least some generally accepted criteria, a set of clear norms, that provide a platform for making that decision. Indeed, does the decision go to, for example, the capacity for independence, or to current levels of self-support, or to actual political structure? Is there a minimum number of people and area of territory required? Are we talking about public finance, current infrastructure? And pragmatic considerations aside, how might the subjective ingredient taken up in the idea of ‘imagined communities’ be given a role and weight in the overall decision? If we are not to remain at the level of comfortable but ultimately vapid generalities, we need to speak in terms of specific, concrete elements at a level of detail and complexity not conventional for any constitution or political association. If the solution to this is legislation, the proposed secession clause has not really achieved anything in its promise to reduce cost and conflict. It has merely shifted the burden and responsibility to a less participatory, more formalised political process. As a fourth observation, it is unlikely that the cost–benefit rationale can ever reason­ ably justify having a secession clause in a constitution. It will never bear out its promised advantages. Stripping down the politics of secession to a generalised, procedural clause in the constitution does not simplify the whole process nor reduce the potential for dis­ putes, whether in virtue of its mere constitutional status or because of its content. Such a clause would leave much undetermined and open for political or judicial contest. A more detailed, complex clause is as unlikely as it is unconventional. Frankly, it would be hard to imagine any right-thinking politician at the national, state level who would invest position and resources in working out in advance the dismemberment conditions for a state. Certainly at founding, all the momentum, power and effort is directed at creating a unified, enduring union of citizens. After founding, no tangible political advantage is to be gained from tying oneself to a policy of what a successful dismemberment would require, without any foundation in or consideration of the actual circumstances. Be that as it may, detailed constitutional or other legislation remains equally susceptible to contested interpretations and application, as well as questions of its own validity and legitimacy and the legitimacy of the deciding body. In fact, any perceived need to minimise costs, uncertainty and disputes may be mis­ guided. There is something to be said for the heavy burdens and volatile difficulties – even



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the threat of violence – which a secession crisis may bring to a constitutional order and political association. The profound implications of the act of secession, of resisting seces­ sion, and their ramifications need to be difficult, and should be understood to demand perhaps unrequited sacrifices of blood, treasure and power. The cost of secession, its impact on all citizens, the uncertainties of its course should all be as tangible, as palpable, as frightening, as terribly awesome as possible. Choosing to pursue the dissolution of a state and the commitments between erstwhile citizens should involve an investment of something more than is required for choosing a new government. The choice is not merely a negative, of not belonging to a state, but also a positive choice, of affirming the exclusive associative commitments among a different set of individuals. Likewise, oppos­ ing secession should require from citizens their active reinvestment in the associative commitments making up the state, of the broader polity. That political association must be seen as worth preserving even if the outcome may be uncertain or costly. Indifference, diffidence, capitulation, all suggest that commitments other than those sustaining the state as it stands and other associations have (political) priority. In those circumstances, the state will collapse with or without a secession clause since its underlying political association has dissolved. Costs, uncertainties, disruptions, risks, and such like prove the enduring nature of any association. Not to be too glib, but that’s politics. As a final observation, a secession clause whose ostensible purpose is to remedy oppres­ sion and discrimination seems inapt, inept, for accomplishing that stated task of the remedial right theory. The practical impediments of providing a sufficiently complete or workable definition of the triggering event and of the jurisdiction of any organ or tribunal tasked with reviewing the invocation and exercise of that power presage a more signifi­ cant problem with constitutionalising the remedial right theory. It seems beyond question that the triggering event must represent a substantial and continuing wrong, so as to require the dramatic and radical remedy of dissolving the state. Such a wrong cannot but represent a breach of one or more fundamental values or rights taken up in any modern constitution. For example, any form of discrimination, oppression or discriminatory redistribution would constitute at the very least a violation of equality rights. But if even these ordinary constitutional provisions and the usual constitutional organs have contin­ ually failed in the past to remedy the breaches, why would the extraordinary constitu­ tional provision of secession provide any greater security or relief? It seems odd to expect that group to risk further blood and treasure by relying any further on the same constitu­ tion and constitutionally authorised institutions which have proved empty of assistance before. It seems misguided to expect the victim group to repose any trust and confidence in the very constitutional order which has repeatedly failed them in the past. In these cir­ cumstances, the only effective recourse lies outside that constitutional order, whether conceived as international law and institutions or as a Hobbes-inspired pre-constitutional politicking.21 It seems obvious that any result or outcome that must look outside the con­ stitution is self-defeating for the constitutionalising of secession. Taking into account all these observations, I cannot help but think that a fundamental incompatibility, inaptitude exists between a constitution and constitutional order and the idea of an explicit provision for secession in a constitution. Certainly, nothing pre­ vents absolutely the insertion of a secession clause into any constitution. As with all raw 21   Hence Buchanan, Justice, Legitimacy, and Self-Determination (n 10) (remedial right worked out on an inter­ nal law level). See also D Copp, ‘International Law and Morality in the Theory of Secession’ (1998) 2 J Ethics 219 (ICJ a supervising organ).

260  Constitutional Text and Context exercises of positivist legislating, anything can be reduced to legislative form, whether it is regulating secession, prohibiting the wearing of kilts and the playing of bagpipes, mandating only happy thoughts, or declaring all things blue are now green. We are limited only by imagination and opportunity. The real issue is whether such provisions can command observance and are actually sustainable. There is a problem if the rule produces a result contrary to that expressed and intended or undercuts its own observance. In the case of constitutionalising secession, the underlying problem is not simply try­ ing to articulate and encapsulate in a panoramic way the dynamic heart of politics. Seeking to regulate secession this way attempts to deploy constitutional devices to man­ age the constitution’s own self-destruction, as if the forces in play are any more suscep­ tible to being determinatively regulated in advance than those at the founding of the constitution. The net result is a desire to apply rules to the formation of a competing body politic within an established, extant one, where those same norms never managed nor expressly applied to the founding of the original state. Part of this stems from the modern tendency to read a formalised constitution as the material centre of a polity’s coherence and unity, as the heart and soul of the body politic.22 (This view also produces the apparent paradox that a political community obtains through a legal order, as much as that legal order originates out of a political community.) The modern idea raises ‘the constitution’ to a necessary prerequisite for political association. Such a formalised constitution is usually (although not necessarily) a documentary, written constitution. Hence, important public powers, rights and duties ought to be grounded and expressed in that constitution. It expresses the fundamental, essential values and bonds of the asso­ ciation in the form of rights and freedoms. It situates the source and legitimacy of legal and political power. It marks the existence of the political community and gives it essen­ tial form and structure. This modern idea correlates to and draws on the idea of the rule of law (in more con­ tinental terms, the Rechtsstaat). Briefly, the law serves to legitimate, validate and control actions, in particular those acts by public organs and officials. Law is the means by which we allow public officials to govern what we do and by which those officials and organs indicate what they expect of us. The limits of executive, legislative and judicial power over us are traced out by the law. So too are the limits of what fellow citizens may do among themselves: what we allow and expect other individuals like us to do. This emphasis on legality translates conduct, actions and values into rights and entitlements, obligations and duties. Actions, especially acts in the public sphere, are seen through the lens of what the law permits or prohibits, what it protects or not. The re-orientation of our dealing with others into legal terms reposes considerable faith and confidence in the moral and actual authority of the law. The law, especially at a constitutional level, pro­ vides a type of secular moral expression of goodness, rightfulness, whether articulated in terms of health, welfare and safety, economic and social regulations, or human rights. Not to digress into detailed consideration, this moral and concrete authority would seem a logical outcome of the democratic conception of political community. Democratic governance postulates a general public consensus on and approbation of what benefits 22   See, eg D Grimm, ‘The Achievement of Constitutionalism and its Prospects in a Changed World’ in P Dobner and M Loughlin (eds), The Twilight of Constitutionalism? (Oxford, Oxford UP, 2010) 3; U Preuss, ‘Disconnecting Constitutions from Statehood: Is Global Constitutionalism a Viable Concept?’ in ibid 23; yet compare R Wahl, ‘In Defence of “Constitution”’ in ibid 220.



Of Text 261

and burdens the law imposes. This common agreement on standards therefore reflects the moral sense of the moment, if not a deeper, more abiding moral truth. These elements combine in the package of modern constitutionalism. In simplified form, four central ideas frame the conception. First is the idea of (positive) law defining and managing the normal, the necessary and basic standard of behaviour. The second idea is of (positive) law as general and public, applying to everyone, citizens, entities and officials alike. Third is the idea (positive law) setting and representing an objective stand­ard of behaviour, with other standards being considered subjective or narrow. The final idea is that of the formal, positive constitution as the supreme, paramount law. Together, the four elements fund the conception of the modern, positivist constitution as the ultimate, determinative point of reference for public values and standards, and as the source of legitimate, valid social power. Significant public values must not only have some foundation in the constitution or the law, they must be instrumentalised thereby into rules of law. What this does, and what it represents, is to define and see society through the optic of law. Although the constitution and law started out as the articulation (after the fact) of a society’s coming together, this reflection of social cohesion and relationships has come to stand in for, replace, the very thing itself. Practising a type of legal nominalism, we concentrate on the text rather than on what the text represents. Legal phenomena have thus become the most important public figures in the modern constitutional and social landscape. Anything of social, public relevance is generally taken up by and into legal form. Otherwise it is consider inchoate, or not yet ripe or suited for a public presence. The law, the legal rule, permeates modern society because it is the instrument, the tool by which social control is now exercised. But all this entails that significant, associative and social relationships are understood to prescind from the formal, positive constitution. That constitution serves as the start­ ing point rather than simply reflecting what already is alive and motive in society. In other words, the modern view of constitutionalism would exclude the facet of social interaction, the social dynamic until and unless it can be subjected to rules. The legal mindset is inescapably textual. The intellectual move from an acting in and understand­ ing context to the reducing it to text takes the social dynamic out of the picture. Or it freezes that action at one point, at one stage in its deliberations. It is the loss or obscur­ ing of the social dynamic in the move to reduce to a text and formalised rules those mat­ ters dealing with foundational associative commitments, the foundations of a political or social association, and the transformative moment that is, to my mind, misguided. Something can be constitutional, with constitutional authority, without being written down in the constitution. It can be relevant and authoritative without having an explic­ itly legal form. On the matter of secession, then, secession is part of the constitutional order (where not prompted through constitutional collapse). This means that secession is subject to the immanent rules delineating the association, specifically the transforma­ tive moments of public participation and deliberation regarding the commitments form­ ing the polity. In effect, much of the constitution and constitutional behaviour is immanent in society so that express, formalised restrictive and constrictive rules are unnecessary.23 23   See, eg R Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge, Cambridge UP 2007) esp ch 5.

262  Constitutional Text and Context Let me test this admittedly republican proposition by counter-example. Assume that secession is constitutionalised in the conventional manner by an express provision which mandates the sponsors of any secession bid to seek the support of at least 75 per cent of all registered voters in a national vote, with spoiled or blank returns counting against secession. Such a provision would appear to track the presumptions of associative con­ stitutionalism. It stipulates a high level of national participation and deliberation. It leaves completely open which competing polities might seek to sponsor a secession bid. And it leaves open the framework in which a full deliberation and debate can occur. As favourable as it might appear, yet even this textual attempt has to be seen as suspect. It changes the starting point of analysis from the social point to the text of the provision. The definitions of spoiled ballots, of registered/qualified voters, even the level of sup­ port, will all be the object of focus, rather than simply doing the deliberating and decid­ ing. Other issues, drawing on other aspects of the constitution or on other legislation, may also intervene to lead our attention away from the job of arguing, bargaining and deciding. The presence or absence of rules will not avoid this controversy, debate, argu­ ment and dispute. Nor should it: that very political interaction is a necessary part of building and maintaining a polity. It is the motor of the transformative event. As Bellamy argues, we need to hear the other side in order to clarify understandings and get at com­ promises and agreements – in short, to convert our private desires and interests into reinteriorised public commitments.24 In summary, my answer to the question of whether we need to consolidate or effect the constitutionalisation of secession by creating an express constitutional provision is ‘no’. The pragmatic reasons for its introduction promised more than they reasonably could ever deliver. Moreover, they masked an underlying presupposition of a constitu­ tion as an agreement among various polities competing for power. Yet no constitutional order other than a confederation can effectively sustain this type of power-sharing. Finally, those reasons also ultimately masked the theoretical problems of reducing con­ stitutionalism to a wash-list of constrictive and restrictive rules, thereby excluding the dynamics of social argument and value formation. OF CONTEXT

Most constitutions contain no express secession clause. So the constitutional analysis of secession would seem predominantly of the contextual type, looking for references to self-determination or certain powers and jurisdiction so as to legitimate pursuing or pre­ venting a secession bid. Yet if express constitutional provisions seem ill-suited because they direct attention away from the immanent constitutional architecture of society, can implicit constitutional direction (on secession) fare any better? The argument against express provisions exploited two problems. First, the inherent limitations in any textual rendering of reality make it impossible to capture fully and completely the complexity, detail and scope of any (political) situation. Gaps, omissions, misdescriptions, and so on are inevitable, as are the disputes whether and how to amend the terms or adjust their interpretation. So to expend resources and time on text diverts them from the real issues of relations and association. Secondly, focussing on text led to an inversion of perspec­  ibid 191 ff.

24



Of Context 263

tive whereby text becomes definitive (or at least co-original) with the actual structure of the polity, instead of a reflection or articulation of it. This in turn marked an inversion of authority from bottom-up (society–text) to top-down (constitutional text–society). The formal constitutional text comes to legitimate and validate the social and political structure. But all of this applies most clearly to the implication of power approach. Searching for some implied legitimation in constitutional documents for a power to secede or prohibit secession pushes the argument of sourcing all legitimacy from within the constitutional text to a fault. But the situation for implicit authority is not as bad as it may seem. The assumption is that nothing in the constitution expressly establishes or provides for a power regarding secession. So working from the text we must indeed extrapolate, where the text is a reflection or extension of certain more general and underlying constitutional norms and principles. Whether we accept or reject the contentions regarding an authority over secession does not therefore turn on the particular words of the constitution, but on the views held concerning the more fundamental premises of the status of the components of the state and the nature of their powers in the constitutional order. Reaching beyond mere text into context, we are beginning to consider the entire circumstances and nature of the constitutional settlement. The text forms an extension, a derivation, of unwritten principles whose existence is suggested, but not expressed, there. Although the precise content and scope of those principles are open to debate, it is clear that the heart of the constitutional argument (at least concerning secession) relies on contextual premises, not textual ones. The key feature is therefore using the constitutional text as a marker to explore the deep structure of the constitution order in order to bring to light the elemental compo­ nents of the polity. Admittedly, the strategy nevertheless runs the very real and sizeable risk that the exploration will become stranded on or degrade to arguments restricted to the textual framework rather than built upon broader principles, the foundational com­ mitments, and the transformative potential in the polity. That is, we risk once again pushing the social dynamic of public value formation to one side in favour of fixing upon text, as the legal mindset is wont to do. While starting from specific provisions is unavoidable, the constitutional analysis must go beyond the terms and their relative positions in the constitutional document. A broader interpretive perspective is required. Those terms should be seen not only against the backdrop of the entire constitutional settlement, but also as articulating broader principles and values that trace out the his­ tory and current situation of the polity. The interpretive exercise, put another way, must match the gravity of the issues. Testing the foundations and basic structure of the consti­ tution, as in the case of secession, requires an equally comprehensive and penetrating scope, one that exposes the framework of political cohesion and the basic conditions of associating therein. That framework goes to the core of the association: who may create and rupture the bonds of association and how. Accordingly for secession, the interpre­ tive exercise will be to elicit from the constitution an understanding of the place and process of generating foundational commitments. Who may participate, individuals, groups or representatives? Who has a determinative voice, everyone or a select few? These and similar questions comprise the task of searching out any implicit direction regarding secession in the constitution. As announced above, I propose now to test these propositions (in a broad brush man­ ner) using the Canadian constitutional order as my example. Its constitutional structure

264  Constitutional Text and Context provides four portals to working out an implicit understanding of political disassocia­ tion: the structure of the state, the provisions for amending the constitution, constitu­ tionally entrenched rights and freedoms, and federalism. This last issue will form a separate and final section to this chapter. Structure of Context The sources for the ‘Constitution’ of Canada comprise both formal and informal parts. Formally, the ‘Constitution’ includes the Constitution Act 1867, the Constitution Act 1982, and statutes amending these.25 The Constitution Act 1867 is the basic document outlining the state structure of federal Canada, the basic structure of the provinces, and dividing the powers of state between federal and provincial legislators. Sections 91 and 92 of the Constitution Act 1867 contain the kernel of federalism for Canada. Section 91 confers on Parliament an over-arching power to legislate for all of Canada on matters of peace, order and good government, as well as allocating residual legislative power to it. Without limiting these general allocations, section 91 includes in its assignment of fed­ eral powers a further 28 specific areas of jurisdiction. Section 92 allocates to the legisla­ tures 16 areas of exclusive jurisdiction. (Provinces have certain additional powers over natural resources and immigration except insofar as their legislating in these areas is inconsistent with federal law.) It may fairly be said that the federal government exercises powers relating to matters of trans-provincial and national interest; the provincial gov­ ernments, matters of local or private nature. This belies the fact nonetheless that, at the time of Confederation, those powers allocated to the federal government were generally perceived to be the more important, more significant powers for the overall management of the country in all its phases. Circumstances have changed since 1867, such that pro­ vincial jurisdiction over property, civil rights and taxation has given the provinces sig­ nificantly more potential than originally intended. This re-adjustment of the balance of power has been in no small measure assisted by opinions of the Privy Council in the first decades of the twentieth century, where a marked leaning to provincial autonomy and contracting of federal authority is discernible in the rulings of the Privy Council.26 The Constitution Act 1982 contains the Canadian Charter of Rights and Freedoms (the ‘Charter of Rights’). The Charter of Rights is the constitutionally entrenched statement of basic rights and freedoms (sections 1–34) binding federal and provincial legislators (sec­ tions 32, 33 and 52), providing certain express guarantees for indigenous groups and regions of Canada (sections 35–36); setting the minimum standards for constitutional amendments (sections 38–49); and designating the Constitution Acts, 1867 to 1982 as the supreme law of Canada (section 52). In addition, there are several other Acts of Parliament (Canada) which are designated ‘constitutional legislation’, specifically those Acts estab­ 25   Constitution Act 1867 known prior to 1982 as the British North America Act 1867 (33 Vict c 3). The Constitution Act 1982 is Schedule B to the Canada Act 1982 (UK). 26   D Schneiderman, ‘Harold Laski, Viscount Haldane, and the Law of the Canadian Constitution in the Early Twentieth Century’ (1998) 48 U Toronto LJ 521; R Risk, ‘The Many Minds of W.P.M. Kennedy’ (1998) 48 U Toronto LJ 353, 362 ff (Kennedy’s criticism of Haldane’s judicial interpretation of province-centred fed­ eralism); and P Hogg and W Wright, ‘In Honour of the Late Justice Lysyk: Canadian Federalism, the Privy Council and the Supreme Court: Reflections on the Debate about Canadian Federalism’ (2005) 38 U British Columbia LR 329.



Of Context 265

lishing the Provinces of Manitoba, Alberta, Saskatchewan, the Northwest Territories, the Yukon and Nunavut.27 At the ‘informal level’, there are three principal components. Certain Acts of Parliament, although not strictly speaking ‘constitutional’ in guise or legal character, nevertheless bear sufficiently and significantly upon the organisation and organs of state so as to carry constitutional import and effect. They include the Clarity Act, the Constitutional Amendment Act, the Parliament of Canada Act, the Supreme Court Act and the Governor General Act.28 These are not formally constitutional in character because they represent ordinary legislation not affecting the express terms of the Constitution Acts, 1867 to 1982.29 Their amendment would not require compliance with the amendment provisions in Part V of the Constitution Act 1982. Accordingly, amend­ ments to these statutes may invite, but do not necessitate, compliance with the norms and conventions pertaining to constitutional amendments in general. Judgments of the courts (including reference opinions) addressing the provisions of the Constitution Acts, 1867 to 1982, or constitutional norms generally, represent impor­ tant and persuasive, but not binding, parts of the Constitution. There is no Continentalstyle ‘constitutional court’: all Canadian courts at the provincial level and federal level have jurisdiction to decide constitutional issues, subject to statutory prescriptions. Lastly, constitutional conventions provide the third informal branch of the ‘Constitution’ of Canada. Such conventions are accepted political practices and habits organising and governing political conduct and procedures at the parliamentary level, whether on daily business or constitutional issues.30 They are not legally binding. But they do raise an expectation in the public and in the actual political participants that the conventions will be followed in applicable circumstances, and not be departed from, except in highly unusual cases. And not insignificant public and political disfavour is occasioned by their breach, even being characterised as ‘unconstitutional’.31 Together, these formal and the informal parts combine to form the complete Constitution of Canada. Context of Structure The first possible site for eliciting a ‘constitutional power over secession’ is the basic document outlining the constitutional structure of the state and allocating legislative and other powers to the various organs of state. In the case of Canada, this instrument is the Constitution Act 1867. We might expect to find there any general or extraordinary 27   Manitoba Act 1870 (33 Vict c 3); Alberta Act 1905 (4–5 Edw VII c 3); Saskatchewan Act 1905 (4–5 Edw VII c 42); Northwest Territories Act RSC 1985 c N-27; Nunavut Act SC 1993 c 28. 28  An Act respecting Constitutional Amendments SC 1996 c 1; Clarity Act SC 2000 c 26; Parliament of Canada Act RSC 1985 c P-1; Supreme Court Act RSC 1985 c S-26; and Governor General’s Act RSC 1985 c G-9. 29   The bundle of the Constitution Act 1867, the Constitution Act 1982, and the intervening constitutional Acts and amendments (scheduled to the Constitution Act 1982) are called collectively the ‘Constitution Acts, 1867 to 1982’. 30   See, eg A Heard, Canadian Constitutional Conventions: the Marriage of Law and Politics (Toronto, Oxford UP, 1991); G Marshall, Constitutional Conventions: the Rules and Forms of Political Accountability (Oxford, Oxford UP, 1984); C Munro, ‘Laws and Conventions Distinguished’ (1975) 91 LQR 218. Yet see I Jennings, The Law and the Constitution, 5th edn (London, London UP, 1959) (doubting a strict separation). 31   Reference re Resolution to Amend the Constitution [1981] 1 SCR 753 (a breach of a constitutional con­ vention as ‘unconstitutional’, although the convention is not legally enforceable and no remedy exists at law for the breach).

266  Constitutional Text and Context powers ascribed to state constituents implying state-making and state-breaking based on the nature and status of those constituents in the constitutional order.32 First, the Constitution Act 1867 recognises only the federal (‘Dominion’) level, the provinces and the territories as the component entities of the state. The provinces (legis­ latures and respective governments included) came into being through the Constitution Act 1867, and accordingly owe their existence and authority to the Constitution. The provinces exercise their powers not as independent entities, but by virtue of being mem­ bers of the Canadian federation. Moreover, the former colonies were never sovereign in their own right but were always subject to the authority of the British Crown in Parliament.33 Unlike other constitutions, such as those of Belgium and the United States, the Canadian Constitution does not expressly repose ‘sovereignty’ in a ‘Canadian people’.34 The former colonies were in fact administrative units, and were in 1867 recon­ stituted or reformed in a new administrative configuration pursuant to UK legislation. Thus the existence of the provinces arises through and in the existence of Canada, the latter being logically and legally prior.35 The ‘original position’ of the provinces is pre­ cisely just as a province within a federation, and not as some ‘proto-state’ entering into a compact with others. The horizon of their jurisdiction and powers is accordingly bounded entirely by the Constitution of Canada. Secondly, the provincial legislatures and executives have only those powers specific­ ally conferred in the Constitution Act 1867, in particular those enumerated in sections 92–95. Given that secession is not listed in section 92 nor is it allocated elsewhere in the Constitution Act 1867 to a province, a power to secede clearly is ultra vires provincial jurisdiction. Nor is secession rationally connected to the pith and substance of those heads of power to be necessarily implied in them.36 None of the former colonies entering into Confederation from 1867 onward reserved rights of sovereignty, or imposed reser­ vations as to the residual authority of federal power.37 For example, Québec did not hold or retain any residual sovereignty after the 1763 Treaty of Paris. The Quebec Act 1774 did not contain any reservation of sovereignty: those institutions and laws specific to Québec were adopted and continued subject to any further British legislation.38 That status continued into Confederation. Thirdly, insofar as secession is an unlisted power and not implicated clearly and nec­ essarily in any enumerated provincial competence, it falls under the residual power. The 32   See G Craven, Secession: the Ultimate State’s Right (Melbourne, Melbourne UP, 1986) esp chs 4–6 (method applied regarding the Western Australia Secession Movement 1930–35). 33  K Wheare, The Constitutional Structure of the Commonwealth (Oxford, Oxford UP, 1960) 21–25; P Hogg, Constitutional Law of Canada, 4th edn (Toronto, Carswell, 1997) s 3.1. 34   Yet see Nova Scotia (AG) v Canada (AG) [1951] SCR 31, 34 per Rinfret CJC: ‘The constitution of Canada does not belong either to Parliament, or to the Legislatures; it belongs to the country and it is there that the citizens of the country will find the protection of the rights to which they are entitled. It is part of that protec­ tion that Parliament can legislate only on the subject-matters referred to it by s. 91 and that each Province can legislate exclusively on the subject-matters referred to it by s. 92.’ 35   Echoing G Craven, ‘Of Federalism, Secession Canada and Québec’ (1991) 14 Dalhousie LJ 231. 36   Canada (AG) v Nykorak [1962] SCR 331; R v Zelensky [1978] 2 SCR 940; Multiple Access v McCutcheon [1982] 2 SCR 161; and GM v City National Leasing [1989] 1 SCR 641 (doctrine of rational connection); and see Hogg, Constitutional Law (n 33) ss 15.5, 15.9 (the ‘pith and substance’ doctrine, and the characterisation of laws under the division of powers). 37   To the original provinces of Ontario (Upper Canada), Québec (Lower Canada), Nova Scotia and New Brunswick were added Yukon and Northwest Territories (Rupert’s Land and North-Western Territory Order 1870), British Columbia (British Columbia Terms of Union 1870), Prince Edward Island (Prince Edward Island Terms of Union 1873), and Newfoundland (Newfoundland Act 1949). 38   Quebec Act 1774 (14 Geo III c 3).



Of Context 267

residual legislative power, characterised in the Constitution Act 1867 section 91 as for ‘peace, order, and good government’, lies within Parliament’s jurisdiction, not the legis­ latures’. Thus, it is for Parliament to decide and rule on any attempt by a province to secede or pass such legislation within its constitutional mandate, restricting or permit­ ting provinces or other groups to secede as it sees fit. Finally, the Crown retains sovereignty through its supervening role over federal and provincial legislation under the power of disallowance. Section 90 of the Constitution Act 1867 confers on the Governor General the power to disallow provincial legislation as an act of the Crown.39 This power, having its roots in the Québec Act 1774, extends even to intra vires provincial legislation.40 Disallowance was an aspect of Canada’s con­ stitutional architecture considered by Wheare to render Canada a ‘quasi-federation’.41 It does not entail, however, that the provincial legislative and executive power is in any way subordinate to or derivative from Dominion (federal) powers. Neither the Constitution nor the Dominion has delegated nor conferred originally federal/Dominion legislative and executive power on the provinces. Those powers conferred by the Constitution Act 1867 represent original jurisdiction independent of Dominion control. Within the limits assigned by sections 92–95 of the Constitution Act 1867, the provincial legislatures exercise supreme and exclusive jurisdiction, an application of direct Crown authority in the province.42 A province enjoys an autonomous status and power within its constitutionally allocated spheres of jurisdiction, separate from interference by the federal government in the ordinary course. Although presently dormant (it has not been invoked since 1943), this power remains an express and live power able to be revived, until expressly varied or abolished.43 It could still therefore legitimately and validly be exercised to disallow such proposed pro­ vincial legislation as may inflict grievous harm on the federation. For example, before the enactment of the Constitution Act 1982 and its Charter of Rights and Freedoms, it was argued that the disallowance power continued to have relevance and usefulness to protect civil liberties.44 It seems fair and reasonable to interpret the disallowance power to cover provincial legislative attempts to enact and pursue secession. In such case, the harm would be manifestly the continued existence of the federation and the rights and interests it protected, providing the circumstances did not evidence oppression, discrim­ ination or general collapse as underlying motives. On its face, these considerations would suggest that the Constitution of Canada does not permit a province (or other group for that matter) to secede. Or, at least, no prov­ inces or other groups have the authority or power to secede. The provinces are creatures 39   Reference re Powers of Disallowance [1938] SCR 78 (the power not subject to any limitations or restric­ tions, save those time limits expressly set forth in Constitution Act 1867 ss 56 and 57). See generally G La Forest, Disallowance and Reservation of Provincial Legislation (Ottawa, Dept of Justice, 1955). 40   E Forsey, Freedom and Order (Toronto, McClelland and Stewart, 1974) 167–91; N Ward and R MacGregor Dawson, The Government of Canada, 5th edn (Toronto, Toronto UP, 1970) 231–35; JR Mallory, The Structure of Canadian Government (Toronto, MacMillan, 1971) 328. 41   K Wheare, Federal Government, 2nd edn (Oxford, Oxford UP, 1951) 20–21. 42   Hodge v The Queen (1883) 9 App Cas 117 (PC); Liquidators of the Maritime Bank v Receiver General (NB) [1892] AC 443 (PC) (per Lord Watson). 43  P Trudeau, Le fédéralisme et la société canadienne–francaise/Federalism and the French Canadians (Montréal, Eds HMH/MacMillan, 1967) 149; B Laskin, British Tradition in Canadian Law (London, Stevens & Sons, 1969) 122; Hogg Constitutional Law (n 33) s 5.3(e). See also (obiter) Reference re Resolution to Amend the Constitution [1981] 1 SCR 753, 802, and The Queen v Beauregard [1986] 2 SCR 56, 72. 44  Forsey, Freedom and Order (n 40) 167–71, and see also Mallory, Structure of Canadian Government (n 40).

268  Constitutional Text and Context of the Constitution without status or powers outside or predating it. But yet points reveal certain other features as well. Principal among them are the centralising and uni­ fying role of the Crown and federal government and the rationale and role of federalism. While the constitutional architecture of Canada possesses the expected horizontal (and vertical) division of powers characteristic of a federation, it is divided in such a manner that the very top of the structure serves a strong centralising force in the federation (for­ mally through residual powers and for the general good of the country). Throughout the entirety of Canadian constitutional architecture in all its parts, the thread of undivided shares of Crown authority pull the construction together as a unit, as a unified whole. It is reflected by the active role of the federal government in daily life, rather than at some administrative remove. The cohesiveness and integration suggests a political association for whom the division of engagement at local, regional and national levels suggests more a division of administrative convenience than of competing separate polities. From an associative view, this centripetal characteristic would begin to trace out a broad, comprehensive and national base for generating primary foundational commitments. It also necessarily entails ideas of equally broad-based co-operation, negotiation and compromise. At the same time, the federal aspect must also signify in characterising the polity. Principally it serves to qualify or limit any presumptuous view of a unified national pol­ ity by arguing the federal division to reflect more a division of polities than administra­ tive units. Québec argues not unreasonably that the historical record demonstrates just that. It goes further to expound a ‘two founding nations’ theory of Confederation. Québec is a separate substate polity identified primarily as Francophone, and the ‘rest of Canada’ (Anglophone) is the other. Québec then ties that claim to its administrative autonomy as a province, to argue for a provincial presence that is more than what is served up by the Constitution Act 1867. It bears mention that no similar account is given for Francophone populations in Alberta, Manitoba, Ontario, Nova Scotia and New Brunswick (Acadians). Constitutional provision is made for them, for example, in New Brunswick and Manitoba.45 No similar claim is made for enhanced constitutional status on behalf of the founding provinces of Nova Scotia and New Brunswick. Indeed, no account is rendered of distinct substate identities (actual or potential) for any other province. The perspective seems confined to the bifurcation of Québec-Francophone and ‘the rest of Canada’-Anglophone. There is also the matter of the aboriginal First Nations (including the Inuit) as separate substate nations within the political constellation of Canada – and without adding into the mix other smaller cohesive communities throughout Canada. All this shows a need to examine more closely the associational construct of the Canadian polity. Put simply, it is through the portal of federalism that we must consider whether substate polities were, or have now become, significant constitutional anchors in the transformative moment. A further nuance is also available. Federalism also neces­ sarily raises the point of a co-operative and negotiated engagement with constitutional change. Whether or not substate polities exist in fact, the federal character to the politi­ cal construct makes relevant and empowers regional units, and introduces an important overlay of regional voice, negotiation, compromise and executive responsibility. I will 45   Constitution Act 1982 ss 16–20; Manitoba Act 1870 (UK) s 23; and see Reference re Manitoba Language Rights [1985] 1 SCR 721.



Of Context 269

not explore these points in any detail (subject to certain further considerations given to federalism in the section below). My intention is simply to demonstrate on very broad lines that implicit constitutional direction to (fundamental) constitutional change should push the analysis beyond text and even context, into the deep structure of association. Context of Amending Powers The second possible site for eliciting ‘constitutionalised secession’ is the process for amending the constitution. For Canada, this is Part V of the Constitution Act 1982. Intuitively, peaceful secession would appear to be or necessitate a constitutional amend­ ment, thus invoking the relevant constitutional provisions. Secession alters the entire architecture of the state, redistributes powers amongst state organs, and redefines rela­ tionships among those organs and between citizens and those organs. Those alterations, however fundamental or wide-reaching, are by presumption amendments to the existing constitution. In the Canadian context, most commentators begin by examining the amending powers, even if only ultimately to discount them in preference for some other option.46 Debate is usually joined on the question of which of the various formulae apply to a secession attempt: unanimous consent (section 41) or majority consent (section 38). Needless to say, the unexpressed premise here is a province-driven secession bid. The amending powers issue would only be a marginal one in the case of another type of sub­ state polity pushing to secede. The argument in favour of invoking the section 38 general power to effect a secession amendment is fourfold. Firstly, it maintains that the absence of explicit mention of secession in any of the other amendment formulae, section 41 in particular, means that the general procedure should apply.47 The other formulae represent special instances, and are accordingly limited to the scope and terms set out in those provisions them­ selves. By the accepted and usual principles of statutory interpretation, a situation not covered by particular provisions falls to be regulated by the general section.48 Secondly, Constitution Act 1982 section 42 expressly renders constitutional amend­ ments relating to the admission of new provinces subject to section 38. The secession of an older province is merely the inverse of admission.49 The changes attendant upon a new provincial constituent in the federation would touch the same institutions, the same inter-provincial agreements, and the same powers, as would the severance of an extant 46   See, eg R Mayer, ‘Legal Aspects of Secession’ (1968) 3 Man LJ 61; Craven, ‘Of Federalism, Secession’ (n 35); P Monahan, ‘The Law and Politics of Secession’ (1995) 33 Osgoode Hall LJ 1; D Matas, ‘Can Québec Separate?’ (1975) 21 McGill LJ 387; M Thibodeau, ‘The Legality of an Independent Québec: Canadian Constitutional Law and Self–Determination in International Law’ (1979) 3 Boston College ICLR 99; J Webber, ‘The Legality of a Unilateral Declaration of Independence under Canadian Law’ (1997) 42 McGill LJ 281; R Howse and A Malkin, ‘Canadians are a Sovereign People: How the Supreme Court Should Decide the Reference on Québec Secession’ (1997) 76 CBR 186; W MacLauchlan, ‘Accounting for Democracy and the Rule of Law in the Québec Secession Reference’ (1997) 76 CBR 155; and J Woehrling, ‘Les aspect juridiques d’une éventuelle secession du Québec’ (1995) 74 CBR 293. 47   Woehrling, ‘Eventuelle sécession’ (n 46) 310 and his ‘L’évolution et le réamenagement des rapports entre le Québec et le Canada anglais’ in J Woehrling and JY Morin, Demain, Le Québec: choix politiques et constitutionnels dun pays en devenir (Québec, Septentrion, 1994) 1, 104–5; H Brun and G Tremblay, Droit constitutionnel, 2nd edn (Montréal, Eds Blais, 1990) 236; and Hogg, Constitutional Law (n 33) s 5.7(b) (with reservation). 48   F Bennion, Statutory Interpretation (London, Butterworths, 1984) 378 (‘generalibus specialia derogant’); P Langan, Maxwell on the Interpretation of Statutes, 12th edn (London, Sweet & Maxwell, 1989) 196–98. 49   J Brossard, L’accession a la souverainété et le cas du Québec (Montreal, PU Montreal, 1976) 264. See also Woehrling, ‘Eventuelle sécession’ (n 46) 311.

270  Constitutional Text and Context partner in the federation. Thus, the consent expected from other provinces for admis­ sion could surely be no greater nor lesser than that expected for the departure of a province. The third and fourth arms to the argument address section 41 unanimity concerns. The third branch suggests that the secession of a province does not directly affect the office of the Queen or Lieutenant Governor, although changes thereto may obtain indi­ rectly.50 The central thrust of any secessionist resolution is a withdrawal of a province from the federal arrangement. This goes to the division of powers, and not to the status of the Crown. The pith and substance doctrine stands for the proposition that the domi­ nant characteristic of legislation determines its nature and scope for constitutional pur­ poses. Section 41 requires that the secessionist resolution must be in pith and substance ‘in relation to . . . the office of the Queen, Governor General, or Lieutenant Governor’. But secessionist legislation, so the argument continues, is legislation in pith and sub­ stance relating to the division of powers, particularly where it makes no direct reference to disposing of the offices of the Lieutenant Governor or Queen. And as such legislation, it falls clearly under the section 38 general power. The fourth branch cites the lack of effective power and significance of the Lieutenant Governor in the present day legislative process and constitutional structure.51 The office is ‘trivial’ and hence the impact of secession upon it of correspondingly little or no effect. The Lieutenant Governor is merely the functionary of the current government, and per­ forms at most a ceremonial role in the daily workings of public administration. The abolition in 1968 of the Québec Legislative Council, an upper chamber to the provincial legislature, and prescribed by Constitution Act 1867 sections 71–79, set the precedent for derogating from the powers of the Lieutenant Governor.52 In addition to Québec, Manitoba (1876), New Brunswick (1893), PEI (1893) and Nova Scotia (1928) had already abolished their legislative councils.53 None of these amendments relied on unanimous consent. Therefore any coincidental abolition of the Lieutenant Governor’s position by a province would not fall under section 41. It is hardly surprising that the principal strategy for the attempt to subsume secession under section 38 is to find links with the terms of sections 38 and 42, and to distinguish itself from any connection to section 41. The problem for this strategy is the very word­ ing of section 41. Given that the office of the Queen and the Lieutenant Governor, the composition of the Supreme Court of Canada (including three appointees from Québec), and the use of French and English are certainly at risk in a secession, any argument to remove secession from the grasp of Constitution Act 1982 section 41 seems insupport­ able. And naturally, the proponents of imposing a section 41 unanimity requirement on secession focus on this, and make their cogent rejoinders easily.54 It is unquestionably the objective of secession to separate land and people from their current state allegiance. Moreover, a seceding government arrogates to itself that juris­ diction hitherto held and exercised by the federal government. But at the heart and core of the Canadian Constitution is, as expressed in the Preamble to the Constitution Act   Woehrling, ‘Eventuelle sécession’ (n 46) 311–12 and ‘L’évolution’ (n 47) 104–5.   Woehrling, ‘Eventuelle sécession’ (n 46) 312. 52   Act respecting the Legislative Council of Québec SQ 1968 c 9 and Act respecting the National Assembly RSQ c A-23.1 s 2. See also Woehrling, ‘Eventuelle sécession’ (n 46) 312 n 39. 53  Forsey, Freedom and Order (n 40) 227–28. 54   Principally Webber, ‘Legality’ (n 46) 288–91, and Monahan, ‘Law and Politics’ (n 46) 6–11. 50 51



Of Context 271

1867, ‘to be federally united into one Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a constitution similar in principle to that of the United Kingdom’ and to have ‘the constitution of the legislative authority in the Dominion be provided for’. In the Westminster system of government, it is the Lieutenant Governor together with the provincial legislature which exercise constitutional legislative author­ ity in and for the province.55 From a broader perspective, the Lieutenant Governor is the representative of the Crown within the province, and it is the Crown who holds and exercises an undivided sovereignty over each province and the entire country as a whole. The Lieutenant Governor is a delegate of the Governor General.56 If the office of the Lieutenant Governor were to remain unaltered by the secession, the Lieutenant Governor, as delegate of the Governor General and representative of the Crown, could still exercise the powers given under the Constitution Act 1867. Now this clearly entails an absurdity since secession denies the applicability of, inter alia, all the Constitution Act 1867. Were the office of the Lieutenant Governor to continue in a seceded province, there would remain at least on its face a foreign sovereign appointed to and exercising power at the head of the executive and legislative organs of state. This is inconsistent with secession. Clearly, the pith and substance of any secessionist resolution is to revise entirely the system of government for the province, and deny the federal government any continued exercise of its powers within that territory and over those persons.57 Secession is precisely a ‘matter in relation to . . . the office of . . . the Governor General and the Lieutenant Governor of a province’ under section 41(a). The exercise of sovereignty by secessionary self-constitution is also contrary, more broadly, to the continuing exercise of Crown sovereignty in the seceding province, unless the secession has the prior consent of the Crown. Secession, in its pith and substance, entails a rejection of Crown authority. The Crown holds and exercises an undivided sovereignty over each province and the entire country as a whole. Subject to the highly unlikely event of the Crown’s desire to revise the present constitution of its Canadian holdings, as it did in 1867, it is reasonable to assume the desire expressed by and through the Governor General and the Lieutenant General for a united Canada, rather than two separate holdings. A provincial government rejecting or ignoring this by consequence ignores or rejects the established, customary terms of the authority of the Queen, the ‘office of the Queen’ more broadly, in the province. And we should recognise as well that it is no objection that such an amendment to the office of the Lieutenant Governor should occur after a secession. The timing of any such formal change is irrelevant, since the act of seceding (under a constitutional amending power) engages these points immediately. The Lieutenant Governor’s powers are cur­ rent and operative until otherwise interfered with. Hence, the position would have to be altered to reconcile it with the new powers and status arrogated by the seceding execu­ tive and legislature. Thus we return to Constitution Act 1982 section 41(a). 55   Reference re Initiative and Referendum Act [1919] AC 935 (PC) (provincial legislative process may not bypass or exclude the Lieutenant Governor). See also Reference re Manitoba Language Rights [1985] 1 SCR 721 and generally Hogg, Constitutional Law (n 33) s 14.2(d). 56   Although constitutional convention allows the Lieutenant Governor to assent to provincial statutes in the name of the Crown, the Lieutenant Governor must in all formality signify the assent of the Governor General: Reference re Powers of Disallowance [1938] SCR 78. This in part grounded the power of (federal) disallowance of provincial legislation: Hogg, Constitutional Law (n 33) s 5.3(f). 57   Webber, ‘Legality’ (n 46) 288–89.

272  Constitutional Text and Context Continuing through the list in section 41 we come to ‘matters in relation to . . . the use of the English or French language’.58 Monahan suggests that the attempted secession of Québec could fall under this category because of the effect of denying the language guaran­ tees in Constitution Act 1867 section 133 and Constitution Act 1982 section 23(1)(b).59 The former refers to the use of English and French in Parliament, the Québec National Assembly, any court of Canada, the courts of Québec, and Canadian and Québec legisla­ tion. It is difficult to understand how this serves as an argument for a section 41(c) cate­ gorisation, when section 43(b) clearly applies to language guarantees in one or more but not all provinces. Monahan does not develop it nor press it. Instead, he concentrates on guarantees of French or English as the language of instruction for children in the provincial language minority, where the parents have received primary schooling in that minority language. This more obviously concerns all the other provinces, inasmuch as attempting secession would deprive Anglophone residents moving to Québec of that right. These changes to section 23 wrought by secession thus fall under section 41(c). And more broadly, section 23 represents a trans-Canada language regime applying variously to French and English minorities and majorities in all the provinces.60 All provinces are concerned in any change to the rights under section 23. This point is of limited effect, however, when the secession bid of any other (predominantly Anglophone) province is considered. Lastly, secession arguably relates to section 41(d) constitutional amendments in rela­ tion to the composition of the Supreme Court of Canada. It is the Supreme Court Act which guarantees seats to three judges from Québec.61 Those seats would be lost after Québec independence. But the Supreme Court Act is not a formal part of the Constitution, and section 41(d) refers to ‘amendments to the Constitution of Canada’. Hogg concludes that section 41(d) is therefore inapplicable.62 On the other hand, it is arguable that this explicit reference to the composition of the Court has incorporated the allocation of seats into the constitutional, federal structure. Indeed, Monahan argues that the com­ position of the Court is thereby constitutionally entrenched, for any other reading leads to anomalous consequences.63 Now it is possible to weigh these arguments incorporating secession into section 41 individually and consecutively, or cumulatively as one package. Almost all the heads of section 41 are contemporaneously engaged in a secession attempt. Secession therefore invokes the unanimity power even though secession is not expressly mentioned any­ where in Part V of the Constitution Act 1982. For example, while Monahan advances all three grounds, Webber discounts as secondary all but the arguments for section 41(a) concerning the office of the Lieutenant Governor.64 The changes produced to language rights and the Supreme Court of Canada are collateral or incidental (whether or not they produce anomalous readings). But divorcing the office of the Lieutenant Governor from the supervision and control of the Governor General and Parliament is necessary to con­ sider the seceding province as fully independent. 58   Constitution Act 1982 s 41(c) (the express reservation in favour of s 43, referring to French or English use in one or more provinces, is irrelevant). 59   Monahan, ‘Law and Politics’ (n 46) 11–13. 60   ibid 12–13 (relying on Québec (AG) v Québec Protestant School Boards [1984] 2 SCR 66). See also Mahe v Alberta [1990] 1 SCR 342. 61   Supreme Court Act RSC 1985 c S-26, s 6; Monahan, ‘Law and Politics’ (n 46) 14–15. 62  Hogg, Constitutional Law (n 33) s 4.4. 63   Monahan, ‘Law and Politics’ (n 46) 14–15. 64   Webber, ‘Legality’ (n 46) 290.



Of Context 273

Nevertheless, the strength of this position is also its weakness. The transformation of the office of the Lieutenant Governor is but one aspect of the larger secession project. Undoubtedly, the critical element is the arrogating of all legislative power to the provin­ cial legislature, and reconstructing and establishing the necessary state organs. These matters would fall under the section 38 general power, being nowhere else provided for under Part V. Indeed, most amendments concerning fundamental institutions of federal­ ism require only majority and not unanimous approval. Moreover, secession need only affect Parliament’s continuing power of appointment and supervision of the Lieutenant Governor, and not the substance of the office in its Westminster form. This further mar­ ginalises the issue of the Lieutenant Governor and strengthens Woerhling’s contention that secession in pith and substance addresses matters outside section 41.65 Neither Webber nor Monahan develop arguments against the applicability of the section 38 general power. Monahan does not consider the point. Webber consigns his only observation on section 38 to a footnote, suggesting that secession is distinguishable from the admission of new provinces which also falls under the section 38 rubric.66 Nevertheless, in the deeper, more sophisticated analysis of the two, Webber bolsters his position on section 41 by examining the applicability of the amending power as a whole to secession.67 If Constitution Act 1982 Part V is to cover secession, then the amending process must encompass secession: secession must be taken as an amendment to the Constitution. He argues that secession should indeed be considered as an amendment because continuity, stability, effectiveness and democratic ideals are all beneficially served by having a clear, predictable and constitutionally prescribed means to acknow­ ledge secession. Moreover, Constitution Act 1982 section 52(3) requires that amend­ ments ‘shall be made only in accordance with the authority contained in the Constitution of Canada’, which by section 52(2) includes the Constitution Acts, 1867 to 1982. This is an expansive, open definition: it leaves open the possibility of additional elements. These may include unwritten constitutional principles which can modify or qualify the amend­ ing power.68 Webber suggests that the likely potential candidates are a constitutional convention, contract theory, public international law and popular will.69 Although these may not provide concrete and express legal norms to guide the constitutional process, it is of importance nonetheless to recognise in this interpretative strategy the probing of the deeper structure of the constitutional order. Even so, and with the realist’s objection still echoing, all this argumentation may seem an exercise in futility. It does not muster any significant reply to the rejoinder that, if a   Woehrling, ‘Eventuelle sécession’ (n 46) 310–13 and ‘L’évolution’ (n 47) 104–5.   Webber, ‘Legality’ (n 46) 290 n 22. 67   ibid 297–99, 312–17. 68   Reference re Secession of Québec [1998] 2 SCR 217; The Queen v Beauregard [1986] 2 SCR 56; Harvey v NB (AG) [1996] 2 SCR 876; and New Brunswick Broadcasting v Nova Scotia (speaker) [1993] 1 SCR 319 (although not relating to the amending powers). See also Howse and Malkin, ‘Reference on Québec Secession’ (n 46) 192–96 (formal procedures for constitutional change shaped by the Constitution as a whole). Yet see J Leclair, ‘Canada’s Unfathomable Unwritten Constitutional Principles’ (2002) 27 Queen’s LJ 389. 69   Webber, ‘Legality’ (n 46) 302–4 (constitutional convention), 304–6 (compact theory of Confederation, being a contractual agreement of sorts among the original colonies of British North America), 306–11 (selfdetermination and public international law), and 311–12 (democratic legitimacy and popular sovereignty). See also D Turp, ‘Le droit de faire sécession: l’expression du principe démocratique’ in his Le droit de choisir: essais sur le droit du Québec à disposer de lui-même; The Right to Choose: Essays on Québec’s Right of SelfDetermination (Québec, Eds Thémis, 2001) 489–504 and his ‘Québec’s Democratic Right to Self-Determination: A Critical and Legal Reflection’ in ibid 505–30; and G Marchildon and E Maxwell, ‘Québec’s Right of Secession under Canadian and International Law’ (1992) 32 Virginia JIL 583. 65 66

274  Constitutional Text and Context province or other grouping decides to secede, no volume of constitutional ink and rhet­ oric can stop the progression to independence. Monahan and Webber concede as much, arguing that constitution-based arguments serve not as legal proscriptions but as addi­ tional points to legitimacy and morality.70 But more to the point, the arguments them­ selves are inherently unable to reply. Not only do they fail to answer whether the process and result of will-formation is valid and legitimate within the constitutional context, they simply assume the decision to be valid as such. This leads to a contradiction in the analysis to apply section 41. By contending that the unanimity power applies to seces­ sion, whether on the narrower Webber platform or the undifferentiated Monahan one, we subject the provincial will-formation to the a posteriori control of the will of the other provinces. Another province may deny secession. We come then to an impasse. Either the will and desire of the secessionist province trumps the application of section 41 and secession proceeds irrespective of any constitutional niceties such as those debat­ ing the applicability of Constitution Act 1982 Part V – indeed, accepting the univalent and unilateral will-formation without more leads to the conclusion that no established constitutional amending power is acceptable and applicable. Or the Constitution trumps raw, undistilled political will, and all such will-formation may only be realised upon, in and through a constitutional instrumentality. And that entails the possibility of a proposal for constitutional amendment, whether secession or otherwise, being rejected. Once we invoke the amending powers, we must also accept as implied thereby the defea­ sibility of the secession proposal. That is, only if a secession proposal is treated as intrin­ sically defeasible can we coherently treat it as a constitutional amendment. Only thereby can we attain the necessary internal and external consistency for our position. So it seems of little use to discuss at length which of the various amending formulae apply in advance of answering the more fundamental and significant question of the constitutional status of that will-formation. It is that which holds the kernel of a ‘consti­ tutionalised’ secession. The nature of a constitution, as set out in chapter 2, represents a means of structuring and ordering social power and thus acts as a template for marking off legitimate and valid exercises of power from those not so. Translating the drive to secede into constitutional terms requires judgements at the start on the nature and status of the group claiming secession and the validity and legitimacy of that claim. The real question is not how a secession might be effected, but whether the formation and state­ ment of the political will to secede is constitutionally recognisable. That prerequisite characterisation will then guide how secession might (or might not) be effected in a con­ stitutional order. By focussing on the constitutional ‘how’, Monahan, Webber, and like commentators blind themselves to the antecedent constitutional ‘whether’. It follows from this realisation that it is no longer necessary to produce apologies to apply the constitution to a seemingly ‘political’ event. Instead, the emphasis shifts away from the amendment to determining the constitutionally appropriate and prescribed means for that will-formation to occur. The technicality of amendment retires to a col­ lateral phase, an afterthought, to give effect to the changes without the participation of the seceding province.71 Determining who may voice a claim to secede and the nature of that claim are quintessentially constitutional matters: they pertain to the location and exercise of social power. Whether the claimant is a territorially-concentrated group, a 70  Webber, ‘Legality’ (n 46) 283–85; and Monahan, ‘Law and Politics’ (n 46) 1–2; see also Craven, ‘Of Federalism, Secession’ (n 35) 256 ff. 71   Accord: Howse and Malkin, ‘Reference on Québec Secession’ (n 46).



Of Context 275

municipality, a county, or a province, the same issues arise concerning the formation, expression and weight of their claims. The central question is whether the constitutional order accepts the claim to secede as authoritative, issuing from an authentic locus of social power. In other words, does the claim to secede represent for the constitutional order an authentic and authoritative expression of democratic will-formation for that order? Is a univalent and unilateral will-formation sufficient or is a wider consultation necessary? Or to set the question in the terms developed herein, is a narrowly, exclu­ sively defined transformative event (by which common associative commitments are developed) sufficient to override one more broadly cast across all members of the polity? And it should be clear by this point that the narrow confines of a mere textual treatment of constitutional secession have been left behind in favour of a deeper consideration of the constitutional context, of the ‘unwritten principles’ articulated to a degree in the text itself. Context of Constitutional Rights and Freedoms A further locus for constitutionalised secession may be in constitutionally entrenched rights and freedoms. I assume still a peaceful, constitutionally ordered secession attempt. Because secession intends by some form of legislative act to sever the constitutional connection with the rump state, secession would thereby deprive inhabitants of the secessionist territory their rights entrenched in the constitution. In the case of Canada, the Constitution Act 1982 contains those rights and freedoms: the Charter of Rights. Governmental acts threatening to deprive or actually depriving citizens of their constitu­ tionally guaranteed rights are prima facie actionable, and subject to judicial review and sanction. Moreover, the procedure for deciding upon and implementing the secession (up to actually severing the constitutional link) arguably remains under the jurisdiction of the Charter of Rights, and accordingly may violate those guaranteed rights. Challenging a provincial legislative secession attempt is not as far-fetched as it might initially seem: the cases of Bertrand v Québec (No 1) and Bertrand v Québec (No 2) are hard examples to the contrary.72 Indeed, both affirm the justiciability of testing the seces­ sionist legislative programme of a provincial government for constitutional conformity. The issue for present purposes is therefore whether the Charter of Rights does offer useful and compelling answers about a constitutional concept of secession . Applying the Charter of Rights to a provincial attempt to secede seems less a means to state the principles underlying the constitutional order than a collateral attack upon seces­ sion projects as a whole. For the Charter to apply, two preliminary conditions ought to be satisfied. First, the secession process must be a legislative or governmental act, and not that of a private, non–governmental actor, as prescribed by section 32(1).73 Inasmuch as a pro­ vincial government legislates the course of independence, little dispute arises. But if the provincial government merely stood by as popular support drove the claim for indepen­ dence over erstwhile provincial territory by a non-governmental political group, it remains 72   Bertrand v Québec (AG) (1995) 127 DLR (4th) 408 (Que SC) and Bertrand v Québec (AG) (1996) 138 DLR (4th) 401 (Que SC). 73   See, eg RWDSU v Dolphin Delivery [1986] 2 SCR 573; BCGEU v BC [1988] 2 SCR 214; McKinney v Univ Guelph [1990] 3 SCR 229; Stoffman v Vancouver Gen Hospital [1990] 3 SCR 483; Douglas/Kwantlen Faculty Association v Douglas College [1990] 3 SCR 570; and Lavigne v OPSEU [1991] 2 SCR 211. See also Hogg, Constitutional Law (n 33) s 34.2.

276  Constitutional Text and Context a question untreated in Canadian constitutional law whether the Charter of Rights can transcend its liberal roots of preserving only a ‘negative freedom’ in order to mandate posi­ tive acts by a government. That is, the Canadian courts have approached the rights guar­ anteed in the Charter as limits on government action, as protected spheres of individual action. But the move from merely preventing undue state intrusion into the private sphere, to imposing positive obligations on governments to take certain steps, remains an open question. Certainly arguments and examples in favour exist. The courts already compel such acts, albeit indirectly, when they order remedies for violations of rights. For example in Reference re Manitoba Language Rights, because the failure of Manitoba to enact offi­ cial French versions of its statutes contemporaneously, if at all, effectively rendered its entire unilingual legislative output unconstitutional and invalid, Manitoba was obliged to comply with its constitutional duty or be faced with a legislative clean slate.74 In Vriend v Alberta, although human rights legislation which expressly and intentionally excluded protection against discrimination on the basis of sexual orientation would oth­ erwise be invalidated as a whole, the Supreme Court of Canada chose to read into the Alberta statute those protections in fulfilment of the province’s constitutional duty.75 Stretching through Schachter v Canada, Haig v Canada and Native Women’s Assn of Canada v Canada, there exists the recognition of the possibility that, at least under sec­ tion 15 equality rights, ‘the Charter is indeed a hybrid of positive and negative protec­ tion, and that a government may be required to take positive steps to ensure the equality of people or groups who come within the scope of s.15’.76 And moreover, given ‘the purposive approach articulated by this Court in R v Big M Drug Mart Ltd [1985] 1 SCR 295 . . . a situation might arise in which, in order to make a fundamental freedom mean­ ingful, a posture of restraint would not be enough, and positive governmental action might be required’.77 Yet the certainty by which these may be argued to mark an evolv­ ing principle of positive obligations on governments, and the scope thereof, are by no means a given. In Auton (Guardian ad litem) v BC (AG), the Court rejected a bid under section 15 to set a positive obligation on the government to fund a specific treatment for autistic children, in addition to what funded programmes were already in place.78 Now, even if we manage to settle upon a compelling position in favour of applying the Charter under this first condition, we must still clear a second. For a legislative pro­ gramme effecting secession seems less a matter of ordinary legislative competence and one more of a constitutional variety. Establishing a new constitution and legal order would ordinarily proceed through the parliamentary process and be taken up as a legis­ lative act, albeit with the special status accorded constitutional legislation. Conversely, prohibiting secession would presumably require some statement of intention, or intro­ duction of a constitutional provision to the effect of the indivisibility of the state, or like resolution. A mere statement of intention is not a legislative instrument from any per­ spective. An unenforceable policy statement, it would be immune from review. Whether 74   Reference re Manitoba Language Rights [1985] 1 SCR 721 (the current unilingual legislation remaining enforceable pending translation into French and enactment by Manitoba). 75   Vriend v Alberta [1998] 1 SCR 493 (Individual’s Rights Protection Act RSA 1980 c I-2). 76   Schachter v Canada [1992] 2 SCR 679; NWAC v Canada [1994] 3 SCR 627; and Haig v Canada (Chief Electoral Officer) [1993] 2 SCR 995, 1041–42 (L’Hereux-Dubé J). 77   Haig v Canada [1993] 2 SCR 995, 1039 (L’Hereux-Dubé J). 78   Auton (Guardian ad litem) v BC (AG) [2004] 3 SCR 657.



Of Context 277

it could yet have legal consequences by virtue of creating legitimate expectations is open to question.79 In any event, it is established doctrine that one part of the Constitution, the Charter in this case, may not serve to undermine or measure another part. This includes possible constitutional amendments.80 The reasons are twofold. First, the Constitution must be read as a whole.81 Secondly, the Charter applies to the individual powers of each level of government. But it does not cover the joint, combined exercise in the context of an amendment.82 That is, Constitution Act 1982 section 52 is to be read disjunctively, so as to cover the jurisdiction of Parliament and those of the legislatures, but not both together. So proposed amendments to implement a secession and adopt a new constitution would be outside the jurisdiction of Charter review. Bertrand v Québec (No 1) and (No 2) require some explanation given the points above. Contrary to the earlier authorities, the Bertrand cases appear to suggest that a provincial attempt to secede, by legislative act or constitutional amendment, is in fact subject to Charter scrutiny. In Bertrand v Québec (No 1), an action to stop the impend­ ing secession referendum in October 1995, the court issued a declaration that Bill 1, ‘An Act respecting the Future of Québec’, constituted a ‘serious threat to the rights and free­ doms of the Plaintiff as guaranteed by the Canadian Charter of Rights and Freedoms’. But it refused an injunction because an injunction would paralyse the workings of the National Assembly and purport to restrict parliamentary debate. Prohibiting a referen­ dum might cause greater harm and disorder than allowing it to proceed. Although the court could not prevent the exercise of political forces, it certainly would not approve a violation of the Constitution. That Bill purported to circumvent the established consti­ tutional amending power in force and establish a new legal system, an act outside consti­ tutional prerogative. A court may intervene in the parliamentary process before a law and like measures are assented to, but only in the extraordinary situation where no rem­ edy was available before the parliamentary process would achieve its objective, the very objective which the laws from which the legislature derived its existence and powers intended to prevent.83 Notwithstanding the defeat of the sovereignty referendum, Bertrand pursued his action against the Québec government for a declaration that unilateral secession was unconstitutional and contravened his rights under the Charter of Rights and Freedoms. In Bertrand v Québec (No 2), the court dismissed the Québec government’s motion to strike the whole action as non-justiciable. No customary privilege or prerogative exempted any public authority, government or legislative assembly from rights and freedoms guaranteed under the Charter of Rights. Whether or not the acts of the gov­ ernment in this case to achieve independence were immune, or could be immune, from constitutional review was a question for trial. Secondly, the courts are charged   Operation Dismantle v The Queen [1985] 1 SCR 441.   The Charter may apply to matters collateral to the amendment process, such as solicitation of opinions (NWAC v Canada [1994] 3 SCR 627) or a referendum (Haig v Canada (Chief Electoral Officer) [1993] 2 SCR 995), but not to the substance of the amendment process itself. 81   Penikett v Canada (1987) 45 DLR (4th) 108 (BC CA) and Reference re Bill 30 (1986) 25 DLR (4th) 1 (Ont CA). 82   Sibbeston v Northwest Territories (AG) [1988] 2 WWR 501 (NWT CA) and Penikett v Canada (1987) 45 DLR (4th) 108 (BC CA). 83  Citing Rediffusion (Hong Kong) v Hong Kong (AG) [1970] AC 1136 (PC) (legislative process possibly subject to injunction if no other remedy available; in that case the invalid law complained of was not yet assented to, hence remedies were not exhausted). 79 80

278  Constitutional Text and Context with the duty to ensure the rule of law and that fundamental rights and freedoms will be respected by the public authorities. Alleging in the circumstances that the acts of the Québec government to seek independence from Canada would violate certain constitu­ tionally guaranteed rights and freedoms were a matter for the trial judge to determine on the evidence and after full argument. Thirdly, whether or not secession was covered by international law and was applicable to Québec was a matter of significant controversy and uncertainty. As such it was also a matter for trial. Ultimately, Bertrand v Québec (No 2) was overtaken and overshadowed by the Québec Secession Reference. On the one hand, the Bertrand cases are easily reconcilable with the established authority against applying the Charter to proposed constitutional amendments. In the latter cases, the provinces and federal government were acting well within their constitu­ tional prerogative and within constitutional boundaries. In the Bertrand example, the Québec government was acting alone outside the boundaries of that prerogative. It had usurped powers not allocated to it. Hence the court’s focus on ultra vires acts rather than which amending power should apply (itself a rather telling point against the com­ mentators concentrating on the amending powers to constitutionalise secession). On the other hand, Bertrand v Québec (Nos 1 and 2) have little or no practical impact on the secession problem. After all, the court issued only a declaration and did not interfere actively in the secession process by way of injunction. Moreover the value of such a dec­ laration is questionable, for it would be a most peculiar form of secession which did not jeopardise the continuing existence and application of the rump state’s constitutional rules and principles within the secessionist territory. And not only did the cases not con­ sider the application of Constitution Act 1982 section 1 (reasonable limits on rights pre­ scribed by law demonstrably justified in a free and democratic society) to the alleged breaches, they can also be limited in effect to unilateral provincial secession. That is, nothing in the cases establishes that Charter rights prohibit secession (or render Canada indivisible) or prohibit the process of proposing and effecting a secession, provided at least that the federal government is involved. Accordingly, the only purpose served by the Bertrand line of authority is the suppos­ edly negative optic of a declaration of threatened Charter violations. Presumably, the declaration would serve to colour claims of ‘validity’ and ‘legitimacy’.84 It does little to outline constitutional principles accepting or denying the secession movement as an authentic and authoritative expression of social power. Instead, underlying an attempt to apply the Charter to a secession attempt is an objection to secession as a whole. And the Charter text itself cannot obviously meet the demands of sustaining that objection. It is the context of a ‘free and democratic society’, of its constitutional order, which must fund the discussion. SECESSION AND FEDERAL CONSTITUTIONS

One aspect not considered by Webber, Monahan, and others, is whether the principle of federalism could have an impact on the question of secession and constitutional amend­ ment. Howse and Malkin do address federalism, if only to exclude the other provinces 84   Echoed in Webber, ‘Legality’ (n 46); Woehrling, ‘Eventuelle sécession’ (n 46); and Craven, ‘Of Federalism, Secession’ (n 35).



Secession and Federal Constitutions 279

from the debate and reduce the parties negotiating secession to the federal government (for the national interest) and the seceding province.85 Norman and Tierney, among others, approach secession indirectly through the optic of a federal accommodation of substate nations.86 A secession option or power is one additional tool in the overall, broader federalist construct of constitutional accommodation of substate nations. My objective here is to consider what deeper associational structures federalism may point to that have a bearing on political will-formation, and in particular state-making and state-breaking. Federalism is one of the more significant, broader principles creating the context or framework of the Canadian constitutional order. Specifically, not only is Canada a con­ stitutional democracy, it is one whose internal relations and structure of democratic will-formation are modulated by interlocking and autonomous federal levels. Hence the conditions for an authoritative and authentic voice depend not only on democratic norms, but also federal ones. The exposition concerning secession might run as follows. To begin, Canada is a federation, and federal norms clearly operate in the constitutional order. The amending powers of Constitution Act 1982 Part V evidence that unambigu­ ously. Next, federalism is arguably linked inherently to the condition of secession on two broad levels. First, the autonomy conferred on the constituent regional parties reflects their innate sovereignty or status as proto-state. The drive to realise upon the completion of that status as independent state motivates the secessionist impulse. This represents the structural premise. Secondly and related thereto, federal arrangements commonly arise as political settlements among socially and culturally diverse popula­ tions who reflect separate and apart sources of values, legitimacy, national identity, and so on. Buchanan argues, for instance, that federalism may promote and facilitate seces­ sion through a tendency towards discriminatory redistribution or distributive injustice, allowing a partition of the wealthier sections from the poorer.87 The diversity strains the compromises necessary or imposed to maintain political co-operation on certain issues, until the will to compromise is no longer sufficient to override more basic nationalistic desires and interests.88 This represents the political premise. Secession merely plays out these two elements here alleged to underlie federalism, and a federal constitution can account for them in its amending powers. In other words, a secession-minded province is constitutionally competent to form its will to secede with­ out the intervention of other provinces either before or after the fact. For example, in both secession referenda in Québec, the federal government did not intervene to prevent or discredit the holding of those referenda as contrary to the Canadian constitutional order or as not reflective of the democratic will of Québeckers. Turp relies on this to argue also for a constitutional convention of allowing Québec to decide for itself .89 The structural premise not only allows the secessionist province to realise upon its innate 85   Howse and Malkin, ‘Reference on Québec Secession’ (n 46) 205–7. And see Brossard, L’accession (n 49) 95–99, 239–41, 256 ff, 745–64 (dealing with the pre-1982 circumstances and treating arguments for Québec independence as grounds to renegotiate the federal distribution of powers). 86  Norman, Negotiating Nationalism (n 3) esp ch 6; and Tierney, National Pluralism (n 3) 133 ff, 256–71. 87   A Buchanan, ‘Federalism, Secession, and the Morality of Inclusion’ (1995) 37 Arizona LR 53. See also T Christiano, ‘Secession, Democracy and Distributive Justice’ (1995) 37 Arizona LR 65 (challenging discrimi­ natory redistribution as a legitimate grounds for secession). 88   R Watts, Comparing Federal Systems, 2nd edn (Kingston, McGill-Queen’s UP, 1999) 110; T Franck, ‘Why Federations Fail’ in T Franck (ed), Why Federations Fail (New York, New York UP, 1968) 167. 89   Turp, ‘Droit de faire sécession’ (n 69) and ‘Québec’s Democratic Right’ (n 69).

280  Constitutional Text and Context sovereignty status, but defines it as the relevant political unit to issue and effect the deci­ sion. Minorities within the province do not enjoy that proto-state status, and accord­ ingly the principle cannot justify their attempts to secede from that province. For example, proponents of Québec secession would thus foreclose upon a domino-effect of further territorial partition occasioned by the Anglophone and aboriginal minorities in Québec claiming a like right to secede.90 And by that premise, because secession does not affect the formal distribution of powers between the provinces and federal government nor the status of the provinces as such, the other provinces have no role to play in a secession amendment.91 The political premise supports the legitimacy of a unilateral decision. The other provinces reflect their own regionally-based interests. Only the fed­ eral government can speak on behalf of the national interest (howsoever conceived, with or without the secessionist population). This interpretation of the federal principle would therefore institute a process sup­ planting the application of the amending powers in the ordinary course. Those were intended to cover nation-building, not the fundamentally different event of nationbreaking.92 Amendments to the Canadian Constitution consequential upon secession would obtain pursuant to the relevant provisions of Constitution Act 1982 Part V but would not involve the now independent province. For the process of discussing and arranging secession, assuming it either to be inevitable or by consent, would have already occurred between the secessionist province and the federal government. By virtue of the two premises, the structural and the political, the two valid and legitimate poles of con­ stitutional and democratic decision-making are the provincial (regarding secession) and the federal (regarding the national response). only the secessionist province and the fed­ eral government are required to decide upon secession, its terms and implementation.93 So federalism, as one of the unwritten principles of Canadian constitutionalism, would appear to provide a substantial argument against Webber’s argument for the application of Constitution Act 1982 section 41, one even consistent with Webber’s own terms. At the heart of these two premises, the structural and the political, lies the single common claim that substate units or associations are the fundamental building-blocks of the state. They agree, by accord, compact or contract, to create a state.94 Federalism reflects or gives expression to that original position of discrete political and social enti­ 90   See, eg, Brossard, L’accession (n 49) 719–24 (considering the possibility of Anglophone secession attempts after Québec independence); Woehrling, ‘L’évolution’ (n 46) 135–36 (allowing for the possibility of an aboriginal right to secede, and dismissing in a footnote Anglophone pretensions to secede) and his ‘Les aspects juridiques’ (n 46) 327–28; Norman, Negotiating Nationalism (n 3) 177 ff (leaving the question open). See also T Franck, R Higgins, M Shaw and C Tomuschat, ‘The Territorial Integrity of Québec in the Event of the Attainment of Sovereignty: Expert Report Prepared upon Request of the Government of Québec’ (1992) in A Bayefsky (ed), SelfDetermination in International Law: Québec and Lessons Learned (Deventer, Kluwer, 2000) (denying aboriginal and minority rights of external self-determination). 91   Howse & Malkin ‘Reference on Québec Secession’ (n 46) 206. 92   ibid 192. 93   Taken up in the Clarity Act SC 2000. 94   Compact theory of Canadian Confederation (Canada formed by agreement of two founding peoples: Francophones /Québecois and Anglophones/the others: see, eg E Black, Divided Loyalties (Kingston, McGillQueen’s UP, 1975); N McLeod Rogers, ‘The Compact Theory of Confederation’ (1931) 9 CBR 395); Webber, ‘Legality’ (n 46) 304–6; R Macdonald, ‘. . . Meech Lake to the Contrary Notwithstanding (Part I)’ (1991) 29 Osgoode Hall LJ 253; and S Beer, ‘Federalism and the Nation State: What Can be Learned from the American Experience’ in K Knop, S Ostry, R Simeon and K Swinton (eds), Rethinking Federalism: Citizens, Markets, and Governments in a Changing World (Vancouver, UBC Press, 1995) 224, 234–36 (evidence for a ‘thin’ version of the theory). See also P Romney, Getting it Wrong: How Canadians Forgot Their Past and Imperilled Confederation (Toronto, Toronto UP, 1999) (polemical pro-compact).



Secession and Federal Constitutions 281

ties associating to form a broader (federal) state. By virtue of that common premise, the relevant and fundamental expression of democratic will-formation originates in and from that substate unit. Authoritative political decisions issue out of the Canadian prov­ inces. Inasmuch as a province is consulted on a national issue, and is jumbled in with the other provinces, the overall opinion is derivative upon province-specific political will. Indeed, the constitutional amending process clearly demonstrates the basic principle by requiring antecedent provincial consultation and consent to effect constitutional change. And whether or not it further stipulates particular elements to the mechanics of the secession process, such as consultation and negotiation, this construction of federalism represents easy steps to grant the primary rights model a privileged and preferred status to conceptualise secession. Thus, in matters of secession, the federalism principle constitutes the substate units (the Canadian provinces here) as the relevant political association from which legitimate and valid decisions on secession may originate. While the status of minority groups within a province to secede may remain debatable, the status of a provincial population to express and realise upon a desire to secede presumptively enjoys democratic legiti­ macy according to the federalism context. Put in terms of associative constitutionalism, the federalism principle restricts the fundamental transformative event to provincial members only, and not to the broader state population. In effect, the federalism prin­ciple justifies excluding the rest of a state’s population from participating in the will-formation crystallising the will to secede. Accepting this entails accepting the inde­ feasibility of a provincial proposal to secede because of its inherent legitimacy and valid­ ity. This explains in part the absence of any serious questioning by many commentators of the democratic legitimacy of a unilateral, univalent Québec expression of a desire to secede, and without any justifying wider consultation of the Canadian population. Once a province democratically decides to secede, the only justifiable and principled reaction available to the rest of the country is the negotiation of the terms of secession. Rejecting the proposal or seeking anything less than the fundamental renovation and reconstitu­ tion of the state would be inconsistent with the principles forming the core context of the constitutional order, and arguably represent a breach of that order. It stands in contradiction with the principles of federalism and democracy. It is, in a word, unconstitutional. So the key to analysing federalism as a constitutional tool in a secession crisis depends upon the optic of federalism through the lens of political association. Structure and Politics The first defining element of federalism as constitutional architecture is the division of plenary legislative jurisdiction between a general, national government and separate regional units, whereby no one legislative unit exercises all legislative power directly over the population. It intends, in short, a division of sovereignty among national and various regional legislative organs whereby no one organ may act in all fields. No hard and fast rule of allocation exists: each federal systems reflects its own settlement on the division of powers within its peculiar political circumstances.95   See, generally Watts, Comparing Federal Systems (n 88) 35 ff.

95

282  Constitutional Text and Context There are two aspects to the division of powers. First, each level has its own, different set of competences allocated on an exclusive basis such that each forms a co-ordinate, sovereign jurisdiction in its own right.96 Co-ordinate sovereignty means that each legis­ lature acts independently and autonomously of the other within those spheres allocated to it. There may be some overlap and contiguity, of necessity or by default, given polit­ ical designs and the limits of drafting. Autonomy, the degree of exclusivity to the divi­ sion of powers, is preserved under the principle that national law is paramount over provincial-state law to the extent the latter is inconsistent with the former. Insofar as both are mutually consistent, both may operate on the same facts.97 Exclusivity serves to discount any idea that the either the federal or the regional level of government has merely delegated powers to the other, and thereby retains the authority to supervise and intervene in the ordinary course, if ever. Such a supervisory competence invites the char­ acterisation of principal–agent, of delegation. This subordinates the agent legislature to the principal legislature, and by definition, fails to establish the separate but co-ordinate sovereignty necessary for federalism. Since the exclusive exercise of legislative com­ petence may be taken as an indicia of sovereignty, and the nature of federalism is to establish concurrent, equal sovereigns, a non-exclusive exercise of power undermines this fundamental requirement for a federation. The direct operation of each government upon citizens represents the second aspect. Co-ordinate sovereignty means that citizens are at once subjects of their national gov­ ernment and of their regional governments.98 Although each federation manifests its own particular political settlement in terms of the division of powers, both the federal and the regional governments nevertheless have direct jurisdiction: the federal, over the entire population; and the regional, over the residents in its territory. From a technical perspective, the direct operation aspect distinguishes a federation from a confedera­ tion.99 That latter constitutional order also institutionalises a division of powers, but there the confederal government acts upon the member states without any direct link or jurisdiction over individual citizens. From a broader perspective, direct operation trans­ lates into an integration of regional and national allegiances. The federal government serves and stimulates national unity. Citizens have as much a stake in the entire state as in their region. That citizens are at once members of a state polity as well as a regional one imposes on them the links, benefits and burdens of a wider membership and restricts their ability to disregard or deny associative commitments formed at this broader trans­ formative level. A second defining element to federalism is the ‘territorial premise’.100 The allocation of co-ordinate jurisdiction occurs on an territorial basis.101 Legislative and political compe­ tence extends over an administratively delimited area and does not attach to individuals 96   See, eg D Elazar, Exploring Federalism (Tuscaloosa, Alabama UP, 1987) 166–67 (‘noncentralisation’ and ‘areal division of power’); Wheare, Federal Government (n 41) 11; R Watts, ‘Contemporary Views on Federalism’ in B de Villiers (ed), Evaluating Federal Systems (Cape Town, Juta & Co/Nijhoff-Kluwer, 1994) 8–10; F Delmartino and K Deschouwer, ‘Les fondaments du fédéralisme’ in Centre d’Etude du Fédéralisme, Le fédéralisme: approches politique, économique et juridique (Brussels, De Boeck Université, 1994), 11, 14–15, 21–23; R Ergec, ‘Les aspects juridiques du fédéralisme’ in ibid 37, 37–40, 42. 97   See, eg Multiple Access v McCutcheon [1982] 2 SCR 161. 98  Wheare, Federal Government (n 41) 14; Watts, Comparing Federal Systems (n 88) 7–8. 99  Wheare, Federal Government (n 41) 31–33; Ergec, ‘Les aspects juridiques’ (n 96) 40; Watts, Comparing Federal Systems (n 88) 8. 100   I Duchacek, Comparative Federalism (New York, Holt, Rinehart & Winston, 1970) 191 ff. 101  Elazar, Exploring Federalism (n 96) 166–68.



Secession and Federal Constitutions 283

wherever they may be in the federal state.102 The territorial premise to federalism reflects the simple and common-sense proposition that political power defines itself within certain territory and relies upon territorial limits.103 The ease with which we draw the territorial premise out of basic political and legal premises as an area of regular and actual govern­ ment, is matched by the difficulty in providing more than just intuitive reasons for what appears to be a natural phenomenon.104 The exercise of such power is a function of popu­ lation, its density, social control and organisation, consistent and continued exploitation of land and resources, and the effective and potential enforcement of law and policy over that territory. Obviously, political power attaches to persons on the land, not the land itself. Wherever a group of people live, there will also exist some attributes of political power inasmuch as some members of the group can enforce their will over the others. Depending on the organisation and resources of that society, the scope of that power can extend beyond the usually inhabited areas to the limits of its regular or potentially effective exercise (whether or not inhabited); that is, political power extends as far as the available manpower allows and receives it. And although an in personam basis alone is certainly conceivable, its complexity and intensive, greater demands on resources and organisation render it administratively and structurally unattractive and impracticable compared to the simpler territory basis. The effect of this areal division is to complete the perception by a regional polity of possessing all the trappings of an otherwise sovereign state: territory, legislative power, organs and agents of the state. Together, the areal and legislative divisions create and augment the sense that the regional units are autonomous bodies politic, indeed for all purposes and not merely for their respective competences and territories. Even if the creation of an internal, federal border did not originate out of an historical regional divi­ sion, the establishing of regional sovereignty does stimulate the development of that consciousness of being separate.105 It would appear an irrepressible conclusion from these two elements to the ‘structural premise’ that the purpose of federalism is to separate groups within a state, to constitute them as polities, and to insulate them from one another in certain matters. Federalism permits a degree of political plurality, of group-specific orientations. One group of citi­ zens should be able to pursue a particular legislative and policy course for its member­ ship which is separate and apart from the route taken by other groups. Of course, as the other side to this plurality or group autonomy factor, the one group, province, state or 102   Distinguishing federalism from, among other models, consociationalism: H Bakvis, ‘Alternative Models of Governance: Federalism, Consociationalism, and Corporatism’ in H Bakvis and W Chandler (eds), Federalism and the Role of the State (Toronto, Toronto UP, 1987) 279, 281 ff; C Friedrich, ‘The Politics of Language and Corporate Federalism’ in JG Savard and R Vigneault (eds), Les Etats Multilingues: problèmes et solutions (Québec, PU Laval, 1975) 227; K McRae, ‘The Concept of Consociational Democracy and its Application to Canada’ in ibid 245; A Eide, V Greni and M Lundberg, ‘Cultural Autonomy: Concept, Content, History and Role in the World Order’ in M Suksi (ed), Autonomy: Applications and Implications (Deventer, Kluwer, 1998) 251, 272–75; Elazar, Exploring Federalism (n 96) 18–26, 49–50, 71–75. See generally A Lijphart, The Politics of Accommodation: Pluralism and Democracy in the Netherlands (Berkeley (Calif), California UP, 1968). 103  Duchacek, Comparative Federalism (n 100) 19 (territorial basis to political identity). 104   The territorial premise also extending into public international law as evidence of statehood: J Crawford, The Creation of States in International Law (Oxford, Oxford UP, 1979) 36; M Shaw, International Law, 5th edn (London, Sweet & Maxwell, 2003) 409; and I Brownlie, Principles of International Public Law, 7th edn (Oxford, Oxford UP, 1990) 71 ff, 105 ff. 105   R Gibbins, ‘Federal Societies, Institutions, and Politics’ in H Bakvis and W Chandler, Federalism and the Role of the State (Toronto, Toronto UP, 1987) 15, 18–19.

284  Constitutional Text and Context region has no express obligation to account for its policy choices to the others, nor take the wishes and interests of the other into account.106 Federalism exempts the separate substate units from having to co-operate and compromise in those areas of exclusive jurisdiction. Nationally, the necessity and practicality of co-operation and compromise remain. Hence federalism also marks out the limits and boundaries to political and social co-operation. This observation is subject to qualification. There exists in Continental federal prac­ tice (specifically Belgium and Germany) the concept of ‘federal loyalty’ or ‘Bundestreue’ also known as ‘bundfreundliche Verhalten’. Briefly understood, Bundestreue is a medi­ ating principle whereby federal (especially) and provincial executive and legislative acts are assessed on the basis of their overall good for the whole federation, specifically an abstention from acts prejudicial to the interests of the federation as a whole and those of its constituents as such. No constituent party should act in such a way as to injure or imperil the federation or its members. The principle applies to acts otherwise constitu­ tional; that is, within the powers and jurisdiction allocated to the federal and (provin­ cial) legislatures. Broadly, this means that parties would moderate the full exercise of their jurisdiction where other parties may be prejudiced in some way, at least without prior consultation. Bundestreue entails notions of reciprocity and proportionality with all constituent parties working together and co-operating. Most importantly, to give effect to and apply these aspects of Bundestreue, it requires notification, consultation and negotiation amongst the federal and various interested provincial governments. Cartier and Patenaude, for instance, have suggested that the Supreme Court of Canada has recognised and applied aspects of Bundestreue without explicitly or implicitly acknowledging the principle.107 But the authors do not suggest or find any aspects of mandatory co-operation and negotiation in Canadian federalism. And the cases they cite tend to demonstrate, as with other such cases, aspects of Canadian co-operative federal­ ism, specifically, the delegation of administrative powers. Co-operation at this level in a federal state such as Canada is inevitable because of the fiscal and financial interdepen­ dence of federal and provincial governments.108 In any event, the motive factor for separating resides primarily in linguistic, ethnic, religious divisions in a society – ‘cultural differences’ in broader terms. The conven­ tional explications of the federating impulse in Canada point to the historical tensions between the Anglophone and Francophone communities in Upper and Lower Canada, respectively.109 Likewise, the tensions between the Flemish and Walloons in Belgium

106   H Bauer, Die Bundestreue (Tübingen, JCB Mohr, 1992); J Vanhoeven (ed), La Loyauté: Mélanges offerts à E. Cerexhe (Brussels, Larcier, 1996); C Grewe-Leymarie and M Fromont, Le fédéralisme co-opératif en République fédérale d’Allemagne (Paris, Economica, 1981); P Peeters, ‘Le principe de la loyauté fédérale: une métamorphose radicale’ (1994) APT 239; Y Lejeune, ‘Le principe de la loyauté fédérale: une régle de comporte­ ment au contenu mal défini’ (1994) APT 236. 107   G Cartier and P Patenaude, ‘La notion de ‘loyauté fédérale’ en droit constitutionnel canadien’ in Vanhoeven, La Loyauté (n 106) 39. 108  Hogg, Constitutional Law (n 33) s 5.8. 109   D Francis, R Jones and D Smith, Origins: Canadian History to Confederation, 2nd edn (Toronto, Holt, Rinehart & Winston, 1992) 271 ff (deadlock in the Union government, French–English civic unrest), 405 ff. See generally D Creighton, The Road to Confederation: the Emergence of Canada, 1863–1867 (London, Macmillan, 1964); P Waite, The Life and Times of Confederation 1864–1867: Politics, Newspapers, and the Union of British North America, 2nd edn (Toronto, Toronto UP, 1962); and G Martin (ed), The Causes of Confederation (Fredericton, Acadiensis, 1990).



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motivated fractionating legislative authority there.110 Even if no like cultural differences obviously impel the federating of, for example, the United States and Australia, it may still be plausibly argued that a custom or history of intra-colonial autonomy grounded a perception of distinctiveness, of divergent and separate cultures. Even if only a ‘culture’ of economic self-sufficiency, independence and self-government, this still grounds a per­ ception of bare difference between ‘us’ and ‘them’. Hence the attractiveness of federal­ ism to those who would confer autonomy to particular groups within a state, such as minorities and linguistic communities;111 provided, of course, that they are territorially concentrated. Federalism promises those groups a space separate and apart from the wider state population, a space wherein that group may exercise a measure of self-­ government, or ‘self-determination’ more broadly, under the heads of jurisdiction allo­ cated to them. The group is able to pursue social development and action in respect of those characteristics it takes as defining its membership. The arguments promoting selfgovernment or self-determination aside, the structural premise to federalism allows a substate unit to pursue and develop its distinctive desires and aspirations, free from those of the other state groups. Indeed, more than just supporting it, federalism also reinforces the distinctiveness sought and presumed by the various substate constituents. The division of powers means not only that the substate government is representative of and responsible to the local population, but that it can promote and protect the local culture and give legislative and policy effect to cultural attributes, of course all within the limits of its constitutional allotment of power.112 Now, there is no general or fixed rule of allocation of legislative competences among regional and the federal government. Much depends upon the polit­ ical circumstances of the time. But given the argument from distinctiveness, we may safely concur with general wisdom that matters cutting across intra-state boundaries, benefiting all citizens more or less equally, or requiring a co-ordinated and joint approach likely fall to the federal government, while those of a local, individual nature fall to the regional governments. This extrapolation from the division of powers in current federal systems has taken on a more developed theoretical term ‘subsidiarity’, and has been expressly incorporated as a norm in the European Union.113 ‘Subsidiarity’ means gener­ ally that decisions are taken and actions executed at the level of government nearest to 110   E Witte, J Craeybeckx and A Meynen, Politieke Geschiedenis van Belgie van 1830 tot heden, 6th edn (Brussels, VUB Press/Standaard Uitg, 1997); P Peeters ‘Federalism: Comparative Perspective. Belgium Transforms from a Unitary State to a Federal State’ in de Villiers, Evaluating Federal Systems (n 96) 194; A Alen ‘Nationalism – Federalism – Democracy: the Example of Belgium’ (1993) EuRPL 41; and H Dumont, Le pluralisme idéologique et l’autonomie culturelle en droit public belge. 1: De 1830 à 1970 (Brussels, PU FUSL, 1996). 111   See, eg Norman, Negotiating Nationalism (n 3); W Kymlicka, ‘Is Federalism a Viable Alternative to Secession?’ in P Lehning (ed), Theories of Secession (London, Routledge, 1998) 111 and his ‘Minority Nationalism and Multinational Federalism’ in his Politics in the Vernacular: Nationalism, Multiculturalism and Citizenship (Oxford, Oxford UP, 2001) 91; A Eide, ‘Peaceful Group Accommodation as an Alternative to Secession in Sovereign States’ in D Clarke and R Williamson (eds), Self-Determination: International Perspectives (London, Macmillan, 1996) 94 and his ‘In Search of Constructive Alternatives to Secession’ in C Tomuschat (ed), Modern Law of Self-Determination (Deventer, Kluwer, 1993) 139; and R Bauböck, ‘Why Stay Together? A Pluralist Approach to Secession and Federation’ in W Kymlicka and W Norman (eds), Citizenship in Diverse Societies (Oxford, Oxford UP, 2000) 366. 112   O Kimmich, ‘A “Federal” Right to Self-Determination?’ in Tomuschat, Modern Law (n 111) 83, 98 ff. 113   See, eg K Lenaerts and P van Nuffel, Constitutional Law of the European Union (London, Sweet & Maxwell, 1999) paras 4-042–4-049. See also F Delpérée (ed), Le principe de subsidiarité (Brussels, Bruylant/ LGDJ, 2002); A Alen, ‘Le principe de subsidiarité et le fédéralisme belge’ in ibid 461 ff (advocating caution in tying the principle to federalism), and ‘Symposium on Federalism’ (1993) 3 NJCL 301.

286  Constitutional Text and Context those affected thereby, so long as compatible with the principles of good and effective administration. Without adopting here the term or its nuances (especially a shift to a more confederal view), it should nonetheless be easily acceptable that subsidiarity char­ acterises cultural attributes (linguistic, ethnic, religious, and the like) as pre-eminently ‘local’ matters. This obviously gives the local government a solid and powerful basis to foster and claim the allegiance of its citizens. An allegiance based on cultural attributes has the advantage over one relying on more abstract or general concepts. The latter seem less immediate, less relevant in an individ­ ual’s daily experiences. These experiences are obviously of a local character. In the fed­ eralism context, for example, the legal rules governing the language of business dealings and its specific conduct are more likely to issue out of the regional government than the federal one. Even though the latter may have significant jurisdiction over monetary, banking and fiscal matters, the laws of the regional government are prominent and of immediate concern. Moreover, cultural attributes are considered to touch most directly upon our sense of self and identity. It was for this reason, as seen above in chapters 6 and 7, that the nationalist set of commitments exert such strong claims to moral primacy in an individual’s set. This stronger allegiance to local government than to national lends itself easily and forcefully to conferring greater moral and political weight – greater legitimacy – to political will-formation and expression at the regional level. It is the sub­ state unit alone which represents and voices the authentic and authoritative will of that autonomous polity.114 And from here it is but short steps to asserting the primacy and primordial nature of the substate unit. Federalism’s conferral of autonomy to facilitate and serve local self-government thus cultures the belief in a local autonomous polity. It supports an underlying sense of cul­ tural and political self-sufficiency, of nationalist identity and sovereignty. Hence the supposed easy accommodation of providing a ready-made territorial unit complete with organs of state to a population accustomed, and indeed entitled, to some degree of polit­ ical cohesion and autonomy. The structural premise leads us, it would seem, inevitably to the political one. The optics of federal arrangements shift from sponsoring and pre­ serving a wider national unity to a political settlement among socially and culturally diverse populations who reflect separate and apart sources of values, legitimacy, national identity, and so on. That settlement reflects a will to compromise on certain matters extending, supposedly, beyond the narrower interests, aspirations and resources of a particular culturally-defined polity. The ever-present diversity nevertheless strains the compromises necessary or imposed to maintain political co-operation on those issues until that political will is no longer sufficient to override the more basic nationalistic desires and interests. Constitutional stress ensues, resulting either in a secession or in a restructured settlement. So whether or not it generates nationalism or simply incubates an already nascent one, federalism corroborates nationalist separateness. It invests the substate unit with legitimacy as an autonomous political unit whose decisions carry prima facie a legitimacy and weight co-ordinate with those of the wider state. But it is important to recognise from this that the arguments for federalist-supported nationalism have not arisen out of, or inhere in, the concept of federalism itself. Nationalism 114   T Hueglin, ‘Legitimacy, Democracy, and Federalism’ in H Bakvis and W Chandler, Federalism and the Role of the State (Toronto, Toronto UP, 1987) 32, 37, 42–47, 48–49 (‘political mutualism’). See also Watts, Comparing Federal Systems (n 88) ch 6; and J Webber, Reimagining Canada (Kingston, McGill-Queen’s UP, 1994) ch 7.



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imposes itself on the federal model. When addressing the issue of division of powers and the internal boundaries, the ‘is’ of an administratively practicable constitutional allotment elides seamlessly into the ‘ought’ of the appurtenances due a polity. What powers are (to be) allocated to a constituent province, and their interpretation and application – in short, the split between ‘national’ powers and ‘local’ ones – depend upon an underlying concept of political association. The same motivates the calls for amending and revising the current division of powers. To illustrate this point, let me briefly consider Brossard’s arguing in favour of Québec’s right under federalism to secede.115 Brossard begins to reveal these underlying motives in his call to reassess the practice of federalism in Canada in light of its princi­ ples when discussing Québec’s right to nationalist secession. He cites Wheare in support of his claim that the classical doctrine of federalism (as voluntarily maintained partner­ ship) appears to recognise in effect, but not in principle, a right to secession.116 In other words, the lack of inconsistency between federalism and secession is equivalent to feder­ alism’s condoning secession. But Brossard jumbles together the passage from Wheare with the strong version of secessionary self-determination. He fails to examine Wheare’s argumentation, and simply aligns his conclusion with propositions supporting the vigor­ ous right to secessionary self-determination. Wheare’s analysis only establishes that fed­ eralism is not inconsistent with secession, provided the right to secede is not conceived as necessarily requiring the subordination of one level of government to another.117 It goes no further. Brossard’s jumbling together of self-determination and federalism is telling. It dem­ onstrates that relying on the federalism principle in support of a constitutional argument to secede masks, not so much the underpinning of nationalist self-determination, but the rather clever attempt to invoke federalism as evidencing or even reflecting the selfstanding, irrefutable legitimacy of the substate community’s political will. The authority and authenticity of that polity’s voice in the overall context of the federal state is recon­ strued as originating, not in and through the federal constitutional settlement, but in the primordial, natural constitution of a cultural nation (which voluntarily participates in the federal construct). Thus, the secession argument from federalism would have us pre­ sume that federalism mandates treating the voice of a secessionist constituent as consti­ tutionally indefeasible. In other words, we focus our attention on how to accommodate the democratic will-formation of a secessionist substate unit in a federation, rather than on the real issue of whether that polity and will-formation carry the self-standing authenticity and authority claimed for them. Federalism and Voice If the federalism principle is to have an impact on the question of secession and constitu­ tional amendment, the critical element is the superimposition of nationalism upon it. The nationalist gloss to federalism, whereby internal borders evidence and affirm significant pre-political cultural differences, underpins the secessionist invocation of the federal prin­ ciple to justify ascribing such weight (authority and authenticity) to that expression of  Brossard, L’accession (n 49) 95–99.   ibid 96. 117  Wheare, Federal Government (n 41) 90–92. 115 116

288  Constitutional Text and Context political will as to discount any objection or obstruction thereto. That is, nationalism argues that the regional political voice has a weight at least equal to that of the entire fed­ eral state, and certainly one determinative in cultural and self-determination matters (like independence). The strength of this contention depends in the first place on the coherence and cogency of nationalism as a constitutional model. Chapters 6 and 7 have already examined nationalism in some detail. In the second place, the persuasiveness of the nation­ alist optic depends upon its closeness of fit with federalism. This means more than just a superficial compatibility. We should expect an irrefutable parallelism between nationalist and federal premises, and a distinct orientation of federalism to nationalism. Less than this does not so much disprove a mutual affinity as dismiss the necessity and weight attributed to the provincial expression of political will by the nationalist gloss. The latter becomes mere politicking. But that tight fit does not exist. I take my cue from the process of constitutional amendment. Fundamental questions concerning state structure, organisation and exist­ ence are reserved for nation-wide consultation, irrespective of whether the state is a fed­ eration or unitary one. Although the federalism principle designates the province as a source of authentic and authoritative will-formation, that designation pertains only to those legislative areas specially conferred on the province in the constitution. In other words, every level of government in a federation has but a partial ascription of sover­ eignty, whereas it is only all the levels acting in concert which exercise undivided, full sovereignty. Critical and representative of that complete package is the power to pro­ pose and effect change to the constitutional order of the state. The amendment process in a federation inevitably requires some combination of national and regional consen­ sus, in the form of joint action.118 Constitutional change is submitted to the entire popu­ lace, either directly or through representation by and consent of the federal and provincial governments.119 It thereby ensures the fullest account of popular will without unduly favouring either an exclusively majoritarian calculus (federal only) or regional one (provinces only). No one level of government may unilaterally effect or force a change to the federal constitution. Inasmuch as secession represents or forces such a change, it is inconsistent with the federalism principle. That would contradict the ascrip­ tion of autonomous co-ordinate jurisdiction, rendering one level subordinate to the other. Care should be taken not to confuse this with the standing of a substate unit to submit proposals for constitutional change, and thereby set the amendment process in motion. Unquestionably, either substate units or the federal government may propose amend­ ments to the other constitutional actors for their consideration and consent. And that standing certainly may support distinguishing one unit from another, and from the fed­ eral government. That each actor has a power of initiative does not, however, equate to the proposal having an innate, implied or otherwise unarticulated special, compelling or indefeasible status. Proposed amendments, whether of federal or provincial origin, must 118   See, eg Watts, Comparing Federal Systems (n 88) 101–4 (United States, Canada, Austria, Germany, Australia, Switzerland, Belgium and Spain). 119   See, eg J Hurley, La modification de la constitution du Canada (Ottawa, Government of Canada, 1996); A Tremblay, La réforme de la constitution au Canada (Québec, Eds Thémis, 1995); P Russell, ‘The End of Mega Constitutional Politics in Canada?’ in K McRoberts and P Monahan (eds), The Charlottetown Accord, the Referendum, and the Future of Canada (Toronto, Toronto UP, 1993) 211, 211–13 (nationwide referendum seeking approval of the Charlottetown Accord).



Secession and Federal Constitutions 289

run the gauntlet to obtain the constitutionally mandated level of consent. If not, the pro­ posal fails. Nothing here in the status of a substate unit supports the nationalist gloss. Likewise, the need for such substate consent points less to an independent status in se, and more to eliciting greater precision in the expression of national opinion. It is no objection that, in the case of Canada, the reference in the constitutional powers of amendment in Constitution Act 1982 Part V to the provinces, the federal government, and the respective majorities thereby acknowledges the distinct and original status of province-based political will. Without incorporating some form of substate consent, national opinion would represent an undifferentiated voice of all citizens which likely would submerge opposing or varying regional and more local accents. (This is to invoke a common argument made in support of ‘multi-national federalism’ that federalism allows minorities to form local majorities and thereby avoid being overridden by statewide majorities.)120 Political and other interests which may not feature largely on a national level may occupy a more prominent and forceful place at the regional level. Allowing for regional weighting offers some opportunity for differences of opinion to influence the ultimate formation of national democratic will.121 (And this advantage need not be restricted to federal systems. Even unitary states could implement practices that gave weight to regional voices in creating the overall expression of democratic will.) But no one regional unit has any greater say or weight than the others. Obviously, a constitution may expressly provide otherwise, and given the importance attributed to the nature of the changes, a constitution may vary what majority is needed. Thus in Canada, for example, the matters listed in section 41 of the Constitution Act 1982 were considered of sufficient import as to require unanimous provincial approval. Others, in sections 39, 42 and 43, were not. In the end, absent a unanimity requirement, the minor­ ity are bound by the majority view. And contrary to the nationalist gloss on the legiti­ macy of the substate’s democratic will, the dissenting substate unit is indeed bound by the majority will. Consent in the amending process reflects the formation of national opinion, not its weight or legitimacy. A rejoinder hereto might argue that secession is by nature a matter outside the business of constitutional amendment in the ordinary course, and consequently deserving of special or distinct treatment, thereby reflecting on our construction of federalism. That would necessarily reinterpret the consent of substate units as expressions of free-standing demo­ cratic will, and by extrapolation, substate sovereignty. Obviously, any objection that secession is so manifestly different from other types of constitutional amendment that it lies completely outside the constitutional process, misses the mark inasmuch as it would invoke the constitutional doctrine of federalism. If federalism applies, then constitutional norms apply. Furthermore, even conceding that federalism principles could apply outside the constitutional context, nothing in those principles justifies or explains how a substate unit arrogates powers of independence not otherwise held or exercisable. So the argument for special or distinct treatment would instead have to treat federalising as a contractual process among cultural groups, where federalising intended implicitly or explicitly to preserve and protect cultural distinctiveness, and without diminution of the groups’ inher­ ent authority and autonomy. Secession is a call to revisit the contracting process and revise   Bauböck, ‘Why Stay Together?’ (n 111) 375.   For example, An Act respecting Constitutional Amendments SC 1996 c 1 (regional weighting in develop­ ing a proposed amendment). 120 121

290  Constitutional Text and Context the terms. By this, federalism becomes the constitutional instrument of cultural self-­ determination, and secession remains within the federal constitutional context. In matters touching directly upon the cultural existence and survival of the group (a minority over­ all), the substate unit does not speak as part of the larger majority of the entire state popu­ lation, but on its own behalf and in its own right. After all, that is part of the essence of federal arrangements. Yet even admitting for the purpose of argument that federating intended to accom­ modate the cultural distinctiveness of the various regions, we still obtain no sufficient grounds for legitimacy and validity of a unilateral provincial voice. While the argument would characterise secession as going to the survival of culture, the same argument applies to all forms of legislative competence and constitutional amendment. The crite­ rion provides no satisfactory grounds to differentiate between ‘critical’ or ‘non-critical’ amendment proposals. Everything touches upon the continuing health and survival of a culture. Economic, financial and fiscal policy goes to the continuing ability of the culture to sustain itself. Political and legal matters go to self-regulation and self-government. And little imagination is required to recognise the importance of powers over social and cultural issues. Any subject of potential constitutional amendment, just as any calcula­ tion of the division of powers, attends to the survival of the substate cultural unit and (albeit without necessarily any cultural survival overtones) the ever-present feature in federal systems of federal-provincial jostling for jurisdiction, to expand one’s own while constricting the other’s. But these matters are consigned to the amending process with­ out special treatment or acknowledgement of cultural ramifications.122 Nothing in federalism explains, short of express provision in the constitution, how a substate unit suddenly acquires irrefutable authority and legitimacy on the question of secession, whilst enduring compromise on all other constitutional matters in virtue of the principle of divided, co‑ordinate sovereignty. Fiscal and financial powers, powers over health, criminal law, foreign affairs, a re-apportionment of legislative competences, all unquestionably have significant, immediate impact on the lives of citizens. Notwithstanding their importance, despite their influence and ramifications on our daily existence, the dem­ ocratic will of a substate unit carries no special, unilateral and univalent legitimacy and authority such that it can dictate that will to the rest. Consigned to the amendment pro­ cess, the majority approval prescribed by the constitution applies, and will bind the dis­ senting minority. Of course, a constitution may specifically confer such status on a constituent party. Absent that stipulation, however, federalism does not imply any other measure of asymmetry. That depends upon the political settlement constituting the federal state. In the Constitution Act 1982, the matters prescribed in section 41 were thought to be of sufficient importance as to require unanimous provincial and federal consent. If no unanimous consent is achieved, proposed amendments falling under that section fail. A province can prevent change legitimately desired by others. In other words, the demo­ cratic will of any one province unilaterally imposes itself on the other constituents. But is not secession just the flip-side of this? The democratic will of a province to assert inde­ pendence seeks to impose its will on the rest of the constituent parties. If the Canadian federal constitutional order recognises the authority of provincial voice under section 122   But note in the case of Canada, Constitution Act 1982 ss 39(2–4), 40 (dissent right for transfers of provin­ cial power to Parliament and compensation right in education and cultural matters).



Secession and Federal Constitutions 291

41, it therefore ought to recognise similar authority for secession by analogy. The federal principle as applied in Canada would appear able to accommodate the nationalist gloss. Characterising the issue in this fashion overlooks an important contextual fact. Obviously, an attack on the above pro-secession argument may certainly delve into the intricacies of distinguishing the blocking of changes from the forcing of change, namely that of dismembering the state by secession. Rather than pursuing this accent to the con­ textual feature, I want instead to concentrate on what matters fall under section 41. They pertain to certain fundamental pillars of the Canadian federal state. Those mat­ ters, briefly and generally recapitulated, were constitutional monarchy, federal bilin­ gualism, regional representation in the Supreme Court of Canada, minimum provincial representation in the House of Commons, and amendments to the amending powers. All of these guarantee a minimum status and level of power to the provinces and federal government. It would not be unreasonable to argue that they represent thus the sine qua non, the core, of the Canadian federation. Many other novelties, such as new provinces or a redistribution of legislative powers, do not necessarily undermine or extinguish fed­ eralism and so may be allocated to the majority approval section. But the loss of the bilingual character of the federal government, or the loss of a provincial voice in the Commons, would undermine the federal political settlement. In Canadian politics, it is the Commons, and not the Senate, where an effective provincial voice is required given the weak and largely ineffectual political voice and the very much limited legislative powers of the Senate. The representation of regional concerns extends just as signific­ antly into the composition of the federal government and Cabinet.123 Likewise, a regional voice in the Supreme Court of Canada offers some measure of balanced perspective in the constitutional jurisdiction of the Court. And because the Crown represents an undi­ vided Canada, a unity of all regions, the Crown expresses in its office no regional prefer­ ence or bias. It stands above and over legislative and administrative divisions. It is an office largely exempt from regional pressures and inequalities arising from population distribution and regional economic power, all of which could factor significantly into the election and exercise of powers in a republican office. Of course, nothing suggests that these arguments are insuperable or without answer, or that sufficient alternatives exist to meet these concerns. They are intended merely to highlight the context of Canadian federalism. Section 41 provides a minimum guarantee that the basic federal framework will not change without the consent of all provinces. All the provinces, especially the smaller ones, have an interest in maintaining the current federal settlement, and thus their polit­ ical positions relative to one another and to the federal government. The interests of the smaller provinces (such as PEI, Nova Scotia and Saskatchewan) are always at some risk of being subsumed by or overridden by the more populous provinces (Ontario, Québec, British Columbia and Alberta). Whilst change to all their advantage would not likely encounter much resistance, if any, we should expect opposition to changes which alter the basic structure of the federal settlement, relative power positions, and which do or appear to advantage only one or a group of constituents. This unanimity requirement makes good sense. Given the co-ordinate division of power, all the provinces and the federal government are equal parties in the constitutional settlement. Each has an equal 123   Ward and Dawson, Government of Canada (n 40) 179. See generally Mallory, Structure of Canadian Government (n 40).

292  Constitutional Text and Context say of equal weight in determining the basic constitutional structure of the federation. Tinkering with the day-to-day operations of the federation, including the balance of power between province and federal government, does not undermine or reconstruct the federal political settlement. But removing the underpinnings to that settlement, revising the pillars on which the federation stands, these certainly require the participation of all constitutional players. Whatever the metaphor of choice, such as changing the ‘rules of the game’ or changing the terms of the contract and of contracting, it remains the central point that all constituent parties ought to have a fully equal say in the basic structure of the federation. There should be no ‘asymmetry’ to the authority or authenticity of polit­ ical will-formation in a federation. Translating this to a secession crisis strengthens in fact not only the argument for the participation of all provinces, but the federalist equality of standing as between the provinces and the federation as a whole. Secession would undoubtedly alter the basic structure of the current federation. If that fundamental change is to proceed within the (normative) context of a federal constitution, the federalism principle, at least as articu­ lated in the Canadian Constitution, requires the participation and approval of all con­ stituent parties. Moreover, the political will of a secessionist province cannot enjoy greater status, weight or effect than that of any other province or the federal govern­ ment. Clearly, the federalism principle does not here support the nationalist gloss. As a bolster to this federalist line of argument, the direct legislative jurisdiction of the federal government unifies all citizens irrespective of their province of residence and sets national associative commitments as the determinative constitutional context. Because that government may legislate directly for citizens, it can generate an overlay of allegiance to and co-operation in the federal state itself. Citizens have a stake in the governing of the whole federal state through responsible and representative government. This requires a commingling, accommodation and integration of different value sets in order to achieve a set of common commitments. Compromise and common value-orientations transcending internal borders do not merely broaden perspectives and options.124 More importantly, the constitutional order mandates thereby a process of creating, debating and adopting common commitments among the widest possible set of group members. The transfor­ mation of local and individual interests into public concerns and values at the federal level presumes the participation and interaction of all citizens across the state. Naturally, these public concerns arise out of a much wider and more varied pool of interests. Transformation at this level demands a broader base of agreement, and a readiness to accommodate and integrate different rationales and commitments.125 Because federalism forces all citizens to deal with one another irrespective of provincial boundaries, their respective sets of commitments no longer represent purely provincial, local valueorientations whether or not their source remains local. Infusing and underpinning trans­ formation at the provincial, local level will necessarily be the broader ‘federal’ values and interests. Provincially or locally generated commitments will account in varying degrees 124   T Hueglin, ‘New Wine in Old Bottles? Federalism and Nation States in the Twenty First Century: A Conceptual Overview’ in K Knop, S Ostry, R Simeon and K Swinton, Rethinking Federalism: Citizens, Markets, and Governments in a Changing World (Vancouver, UBC Press, 1995) 203, 219–20 (universal bond of common norms and mutual control the sine qua non of federalism). See also A Noël, ‘The Federal Principle, Solidarity and Partnership’ in R Gibbins and G LaForest (eds), Beyond the Impasse: Toward Reconciliation (Montréal, IRPP, 1998) 241. 125   Suggesting, for example, ‘incompletely theorised arguments’: C Sunstein, Legal Reasoning and Political Conflict (Oxford, Oxford UP, 1996) 4.



Secession and Federal Constitutions 293

for values and circumstances obtaining in other provinces. Thus the generation of those commitments does not obtain in and out of an insulated core of pure nationalist values. That does not exist except by artificial and political means. Contrary to the nationalist gloss, federalism does not allow for a simple priority of local commitments. To be clear, the form of national allegiance herein contemplated is not an allegiance to the federal government and national policy simpliciter, in the capacity of governing the entire state population. In these circumstances, the federal government would be a claimant of loyalties and support in addition to regional governments. This would cer­ tainly invite some tension between the various levels of government, and conceivably lead to an interpretation of federalism provoking a competition of allegiances. In other words, national policy and law might well intend to foster a sort of over-arching civic nationalism to combat provincial cultural nationalisms, but sparking opposition on the basis that the federal government was pursuing strongly centralist policies which inter­ fered with or supplanted provincial jurisdiction, and sought to muffle or dilute provin­ cial (minority) voices in an undifferentiated majority opinion. For example, the 1982 introduction of the Charter of Rights into the Canadian constitutional order drew the protest, most notably, of Québec. The gravamen of the complaints pointed to the insuf­ ficient regard and protection for distinctive and diverse provincial circumstances in the imposition of an undifferentiated set of rights (and their underlying values).126 Standardised norms, an equality across the board, have failed to acknowledge and accommodate the special position of Québec in Canada.127 We can certainly broaden this to encompass special circumstances dividing each province from the others. So rather than stimulating and confirming national unity and a sense of national identity, advocating such allegiance merely fuels a tension and struggle between the federal and the regional. And it is arguable that this approach implies the existence of a firm, signifi­ cant pre-political cultural identity resident in the regional divisions of the federation, indeed present as the predominant leitmotif of the Francophone-Anglophone commu­ nity dialectic in Canadian federal analysis. The national allegiance at issue here does not intend to posit a type of federal loyalty analogous to and competing with one at the regional level. That division may serve a conception of federalism which accents division, but does little to explain and motivate the context of unity. Now admittedly, there exists in federalism the perennial tension between the national and the regional. Transposed to the terms of associative constitu­ tionalism, it is an issue of defining membership: the narrower boundaries to the regional class and the wider class of the whole nation. This arises from the two streams of direct government, regional and federal. As a result, local interests run into wider national 126  See, eg K McRoberts, Misconceiving Canada: the Struggle for National Unity (Oxford, Oxford UP, 1997); Webber, Reimagining Canada (n 114); S LaSelva, The Moral Foundations of Canadian Federalism (Kingston, McGill-Queen’s UP, 1996); AG Gagnon and G LaForest, ‘The Future of Federalism: Lessons from Canada and Québec’ in S Randall and R Gibbins (eds), Federalism and the New World Order (Calgary, Calgary UP, 1994) 113. 127  McRoberts, Misconceiving Canada (n 126) esp ch 7; Gagnon and LaForest, ‘Future of Federalism’ (n 126) 117–20, 125–26; D Schneiderman, ‘Human Rights, Fundamental Differences? Multiple Charters in a Partnership Frame’ in Gibbins and LaForest, Beyond the Impasse (n 124) 147; J Jenson, ‘Recognising Difference: Distinct Societies, Citizenship Regimes and Partnership’ in ibid 215, 219 ff; and K Swinton, ‘Federalism, the Charter, and the Courts: Rethinking Constitutional Dialogue in Canada’ in K Knop, S Ostry, R Simeon and K Swinton, Rethinking Federalism: Citizens, Markets, and Governments in a Changing World (Vancouver, UBC Press, 1995) 294, 307–9. See also C Taylor, ‘Shared and Divergent Values’ in C Taylor, Reconciling the Solitudes (Kingston, McGill-Queen’s UP, 1994).

294  Constitutional Text and Context ones not only in the federal arena, but in the local one as well. Interests and values do not form in a purely local culture. They are shot through with those obtained or inter­ vening from the wider national set. That is, local transformative events never occur in exclusion, or better, to the exclusion of national transformative events.128 Each occurs in function of the other. This inter-action between the two streams engenders three signific­ ant characteristics of constitutional behaviour. First, the tension ought to culture a relativism in political perspective where neither national nor local interests always or ever have supremacy or priority over the other. Federalism demands the continual reconciliation of both aspects to citizenship in an individual’s set of commitments. To borrow a phrase from Habermas, they are ‘co-original’ moments. Secondly and implied therein, a healthy federalism requires co-operation and compromise, not only between regional and federal political levels, but also between commitments articulated at the local and national levels. Lastly, relativism emerges from the recognition of a wider class of members participating in associative commitments, and by consequence, the broader, less particularised dimensions to the reach of social concern which the transformation of individual interests must accommodate. More people means more variation and less uniformity. Achieving some consensus in these circumstances requires somewhat more generality and flexibility to the articulation of the common associative commitment. Hence national allegiance refers to a commitment to the process by which a society organised locally and federally originates and articulates its associative commitments, an open-textured process which will necessarily find reflection in the actual norms, laws, practices, values and aspirations given expression thereby. That process cannot support the nationalist gloss. The latter emphasises division and superiority over integration and co-operation.129 A commitment to federalism requires a greater attention to context, co-operation and value-relativism.130 It must reflect a ‘paramount ideological’ and political allegiance to the federal ideal and federal practice.131 The nationalist gloss views cooperation and political participation always in function of, or grounded in, the nationalist cause. This may suffice for a confederal arrangement where the regional government alone acts directly upon the populace. But the commonality imposed by federalism upon the state’s entire population through direct federal jurisdiction joins all citizens as members, and creates an interdependence which tends to refute the nationalist gloss to federalism. Thus, the federal division of a state into provinces, substate units, does not confer special or distinct status on the population thereof for the purposes of constitutional change.132 No greater validity or legitimacy inheres in a provincial decision to secede (whether by legislative act or by referendum) than in the decision of any group within 128   Bauböck, ‘Why Stay Together?’ (n 111) 382 (‘By allowing for multiple levels of self-government it under­ mines illusions about a collective self which forms the substance of the polity and is imagined as an individual, that is, as an indivisible entity endowed with a single will.’). 129  Beer, ‘Federalism’ (n 94) 246, and H Meadwell, ‘Institutional Design and State Breaking in North America’ in D Carment, J Stack and F Harvey (eds), The International Politics of Secession: State Making and Breaking in North America (Westport (Conn), Preager, 2001) 11, 12–13, 16–20, 27–30; J Stack and L Hebron, ‘Canada’s Ethnic Dilemma: Primordial Ethnonationalism in Québec’ in ibid 107. 130  R Howse, ‘Federalism, Democracy, and Regulatory Reform: A Sceptical View of the Case for Decentralisation’ in K Knop, S Ostry, R Simeon and K Swinton, Rethinking Federalism: Citizens, Markets, and Governments in a Changing World (Vancouver, UBC Press, 1995) 273, 275–79, 282–85; and Bauböck, ‘Why Stay Together?’ (n 111) 381–82, 391. 131   Franck, ‘Why Federations Fail’ (n 88) 173–74. 132  Thus Reference re Québec Veto [1982] 2 SCR 793, and the need to articulate expressly a dissent right and compensation right for certain constitutional amendments.



Conclusion 295

that province or in a unitary state. The principle of federalism neither strengthens nor supports the case for secession. CONCLUSION

I opened this chapter with a conjecture. In my attempt to ‘constitutionalise’ secession, I have traced out a constitutional theory of associative obligations which go beyond mere contractarian and nationalist views of constitutional order. At the heart of this approach are two assumptions. First, the contextual approach to constitutional law and order can provide juridically acceptable unwritten norms and principles, such as federalism, which apply with the same vigour and compulsion as textual provisions. Secondly, underlying both written and unwritten principles is the fundamental constitutional concern for the valid and legitimate ascription and exercise of democratic political power. So my conjecture, in line with the theory of associative constitutionalism, was that a textual analysis searches for some formal reference to secession, express or necessarily implied, or likewise for an accommodation of secession and has thus misunderstood the function of a constitution in times of constitutional stress. For implicit in that search is a concession that the unilateral decision to fragment the state has a legitimacy and validity of its own measure which the constitution must accommodate after a fashion. It is an attempt to impose on a decision to secede certain a posteriori conditions derived from the constitutional response to the process of implementing the secession. Instead, the constitutional approach needs to re-orient its perspective to the a priori: what the condi­ tions are for a valid and legitimate decision to secede. A textual assessment ought to highlight, or at least signal, the common commitments for which the constitution stands. In particular, it ought to make clear what process for the formation of common commit­ ments the constitution represents. This was not to identify or list particular common commitments, but to explore the conditions for their formation: the voices which ought to count. Hence my task in this chapter was to investigate whether a standard analysis of a constitution could account for secession, or whether we would be pushed from ‘text’ to ‘context’, to the ‘deep structure’ or the principles underpinning their more specific articulations in actual constitutional provisions. It would be unrealistic, of course, to ignore constitutional documents when confronted with a situation of constitutional stress. Political decisions are never taken in isolation from their overall social and constitutional context. To conclude that the constitutional order and law have no bearing on a secession crisis mistakes the constitution of a polity for simply a collection of written documents. It fails to recognise that the constitution is merely an institutional representation of those common commitments which bring us and keep us in a political association, as modulated by continuing transformative events. And it accords a secession attempt a univocal, unilateral political and constitutional valence irrespective of its actual multilateral, multi-vocal political and constitutional context. Such unilateral decisions are not deserving of any presumptive legitimacy. Our common values, beliefs, and our ‘constitutional patriotism’ are products of a joint effort, and we cannot simply ignore or deny the others participating in that process of value formation without under­ mining the essence of society, social values and co-operation. 133 133   See J Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (W Rehg (trans), Cambridge (Mass), MIT Press, 1996) esp ‘Postscript’ (1994) 447, ‘Appendix I Popular

296  Constitutional Text and Context Relying on the case study of Canada and with these considerations in mind, I embarked upon an analysis of the Constitution Acts, 1867 to 1982. The Constitution Act 1867 gave the provinces no power to secede, nor to authenticate a decision to secede. While the Charter of Rights under the Constitution Act 1982 was non-committal at its highest, its invocation already suggested that underpinning the constitutional analysis was a contextual approach reflecting the tenets upon which the constitutional order rested. The assessment of the amending powers under Constitution Act 1982 Part V quickly confirmed this. For in the dispute over which majority (if any) applied, we were quickly drawn into the wider contextual premises. Receiving especial consideration was the principle of federalism. The secessionist impulse would capitalise upon the institu­ tional and political offerings of federalism. That principle displayed, however, no spe­ cial propensity for secession. For federalism, by distributing sovereignty over levels of government, emphasises co-operation and interaction among those various levels, and not to repose full faith and confidence in exclusively the one or the other as the ultimate protector of the polity. Full sovereignty therefore resides only in the unified body of all citizens. Accepting this, however, means the effective demise of secession: a constitution and constitutional order do prohibit secession. A constitution denies or rejects secession proper as a violation of the commonality underpinning the polity as an association. A constitutionally supervised secession (in a federation) cannot be a ‘secession’ as a unilat­ eral and univocal act. Not that this means that the union is indissoluble or eternal. Such fundamental change can indeed occur, but only in the manner prescribed by the consti­ tution’s institutional premise. It invokes the transformative model of associative consti­ tutionalism at a national level, calling for a national review and assessment of the fundamental associative commitments. As such it requires the participation of all con­ stituent parties, as equal players of equal voice. But also, that deliberative process by its very nature does not mandate any change or secession. The results depend upon the discussions, debates and decisions made therein. Not that a secession cannot occur, either. A group may well press ahead, despite hav­ ing no principled foundation other than their immediate desire for political power. Nothing in constitutional ink could itself stop that momentum of social will. Equally, if the constitutional order fails to uphold and observe the institutional premise among all of its citizens, they may certainly seek secession to escape direct or indirect oppression. Both cases, of course, are not matters of a constitutionally supervised secession. Instead, we move directly to the question of legitimacy: the legitimacy of rejecting or preserving the current constitutional order.134 And that issue reflects the conditions of community in the state. So even here the associative nature of the constitutional order serves as a touchstone for assessing acts to reject or preserve it. To ask then, ‘What are the condi­ tions for a valid and legitimate decision to secede?’ is to ask for a statement or descrip­ tion of the institutional premise of the constitution, of the process by which citizens Sovereignty as Procedure’ (1988) 463, ‘Appendix II Citizenship and National Identity’ (1990) 491, his ‘On the Relation between Nation, the Rule of Law and Democracy’ in his The Inclusion of the Other (C Cronin (trans), Cambridge, Polity, 1998) 129, and his ‘On the Internal Relation between the Rule of Law and Democracy’ in ibid 253. See also F Michelman, ‘Moral Identity and “Constitutional Patriotism”’ (2001) 14 Ratio Juris 253, 267–70. 134   P Groarke, Dividing the State (Aldershot, Ashgate, 2004) 157–58 (oppression basis: loss of legitimacy can be a question for a court).



Conclusion 297

mutually and reciprocally produce, adopt and apply those values, norms, beliefs, and such like which comprise their private holdings of commitments which in turn they use to describe, to identify themselves. On the basis of this sketch of constitutionalised secession, of a constitutional law con­ cept of ‘legitimate secession’, what then might a (constitutional) court say about secession? That is the task of the next chapter.

9 Negotiating Secession: Of Voice and Veto

T

HE PREVIOUS CHAPTERS have discussed the limitations to the conventional analysis of secession within the fields of federalism and (Canadian) constitutional law, due in no small measure to the underlying reified, objectified understanding of constitutional law. As I have urged from the start in my development of an analytic jurisprudence of secession, and of constitutional law more generally, constitution and law are better conceived of as a dense network of interdependent relationships ordering society, some of which are described by and fixed in certain texts. But by no means are all such relationships fully and clearly articulated in these constitutional instruments at any given time. The intricacy and complexity to such associative relationships necessarily entail that much of the detail and scope remain implicit, unarticulated, and that much of their implications and consequences remain unexpounded or even as yet unrecognised. Acknowledging this flexible, dynamic interpretation to a constitutional legal order opens the possibility of discovering new constitutional terms, elements and relationships within the extant composition of associative relationships and commitments that constitute the state. It requires a wholehearted acceptance of a constitution as a ‘living tree’.1 It would follow that the courts, as the principal and prime moderators over associative relations, also bear the task in general terms to elicit from that pool of detail these hitherto hidden or implicit elements and to articulate them. That a conventional constitutional understanding would analyse secession in terms of constitutional amendment ignores the triteness of its central hypothesis: any secession, constitutionally governed or a fait accompli, would necessitate some amendment to the extant constitution of the rump state in any event. The conventional view concentrates on fitting secession into one of the available amendment processes or formulas as its contribution to a constitutionally moderated secession. Such a view, however, pays scant attention to the critical, but antecedent, issues of characterising secession as an amendment, and of the appropriateness of relying upon the amendment process itself. These are just the issues which do test the substance and scope of constitutional principles and norms, and our adherence to them. But if we pursue instead the associative concept of a constitution advocated herein, we would recognise that a secession movement claims a re-evaluation of associative commitments and looks to redefine the elements and participants in the solidarity-forming exercise. This calls upon all citizens to reconsider their associative commitments. To put this in more practical, commonplace terms, we can use the language of the Supreme Court of Canada in the Québec Secession 1   Re s24 of the BNA Act (Edwards v Canada (AG)) [1930] 1 DLR 98 (PC) 106–7 (Lord Sankey LC) ‘The B.N.A. Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada. Like all written constitutions it has been subject to development through usage and convention: (Canadian Constitutional Studies, Sir Robert Borden, 1922, p. 55)’.



Negotiating Secession: Of Voice and Veto 299

Reference to say that a claim to secede in a constitutional democracy, having popular support, invokes an obligation on all relevant parties to discuss and attempt to resolve the claim, all as part of the constitutional amendment process.2 A serious proposal to amend the constitution demands the serious consideration of all constituents: there is a duty to negotiate such proposals. Both sides, however, must accept the possibility that their particular standpoint, whether of unity or fragmentation, has no overriding legitimacy, no inherent guarantee of success in the process of negotiating. The Supreme Court of Canada has domesticated secession after a fashion within the Canadian constitutional order in the Québec Secession Reference. It has treated secession as a constitutional amendment, and has superimposed upon the amending process the constitutional neologism of an obligation to negotiate. Of course, the Constitution Acts, 1867 to 1982 and relevant constitutional case law did not address the possibility of secession in the slightest. Nor did Part V of the Constitution Act 1982 specify any aspect of the amending process, other than to set out the measure of provincial approval required to change the various aspects of the Constitution Acts, 1867 to 1982. In order to address secession as a constitutional fact, the Court had to reach into that pool of unexpressed, implied aspects to the current Canadian constitutional arrangement. That structure was characterised by the leading principles of federalism, democracy, the rule of law, constitutionalism and respect for minorities. The Court drew out of that the obligation to negotiate serious proposals for constitutional reform, secession included. A constitutional order cannot remain unaffected by, nor its participants deaf to, any earnest suggestion for change. The Québec Secession Reference provides a fascinating and fertile source for constitutional analysis. We should bear in mind that the Supreme Court issued its opinion under its advisory jurisdiction, and not out of ordinary, contested litigation. That is, the federal government requested in effect a legal opinion, not from its own law officers, but from the Supreme Court. The government was legally entitled to do so under the empowering legislation, but it was criticised for ducking its political responsibilities; and the Court, for taking up a political role not due it.3 The fact of such a reference case in and of itself feeds into the interesting and already much travelled questions on the Court’s role in the Canadian constitutional order.4 Its perfunctory consideration of justiciability and of the character of secession as a constitutional amendment, its enunciation and reliance on   Reference re Secession of Québec [1998] 2 SCR 217.   Supreme Court Act RSC 1985 c S-26 s 53. See, eg P O’Neill, ‘C’est au peuple de décider et non pas à la Cour suprême’ Le Devoir (Montréal), 29 December 1997 and his ‘Ryan et Johnson dénoncent le renvoi en Cour suprême’ Le Devoir (Montréal), 4 February 1998; JY Morin, ‘Trois habiles traquenards’ Le Devoir (Montréal), 5 January 1998, his ‘Comment Ottawa peut contourner le droit international’ Le Devoir (Montréal), 6 January 1998, his ‘La Cour, prisonnière de la, ‘légalité’?’ Le Devoir (Montréal), 7 January 1998, his ‘Trois techniques pour sortir de l’impasse’ Le Devoir (Montréal), 8 January 1998 and his ‘Deux légitimités s’affrontent’ Le Devoir (Montréal), 9 January 1998; C Ryan, ‘L’avenir du Québec ne peut être soumis au veto du reste du Canada’ Le Devoir (Montréal), 4 February 1998; L Bouchard (then premier of Québec), ‘Le dernier mot revient au peuple Québecois’ Le Devoir (Montréal), 12 February 1998; H Brun, ‘Une bien drôle de justice’ Le Devoir (Montréal), 12 February 1998; and Y Michaud, ‘Ne jouez pas à la roulette russe avec le destin du peuple Québecois’ Le Devoir (Montréal), 16 February 1998. 4   See, eg M Mandel, The Charter of Rights and the Legalisation of Politics in Canada, rev edn (Toronto, Thompson Educational, 1994); F Morton and R Knopff, The Charter Revolution and the Court Party (Toronto, Broadview, 2000); W Mackay, ‘The Legislature, the Executive, and the Courts: the Delicate Balance of Power, or Who is Running this Country Anyway?’ (2001) 24 Dalhousie LJ 37; P James, D Abelson and M Lusztig (eds), The Myth of the Sacred: the Charter, the Courts, and Politics of the Constitution in Canada (Kingston, McGill-Queen’s UP, 2002); and R Martin, The Most Dangerous Branch: How the Supreme Court of Canada has Undermined Our Law and Our Democracy (Kingston, McGill-Queen’s UP, 2003). 2 3

300  Negotiating Secession: Of Voice and Veto unwritten, but binding, constitutional norms and principles, its treatment of inter­national public law, and its development of the constitutional neologism of the obligation to negotiate, each invite close and meticulous scrutiny as well.5 But for my purposes, the critical and most important issues are (1) the perfunctory treatment of secession as an amendment; (2) the consequence that, as a proposed amendment, secession is a defeasible claim; and (3) the constitutional circumstances resulting from an impasse to negotiations, a failure to reach any agreement or compromise. These issues, and the Québec Secession Reference in general, are best approached with an understanding of the circumstances bringing about the reference in the first place. It is to that background that I turn next. BACKGROUND

The federal government’s decision to seek such a legal opinion regarding Québec’s claim to be able to secede unilaterally from Canada arose in the circumstances of the 1995 Québec sovereignty referendum. The 1994 provincial election had returned the Parti Québecois to power after a 10-year hiatus.6 A central tenet of the party’s platform was (and remains) the pursuit of Québec independence and the holding of a referendum to generate a basis of popular support for that undertaking. The Québec government under 5   The academic commentary generated by the Québec Secession Reference is immense, comprising publications (directly on its reasons and indirectly by placing its reasons in a larger international law context) not only in Canada, but also in the United Kingdom, the United States and Europe. See, eg the symposia editions (1998) 10 Cons Forum; (1998) 8.1 NJCL (in advance of the ruling itself) and (1999) 11 NJCL (after the ruling); (2000) 13 CJLJ, and (1999) 23 Vermont LR; G Carlton, ‘When Reality Sets In: Why Québec Could Not Exist as an Independent Nation’ (1998) 7 Detroit Coll JILP 465; and D. Proulx, ‘La sécession du Québec: principes et mode d’emploi selon la Cour suprême du Canada’ [1998] 4 RBDC 361; D Haljan, ‘Negotiating Québec Secession’ [1998] 1 RBDI 190 and his ‘A Constitutional Duty to Negotiate Amendments: Reference re Secession of Québec’ (1999) 48 ICLQ 447; E Wiltanger, ‘Sound the Trumpets! Québec is Shouting, “Victory!” Despite the Canadian Supreme Court’s Denial of Unilateral Secession’ (1999) 17 Dickinson J Int’l L 505; K MacMillan, ‘Secession Perspectives and the Independence of Québec’ (1999) 7 Tulane JICL 333; W Dodge, ‘Succeeding in Seceding?: Internationalizing the Québec Secession Reference under NAFTA’ (1999) 34 Texas ILJ 287; R Hanna, ‘The Right to Self-Determination in In Re Secession of Québec’ (1999) 23 Maryland JILT 213; C Lloyd Brown-John, ‘Self-Determination, Autonomy and State Secession in Federal Constitutional and International Law’ (1999) 40 So Texas LR 567; C Whites, ‘Reference re Secession of Québec: Secession by Québec is a Nearly Impossible Task’ (1999) 19 New York Law School JICL 323; S Toope, ‘Re Reference by Governor in Council concerning Certain Questions relating to Secession of Québec from Canada. 161 D.L.R. (4th) 385. Supreme Court of Canada, August 20, 1998’ (1999) 93 AJIL 519; M Walters, ‘Nationalism and the Pathology of Legal Systems: Considering the Québec Secession Reference and its Lessons for the UK’ (1999) 62 MLR 371; K Svoboda, ‘No Success with Secession: 135 Years Ago the United States of America Experienced Civil War, Now Canada Grapples with the Possible Secession of Québec’ (2000) 44 St Louis LJ 747; C Ford, ‘In Search of the Qualitative Clear Majority: Democratic Experimentalism and the Québec Secession Reference’ (2001) Alberta LR 511; P Bienvenu, ‘Secession by Constitutional Means: the Decision of the Supreme Court of Canada in Québec Secession Reference’ (2001) 23 Hamline JPLP 185; M Walters, ‘The Common Law Constitution in Canada: Return of Lex Non Scripta as Fundamental Law’ (2001) 51 U Toronto LJ 91; J Leclair, ‘The Secession Reference: A Ruling in Search of a Nation’ (2002) 34 RJT 885; S Alvstad, ‘The Québec Secession Issue, with an Emphasis on the “Cultural” Side of the Equation’ (2004) 18 Temple ICLJ 89; M Jovanovic, Constitutionalizing Secession in Federalized States: A Procedural Approach (Utrecht, Eleven International Pub, 2007) and his his ‘Can Constitutions be of Use in the Resolution of Secessionist Conflicts?’ (2009) JILIR 59; and S Tierney, Constitutional Law and National Pluralism (Oxford, Oxford UP, 2007) 256–71. 6   It can be argued that the Parti Québecois’ electoral success in 1994 was due in large measure to provincial discontent over the failures of the Meech Lake Accord (1989) and the Charlottetown Accord (1992) proposing to entrench special status for Québec in the Canadian Constitution. The Liberal Party of Québec under Robert Bourassa had formed the government from 1985 to 1989, and from 1989 to 1994, during the two constitutional rounds. In 1994, Daniel Johnson took over party leadership and the premiership from a retiring Bourassa, until the election of that year.



Background 301

the premiership of Parti Québecois leader Jacques Parizeau began realising upon its sovereignty platform soon after taking power. In December 1994, Parizeau tabled in the National Assembly (the provincial legislature) a draft Bill on the sovereignty of Québec and at the same time had copies distributed to all Québec residents.7 Article 1 of the draft Bill stated, ‘Québec is a sovereign country’. Article 4 stipulated that an independent Québec retained those boundaries held formerly as a province of Canada at the time of its independence. Other articles of the Bill addressed continuity of laws and legal institutions, citizenship, currency, international relations and treaty obligations, and negotiations with the federal government to arrange the financial, fiscal and transfer of property details concerning the separation of Québec from Canada. This draft Bill also set out a basic process for the achieving the independence of Québec from Canada. Public consultations were to be held to consider the terms of the draft Bill and to prepare a ‘Declaration of Sovereignty’ forming the Preamble to the actual Bill submitted for enactment. Once passed by the National Assembly, the Act would only come into force when approved by a simple majority of the provincial population by referendum. This would be at the very latest one year after its approval by referendum. Over the course of this year, a new Québec constitution would be drafted and negotiations with the federal government to settle the details of separation were expected to occur. Over the course of 1994 and early 1995, public consultation sessions were held across the province. The provincial Liberal Party (the official opposition) and its federalnational relative, the Liberal Party of Canada, boycotted the whole process, as did the other main national political party, the Progressive Conservative Party of Canada.8 The National Commission on the Future of Québec collected the information gathered from its various regional commissions and produced a final report containing the ‘Declaration of Sovereignty’ and some 40 recommendations.9 This Declaration and the recommendations were worked into Bill 1, ‘An Act respecting the Future of Québec’, tabled by Parizeau in the National Assembly on 7 September 1995.10 The terms of Bill 1 tracked those of the earlier draft, but with some greater detail. The Declaration asserted that Québeckers were a people possessed of a right of self-determination, and who proclaimed through the National Assembly that Québec was a sovereign country. Accordingly article 1 authorised the National Assembly to proclaim that sovereignty. The Bill also outlined the details of the new political and economic partnership sought with Canada after independence. Prior to introducing Bill 1, the Parti Québecois had reached an agreement in June 1995 to pool resources and co-ordinate efforts (for the upcoming referendum and the implementation of sovereignty) with the two other separatist parties: the Action démocratique du Québec (active in Québec only) and the Bloc Québecois (active only in Parliament). This agreement stipulated the terms of the new economic and political partnership to be sought from Canada and was included as an annex to Bill 1. 7   Avant-projet de loi, ‘Loi sur la souveraineté du Québec’, 35th Legislature 1st Session (6 December 1994), available in D Turp, Le droit de choisir: essais sur le droit du Québec à disposer de lui–même; The Right to Choose: Essays on Québec’s Right of Self-Determination (Québec, Eds Thémis, 2001); and A Bayefsky (ed), Self-Determination in International Law: Québec and Lessons Learned (Deventer, Kluwer, 2000). See also Bertrand v Québec (AG) (1996) 138 DLR (4th) 481 (Que SC) (‘Bertrand v Québec (No 2)’). 8   A Bayefsky, ‘Introduction’ in Bayefsky, Self-Determination (n 7) 19 n 25. 9   Commission sur l’avenir du Québec, Rapport du Commission sur l’avenir du Québec (Québéc, 19 April 1995). 10   Projet de loi no 1/Bill 1 ‘Loi sur l’avenir du Québec’, 35th Legislature 1st Session (7 September 1995).

302  Negotiating Secession: Of Voice and Veto Although the Bill was not adopted by the National Assembly as contemplated by its terms, a referendum was nonetheless held on 30 October 1995 on the following question: Do you agree that Québec should become sovereign, after having made a formal offer to Canada for a new economic and political partnership, within the scope of the bill respecting the future of Québec and of the agreement signed on June 12, 1995?

The Québec electorate narrowly rejected the provincial government’s proposal by a slim majority of 50.48 per cent.11 While by no means certain or agreed, it can reasonably be assumed that a bare majority in favour of the Bill would have satisfied the Parizeau government. This was the second referendum of its kind, the first occurring on 20 May 1980. This first referendum defeated the Parti Québecois’ sovereignty-association proposal by a majority of 59.6 per cent. Bertrand v Québec This drive to independence by the Québec government was challenged by a Québec lawyer, Guy Bertrand.12 Bertrand, surprisingly enough, was formerly a proponent of secession. According to his co-counsel at the time, Patrick Monahan: As you know, at one time he was a separatist who worked to destroy Canada. I asked him why he changed his view. He told me that he changed his view because, in Canada, we could have a Leader of the Opposition who is dedicated to achieving the secession of a part of Canada. He said that was a remarkable fact about Canada and one that made Canada a country that one ought to want to be a part of.13

Bertrand challenged the constitutional validity of the acts of the Québec government in preparing and tabling a sovereignty Bill and holding a referendum to approve that Bill, claiming that they constituted ‘an actual parliamentary and constitutional coup d’état, a fraud upon the Canadian Constitution and an abuse of powers, resulting in a violation and a denial of his rights and freedoms and those of all Québec taxpayers’. On the basis of the claims of unconstitutional and ultra vires acts, Bertrand sought as remedies some 30 itemised declarations and 20 itemised requests for an interim and permanent injunction. These essentially purported to render Bill 1 invalid, enjoin the pursuit of sovereignty by the government and in the National Assembly, and prevent the holding of a referendum. The case came before the courts twice, once just before the referendum and once thereafter. Bertrand v Québec (No 1) In the first instance, Bertrand brought a motion for an interim, provisional injunction to stop the impending secession referendum in October 1995. The Québec government 11   Directeur Général des Elections du Québec, ‘Rapport des résultants officiels du scrutin: référendum du 30 octobre 1995’ (November 1995); Bertrand v Québec (No 2) (n 7); and M Dawson, ‘Reflections on the Opinion of the Supreme Court of Canada in the Québec Secession Reference’ (1999) 11 NJCL 5. 12   Bertrand v Québec (AG) (1995) 127 DLR (4th) 408 (Que SC) (‘Bertrand v Québec (No 1)’) and Bertrand v Québec (No 2) (n 7). One Dr Singh (a Québec resident) and six others had also brought a similar action against the same draft Bill and the referendum. Their action was overtaken by Bertrand v Québec (No 1) and (No 2). 13   P Monahan, Senate Proceedings (29 May 2000).



Background 303

resisted on a point of jurisdiction, that the action and motion were non-justiciable. Although entitled to, the federal government chose not to file or make submissions at this hearing.14 The Québec government argued first that Bertrand’s claims represented an unjustifiable interference with the fundamental powers and workings of the National Assembly, and its most essential privileges as a legislature. Secondly, it argued that the holding of a referendum on the sovereignty issue was based on the principle of democracy and addressed an issue not within the jurisdiction of the courts. Quite surprisingly, the government advanced no evidence nor argument against the substance of Bertrand’s claims. And in a most peculiar move, the government instructed its lawyers to withdraw from the rest of the hearing after the court denied the motion to decline jurisdiction.15 Thus, with the jurisdictional question decided against the government, the primary issue of whether a case was made out to enjoin (on an interim basis) the government’s pursuit of the sovereignty project and the referendum was left uncontested by the government. And on that point, the Supreme Court issued a declaration that Bill 1 ‘An Act respecting the Future of Québec’ constituted a ‘serious threat to the rights and freedoms of the Plaintiff as guaranteed by the Canadian Charter of Rights and Freedoms, in particular, by sections 2, 3, 6, 7, 15, and 24(1)’.16 It refused to issue any injunction. Lesage J’s reasons can be read to cover both the decision to reject the motion to strike and to grant the declaration. First, contrary to the submission of the Québec government, the privileges and workings of the National Assembly were not really at issue.17 The National Assembly was not a party to the proceedings: the government was. And the tabling of a draft Bill and the decision to hold a referendum represented political acts of the executive, not legislative ones. That Bill purported to circumvent the established constitutional amending power in force and establish a new legal system. In general, two ways existed to accomplish that task: by constitutional amendment, and by fait accompli. The latter clearly set the government act outside its constitutional prerogative. And the imposition of a new legal system would interfere with the rights and freedoms under the current system. The prospect of some substitute constitution in the future offering a guarantee of similar rights and freedoms was insufficient, and not equivalent to guaranteed and effective rights here and now. There existed a constitutional entitlement to a remedy to prevent any breach or threatened breach of presently guaranteed rights. Accordingly, concluded Lesage J on the first element of the test for an injunction, a serious triable issue had been raised by Bertrand. (Of course, without the Québec government participating in the hearing, or submitting any evidence to the contrary, it is difficult to assess from an overall perspective the effective weight of the evidence and a court’s approach thereto. The evidence for the injunction was only prima facie persuasive.)18 Irreparable harm to rights and the public order would likely obtain, should the referendum and the sovereignty project succeed. 14   In all matters involving constitutional questions, the Attorneys General (provincial and federal) must be given notice, and may make submissions to the court: see, eg Courts of Justice Act RSO 1990 c C-43 s 109; Judicature Act RSA 2000 c J-2 ss 24–26. I assume the federal government did not want to inflame public opinion by being perceived as ‘interfering’ in the referendum process in an institutional and formal way. 15   Bertrand v Québec (No 1) (n 12) 417, 418. 16   ibid 432–33 (s 2 (freedoms of association, religion, expression); s 3 (right to vote); s 6 (mobility rights throughout Canada); s 7 (right to life, liberty and security of the person without deprivation thereof except where justifiable in a democratic society); s 15 (right to equality and non–discrimination); s 24 (entitlement to remedy for breach of a Charter right)). 17   Bertrand v Québec (No 1) (n 12) 418–20, 425–31. 18   ibid 428–29.

304  Negotiating Secession: Of Voice and Veto But an injunction also requires the balance of convenience to lean in favour of the applicant’s case. Now, although the court cannot prevent the exercise of political forces, it certainly may not approve a violation of the Constitution.19 Of course, a referendum in itself is a consultative tool, and on its face offends neither legal nor constitutional principles. Yet the problem remained that a ‘Yes’ result for the referendum would be likely to lead to the imposition of a new constitutional and legal system. And steps of this sort invoked the parliamentary process and parliamentary privileges. Although based on the Westminster model, parliamentary power in Canada was limited by a federal constitution. Parliamentary members may debate any sort of measure, and even purport to adopt invalid and illegal laws, but they may not attack the Constitution wherefrom they draw their authority in the first place. And a court may intervene in the parliamentary process before a law and like measures are assented to, but only in the extraordinary situation where no remedy was available before the former would complete and achieve their objective, the very objective which was intended to be prevented by laws from which the legislature derived its existence and powers.20 That was the situation here, and an injunction should normally issue. An injunction, however, did not suit these circumstances.21 It would paralyse the workings of the National Assembly, and purport to restrict parliamentary debate. Prohibiting a referendum might cause greater harm and disorder than allowing it to proceed. Granting a declaration would in its stead avoid these problems. A declaration would not directly interfere with the workings of the legislative and executive branches. It does not set the groundwork for enforcement mechanisms undesirable in the circumstances. A declaration of unconstitutionality would allow the government to find a means to satisfy its responsibilities under the declaration, and would encourage a balance between democratic institutions. And a declaration would better serve preventative justice in the circumstances. Accordingly, the Supreme Court granted a declaration that the Bill constituted a serious threat to rights and freedoms guaranteed under the Charter. Bertrand v Québec (No 2) Notwithstanding the failure of the sovereignty project proposed in the referendum, Bertrand pursued his action against the Québec government. He argued that the Québec government was prepared to continue investing time and resources in furthering the sovereignty project in preparation for a further attempt to secede. Accordingly, he maintained his action for a declaration that unilateral secession was unconstitutional and contravened his rights under the Charter of Rights and Freedoms. The Québec government now moved to strike the whole action as non-justiciable.22 It argued that the action attacked directly and indirectly parliamentary privileges, immunities and operations. Moreover, the Charter of Rights and Freedoms could have no effect on parliamentary privileges immunities and operations. The issues raised were of a purely political nature, and involved no genuine legal dispute. They were also of a hypothetical or moot nature, give the outcome of the referendum. No other referendum was planned. Lastly, Québec’s   ibid 430–33.   Rediffusion (Hong Kong) v Hong Kong (AG) [1970] AC 1136 (PC). 21   Bertrand v Québec (No 1) (n 12) 431–33. 22   Bertrand v Québec (No 2) (n 7). 19 20



Background 305

plan for accession to sovereignty was consistent with public international law.23 And again, the Québec government lost. Thereafter it withdrew once more from the proceedings, maintaining that the secession issue was purely political. The federal government intervened actively this time, in opposition to the motion to dismiss. It took the position that any attempt by the Québec government to secede unilaterally was subject to the Constitution and judicial review. The courts were the guardians of the Constitution, and as such it was incumbent on them to guarantee adherence to all constitutional principles. The courts had an inherent power to examine the legality of the referendum process. Even if the issues were rendered hypothetical or moot by the circumstances, the courts retained a discretionary power to decide constitutional questions in that type of situation. Because the issues of secession in a national and inter­ national setting raised in the action were unsettled and controversial, the action could not be dismissed out of hand, but must proceed to trial. Pidgeon J dismissed the Québec government’s motion. The matters were justiciable, and offered serious, substantial questions for trial. First, the actions of a legislative assembly were not prima facie immune from judicial review for compliance with the Charter of Rights. No customary privilege or prerogative exempts any public authority, government or legislative assembly from rights and freedoms guaranteed under the Charter of Rights and Freedoms. The latter had limited the supreme authority of the legislative branches.24 Whether or not the acts of the government in this case to achieve independence were immune, or could be immune, from constitutional review was a question for trial. Secondly, the courts are charged with the duty to ensure the rule of law, in particular, the stability and continuity of the legal order, and that fundamental rights and freedoms will be respected by the public authorities. Although the courts should refrain from assessing the wisdom of government actions, they should not too easily shy away from weighty matters of state, especially those which invoke their duty to investigate alleged violations of rights and freedoms. It was alleged that the acts of the Québec government to seek independence from Canada would violate certain constitutionally guaranteed rights and freedoms, and as such were a matter for the trial judge to determine on the evidence and after full argument. Thirdly, whether or not secession was covered by international law and was applicable to Québec was a matter of signific­ ant controversy and uncertainty.25 As such it was also a matter for trial. Fourthly, absent any evidence to the contrary, the sovereignty project remained the policy and intention of the Québec government. Indeed, the National Assembly had recently adopted a postreferendum resolution re-affirming that the people of Québec were free to assume their own destiny and determine without interference their political status. The courts retained a discretionary jurisdiction to determine moot constitutional issues provided the questions raised were serious (and it would thus be in the public interest to answer

23   Also argued, but not relevant here, was that the failure to adopt a French-language version of certain instruments in the Schedules to the Constitution Act 1982 rendered that Act of no force and effect. This ground too was rejected, and left for the judge hearing the action: Bertrand v Québec (No 2) (n 7) 509–11. 24   Bertrand v Québec (No 2) (n 7) 497–99 relying on Operation Dismantle v The Queen [1985] 1 SCR 441 (government acts and policy not immune from judicial review) and New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly) [1993] 1 SCR 319 (prerogative and privilege subject to judicial review on certain terms). See also Harvey v New Brunswick (AG) [1996] 2 SCC 876. 25   Bertrand v Québec (No 2) (n 7) 502–5.

306  Negotiating Secession: Of Voice and Veto them) and could be fully and thoroughly argued.26 In particular, Pidgeon J identified four constitutional and international law issues which he considered important for resolution by the judge ultimately hearing the substance of the case, namely: (1) (2) (3) (4)

Is the right to self-determination synonymous with the right to secession? Can Québec unilaterally secede from Canada? Is Québec’s process for achieving sovereignty consistent with international law? Does international law prevail over domestic law?27

Taking its cue from this, the federal government decided to refer those issues to the Supreme Court of Canada for its legal opinion.28 Québec v Constitution of Canada It would perhaps not be too cryptic to refer to recourse to Canadian courts in a secession crisis, such as in Bertrand v Québec (No 1) and (No 2), as both surprising and not surprising. On the one hand, it is certainly not surprising that someone should challenge a provincial government’s attempt to secede as contrary to the powers allocated it under the Constitution Acts, 1867 to 1982 and as a breach of the rights and freedoms guaranteed under the Charter of Rights. Constitutional challenges, particularly ones based upon an alleged breach of the Charter of Rights, are commonplace occurrences in Canadian legal life. All executive and legislative action in Canada is by operation of section 32 of the Constitution Act 1982 subject to review for constitutionality.29 (By way of contrast, the Charter of Rights does not applying to private law matters involving private parties.30 That area is covered for ordinary, non-constitutional legislation on rights.) Any secession-oriented government would likely implement its secession programme through some form of legislative instrument, encompassing the range from statute to executive order. In addition to questions raised over the basic jurisdiction of governments and legislatures, the division of powers (in a federal state), and the amendment formulas, there would certainly also be questions on the derogation from or breach of fundamental rights and freedoms guaranteed under the existing legal and constitutional systems, in addition to procedural questions of standing for private and public parties, especially the standing of those persons resident outside the province or region seeking to secede. By way of digression, the possibility exists nonetheless of causes of action in private law areas.31 They would be principally contractual ones, such as breach of contract and 26   ibid 507 relying on Mahe v Alberta [1990] 1 SCR 342; R v Adams [1995] 4 SCR 707; and Borowski v Canada (AG) [1989] 1 SCR 342. 27   Bertrand v Québec (No 2) (n 7) 507–8. 28  Statement of Minister of Justice Allan Rock to Parliament, HC Deb, 26 September 1996; see also W MacLauchlan, ‘Accounting for Democracy and the Rule of Law in the Québec Secession Reference’ (1997) 76 CBR 155, 161–67; Dawson, ‘Reflections’ (n 11) 11–12. 29   See, eg Operation Dismantle v The Queen [1985] 1 SCR 441; Harvey v New Brunswick [1996] 2 SCR 876 (legislature, question of privilege); Canada (House of Commons) v Vaid [2005] 1 SCR 667 (Parliament); Lavigne v OPSEU [1991] 2 SCR 211 (government action in general); Black v Law Society of Alberta [1989] 1 SCR 591 (delegation and exercise of statutory power); R v Rahey [1987] 1 SCR 588 (the courts); BCGEU v BC [1988] 2 SCR 214 (the courts). 30   RWDSU v Dolphin Delivery [1986] 2 SCR 573. 31   But as noted in chapter 1, leaving out of consideration criminal matters such as treason, sedition and offences against public order.



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interference with contractual relations. Tort and negligence claims do not offer any obvious candidates and would therefore likely require highly specific fact situations. Property claims are equally uncertain, excepting, perhaps, some form of expropriation claims. But even here framing the claim would require an active imagination, and offer no ex facie chance of surviving a motion to strike or for summary dismissal. But, in any event, the idea of prosecuting these with a view to delaying or enjoining secession seems remote. Generally speaking in these circumstances, damages are an adequate compensatory remedy and thus displace any claim to injunctive relief. And they would represent more a reaction to secession, assuming even that secession would constitute or lead to a breach of the relevant private law rights. Returning, then, to consider constitutional challenges to acts in support of secession, it is no argument that the government acts, by their intrinsic nature as acts of secession, fall outside the ambit of constitutional control. That argument is not technically nor substantially viable until secession is actually effected. Until that time, the government and legislature still remain creatures conceived, elected and empowered under the extant constitution, even if only in a technical, formal sense. In that respect they remain prima facie subject to constitutional supervision. As long as a secession-oriented government desires to maintain some patina of constitutional and democratic dignity and order, it cannot simply consider itself a revolutionary council without more, and proceed tabula rasa. But this puts a secession-minded government in somewhat of a quandary. If we continue to assume that such a government intends to achieve its secessionist goals peacefully based on ‘democratic’ principles, then the government cannot separate itself from its constitutional position. Trying to free itself from a constitution entails remaining nevertheless bound to it insofar as the government wishes to retain its ‘legitimacy’. For that legitimacy arises not merely through the simple fact of ‘democratic’ election and parliamentary convention considered in the abstract. They occur in and through an extant particular constitutional system. Hence, the claim by a secessionist government to rely on ‘democratic’ support, the will of the people, must be read through the lenses of constitutional structures wherein the government is formed. The claim must be conditioned or qualified by constitutional norms. Put in other terms, a player may not properly quit a game except pursuant to the rules prescribed by the game. Likewise, we may not end our contractual obligations unilaterally, on pain of breach of contract; resiling from or terminating a contract must occur under the terms of that agreement. To grant this argument requires accepting a much closer connection between (constitutional) law and (democratic) politics than may at first sight be suggested. Constitutional law would frame the political process in general. That is, the democratic process would rely or depend on the particular constitutional arrangement to render it effective. And the constitutional order would colour or influence how the process operated and which aspects of it received attention. The differentiation between law and politics becomes less clear, less well-defined, and their interrelationship would begin to acquire a new, co-ordinate character. This begins to point out the striking features of the Bertrand cases. The preference expressed in Bertrand v Québec (No 1) and (No 2) for a specifically legal resolution instead of a political one shows at least a sense of equivalent normativity between law and politics. Indeed, the Québec government was expected to bend to the courts’ decision and interpretation. In particular, the cases reveal three aspects. First,

308  Negotiating Secession: Of Voice and Veto they suggest full faith and confidence in judicial (constitutional) decisions and in (constitutional) law. There would be no reason to consult the court absent some belief the courts could get it right, and make a difference. Secondly and following, judicial decisions have an authority meriting respect and obedience. Without that authority, court decisions would have no greater weight or standing than, say, the prognostications of a fortune teller, or the opinions of a journalist. That authority derives not only from their institutional standing, but also the content of their decisions. Thirdly, the cases demonstrate the full expectation that the political actors of the piece, specifically the Québec government, will respect and comply with the court’s decision. In effect, Bertrand v Québec (No 1) and (No 2) begin to identify and trace out the rule of law, here at the edge of what may comfortably be called ‘law’, as opposed to ‘politics’ or better, ‘non–law’. It refers to the mutual understanding between government (understood in its broadest sense to include ‘law-maker’ as well) and citizen, that the ‘law’ applies to and binds equally government and citizen.32 In effect, government and citizens are both author and addressee of the law. Specifically, the rule of law identifies an institutional characteristic of democratic political society wherein the democratic characteristics may only come to be realised in and through legal rules and norms. For a political institution to violate those legal norms and rules is to deny or violate the very democratic character of those institutions. Hence, subjecting the Québec government to constitutional adjudication is not a test of the rule of law, but a test of the democratic character of that government. And this should colour the withdrawal (twice) of the government from the hearings as meriting all the more concern. And this interesting feature of the Bertrand cases also raises a further striking aspect, concerning the nature of rights. Specifically, the Bertrand cases develop, but do not necessarily resolve, a neat tension between constitutionally-entrenched rights, such as those contained in the Charter of Rights, and the right of self-determination. More categorically, we can pitch the opposition as between legal rights and political rights. The Bertrand cases suggest that it is not patently obvious that the right of self-determination takes precedence over the Charter of Rights. Indeed, they suggest quite the contrary: violations of the Charter of Rights may ground restrictions on the exercise of the right of self-determination. Legal rights would have precedence, unless we were prepared to reinterpret political and legal rights as ‘co-ordinate’, the one not trumping the other. Thus, Bertrand v Québec (No 1) and (No 2) neatly set out the central themes for examination in the Québec Secession Reference. Setting the Reference On 30 September 1996, the Governor General in Council (on advice of the federal government) referred to the Supreme Court three questions of law concerning the ability of Québec to secede unilaterally under the Canadian federal Constitution and under international law.33 These questions were as follows:

32   TRS Allan, ‘The Rule of Law as the Rule of Reason: Consent and Constitutionalism’ (1999) 115 LQR 221, 229, 231, 236. 33   Order in Council PC 1996–1497 (30 September 1996), and available in Dawson, ‘Reflections’ (n 11) 13.



Background 309

(1) Under the Constitution of Canada, can the National Assembly, legislature, or government of Québec effect the secession of Québec from Canada unilaterally? (2) Does international law give the National Assembly, the legislature or government of Québec the right to effect the secession of Québec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or government of Québec the right to effect the secession of Québec from Canada unilaterally? (3) In the event of a conflict between domestic and international law on the right of the National Assembly, the legislature or government of Québec to effect the secession of Québec from Canada unilaterally, which would take precedence in Canada? Over the course of 1997, the federal government thereafter filed written argument and an expert’s report dealing with issues of international law.34 The Province of Québec refused to participate. It filed no written brief and did not make any submissions. It took the public position that the secession issue was purely political, and not justiciable before the courts. The Supreme Court, however, appointed an amicus curiae (from Québec) to represent the competing, secessionist interest. Manitoba and Saskatchewan (of the 10 provinces), the then two territories (Northwest Territories, Yukon Territory), four separate representatives of aboriginal interests (Kitiban Zibi Anishinabeg, Grand Council of the Crees (Eeyou Estchee), Makivik Corporation, the Chiefs of Ontario), two special interest groups (the Minority Advocacy and Rights Council and the Ad Hoc Committee of Canadian Women on the Constitution ), and three sets of private individuals (Guy Bertrand; Roopnarine Singh, Keith Henderson, Claude Leclerc, Kenneth O’Donnell and Van Hoven Petteway; Vincent Pouliot) were all granted standing to intervene in the proceedings and also filed written argument.35 The Court heard argument from 16 February to 19 February 1998. Some six months later, it released its opinion. References and Constitutional Interpretation Although merely a reference opinion, the reasons and principles stated by the Supreme Court in the Québec Secession Reference nonetheless have immediate and significant impact on the development of Canadian constitutional law in the courts and in the political sphere. All the more so since the opinion is given on behalf of the Court sitting en banc (all nine judges present) without being attributed to any one judicial author and without dissenting or separate reasons (albeit not uncommon in a reference or any Supreme Court of Canada case). The Court’s reference jurisdiction originates in the Supreme Court Act section 53.36 By that section, the Governor-in-Council (in effect, the government of the day) may submit for the Court’s opinion important questions of law or fact regarding, among other things, the interpretation of the Constitution Acts, 1867 to 1982, the constitutionality or interpretation of any federal or provincial legislation, 34  Reproduced in Bayefsky, Self-Determination (n 7). For general background on the Québec Secession Reference, including parties and proceedings, see, eg Dawson, ‘Reflections’ (n 11) 14 ff. 35   Representative examples of these written arguments, certain experts’ reports on relevant aspects of public international law, and other documents in the Québec Secession Reference proceedings are collected in Bayefsky, Self-Determination (n 7). 36   Supreme Court of Canada Act RSC 1985 c S-26. There is also province-grounded reference jusrisdiction with a further appeal to the Supreme Court. The reference jurisdiction is constitutionally valid: Ontario (AG) v Canada (AG) [1912] AC 571 (PC).

310  Negotiating Secession: Of Voice and Veto the powers of Parliament or of a provincial legislature or the governments thereof, or any other matter seen fit to be submitted.37 This function is not a typical or traditional judicial function. The Court renders advice and direction on points of law or legislation without there necessarily existing a controversy or dispute among parties. In the history of the section, its overwhelming and primary use has been to interpret the Constitution, and test the constitutionality of legislative and executive deeds, at the federal and provincial levels.38 And despite some discretion not to answer the questions set, the Court has nonetheless preferred to exercise a wider, more relaxed attitude as to what constitutes issues it could and should not answer.39 In effect, the Supreme Court is being asked to state its view of the law before a dispute between parties comes before it in the ordinary course. Thus, strictly speaking, as merely advice and directions, the opinion of the Court is merely persuasive, rather than binding precedent throughout Canada.40 But in practice this is very much a distinction without a difference. After all, what better assurance is there of reliability and correctness than to obtain advice in advance from the very judges who may be deciding the issue later. That opinion rendered under judicial seal entails that only in an extremely unlikely situation would a court ignore or reject a reference opinion otherwise on point. Indeed, reference opinions are commonly cited and used indistinguishably from other precedents. In that sense, the reference jurisdiction not only supplements the traditional advisory function of the Attorney General and Crown law officers, but trades specifically on the institutional authority of the Court and the public nature of its hearings, reasons and decision – its transparency, by any other term – in order to add authority and weight to what is simply legal advice. At this point, we could easily be waylaid by a vigorous debate, common in US constitutional law circles and growing in Canadian and UK ones, whether it is the courts or the legislatures which have the last word in constitutional interpretation. And we could question the nature of judicial independence from the political sphere. It might be argued that the courts have no role in giving advice, particularly in situations of constitutional stress. Their duty is merely to enforce the laws in accordance with constitutional norms. Allowing them to participate at this open-ended, speculative level allows them a further measure of control over legislative policy and the organisation of political society, where those tasks are better and more naturally held and exercised by citizens and their elected representatives. It is for citizens to decide for themselves under what laws and in what constitutional framework they wish to live. Consulting the courts in this fashion impli37   P Monahan, ‘The Public Policy Role of the Supreme Court of Canada in the Secession Reference’ (1999) 11 NJCL 65, 92 ff (critique). 38   See, eg P Hogg, Constitutional Law of Canada, 4th edn (Toronto, Carswell, 1997) s 8.6; Reference re Initiative and Referendum Act [1919] AC 935 (PC) (parliamentary process in Canada); Reference re Regulation and Control of Aeronautics [1932] 1 DLR 58 (PC) (division of powers); Reference re Manitoba Language Rights [1985] 1 SCR 721 (constitutional requirement for bilingual provincial statutes); Reference re Resolution to Amend the Constitution [1981] 1 SCR 753 (amendment process and conventions); Reference re Authority of Parliament in relation to the Upper House [1980] 1 SCR 54 (Parliament’s sole power to alter bicameral structure of Parliament); Reference re Anti-Inflation Act [1976] SCR 373 (federal POGG power); Reference re Provincial Electoral Boundaries (Sask) [1991] 2 SCR 158 (Charter rights re franchise); and Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island [1997] 3 SCR 3 (independence of provinciallyappointed judges). 39   Reference re Québec Veto [1982] 2 SCR 793 (moot question); British Columbia (AG) v Canada (AG) [1914] AC 153 (PC) (question too vague); Reference re CAP [1991] 2 SCR 525. See also B Strayer, The Canadian Constitution and the Courts, 3rd edn (Toronto, Butterworths, 1988) esp ch 5. 40   Ontario (AG) v Canada (AG) [1912] AC 571.



The Supreme Court’s Opinion 311

cates them as an actor in the legislative process. Courts and the legal system ought to remain reactive, not pro-active. All this, and like slogans, represent simply a variation on the knotty problem of the separation of powers. Under this doctrine, whereby the Constitution is the preserve of the people, political power is divided among the legislative, executive and judicial branches. In the simplest of terms, the legislature makes laws under the Constitution; the executive implements and administers them; and the courts enforce them according to their terms. One central difficulty with the separation of powers doctrine is an overly simplified view of the legal process, adjudication and judicial interpretation (constitutional interpretation, in particular). Adjudication is in reality far from the hypothesised game of matching simple, clear facts to fixed, clear rules. Applying law to facts belies a complex and intricate series of evaluations and interpretations.41 Any serious legal dispute presents two conceivably legitimate and valid positions characterising an intersubjective relationship. In any sophisticated legal system, the significance and interconnection of particular facts must first be weighed. Then, apart from any question as to the applicable law, the meaning, scope and intention of legal rules must be assessed in light of the facts as understood. This requires a perspective and consideration beyond the mere words of the rules themselves.42 Thus, whether we adopt a stronger or weaker version of the separation of powers doctrine along some sliding scale of acceptable judicial intervention in political decision-making, the invariably open-textured and incomplete nature of a constitutional text means that judges must of necessity reach outside the text itself to interpret the constitution and review legislation in order to match the diversity of modern situations. Hence, the core issue of constitutional interpretation and judicial review of legislation is really the legitimacy and justification for the principles relied on, and the evaluations made, by judges in arriving at their decisions. This is no less the case for a reference opinion. And at the foundation of this question over sources of law is the inevitable tension between the rule of law/constitutionalism and popular sovereignty, between being both the sovereign author of law and its addressee. And that tension naturally becomes the prime and central point of focus in determining the control of a constitution (rule of law) over a secession movement (popular sovereignty), as shortly to be seen in the Québec Secession Reference. THE SUPREME COURT’S OPINION

On 20 August 1998, the Supreme Court of Canada delivered its advisory opinion concerning the unilateral secession of Québec.43 Put simply, the Court rejected the right of Québec to secede unilaterally under both the Canadian Constitution and international law. Secession represented an amendment to the Canadian Constitution and was accordingly to be a negotiated process. All constitutional participants had a binding, constitutional duty to negotiate, but this duty did not entail negotiating only the details of eventual 41   For example, the ‘neutrality’ of the law and judging: R Dworkin, Taking Rights Seriously (Cambridge (Mass) Harvard UP, 1978) and his Law’s Empire (Cambridge (Mass), Belknap/Harvard UP, 1986); C Sunstein, Legal Reasoning and Political Conflict (Oxford, Oxford UP, 1996); M Sandel, Liberalism and the Limits of Justice (Cambridge, Cambridge UP, 1982); and D Kennedy, A Critique of Adjudication: fin de siècle (Cambridge (Mass), Harvard UP, 1997). 42  Dworkin, Taking Rights Seriously (n 41) 82, 90 ff; Law’s Empire (n 41) 108–13 and ch 6 (‘integrity’). 43   Reference re Secession of Québec [1998] 2 SCR 217 (‘Québec Secession Reference’).

312  Negotiating Secession: Of Voice and Veto secession nor even that secession itself would occur. Given these answers, the Court declined to answer the third question of reconciling a conflict between national and international law in these circumstances. Preliminary Objection Before addressing the three questions, the Court first disposed of a preliminary objection to its jurisdiction raised by the Québec amicus curiae. The grounds of this objection challenged the validity of the Court’s reference jurisdiction and the justiciability of the questions themselves. The objection as to jurisdiction was dismissed in customarily terse legal fashion.44 It was certainly within Parliament’s constitutional authority under Constitution Act 1867 section 101 to establish a court of appeal and confer upon it an original jurisdiction (here, the reference jurisdiction) in addition to its ordinary appellate jurisdiction. In particular, the Court’s capacity as a general court of appeal limit it or render contradictory its performing other legal functions, such as advisory functions, in tandem with its judicial duties. Moreover, the Canadian Constitution did not anywhere insist upon a strict separation of powers nor incorporate a ‘case or controversy’ doctrine, as in US constitutional law. As to justiciability, the questions did not require the Court to assess issues not having a sufficient legal component and thereby pull the Court out of its own self-assessed role in the Canadian constitutional framework.45 Here, the questions were strictly limited to the legal framework in which democratic decisions were to be made. Nor did the questions require the Court to usurp the function of an international legal tribunal, but rather consider only the application of international law in the Canadian legal order.46 Lastly, no other more practical grounds existed, such as ambiguity in the question, imprecision or insufficient information to support argument, answer or both, so as to cause the Court to decline to hear the matters at hand. And with these preliminary matters out of the way, the Court began its consideration of the reference questions themselves. Justiciability and Constitutionality It would seem indisputable that question 1 (the constitutionality of secession) and question 3 (the interrelationship between domestic and international law) each raise clearly legal questions. I reserve comment on the justiciability of question 2 (international law) for later. A decision otherwise, that those questions were non-justiciable, would signify insufficient legal content to issues addressing constitutional matters. This would be contrary to the established precedent of the Patriation Reference and Québec Veto Reference cases in which the Supreme Court held that where a reference question, even if in part a political issue, possesses a constitutional feature, it would legitimately call for a court’s consideration.47 But in a peculiar move, rather than quoting Reference re CAP fully with   ibid paras 6, 8, 9–11, 13–15.   ibid paras 26, 27, 28. 46   ibid paras 21–23. 47   Reference re Resolution to Amend the Constitution [1981] 1 SCR 753 and Reference re Québec Veto [1982] 2 SCR 793. 44 45



The Supreme Court’s Opinion 313

its citation of the Patriation Reference and Québec Veto Reference cases in quick settlement of the point, the Court chose instead to reformulate the test for justiciability in reference cases. First, it distinguished ordinary adversarial disputes calling for a resolution of cognisable rights from reference cases. Then, the Court separated two coordinate criteria as the test for justiciability in reference cases: the court’s self-assessed role in the Canadian constitutional structure and the sufficiency of legal components to the questions submitted. Under the Québec Secession Reference formulation, even if ‘significant legal components’ existed, the Court nevertheless could still escape answering the questions posed if it considered them to jeopardise its self-assessed proper role in the Canadian constitutional framework. The Court’s understanding of its primary authority, Reference re CAP, signals the peculiarity. Reference re CAP addressed Parliament’s power to amend its legislation authorising federal-provincial agreements for federal financial contributions to provincial social security schemes.48 The federal government and the provinces entered such agreements. These intergovernmental agreements did not incorporate the contribution formula. Instead, the federal statute, the Canada Assistance Plan (CAP), contained the formula for calculating the amount of those contributions. Parliament passed federal legislation which amended the contribution formula so as to reduce the maximum federal contributions to certain financially well-off provinces (in casu British Columbia). The British Columbia government brought a constitutional reference before the British Columbia Court of Appeal challenging the federal government’s authority to limit directly or indirectly its contribution obligations under the CAP. On appeal by the Canadian government to the Supreme Court of Canada, the government argued, inter alia, that the reference questions were not justiciable as being political in nature. The Court rejected this argument. It drew upon two ordinary ‘adversarial’ cases, Auditor General v Minister of Energy Mines and Natural Resources and Borowski v Canada (AG) to establish the principle of the court’s proper role in the constitutional framework as the overriding concern for issues of justiciability.49 The Court did not distinguish between ‘ordinary’ cases and ‘reference’ ones for the purposes of justiciability issues. Nor did the criteria of constitutional role and sufficiency of legal content form co-­ ordinate criteria. Quite the contrary. If we follow Reference re CAP, the general criterion of justiciability (the court’s primary concern) is maintaining the court’s constitutionally ascribed role: only a court can authoritatively resolve legal questions.50 Fulfilling this role necessitates having sufficient legal components to the questions before it. Any number of these ‘components’, as subordinate elements to the make-up of the court’s constitutional function, contribute to a sufficiently ‘legal’ character. The fewer the components, or the weaker their connection to ‘law’, the more likely it is that the court is being drawn outside its constitutionally prescribed role. Hence, in Reference re CAP, constitutional features, interpretation of statutes, applicability of legal doctrines and the enactment of money Bills all represented legal components rendering the issues before it justiciable. Unlike the Québec Secession Reference formulation, justiciability under Reference re CAP focusses principally on a practical categorisation of ‘legal components’ (undefined) which serve in function of the over-arching concern of the courts’   Reference re CAP [1991] 2 SCR 525.   Canada (Auditor General) v Canada (Ministry of Energy, Mines and Resources) [1989] 2 SCR 49; Borowski v Canada (AG) [1989] 1 SCR 342. 50   Reference re CAP [1991] 2 SCR 525, 546 (per Sopinka J). 48 49

314  Negotiating Secession: Of Voice and Veto constitutionally prescribed role. The advantage to this pragmatic approach to justiciability in Reference re CAP is to focus attention directly on the central question of what legal character is. Whether it can be answered satisfactorily is another question entirely. But we need not tarry with any anterior issues of institutional design and constitutional democracy. The Québec Secession Reference, on the other hand, more strongly emphasises a formalistic separation of powers doctrine in its co-ordinate formula to justiciability and the differentiation in types of cases. Its treatment obscures the basic question as to justiciability. Characterising a problem as ‘legal’ suggests that a problem is better suited or amenable to resolution by a court under the law. For if it is not legal in nature, there is no obvious reason to allocate the power and authority to decide the problem to the courts, as opposed to Parliament, the executive or the people. So the ‘court’s self-assessed role’ element to justiciability in fact refers not merely to an institutional conception of democracy and law, one as given by the separation of powers doctrine, but to an understanding of what law is, and what democracy is. It attends to a concept of law and the source and nature of law’s normativity. After all, we can hardly begin to attribute a role to the courts unless we already have some idea of what law is – as the province of the courts – and its interrelationship with non-law (politics and morality being traditionally the most important). Whereas the Reference re CAP formulation points to a descriptive jurisprudence of legal components, the Québec Secession Reference formulation to justiciability leaves us, to the contrary, puzzling out various distinctions demarcating the role of the court, first as between adversarial proceedings and references, then in the overall societal position of the court, and then at last in the legal components to the questions before it. It tends to lead to unexplained presumptions, if not circularities, as we try to explain each of the three categories without necessarily relying already on one or the other. It forces us, moreover, to imagine why the role of the court and its authority might change (and the nature of the law as well, by consequence) depending on the type of case before it. In fact, despite the apparent close and careful treatment of justiciability, the Québec Secession Reference shows (constitutional law) justiciability to be not really a question of the role of the court at all. That becomes secondary, following upon a primary foundational concept of law. In the result, the broader the range of justiciability, the wider our concept of law, and the more intricate our understanding must be of the rule of law, and the roles of law and courts in modern democratic society. So quixotically, the answer to justiciability is not really to be found in the preliminary question of the Québec Secession Reference. It is to be found in a substantive analysis of the applicable law and constitutional order. Justiciability is not procedural: it depends on the substantive law. And where there exists law, there follows the jurisdiction of the court. Hence, inasmuch as the law may incorporate secession, then the courts have jurisdiction and a role to play in a secession crisis. Question 1: the Constitution and Unilateral Secession Under the Constitution of Canada, can the National Assembly, legislature or government of Québec effect the secession of Québec from Canada unilaterally? Briefly, the Supreme Court’s answer was, ‘No’. In order to arrive at this answer, however, the Court



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first identified and discussed at length four fundamental, unwritten principles of Canadian constitutional law – federalism, democracy, rule of law/constitutionalism and protection of minorities – posited as relevant to the issues at hand. The Court used these principles as a general theoretical framework to give substance to and justify its treatment of secession as a constitutional act of amendment, where the Canadian Constitution contains no express provision for secession of a province. Unwritten, Basic Constitutional Principles Judicial consideration of ‘constitutional principles’ is not unsurprising in Canadian constitutional reasoning, particularly at the level of the Supreme Court.51 Indeed, it would be difficult to find any body of constitutional law and interpretation which did not contain some similar expression of implied founding principles. The Canadian Constitution (being a compilation of certain statutes accepted as having constitutional force, of cases, conventions and of other rules and practices) often invites judicial comment on the underlying systematising or co-ordinating principles tying the whole bunch together.52 As the Court fairly remarked, the combination of written and unwritten rules is critical for the endurance of the Constitution over time, so as to provide a comprehensive set of rules and principles capable of providing an exhaustive legal framework for a system of government.53 The text of the Constitution remains primary, but relies on the other principles and conventions to fill out the gaps in its express terms. The principles dictate the major elements to the structure of the Constitution, and are its ‘lifeblood’. These principles emerged ‘from an understanding of the constitutional text itself, the historical context, and previous judicial interpretations of constitutional meaning’.54 Arising out of the ‘internal architecture’ of the Constitution, each principle had to be interpreted with reference to the Constitution as a whole. One principle did not trump another; some wielded significant legal force and could well establish obligations and duties binding on governments alike, with varying degrees of particularity.55 The Supreme Court highlighted certain aspects of Canadian history as a means of justifying the constitutional principles it would assert. First, Confederation in 1867 was the initiative of the elected representatives of the various colonial governments.56 It was not imposed by Imperial fiat, which is true insofar as the concept of a federation and the details of its particular structure originated principally with the colonial delegates to the 51   See, eg Switzman v Ebling [1957] SCR 285 (articulates political theory); Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island; Reference re Independence and Impartiality of Judges of the Provincial. Court of Prince Edward Island [1997] 3 SCR 3; New Brunswick Broadcasting v Nova Scotia (Speaker) [1993] 1 SCR 319; Roncarelli v Duplessis [1959] SCR 121; and Reference re Manitoba Language Rights [1985] 1 SCR 721. 52   Based on the Preamble and s 52(2) where ‘includes’ is taken as a non-exclusive listing. See, eg Reference re Resolution to Amend the Constitution [1981] 1 SCR 753; Reference re Objection by Québec Veto [1982] 2 SCR 793 and Reference re Initiative and Referendum Act [1919] AC 935 (PC). 53   Québec Secession Reference (n 43) paras 32, 49, 54. 54   ibid para 32. The Preamble to the Constitution Act 1867 has a decisive role in grounding the implication of such principles: Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island [1997] 3 SCR 3; Fraser v PSSRB [1985] 2 SCR 455; New Brunswick Broadcasting v Nova Scotia (Speaker) [1993] 1 SCR 319. 55   See, eg Hunt v T&N Plc [1993] 4 SCR 289 and Morguard v de Savoye [1990] 3 SCR 1077 (full faith and credit doctrine for inter-provincial judgments); The Queen v Beauregard [1986] 2 SCR 56 (judicial independence). 56   Québec Secession Reference (n 43) para 35.

316  Negotiating Secession: Of Voice and Veto Charlottetown, Québec and London conferences. But Imperial politics, in the full flush of Gladstone’s liberalism and Disraeli’s jingoism, did play a not insubstantial role by signalling to the colonies an Imperial unwillingness to finance the colonies any further, especially in matters of defending them against the expansionist United States.57 Thus, the motivation for Confederation did not spring out of any constitutional altruism, out of high political theory of sovereignty, self-determination and democracy, but simply out of the practical and economic necessities of the day and based on the political understandings of the day. Secondly, the Court noted that the federal structure was chosen to accommodate diversity and reconcile it with unity.58 Thus the Constitution contained from the start measures to protect the French language and culture, and to protect minorities more generally. A reasonable assessment: but the federal balance was less a question of altruistic motives and more an answer to the tensions between Upper Canada and Lower Canada which had plagued the unified colony of Canada since 1840.59 And it fails to account for the treatment of immigrant minorities and aboriginals prior to the ‘dawn of multiculturalism’ in the 1970s.60 Thirdly, the Court pointed to the process of debate over Confederation and its acceptance by the colonial legislatures prior to Imperial consideration and acceptance, as indicative not only of the democratic sovereignty and independence of the colonies, but also of their interdependence through ‘vast obligations, political and commercial’. Yet the Court failed to appreciate in its reference to the early petition of Nova Scotia to secede from the newly-minted Confederation the seeming irony that, despite a provincial government in favour of secession, the same government had to seek, and was denied, permission of the Colonial Office in order to secede.61 As a fourth characteristic, the Court emphasised the orderly transition of Canada from colony to fully independent dominion and the continuity of the constitutional and legal order given thereby.62 And the Court was quick to remark that the constitutional evolution of Canada was (at least after the 1860s) a peaceful process resulting from political decisions taken in Canada within the then-binding constitutional rules. Although it noted that Québec was bound to the 1982 amendments to the Constitution despite its then opposition to them, the Court failed to recall that it had found those amendments legally valid according to the then-effective constitutional law.63

57   D Francis, R Jones and D Smith, Origins: Canadian History Since Confederation, 2nd edn (Toronto, Harcourt Brace, 1992) 405 ff, 416; and see generally D Creighton, The Road to Confederation: the Emergence of Canada, 1863–1867 (Toronto, Macmillan, 1964) and his Dominion of the North: A History of Canada (Toronto, Macmillan, 1957). 58   Québec Secession Reference (n 43) para 43. 59  The union proposed by Lord Durham to see French Canada fully amalgamated and integrated into English Canada suffered from political deadlock: Francis, Jones and Smith, Origins (n 57) 267–68 (citing the well-known apophthegm of Durham, ‘I found two nations warring in the bosom of a single state; I found a struggle, not of principles, but of races’), ch 14, 275 ff, 285–87. 60   D Francis, R Jones and D Smith, Destinies: Canadian History Since Confederation, 2nd edn (Toronto, Harcourt Brace, 1992) 78 ff (Northwest, ‘Riel’ Rebellion, 1885) 138–42 (antagonism to Asian immigrants and non-European (Western) immigrants). On the latter, see Mack v Canada (AG) (2002) 217 DLR (4th) 583 (Ont CA) (no cause of action for restitution of Chinese immigrant head tax collected between 1885 and 1923); and Reference re Oriental Orders in Council Validation Act (BC) [1923] 4 DLR 698 (PC). 61   Québec Secession Reference (n 43) para 42; and reproduced in MacLauchlan, ‘Accounting for Democracy’ (n 28) 168. 62   Québec Secession Reference (n 43) paras 46, 47. 63   Reference re Resolution to Amend the Constitution [1981] 1 SCR 753 and Reference re Québec Veto [1982] 2 SCR 793.



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It is questionable whether this historical review of Confederation, apart from questions of accuracy, actually established what the Court intended of it.64 The Court’s treatment of the historical circumstances and their consequences for Canadian constitutional law tends to blur the line between convention and rule.65 Conceded, the accepted differentiation between convention and rule may be overridden or recharacterised as part of the evolving nature of constitutional circumstances. But the Court ought to pursue doctrinal change with greater care and attention to definition and detail. Nothing in that historical account actually shows as such the four general, unwritten fundamental and organising principles of the Constitution. Indeed, the account is a rather blinkered and weak attempt to give a seemingly mythical status to the founding of a Canada suckled from the start on liberal democratic virtues. Such an undue amount of reflection on the origins of Confederation may represent some ambivalent and hesitant attempt to introduce into Canadian constitutional law the much-debated American interpretative practices of ‘original intent’ and ‘textualism’.66 Such a doctrine runs generally contrary to Canadian constitutional inter­ pretation. This has understood constitutional principles and interpretations to evolve along with society: the constitution is a ‘living tree’.67 It is beyond question, on any mature consideration of history, that concrete, practical societal values and aspirations in the twenty-first century are nowhere near the same as those in the late nineteenth century. That we may characterise both as broadly alike as ‘liberal democratic’ impedes by generalisation a comprehensive and useful understanding of the content and meaning of those precise values and aspirations. We lose thereby the differentiations and their dialectical relationship by which alone we may come to a better and closer understanding of the core meaning of ‘liberal democratic’. There seems to be no defensible principle which justifies giving greater weight to an antiquated interpretation over a modern one inasmuch as the former can remain ‘a-historical’ without perspectives already qualified and conditioned by modern understandings and values.68 Originalism and textualism seem to owe more of their appeal to a 64  A criticism raised in J Leclair, ‘Canada’s Unfathomable Unwritten Constitutional Principles’ (2002) Queen’s LJ 389. 65   A Heard, Canadian Constitutional Conventions: the Marriage of Law and Politics (Oxford, Oxford UP, 1991); G Marshall, Constitutional Conventions: the Rules and Forms of Political Accountability (Oxford, Oxford UP, 1984); C Munro, ‘Laws and Conventions Distinguished’ (1975) 91 LQR 218; yet see I Jennings, The Law and the Constitution, 5th edn (London, London UP, 1959) (doubting a strict separation). See also Reference re Resolution to Amend the Constitution [1981] 1 SCR 753. 66   G Wright, ‘Dependence and Hierarchy Among Constitutional Theories’ (2004) 70 Brooklyn LR 141, 143– 44 (six basic theories of constitutional interpretation in the United States: (1) constitutional pragmatism; (2) precedent; (3) textualism; (4) originalism or original intent; (5) contractarian; and (6) particularised natural law and natural rights); B Ackerman, We The People: Foundations (Cambridge (Mass), Belknap/Harvard UP, 1991) and We The People: Transformations (Cambridge (Mass), Belknap/Harvard UP, 1991); L Lessig, ‘Understanding Changed Readings: Fidelity and Theory’ (1995) 47 Stanford LR 395 and his ‘Fidelity and Constraint’ (1997) 65 Fordham LR 1365; S Calabresi, ‘The Tradition of the Written Constitution: A Comment on Professor Lessig’s Theory of Translation’ (1997) 65 Fordham LR 1435; R Barnett, ‘An Originalism for Nonoriginalists’ (1999) 45 Loyola LR 611; M Dorf, ‘A Nonoriginalist Perspective on the Lessons of History’ (1996) 19 Harvard JLPP 351 and his ‘Integrating Normative and Descriptive Constitutional Theory: the Case of Original Meaning’ (1997) 85 Georgetown LJ 1765; D Farber, ‘The Originalism Debate: A Guide for the Perplexed’ (1989) 49 Ohio State LJ 1085; D Strauss, ‘The New Textualism in Constitutional Law’ (1998) 66 George Washington LR 1153 (general and broad language of a constitutional text allows the courts an equally wide discretion and power to push the law in one or other direction); and P McGreal, ‘There is No Such Thing as Textualism: A Case Study in Constitutional Method’ (2001) 69 Fordham LR 2393. 67   Re s 24 of the BNA Act (Edwards v Canada (AG)) [1930] 1 DLR 98 (PC) 106–7 (Lord Sankey LC). 68   W Waluchow, ‘Constitutions as Living Trees: An Idiot Defends’ (2005) 18 CJLJ 207; A Kavanagh, ‘The Idea of a Living Constitution’ (2003) 16 CJLJ 55.

318  Negotiating Secession: Of Voice and Veto certain unreflective fetishism of text than to a mature appreciation of the dynamic nature to political and social circumstances. Of course, a constitution outlines with varying degrees of detail the institutions, divisions and functions of political power in a society. In that sense, we are of course constrained and restrained by the text of the constitution until it has been otherwise amended. That political structure is a fixed starting point. But it is inherent, implicit in the very need for interpretation that the constitution did not contemplate, and does not clearly and certainly provide for, the circumstances in question. What interpretation we give to the constitution reflects the elasticity of its norms and structure – the extent to which those norms and principles are able to expand and contract to meet new situations and problems. The elasticity of the constitution depends not on the particular conceptions of our constitutional forebears, but on our present-day value orientations and aspirations. Traditions and conventions certainly represent enduring values and organising principles. But they are always in a state of flux and development by their very nature. As well, they owe as much to historical accident and outside influence as to the historical circumstances at the time the constitution was struck. Historical circumstances may explain how Canada became a federal, constitutional democracy, but those same considerations cannot control how and in what direction Canada’s federalism and constitutional democracy have evolved. A sizeable number of permutations and combinations, not necessarily complementary and consistent, still exist within the broad normative outlines sketched in the Constitution Acts, 1867 to 1982. Inaccuracy and blindness to the full story of a nation’s story risks obscuring those unpleasant and stressful moments in a country’s constitutional development where significant values and choices manifest themselves in full relief. In fact, it can be reasonably and justifiably argued that precisely those events and circumstances of constitutional stress provide the clearest and fullest picture of what societal values are brought into question and how they are transformed, replaced or re-affirmed. We should not think that Canada has only a few of those moments in history which Ackerman calls ‘higher lawmaking’ and ‘revolutionary transformation’.69 The Supreme Court could well have spent greater length, not on the origins of Canada, but on the developments in Canadian federalism, self-determination and multiculturalism in the twentieth century, and in particular the long process leading to the ‘Patriation’ of the Constitution in 1982, as well as the failed 1985 Meech Lake Accord and the failed 1992 Charlottetown Accord. Patriation above all exemplifies the principles of formal independence, self-government, self-­ determination, negotiation and legal continuity. The two Accords exemplify Canadawide constitutional consultations and negotiations, an acceptance of a national decision-making process, and an aversion to formally conferring special status on Québec. And it would be just those values which now inform the constitutional structure, and not the particular concepts and interpretations current in, say, 1867. It is difficult to comprehend why greater evaluative weight should attach to particular historical understandings of constitutional clauses whose interpretations have little or no current relevancy to modern political and social circumstances. Such interpretations do not necessarily and without more explanation reflect the value orientations by which a society sees itself organised, on which it operates and by which it judges. 69  Ackerman, We The People: Transformations (n 66) 6–7, 266 ff; see also his ‘Revolution on a Human Scale’ (1999) 109 Yale LJ 2279, his ‘Constitutional Politics/Constitutional Law’ (1989) 99 Yale LJ 453, and his ‘The Storrs Lectures: Discovering the Constitution’ (1984) 93 Yale LJ 1013 (theory of such constitutional moments in its infancy).



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These admonishments notwithstanding, historical considerations do have a crucial role to play in constitutional law. A nation’s history is, in the words of Maitland, a history ‘not of parties, but of institutions, not of struggles, but of results; the struggles are evanescent, the results permanent’.70 That history reveals how a country responds to stress and strain brought on by calls for change. In particular, it demonstrates how the structure and machinery of politicking, of accommodation and compulsion, of law and order, all respond and adapt. It shows what processes develop, if any, to address the motion of change and the inertia of tradition. And it demonstrates the development and evolution of concepts and values which inform our present constitutional order. This is the evolution and development (whether progressive or regressive) of society itself, in the ideas, interests and values it holds and practises. The range of what society considered as options, of available choices, is laid open, as is too what society ultimately preferred by its choices. In effect, constitutional history can point to the deeper morality of law. Not simply a matter of which values and ideas endure to resist change, that morality of law can reveal the fundamental understanding of law, politics, morality, of the limits to the law and legal order. This understanding, hardly static, captures the present balance or division between law and non-law. In the terms advocated herein, constitutional history iterates the transformative events making up society, of its elasticity in incorporating certain ideas and in excluding others. It demarcates the ongoing transformative event by which individuals in society affirm their associative commitments. In the context of a constitutional response to a secession crisis, constitutional history serves three important functions. First, it can disclose the likely grounds of the crisis, especially where the secession movement originates in acts of oppression against the particular group. Discerning the likely causes for a secessionist movement opens up possible avenues of redress, resolution and compromise. Secondly and following, constitutional history may reveal an accepted means for addressing constitutional crises, or mechanisms to be avoided. It may disclose ongoing efforts to deal with a group’s claims, revealing in turn an evaluation of those claims in the broader context of a country’s full life. And lastly in light of these, constitutional history can signal those principles, albeit unexpressed in a constitutional text per se, which nonetheless inform the present constitutional order and practice to which all (must) adhere. At least with respect to this last facet, the Supreme Court in the Québec Secession Reference does attempt to identify four such general principles: federalism, democracy, rule of law and minority protection. But without having them situated in the longer narrative of Canadian history, we may certainly question whether the Court’s appreciation of these principles does indeed reflect the reality of their legal content and societal import. Federalism and Provincial Autonomy The first of these principles, federalism, underscores (for the Court) Canadian unity as a political and legal response to, and reconciliation of, the reality of social and political 70   F Maitland, The Constitutional History of England (H Fisher (ed), Cambridge, Cambridge UP, 1961) 537, and see 200 ff. Subject to cautions: W Forbath, ‘Constitutional Change and the Politics of History’ (1999) 108 Yale LJ 1917 (historical approach offering less deterministic reading of constitutional evolution than claimed by lawyers); M Benedict, ‘Constitutional History and Constitutional Theory: Reflections on Ackerman, Reconstruction, and the Transformation of the American Constitution’ (1999) 108 Yale LJ 2011; and R Smith, ‘Legitimating Reconstruction: the Limits of Legalism’ (1999) 108 Yale LJ 2039.

320  Negotiating Secession: Of Voice and Veto diversity.71 Admittedly, at the time of Confederation in 1867, this represented the effective duality of the French and English (cultural and linguistic) majorities. Throughout the twentieth and twenty-first centuries, the distribution of Canadian society can be effectively broadened so as to speak of English, French, aboriginal, Chinese, East Indian, Caribbean, German, Italian, and other significant ethnic communities. But the constitutional and political axis remains predominantly French-English (linguistic, above all), although aboriginal First Nations interests have begun to achieve significant weight. Structurally then, the distribution of powers between the larger federal and smaller provincial elements facilitated democratic participation in levels of government most suited to achieving the relevant social objectives. The provinces, maintaining an independent and autonomous existence under the Crown, were able to develop themselves in their respective spheres of jurisdiction, pursuing those goals by transforming cultural and linguistic minorities into provincial majorities. Thus, the unity and stability of Canada, so it would follow as an unexpressed conclusion from the Court’s reasoning, relies on observing and maintaining the distribution of powers (and therefore their limitations). Citing federalism allowed the Supreme Court to differentiate Québec from the remaining provinces and from the federation as a whole. Its reference to federalism points first, and quickly, to the standard doctrine of a division of powers among levels of government. Secondly, and with greater care, the Court developed the proposition of diversity and provincial autonomy into the expansive conclusion that the ‘principle of federalism facilitates the pursuit of collective goals by cultural and linguistic minorities which form the majority within a particular province’.72 Thus, we are left with the impression, via federalism, of an always extant collectivity ‘Québec’ with expansive powers, save those allocated to the federal government. Telling in this respect is the Court’s reliance on the quote from Lord Haldane’s speech in Reference re Initiative and Referendum Act.73 Lord Haldane’s mindset and influence on Canadian constitutional development in the early decades of the twentieth century was to diminish federal power and influence as much as possible and raise the profile of the provinces.74 Despite its willingness to consider history, the Court would rather assume simply a provincial orientation as the organising characteristic to Canadian federalism, instead of a federal, unifying and centralising one. It disregards the heritage of the strong centralising objectives of the MacDonald faction leading Confederation negotiations.75 And it disregards that unresolved tension between the centripetal impetus and matching centrifugal resistance which forms a central characterising feature to Canadian federalism – indeed, to most every federation. This tension fuels one of the myths of Canadian federalism, that Québec has always sought to protect and advance provincial autonomy because of its distinctive French culture, whilst the other provinces were less strident and more willing to compromise with the federal government because they shared a common English her  Québec Secession Reference (n 43) paras 57–59.   ibid para 59. 73   Reference re Initiative and Referendum Act [1919] AC 935 (PC) 942. 74   D Schneiderman, ‘Harold Laski, Viscount Haldane, and the Law of the Canadian Constitution in the Early Twentieth Century’ (1998) 48 U Toronto LJ 521; R Risk, ‘The Many Minds of W.P.M. Kennedy’ (1998) 48 U Toronto LJ 353, 362 ff (Kennedy’s criticism of Haldane’s interpretation of province-centred federalism); and P Hogg and W Wright, ‘In Honour of the Late Justice Lysyk: Canadian Federalism, the Privy Council and the Supreme Court: Reflections on the Debate about Canadian Federalism’ (2005) 38 U British Columbia LR 329. 75   See, eg D Creighton, John A. MacDonald (Toronto, Toronto UP, 1998). 71 72



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itage.76 But none offer any explanation reconciling this view with the hard evidence of the many constitutional cases out of the prairie provinces and Ontario which assert a strong provincial autonomy.77 Webber alone, however, may be understood to acknow­ ledge as much, given that his thesis relies on the premise of federalism serving as a cultural protection for Québec.78 Not at all emphasised are the unifying powers exercised by the federal government, in political, economic and social matters. While the Constitution Act 1867 allocates specific powers to the provincial and federal governments, the residue falls to the federal government. Thus, the entire complex of powers of the federal government under Constitution Act 1867 section 91 represents a significant and broad jurisdiction in the local arena as well, one that allows the federal government to ensure some continuity of minimum standards across Canada.79 Nor is the Charter of Rights and Freedoms mentioned as having a significant impact on unifying social value orientations across Canada.80 Hence, rather than a connotation of an interconnected whole, the view of federalism presented in the Québec Secession Reference resembles more an atomistic understanding, a mere summary of the various parts, rather than an integral whole. The absence of the burden to account for the historical practice of federalism in Canada makes it easier to acknowledge, or at least pass over without comment, an independence for Québec by which it can force a secession determination on its own. Federalism as presented in the Québec Secession Reference demarcates Québec as a ‘legitimate majority’ for such a determination, instead of opening the debate across the wider constituency of Canada. And more broadly, it would follow from this conception that a federal structure somehow inherently demarcates the necessary and sufficient boundaries to ‘naturally-given’ collectivities, rather than the contrary view of such intra-state boundaries having primarily administrative, not nationalistic, significance. Deliberative Democracy and Qualified Majorities The second principle, democracy, does not mean simply a political system of majority rule involving, at the institutional level, parliamentary supremacy, representative and responsible government and universal suffrage.81 The Supreme Court emphasised that the expression of the majority’s will must occur within the limits imposed by other 76   K McRoberts, Misconceiving Canada (Oxford, Oxford UP, 1997) 137 ff; J Webber, Reimagining Canada (Kingston, McGill-Queen’s UP, 1995) 230 ff; A Cairns, ‘Why is It So Difficult to Talk to Each Other?’ (1997) 42 McGill LJ 63. 77   See, eg Alberta (AG) v Canada (AG) (Bank Taxation) [1939] AC 117 (PC); Canada (AG) v Ontario (AG) (Labour Conventions) [1937] AC 326 (PC); Reference re Referendum and Initiative Act [1919] AC 935 (PC); Ontario (AG) v Canada (AG) (Privy Council Appeals) [1947] AC 127. 78  Webber, Reimagining Canada (n 76) 77–91. 79   One residual and controversial power is the spending power, by which the federal government makes contributions to provincially run programmes (such as health care and social services) on condition that those programmes meet certain basic and minimum requirements an objectives. See, eg S Choudhry, ‘Recasting Social Canada: A Reconsideration of Federal Jurisdiction over Social Policy’ (2002) 52 U Toronto LJ 163; Reference re CAP [1991] 2 SCR 525; and Hogg, Constitutional Law (n 38) ch 6, esp para 6.8. 80  McRoberts, Misconceiving Canada (n 76) 170 ff, ch 7 (arguing for the failure of pan-Canadian unity); Webber, Reimagining Canada (n 76) 234 ff (cultural relativism in laws). See generally P Trudeau, Federalism and the French Canadians/Fédéralisme et la société canadienne–francaise (Toronto, MacMillan, 1968) 44 ff (the genesis of his policy). 81   Québec Secession Reference (n 43) paras 61–69.

322  Negotiating Secession: Of Voice and Veto institutional values and principles. Thus, it would follow as an unexpressed conclusion that those ‘other principles’ (an open-ended concept allowing for a good deal) are the critical feature for they determine how far the democratic will may have force and effect. This means an accommodation of cultural and group diversity. It also entails the observance of the rule of law, whereby majority and minority alike are bound to respect the law. Law creates a framework in which sovereign will is ascertained and implemented. Lastly, no one majority, at a federal or provincial level, may necessarily trump the other. Federalism allows for different and legitimate majorities. Moreover and by way of example, implicit in a functioning democracy is the continuing process of discussion, negotiation and compromise necessary to build majorities, all the while acknowledging and addressing the ‘dissenting voices’ in the laws of the community. Since each participant in the Constitution (the provinces) may initiate the constitutional amendment process, that right (so the Court held) imposes a corresponding duty to engage in constitutional discussions to acknowledge and address the democratic expression of a desire to change. This co-ordinate right and obligation played a central role in the Court’s approach to secession. But despite the intuitive plausibility and attractiveness of the concept of such a duty, the Court gave no authority for this proposition.82 Nor is it clear how the Court came to this concept. It may follow loosely from the juridification of ‘democracy’ and ‘the interaction of the rule of law and the democratic principle’; but this is mere implication. At best, it may be an unexpressed implication from the constitutional amending formulas requiring certain levels of provincial and federal consent: without negotiation, there can never be consent.83 The democratic principle would serve to condition the nature and response to any political victory in favour of secession through its twin aspects of sovereignty and majority rule. The Court transposed the principle, unobjectionable in its general form, that ‘a sovereign people exercises its right to self-government through the democratic process’ to the level of Québec.84 When Québec takes a political stand, it acts as a ‘legitimate majority’ as against the other provinces and the federal government. In combination with the federalism principle, ‘there may be different and equally legitimate majorities in different provinces and territories and at the federal level’.85 The difficulty, in connection with secession and the various claims it makes to sovereignty, is that the Court blurred the differentiation between the politically-charged and imprecise concepts of sovereignty, self-determination and legitimate majorities, in their general understanding, and those concepts in particular applications, such as in a federation. The Court also remarked that ‘[n]o one majority is more or less “legitimate” than the others as an expression of democratic opinion, although, of course, the consequences will vary with the subject matter’.86 This is ambiguous. On the one hand, if we emphasise the first part about different and legitimate majorities as an expression of democratic will, then we may conclude that Québec’s expressed desire to secede stands possessed of a deepseated democratic ‘legitimacy’ which the rest of Canada could ignore only unjustifiably 82  Dawson, ‘Reflections’ (n 11) 32 (the duty is ‘largely the product of’ the four unwritten principles); MacLauchlan, ‘Accounting for Democracy’ (n 28) 173 (the parties to the Québec Secession Reference (except the amicus curiae) simply agreed in their submissions to the Court that secession would have to be negotiated). 83   Haljan, ‘Negotiating’ (n 5) 208–12 (examining possible rationales for the duty to negotiate). 84   Québec Secession Reference (n 43) para 64. 85   ibid para 66. 86   ibid para 66.



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and at its peril, albeit not consulted or engaged in that will-formation. Yet on the other hand, if we emphasise the second half about different majorities for different purposes, then we may come to the conclusion that a provincial desire to secede has no unshakeable democratic footing because it is outside the scope of competence for a single province to dismember a federal state, other than by revolution. Dismantling a federal state arguably sets the ‘legitimate majority’ to decide the question at the national level. Even so, the Court seemed to shy away from such an explicit, strong conclusion by adding thereafter the generalities that federalism allows different provinces to pursue policy ‘responsive to the particular concerns and interests in that province’, and that citizens may also ‘construct and achieve goals on a national scale through a federal government acting within the limits of its jurisdiction’.87 Taken in combination with the Court’s earlier comment on democracy accommodating cultural and group identities, it seems once again to favour the democratic autonomy of a quasi-sovereign Québec, independent of any deep-seated associative connections to the rest of Canada. ‘Goals on a national scale’ can hardly be said to obtain when the interest and desire of a provincial population is to secede. In order perhaps to moderate the force and consequences of this conclusion, the Court remarked further that democracy, as majority will, is not unbounded. The majority must be ‘legitimate’, which for the Court involved three elements: a necessary grounding in the rule of law and constitutionalism; an interaction between law and democracy to reflect current aspirations, and an appeal to moral values. But their meaning and functions under the democracy principle are unclear. The Court made the startling remark that law ‘creates the framework within which the “sovereign will” is to be ascertained and implemented’.88 It is startling precisely because the Court offered no argument or authority for such a critical proposition. The effect of that was to define democratic legitimacy and legitimate majorities in function of a constitutional order. The claims of Québec to secede based on a positive majority result in a referendum which has no legit­ imacy in and of itself and hence no effect in substance, absent the constitutionally prescribed involvement and consent of the rest of Canada. Yet its subsequent qualification by the need to reflect current aspirations and the appeal to moral values leaves us with an uncertain grasp of what the Court really intended to say about the democracy principle as applied to a secession crisis. Are we to assume that the involvement and consent of Canada would be forthcoming, based on such a perception of those values and a recognition of aspirations as would not compel Québec to remain part of Canada? Are we to assume, on the other hand, that Québec would be expected to reconsider its position and seek a compromise or resolution, by considering the broader public interest and public good of all of Canada? The ambiguity to the democracy principle remains. This in turn likewise affects the understanding of the duty to negotiate: does the rest of Canada negotiate the details of secession, or is everything up for negotiation, including the resolve to secede?

  ibid para 66.   ibid para 67. It echoes J Habermas, Between Facts and Norms (W Rehg (trans), Cambridge, Polity, 1996) ch 3 (‘equiprimordial’). See also K Baynes, ‘Democracy and the Rechtsstaat: Habermas’s Fäktizität und Geltung’ in S White (ed), The Cambridge Companion to Habermas (Cambridge, Cambridge UP, 1995) 201 (Habermas’ idea of equiprimordiality). 87 88

324  Negotiating Secession: Of Voice and Veto Bound by the Law: the Rule of Law and Constitutionalism The Supreme Court relied on the third principle, the rule of law, to establish limits on the democratic principle.89 In other words, government and individual actions are subject to laws and rules.90 The exercise of all public power must have as an ultimate source a legal rule. One aspect of the rule of law is constitutionalism. Constitutionalism sets up as the supreme and ultimate legal rule a written constitution whose provisions determine the extent of parliamentary and government sovereignty.91 Thus, the principle provides a sense of orderliness, stability and accountability. A constitution is entrenched so as to place it beyond the reach of a mere majority and so as to protect rights, freedoms and minority interests. The constitution establishes rules binding its federal, provincial and other relevant constituents by defining the majorities to be consulted in order to effect fundamental change in the political and legal order of the country. For this reason, concluded the Court, a majority vote in a province-wide referendum is neither a legitimate nor sufficient basis for secession. The third principle forms the critical premise to the Court’s entire argument. We have already encountered aspects of it in the explications of the federalism and democracy principles, as the means by which they are organised and instrumentalised. It brings secession into the constitution by subjecting the actions of a secession-oriented provincial government to constitutional norms and rules. Insofar as a province would seek to exercise ‘lawful’ authority to secede, it must find that power in the constitution itself as a creature thereof. Of course, it should come as no surprise that the Canadian Constitution makes no express provision for secession; it only countenances some form of amendment. Thus the Constitution and constitutional law commit secession to the amendment process. A provincial government may not pursue secession outside this constitutional framework by relying solely on the support of a majority of provincial residents, and still have any pretence of a claim to legitimacy and validity. It is the central tenet to the Court’s understanding of the rule of law and constitutionalism that the Constitution binds the present and future actions of all governments and citizens under it, until otherwise amended according to its terms. For such a critical element in the argument, we might have expected some justification. We might have expected some further explication of the Court’s earlier observation that the law creates the necessary framework by which democracy is implemented and institutionalised. Instead, we are left with the impression that these propositions are somehow implicit or inherent in the concept of constitutional government. How we are to avoid the circularity arising from this, that government and citizen alike are bound to the constitution and the law because of the rule of law principle (constitutionalism included), and the rule of law (constitutionalism included) exists because government and citizen alike consider themselves bound to the constitution and the law, is not attended to. At it highest, we are expected to accept these features as sociological facts of Canadian constitutional existence.   Québec Secession Reference (n 43) paras 70–78.   Echoing Allan, ‘Rule of Law’ (n 32) 221, 229, 231, 236. 91   Constitution Act 1982 s 52; Roncarelli v Duplessis [1959] SCR 121; Reference re Manitoba Language Rights [1985] 1 SCR 721; Operation Dismantle v The Queen [1985] 1 SCR 441; and see generally L Alexander (ed), Constitutionalism (Cambridge, Cambridge UP, 1998); and J Pennock and J Chapman (eds), NOMOS XX: Constitutionalism (New York, New York UP, 1979). 89 90



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And this certainly gives us no answer to the paradoxical instance of why a provincial society which denies the legitimacy of a particular constitutional order over its affairs and functioning and which moreover seeks to separate itself from that order is nonetheless bound by that legal and constitutional order to effect its divorce therefrom. A secessionist government in a province remains nevertheless a provincial government subject to constitutional constraint and restraint. In other words, the Court’s conception of the rule of law also implies that no scintilla temporis exists whereat the one legal order ends, and a new, separate one begins. To escape the Constitution then, the Court requires nothing less than revolution: either there will be an orderly dismemberment of the country, or the chaos of force will rule. The problem first raised in a preliminary fashion in the Bertrand cases received no clarification in the Québec Secession Reference. Moreover, the Court’s fascination with the rule of law in a constitutional guise renders it blind to a rejoinder which sets the rule of law on a plane higher than a mere national constitution. For it may well be arguable that public international law, international human rights law in particular, offers a supervening legal order to which a seceding group may adhere in place of a national constitutional one. The seceding group, the province of Québec in the present scenario, could thus attribute some legitimacy and validity to its acts by reference to these ‘norms of a higher legal order’ even if inconsistent with the constitutional norms, or in the absence of any explicit or necessarily implied constitutional norms. Protecting Minorities The last principle referred to by the Supreme Court is the protection of minority interests, itself a principle which has developed alongside Canadian history and as a product of historical and political compromise.92 The other three fundamental constitutional principles are said to fill out its scope and operation.93 This, however, fails to clarify the inexplicably cryptic and confusing comment of the Court that ‘even though these principles were the product of negotiation and political compromise, that does not render them unprincipled’. On the face of it, this contradicts the long exposé on the virtues of negotiation and compromise as a necessary part of democratic principles and suggests rather naively or unrealistically that such principles simply manifested themselves, rather than being the product of struggle and compromise. This said, we have no clear or more certain understanding of its specific connection and relevance to the overall constitutional appreciation of secession. It may factor into negotiations, but it does not appear to condition or to ground them, as did federalism, democracy and the rule of law. Whether this principle should factor into evaluating the ‘legitimacy’ of the relevant majorities, if at all, is uncertain. We might even go so far as to suggest that as long as the current constitutional arrangements offer some protection to minorities, there are no grounds for such a group to seek secession by claiming oppression. Unconstitutionality of Unilateral Secession On the basis of the above principles, the Court found that (an attempt at) unilateral secession by Québec was not a lawful act under the Canadian Constitution and would violate   Québec Secession Reference (n 43) paras 79–82.   ibid para 80.

92 93

326  Negotiating Secession: Of Voice and Veto Canadian legal order. No province may secede unilaterally from the Canadian federation as a legitimate legal and constitutional act. The argument is, briefly, as follows.94 Secession, regardless of the extent and profundity of change inflicted upon the current constitutional structure, is to be treated as an amendment to the Constitution. The Constitution therefore governs the process (rule of law). Governments may initiate the amending process, as instructed and guided by the relevant majority of their citizenry (democracy). But in any event, a constitutional amendment requires consultation and negotiation with the other constitutional parties (democracy, federalism). It is after all, according to the Court, a corollary of a legal attempt to seek an amendment to the Constitution that all parties have an obligation to negotiate, as an acknowledgement of and as respect for the clear expression of a clear majority of their democratic will. Unilateral secession seeks constitutional amendment without such consultation and negotiation (federalism, rule of law). As such, it puts at risk the established ties of interdependency among provinces, and undermines the stability and order guaranteed by the Constitution (democracy, rule of law). Nonnegotiated secession is therefore unconstitutional. A referendum certainly represents an expression of democratic will. A clear expression of a clear majority of the people of one province in favour of secession would confer legitimacy to a government’s starting negotiations and consultations with a view to secession (democracy, federalism). But, continued the Court, it has no direct legal or constitutional effect. It has no constitutional status in Canada. Such a referendum could not dictate that secession must necessarily occur, or even will occur, since only the subsequent negotiations could determine the ultimate result. That is, popular support for secession legitimates the government’s initiative to open constitutional negotiations, but not the secession act itself. Legitimacy here attends to the process, not to a predetermined outcome. Having thus imposed an obligation to negotiate in the amending procedure, the Court next attempted to give some content to the new concept.95 The Court emphasised that the negotiation process does not necessarily lead to secession. Where a government duly initiates the amending procedure to effect secession (with a clear majority clearly expressed in an appropriate referendum result) the negotiation process which follows is not directed at working out the details of separating the province from the rest of the nation. There is no legal obligation to accede to secession. There is no absolute legal entitlement to secession based on the obligation to negotiate and acknowledge in the circumstances a supporting referendum result. Having said that, the Court then qualified the obligations of the other participants to the negotiations. They have no right to ignore or remain indifferent to the demands of the people and their desire to secede. The negotiation process aims at a reconciliation of the rights and obligations of two legit­ imate authorities, with the negotiating process itself conducted in accordance with fundamental constitutional principles on pain of risking its legitimacy. Those two authorities the Court identified as ‘a clear majority of the population of Québec, and the clear majority of Canada as a whole, whatever that may be’.96 The negotiations themselves may not lead to any agreement whatsoever, or may lead to secession, or to some other accord.   ibid paras 83–88, 104–5, 149–53.   ibid paras 89–102, 150–53. 96   ibid para 93. 94 95



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The duty to negotiate would seem to slip easily into what that duty entails and how it is to be exercised. But here the Court stopped. It took pains to remove itself from discussing the substance and course of the negotiating, treating it instead as a political issue.97 The Court stated that it had no supervisory role over the political aspects of the negotiation, even though the Court had noted earlier that in Canada, ‘legality and legitimacy are linked’.98 What constitutes a ‘clear’ majority is subject only to political evaluation. So too are the negotiating positions of the various parties: ‘the distinction between a strong defence of legitimate interests and the taking of positions which, in fact, ignore the legitimate interests of others is one that also defies legal analysis’.99 The Court reintroduced the concepts of justiciability and judicial restraint here. For the Court, these presuppose a politician’s access to information, types of information, relevant expertise and resolving ambiguities which are all beyond the jurisdiction, functioning and capacity of a court. The Court recalled, however, that constitutional rules are still in play during a negotiation. A breach of those obligations and rules is not without legal consequences (whether or not a legal, as opposed to a political, remedy is better suited), nor likely without international repercussions.100 Finally, if Québec proceeded in any event to declare itself independent, the possibility of the subsequent recognition and acceptance of the act and Québec’s new status does not justify its initial, unconstitutional act. The alleged ‘principle of effectivity’ has no legal or constitutional status, and is contrary to the rule of law.101 It cannot legitimate ex ante an unconstitutional and illegitimate de facto secession, in defiance of Canadian or international law. At best, it suggests only that, as a matter of fact, but not law, an illegal and unconstitutional act may ultimately come to be recognised and accepted after the fact. Primary Right Modelling of Constitutional Secession In light of all the above, the conclusion may seem inescapable that an orientation to, or preference for, a primary right model underlies the Supreme Court’s attempt to constitutionalise secession. The treatment of legitimate majorities, of democratic will, and the obligation of a constitutional order to respond thereto, all signal that consent-oriented theory to constitutional and political order. First, implicit in the consent theory and rather more explicit in the Court’s opinion is the juxtaposition of principally two groups by grace of whose continuing consent to associate the nation-state subsists. The Court emphasised the social fact of Québec and its provincial status. But its reasons certainly could extend to cover any province seeking secession, its provincial autonomy sufficing to separate it from the ‘rest of Canada’. Secondly, the Court characterised each grouping of citizens as a legitimate source of separate and independent democratic will-formation. And construing the Court’s opinion in the generous manner seemingly current among most commentators, the determin­ ation by one such majority that it no longer wishes to remain in the Canadian federation

  ibid paras 89, 96–102, 151–53.   ibid para 23. 99   ibid para 101. 100   ibid para 103. 101   ibid paras 106–8. 97 98

328  Negotiating Secession: Of Voice and Veto means that secession would follow more or less as a matter of course.102 Attempting to retain Québec in the federation after such a referendum success would be illegitimate and undemocratic. Hence the need for the constitutional order to respond to this expression of will, encapsulated in the duty to negotiate. That such an expression of a desire to secede suffices without more conforms to the central premise of the consent theory that the retraction of consent ends any continuing political obligations beyond the details of separating people and property. Thirdly, a fortiori, nowhere does the Court invite or expect the federal authorities and the rest of Canada to evaluate the reasons for a pro-secession vote as a condition for the legitimacy of that expression of democratic will. Its silence on the matter does not support the argument that the matter was simply not considered and may yet find a place in the constitutional structure fashioned in the Québec Secession Reference. Given the exhaustive consideration of fundamental unwritten principles and the duty to negotiate, we may hardly accept the proposition that the validity or sensibleness of reasons for secession was overlooked. To the contrary, precisely because of the Court’s emphasis on federalism, democracy and the rule of law to create the circumstances for the duty to negotiate, it is irrelevant why Québec (or any other grouping) has chosen to withdraw its political consent and to secede. Its reasons, as the primary right model would have it, are its own. So in summary, as the commentators appear to see it, the Court has recognised in the Constitution a ‘right to secede’. Now, whether this inclination to primary rights was intended or simply manifested itself a posteriori by virtue of the Court’s view of constitutionalism, allying a conception of secession to that model carries with it the problems and difficulties criticised in chapter 3. In particular, the model’s rather thin account of association, of mutuality of commitments and obligations of reciprocation, provides a rather meagre leaven for any developed and integrated concept of constitutional order, political obligation and society; especially one which purports to locate a set of shared, higher moral values in a country’s populace which bind over and above any transitory political desires, as the Court sought to do in virtue of its democracy principle. If the constitutional order relies on the continuing consent of Québec to remain part of Canada, then surely Québec cannot be held to any common standards and norms once it retracts that consent. Otherwise a withdrawal of consent would be nugatory and ineffectual. Even if it could be said that Québec did hold certain broad and generalised values in common with the rump state of Canada, it could not fall to the rump state to judge Québec on them – that surely is a matter for Québec itself, or even the wider international community. 102   See, eg R Young, ‘A Most Politic Judgement’ (1998) 10 Cons Forum 14, 17–18; D Greschner, ‘The Québec Secession Reference: Goodbye to Part V?’ (1998) 10 Cons Forum 19, 22–23; and Tierney, National Pluralism (n 5) 256–71. This superficial and unreflective reading of the duty to negotiate was also held by the then Minister for Intergovernmental Affairs Stephane Dion: S Dion, Testimony, HC Proceedings (16 February 2000); S Dion, Testimony, Senate Proceedings (18 May and 29 May 2000); S Dion, ‘Sécession et nationalisme exclusive’ Le Devoir (Montréal), 5 June 1999, his ‘Une question claire ne peut inclure la notion de partenariat’ Le Devoir (Montréal), 24 August 1999, his ‘Projet de loi sur la question référendum: négocier si c’est claire, ne pas négocier si ce n’est pas claire’ Le Devoir (Montréal), 15 December 1999. See also P Hogg, Testimony, HC Proceedings (22 February 2000); J Couture, Testimony, HC Proceedings (21 February 2000); P Monahan, Testimony, HC Proceedings (21 February 2000) and Senate Proceedings (29 May 2000); A Lajoie, Testimony, HC Proceedings (21 February 2000); P Garant, Testimony, Senate Proceedings (29 May 2000); G Lachapelle, Testimony, Senate Proceedings (5 June 2000); W Norman, Testimony, HC Proceedings (22 February 2000); and R Young, Testimony, HC Proceedings (24 February 2000). The one clear exception was R Howse, Testimony, Senate Proceedings (8 June 2000) and perhaps J Magnet, Testimony, Senate Proceedings (1 June 2000).



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Little wonder then that the Court would temper the individualism of the primary right model and its attendant difficulties by introducing the duty to negotiate. Indeed, the Court seemed to grasp at the best of both worlds demarcated by opposing conceptions of association. On the one hand, it advocated a conception of constitutionalism shot through with elements of the primary right model. Yet it would qualify the central tenets of that theory by superimposing elements of reciprocation and mutuality through the duty to negotiate a resolution or compromise. Interposing negotiation between decision and deed suggests some recognition that associative commitments occupy a broader territory than mere acceptance and rejection of benefits and burdens, one that explains how and why it is that we co-operate and feel ourselves bound notwithstanding what our present interests and desires would have us do instead. Negotiation in times of disagreement invokes common commitments and relies on them to revitalise or preserve the co-operation, mutuality and reciprocity between the parties. Of course, we could interpret negotiation as being the opening of discussions to enter a fresh consensual bargain. But this contradicts the Court’s own idea of negotiation. The Court has clearly rejected limiting the idea of negotiations directed solely to the working out of the details of a secession dictated in effect by popular referendum. The duty to negotiate is not simply the duty of working out who gets what on a break-up. So we come to an inconsist­ ency between the easy reading of the Québec Secession Reference as a ‘right to secede’ and the nature of the duty to negotiate. The one way to escape this sense of inconsistency between political association and constitutional secession requires us to lay aside the assumption that the democratic willformation of a secession-oriented group is absolute and insurmountable. Just because a group votes for secession does not entail that it will automatically realise upon it. That is, such a group must account for its decision, defend its reasons for doing so, and seek to persuade the other constituent players in the constitutional order to accept its reasons and decision. Hence the negotiation process. We may not begin to analyse secession already presuming the indisputable validity and legitimacy of, not only democratic willformation, but its substance and rationale. We must separate the legitimacy of its content from the legitimacy of its formation, and we are not entitled to assume without more that the former is given automatically and necessarily by the latter. The duty to negotiate can thus be understood as a reinvigoration of the transformative event by which we deliberate on, agree on and internalise those common associative commitments constituting our legal, political and social order, and which is definitive of any democratic, constitutional society. I will discuss this further below in the final section of the chapter. Conceding the proposition for the moment, however, we can also reconcile the further inconsistency in the Québec Secession Reference between an ostensible preference for the primary right model under national constitutional law, and an ostensible preference for a remedial right model under public international law. And it is to that issue and question 2 of the Reference, that I next turn. Questions 2 and 3: International Law, Secession and Constitutions Questions 2 and 3 enquire into the characterisation of unilateral secession in inter­ national public law, and the consequences and ramifications of that characterisation for

330  Negotiating Secession: Of Voice and Veto domestic constitutional law.103 By comparison to its efforts in respect of answering question 1, the Supreme Court’s approach to assessing the current state of international law on the issue was brief and clear. Given its answer to question 2, the Court found it unnecessary to consider question 3, the relationship between international law and national law. The brevity to the Court’s analysis and the interconnection between the issues underlying these questions invites their examination together. Question 2: International Law and Secession Does international law give the National Assembly, the legislature or government of Québec the right to effect the secession of Québec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or government of Québec the right to effect the secession of Québec from Canada unilaterally? The Court’s answer here too was, ‘No’. Insofar as such an external right of self-determination could be said to exist in international law and be recognised in Canadian law, it is restricted to peoples who are oppressed by, and whose right of internal self-determination is restricted by, foreign powers. Whether or not Québec could constitute a ‘people’ having such rights, neither its population nor its representative institutions are subject to such extraordinary circumstances in the Canadian constitutional and political situation. Accordingly, Québec does not meet those threshold conditions necessary to invoke such a right under international law to effect secession. The Court’s argument is straightforward and offers nothing new in its premises. It keeps to safe and generally accepted grounds (which does not mean to suggest that they are uncontroversial, in respect of their continuing normative effect and range). The Court relied on the works of Cassesse and Doehring, and also had the benefit of a report by the federal government’s expert, Prof Crawford (endorsed by Prof Wildhaber) and the combined reports of Profs Abi-Saab, Franck, Pellet and Shaw on behalf of the amicus curiae.104 The issues joined between the experts for the federal government (Crawford and Wildhaber) and for the amicus curiae (Abi-Saab, Franck, Pellet and Shaw) would have made the controversies clear to the Court. The Court relied throughout on the principle of territorial integrity as a fundamental premise. First, a component part of a sovereign state does not have the right at international law to secede from its parent state. The domestic law of the parent state controls the formation (by secession or otherwise) of new states. Secondly, whilst international law recognises the rights of peoples to self-determination, it does not expressly permit nor deny the right of unilateral secession. Self-determination is normally fulfilled through internal self-determination – the people’s pursuit of their social, economic, political and cultural development within the framework of an existing state. ‘A state whose government represents the whole population resident within its territory on the basis of equality and without discrimination and respects the principles of self-determination in its own internal arrangements is entitled to protection under international law of its territorial integrity.’105 Thus key to the   Québec Secession Reference (n 43) paras 111–39, 154.  A Cassese, Self-Determination of Peoples: A Legal Appraisal (Cambridge, Cambridge UP, 1995); K Doehring, ‘Self-Determination’ in B Simma et al (eds), The Charter of the United Nations: A Commentary, 2nd edn (Munich, CH Beck, 2002) vol I, 48; expert reports reproduced in Bayefsky, Self-Determination (n 7). 105   Québec Secession Reference (n 43) para 130. 103 104



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Court’s articulation of the principle of self-determination is that international law commits the exercise of, and regulation of, acts of self-determination to the internal constitutional order of the state involved. That is, the controlling factor to the international law of self-determination is national constitutional law. The Court accepted that the case for external self determination (secession grosso modo) arises at best only under three specific and extreme circumstances.106 The first two instances, as generally formulated in international law, did not apply to Québec because it was neither under colonial rule nor foreign subjugation. A third basis, where the internal right of self-determination was blocked from meaningful exercise, itself of uncertain status in international law, also did not apply to Québec. There was no supportable factual basis to suggest that Québec’s internal right of self-determination, at a federal or provincial level, was in any way blocked in Canada. The residents of Québec had always played and had been allowed to play central roles in governing Canada. And so it was not necessary to decide whether or not Québec could arguably constitute a ‘people’ for the purposes of self-determination. The expert opinion of Prof James Crawford and endorsed by Prof Wildhaber and the combined expert opinions of Profs Abi-Saab, Franck, Pellet and Shaw were in general agreement as to the first two bases for external self-determination, but disagreed as to how firmly developed and recognised was the third. The latter reports also pushed for a much wider application of that third basis. It is clear from the Court’s opinion that it preferred the analysis and conclusions contained in the report of Prof Crawford. Thus, the related question of whether self-determination applies to ‘peoples’ within a state did not have to be decided but could be assumed for the purposes of argument. While seemingly indisputable given the application of the doctrine against foreign domination and colonialism (insofar as a colony might be said to be incorporated into the entirety of a ‘state’ through common application of law, legislation and taxation and not be otherwise distinguished or held separate), it remains of uncertain stature concerning groups within a state.107 Epps considers the Court simply to have accepted the point. This is questionable, especially since it entails an acceptance of the disputed third ground for secession.108 This would be contrary to the Court’s position and its understanding of the current status of self-determination in international law. Finally, the Court rejected the ‘effectivity principle’ in the context of international law, as legitimating ex ante Québec’s unlawful separation as a political reality. The Court noted that recognition in international law relies in part on the legitimacy of the process by which the emergent state is pursuing or did pursue separation. Such states which disregard legitimate obligations binding in their previous situations may put at risk that international recognition. The Court reiterated the argument of its first dismissal of the principle of effectivity, that an ex post facto acceptance of the political fact, not itself a rule of law, cannot and does not in any way confer a colour of right or legality upon the initial illegal act. 106   See also N Finkelstein, G Vegh and C Joly, ‘Does Québec have a Right to Secede at International Law?’ (1995) 74 CBR 223 (accord with Prof Crawford); J Woehrling, ‘Les aspects juridiques d’une éventuelle sécession du Québec’ (1995) 74 CBR 293 (fait accompli and international recognition). Yet see D Turp, ‘Le droit de faire sécession: l’expression du principe démocratique’ in his Le droit de choisir (n 7) 489–504; and J Brossard, L’accession à la souveraineté et le cas du Québec: conditions et modalités politico-juridiques (Montréal, PU Montreal, 1976) 82 ff (much wider application of the third ground for external self-determination). 107   See generally K Roberts-Wray, Commonwealth and Colonial Law (London, Stevens & Sons, 1966). 108   V Epps, ‘Self-determination after Kosovo and East Timor’ (2000) 6 ILSA 445.

332  Negotiating Secession: Of Voice and Veto Question 3: Domestic Law v International Law In the event of a conflict between domestic and international law on the right of the National Assembly, the legislature or government of Québec to effect the secession of Québec from Canada unilaterally, which would take precedence in Canada? Given the Court’s answers to the previous two questions, it concluded that there was no conflict between the two to be addressed in the reference opinion.109 Justiciability and Justifiability The Supreme Court’s answer to question 2 appears unproblematic and justifiable on the facts of Québec’s circumstances, powers, and position in Canada. In that respect, the Court quite rightly did not probe in depth the grounds and nature for secession at an international level. It was not necessary for the Court to address those points where the threshold factual issue of discrimination and oppression of Québec in the Canadian constitutional order was not made out in the first place. Québec’s dissatisfaction with the current state of affairs does not itself establish a prima facie case nor prove the existence of sufficient and necessary injury even to begin the arguments for secession. A complaint may invite investigation to determine if justly founded, but it does not mean that there is necessarily anything really the matter. If the Québec government believed seriously and reasonably in the oppression of the residents of Québec under the present constitutional structure in Canada, then it could have presented its arguments to the Court rather than refusing to participate in the reference procedure. The objective would be to gain international awareness of the plight of its citizens, establish a constitutional procedure to deal with those concerns, or prepare for eventual secession. Moreover, and importantly, by limiting its consideration of international law to propositions generally established and widely accepted, without any broader discussion of policy and principle, the Court duly avoided creating further controversy (1) whether the Québecois are a ‘people’, ‘nation’, or ‘state’ in international law; and (2) in giving judicial approval to the third basis for secession where, at an international level, the doctrine is neither clearly defined nor clearly beyond academic doubt. Both points would have further inflamed constitutional controversy in Canada. By way of rejoinder, Québec has always maintained that secession is a political, an a-constitutional act of primordial self-determination. Further, if Québec did make such arguments, so what? The Court could not remedy any oppression, nor even deal with statutory measures since they were not before the Court. But this misapprehends the effect of the Court’s decision. Highlighting oppression could lead to later concrete improvements. Publicising oppression through international media attention on the hearings could begin to shape international reaction. And, as Québec would no doubt readily concede, what counts is just that international reaction. The Court’s decision may only be one factor in the overall equation, but it has influential links to many of the other factors too. It would misstate the real issue to suggest that the Court cannot determine effectively at an international (legal) level whether in fact Québec is recognised to be oppressed in such a way to give rise to any one of the grounds for secession at international law. This conflates two separate matters. First, it questions obliquely the Court’s independence   Québec Secession Reference (n 43) para 147.

109



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and judicial (and judicious) authority in the Canadian constitutional order. It also implies that the international level is somehow less biased and more objective. That such an argument could ever be substantiated against the hard evidence of constitutional practice in Canada seems at least doubtful, spurious at most. How the international community could judge the circumstances without reference to their own, unrelated domestic situation, concepts and assumptions shaping their appreciation of the facts and circumstances in Canada is also seriously questionable. Moreover, it suggests that doubtful concept of legal objectivity and understanding which is divorced from the very context of social practice which gives law its content and force in the first place. Secondly, the misapprehension insinuates reliance on a proposition that the Court can in some way determine or regulate effectively international reaction through its pronouncement on Québec’s situation in the Canadian constitutional structure. The Court expressly denies doing anything of the sort and it would mistake possible effect for purpose or intent.110 It can hardly be denied that the Court’s opinion would factor in any foreign state’s reaction to a possible Québec secession, but without carrying any particular normative weight determinable or specifiable in advance. It is merely one factor in a foreign state’s evaluation of the situation in light of its own political and social interests. Thus, while the Court may suggest some impact upon ‘recognition’, this is no more than a prediction or guess. More broadly, it is an illusory problem, the manufacture of controversy where none exists, to criticise the Court for purportedly usurping the role of an international legal tribunal by examining the principle of self-determination in international public law.111 In Canada, as a general principle, relevant international law applies insofar as it is a binding treaty obligation or, for customary law, it does not conflict with national law.112 Thus if national law addresses the constitutional problem in a manner irreconcilable to inter­ national law, the national law solution will prevail. The Court is competent to determine what and how international law is applied in Canada. That is what it is doing in this instance.113 The Court is not pronouncing law binding at an international level. Its determination of ‘international law’ interprets those principles by reference to the domestic legal order with only domestic effects. Its strategy would appear to be first to ascertain what principles exist concerning secession and self-determination under international law, and then to assess them in light of the Canadian legal and political order. As it stands, Québec does not meet the basic preconditions for the invocation of those principles. 110   ibid para 20 (‘In accordance with well accepted principles of international law, this Court’s answer to Question 2 would not purport to bind any other state or international tribunal that might subsequently consider a similar question’). 111   See, eg S Toope, ‘Inside and Outside: the Stories of International Law and Domestic Law’ (2001) 50 U New Brunswick LJ 11; A Pellet, ‘Legal Opinion on Certain Questions of International Law Raised by the Reference’ in Bayefsky, Self-Determination (n 7) 85, 122–23; and D Turp, ‘International Recognition in the Supreme Court of Canada’s Québec Reference’ in his Le droit de choisir (n 7) 667, 674–77. 112   For example, Reference re Ownership of Offshore Mineral Rights of British Columbia [1967] SCR 792; Reference re Newfoundland Continental Shelf [1984] 1 SCR 86; Baker v Canada (Minister of Immigration) [1999] 2 SCR 817 (international human rights standards); Slaight Communications v Davidson [1989] 1 SCR 1038. See also E Morgan, ‘In the Penal Colony: Internationalism and the Canadian Constitution’ (1999) 49 U Toronto LR 447; I Weiser, ‘Undressing the Window: Treating International Human Rights Law Meaningfully in the Canadian Commonwealth System’ (2004) 37 U British Columbia LR 113; A Warner La Forest, ‘Domestic Application of International Law in Charter Cases: Are We There Yet?’ (2004) 37 U British Columbia LR 157; and S Beaulac, ‘Arrêtons de dire que les tribunaux au Canada sont liés par le droit international’ (2004) 38 RJT 359. 113   As recognised by the Supreme Court itself: Québec Secession Reference (n 43) paras 20, 22, 23.

334  Negotiating Secession: Of Voice and Veto Indeed, the real fault would then lie not in any purported arrogation of international jurisdiction, but rather in an intrinsically unreliable statement on the ‘international law of self-determination’. First, the Court failed to refer to any state practice.114 Secondly, the Court framed its statement of the principle of self-determination entirely around international, multilateral conventions and instruments, such as the Charter of the United Nations, the International Covenant on Civil and Political Rights (ICCPR), the Declaration on Friendly Relations, and the Helsinki Final Act.115 Neither the Declaration on Friendly Relations nor the Helsinki Final Act constitute binding statements of international law.116 Inasmuch as the Charter of the United Nations and the ICCPR are statements of international law, neither go so far (without substantially more) as to establish the principle of self-determination as set out by the Court in the Québec Secession Reference. Had the Court intended to state in authoritative and binding fashion what the current status of self-determination was in international law, we should have expected a due and appropriate analysis of the sources of international law, and that which evidences them.117 This cursory criticism should not be taken to undermine or reject the Court’s actual understanding of self-determination, but instead to suggest as a counter-factual that the Court was certainly conscious of the national boundaries to its jurisdiction and was not seeking to pronounce upon self-determination as it would on the law of contracts or the conflict of laws. It sought merely to report as accurately as possible on the generally agreed current understanding of self-determination in international law, in order to consider its application and effects in the Canadian context. Of course, it is certainly questionable whether the Supreme Court’s answer to question 2 determines the issue in a final and binding way for Canada or for Québec. In other words, the Court’s opinion on these matters may really only provide general guidance to the federal and provincial governments, rather than representing an authoritative statement of the law insofar as it applies in and to Canada. Precisely because the province of international law lies outside the jurisdiction of the Court to articulate and develop, the Court acts merely as a spectator and messenger.118 International law will continue to evolve and develop through state practice, both within and outside the framework of treaties. The problem for the Court’s opinion in answer to question 2, then, is not so much the Court pronouncing law for the world, but the legal effect of self-determination in the Canadian constitutional order. Specifically, has the Québec Secession Reference introduced some notion of self-determination into the Canadian constitutional order to stand presumably alongside such other general, unwritten and foundational constitutional principles as democracy, the rule of law, federalism and the protection of minorities?119 114   It merely accepts the contentions of Cassese, Self-determination (n 104) and Doehring, ‘Self-determination’ (n 104): Québec Secession Reference (n 43) paras 114, 131. 115   Charter of the United Nations (1945) UNTS 993; International Covenant on Civil and Political Rights (1966) 999 UNTS 171; Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, GA Res 2625 (XXV) (24 October 1970); Final Act of the Conference on Security and Cooperation in Europe (1975) 14 ILM 1292 (1 August 1975). 116   On which, see chapter 8. 117   Generally accepted as listed in Statute of the International Court of Justice art 38. 118   See, eg L Henkin, How Nations Behave, 2nd edn (New York, Columbia UP, 1979); H Hongju Koh, ‘Why Do Nations Obey International Law’ (1997) 106 Yale LJ 2599 and his ‘Bringing International Law Home’ (1998) 35 Houston LR 623; J Charney, ‘Universal International Law’ (1993) 87 AJIL 529. 119   Arguable given Slaight Communications v Davidson [1989] 1 SCR 1038 and Baker v Canada (Minister of Immigration) [1999] 2 SCR 817.



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The absence of any indication to an answer to the more important, and more interesting, question 3 renders this all the more acute. The doctrinal approach adopted by the Court, in marked contrast to its more philosophical stance under question 1, affords no clue to a possible answer. We can generalise this concern into an overall question under the already recognised unwritten fundamental constitutional principle of the rule of law, specifically whether public international law, human rights norms especially, takes precedence over Canadian municipal law, or takes up the place of Canadian municipal law where the latter fails to speak. In other words, insofar as nothing explicitly regulates secession under Canadian constitutional law, save a process of negotiation, the public international law right of self-determination confers a particular, overriding legitimacy on the democratic will formation of a secession-oriented group. Suffice it to say, in the circumstances of the Québec Secession Reference, that no definitive answer, or even beginnings of an answer, really exists in the constitutional law of Canada. The problem and its solution remain open for academic debate. Remedial Right Modelling The second real difficulty in this answer to question 2 is the apparent discord produced by its clear preference for a remedial right model for secession under public international law, whereas the primary right version seemed to have underscored the Supreme Court’s approach to secession under national constitutional law. The doctrinal approach adopted in the Québec Secession Reference relies on aspects of oppression (broadly defined) to justify secession, the central premise to the remedial right model. The two categories of colonialism and alien subjugation unquestionably invoke the oppression premise. And even the disputed third category of frustration of a meaningful exercise of internal self-determination carries the kernel of the oppression standard. Denial of internal selfdetermination undoubtedly refers to denying a people’s pursuit of their social, economic, political and cultural development within the framework of an existing state whose government represents the whole population resident within its territory on the basis of equality and without discrimination. Naturally, the inconsistency calls for some explanation why a national constitutional order should obscure a different standard (even a lesser one) than the international order. Taking a cue from the discussion of the remedial right model, the seemingly more fruitful path to reconciliation would require characterising the gravamen of oppression as the failure or collapse of the extant constitutional order. I assume of course a premise of a participatory and deliberative model of (democratic) political association. Oppression undermines the due functioning of such an association by denying some or all of the population a voice and role in the governance of their lives. Here, we must assume at least a colonial system or alien subjugation of the most distasteful and repressive kind without any allowances for significant self-government, unless we are prepared to assume either an absolute prohibition on colonialism and foreign occupation or some fiction of temporary consent to either, perhaps pending political and social stability.120 Likewise, any oppression of any group of citizens within state territory also points to a failure or collapse of the constitutional order. Here, we assume that oppression is by 120   For example, Iraq, Afghanistan or East Timor and Western Sahara: L Hannauer, ‘The Irrelevance of SelfDetermination Law to Ethno-National Conflict: A New Look at the Western Sahara Case’ (1995) 9 Emory ILR 133.

336  Negotiating Secession: Of Voice and Veto definition unjustifiable and unjustified, and that functioning, effective constitutional order would at least prohibit such oppression in its protection of basic general human rights and freedoms. Any limits thereon would have to be in accordance with the rule of law and justifiable in a free and democratic society. Accordingly, we might reasonably argue that in such circumstances of oppression, no real constitutional order, no municipal legal structure, exists. Various groups are thus able to present themselves on the international stage and claim recognition as self-standing political entities. In case of internal oppression, then, exclusion of the oppressed group from general political, economic and social life suffices to set that group apart and constitute it as a self-standing entity capable of recognition as a sovereign state. But where a reasonably well-functioning constitution does exist, then public inter­ national law concedes its place to municipal constitutional law and constitutional process. Thus the key premise would be the existence, by legal fiction or not, of an operative, effective constitutional order. How that order treats its secessionist groups is, then, a matter for it, independent of any considerations under public international law. This, of course, does not begin to explain why oppression is not necessary in a national constitutional situation, nor why, in principle, a removal of consent does not suffice at public international law. Summary Having concluded in its own way that questioning whether secession fell within the constitutional ambit did raise justiciable issues, the Supreme Court was bound to deny constitutional permission for unilateral secession. An affirmative response to question 1 is unsupportable. Allowing for unilateral secession would severely restrict the operation of the Constitution and fatally undermine its normative force. Conceding the possibility of unilateral secession in the face of an operative liberal democratic constitution leads to the abrogation of that constitution. The underlying character of secession, as assumed by the Court, was that of an expression of collective ‘democratic will’. The legitimation, or justification, for secession inheres just in that democratic touchstone. And it forms the benchmark to the political and constitutional structure, of which the Constitution Acts, 1867 to 1982 are the tangible elements. That is, inasmuch as the Constitution institutionalises the principle of democratic expressions of collective will, it must be subject to and comply with actual instantiations of that will. But thus conceived, such an expression of democratic will would in principle be sufficient to override any aspect of the Constitution at any time. Popular sentiment would carry the necessary justification to circumvent constitutional rules and practices perceived as inconvenient or hindrances to the desired outcomes. Every expression of democratic will raises a potentially revolutionary situation. And since political action rests upon popular sentiment and purports to give effect thereto, it is no strained conclusion to expect executive and legislative power to justify ignoring constitutional constraints and restraints by appeals to ‘democratic will’. Indeed, that was precisely the position of the Parti Québecois government.121 This contradicts 121   R Dutrisac, ‘Un assaut sans précédent contre le Québec, dit Facal’ Le Devoir (Montréal), 11 December 1999 and his ‘Lucien Bouchard: à la défense du droit de choisir’ Le Devoir (Montréal), 16 December 1999; Turp, ‘Droit de faire sécession’ (n 106) 528–29; MacLauchlan, ‘Accounting for Democracy’ (n 28) 162–65 (regarding statements of Québec politicians after the announcement of the reference). In advance of the Québec Secession Reference



The Supreme Court’s Opinion 337

the common understanding of a constitution as a set of settled and enduring rules which, until amended in accordance with their terms, limit and frame all political action. It undermines the achievements of constitutionalism in its long and turbulent history to control arbitrary rule and social power by subjecting that power to fixed and public rules and prescribing a like amending procedure to alter them.122 As would seem clear from this, the Court had no other option but to find a means to preserve the normativity of the Constitution by incorporating secession into its constructs. Intuitively, secession in an established federal state would appear to be an amendment (as explored in the previous chapter). It certainly alters the existing federal-provincial distribution of power in the province seeking separation. Although the distribution of powers between the federal government and the remaining provinces does not necessarily change, secession does alter the nature of inter-provincial agreements and the status of inter-provincial relations (executive, legislative and judicial). So noted the Supreme Court. It follows that secession also alters the status and rights of provincial residents in relation to the province and the federal government, as well as those of non-resident Canadian citizens regarding the provincial government. If the above changes were sought without the overlay of ‘secession’, they would be most likely addressed through the constitutional structure. That is, a constitution organises public institutions, dis­ tributes power among them, and in so doing, regulates directly and indirectly the relationship between public institutions and the people. Changes to that structure are undoubtedly constitutional amendments. Thus the amending procedure under a federal constitution can accommodate the secession process. Domesticating secession in this fashion is reasonable in the circumstances of a written constitution which contains no express provisions therefor. No government nor legislature exercises more or less power than is conferred by a constitution. The written document accounts for all legislative and executive power, specific and residual, distributed to the various federal or provincial constituents. Thus, a federal constitution can reasonably account for all political authority, including the claim for the power to secede. It is possible to postulate a constitution which leaves certain political powers unaccounted for, in a non-exhaustive distribution. But this seems unworkable for a federal state, since such states would likely dissolve in turmoil or ultimately distribute those powers within and subject to the federal framework. It would hardly fit the intention of constitutional framers to leave out powers without a mechanism to distribute them, the distribution of powers being a fundamental characteristic of federalism.123 The key point is that only all organs of government together, federal and regional, hold sovereignty, and no one of them has control over the distribution calculus. This would apply whether the residual powers remained in the provinces or the federal government. Moreover, no one constituent may amend or change a federal constitution without the participation and consent of the others. Since all these principles emerge naturally and coherently from federalism and federal constitutional law, a ‘non-justiciable’ answer would have given precedence (n 43): J Parizeau, ‘La déclaration unilatérale est indispensable’ Le Devoir (Montréal), 16 September 1997; L Bouchard, ‘Le dernier mot revient au peuple québecois’ Le Devoir (Montréal), 12 February 1998. In reply thereto: S Dion, ‘La declaration du premier ministre du Québec, Lucien Bouchard, “Nous seuls pouvent décider de notre avenir”’, Le Devoir (Montréal), 16 December 1999. 122   See, eg GFM van der Tang, Grondswetsbegrip en grondwetsidee (Rotterdam, Gouda Quint, 1998). 123   K Wheare, Federal Government, 2nd edn (Oxford, Oxford UP, 1951) 13, 33; D Elazar Exploring Federalism (Tuscaloosa, Alabama UP, 1983) 108–9 (pluralism and democracy) and 166 ff (‘noncentralisation’).

338  Negotiating Secession: Of Voice and Veto to the political controversy and revolutionary character of secession in the face of applicable federalism principles, whilst a ‘Yes’ answer is clearly inconsistent with those federal principles. But a negative response, denying the ‘constitutionality’ of secession, offers on its face no greater comfort. A secessionist movement finds itself saddled with the paradox of being bound to observe the principles and rules of the very constitutional order it seeks to escape, in order to achieve that goal. True irony. And thus to ignore the political, social forces for change underscoring a secessionist movement not only pays scant attention to the democratic will benchmark, but also may serve really to incite revolution. One principal rejoinder (and one maintained by the government of Québec) is that secession, and the process of it, is a purely political act, in which the courts have no competence. Treating secession simply as a constitutional amendment belies that fact that the amendment actually is a fundamental and wholesale change to the state architecture. Any amendment to a constitution that dissolves the current state structure is not simply an amendment, to be treated in the usual fashion. Constitutional reform at this level is really constitution making. And this level of constitution making is, as Elazar rightly points out, the ultimate political act.124 It is, in other words, logically prior to the existence and operation of courts whose position derives from that constitutional process. When people wish to live together in the form of a state, the court system which will mediate their common disputes arises from that social compact, and not before it. It follows that the courts can not assert their jurisdiction over secession through whatever control they may have (and this is disputed) over the ordinary amending procedures. Secondly and further, secession is one aspect of national self-determination through which power, in a democracy, resides in the people. It is for the people to determine whether or not they wish to secede or remain. Courts, whether or not elected, are not the means of expressing or effecting democratic will; that is the jurisdiction of the legislature under the concept of the separation of powers. By virtue of parliamentary sovereignty, the courts are obligated to comply with the duly expressed will of the legislature. Thirdly, it is reasonable to assume that once the political and, frankly, commonsense desire to negotiate and compromise breaks down, no quantity of judicial pronouncements, court orders or bailiffs on the doorstep will restore the status quo, nor compel people to talk. But that desire to negotiate and compromise is itself not a justiciable obligation. It is simply a fact of social and political existence. To invest it with any transcendent obligatory force introduces natural law theory that really has no practical force and widespread acceptance. This approach may have much to be said for it. I need not analyse in depth and detail the merits and weaknesses of either position for present purposes. But I want to suggest one weakness to this rejoinder. That weakness is its major premise that constitutional amending procedures can not in the ordinary course subsume secession. There is a confusion between the decision to secede, undoubtedly a political act, and the procedures for secession. This is a distinction also made by the Supreme Court. Apart from revolution, the legislature is unable to alter its constitutional status except in accordance with existing procedures. A provincial legislature is obligated by and operates under the 124  D Elazar, ‘Constitution-making: the Pre-Eminently Political Act’ in K Banting and R Simeon (eds), Redesigning the State: the Politics of Constitutional Change, (Toronto, Toronto UP, 1985) 232–33; see also M Loughlin and N Walker, The Paradox of Constitutionalism: Constiuent Power and Constitutional Form (Oxford, Oxford UP, 2007).



Popular Sovereignty and the Rule of Law 339

current constitutional architecture, within its means, scope and limits. So, for Canada, the provincial legislatures have only those powers enumerated under section 92 of the Constitution Act 1867. They do not include secession. The residual power is with the federal Parliament. Nor do the provinces have the power to alter the Constitution, at least without federal consent (under the amending formula of Constitution Act 1982 Part V). If a province arrogates a federal competence, or acts in an ultra vires manner, courts are certainly competent to undertake judicial review and declare the ultra vires act unconstitutional. Returning to the rejoinder arguments, the Court is not trenching upon the decision to secede, but is requiring a province to act within the law and its procedures – the Constitution by definition being the supreme law (Constitution Act 1982 section 52). The relevant law and procedure is the amending procedure. This, of course, brings us back to the question of the duty to negotiate, which I examine next. OF VOICE AND VETO: POPULAR SOVEREIGNTY AND THE RULE OF LAW

Democratic Will and Constitutional Amendment With respect, the Supreme Court seems more eager to discuss its neologism of a duty to negotiate proposals for constitutional amendment than to argue the fundamentals of controlling secession by constitutional process. We find little reference to its relatively exclusive consideration of the history of Confederation, a short glance at Canadian constitutional history thereafter, and the discussion of the four unwritten principles, in the critical arguments drawing secession into the ambit of constitutional norms and rules. Indeed, the premise that the Constitution covers instances of secession because secession amends the current constitutional arrangement seems more a flat statement of fact than a judicial reason or a reasoned conclusion. In fact, even if the Constitution did not subsume secession, some form of amendment would be required after a secession in order to adapt to the changed political and social landscape. The Court passed too quickly and lightly over this fundamental point, on its way to positing the duty to negotiate. And in its consideration of that duty, the Court refrained from advising on the consequences to a failure to negotiate, or a failure to reach an agreement or compromise. Both these issues are intrinsically and intimately related to the constitutional control of a secession attempt. Both situations represent the limits of the constitutional order, as understood by the Court, and return us once more to the starting point of the whole process, a referendum victory for secession. What then of the duty to negotiate? Are we to assume that constitutional norms and rules have played themselves out, leaving each side to its unconstrained, unrestrained, political options outside the constitutional order? Or are we merely to anticipate another reference to the Court in the political instability that would surely follow? Reconstructing the Court’s argument with closer attention to the unwritten fundamental principles provides an answer, perhaps not one intended or anticipated by the Court, but one certainly given by its views on constitutional normativity in the democratic process and on the duty to negotiate. Indeed, it is a result much less favourable to secession than many have understood from the Québec Secession Reference. I reconstrue the Supreme Court’s position as follows. Democratic will is expressed in a secession referendum as a desire for substantial political change. But that will needs

340  Negotiating Secession: Of Voice and Veto framing, and is framed by, the rule of law and constitutionalism. Both principles serve to ascertain and implement democratic will-formation through political institutions and processes established by a constitution and constitutional law. Democratic will finds expression and its framework (its means of signifying) in the closest allied legal order, which is invariably the national legal system under the constitution. In the case of Québec, or of any Canadian province for that matter, the Constitution demarcates in first instance democratic will-formation at two levels: federalism and the amendment process. Under the first, democratic will takes shape and voice at the federal and at the provincial levels. These represent the primary constituents under the constitutional process. The second identifies how those constituents may effect aspirations for different frameworks and modes of expression. The provinces are bound to the constitutional amendment process by the principle of constitutionalism. By definition, a constitution binds its constituents, whatever their current or historical composition, to obey its rules and norms into the future. Hence, for example, Québec can not usurp powers and rights not allocated to it under the Constitution Acts, 1867 to 1982. It may claim legitimacy and legality for its actions only through observance of the rule of law and constitutionalism. Thus, Québec is bound to that mechanism of constitutional change prescribed under the Constitution Acts, 1867 to 1982 in order to effect any desired political change in a legitimate and legal manner. A constitutional structure may only change in virtue of the amendment process, as initiated at the federal or provincial level. That process involves a duty to consider and negotiate the proposals tabled, with an eye to extant political and social values, circumstances and interest, and to the ramifications thereon. Under this reconstructive version, the fulcrum of the argument shifts from the duty to negotiate to the premise (and rightly so) that democratic will-formation finds expression and implementation in its closest allied extant legal and constitutional order.125 That premise, unexplored but merely pronounced by the Court, ties together law and politics. A constitutional order attains therefore a normative force equivalent to and, more importantly, inextricably complementary to, the democratic political order. The undifferentiated phenomenon of a democratic polity obtains its structure and voice through a constitutional order, one modulated by law. Put shortly, it is by law, constitutional law more particularly, that a democratic polity can be said to be a democratic order. Moreover, the shift in fulcrum to a complementarity or ‘co-originality’ between democracy and constitution carries with it two important consequences.126 The first would limit the effectiveness and normative force of any international (legal) order imposed upon a local, state population. There is no democratic representativity at that international level; it suffers from being too far removed from the actual interactions of citizens making up the polity. The second relates to the duty to negotiate, more broadly 125   This differs somewhat from judicial review of executive acts based upon ‘revolutionary’ constitutions; as was the case for the United Kingdom and colonial Rhodesia in Madzimabuto v Lardner-Burke [1969] 1 AC 645 (PC S Rhod), and Adams v Adams [1971] P 188 (PDA Div). In these cases, the courts did not have to assess the antecedent questions of the process by which Rhodesia claimed its independence from the United Kingdom, and attendant questions of legitimacy. See also Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) [1967] 1 AC 853. Harris v Ministry of the Interior [1952] 2 SA 428 (AD) and Ministry of the Interior v Harris [1952] 4 SA 769 (AD), not secession cases, but rather dealing with the apartheid legislation in South Africa, the sovereignty of Parliament and the relationship of Parliament to the courts, are closer to what the Supreme Court is doing and how it is working in this reference case. 126  Habermas, Between Facts and Norms (n 88) ch 3 (‘equiprimordial’); Baynes, ‘Democracy and the Rechtsstaat’ (n 88) 201 (explaining).



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considered under the democratic principle, as a general obligation for citizens and polit­ icians to deliberate actively and reasonably. Deliberation recalls the idea of the trans­ formative event, of the give and take of intersubjective interaction, where an outcome reflecting exactly or substantially one’s initial desires and interests is never guaranteed. By formulating secession as the democratic aspiration for constitutional change, secession should become defeasible like any other proposal, without affecting the continued stability and operation of the extant constitutional order. No proposal for constitutional amendment carries any implicit or explicit guarantee of being accepted as such, at all, with or without (substantial) amendments. That is, after all, the nature of deliberation and debate intrinsic to the democratic order. Just because one constituent, provincial or federal, wants change does not immediately invest that desire with transcendent validity – even if backed by a majority of provincial inhabitants. Failure to reach an accord entails that proponents of change must reconsider their plans. Either they must concede the force of the counter-arguments, or develop new and further arguments to persuade their opponents. So too must their opponents. They must be prepared to defend the stasis, and show how the concerns raised can and are being met. Otherwise they will more than likely face further secession bids or full-scale political instability. With great respect, it is unlikely that the Supreme Court was aware of, let alone intended, the consequences of its position on the interconnectedness of law and demo­ cracy. The duty to negotiate becomes a subsidiary issue. We can best explore the concept of interconnectedness by beginning with an analysis of the controversial proposition of secession as a defeasible proposal for constitutional change. Secession and Constitutional Veto If the constitutional amending process does subsume any attempt to secede in a democratic constitutional state, then it may follow that a secession proposal is defeasible, as with any proposal to amend the constitution. That is, it may be accepted or rejected, or varied in whole or in part, by the relevant constitutional players. In Canada, this means the provinces and the federal government. First, it seems self-evident that, barring any special circumstances, there is nothing inherent or intrinsic to any proposal for constitutional change proffered by any provincial government or the federal government which mandates its acceptance as such, or in some substantially unchanged form. A proposal for change is just that: a suggestion. It is accordingly by definition mutable, variable and open to acceptance or rejection. It would be contradictory to hold that a suggestion, a proposal mandates or dictates conduct according to its terms without more (such as mutual consent). In the context of democratic constitutionalism, a suggested change to the nature or functioning of the constitutional order normally requires the consent of the other relevant constitutional players as set out in some constitutional text. Second, by emphasising the deliberative character to the amending process, we should take the Court to emphasise as well the mutual vulnerabilities (for lack of a better term) of the participants inherent in such a transformative process of give and take. Deliberation and debate entail at very least that advocating ideas and proposals for acceptance by the other participants carries the risk of failing to persuade others to accept those ideas, as much as the chance of having them adopted in the form presented

342  Negotiating Secession: Of Voice and Veto and with the effects intended. Again, to suggest otherwise means that one party may dictate to the others what they have to accept and abide by. This is inconsistent with the idea of deliberation and negotiation. Third, committing secession to the Canadian constitutional amendment process also strongly suggests the possibility of defeasibility at the hands of the other constitutional players. Without rehearsing the exposition in chapter 8, recall that Canada has no specific, explicit amending process. Instead, it has a series of amending formulas which specify the provincial and federal majorities necessary to pass the amendments into legislation. What procedures do exist are largely informal ones, governed by convention and the exigencies of the day. It is possible to discern therefrom a two-step deliberation procedure. First comes a round of federal-provincial consultations and negotiations in a formal or informal, public or private, setting, as the case may be.127 These serve to present and work out a proposal acceptable to all those participants, and one likely to obtain provincial legislative assent. The second stage involves seeking legislative approval pursuant to the amending formulas under Part V of the Constitution Act 1982. Federal resolutions introduced into Parliament to amend the Constitution Acts, 1867 to 1982 must have the antecedent support of Ontario, Québec, British Columbia, two of the Atlantic provinces having together 50 per cent of the Atlantic population, and two of the Prairie provinces having together 50 per cent of the Prairie population.128 Both stages clearly contain the risk of one or more participants rejecting a proposed amendment to the Constitution Acts, 1867 to 1982. That a proposal has successfully run the gauntlet of the first stage and is acceptable to the various negotiating delegations offers no guarantee of provincial legislative or parliamentary approval at this stage. Moreover, the amending process proper is yet to be faced. The important question that will have to be considered is whether the unanimity amending formula is required. Much depends on how the provincial and federal governments intend to obtain the necessary approvals. If they force the resolutions through by virtue of their respective majorities, there is little risk of failure. But if they proceed by way of free vote, consult popular opinion beforehand, or hold some form of referendum, then the risk exists that the proposal may be defeated.129 We need look no further than the two failed attempts to introduce ‘distinct society’ status for Québec, inter alia, into the Canadian Constitution.130 The first, the Meech Lake Accord, collapsed in 1988 when the Manitoba and Newfoundland legislatures declined to endorse it within the prescribed time. The second, the Charlottetown Accord, also collapsed by failing to secure majority endorsement across Canada (Québec included) in a referendum. In sum, there are at least three layers of consultation and negotiation. First are the discussions prompted by a province’s secession proposal. The discussions would happen between the federal government and the province, or among the federal government, the provinces, and the claimant province. Second are the discussions at the provincial level 127   J Hurley, La modification de la constitution du Canada (Ottawa, Government of Canada, 1996) 163 ff; see also A Tremblay, La réforme de la constitution au Canada (Montréal, Eds Thémis, 1995) 90 ff. 128   Act respecting Constitutional Amendments SC 1996 c 1. 129   R Howse and A Malkin, ‘Canadians are a Sovereign People: How the Supreme Court Should Decide the Reference on Québec Secession’ (1997) 76 CBR 186, 198 (secession engages the national consciousness, and not merely the procedure for an executive amendment of the Constitution). 130  See eg, McRoberts Misconceiving Canada (n 76) and K McRoberts and P Monahan (eds), The Charlottetown Accord, the Referendum, and the Future of Canada (Toronto, Toronto UP, 1993).



Popular Sovereignty and the Rule of Law 343

held to consider the official provincial responses to the potential resolution to amend the Constitution, whether for outright independence or some other change. There would likely be held contemporaneously with those at the federal level, if only for pragmatic reasons. The pressure to have those debates as a public political debate, to direct the provincial response, I would expect to be intense and effective. The third level of discussions would be the actual legislative round of passing the constitutional proposals in Parliament and the provincial legislatures. This said, it has nevertheless become a serious but common misreading of the Québec Secession Reference that a clear majority approving secession on a clear question entails that Parliament and the other provinces must negotiate the terms of secession without room to reject the proposal, or without the ability to call for amendments to vary it in any degree. That is, the Supreme Court has recognised a ‘right to secede’. Such a misconception, held by those inside and outside of Québec, may be founded on an unclear notion of constitutional democracy, or a misguided sense of practical politicking, but is most certainly the result of a less than careful and accurate reading of the Québec Secession Reference. Such a rendering of the duty to negotiate concentrates on the phrases ‘an obligation to negotiate constitutional changes to respond to that desire’ and that ‘the continued existence and operation of the Canadian constitutional order cannot remain unaffected by the unambiguous expression of a clear majority of Québeckers that they no longer wish to remain in Canada’ to the exclusion of everything else.131 But this ignores and contradicts what the Court said in its opinion. Firstly, this misreading effectively allows a popular vote to bring about a secession. The Court dismissed the claim that a referendum could force (unilateral) secession.132 Secondly and following, it would have the democratic principle trump the other principles.133 Thirdly, it flatly contradicts the Court’s statement that there exists no legal obligation on the other constitutional players to accede to the secession of a province.134 Fourthly, the Court recognised the possibility that negotiations may not lead to an agreement to allow the province to secede, or to any agreement at all.135 And fifthly, it would result in the bald incoherence of the Court (1) rejecting a unilateral declaration of independence; and yet (2) conferring a right to secede supported by a duty to negotiate the details of independence – a unilateral declaration of independence by another name.136 The misreading has no basis in the Québec Secession Reference. Consider for the moment the counter-factual possibility for a secession proposal being non–defeasible. This means that secession has the status apart and separate from ordinary proposals for constitutional amendment. That special character of a secession amendment, its non-defeasibility, must arise from the standing attributed to its under­ lying expression of democratic will. Unlike other popularly supported movements for constitutional change, a referendum victory for secession represents the voice of a sovereign democratic will (howsoever coming into existence) which demands recognition and   Québec Secession Reference (n 43) paras 88, 92, 104 and 151.   ibid paras 75, 87, 90, 91, 151. 133   ibid paras 49, 66, 67. 134   ibid paras 90, 91, 96, 151. 135  ibid paras 97, 151. See also J Crawford, ‘The Right of Self-Determination in International Law: Its Development and Future’ in P Alston (ed), Peoples’ Rights (Oxford, Oxford UP, 2001) 62 (a reworked version of his expert opinion for the Québec Secession Reference); and J Magnet, Testimony, Senate Proceedings (1 June 2000). 136   Contra: Tierney, National Pluralism (n 5) 263 ff. 131 132

344  Negotiating Secession: Of Voice and Veto implementation. Denying or ignoring this is tantamount to a violation of the democratic principle. However, it cannot reasonably be argued that the alterations proposed for the constitutional order are at all of the nature of constitutional amendments. Seeking an amendment within the extant constitutional order implies the democratic will to accept the rules and practices of that order. Hence, a defeat of a proposed amendment does not jeopardise continuing respect for the extant constitutional order. But seeking secession implies a rejection of that order, and it does jeopardise continuing respect for that order at its very core. Given non-defeasibility, negotiations would assume a character and pattern unlike the deliberations undertaken pursuant to the duty to negotiate in the ordinary course. The parties are, in effect, limited to working out the practical details of separating the province from the rest of the country, and of the future relations between the new state and the rump state. While it may be conceded that some amendment is required to the present terms of the constitution, this is merely a side issue. The real secession process is the referendum victory. Negotiations merely affirm it. For secession is then the expression of the sovereign will of the seceding province, and its supremacy over the constitutional order and the will and interest of other citizens: its non-defeasibility. Even if negotiations fail to produce any agreement, they relate only to the practical measures for separating the affairs of two already separate political entities. Nothing bars the new state from asserting its independence, which arises legitimately and validly from its expression of sovereign will. It follows that there can be no reason to understand the constitutional amending process as subsuming in a normative and practical way the secession process. Instead, the negotiations following a victorious secession referendum would be sui generis, consistent with the special nature of the democratic willformation sparking a secession crisis. Differentiating the status of democratic will-formation in a secession case from the ordinary case of any other type of constitutional amendment forms the cornerstone to this counter-factual demonstration. Absent a special transcending status to an expression of sovereign will in a secession referendum, achieved presumably by the autogenesis of voting for independence, there can be no justification for distinguishing the secession scenario from any other popular movement for constitutional change short of secession. Admittedly, the Supreme Court itself is ambivalent and unclear on this. Its discussion of federalism, and of ‘two legitimate majorities’ suggests favouring special status, at least for Québec, likewise its reference to the constitutional order not being unmoved by a clear expression of a desire to secede. Yet its introduction of a duty to negotiate, its extensive treatment of secession as an instance of constitutional amendment, and its rejection of any absolute entitlement to secession, all weigh heavily against such special status. I leave the apologia for the ambiguities to other commentators. I want to focus instead on the reasons, consistent with the Court’s understanding of the Constitution, for dismissing any especial democratic sovereign character to a secession vote. Of Voice and Veto: Law, Politics and Secession What most tellingly and substantially forms the answer lies in the unexamined proposition that democratic will finds expression and implementation in its closest allied constitutional and legal order. This is truly the most puzzling of all the aspects of the Supreme



Popular Sovereignty and the Rule of Law 345

Court’s reasoning. As expressed and outlined in the Québec Secession Reference, it is clearly self-serving. The proposition is not argued but merely stated without any references. And yet it is the critical premise by which the political act of secession is incorporated into and harnessed by the extant constitutional order. Only if raw democratic will-formation needs a legal order to translate its voice into action, to legitimate that action, may constitutional law then claim to regulate secession. Otherwise, where such will does not require the modulating, mediating operation of a legal order to organise the cacophony of individual voices into a more harmonious polyphony, the direct movement from political will to political action obviously may circumvent the constraints and restraints imposed by the rule of law.137 This includes constitutionalism, except on those occasions where political will itself chooses to obey. Or more succinctly, the existence of a constitutional order and the rule of law depends upon the consent of political will. It follows that any normative power, any obligatory force to the rule of law, would originate in and depend upon that continuing will. Removing our consent would then return us to a type of ‘original position’, a pre-constitutional state of raw politicking where new bonds of consent await to be formed and exemplified in a new constitutional formation, or already replace the older in the form of a seceded state. Therefore, postulating an intrinsic, even instrumental, connection between (constitutional) law and democratic will-formation, as the Court does, entails accepting the co-ordinate normative force of constitutional law and democratic will-formation without necessarily subordinating the one to the other. This allows for a much richer conception of constitutional law and of law more generally. Democratic will-formation, even in the purported attempt to declare a particular group of citizens as sovereign independently from the rest of the group, cannot overrule nor function outside of the rule of law. Inasmuch as the rule of law allows for a subgroup to split off, the procedures and rules prescribed must be followed, to ensure the continuity of legitimacy to democratic will-formation. Else we are truly once again in a Hobbes-inspired original position, without appeal to the refined terms of legality, legit­ imacy and validity. Hence, the key to a constitutional solution to secession lies in our understanding of the connection of constitutional law to the political reality of democratic politics, and of our commitment to both the ideas of law and democracy. Secession is incorporated effectively into the democratic constitutional order, and regulated thereunder, because the democratic expression of will represented by secession relies upon the extant constitutional, legal order to frame that will as political action, give that action content, and manage that action. Left to its own means outside the legal order, such a democratic expression of will would have the appearance of revolution by force, of an unmanaged and unmanageable mob rule, of chaos and factional infighting, as the structure and order to civilised life disintegrates into a legal, constitutional and political vacuum. Secessionist forces have the choice then, under the Québec Secession Reference, of either maintaining continuity with legitimacy and legality by observing the rules and norms of the rule of law, or of pursuing the chaos of revolution. And it should come as no surprise to secessionist hardliners (perhaps even with a small self-congratulatory smile) that a constitutional version of secession is not really a secession after all. It is the orderly, consensual, voluntary dismantling of a state. Secession cannot be 137   J Habermas, Glauben und Wissen. Friedenspreis des Deutschen Buchhandels 2001 (Frankfurt, Suhrkamp, 2001) 10–11 (cacophony to harmony).

346  Negotiating Secession: Of Voice and Veto achieved in constitutional fashion: secession must on this version occur in the absence of any operational constitution or in violation of one. Real, live, true secession would appear to be revolution, an act of brutality and violence. There is nothing heroic, noble or redeeming about the political chaos that is secession. CONCLUSION

So, my reconstructive evaluation of the Québec Secession Reference attempt to ‘con­ stitutionalise’ secession has brought us a good distance from a merely legalistic reading of constitution and constitutional law. From the proposition that democratic will-­formation – democratic politics, for short – must find expression and implementation in the closest allied legal system, I have developed a line or argument which contends that democratic legitimacy means more than simply the expression of democratic will. To ensure that democratic decision-making stands as an authentic reflection of the collective interests and opinions of those constituting the democratic community, we must understand there to exist a legal structure immanent in that collectivity. That structure delimits the mechanism and location in which that will can take shape, be expressed, and be realised upon. Such a structure involves an understanding common to all participants of how and why decisions are made, for what reasons, by whom, where and when, all in addition to what decisions are actually taken. What such a structure does then is to establish not merely a framework of rules pertaining to the actual mechanism and mechanics of the decisionmaking process, but also the key preconditions making it possible in the first place. Those preconditions refer to the status of members and their proposals, the types of argument, reasons and proposals to be considered, the nature of the mechanism, and so on. A democratic decision cannot exist apart from, outside that framework. It has no form, no shape, no means of expression.138 To articulate democratic decisions means to give that otherwise amorphous unintelligible impetus a concrete figure that can be grasped, communicated, understood and brought into consciousness. We can think of the function and necessity of such a framework in terms of giving an idea shape, form, colour, texture: we make it intellectually tangible to ourselves and to others. The terms in which we articulate those common understandings and the framework (of rules) are the language of rights. For rights provide the necessary form and expression to demarcate (to give us an intellectual grasping point of) those structural timbers and girders framing our interaction as participants in a democratic collectivity, and by which we can actually contribute to that society. And as we have argued right from the start, rights are an intersubjective, social concept implicating an ‘other-regarding’ perspective. Rights neither presuppose democracy nor are presupposed by it. Both arise together as part of the self-instituting character of democracy. They are, as Habermas says, ‘co-original’, ‘equi-primordial’. We cannot have a democratic, constitutional state without basic rights arranging us as participants in a democratic order, and by and through which we recognise others as equal participants. Nor can we have rights without a democratic order in which we are taken to possess the capacity to regulate our own lives in common with others, and to recognise that same capacity in others. Each is a precondition of the other.   Echoing J Searle, The Construction of Social Reality (London, Penguin, 1996) esp 20–23, 27–29, 31–56.

138



Conclusion 347

Rights bring us to the legal character of the framework and more specifically to its constitutional law character. The co-originality of rights and democratic polity play out in the exercise of social power. As Baynes puts it, ‘Rule by the people must be a rule of law, but the rule of law must be joined to rule by the people’.139 It is by and through the language and form of law that people articulate, trace out the contours of, their collective will and administer that will. And it is by law that the constitutional rights of a democracy are expounded and protected. The language or form of the right is the legal form.140 Hence, democratic legitimacy depends upon legal legitimacy – the rule of law and constitutionalism. That is, the warranty of an authentic expression of democratic will-formation is the closeness of fit to the constitutional framework articulating it. And, of course, that constitutional framework relies upon the notion of a democratic community. These theoretical considerations underpinning a constitutional conception of secession exist therefore only in imperfect and inchoate form in the Québec Secession Reference. In effect, a constitutionalised secession, one which has any reasonable pretence and claim to being democratically legitimate, requires compliance with the constitutional rules for changes to the polity. It cannot seek justification and legitimacy outside that order, for then it has lost its legitimacy as democratic, as a rights-oriented decision. Associative constitutionalism provides through its conception of rights, mutuality and reciprocity, and the transformative event, a systematic representation of these theoretical underpinnings. The law of secession therefore is not merely the law pertaining to the constitutionally prescribed means of amendment. It is more importantly the guarantee or warranty that by following those rules and by observing the immanent (legal) structure of a polity, any result will carry democratic legitimacy. And it carries therefore the risk that the proposal to secede may be accepted, rejected or substantially varied. Of course, this all necessitates a commitment by the political organs to entrust and stimulate the entire population in democratic will-formation, rather than leave the whole controversy to executive action. Yet it would appear that the Canadian government has not fulfilled the promise of democratic legitimacy in the Québec Secession Reference, preferring instead to maintain a patina of executive control over the question. It is to that which I turn next.

139   Baynes, ‘Democracy and the Rechtsstaat’ (n 88) 214 (referring to Habermas, Between Facts and Norms (n 88) 235). 140   Baynes, ‘Democracy and the Rechtsstaat’ (n 88) 209–10; Habermas, Between Facts and Norms (n 88) 154–63.

10 Legislating Rules for Secession? ORIGINS OF THE CLARITY ACT

T

HE RELEASE OF the Québec Secession Reference and its introduction of the (constitutional) duty to negotiate did little to abate the tensions and uncertainties surrounding a prospective third secession referendum in Québec. The reference opinion met with a mixed reaction in Québec, some applauding the opinion, others condemning it. The dividing lines congealed less according to political stripe, federalist and separatist, than according to the preferred interpretation of the Supreme Court’s pronouncement on the obligation to negotiate. Many understood the Court to recognise as matters of constitutional law and practice two things. First, the Canadian federation was divisible at the behest of a local (provincial) majority in an application of the ‘democratic principle’ expounded upon by the Court. Second, a referendum result approving a proposal for secession triggered an obligation on the federal government to negotiate the terms of secession. I have already examined these two points in chapter 9. Stéphane Dion, the then federal Minister for Intergovernmental Affairs, shared in this (mis-) understanding as well.1 The Parti Québecois, comprising the then Québec government, seemed to hold this view as well shortly after the release of the opinion.2 But in the succeeding months, the views of the Québec government hardened against the reference opinion. Presumably the government had realised that any support of the Supreme Court’s position not only obliged the government to comply with the terms of the opinion, but also therefore to acknowledge that the constitutional process would control what Québec had always proclaimed to be pure democracy acting above and beyond mere derivative constitutional principles. Hence, the Québec government began to insist prominently and publicly that it was free to ignore the reference opinion; conduct the next referendum; and proceed with secession as it saw fit, all without interference, restraint or qualification by 1   See, eg S Dion, Testimony, HC Proceedings (16 February 2000) and his Testimony, Senate Proceedings (18 May and 29 May 2000), his ‘Notes for an address by the President of the Privy Council and Minister of Intergovernmental Affairs the Hon. Stéphane Dion on the 2nd reading of Bill C–20’ (14 December 1999) (on file), his ‘Sécession et nationalisme exclusive’ Le Devoir (Montréal, 5 June 1999), ‘Une question claire ne peut inclure la notion de partenariat’ Le Devoir (Montréal, 24 August 1999), ‘Projet de loi sur la question referendum: négocier si c’est claire, ne pas négocier si ce n’est pas claire’ Le Devoir (Montréal, 15 December 1999), and ‘La declaration du premier ministre du Québec, Lucien Bouchard “Nous seuls pouvent decider de notre avenir”’ Le Devoir (Montréal, 16 December 1999). 2   P Authier, ‘Court hasn’t ruled out UDI: Québec insists’ Montreal Gazette, 21 August 1998; B Laghi, ‘PM moves to cool off Québec debate’ Globe and Mail (Toronto), 24 August 1998; R McKenzie, ‘Québec leaders cheer “death” of federal hard line in Québec’ Toronto Star, 21 August 1998 and his ‘How the Court altered everything’ Toronto Star, 23 August 1998; E Stewart, ‘Separation: the new rules’ Toronto Star, 21 August 1998 and his ‘Day of decision’ Globe and Mail, 21 August 1998; see also P Paquette and D Turp, ‘L’offre de partenariat fait partie de la programme souverainiste’ Le Devoir (Montréal, 11 November 1999).



Origins of the Clarity Act 349

the Constitution, a federally-biased Supreme Court, or the rest of Canada.3 Moreover, the Québec government reiterated on several occasions that it was prepared to hold a third referendum on secession, as soon as the ‘winning conditions’ crystallised.4 In light of this positioning by the Québec government, Stéphane Dion seized the tactical advantage of introducing draft legislation ostensibly designed to emphasise the need for a ‘clear question’ and a ‘clear majority’ as grounding any obligation to negotiate the terms of secession. Bill C-26, the ‘Clarity Act’ as it became known, allocated the task of determining the clarity of the referendum question and the referendum result to the House of Commons alone.5 The federal government’s authority to negotiate the terms of secession was then conditioned on a House resolution finding both question and result to be clear. Thus the federal government could legally and legitimately claim no authority to enter negotiations on the terms of a possible secession by a province after a positive result in its secession referendum where the House of Commons had resolved that either the question, the result or both were unclear. The existence of the Clarity Act thus could pre-empt any debate between the federal and Québec governments on whether the federal government ought to enter negotiations or not: that would have been decided by the House of Commons, an elected, national assembly. And should the Québec government emphasise the constitutional technicality of the non-binding nature of the Québec Secession Reference and choose not to observe the principles enunciated therein, and yet purport to secede citing the refusal of the federal government to enter into negotiations, the latter could point to the Clarity Act as valid, binding law governing its own conduct. (Yet as federal legislation, the Clarity Act prima facie binds only the federal government and not a provincial one.) Hence the federal government had its own source of ‘democratic legitimacy’ to call upon, obviously not so much as a substantive point of argument but rather as a means of colouring public and international perceptions in its favour. The Clarity Act sparked rank and bitter opposition in Québec sovereignty circles, where the Act was viewed as an ill-intentioned attack on Québec autonomy and a blatant federal intrusion in the sovereignty referendum process itself.6 The defiant attitude of the Québec government translated itself into hastily drafted rebuttal legislation, An Act respecting the Exercise of the Fundamental Rights and Prerogatives of the Québec People and the Québec State.7 As a retort to the Clarity Act, the Québec statute proclaimed in its first three sections that the Québec people held the right to self-determination, a right founded ‘in fact 3   P Wells, ‘We will set the rules: Québec’ National Post (Toronto), 6 October 1999 and his ‘Rules of the game’ National Post (Toronto), 20 November 1999; M Cornellier, ‘Référendum: Québec Bluffe, affirme Dion’ Le Devoir (Montréal), 25 November 1999; JD Bellevance, ‘Bloc gives ground on referendum’ National Post (Toronto), 9 December 1999; and R Séguin and G Fraser, ‘Québec refuses to let Ottawa call the shots’ Globe and Mail, 10 December 1999. 4   Which urge appeared to subside during December 1999: R Séguin, ‘Bouchard in no rush to call referendum’ Globe and Mail (Toronto), 18 December 1999. 5   An Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Québec Secession Reference, SC 2000 c 26. 6   L Bouchard, ‘Allocution à l’occasion de l’adoption du projet de loi no.99’ (7 December 2000) (on file); R Dutrisac, ‘Un assaut sans précédent contre le Québec, dit Facal’ Le Devoir (Montréal), 11 December 1999 and his ‘Lucien Bouchard: à la défense du droit de choisir’ Le Devoir (Montréal), 16 December 1999; V Dufour, ‘Les quotidiens Anglophones applaudissent Charest et Dion’ Le Devoir (Montréal), 3 December 1999; F Normand, ‘Loi référendaire: front commun contre Ottawa’ Le Devoir (Montréal), 13 December 1999; R Séguin, ‘Québec plans to enshrine its right on secession’ Globe and Mail (Toronto), 15 December 1999 ; and C Clark, ‘Québec to rally Québec against federal law’ National Post (Toronto), 14 December 1999. 7   An Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State, LRQ/RSQ 2000 c E-20.2.

350  Legislating Rules for Secession? and in law’, and the ‘inalienable right to freely decide the political regime and legal status of Québec’. They alone could determine the mode of exercise of their right to choose the political regime and legal status of Québec. And section 4 of the Act stipulated that a majority of 50 per cent plus one vote was sufficient to carry any referendum proposal. The Act also made several other (equally questionable) declarations concerning the ‘Québec State’, deriving its legitimacy from the will of the people: its borders were inviolable, unless it consented; it was sovereign ‘in the areas assigned to its jurisdiction within the scope of constitutional laws and conventions’; and it held certain powers related to international matters and treaties. And as its last tweak of the federal nose, the Act provided in section 13, ‘No other parliament or government may reduce the powers, authority, sovereignty or legitimacy of the National Assembly, or impose constraint on the democratic will of the Québec people to determine its own future’. As it stands, the Act represents little more than enscribed political bile playing itself out in the legislature, rather than on the hustings or in the media.8 Despite all of its grandiloquy in Preamble and text, it is still legislation of a provincial legislature within a constitutional federation, otherwise subject to Canadian constitutional law and principles, the Charter of Rights, and Canadian laws more generally. Although the Québec National Assembly may enact whatever statutory provisions it should wish to have in function of a general principle of parliamentary sovereignty, those legislative acts are incontrovertibly subject to those constitutional laws and principles. And thus the Act must unquestionably and certainly also be read as subject thereto.9 If its provisions are intractably inconsistent with constitutional law and principle, the offending sections are liable to be struck down upon application to the Supreme Court. The Act respecting the Exercise of the Fundamental Rights and Prerogatives of the Québec People and the Québec State was clearly an emotional over-reaction to the Clarity Act. I will spend no further time on this statute. Despite the multitude of protestations that the Clarity Act was unconstitutional in letter and spirit, the Québec government has not chosen to challenge the constitutionality of the Clarity Act in the courts.10 Rather, it opted simply for a legislative counter-blast of its own devise. A constitutional challenge to the Clarity Act by Québec would not only validate the role of the courts and the rule of law in the entire secession debate, but it would clearly bind the Québec government to the judicially-supervised constitutional 8  C Ryan, Consequences of the Québec Secession Reference: the Clarity Bill and Beyond (Toronto, CD Howe Institute Commentary No 139, April 2000) 24. D Turp used it, however, as the basis for his draft constitution for the (independent) State of Québec: M Seymour and D Turp, ‘Le projet d’une union confédérale entre le Québec et le Canada: Les compétences et les institutions d’une union confédérale’ Le Devoir (Montréal), 18 June 2001, his ‘L’union confédérale’ Le Devoir (Montréal), 19 June 2001, his Nous, peuple du Québec: Un projet de constitution du Québec (Québec, Eds Québecois, 2005), and prominently referred to it as re-affirming Québec’s long-standing rights in the face of the ‘anti–democratic’ Clarity Act: ‘The Undemocratic Nature of the Clarity Bill: A Petition for the Withdrawal of Bill C–20’ in D Turp, Le droit de choisir: essais sur le droit du Québec à disposer de lui–même; The Right to Choose: Essays on Québec’s Right of SelfDetermination (Québec, Eds Thémis, 2001) 695, his ‘Québec’s Right to Secessionist Self-determination: the Colliding Paths of Canada’s Clarity Act and Québec’s Fundamental Rights Act’ in ibid 731, and his ‘The Right to Choose: Essay on Québec’s Right of Self-determination’ in ibid 801, 831 ff. 9   See, eg P Hogg, Constitutional Law of Canada, 4th edn (Toronto, Carswell, 1998) para 15.7 (‘reading down’). 10   See, eg Turp, ‘Undemocratic’ (n 8) 696–97 and his ‘The Clarity Bill and the Québec Secession Reference: Shooting Down the Lodestar of Canadian Federalism’ in Turp, The Right to Choose (n 8) 716 (violating federalism principle). See also P Garant, ‘Projet de loi C–20 sur la “clarté”: Des modifications s’imposent’ Le Devoir (Montréal), 1 March 2000; and H Brun, ‘Le Clarity Act est inconstitutionnel’ Le Devoir (Montréal), 23 February 2000.



Origins of the Clarity Act 351

process, one which Québec had hitherto consistently rejected.11 A fortiori, if the challenge were unsuccessful and the Clarity Act were upheld. The Clarity Act can nevertheless be expected to generate a fair number of court cases should Québec ever hold a third referendum for a secession mandate. Launching a constitutional challenge to the Clarity Act could be seen as a means of delaying any resolution and federal government action under the Act, or as a means to return power to Parliament or the federal government, or even as an attempt to force more direct public participation by trying to intervene in the process of deciding on ‘clarity’, or some combination of these options. The constitutional issues arising out of the Clarity Act take a number of forms. It is possible nonetheless to bundle them into two groups. First are claims alleging that the Act itself violates constitutional law, as a federal intervention in provincial jurisdiction, or as an unlawful delegation of power to the House of Commons, or as otherwise limiting parliamentary sovereignty, or as violating some (as yet unspecified) right under the Charter of Rights. Second are the claims arising out of the operation of the Act, being principally framed as violations of some (as yet unspecified) Charter right, as constitutional claims regarding the duties and obligations under the Act, and as administrative law claims concerning those duties and the consultation process. Both groups clearly share in the first instance a common issue on the classification of the nature and effect of the powers allotted to the House of Commons in the Clarity Act over the federal government. The obvious differentiation is between legislative and administrative powers, broadly understood. Whether they are the one or other will determine in large measure not only whether any court challenge may proceed, for legislative powers are generally outside the ambit of judicial review, but how the issues will be structured. But launching constitutional challenges and other judicial review applications against the Clarity Act are for the most part tangentially relevant to the central question of constitutionalising secession. It bears remarking that any secessionist’s challenge to the Act’s constitutionality presents an obvious tactical incongruity. It seems quite out of place to invoke the authority of an institution, namely the courts, so inextricably attached to and representative of the very constitutional order which is sought to be departed from or overthrown. And should the constitutional or other application fail, the secessionist would thus have redoubled his submission to that constitutional order and its laws, the Clarity Act included. Thirdly moreover, the Clarity Act derives its authority from the Québec Secession Reference inasmuch as the Supreme Court of Canada required political actors to evaluate the clarity of a referendum question on secession and the clarity of a majority voting in favour thereof. A successful challenge to the constitutional viability of the Clarity Act would only return everyone to the principles set out in the Québec Secession Reference, and restore the power to decide ‘clarity’ on behalf of the federal government to the Cabinet itself. Litigation hardly seems worth the effort, even if it should have a reasonable prospect of success. Instead, the importance of the Clarity Act depends not so much on its serving as fodder for judicial review applications under various heads of constitutional and administrative law, nor on its ostensible purpose to clarify certain terms and processes in 11   Hence its position in Bertrand v Québec (Attorney General) (1995) 127 DLR (4th) 408 (Que SC) and Bertrand v Québec (AG) (1996) 138 DLR (4th) 481 (Que SC), and Reference re Secession of Québec [1998] 2 SCR 217 (‘Québec Secession Reference’).

352  Legislating Rules for Secession? advance of a secession referendum. On these points it is an anti-climax, mere windowdressing. Indeed, it demonstrates a point made in chapter 8, that reducing such foundational matters to text, to positive law, tends to redirect attention away from those issues to more tangential ones. Its importance lies rather in the interpretation it imposes on the Québec Secession Reference opinion, and on the nature of ‘constitutional secession’ in the Canadian context. In order better to understand how the Act imports subtle changes into the Canadian constitutional structure, I will avoid a direct legal approach assessing each separate issue. Instead I can answer those issues indirectly by examining the Act in terms of what it does and does not do. That, however, requires me now to sketch out what the Act provides. WHAT THE CLARITY ACT SAYS

For what the Clarity Act purports to regulate, it is a decidedly short piece of legislation, some three sections long, with an uncommonly long Preamble.12 The Clarity Act governs the authority of the federal government to enter into ‘negotiations on the terms on which a province might cease to be part of Canada’. Specifically, it purports to prohibit the federal government from entering into such negotiations unless the House of Commons determines in advance that the referendum question was clear, and that there exists a ‘clear expression of will by a clear majority of the population of the province’. For the sake of convenience, I reproduce the relevant sections here:13 1. (1)  The House of Commons shall, within thirty days after the government of a province tables in its legislative assembly or otherwise officially releases the question that it intends to submit to its voters in a referendum relating to the proposed secession of the province from Canada, consider the question and, by resolution, set out its determination on whether the question is clear. . . . (3)  In considering the clarity of a referendum question, the House of Commons shall consider whether the question would result in a clear expression of the will of the population of a province on whether the province should cease to be part of Canada and become an independent state. . . . (6)  The Government of Canada shall not enter into negotiations on the terms on which a province might cease to be part of Canada if the House of Commons determines, pursuant to this section, that a referendum question is not clear and, for that reason, would not result in a clear expression of the will of the population of that province on whether the province should cease to be part of Canada. 2. (1)  Where the government of a province, following a referendum relating to the secession of the province from Canada, seeks to enter into negotiations on the terms on which that province might cease to be part of Canada, the House of Commons shall, except where it has determined pursuant to section 1 that a referendum question is not clear, consider and, by resolution, set out its determination on whether, in the circumstances, there has been a clear expression of a will by a clear majority of the population of that province that the province cease to be part of Canada. . . . 12   On the growing use of longer Preambles in federal statutes, see, eg K Roach, ‘The Uses and Audiences of Preambles in Legislation’ (2001) 47 McGill LJ 129. The foundation is Interpretation Act RSC 1985 c I-21 s 13 (‘The preamble of an enactment shall be read as a part of the enactment intended to assist in explaining its purport and object’). 13   Omitted is s 1(2) which extends the 30 days referred to in s 1(1) to 60 days where the tabling of the provincial referendum question occurs during a federal election.



What the Clarity Act Says 353 (4)  The Government of Canada shall not enter into negotiations on the terms on which a province might cease to be part of Canada unless the House of Commons determines, pursuant to this section, that there has been a clear expression of a will by a clear majority of the population of that province that the province cease to be part of Canada.

In order for the House of Commons to arrive at its determination on the clarity of the two points, it must take into account the views of certain itemised political actors, and the views of any other parties it considers to be relevant: 1. (5)  In considering the clarity of a referendum question, the House of Commons shall take into account the views of all political parties represented in the legislative assembly of the province whose government is proposing the referendum on secession, any formal statements or resolutions by the government or legislative assembly of any province or territory of Canada, any formal statements or resolutions by the Senate, any formal statements or resolutions by the representatives of the Aboriginal peoples of Canada, especially those in the province whose government is proposing the referendum on secession, and any other views it considers to be relevant. (emphasis added) 2. (3)  In considering whether there has been a clear expression of a will by a clear majority of the population of a province that the province cease to be part of Canada, the House of Commons shall take into account the views of all political parties represented in the legislative assembly of the province whose government proposed the referendum on secession, any formal statements or resolutions by the government or legislative assembly of any province or territory of Canada, any formal statements or resolutions by the Senate, any formal statements or resolutions by the representatives of the Aboriginal peoples of Canada, especially those in the province whose government proposed the referendum on secession, and any other views it considers to be relevant. (emphasis added)

The Clarity Act further states that secession in the Canadian context requires a con­ stitutional amendment preceded by negotiations involving at least all the provincial governments, and the government of Canada. And the Clarity Act further prohibits the government from tabling a resolution for a constitutional amendment regarding secession unless the negotiations have addressed certain relevant issues. Again, I reproduce below the relevant sections for ease of reference: 3. (1)  It is recognized that there is no right under the Constitution of Canada to effect the secession of a province from Canada unilaterally and that, therefore, an amendment to the Constitution of Canada would be required for any province to secede from Canada, which in turn would require negotiations involving at least the governments of all of the provinces and the Government of Canada. (2)  No Minister of the Crown shall propose a constitutional amendment to effect the secession of a province from Canada unless the Government of Canada has addressed, in its negotiations, the terms of secession that are relevant in the circumstances, including the division of assets and liabilities, any changes to the borders of the province, the rights, interests and territorial claims of the Aboriginal peoples of Canada, and the protection of minority rights.

It would seem from this cursory review of the Clarity Act that the statute does enact the basic elements expounded in the opinion of the Court in the Québec Secession Reference and as self-consciously proclaimed in the uncomfortably long title to the Act: ‘An Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Québec Secession Reference’. The Court had there stressed that what constituted a ‘clear question’ and a ‘clear majority’ (in both Québec and in Canada, on the facts of the case) was a qualitative evaluation based on the circumstances at hand and

354  Legislating Rules for Secession? made by the relevant political actors.14 The determination of ‘clarity’ was an exclusively political matter, one not apt for judicial review. Hence through the Clarity Act, Parliament has charged the House of Commons, a national, elected, parliamentary assembly with the duty of determining the issue, and then of instructing the federal government accordingly. It does not stipulate an acceptable question, nor the requisite majority necessary to represent a clear expression of will by a clear majority of the population of the province. Instead, it leaves these open, subject to evaluation based on the circumstances, and after consultation with other political functionaries, also in accord with the Court’s opinion.15 So apart from conferring the duty to decide on the House of Commons (alone and excluding the Senate), the Clarity Act would appear not to do anything at all, except perhaps translate aspects of the Québec Secession Reference into statutory form. For legislation proclaiming itself as ‘An Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Québec Secession Reference’, this seems in and of itself most perplexing. What does the Act actually do to ‘give effect to the requirement for clarity’, if anything at all? And more broadly, what makes it necessary or advisable to give statutory legal form to constitutional principles which already have juridical legal form? On this latter point, one possible and important answer was considered in chapter 9: inasmuch as the legal character effect of reference opinions, narrowly and constitutionally construed, are merely advisory in nature, they are not binding on the parties, governments and legislatures involved. But questioning the differentiation between juridical and statutory law in this context, I would argue, takes us beyond strategic and formalistic considerations, and returns us to the idea of the transformative event and the distinction between active and passive norm recognition. A LIMINAL ISSUE: CHARACTERISING THE POWERS UNDER THE ACT

A necessary first step to an analysis of the Clarity Act is characterising the nature of the powers and obligations allocated under it. The characterisation will, in turn, reflect on the constitutional authority of Parliament to enact it in the first place. The Clarity Act addresses three powers. First, the House of Commons exercises a power to decide, expressing its decision by resolution. That power to decide includes (1) a duty to consider whether the question would result in a clear expression of a will to secede; (2) a duty to ‘take into account’ the views of certain parties; (3) a discretion to include in that account other views it considers relevant; (4) a duty to ‘take into account’ the size of the majority and the percentage of eligible voters; and (5) a discretion to include in that account any other matters or circumstances it deems relevant. These are duties of some sort, given the use of ‘shall’ in the respective provisions.16 Secondly, the federal government exercises a power to negotiate the terms on which a province might secede, on condition that the House of Commons has resolved that the question and majority are ‘clear’. Expressed differently, the government has no power to enter such negotiations absent the authorisation of the House. Thirdly, a Minister has the power to table a constitutional amendment to effect the secession of a province on condition that certain   Québec Secession Reference (n 11) paras 93, 96, 100, 101, 153.   ibid paras 100, 153. 16   Interpretation Act RSC 1985 c I-21 s 11: ‘The expression “shall” is to be construed as imperative and the expression “may” as permissive’. 14 15



A Liminal Issue: Characterising the Powers Under the Act 355

issues have been ‘addressed’ in the secession negotiations. Similarly, alternatively put, a Minister has no power to table a proposed amendment unless the negotiations have addressed those matters. How to fit each of these three powers on a spectrum which runs from the legislative to the executive and administrative through to the judicial and quasi-judicial depends less upon the origins of the power and more upon the circumstances of their exercise.17 Whether the power to decide on the clarity of a referendum question and referendum result was originally held by the federal government under its general policy-making powers or its general executive competence and power to initiate constitutional amendments, is of little relevance given that those powers have been transformed after a fashion into statutory form. Instead, what is of relevance is whether the resolution process is a legislative one, an executive or administrative one, or a quasi-judicial one. This will colour any assessment of the duties concerning consultation. For as we move along the spectrum from the legislative to the quasi-judicial, the standards applicable and the intensity of judicial review increase proportionately.18 At the legislative end, justiciability extends only to compliance with the Constitution Acts, 1867 to 1982.19 As we move along the spectrum to the executive, a duty of fairness may also apply.20 Arriving at the quasi-judicial, there the principles of natural justice unquestionably apply. And likewise, the closer we rate these powers to administrative and quasi-judicial, the greater the likelihood that any judicial review of their exercise will extend not merely to conditions and procedures for its exercise, but also to the propriety of its exercise and the content of the decision itself. With these general principles in mind, I turn now to a consideration of the powers ascribed to the House of Commons. We can exclude at the start the obvious: clearly the Act does not empower the Commons nor the federal government directly to adjudicate on any person’s rights or interests. These latter are, of course, implicated in secession negotiations, but only in virtue of the constitutional nature of those negotiations and the consequential constitutional amendments. Those rights and interests are derivative upon the constitutional character of the acts taken by the Commons and the government. Hence, we cannot reasonably say that the resolution and negotiation process in any way approaches the quasi-judicial end of the classification spectrum. Instead and put bluntly, the Clarity Act appears to establish a scheme to authorise the federal government to negotiate secession. With some reservation on inviting too close a comparison to the law of agency, it is possible to view the House of Commons as empowering its agent, the federal government, to negotiate on its behalf with a secessionist province the terms of secession. Its agent would then return to the House with a proposal for constitutional amendment to be considered in the ordinary course. A resolution on clarity does not result in any constitutional amendment on secession thereafter tabled in the 17   See, eg Black v Canada (Prime Minister) (2000) 199 DLR (4th) 228 (Ont CA); Canada (AG) v Inuit Tapirisat [1980] 2 SCR 735; 2747–3174 Que Inc v Québec (régie des permis d’alcool) [1996] 3 SCR 919; Mooring v Canada [1996] 1 SCR 95; Operation Dismantle v The Queen [1985] 1 SCR 441; Thorne’s Hardware v The Queen [1983] 1 SCR 106; Canada (House of Commons) v Vaid [2005] 1 SCR 667; McEvoy v NB (AG) [1983] 1 SCR 704; Harvey v New Brunswick (AG) [1996] 2 SCR 876; New Brunswick Broadcasting v Nova Scotia (Speaker) [1993] 1 SCR 319; Martineau v Matsqui Institution Disciplinary Board (No 2) [1980] 1 SCR 602; and see also Council of Civil Service Unions and others v Minister for the Civil Service [1985] 1 AC 374. 18   Canada v Inuit Tapirisat (n 17); 2747–3174 Que Inc v Québec (n 17). 19   Thorne’s Hardware v The Queen (n 17); Authorson v Canada (AG) [2003] 2 SCR 40. 20   Martineau v Matsqui (No 2) (n 17); Canada v Inuit Tapirisat (n 17); Council of Civil Service Unions and others v Minister for the Civil Service [1985] 1 AC 374.

356  Legislating Rules for Secession? House being passed as such. At least the amendment procedures set out in Part V of the Constitution Act 1982 apply, if not also the provisions of the Act respecting Constitutional Amendments.21 And in any event the Clarity Act does not provide otherwise. Moreover, it is significant that the Clarity Act refers to a ‘resolution’ of the House of Commons. A Commons resolution, in contradistinction to an order or Bill, is merely a statement of intention or opinion on a matter.22 A resolution is not legislation, being a regulation of a public matter or of a matter in the public interest, but relates to the regulation of the internal workings of the House of Commons. The unchallenged authorities of Stockdale v Hansard, Bradlaugh v Gossett and Bowles v Bank of England establish this proposition.23 So we may conclude that the power ascribed to the House of Commons is not a legislative one. Accordingly, although the Act remains susceptible to evaluation of Parliament’s competence so to legislate under Constitution Act 1867 section 91, this interim conclusion nonetheless removes the need to assess the Clarity Act as an unconstitutional delegation of legislative authority or as an attempt to bypass the prescribed legislative process by excluding the Senate.24 Two possibilities remain. Either the Act and powers relate to the internal workings, privileges and immunities of Parliament, the House of Commons in particular, and so are at best reviewable only under the Charter of Rights.25 Or the powers are executive or administrative in nature, and are subject not only to review under the Constitution Acts, 1867 to 1982, but also under applicable administrative law. To take the latter point first, classifying the Commons’ power as ‘executive’ in nature suggests that it originates in the prerogative powers of the federal government. Dicey’s description of the prerogative remains the locus classicus, that it is ‘historically and as a matter of actual fact nothing else than the residue of discretionary or arbitrary author21   Act respecting Constitutional Amendments SC 1996 c 1 (conditions of prior provincial assent to proposed federal resolution to amend the Constitution Acts, 1867 to 1982). 22   See generally D Limon and W McKay, Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 22nd edn (London, Butterworths, 1997); and R v Electricity Commissioners ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171 (CA) (the empowering statute actually provided expressly that an order of the Commissioners would become law upon ministerial confirmation and approval in resolutions by both Houses). Absent the express statutory provisions, the resolutions could not have imparted the legislative stamp; Bowles v Bank of England [1913] 1 Ch 57 (Ch) (tax approved by resolution not collectible until embodied in Act of Parliament). 23   Stockdale v Hansard (1839) 112 ER 1112 (a Commons resolution that the power to publish a libellous document by order of that House was an essential feature of the privileges and immunities of the House and did not insulate nor exempt from liability the libel in the document); Bradlaugh v Gossett (1884) 12 QBD 271 (CA) (the House regulates by resolution its own internal business, over which the courts have no jurisdiction); Bowles v Bank of England (n 22). See also AV Dicey, An Introduction to the Study of the Constitution (ECS Wade (intro), London, Macmillan/St Martin’s Press, 1967) 55–56. And recognised by P Monahan, Doing the Rules (Toronto, CD Howe Institute Commentary No 135, February 2000) 29. 24   On delegation, see generally Hogg, Constitutional Law (n 9) ch 14. Regarding the constitutional status of the powers and relationship of the various institutions of the parliamentary system, see Reference re Powers of Disallowance [1938] SCR 78; Reference re Initiative and Referendum Act (1919) 48 DLR 8; Reference re Authority of Parliament in relation to the Upper House [1980] 1 SCR 54. The question whether the Clarity Act unconstitutionally excluded the Senate from the decision arose only before the Senate Committee: P Monahan, Testimony, Senate Proceedings (29 May 2000); P Garant (29 May 2000); J Magnet (1 June 2000); P Hogg (5 June 2000); R Howse (8 June 2000); W Estey (15 June 2000); J McEvoy (19 June 2000); and S Dion (19 June 2000). 25   Bradlaugh v Gossett (n 23). See also Harvey v New Brunswick (n 17) (majority not considering whether the power to expel and disqualify a MLA subject to the Charter, but merely assuming it to be so (as argued), its limiting s 3 was justified under s 1 of the Charter); New Brunswick Broadcasting v Nova Scotia (n 17) (Charter applies in principle, but powers in question may be exempt); House of Commons v Vaid (n 17) (the same); Ontario (Speaker) v Ontario HRC (2001) 201 DLR (4th) 698 (Ont CA) (Standing Orders providing for a prayer to open sittings within exemption of parliamentary prerogative).



A Liminal Issue: Characterising the Powers Under the Act 357

ity, which at any given time is legally left in the hands of the Crown’.26 These powers are customarily taken to include the making of treaties, national defence and security, the grant of mercy and of honours, the dissolution of Parliament, and the appointment of Crown ministers. Characteristic of them is that they represent the power and the right of the executive ‘to do lawful acts affecting the rights of the citizen, whether adversely or beneficially’.27 As such, it is generally accepted that the prerogative is not only a part of the common law, subject to the supervisory jurisdiction of the courts, but also capable of being reduced to and qualified by statute.28 And as such, these powers are thus subject to the range of constitutional and administrative law norms.29 Where they have not been rendered into legislation, the central legal issue is the degree to which the courts may enquire into the exercise of a prerogative power. Be that as it may, what actually concerns us here is whether the powers under the Clarity Act are ‘prerogative powers’. The power of the federal government to undertake constitutional reform and initiate the process of constitutional amendment, both in general terms and under the particular crisis circumstances contemplated by the Act, hardly seems to meet the core concept of a power, in Lord Roskill’s words in the GHCQ case, ‘to do lawful acts affecting the rights of the citizen, whether adversely or beneficially’. This power of the federal executive seems indisputably more closely linked with the internal workings of Parliament, and more broadly the general constitutional structure and principles of the Canadian parliamentary system, than such a form of discretionary and arbitrary power. The power to initiate legislation, and by extension to set in motion the legislative process for constitutional amendment, are therefore intrinsically not susceptible to judicial review.30 In effect, the Clarity Act establishes a certain process and preconditions for the tabling of legislation in Parliament to provide for the secession of a province. Subject to a strong reservation as to the above, it might be argued that the powers classified here as relating to constitutional initiatives might better be considered as relating to international agreements and treaty–making powers, in light of the likelihood of 26  Dicey, Introduction (n 23) 424. See I Loveland, Constitutional Law, Administrative Law, and Human Rights 4th edn (Oxford, Oxford UP, 1996) 1–26 (differentiating between the narrower view as ascribed to Blackstone; and a wider one, to Dicey); Hogg, Constitutional Law (n 9) para 1.9; S Payne, ‘The Royal Prerogative’ in M Sunkin and S Payne (eds), The Nature of the Crown: A Legal and Political Analysis (Oxford, Oxford UP, 1999) 77. P Monahan, Testimony, Senate Proceedings (29 May 2000) also sees it as a prerogative power. 27   Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 (‘GCHQ’), and adopted by Laskin JA in Black v Canada (n 17). See also L Sossin, ‘The Rule of Law and the Justiciability of Prerogative Powers: A Comment on Black v. Chretien’ (2002) 47 McGill LJ 435. 28   Entinck v Carrington (1765) 95 ER 807 (KB) (search and seizure not a prerogative power); Proclamations Case (1611) 77 ER 1352 (no power to prohibit construction by royal proclamation); AG v De Keyser’s Royal Hotel [1920] AC 508 (HL) and Burmah Oil v Lord Advocate [1965] AC 75 (HL) (compensation for property occupied/destroyed in time of war) (though see R v Secretary of State for Home Office ex parte Northumbria Police [1989] QB 26 (CA)); Operation Dismantle v The Queen (n 17) (per Wilson J); Black v Canada (n 17). See also Hogg, Constitutional Law (n 9) para 1.9; B Hadfield, ‘Judicial Review and the Prerogative Powers of the Crown’ in M Sunkin and S Payne, The Nature of the Crown: A Legal and Political Analysis (Oxford, Oxford UP, 1999) 197, and Payne ‘Royal Prerogative’ (n 26) 101 ff. 29   Friends of the Oldman River v Canada [1992] 1 SCR 3, and Air Canada v BC [1989] 1 SCR 1161. A declaration may issue to make clear the limited and restricted effect in law that such a resolution may have: Bowles v Bank of England. 30   Reference re CAP [1991] 2 SCR 525; Penikett v Canada (1987) 45 DLR (4th) 108 (BC CA) (leave to appeal ref’d [1988] 1 SCR xii); and Sibbeston v Northwest Territories (AG) [1988] 2 WWR 501 (NWT CA). See also (AG) Canada v Inuit Tapirisat (n 17); Thorne’s Hardware v The Queen (n 17); and Martineau v Matsqui (No 2) (n 17).

358  Legislating Rules for Secession? the secessionist regime establishing an independent state at international law. In other words, the House of Commons would be advising the government in respect of what steps it may take with a ‘foreign power’. Under the general principles relating to parliamentary control of the prerogative, it is certainly open to Parliament to enact guidelines concerning the federal government’s relations with foreign powers. But treating the power of decision as such a prerogative matter could create difficulties for both Parliament and the federal government in their approach to the nature and character of the provincial secessionist regime with whom they might have to open negotiations. It would effectively prejudge the secessionist government as a ‘foreign power’. This would strongly presume a secessionist outcome to any negotiations and would imply right at the start of the whole process the defeat of the constitutional discussion and reconciliation process foreseen by the Québec Secession Reference. In effect, such a characterisation would appear inevitably to lead to the dissolution of Canada. Accordingly, it is neither prudent nor justifiable that the powers under the Clarity Act ascribed to the House of Commons would be considered as prerogative powers. This leaves us with the final category of matters relating to the inner workings of Parliament, and its traditional privileges and immunities. As emphasised above, the terms of the Clarity Act strongly and clearly suggest that it is legislation concerned with the legislative process, and how Parliament would institutionalise that aspect of said process dealing with secession amendments to the Constitution Acts, 1867 to 1982. This conclusion was drawn from what the Act applied to and how, as well as the use of the term ‘resolution’. Accordingly, this determines what justiciable issues may reasonably be said to arise out of the Clarity Act. Specifically, this characterisation of the powers and obligations of the Act limits our legal evaluation to questions of constitutionality, including those invoking the Charter of Rights. It is settled law that the traditional privileges and immunities, and the internal workings of Parliament, are all exempt from judicial scrutiny. But matters which have been reduced to statute are in principle subject to review under the Constitution Act 1867 (relating to parliamentary competence) and under the Constitution Act 1982 (relating to possible violations of rights and freedoms).31 BEING CLEAR ON THE CONSTITUTIONAL QUESTIONS

As federal legislation dealing with matters occurring in one province, yet having national repercussions, the Clarity Act invites constitutional review on a number of points. First and foremost we ought to assure ourselves that Parliament has the competence to legislate on these matters, that they are not properly within the sphere of provincial jurisdiction. This is a question of classifying the matter of the Act under one of the heads of Parliamentary legislative power in section 91 of the Constitution Act 1867. Secondly and correlative to this, even if Parliament has jurisdiction in these fields, it must be considered whether Parliament has improperly and incorrectly exceeded its powers in dealing with the matters under the Act. This invokes more general constitutional law principles, specifically Parliamentary sovereignty and the doctrine of vagueness. Lastly, we must 31   Reference re Authority of Parliament (n 24); Reference re Resolution to Amend the Constitution [1981] 1 SCR 753; Harvey v New Brunswick (n 17); New Brunswick Broadcasting v Nova Scotia (n 17) 359 ff (Lamer CJ), 371 ff (McLaughlin J); and Ontario (Speaker) v Ontario HRC (n 25).



Being Clear on the Constitutional Questions 359

consider whether the Clarity Act stands, or could be, in breach of any of the rights and freedoms guaranteed under the Charter of Rights. No Interference with Québec’s Referendum Jurisdiction With the greatest of respect to certain commentators, Turp, Brun and Garant in particular, it verges on the patently absurd to suggest that the Act directly and improperly interferes with the Québec referendum process.32 Nowhere, on a plain reading of the Act, is it to be found that the House of Commons assumes the authority to impose a federally chosen question or majority percentage in a provincial referendum on secession. The role of the House of Commons is a reactive and not proactive one, as seen from sections 1 and 2 of the Clarity Act. By the clear language of the legislation, the House of Commons reviews a referendum question and the majority won as set by the provincial government and makes its determination thereupon, in order to resolve to instruct the federal government to enter negotiations with a provincial secessionist regime. The Act does not purport to dictate what the question must be, nor does the Act interfere with the formulation of a question in a provincial secession referendum. Nor does it specify what percentage of votes ought to constitute a ‘clear’ majority. The provincial government is free to set whatever question it may choose. Likewise, it is free to consider whatever majority it wishes as one sufficient for it to call for secession. As is clear from the Québec Secession Reference, the Supreme Court indicated quite clearly and repeatedly that it was for the various political actors to evaluate the question posed and the majority obtained on a referendum vote.33 It is nowhere to be found in the Québec Secession Reference that the provincial government may set the question and thus fix the evaluation of that question for all other political actors in the secession process. Just because the provincial government sets a question does mean that it is ‘clear’ for the rest of the political actors involved in the secession crisis. In other words, the Québec government, for example, is free and unimpaired by any federal or other constitutional principle in the setting of its own referendum question, in the language that it chooses. But it follows that the other actors in the secession process, notably the federal government and the other provinces, are equally free and unimpaired by any Québec legislation to assess in their own right whether in their view the question and the majorities obtained are clear. Hence, the provincial government bears the responsibility and risk in the formulation of its question that it be seen objectively to be clear or unclear by the other political actors. Consequently, in view of the very clear language of the Clarity Act there is no question as to a federal intervention in a provincial sphere of jurisdiction. I can frame this summarily in constitutional terms as follows. The Clarity Act is valid federal legislation, within the legislative powers ascribed to Parliament under the 32   Turp, ‘Undemocratic’ (n 8) 696–97, his ‘The Clarity Bill and the Québec Secession Reference: Shooting Down the Lodestar of Canadian Federalism’ in his The Right to Choose (n 8) 716 (violating federalism principle) and his comments in HC Proceedings (his approach and questions to witnesses as a member of the Commons Committee); P Garant, ‘Projet de loi C-20 sur la “clarté”: Des modifications s’imposent’ Le Devoir (Montréal), 1 March 2000 and his Testimony, Senate Proceedings (29 May 2000); H Brun, ‘ Le Clarity Act est inconstitutionnel’ Le Devoir (Montréal), 23 February 2000; J Facal, Testimony, HC Proceedings (24 February 2000); and J Couture, Testimony, HC Proceedings (21 February 2000). 33   Québec Secession Reference (n 11) paras 100, 101, 153.

360  Legislating Rules for Secession? Constitution Acts, 1867 to 1982. The matter, or ‘pith and substance’, of the Clarity Act concerns the powers of the House of Commons and federal government in a specific constitutional situation. The nature of the controls placed on the federal government and the powers conferred on the House of Commons pertain to the inner workings of the House. They certainly do not extend to the constitutional structure of parliamentary governance which could potentially be outside the competence of Parliament.34 The Parliament certainly has jurisdiction to regulate the Commons and federal government, under either Constitution Act 1982 section 44 or under Parliament’s general residual jurisdiction under Constitution Act 1867 section 91. Section 91 of the Constitution Act 1867 confers on Parliament the residual power to make laws for the peace, order and good government of Canada, of relevance here being generally matters of national concern.35 Concentrating on the process of resolution, authorisation and tabling of amendments as set out in the Clarity Act, it is justifiably argued that these relate to the powers and authority of the federal government and those of the Commons. On its face, this is certainly a matter ‘in relation to the executive government of Canada’, as provided in Constitution Act 1982 section 44. If we concentrate on the circumstances in which this process would arise, namely a secession crisis, the Clarity Act can fit easily within the test for ‘national concern’ set out in Ontario (AG) v Canada Temperance Federation.36 This requires the subject matter of the legislation to go ‘beyond local or provincial concern or interests and must from its inherent nature be the concern of the Dominion as a whole’. The possible dissolution of the country and the role of the federal government in negotiations having that as a possible outcome, surely makes the subject matter indisputably one of national concern. Beyond these formal tests, the purpose, effect and colourability of the Clarity Act also all relate to what is exclusively federal jurisdiction.37 The purpose of the Act, beyond its direct legal effects, is to make the decision process concerning ‘clarity’ somewhat more transparent and engage the whole of the Commons (rather than just the Cabinet) in those deliberations. It is not to interfere with provincial jurisdiction to set a question and evaluate the political support in terms of outcome. The effect of the Act is most direct upon the federal government. The Act only controls the actions of the federal government. Inasmuch as a resolution declaring no ‘clear’ question may affect voting in a province, or one declaring no ‘clear’ expression of a will to secede may undermine a province’s demand for negotiation, these are incidental to the primary thrust of the Act. A province may nonetheless decide to proceed with a referendum on an ‘unclear’ (to federal stand­ ards) question. And it may nonetheless call for negotiations for constitutional renewal. And for all the above reasons, it cannot reasonably be argued that the Act is colourably legislation controlling a provincial secession referendum. 34   Reference re Authority of Parliament (n 24) (proposed amendments to the authority of the Senate in the legislative process were contrary to the constitutional structure of parliamentary governance, and thus could not be enacted by ordinary legislation, but rather invoked the constitutional amendment process). 35   Reference re Regulation and Control of Radio Communication [1932] AC 284 (PC); Reference re AntiInflation Act [1976] 2 SCR 373; R v Crown Zellerbach [1988] 1 SCR 401. See also Hogg, Constitutional Law (n 9) ch 17, who identifies three specific categories to ‘peace, order and good government’, namely the ‘gap’ branch (para 17.2), the ‘national concern’ branch (para 17.3), and the ‘emergency’ branch (para 17.4). 36   Ontario (AG) v Canada Temperance Federation [1946] AC 193. 37  Hogg, Constitutional Law (n 9) para 15.5 citing Alberta (AG) v Canada (AG) [1939] AC 117 and R v Big M [1985] 1 SCR 295 (purpose); Central Canada Potash v Saskatchewan [1979] 1 SCR 42; Saumur v City of Québec [1953] 2 SCR 299 (effect); Re Upper Churchill Water Rights [1984] 1 SCR 436; and R v Morgentaler (No 3) [1993] 3 SCR 463 (colourability).



Being Clear on the Constitutional Questions 361

No Clear Violations of the Charter of Rights As legislation, the Clarity Act is prima facie subject to the Charter of Rights and Freedoms. Even though the Clarity Act refers to matters properly characterised as relating to parliamentary sovereignty and that body’s traditional privileges and immunities, Harvey v New Brunswick (Speaker) strongly suggests that reducing those matters to statute renders unavoidably those matters subject to scrutiny under the Charter of Rights.38 And even without the authority of Harvey, actions and decisions taken under the Act affecting rights and freedoms may also be subject to the Charter of Rights.39 In Operation Dismantle v The Queen, the Supreme Court held that a Cabinet policy decision concerning foreign policy, specifically to allow testing of American cruise missiles over Canadian soil, was subject to evaluation under the Charter of Rights.40 But as a critical element thereto, the rights of individuals must actually be threatened or actually be violated by government action. In that case, the claim to prohibit the testing of cruise missiles and to reverse the Cabinet decision failed because of an absence of a patent link between the alleged breach of section 7 rights (concerning life, liberty and the security of the person) and the nuclear holocaust alleged to follow upon American policy of this sort. What individual rights are at stake here? Whether or not a case can be made out that the Clarity Act, or any act taken under it, violates a Charter right is uncertain. In the instant case of a Commons’ evaluation of ‘clarity’, the question of a link between individual rights and government action is all the more pressing by its absence. Of course, secession per se would perhaps be considered to violate Charter rights given the precedent of Bertrand v. Québec (No 1).41 But a deter­ mination of ‘clarity’ pertains to the relationship between the House of Commons and the federal government and not to the relationship between the latter and citizens. The Act encapsulates a particular relationship between the House of Commons and the federal government; likewise, the process of constitutional bargaining between federal and provincial governments. This confirms the procedural, political cum constitutional nature of the subject matter of the Act and the actions taken under it. Indeed, as the Supreme Court was ever mindful to reiterate, the process of evaluation clarity was preeminently a political question, one whose complex character rendered it unsuitable for judicial determination.42 This would suggest that the subject matter of the Act does not relate to the relationship between public institutions and individuals.43 It does not implicate directly thereby any private rights or individual rights.44 Moreover, the assessment process itself offers the guarantee that individual concerns and individual rights would 38   Harvey v New Brunswick (n 17); and see Osborne v Canada (Treasury Board) [1991] 1 SCR 69 per Sopinka J (regarding the reviewability and enforceability of constitutional conventions when reduced to statute). 39   Operation Dismantle v The Queen (n 17) and affirmed in Canada (Auditor-General) v Canada (AG) [1989] 2 SCR 49. 40   Operation Dismantle v The Queen (n 17). 41   Bertrand v Québec (AG) (1995) 127 DLR (4th) 408 (Que SC). 42   Québec Secession Reference (n 11) paras 98–101, 153. 43   See, eg Hogan v Newfoundland (AG) (2000) 183 DLR (4th) 225 (Nfld CA) (leave to appeal ref’d 191 DLR (4th) vi) (Terms of Union are part of the Constitution and not subject to modification by an alleged private agreement between public officials and private citizens); Martin v Ontario (2004) OJ No 2247 (20 January 2004) (Ont SC, Nordheimer J) (no constitutional basis to prevent the Minister of Finance introducing a budget). 44   Penikett v Canada (n 30), citing Lamer J in Reference re s 94(2) MVA (1985) 24 DLR (3rd) 536 (SCC).

362  Legislating Rules for Secession? be addressed in the overall process. The House of Commons is an elected body and the concept of elected representation itself encompasses the idea that an elected representative would consult and mirror the interests of his constituents. The House of Commons is obliged under the Clarity Act to consult a number of political actors and to consider any other material it deems relevant. This might include public hearings. All this reenforces the suggestion that there are no rights under the Charter directly at stake in the resolution process of the Clarity Act. We must recognise that the Act and decisions taken under it are matters intimately related to constitutional structures and constitutional principles. The initiation of and deliberation on constitutional amendments are themselves coloured as constitutional principles.45 The Charter of Rights cannot prevent constitutional amendment. In Penikett v Canada, the government for the Yukon Territory challenged the Meech Lake Accord on a number of points, including the failure to include the Yukon in the negotiating round, and on the contents of the Accord as they related to the Yukon.46 The Court of Appeal for the Yukon dismissed the claims prior to trial as non-justiciable, pertaining as they did to the legislative process for seeking constitutional amendment.47 When the federal government initiated deliberations, convened negotiations among the provincial parties which ultimately led to the Accord, the government acted within the purview of the amendment process under Part V of the Constitution Act 1982 (and constitutional principles in general). One part of the Constitution Acts, 1867 to 1982 cannot be used to undermine, invalidate or otherwise qualify other parts.48 This reasoning was adopted in the like case of Sibbeston v Canada, brought about the same time, but concerning the Northwest Territories.49 Although the Clarity Act is not constitutional legislation per se, it reflects and purports to effect constitutional principles as outlined in the Québec Secession Reference. The duty to negotiate represents such a constitutional principle, as do the fundamentally unwritten constitutional principles implicated in the amendment process according to the Québec Secession Reference.50 Thus any challenge to the Clarity Act treads a narrow path of differentiating a constitutionally coloured obligation or act from an executive of legislative one which is otherwise normally subject to the Charter of Rights. Any challenge based on the Charter of Rights comes perilously close to an improper attempt to play one set of constitutional principles against another. Accordingly, it is unlikely that a Charter challenge of the bare terms of the Clarity Act would succeed. No Vagueness to the Act’s Provisions Some commentators from Québec, Garant in particular, have suggested that the Clarity Act may be unconstitutional because the ability of the House of Commons to consider ‘any other views it considers to be relevant’ in evaluating the clarity of the question and   Sibbeston v Northwest Territories (n 30); Penikett v Canada (n 30).   Penikett v Canada (n 30). 47   Relying on Martineau v Matsqui (No 2) (n 17); Bates v Lord Hailsham [1972] 3 All ER 1010 (HL); see also NWAC v Canada [1994] 3 SCR 627; and Hogan v Newfoundland (n 43). 48   Penikett v Canada (n 30), citing Reference re Bill 30, An Act to Amend the Education Act (Ont) [1987] 1 SCR 1148; and see also Québec Secession Reference (n 11). 49   Penikett v Canada (n 30). 50   Québec Secession Reference (n 11) paras 88, 91–94, 98, 104. 45 46



Being Clear on the Constitutional Questions 363

the majority, and further its ability to consider ‘any other matters it considers to be relevant’ in its evaluation of the majority, is an overbroad or vague provision.51 Grounded in the Constitution Act 1867, a claim that legislation is overbroad or vague pertains to its character and classification under one of the federal or provincial heads of jurisdiction in sections 91 and 92. But the Clarity Act sits very comfortably and securely within the ambit of federal jurisdiction. The Clarity Act falls well within parliamentary jurisdiction under Constitution Act 1982 section 44 or Constitution Act 1867 section 91 without improperly interfering with any provincial legislative competencies. Moreover, it is an unassailable proposition that Parliament, the House of Commons in particular, may consider any matter it wishes in its debates and in its evaluation of government policy and legislative proposals. Otherwise to limit it would represent fettering parliamentary sovereignty. It would restrict Parliament’s ability to assess fully and to its satisfaction the political issues in view of all the evidence before it, and would ignore normal parliamentary procedures. Indeed, it is just this broad reach to parliamentary considerations which the courts rely on to distinguish justiciable from non-justiciable ‘political’ questions.52 Grounded in the Constitution Act 1982, a claim of overbreadth or vagueness pertains to whether the legislation ‘lacks in precision so as not to give sufficient guidance in legal debate’.53 By ‘legal debate’ is meant those customarily accepted and applied principles of the rule of law involving certainty, fair notice, uniform standards and control of discretion so as to establish a framework of how to behave, of a reasonably ascertainable area of permissible and impermissible action.54 These considerations play into claims that contrary to section 7 of the Charter of Rights, a law would deprive one of (the right to) life, liberty and the security of the person not in accordance with the principles of fundamental justice, or into the claim that, contrary to section 1 of the Charter of Rights, the limits prescribed by a law on rights and freedoms are not reasonably and demonstrably justified in a free and democratic society. But the Clarity Act does not prohibit or penalise conduct. It merely stipulates that the federal government has no authority to negotiate the terms of any secession proposal. Insofar as the vagueness claim pertains to a Charter challenge, the bringing of a section 7 Charter claim could only be for one of two purposes. Either it would seek to include a party in the consultation process, or it would seek to halt the process of resolution and negotiation. But, as found in NWAC and Penikett, the matters covered by the Clarity Act are primarily political decisions within the discretion of Parliament and the House of Commons.55 Although the Clarity Act allows for a broader consultation it does not mandate it. Accordingly, it cannot be said that any individual rights or freedoms would be threatened or be violated in order to bring such a claim within the principles enunciated in 51   P Garant, ‘Projet de loi C–20 sur la ‘clareté: Des modifications s’imposent’ Le Devoir (Montréal), 1 March 2000 and his Testimony, Senate Proceedings (29 May 2000). 52   Roncarelli v Duplessis [1959] SCR 121; Reference re CAP (n 30); Operation Dismantle v The Queen (n 17); and see L Sossin, Boundaries of Judicial Review: the Law of Justiciability in Canada (Toronto, Carswell, 1999). 53   Osborne v Canada (Treasury Board) [1991] 2 SCR 69; R v Nova Scotia Pharmacy [1992] 2 SCR 606; R v Heywood [1994] 3 SCR 761’ and Ontario v Canadian Pacific [1995] 2 SCR 1031. Hogg, Constitutional Law (n 9) paras 44.15, 44.16, draws a further nuanced distinction between ‘overbreadth’ and ‘vagueness’. 54   R v Nova Scotia Pharmacy (n 53) (Gonthier J); Ontario v Canadian Pacific (n 53) (Gonthier J and Lamer CJ). 55   NWAC v Canada (n 47); Penikett v Canada (n 30) (who may participate in constitutional negotiations).

364  Legislating Rules for Secession? Operation Dismantle.56 Moreover, we encounter here the constitutional peril of playing Charter rights off against other constitutional obligations, especially the duty to negotiate. In Penikett, and Sibbeston, the courts showed themselves particularly attentive to avoiding the possibility of such a conflict between constitutional norms.57 Thus the vagueness challenge to the Clarity Act fails as well. No Interference with Parliamentary Sovereignty It may also be argued that the Clarity Act purports to interfere in an impermissible or undue way with parliamentary sovereignty. By that concept, understood at its broadest, Parliament has the power to make or unmake laws on any subject whatever.58 In the Canadian constitutional context, this unnuanced statement of sovereignty must be qualified on three fronts. First, the Constitution Act 1867 constrains and restrains parliamentary sovereignty, in particular by virtue of the federalism principle and the division of legislative powers. Second, the Charter of Rights and the Constitution Act 1982 constrain and restrain the sovereignty of Parliament, especially in respect of rights and freedoms and constitutional amendments. Third, Parliament may impose upon itself restraints governing the manner and form in which legislation may be tabled and passed.59 The Clarity Act touches upon the sovereignty issue on all three points. We have already dealt with the first two branches. It is to the third branch that we now turn. The restriction on ministerial authority to table a constitutional amendment proposal, while peculiar in form, does not represent any unconstitutional interference in parliamentary sovereignty.60 To deal with the easier points first, the Clarity Act does not prohibit the tabling of constitutional Bills by non-ministers, other members of the governing party and members of the Opposition. This is perhaps a disingenuous argument given that executive and legislative control are intricately interwoven in the Canadian parliamentary system as inherited from Westminster.61 Any Bill not having the backing of the government (and ruling party by implication) is unlikely to succeed on such a serious and significant issue. Party discipline, moreover, even if effected internally at a nontransparent level, renders unlikely any Private Members’ Bill brought by a government party contradicting Cabinet and government policy and intention. Secondly, the restriction may be interpreted merely as a directory and not mandatory provision, notwithstanding the clear use of ‘shall’. This tends to fly in the face of the provisions of the   Operation Dismantle v The Queen (n 17).   Sibbeston v Northwest Territories (n 30); Penikett v Canada (n 30). 58  Dicey, Introduction (n 23) 39–40, 41 ff. See also J Goldsworthy, ‘The Philosophical Foundations of Parliamentary Sovereignty’ in T Campbell and J Goldsworthy (eds), Judicial Power, Democracy and Legal Positivism (Aldershot, Ashgate 2000) 229; R Heuston ‘Sovereignty’ in A Guest (ed), Oxford Essays in Jurisprudence (Oxford, Oxford UP, 1961) 198, 202 ff; N Barber, ‘Sovereignty Re-examined: the Courts, Parliament, and Statutes’ (2000) 20 OJLS 131; H Wade, ‘The Basis of Legal Sovereignty’ (1955) Cambridge LJ 172. See generally F Hinsley, Sovereignty 2nd edn (Cambridge, Cambridge UP, 1986) and J Goldsworthy, The Sovereignty of Parliament: History and Philosophy (Oxford, Oxford UP, 1999). 59   R v Mercure [1988] 1 SCR 234 (binding statutory requirement that Saskatchewan laws be enacted in both French and English); Reference re CAP (n 30). Reference re Manitoba Language Rights [1985] 1 SCR 721 relates to a constitutional requirement (above and beyond a mere statutory obligation) that statutes be passed in both French and English. See also Hogg, Constitutional Law (n 9) para 12.3. 60   Reference re CAP (n 30). 61   Wells v Newfoundland [1999] 3 SCR 199; Authorson v Canada (AG) (n 19). 56 57



Being Clear on the Constitutional Questions 365

Interpretation Act, and offers little persuasive power.62 Nonetheless, even if it should be interpreted as a mandatory provision, the doctrine of effectivity may preserve any acts done by government and relied on by other political actors, including the provincial governments, without a Commons’ resolution in place empowering the federal government to negotiate.63 On a more complex level, the restriction on the Minister’s power could well be interpreted as establishing only an obligation enforceable in Parliament.64 Even though the language of the statute disclosed a mandatory obligation on the Minister, the obligations concerned would be owed to Parliament and therefore enforceable in and by Parliament alone, as quintessentially political obligations. The sanction for their breach lies with Parliament under its own procedures, rules and regulations. It would be for Parliament to decide if a Minister could table legislation where the items particularised in section 3(2) of the Clarity Act had not been ‘addressed’. Indeed, Parliament may well decide to override its statute; there is nothing to suggest that it could not override this mere legislation. This raises the second aspect concerning the question of ‘manner and form’ restraints on the legislative process. Manner and form restrictions are rules imposed by Parliament on itself, controlling how and in what form future legislation may be introduced and passed.65 Because such restrictions do not limit or control the substance of future legislation, it is generally accepted that they do not interfere with or compromise parliamentary sovereignty. Prior cases applying manner and form restrictions have examined that concept in terms of legislation passed and in force. But section 3(2) of the Clarity Act refers only to the tabling of legislation for debate. This would suggest that section 3(2) refers more to an internal rule of Parliament or to some directory provision. Since manner and form requirements will be enforced by the courts, such that a failure to observe them will entail invalidation of a law, it is not beyond question whether a constitutional amendment introduced, debated and passed without the antecedent points having been ‘addressed’ would invalidate that amendment. Practically speaking, the debates would have no doubt examined those points thoroughly in any event. And practically speaking, the section requires only that the itemised issues be ‘addressed’. ‘Addressed’ does not imply or implicate a final or even interim agreement. Nothing in section 3(2) of the Clarity Act requires those issues to be anywhere near settlement or agreement. A court would thus be very hard pressed, not only to determine what was ‘addressed’ but whether in fact the negotiations had achieved whatever was somehow determined to be necessary.66 In light of the above, it is clear that the Clarity Act faces no serious constitutional challenge on the various points outlined above. That, however, does not translate into 62   Specifically Interpretation Act RSC 1985 c I-21 s 11 (‘The expression “shall” is to be construed as imperative and the expression “may” as permissive’). 63   See, eg Reference re Manitoba Language Rights (n 59) 755 ff (and cases referred to therein under the heading of the ‘de facto doctrine’); Central Canada Potash v Saskatchewan [1979] 1 SCR 42; Montreal Street Railway v Normandin (1917) 33 DLR 195 (PC); and see also Texas v White 74 US 700 (1868). 64   Temple v Bulmer [1943] 3 DLR 649 (SCC) (issue of a writ for elections within parliamentary privileges); and see likewise Rex ex rel Tolfree v Clark [1943] 3 DLR 643 (Ont CA) (leave to appeal ref’d); Canada (Auditor General) v Canada (AG) [1989] 2 SCR 49. 65   R v Mercure [1988] 1 SCR 234; Reference re CAP (n 30); Reference re Manitoba Language Rights (n 59); Hogg, Constitutional Law (n 9) para 12.3. 66   Equally, the same could be said for the duty of the House to ‘take into account’ the views of the political actors enumerated in ss 1(5), 2(3) of the Clarity Act.

366  Legislating Rules for Secession? some form of protection or limitation against any number of individual suits challenging the Act, should it ever be invoked. The role of a court in these circumstances would be merely to confirm the Clarity Act as valid, effective legislation. Given the very clear and firm stance adopted by the Supreme Court of Canada on the political nature of the issues and the strong arguments in favour of characterising the Clarity Act as relating to internal parliamentary operations, a court would be hard pressed to justify interfering with the Act’s constitutional status and its workings. On this view, the justiciability of the Clarity Act is mere window-dressing for what such litigation would actually confirm: that the Clarity Act has actually established the governing constitutional circumstances in case of a secession referendum. In other words, the Clarity Act has confirmed indirectly the inevitable, irrepressible division of Canada, such to follow on a ‘Yes’ vote in a secession referendum. The Act achieves this principally by what it does not make clear and explicit. THE ABSENCE OF ‘CLARITY’

Alleging that the actual import and significance of the Act resides in its omissions and its unexpressed premises moves from descriptive jurisprudence to the wider perspective of analytic jurisprudence. For that analysis implies (if not also expresses) that such matters should have received some treatment in the Act in the ordinary course. Their omission reveals a particular understanding of the principles of constitutionally-mediated secession, and imposes the same upon the latter’s structure. I begin with the most conspicuous omission, that of a definition of ‘clarity’. No Definition of ‘Clarity’ First and foremost, the Clarity Act does not define in advance what constitute a ‘clear question’ and a ‘clear majority’. This was a point of particular emphasis and concentration before the Commons and Senate Committees addressing the draft version of the Clarity Act. The discussion before the Commons Committee concerned the ‘clarity’ to a proposed question and linked it to forms of association with Canada. No specific language nor formulation is recommended for the question.67 No percentage is suggested for the majority necessary to evidence a clear majority. The Act, however, does establish certain baseline considerations. The House of Commons will find presumptively that no clarity is attributable to a question which implies or conceals the fact of secession as an objective, or one which obscures the desire for secession with the linked offer of other possible political and economic arrangements: 1. (4) For the purpose of subsection (3), a clear expression of the will of the population of a province that the province cease to be part of Canada could not result from: (a) a referendum question that merely focuses on a mandate to negotiate without soliciting a direct expression of the will of the population of that province on whether the province should cease to be part of Canada; or 67   G Lachapelle, Testimony, HC Proceedings (21 February 2000); C Ryan (21 February 2000); P Monahan (21 February 2000); W Norman (22 February 2000); YM Morissette (22 February 2000); M Pinard (24 February 2000); and R Young (24 February 2000).



The Absence of ‘Clarity’ 367 (b) a referendum question that envisages other possibilities in addition to the secession of the province from Canada, such as economic or political arrangements with Canada, that obscure a direct expression of the will of the population of that province on whether the province should cease to be part of Canada.

When read in conjunction with section 1(3), the Clarity Act would seem to call for a simple question on the sole issue of whether the province should separate from Canada.68 Only on the basis of a simple question could the federal government reasonably understand that the majority ‘Yes’ vote represented a clear expression of the will to secede, whatever the consequences and ramifications. It is no coincidence that the two exclusions in section 1(4) track the questions posed in the 1980 first and 1995 second Québec sovereignty referenda. The English text of the question in the 1980 referendum was: The Government of Québec has made public its proposal to negotiate a new agreement with the rest of Canada, based on the equality of nations; this agreement would enable Québec to acquire the exclusive power to make its laws, administer taxes and establish relations abroad, in other words, sovereignty and at the same time, to maintain with Canada an economic association including a common currency; any change in political status resulting from these negotiations will be submitted to the people through a referendum; on these terms, do you agree to give the government of Québec the mandate to negotiate the proposed amendment between Québec and Canada?

That of the 1995 referendum was: Do you agree that Québec should become sovereign, after having made a formal offer to Canada for a new economic and political partnership, within the scope of the bill respecting the future of Québec and of the agreement signed on June 12, 1995?

Quite apart from the fact that they represent the only two precedents for sovereignty referenda in Canada, the objective of section 1(4) is to arrest this form of strategic bargaining and isolate the hard kernel of pro-sovereignty supporters in Québec.69 Strategic bargaining occurs where a province such as Québec can loosely threaten secession in order to win economic and political advantages from the federal government as appeasement.70 The secessionist movement in Québec benefits from the support of many ‘soft separatists’ because it maintains as one of its basic tenets the concept of ‘sovereignty-association’, whereby it has all the trappings of an independent state, but nonetheless also has the bene­ fits of a close economic and financial association with the rest of Canada.71 The Clarity Act would make clear to sovereignty-oriented provincial governments that the federal government would only take seriously – that is, as engaging the duty to negotiate – a popularly approved, bald and simple proposal to secede. Other provincial aspirations for constitutional change must follow the customary and conventional practice for constitutional   Dion, Testimony (n 1), and Monahan, Doing the Rules (n 23) 14–15.   See, eg J Facal (then Minister of Intergovernmental Affairs for Québec), Testimony, HC Proceedings (24 February 2000); J Couture (21 February 2000); and A Lajoie (21 February 2000); and G Lachapelle, Testimony, Senate Proceedings (5 June 2000). 70   See, eg M Nemni, ‘Le mythe du fédéralisme renouvelé est mort’ Le Devoir (Montréal), 18 October 1999; P Paquette and D Turp, ‘L’offre de partenariat fait partie de la programme souverainiste’ Le Devoir (Montréal), 11 November 1999; G Vandal, ‘Un référendum canadien pour sortir de l’impasse’ Le Devoir (Montréal), 16 November 1999; and J Brossard, L’accession a la souverainété et le cas du Québec (Montréal, PU Montreal, 1976) 745 ff. 71   See, eg Ryan, Consequences (n 8) 8–10; M Pinard, Testimony, HC Proceedings (24 February 2000). 68 69

368  Legislating Rules for Secession? amendments. Requiring a bald question would thus have the effect of frightening away many ‘soft separatists’ from voting in favour of a sovereignty proposal as a means of advancing constitutional renewal or strategic bargaining. The Clarity Act would thus seek to reduce support for sovereignty to hard-core separatists, who are assumed to be a minority and an isolated voice in the province. In its assessment of a clear majority, the House of Commons must consider not only the bare percentage in favour of the secession proposal, but also the number of eligible voters voting, and any other relevant factors: 2. (2) In considering whether there has been a clear expression of a will by a clear majority of the population of a province that the province cease to be part of Canada, the House of Commons shall take into account: (a) the size of the majority of valid votes cast in favour of the secessionist option; (b) the percentage of eligible voters voting in the referendum; and (c) any other matters or circumstances it considers to be relevant.

It is self-evident that the section rejects any simple calculation of a majority vote in favour of a weighted evaluation of the referendum outcome. The Clarity Act naturally would give effect to the guiding principle of ‘democratic legitimacy’. That concept, of course, rates the authoritative character of political decisions and acts by how close it represents the actual distribution of public opinion. A higher voter turn-out prima facie confers a greater sense of ‘democratic legitimacy’ on a referendum outcome. And as the Québec Secession Reference opinion recognised, that public support obviously colours the relative positions and bargaining strengths of the federal government and the provincial government seeking secession.72 The section, however, allows the House of Commons to examine voting patterns and behaviour yet more deeply. We can surmise that the overall fairness of the process would figure prominently in the deliberations of the House. This would include such issues as spoiled or disallowed ballots, and campaign financing and advertising. The 1995 referendum provides a good many examples. For instance, complaints and allegations were raised concerning undue influence against and obstruction of mainly pro-federalist voters in certain Montreal constituencies. There were also allegations of a double and unfair standard applied to questionable ballots, with more contra-secession ballots being rejected. The Director General of Elections in Québec investigated the complaints, and found none to have been substantiated.73 Campaign spending was also a hotly contentious issue during and after the referendum campaign, particularly funds expended in support of the federalist ‘No’ camp.74 Voter qualification could also represent a sig­ nificant element.75 In particular, the central issue arises whether the normal residency requirements should govern the eligibility of voters. The gravity of the issue, and conse  Québec Secession Reference (n 11) paras 87, 92, 93, 95, 101, 104.   Communiqués of the Directeur Général des Elections du Québec, 21 February 1996 (appointment of Gold J as scrutineer); 13 May 1996 (31 individual cases to be prosecuted, no organised attempt by YES Committee to pervert the referendum results); and 28 January 2000 (prosecution of those cases / appeals from dismissal to be dropped). See also Communiqué 15 November 1996 (non-residents fraudulently voting). 74   Communiqués of the Directeur Général des Elections du Québec, 13 May 1996, 27 August 1996 and 23 October 1996. It also recalls the notorious comment of then Premier Parizeau in his address after confirmation of the referendum loss (on file), ‘It’s true we have been defeated, but basically by what? By money and the ethnic vote’. 75   Haig v Canada (Chief Electoral Officer) [1993] 2 SCR 995. 72 73



The Absence of ‘Clarity’ 369

quences of a positive result, may suggest a standard more relaxed than that prescribed by the provincial referendum and election acts. Nevertheless, in Haig v Canada, the Supreme Court found no reason nor grounds to relax the standards and requirements of the federal Referendum Act and Canada Elections Act to allow someone newly resident in Québec to vote in their former province of residence (Ontario) in the 1992 referendum to approve the Charlottetown Accord.76 That Accord would have certainly led to a series of constitutional amendments, not the least of which would have been a recognition of special status for Québec and attendant powers.77 In particular, section 3 of the Charter of Rights did not guarantee a right to vote in referenda, but only in elections of parliamentary and like legislative assemblies. Moreover, a referendum in the circumstances was merely a ‘consultative process’. Given this precedent, it remains to be seen whether a court would be persuaded to extend or mollify the requirements to be an eligible voter in a secession referendum. Certainly it makes good sense not to have a specific definition of a ‘clear question’ and a specific percentage constituting a ‘clear majority’.78 The Supreme Court in the Québec Secession Reference had indicated that the evaluation of what a clear majority and clear question would be would depend on national and provincial circumstances at the time.79 That is precisely what qualified the issue as pre-eminently ‘political’, as not suitable for judicial review. It would also be unreasonable and unnecessary to predict or restrict the House of Commons’ evaluation of these factors beforehand. Moreover, specifying the question and the majority beforehand would at least begin to colour the legislation seriously as a federal attempt to determine both points for the Québec National Assembly. It risks moving the pith and substance of the Clarity Act from the control of the federal government by the Commons in a particular politico-constitutional situation, to regulating the preconditions for just such a situation. Lastly, the clarity of a question on secession and the percentage of votes approving it pertain to the ‘democratic legitimacy’ of and political support for a government’s proposal to secede from Canada. These do not in and of themselves determine the matter of secession. Quite the contrary, as the Québec Secession Reference makes clear for the Canadian context, they merely begin the complex process of governmental response and (at least) intergovernmental negotiation. The substantive aspects of secession arise, not out of matters addressed by the Clarity Act itself, but out of that response and negotiation process, and any government and private acts in the circumstances. But, as credible as these reasons may be, they naturally provoke the question why any statutory provision is in fact necessary. After all, the purpose of the Act is to ‘give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada’. And it does so by expressly not providing for a ‘clear question’ and a ‘clear majority’. At its highest, then, the Clarity Act merely affirms the absence of any fixed delimitation to ‘clarity’. It tells us that ‘clarity’ in a question and a majority cannot be defined  ibid.   See generally K McRoberts and P Monahan (eds), The Charlottetown Accord, the Referendum, and the Future of Canada (Toronto, Toronto UP, 1993) esp Appendix II (text of the Accord). 78   Much was made of their absence in the Clarity Act in the testimony before the Commons and to a much lesser degree before the Senate Committees: J Couture, Testimony, HC Proceedings of (21 February 2000); P Monahan (21 February 2000); YM Morissette (21 February 2000); A Lajoie (21 February 2000); P Garant, Testimony, Senate Proceedings (29 May 2000); and G Lachapelle (5 June 2000). 79   Québec Secession Reference (n 11) paras 93, 151. 76 77

370  Legislating Rules for Secession? beforehand, abstracted from the circumstances at the time.80 But this the Supreme Court had already told us in its reference opinion. Why is it then necessary for a statute to repeat this and give effect to it, rather than simple compliance with what the Court has said? Three easy answers spring to mind. First, the Québec Secession Reference was merely an advisory opinion, without technically and formally any binding effect whatsoever. Hence, to render the opinion into true and normative legal form, some statutory prescription was necessary. But the federal government could equally have made public its desire to obey the reference’s prescriptions by mere resolution, incorporation into the Standing Orders, or some form of policy paper. The choice of statutory form suggests the government wanted to trade on the nature of the legislative form. Second, having all these points in writing affords a certainty and a fixed point of reference, not only in advance of a further referendum, but also importantly during the tumultuous political, economic and social circumstances which undoubtedly would follow a majority ‘Yes’ vote for secession.81 The Clarity Act will go some way to helping to answer the federal question, ‘do we or do we not negotiate?’ But even here, problems arise. What if the question or majority are considered unclear? What of the initiatives of other provinces vis-a-vis the secessionist province? And what of the negotiation process and amendment process themselves? What of a divided opinion among the enumerated political actors to be consulted by the Commons in arriving at its resolution on clarity? No clarity exists here. Third, the Clarity Act provides an equally convenient and quick point of reference for the international community when evaluating the federal response to a provincial secession initiative.82 The federal government can rely on the Clarity Act to justify its position on whether or not to pursue negotiations in good faith. All this is with an eye to strengthening its position in the international community as continuing to assert its control over Québec, and undermining any Québec attempt to bypass the constitutional amendment procedure and seek directly its international recognition as a sovereign state. Absent the authorisation of the Commons, of course, the federal government may not negotiate. This is perhaps a disingenuous strategy considering that the federal government is represented by the majority party in the Commons. And the Clarity Act only binds the federal government at the initial stages of the referendum process. It makes no comment on the process of negotiations, such as reporting to Parliament regularly, nor on what should happen if the provincial secessionist government should reject the federal government’s overtures or negotiating position, or object to any other part of this process so as to pursue a unilateral declaration of independence ostensibly on the basis of a failure to negotiate in good faith.83 In one sense all these matters extend beyond the narrow compass of the Clarity Act, which is to address the triggering conditions for constitutional negotiations involving the prospect of provincial secession; which is to say that these concerns have no bearing on the intrinsic viability and coherence of the Act. Their absence does not impair the 80   And as rightly pointed out by YM Morissette, Testimony, HC Proceedings (21 February 2000) and M Lebel, Testimony, HC Proceedings (17 February 2000), it does not exclude a 50% + 1 any more than a 66%, 75% or 100% majority. 81   P Hogg, Testimony, HC Proceedings (22 February 2000). 82   A point echoed in W Norman, Testimony, HC Proceedings of (22 February 2000) and R Young (24 February 2000). 83   J Facal, Testimony, HC Proceedings (24 February 2000).



The Absence of ‘Clarity’ 371

legality or functioning of the Act per se. Whether Parliament should draft a meagre or full-volumed statute is a matter of politics, not a matter of state and legal effectiveness. Yet section 3 of the Act clearly speaks to certain manner and form prerequisites to the tabling of a constitutional amendment regarding provincial secession. This is the last step to the negotiation process. If the Clarity Act pertains only to the triggering conditions, section 3 of the Act should frankly have no place in the Act. It has no direct relation to the other provisions, nor any bearing on their working. Of course, on the other hand, if the Act pertains more broadly to the entire negotiation process, then the inclusion of section 3 makes perfect sense. But then we have a statute which isolates two brief points in an otherwise complex, extensive process. What has it allowed to transpire in the meantime between start and finish? There is no clarity here. In another sense, all these matters and their attendant questions point to the more fundamental tension between statute law and judge-made law, or judicial opinion. Both reasons for enacting such a statute presume that a statute is prima facie law, public and certain. A statute has ‘normative’ cachet that case law does not. A statute is an easy reference point for the locus of authority and for the identification of the governing legal norm. Case law, on the other hand, is less certain. It is open to interpretation and variation. It raises the question whether it can bind other parties in the future. And case law suffers a ‘democratic deficit’ in that legal norms seemingly issue from non-elected officials, without the opportunity of the parties or a wider constituency to influence the content of the result and norms.84 The absence of input is considered to diminish the ‘legitimacy’ of case law. It would be misleading, however, simply to characterise these concerns with regard to the Clarity Act as reflecting the division between two views of ‘law’, namely a positivist catascopic ‘top-down’ version exemplified by statute, and an organic, community-­ oriented anascopic ‘bottom-up’ version exemplified by judicial recognition of governing social norms publicised through case law. To both we may ascribe generally accepted positivistic and organic elements. For example, the necessity for judicial recognition to convert social standards of behaviour to legal norms indicates, in line with standard views on positivism, that a formal, institutional structure is a necessary element, such that law per se depends upon form, and not ultimately on content. In other words, what makes law ‘law’ is that additional, institutional, formal step, irrespective of its inherent moral content. The latter remains a significant consideration in its own right, but it has no real bearing upon the core character of ‘law’. And the discussions in Parliament and committees preceding enactment indicate likewise the necessity of a deliberative, argumentative element whereby all competing views are given a hearing. In other words, the normative element would arise from the interpretation and potentially from reinternalisation of the commitments articulated through the proposed legislation. 84   See, eg L Alexander and F Schauer, ‘On Extrajudicial Constitutional Interpretation’ (1997) 110 Harvard LR 1359; N Devim and L Fisher, ‘Judicial Exclusivity and Political Instability’ (1998) 84 Virginia LR 83; R Pushaw, ‘Justiciability and Separation of Powers: A Neo–Federalist Approach’ (1996) 81 Cornell LR 393; M Mandel, The Charter of Rights and the Legalisation of Politics in Canada, rev edn (Toronto, Thompson Educational, 1994); F Morton and R Knopff, The Charter Revolution and the Court Party (Toronto, Broadview, 2000); W Mackay, ‘The Legislature, the Executive, and the Courts: the Delicate Balance of Power, or Who is Running this Country Anyway?’ (2001) 24 Dalhousie LJ 37; P James, D Abelson and M Lusztig (eds), The Myth of the Sacred: the Charter, the Courts, and Politics of the Constitution in Canada (Kingston, McGillQueen’s UP, 2002); and R Martin, The Most Dangerous Branch: How the Supreme Court of Canada has Undermined Our Law and Our Democracy (Kingston, McGill-Queen’s UP, 2003).

372  Legislating Rules for Secession? Focussing on the differentiation between statutory law and case law risks getting submerged in listing the distinguishing features of each view, so as to draw a clean line between them. Or it risks deviating into discussing the competing concepts of law underlying each. For, at foundation, the distinction is not how legal norms are fashioned, but the weight and character of their normativity, which implies a question about the understanding of normativity, of what makes law binding, obligatory. It is a difference in the concept of law. To discount case law, or to assume that statute law is somehow the apex of a natural progression running from social practice through case law to enactment, promotes an idea of normativity as originating from without, attempting to bound liberty after a fashion.85 Statutory norms are fixed actively in advance, rather than being (passively) recognised a posteriori by a court. Instead, of relevance to constitutional law and constitutional crises is the (related) issue of situating the relevant and necessary deliberations by which commitments are given their normative cast. The legislative model has always presented the deliberation moment in its best light, as we sketched above. And it is argued in favour of the ‘positivist’ camp that no deliberative moment actually occurs with its competition, the case law model. At its highest, the case law model could only claim some inchoate deliberation in inter-party dealings before appealing to judicial intervention, but without having settled any normative standards (else much intervention would not be necessary). Thus, only the legislative process makes place explicitly and certainly for the transformative event. The Clarity Act is significant because it represents a statute addressing deliberation, where much deliberation concerns the dissolution of those extant associative commitments by which a state had hitherto subsisted. It concerns, in short, a transformative event about disassociation, in contradistinction to the assumed norm of association. But the Clarity Act attends to its task principally by negating or ignoring any real, substantial deliberative moment, in favour of the purely superficial artifice of relying on its own deliberative moment achieved through the legislative process to amplify and aggrandise the required deliberative moment of resolving on a ‘clear question’ and ‘clear majority’. It serves thus as a substitute after the fact for a real opportunity for discussion among all citizens of Canada on their basic associative commitments. As a result, the Clarity Act fails to embody the constitutional aspect of the ‘clarity principle’ and fails to understand the import of the ‘obligation to negotiate’ as a principle of constitutional law. I can begin to develop this argument by first considering three aspects left significantly unclear by the Clarity Act. Strategic Bargaining There is a lack of clarity in respect of a non-clear question and referendum result. We are cast back upon the terms of the Québec Secession Reference, and the uncertain application or extension of the ‘obligation to negotiate’ to all proposals to amend the Canadian Constitution, whether or not explicitly oriented to an ultimate result of secession. The 85   Statutory norms, positive law in true fashion after Raz, offer reasons for action which override or transcend other possible reasons for action: J Raz, ‘Legitimate Authority’ in his Authority of Law (Oxford, Oxford UP, 1979) 1, 17–20 (‘exclusionary reasons’), and his Practical Reason and Norms (London, Hutchinson, 1976). See also S Perry, ‘Second-Order Reasons, Uncertainty and Legal Theory’ (1989) 62 S Cal LR 913 and M Moore, ‘Authority, Law and Razian Reasons’ (1989) 62 S Cal LR 827, esp 854 ff.



The Absence of ‘Clarity’ 373

Clarity Act conceivably introduces by its terms the concept of strategic bargaining as an explicit term in the Canadian constitutional structure. The argument, I would suggest, might go as follows. A provincial government could seek to profit from provincial popular discontent with the federal government by pressing forward with its ‘secessionist’ programme. So the province would frame a question in a referendum ostensibly directed at secession in such a way that by the terms of the Clarity Act the question and or result could be debatably unclear. In particular, a province would likely make use of one of the two options expressly discounted in the Act, namely the linked question or obscure question. Even though its question and/or referendum result might be considered unclear, the provincial government could nonetheless invoke the basic terms of the Québec Secession Reference and request that the government observe its duty to negotiate some constitutional amendment, albeit removed from a secession option. The federal government could not rely on the Clarity Act to avoid this duty, since the province would not be seeking secession explicitly, but merely substantial amendments to the current constitutional structure. The Clarity Act does not restrict the federal government’s authority to enter negotiations with any province, which negotiations would not be on the terms of secession. The Clarity Act only covers negotiations intending to lead to constitutional amendment providing for secession of a province. Hence, the federal government could initiate negotiations to effect any range of constitutional amendments with a province after a secession referendum where either the question or result or both were deemed unclear, provided of course that said negotiations did not culminate in an agreement to secede. The federal government would then be caught by the terms of the Québec Secession Reference and be obliged to negotiate in order to preserve at least some measure of ‘legitimacy’ in the public eye. Failing to do so would naturally not only exacerbate provincial discontent, thus allowing the provincial government to press forward with its secession programme (its ultimate goal), but also diminish the moral and international respectability of the federal government to interfere with further provincial attempts to secede. In these circumstances, the Clarity Act has lost all relevance and application, its provisions effectively circumvented and nullified by the ensuing political situation. By failing to understand fully the duty to negotiate as a constitutional term, except in the secessionist context as an attribute of the overall separation process, the Clarity Act thereby could aggravate provincial constitutional concerns to a secessionist level. Its peculiar and limited understanding of the Québec Secession Reference and the duty to negotiate would thus assist in reducing the various competing constitutional proposals and visions into pro- or contra-secession, rather than allowing for a broader floor for discussion, and so, wider possibilities for compromise. In effect, it is reducing the scope for discussion and re-evaluation of associative commitments, whether intentionally or not. Moreover, the Clarity Act does not establish the constitutional positions of provinces and non-provinces in the negotiation process. The role of the provinces would be determined in part by the amendment formula required for the secession of a province. There is no agreement among commentators which of the two formulae under Part V of the Constitution Act 1982 would apply, the section 38 general one or the section 41 unanimity one. And, as history has shown with the Meech Lake Accord most recently, not to mention the Patriation effort, it is very difficult to obtain unanimous provincial consent to any constitutional amendment in Canada. This leads to a conclusion that the Act has a very narrow compass in that it only applies to a very particular type of question and referendum.

374  Legislating Rules for Secession? Restricted to Province-oriented Secession Attempts The Clarity Act refers only to the secession of a province.86 The lengthy Preamble to the Act confirms that the Act’s scope is limited to provincial secession.87 I reproduce the Preamble here for convenience: WHEREAS the Supreme Court of Canada has confirmed that there is no right, under international law or under the Constitution of Canada, for the National Assembly, legislature or government of Québec to effect the secession of Québec from Canada unilaterally; WHEREAS any proposal relating to the break-up of a democratic state is a matter of the utmost gravity and is of fundamental importance to all of its citizens; WHEREAS the government of any province of Canada is entitled to consult its population by referendum on any issue and is entitled to formulate the wording of its referendum question; WHEREAS the Supreme Court of Canada has determined that the result of a referendum on the secession of a province from Canada must be free of ambiguity both in terms of the question asked and in terms of the support it achieves if that result is to be taken as an expression of the democratic will that would give rise to an obligation to enter into negotiations that might lead to secession; WHEREAS the Supreme Court of Canada has stated that democracy means more than simple majority rule, that a clear majority in favour of secession would be required to create an obligation to negotiate secession, and that a qualitative evaluation is required to determine whether a clear majority in favour of secession exists in the circumstances; WHEREAS the Supreme Court of Canada has confirmed that, in Canada, the secession of a province, to be lawful, would require an amendment to the Constitution of Canada, that such an amendment would perforce require negotiations in relation to secession involving at least the governments of all of the provinces and the Government of Canada, and that those negotiations would be governed by the principles of federalism, democracy, constitutionalism and the rule of law, and the protection of minorities; WHEREAS, in light of the finding by the Supreme Court of Canada that it would be for elected representatives to determine what constitutes a clear question and what constitutes a clear majority in a referendum held in a province on secession, the House of Commons, as the only political institution elected to represent all Canadians, has an important role in identifying what constitutes a clear question and a clear majority sufficient for the Government of Canada to enter into negotiations in relation to the secession of a province from Canada; AND WHEREAS it is incumbent on the Government of Canada not to enter into negotiations that might lead to the secession of a province from Canada, and that could consequently entail the termination of citizenship and other rights that Canadian citizens resident in the province enjoy as full participants in Canada, unless the population of that province has clearly expressed its democratic will that the province secede from Canada

Hence, the Act does not cover attempts at secession by political entities other than provinces. Nothing in the Act, including its Preamble, would allow it a broader interpretative range so as to cover possible instances of non-provincially-structured secessionist   Includes the three territories, Yukon, Northwest and Nunavut: Interpretation Act (Can) s 15.   Interpretation Act (Can) s 13 (‘The preamble of an enactment shall be read as a part of the enactment intended to assist in explaining its purport and object’). 86 87



The Absence of ‘Clarity’ 375

entities, such as Indian reserves, subsections of provinces or municipalities.88 It merely assumes the secession attempt to issue in and from a province, and thus assumes the province to be a ‘legitimate majority’ without at all considering the possibility of other ‘legitimate majorities’. Thus, it remains an open question whether the Act (and the process it contemplates) applies in other secessionist situations. Any attempt to argue that the Québec Secession Reference excludes the latter meets with the cogent and direct response that such an eventuality was not considered by the Supreme Court. Only the situation of a province-driven secession crisis was before the Court as evidenced by the three reference questions put to the Court. Moreover, in such smaller communities, a prior referendum may not even be necessary to identify a clear majority. Presumably, the smaller the grouping of individuals forming a community, the more direct and particularly representative are the instantiations of community acts as acts of and on behalf of the individual members. By contrast, a larger number of members would require more generalisation in community commitments so as to accommodate differentiation in the various individual perspectives. The expression of the will of a smaller community is thus apparent from the mere concerted feature of its acts as a community. The Clarity Act also affords no clarity in this situation. Either we must conclude that the federal government did not consider the principles expounded in the Québec Secession Reference to apply at all to such secession attempt, or that such an attempt has prima facie no validity or legitimacy according to the government, as opposed to a province-based secession movement. There is of course a third possibility. All this in fact goes to confirm that the Act was a hasty response directed primarily at Québec in the circumstances following the second secession referendum and the release of the Québec Secession Reference, rather than a considered approach to ‘clarity’. The haste with which the Act was adopted, the brevity of the Act, and the clearly reactive nature of the Act to the Québec circumstances at the time, all contribute to a very narrow bit of legislation, of limited (if any) usefulness. The first possibility requires a reconsideration of the Québec Secession Reference. At first glance it seems to fit quite comfortably with the possibility of a non-provincially structured secession attempt, in view of the general unwritten constitutional principles. The second possibility raises not only similar sorts of questions, but also quite import­ antly the question of what might possibly justify such an exclusionary view in the first place. The third possibility speaks for itself. And even if we would ultimately have to return to the Québec Secession Reference and the principles expounded therein, we cannot say that the Québec Secession Reference indisputably and unquestionably applies – quite apart from any issue taken with its status as a reference opinion. The question here is whether these principles could be said to apply to these more broadly conceived secessionist entities. The Québec Secession Reference arguably decided only the principles applying to a province-based secession. In strictly legal terms then, the Québec Secession Reference is arguably distinguishable on its terms from a non-province based secession attempt. The principles which might be said to guide an attempt by a smaller community seeking secession from Canada 88   On such ‘lesser’ units, see, eg J Viteritti, ‘Municipal Home Rule and the Conditions for a Justifiable Secession’ (1995) 23 Fordham Urb LJ 1; J Underweiser, ‘The Legality of Staten Island’s Attempt to Secede from New York City’ (1991) 19 Fordham Urb LJ 147; F Cavanna, ‘Home Rule and the Secession of Staten Island: City of New York v State of New York’ (1992) 8 Touro LR 795; and R Stutman Bruskin, ‘Secession as a Connecticut Story: the Feasibility of an Intramunicipal Secession in New Haven’ (1994) Quinnipac LR 781.

376  Legislating Rules for Secession? could involve considerations different from, or supplementary to, those principles expressed in the Québec Secession Reference. Equally, the principles in that case might require substantial qualification. It is not possible to predict any judicial pronouncement on the issue, insofar as judicial pronouncements might be forthcoming. Accordingly, there may be no ‘legal framework’ to govern those circumstances, despite the efforts and resources invested in the Québec Secession Reference and the Clarity Act. No Reference to Majorities Outside of a Secessionist Province The Clarity Act takes as its point of reference a provincial referendum to secede. The Act considers legitimacy of democratic will only from the perspective of a clear provincial majority. On that basis the federal government may enter negotiations on the terms of secession and table a constitutional amendment for passage in Parliament. The Act makes no reference to the legitimacy of the federal government entering into negotiations nor the content of those negotiations, nor any agreement arising from those negotiations. These aspects of ‘legitimacy’ are, at their highest, assumed; at their lowest, ignored. Thus, the Act matches the extraordinary situation of populist constitutional upheaval with the rather non-extraordinary, everyday principle of constitutional amendment by executive agreement. In effect, the Act presents the divisibility of Canada as a matter of intergovernmental agreement where only the voice of the separating province should count in the calculation of democratic legitimacy. The rest of Canada presumably has no say in all this. Any consultation of the public is left unaddressed. Any authorisation of the federal government by the rest of Canada is also left unaddressed. The Act builds in this respect on the peculiar view given expression in the Québec Secession Reference of the ‘relevant’ majorities. But where the Act hastily seeks to delimit the provincial one, it fails completely to address the federal one of the rest of Canada. In this sense, the Act takes up the view we criticised in chapter 9, namely that the decision of one group (here a province) is sufficient to push Canada to dissolution. On this point, it is remarkable to note that of prime concern to the experts appearing from Québec and of a sovereignist tint, was their interpretation of the Act as restricting the democratic right of 50 per cent +1 of Québeckers to decide their own political and social future.89 A special majority involving more than that percentage was seen to diminish the weight and legitimacy of each vote for sovereignty, and correspondingly increase the weight of the minority votes against sovereignty. In other words, as Facal and Couture argued, a minority of some 20 per cent, for example, could decide Québec’s future (by denying its right to secede).90 But looking at it from the Canadian perspective, this same argument is being used to decide the fate of Canada: the Québec population is no more than 20 to 25 per cent of the total of the Canadian population.91 Apparently in the circumstances of Québec, it is sufficient for 25 per cent of the Canadian population to decide on behalf of a majority in the rest of Canada. 89   J Facal, Testimony, HC Proceedings (24 February 2000); J Couture (21 February 2000); A Lajoie (21 February 2000); G Lachapelle (21 February 2000); and G Lachapelle, Testimony, Senate Proceedings (5 June 2000); and P Garant, (29 May 2000). Contra: YM Morissette, Testimony, HC Proceedings (21 February 2000); and M Lebel, Testimony, HC Proceedings (17 February 2000). 90   J Facal, Testimony, HC Proceedings (24 February 2000); J Couture, Testimony, HC Proceedings (21 February 2000). 91   See www.statcan.gc.ca/start-debut-eng.html.



A Clearly Positivst Approach to Constitutional Secession 377

Surprisingly, this point was never discussed before the Commons or Senate Committees. The following short exchange did, however, take place on the final day of Senate Committee hearings: Mr. Dion: The government respects it, because throughout the negotiations, the citizens of the province are citizens of Canada with the same rights as other Canadians. It would only be once we had agreed on a separation and that this agreement, based upon a yet-to-be determined procedure, became recognized in the Constitution that these citizens would have lost their right to be Canadians. Senator Joyal: That logic is faulty. You maintain that 10 or 12 per cent of Canada’s population, about 3.5 million Québeckers, can decide that the rights of 26.5 million Canadians living elsewhere in Canada will be extinguished because only they can decide that this legal situation in the country must end. That is what I do not understand in your reasoning. How can 12 per cent of the shareholders in a corporation demand that the CEO or the board wind up the company while two thirds of the majority of shareholders have had nothing to say about it? If it is good for corporate law why is it not good for democratic law? That is where your reasoning falls short. Mr. Dion: It is not mine, but the Supreme Court’s, senator. You have a problem with the Supreme Court decision and not with the clarity bill, or at least your problem with the clarity bill stems from the fact that you disagree with the Supreme Court of this country. It is obvious that when we negotiate secession, all Canadians remain Canadian. All of their rights must be respected. The government of the province in no way has the right to take from them the slightest parcel of their rights to be Canadian. It is also obvious that there is no right to secession. If we undertake to negotiate, the government of the province remains the government of a province. Any unilateral declaration that it might make would not be legal. And it is only once an agreement to separate has been concluded and this agreement is given effect through a constitutional amendment, that the citizens of that province will have lost their rights as Canadians. Senator Joyal: But that does not change fundamentally.92

It might be said that the underlying principle goes to avoiding a situation where Québec is held in Canada ‘against its will’. This assumes that a majority in Québec has a significance above and beyond its provincial borders. It assumes further that the population of Québec constitutes in and of itself a proto-state. Accordingly, any majority in Québec serves to express the will of a proto-state, absent any consideration of the bonds and common commitments existing between Québec citizens and citizens in other parts of Canada. Thus, it fails to account for the democratic will of the rest of Canada. And as we noted in chapter 9, this represents one of the fundamental failings or weaknesses of the Québec Secession Reference and its conception of ‘constitutional secession’. A CLEARLY POSITIVIST APPROACH TO CONSTITUTIONAL SECESSION

Process and Structure The Clarity Act imposes on the Canadian constitutional structure its peculiar reading of the Québec Secession Reference, specifically the duty to negotiate the terms of secession   S Dion, Testimony, Senate Proceedings (19 June 2000).

92

378  Legislating Rules for Secession? given a ‘clear’ majority in a secessionist referendum with a (clear) question. As reviewed in chapter 9, the Québec Secession Reference did not impose upon the federal government and other provincial governments a duty to negotiate the terms of secession in the circumstances of a positive referendum result. The Supreme Court made quite clear (at paragraph 93 of its opinion) that it rejected both the proposition of ignoring a pro-­ secessionist vote in a province and the proposition of requiring the federal government and the rest of the provinces to accept, without more, secession as a fait accompli in such circumstances. The Court’s opinion simply required that the parties come together to discuss the nature of provincial discontentment with the current state of the federation and attempt to work out some solution thereto, which may or may not be secession. But as set out at length above, the Clarity Act purports to empower the House of Commons to authorise the federal government to enter ‘negotiations on the terms on which a province might cease to be part of Canada’. Strictly speaking, by the use of ‘might’, it is contemplated arguably that these negotiations may or may not lead to an agreement on secession. But the Preamble to the Act (at paragraphs 4 and 5, reproduced above) expresses the view that the federal government would have to negotiate the terms of secession. As a matter of statutory interpretation, the Preamble to any statute may be read as part of that statute intended to assist in explaining its purport and object.93 Accordingly, when we interpret the duty to negotiate as encapsulated in the Clarity Act, we ought to bear in mind these paragraphs of the Preamble. More particularly, the Act read in its entirety with the Preamble suggests that upon a clear question and a clear result, the federal government would be expected to have a duty to negotiate the terms of secession, and not as the Québec Secession Reference required, merely a duty to negotiate a solution to the extant constitutional discontent and impasse. On this reading, it may be an unfortunate result of the Clarity Act that it would commit the federal government to the divisibility of Canada rather than allowing the government a freer hand in its negotiations. It might be said in reply hereto that, by such a reading, the Act simply acknowledges the political realities in such circumstances, and gives practical effect to them. The argument would run as follows. If Québec voted clearly and unambiguously in favour of secession from Canada, the federal government could not legitimately and reasonably hold Québec in Confederation against its will. So a clear ‘Yes’ to a clear question more or less determines the issue: Québec will separate itself from Canada, and Canada will allow that secession. All that actually remains is to agree on the terms of secession, regarding public and private property rights, borders and border control, various financial and fiscal matters, and so on.94 Such a vote would render any notion of dissuading Québec from secession during negotiations politically unrealistic and practicably unattainable.95 The idea that negotiations in such a political and social atmosphere merely open discussions on any number of possible proposals for constitutional amendment, 93   Interpretation Act (Can) s 13. Moreover, the courts will look to the Preamble to assist them in their assessment of the constitutionality of legislation: Hogg, Constitutional Law (n 9) para 15.5(d); Roach, ‘Preambles in Legislation’ (n 12). 94   See, eg R Young, The Secession of Québec and the Future of Canada, 2nd edn (Kingston, McGill-Queen’s UP, 1998) and D Drache and R Perrin (eds), Negotiating with a Sovereign Québec (Toronto, James Lorimer, 1992). 95   Recalling Lord Denning MR in Blackburn v AG [1971] 2 All ER 1380, 1382 (CA) (‘Freedom once given cannot be taken away. Legal theory must give way to practical politics’).



A Clearly Positivst Approach to Constitutional Secession 379

including secession at one far end, is wilfully blind to or simply ignores the power and impetus that such a referendum result creates. It could create further tensions and instability in an already inflammable situation. And it may run clearly afoul of any number of arguments based on ‘democratic legitimacy’. So to require the Clarity Act to embody wider, more general language concerning negotiations ‘that might lead to secession’ is either unnecessary, or misguided, or both. Pitfalls of the Positivist Approach The attempt at statutory extrapolation reveals the problems and pitfalls of trying to encapsulate constitutional principles concretely into a text, into positive law. The Québec Secession Reference called the matter of negotiating and of determining if a sufficient number of people wanted (significant) constitutional change a political question requiring a qualitative evaluation. This contemplated a public debate, not only among those resident in a province with secessionist aspirations, but among all citizens of Canada as participants and stake-holders in that democratic polity. The Clarity Act sought, however, to superimpose on that requirement a legal framework, namely a statute which would ascribe certain responsibilities to and burdens on certain political actors. This has resulted in a loss of some flexibility in the application of those principles, without necessarily gaining any added certainty and clarity to the overall process. Indeed, it reveals a narrow, positivist slant to the concept of law. This involves a loss of dynamism by focussing more on ‘law’ rather than on the ‘common’, community, foundations to legal norms. For the concept of ‘law’ at work here is one of managerial control, of the top-down predication of governing norms under the perfunctory heading of ‘law’. It misconceives law as possessing validity and legitimacy (especially the latter) solely by virtue of its institutional provenance out of a constitutionally mandated organ. And thus it tends to transpose those characteristics to the substance of the legal decision and the values represented therein.96 Thus, the Clarity Act draws our attention to the text of the question, rather than to the democratic legitimacy of the issue of a univocal provincial secession and the process of establishing an authentic expression of democratic will. Put more bluntly, the Clarity Act hives off any question as to the political morality, the constitutional legitimacy, of univocal provincial secession. That debate engages all citizens of Canada and not simply one group of polit­ ical functionaries. Moreover, by characterising the decision as one of the House of Commons, the Act misleadingly suggests that responsibility for creating constitutional norms and values, including those concerning secession, falls to members of the House of Commons, rather than to the Canadian population as a whole. The double standard of accepting a popular expression to secede and an executive, administrative response, is breathtaking in its narrow, limited perception of constitutional legitimacy and norms. As argued in chapter 2, these norms arise through the ‘transformative event’, the foundation of which is a broad and open public debate involving all citizens. 96  Compare F Michelman, ‘Constitutional Legitimation for Political Acts’ (2003) 66 MLR 1, 3–4 (arguing that just because an act is constitutional does not make it ‘legitimate’); and J Balkin, ‘Agreements with Hell and Other Objects of Our Faith’ (1997) 65 Fordham LR 1703 (the need for loyalty and fidelity to the constitutional process, even if it may produce ‘bad’ results). In reply: H Klarman, ‘Fidelity, Indeterminacy and the Problem of Constitutional Evil’ (1997) 65 Fordham LR 1739.

380  Legislating Rules for Secession? In the end, the Clarity Act forms the constitutional process of secession in its own image: deliberations by the House of Commons, instructing the federal government, and then tabling legislation. And as we noted above, operative here is the particular view of democracy and constitutionalism which avoids questioning the legitimacy of any government initiative or majority outside of the secessionist province. The Clarity Act fails to provide a significant response to secession and constitutional crisis, by failing to engender debate and discussion throughout Canada. It is a reaction or response to a referendum and a majority without establishing any pro-active basis to engage all sections of Canada, all citizens of Canada, to talk amongst themselves and with the residents of the secessionist province. The frustration of any public debate freezes the whole notion of a ‘living’ constitution. The whole point to associative constitutionalism was to idealise and emphasise the principles of discussion and agreement as forming legal norms. The Québec Secession Reference achieved some measure of this, but was by no means a satisfactory and complete account. The result in the end is onesided, defeatist legislation that offers no prospect for engaging unionist ideals and for opening bridges between discontents and malcontents and the rest of Canada. In terms of a ‘forced’ example perhaps, even the breakdown of a marriage usually invites some marriage counselling and reconciliation before divorce.

11 Conclusions

S

ECESSION, AS A question of constitutional law, soon exhausts the pool of standard, accepted parameters of (legal) analysis. It forces us almost immediately to step beyond the rule of law and the rules of law, beyond mere written instruments and judicial decisions, and then to tread ever so delicately into domains of politics, philosophy, and so on (which subjects may not offer the certainty and clarity of principle necessary for the rule of law). The initial step in a standard constitutional analysis of secession (insofar as there can be a ‘standard’ analysis in such situations) is to begin with the text of the constitution itself, just like with any other constitutional question. As with other constitutional disputes, the usual first order of business is to determine what if any provisions of the relevant constitutional instruments govern the situation. This seems self-evident and unimpeachable in design. But unless the constitution at issue is one of the small handful that actually does contain some reference to secession, there is unlikely to be any explicit or implicit reference to or provision made for a possible secession. Such is certainly the case for most of the world’s nations with written, or at least settled, constitutions. And it seems just as self-evident and unimpeachable that no constitution predicts or anticipates its own demise. So this would lead to a broadening of the standard legal analysis of secession to three successively wider levels. First, the analysis invokes the constitutional amending process. Second and to bolster the first level, the analysis may draw upon entrenched rights and (judicially recognised) normative principles and practices of constitutional law, even though the latter principles are not explicit in the constitution itself. Third, the analysis may turn to sources in international law and practice (in particular, self-determination) as some form of over-arching, neutral justification outside national constitutional law. The ever-expanding range of justificatory sources reflects the central difficulty of a reified, positivistic (constitutional) analysis to find a suitable foundation to explain and administer constitutional law. And it opens itself to criticism that perhaps secession is of such a peculiar and fundamental nature that it transcends all and any attempt to circumscribe its limits by any law: it is purely and simply political in all its facets. Secession and other fundamental constitution-­ building questions should in fact be ‘outside’ constitutional law, and indeed, the law in general. In answer thereto, it has been my intention to defend herein three simple, yet controversial, propositions. And as with such simple propositions, they rest upon a number of other much more complex ideas and arguments. First, in a functioning constitutional democracy under the rule of law, a purported unilateral declaration of independence by any substate group has neither constitutional nor democratic legitimacy. This does not go to prohibiting or blocking secession as some ordinary unconstitutional or illegal act, but rather as a trigger for further national political and social action. It should bring the entire polity,

382  Conclusions citizens and officials alike, to conscious, active awareness (as well as notifying all other states) that their associational relationships and commitments establishing in the first place the democratic political association mandate a co-operative and consensual, participatory and deliberative effort to change, substitute or dissolve them. Second, secession perceived as ‘state-breaking’ perhaps over-emphasises the institutional, reified aspects of constitutionalism. Secession is better understood as a dissociation of a polity, the inverse, the opposite of its initial association. As dissociation, secession entails dissolving the bonds of co-operation, mutuality and reciprocity that hitherto held diverse individuals together and that compelled them, constrained and restrained them, benefitted and burdened them. The generation of those bonds, the coalescing into a polity, represented the ‘deep structure’ of a constitution. A constitution, written or unwritten, articulated that deep structure. It did so with varying degrees of accuracy, detail and currency depending on the flexibility and elasticity of the surface level comprised of the actual, day-to-day constitutional organs, institutions and rules and principles. A secession crisis (or like associational crises) required engaging that deep structure directly, even bypassing surface level constructions. Third, this conception of a constitution’s deep structure as a co-operative and consensual, participatory and deliberative engagement among individuals offers another perspective on the normativity of law. The dynamic, motive character to associating highlights the process of transforming private individual beliefs, interests and desires into public values and norms through interaction, debate, agreement and reinternalisation. Our individual pool of commitments may lead us in one direction or another, and with or against others. Because we live with and among others, we must negotiate our way though them. It is that feature of negotiation, of encounter and adaptation, that reflects normativity, more so than the content or form of a commitment or rule. These three propositions were framed in a reinterpretation of constitutional law, ‘associative constitutionalism’. This conception of constitutionalism sought to capture more firmly the mutually reinforcing nature of political and legal relations and their dynamic nature, all creating a constitutional order. If society evidenced the art of living well, then constitutionalism evidenced the art of living well together. Whatever the particular societal direction and form taken, the primary condition of society is a recognition and acceptance that the content of that meaning and direction of society’s value orientation originated in an individual’s interrelationships with others. Underlying those relationships, the kernel to ‘associating’, is a process of consensus and deliberation to establish the generally accepted content and scope to those relationships (the ‘transform­ ative event’). Democratic will formation was an intersubjective attempt to co-ordinate interests, beliefs, desires, values, and such like, to allow everyone a purchase on those ideas. The decisions taken upon deliberation formed the norms of that association, and grounded the internalisation of them by members of society. For that co-ordination, compromise and consensus were necessary. And because we are creative, self-minded, imaginative beings, we are always proposing new ideas and interpretations or reformulations. So whatever the normative stance taken vis-a-vis particular ways of living with and among others, immanent therein as an important part of it is an openness to the potential for its change, substitution or dissolution though social interaction. Informing those features of a democratic community was an idea that such a conversation among citizens required some sort of structure and organisation, broadly stated. That is, it assumed not only an actual mechanism of conversation and decision-making,



Disassociating the State 383

but also all the preconditions necessary for that mechanism to exist and function appropriately. The idea of democratic self-government cannot exist or subsist apart from the idea of free, equal and rational participants who communicate and deliberate, and therefore necessarily mutually and reciprocally recognise one another as just the same. No one’s values or ideas completely lack or have any privileged access to universal, metaphysical truth and rightness. This gave us a connection between a constitutional order and a democratic order. It was this dynamic essence to the terms ‘associative’ and ‘association’ that distinguished it from its use by the deliberative democracy school of political theory. Rather than focussing on group formation itself and its related norm formation, conceptions of ‘associative democracy’ there spelled out a descriptive sociology of various types of social groupings which organised and wielded social power in the larger structures of people living together. By contrast, what ‘associative constitutionalism’ intends to cover (and not merely in one state, but across all states and across all forms of intersubjective action) has little to do with the distribution of power and social structures. It is not a procedural conception of social power, if that procedure is conceived of as orienting and distributing loci of power. Instead, for lack of a more handy descriptor, it would expose an ontology of creating social solidarity and significance. Its primary opponent was thus the (over-)reification of constitution and constitutional law. I sought to re-emphasise the intersubjective inter­ action wherein value and action co-ordination take shape. While procedural elements remain, their frame of reference is the narrower processes of individual interaction itself. From an associative constitutional law perspective, the social significance and values constituting a relationship exist in and through the relating process. DISASSOCIATING THE STATE

Under associative constitutionalism, secession represents the effect of a seemingly insoluble division in the foundational commitments to the state association between two groups of members. When a number of individuals express a common intention to secede, those members declare themselves no longer bound to and by the foundational commitments of, and the control and authority function under, their erstwhile state association. Moreover, they announce the existence of a new formal state association, and their membership therein. Now, by virtue of their intention to secede, these individuals have obviously identified certain common foundational commitments exclusive to themselves and not shared by the rest of the membership. Accordingly, they declare themselves members of an association whose commitments are necessary and sufficient for the membership to stand apart from the rump state and which stands on an equal footing with the rump state. I can recapitulate all this, in summary fashion, by suggesting that the underlying premises to secession are that the extant state is comprised of at least two autonomous associations, that the extant state is in fact an association of associations, and that the common bonds between those associations have now dissolved, returning each of the constituent associations to their primordial autonomous standing. I have already determined much of the content of ‘autonomy’ by speaking of common foundational commitments exclusive to the members of an association. It is obviously in virtue of those exclusive and common commitments that the individuals at issue form that very association. And equally, the requirement of commonality speaks to the

384  Conclusions formation of the secessionary group as an effective association so as to exclude from consideration a mere congeries of disaffected members. Such a latter collection, having only their antagonism to the status quo as common bond, may well undermine state stability and bring about constitutional stress. But their objective (and result) is itself limited to changing the status quo, and not to forming their own separate state association. As soon as they attain the objective, or reconcile themselves to the status quo, the common bond dissolves. There is nothing left to carry the group further. Exclusivity, in one sense, is the obverse of commonality. Here, exclusively held commitments result in a division of individuals into notional or actual members and nonmembers of the secessionary association (that is, ‘friend or foe’). In effect, we are merely stipulating the formation of (at least) two associations whose members are mutually exclusive: being a member of one should disentitle membership in the other. But simply to have commitments held by some and not other members does not sufficiently separate the two groups at the associative level we require to achieve secession. After all, there exist already in any state a number of associations whose commitments are exclusive to their respective membership, but the exclusivity of which does not necessary imply an intention to secede. Exclusivity must divide commitments and commitment holders at the initial, association-forming level. The reasons for this track those given above for commonality. So that which transforms mere exclusivity into a desire or basis for secession must be the commitments at issue. They must obviously be understood as fundamental to continuing membership in the extant state association. The foundational commitments at issue for the group must be treated as the sine qua non for association. Their absence from the set of common commitments held by the other members entails that no necessary and sufficient commonality exists between the seceding group and the rump group for continuing a state association as presently constituted. Additionally, the commitments at issue must be inconsistent or irreconcilable with those articulated in the current state. As such, there will be pressure on the group to conform, by rejecting or amending these commitments, or to separate themselves from the rest so as to preserve these commitments. This is the second aspect to exclusivity. This is the sense of ‘exclusivity’ best understood as ‘having the ability to exclude others from the association’. To establish secession under associative constitutionalism, members forming a group intent on seceding must have determined that their own, current set of foundational commitments are no longer the same in nature or articulation with that of the current state association, and that the range and degree of difference is such that no rapprochement or accommodation is possible. And so, these members seek to leave the state association, having no longer anything in common with the other members on which basis they could or would associate. The natural and obvious question is what triggered this perception of a fundamental difference and the correlate desire to exclude members from a more widely set transformative event? This question becomes all the more significant when we recall that up to the point of deciding to secede, both sides co-operated in apolitical association, and shared associative relationships and associative commitments. Unless we postulate an act of oppression or indignity whereby a division is forced between the two, a ‘lack of recognition’ to borrow from Honneth, the decision to insulate and isolate participation in the creation of community values must have some rational foundation.1 Is it merely an   A Honneth, The Struggle for Recognition (Cambridge, Polity, 1995).

1



Dissociation and Theories of Secession 385

act of political will, the desire to arrogate and concentrate greater social power over a group? Is it an act of social will, the desire to direct social power and social values in an entirely different direction? In any case, the associative model would presume that such a change in associative relationships and associative commitments is open to deliberation and evaluation. Those reasons are not presumptively legitimate, any more than the reasons and decisions taken before secession, or on any matter other than secession. They are not insulated nor isolated from critical social evaluation, and thus acceptance, rejection or variation.

DISSOCIATION AND THEORIES OF SECESSION

Political decisions may occur at local, regional or national levels. But we ought to recognise that the wider the implications for members of society, the more desirable, urgent and necessary it becomes to involve all reaches of society in deliberating on those issues and possible solutions. A fundamental shift in the structure and extent of a polity, in the articulation of its constitutive associative commitments and associative relationships, represents a matter whose consequences and ramifications extend throughout a country. Specifically, a decision to secede, to withdraw from a polity, does not begin and end at the borders of the substate group: it is a decision for the whole country. This means that if a substate group disagrees with the direction the state – its population as a whole – is taking, then that group must initiate the process of deliberation and evolution of associative commitments and associative relationships by engaging the rest of the population in a determination of those issues and problems. This discounts the possibility of any primary right theory and nationalism theory. Where a constitutional order is functioning normally, institutional guarantees applied at the social, political, and above all legal, levels ensure that recognition and deliberative possibilities remain effective and open to all citizens. Only when these collapse, and the institutional guarantees no longer apply or state organs are unwilling or unable to apply them, does the associational character of a polity come under such strain as to disintegrate. Law, order, constitution, politics, and their descriptions as ‘systems’, no longer have any bearing on the reality of the situation. Oppression dissolves a (democratic) association because it infects and dismantles the necessary internal structure of recognition and deliberation. In these circumstances we can speak of secession as a ‘remedial right’. Secession remedies the absence or destruction of a political association, by allowing a group the space and means to create one or reform as one.

LAW, POLITICS AND BEYOND

Thus, the law’s articulation of an association’s common commitments not only acts as a template by which to guide and measure future conduct but also to invite reconsideration of its articulation of, and indeed the nature of, the common commitment itself. The legitimacy of any particular articulation (into law) is always an open question. It is not the task of the law actively to posit a commitment or inform its meaning. The commitments, their meaning and the direction of their articulation must come from the inter­ actions of the members of the association. What is important here is to understand as a

386  Conclusions consequence of associative constitutionalism that decisions relating to the constitution of a state are as much legal questions as they are political ones. And this, not in the trivial sense that such decisions will have consequences in and for the law and legal order, but that political (constitutional) decisions obtain in a legal framework and are subject to the current legal order. As the obverse to this proposition, the divide between law and politics is much more faint and permeable than sometimes comfortably assumed or desired, reducing the law’s claim to a purer view of morality based upon an insulation or autonomy from politics. The law’s distillation of the standards of conduct represents more points of discussion or interim solutions, rather than final complete articulations. Under associative constitutionalism, no issue arising under secession (and constitutional stress more broadly) falls ‘outside’ the constitution, the political process of the state or the legal system of the state. Both the process undertaken to deliberate on the commitments at issue and the definition of those commitments and their principal articulations lie within the hands of the legal system. That is, it is for a legal system to ensure adherence to the established norms and practices as the constitutional crisis develops. Indeed, the political system and legal system can and should control the progress of events in their entirety, both in process and in applicable norms. This is not to diffuse the crisis itself, so much as to diffuse the explosive tensions necessarily correlate to constitutional stress. Even where a constitution is threatened with dissolution, there remain the rules of the game (under the current constitutional structure) which govern up to the very point of dissolution. These rules derive from the current collection of commitments upon which the state association is formed. Providing for a continued functioning and respect for these rules allows members to focus upon the substance of the difficulties at hand, rather than meeting the vacuum or chaos with added chaos. Hence, associative constitutionalism compels any secessionist impulse to redefine itself into a movement for accommodation, or consensual constitutional change or dissolution, based on a review of all the commitments supposedly held in common by all members of the state association, not only the ones creating political friction. Even the principles of international law (such as self-determination), insofar as they exhibit any definite practicable content for national situations, do not stand ‘outside’ the constitutional situation because those principles need to be interpreted within the national context and be given national meaning. Drawing that fully out might well see international law as merely reiterating what already is at work within the state. Insofar as international law purports to address the inner workings of a state, to regulate political institutions and actions, it must have some anchor in the commitments, values and ideas currently existing in the legal and political system. Otherwise it will fall on sterile ground because those articulations have no basis or foundation in the standing commitments of the state. Even if international institutions arguably offer an objective or nonaligned platform to determine secession (or other fundamental) matters, the principles by which those determinations are made need some to have some current articulation in the polity. Absent such commitments, the articulations are merely alien pronouncements whose effectiveness lasts only as long as a coercive power remains to enforce them. The only other option available is war. Where the cost of war, the complete collapse of civil society, acts as no or little hindrance to pursuing the secessionist goals, then constitutional principles, the rule of law, common commitments, legality and legitimacy, all have little importance and meaning in the first place. We return to the more primitive situation of brute force and unilateral action. Only after some stability is achieved over



Law, Politics and Beyond 387

time can co-operation and community, and the mutual trust grounding the two, begin once again the very long process of development. These observations reveal in the extremes they posit certain additional, important and unresolved issues with the presentation of associative constitutionalism here. Two more obvious ones are firstly, the bi-polarity of constitutional order (inside the constitution) and war (outside the constitution); and secondly, the nature and content of public international law and its relationship to national legal systems. If associative constitutionalism reduces the analytic framework to a binary calculation of peace–war, constitutional order–a-constitutional disorder, it would present constitutionalism as the talisman for all forms of social ordering. Social groups and ordering would be constitutionalised or be understood to be subject to constitutional principles and law. This possible reading of associative constitutionalism would, to my mind, conflate social interaction and ordering with constitutionalism and constitutions, and tend to trivialise constitutionalism. The danger to this reading is an obscuring or loss of understanding what a constitution and a legal system are and do, of understanding the distinction between the public and private, the political and social. Hence, associative constitutionalism would need to trace out more clearly how it distinguishes itself from ‘societal constitutionalism’ (if possible) and what the field of operation is for ‘constitutionalism’ and ‘constitutions’. Thirdly, the social interaction upon which associative constitutionalism is predicated retains what may be described as (generously) a classical or (less generously) a pre-­ modern, nineteenth century view of politics and state based on territory. The postnational constitutional movement conceives of boundaries more in terms of domains of activity and interest, given the inter-connection of people across the globe. On the one hand, this would suggest that the associative groupings from which emanate binding commitments are in fact transnational, with a corresponding, necessary adjustment to the conception of constitutionalism and constitution. And this in turn feeds into a societal constitutionalism reading to associative constitutionalism. On the other hand, the premise that law articulates those commitments generated through interaction and engagement is inconsistent with ideas of ‘autonomous’ and universal legal principles. Law and values cannot be dislocated, ‘unsituated’ from any given group of persons. Law is grounded; it is rooted in local practice. Yet public international law seems to dictate a set of commitments and to impose them upon citizens without first allowing them an opportunity for a transformative event. That event would allow people to evaluate and amend the content of the proposed associative commitments – even to reject them. And by virtue of imposing these commitments upon the populace, public international law would reify the state apparatus, distancing it from the people and their transformative event. Hence, associative constitutionalism would need to navigate more clearly through these two widely divergent readings of international or transnational law, one being coherent with and the other antagonistic to associative constitutionalism. A fourth issue is less prominent, but equally important. A constitution articulates the deep structure of a polity, the deliberative and mutuality character in the composition of its surface layer of institutions and rules. In striving to highlight this deep structure and its dynamic aspect, associative constitutionalism may give the impression that it would diminish or would bypass the institutional structures on the surface level. This, especially so during a secession crisis. In other words, associative constitutionalism may be understood to posit or require some meta-forum for democratic deliberation and value creation, over and above those institutions and organs established by a constitution for

388  Conclusions the same purpose. In other words, can associative constitutionalism only be realised (perhaps paradoxically) outside of current constitutional structures? The ‘constitutional’ would be relegated to some institutionalised area deemed the ‘political sphere’. I would demure. Associative constitutionalism should be understood to be working within the established structures and be aiming to reinvigorate the deliberative potential of those institutions. If so (and what I see to be both realistic and correct), it would have to give greater credit to those institutions by defining their roles in more detailed fashion, both for ordinary and extraordinary constitutional moments. And this, without falling victim to reification. Human rights clearly demand an intersubjective context in which to arise and operate. A right is formed to the extent to which a party to a relationship may pursue certain commitments considered necessary and sufficient to the complex interaction defining and constituting that particular relationship, in face of and unimpeded by other competing commitments of the other parties to the relationship. This in turn presumes an intersubjective relationship, communication and deliberation. An individual must have the opportunity, if not to consider the commitments going to make up the right, then at least to internalise the right and underlying commitments. These two aspects formed the ‘double movement’ of the transformative event examined in chapter 2. This presents little problem for a conception of human rights which originate within a particular constitutional order. Associative constitutionalism understands the thoroughly local orientation and source for human rights: they are the product of local interactions. Three principal difficulties arise when such rights are posited at an inter­ national level. In the first place, we cannot assume regular intersubjective contacts at an international level leading to the development of common associative commitments and intersubjective relationships.2 International co-operation is not commensurable with that occurring among fellow citizens within a given constitutional and political system. It is not as frequent. It presumes the interposition of (competing) constitutional and legal systems, rather than establishing its own. Second, the objective is not to develop associative relations among internationally placed individuals, but to introduce certain values and norms into currently existing relations among governments and their respective citizens. To put this in contractual terms, international human rights would create contracts between governments for the benefit of third parties (their own citizens); whereas national human rights are direct contracts between government and citizen (achieved through the constitutional system). Third and following from the above, international human rights and international law more generally are commonly seen to suffer from a normativity deficit because they carry the perception of being ‘foreign’ to domestic legal and value systems, of being imposed from ‘outside’ external sources.3 Whatever philosophical orientation we prefer 2   Thus J Charney ‘Universal International Law’ (1993) 87 American J Int’l Law 529, 543 ff, 550–51 (arguing for the augmenting use of international fora as parliamentary (deliberative and legislative) instances). 3   Hence, the extensive body of commentary on what makes states obey international law: see, among others, H Hongju Koh, ‘Why Do Nations Obey International Law’ (1997) 106 Yale LJ 2599 (providing a good survey of the various schools of thought regarding the normativity of international law) and ‘Bringing International Law Home’ (1998) 35 Houston LR 623; E Petildnalver, ‘The Persistent Problem of Obligation in International Law’ (2000) 36 Stanford JIL 271; F Teson, A Philosophy of International Law (Boulder (Colo), Westview, 1998); Charney ‘Universal International Law’ (n 2); A D’Amato ‘The Concept of Human Rights in International Law’ (1982) 82 Columbia LR 1110; J Donnelly, Universal Human Rights in Theory and Practice (Ithaca (NY), Cornell UP, 1989); T Franck, The Power of Legitimacy Among Nations (Oxford, Oxford UP, 1990); and L Henkin, How Nations Behave, 2nd edn (New York, Columbia UP, 1979).



Law, Politics and Beyond 389

for the source of normativity above and beyond mere physical coercion, we can all agree that what makes a rule binding is its internalisation, our adopting it as one of our commitments. Where we differ will be how we characterise this internalisation and its operation. Be that as it may, a socially authentic norm derives the moiety of its binding and compelling force from its being a product of deliberation and consensus prior to the moment of its adoption by each individual. But the situation with international human rights is that they require only internalisation, but do not expect nor allow for some prior deliberation on their meaning and scope of application. States are expected to conform to those norms and are so judged.4 In view of what we had agreed regarding nationalism in chapters 6 and 7, curtailing this constitutive and evaluative side of the normativity process separates the product from the producers, and interposes a distance between the law (and its officials) and the subjects of the law. And as we lose contact with our generative power over norms, we tend to attribute to them a fixed ontological status and value. That is, we reify the norm and thus the relationships as between state and people and among the people themselves that it is supposed to regulate. The argument in terms of associative constitutionalism is as follows. Public inter­ national law dictates a set of commitments and imposes them upon citizens without first allowing them an opportunity for a transformative event. That event would allow them to evaluate and amend the content of the proposed associative commitments, even to reject them. Thus, those commitments introduced through and by public international law represent commitments foreign and alien to the domestic set. Although for the most part public international law operates on the internal management rule, in matters of human rights (self-determination specifically) it posits that no transformative event is required and negatives the current organisation and requirements for a transformative event imposed by virtue of the constitutional union. Public international law thus ignores or fails to respect that a constitutional order forces a transformative event upon citizens, especially in matters concerning that order itself. The associative commitments propounded by public international law have no necessary nor sufficient relevance or reality for those citizens upon whom they are imposed, for they had no opportunity to grow them locally.5 Hence, the public international law intervention into national constitutional law via the human rights portal imposes commitments foreign to the associative collection constituting that state, for the former have no basis in those transformative events hitherto experienced and undertaken by citizens. And by virtue of imposing these commitments upon the populace, public international law necessarily reifies the state apparatus, distancing it from the people and their transformative event.

4   Taking human rights as obligations erga omnes or above that as pre-emptory norms of jus cogens means that they apply whether or not states consent to them: see, eg T Meron, ‘On a Hierarchy of International Human Rights’ (1986) American J Int’l Law 1, 14–21. 5  J Mertus, ‘From Legal Transplants to Transformative Justice: Human Rights and the Promise of Transnational Civil Society’ (1999) 14 American University ILR 1335, 1363–64: ‘One of the most basic lessons of the foreign development world that is applicable to human rights is that any transplants “must support domestically rooted processes of change, not attempt to artificially reproduce pre-selected results”’ (citing T Carothers, ‘The Rule of Law Revival’ (1998) 77 Foreign Affairs 95, 104).

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Index Abi-Saab, 330, 331 Ackerman, 8 Anderson, 216, 238 articulation, 66, 75, 82, 83, 153   rules, 69–70 associations, 52, 53, 54, 143, 176, 382    consent, 87, 88   dissent, 94    foundation, 57, 192    government and control, 55, 57, 63, 76, 77, 88    nationalism, 199, 216–17    secession, 105–07, 158, 159   self-determination, 197   see also groups associative commitments, 22, 23, 52, 53, 56, 192, 236, 292, 294, 298, 329, 384, 386    authority function, 60–61    commensurability, 176–77, 177, 178, 214    common/shared, 58, 79, 80, 103–04, 120   discrimination, 174–75    foundational, 57, 144, 176, 384    incompatible/opposing, 158, 159    institutional character, 153, 157    internalisation, 57–58, 68, 69, 80, 81    mutuality and reciprocity, 22, 52, 62, 96, 98, 100, 113, 115–16, 118, 130, 144, 157, 162, 172–73, 213, 214, 221–22, 328    nationalism, 145–46, 199, 200–01, 206–08, 209, 210–12, 217–18, 221–22, 228   remedies, 154–55    rules, 65, 82    secession, 23, 130, 144, 145, 156, 157, 158–59, 160,   see also associative relationships, transformative event, secession associative constitutionalism, 22–24, 50–55, 59, 62, 78, 143, 163, 249, 382–83, 388–89    authority function, 60–61   disassociation, 158–60    federalism, 281, 292, 294    legitimacy and legality, 61    locus of power, 51   networks, 52    reification and civil society, 50, 59    rules and norms, 66–68, 71, 75, 261    secession, 82–83, 144, 145, 157, 160, 260   solidarity, 52 associative relationships, 22–24, 42, 52, 53–55, 120, 130, 143, 153, 157, 160, 178, 261    benefits and burdens, 172–73, 174, 192    justifying dissolution, 112, 113, 144, 145, 158–60    ordering and structure, 54, 55, 142, 143, 173   see also associative commitments, institutions and institutionalism, transformative event authority and control, 59–60, 62, 79

   associations and groups, 55, 56, 57–59, 60–61, 68, 69    institutions, 62, 76, 77    rules, 63, 75 autonomy,    consent and dissent, 107    federalism, 285, 286–87, 320    group membership, 87    nationalism, 195, 200, 204, 222–23, 225, 229–32    self, 17, 102, 119, 196–97, 200, 201, 240–41, 242–43, 245   see also individual, self-determination Bartkus, 11 behaviouralism, 34–35 Bellamy, 262 Beran, 106 Berlin (Isaiah), 127 Bildung, 212, 214, 215 Birch, 126 Bookman, 11 Breuilly, 206, 207, 216 Brilmayer, 190–91 Brossard, 287 Brun, 359 Buchanan, 13, 16, 18, 117, 120, 125–32, 134, 135, 137–40, 156, 159, 165–66, 171, 174, 177, 179, 180–85, 186–87, 188–90, 191, 256 Bundestreue,   see federalism Bynes, 347 Cartier, 284 Cassesse, 330 civil disobedience, 19, 21 civil society, 34, 44, 47, 48–50    dense networks, 49    reification, 48, 50 clear majority,   see secession collapse and dissolution of states, 20 commensurability and incommensurability, 157–60, 176–77, 177, 178   culture, 214 communitarianism, 17, 34, 44, 48, 105, 119, 214, 244 Cohen, 48, 49 Conklin, 5 consent, 86, 101, 128, 131    bipolarity, 120, 121, 122, 124   co-operation, 121    dissent, 91–92, 93, 94–95    fairness principle, 95, 96, 99    group membership, 87    individual autonomy, 107

426  Index consent (cont):    normative role, 87–88    political obligation, 62, 89, 108–09, 110, 111, 118, 121, 122    secession univocal, 122, 327–28, 329    tacit consent, 89–91, 95, 96 constitution, 8, 34, 50, 82, 83, 314, 318    amendments, 274–75, 303, 311, 318, 322, 364    architecture, 33–34, 35, 36, 252–54, 315, 328, 335, 375    deep structure, 4–5, 12, 13, 19, 47, 255, 260, 315–25, 382    disorder and secession, 13    dissent right (Canada), 91, 92–93    elasticity, 318, 319    hierarchy and collegium, 35, 36–37    historical interpretation, 314, 315–17, 319    material-formal, 35–6, 315–16    political association, 19, 34, 78    secession, 17, 251–58, 259, 263, 274–75, 303, 311, 324, 332, 337, 339, 345, 357–58    system of rules, 35, 64–65, 70, 82   see also pre-commitment values constitutional realism, 17, 32–33 constitutionalism, 6, 7, 36, 50, 59, 263, 307, 315–25, 328    law and politics, 307–08, 345   nationalism, 203–04    reification, 43, 46, 47    rule of law, 6, 7, 8, 9, 260–61, 340   see also associative constitutionalism, separation of powers, rule of law Craven, 8 Crawford, 330, 331 culture, 179–80, 197–98, 214, 215, 238    membership in, 180    right to preservation, 180–83, 184, 185, 191, 227, 252, 325    nationalism, 187–88, 199, 228   territory, 186   see also oppression, secession damages, 150–51 declaration (judgment), 149–50, 303, 304 devolution, 20 Dicey, 20, 356–57 discrimination,   see oppression discriminatory redistribution, 165–66, 171, 172, 174–75, 190, 191   see also oppression, secession Doehring, 330 Dworkin, 58–59, 62, 112, 133, 244 Elazar, 14, 338 Elias, 5–6 effectivity principle,   see secession Epps, 331 fairness principle, 95, 96, 99    mutuality and reciprocity, 96, 98, 100

  participation, 97    secession, 99, 100 federalism,    borders, 169, 170, 282–83   Bundestreue (federal loyalty), 284    Canadian, 266–68, 269–70, 279–80, 290–92, 340    compact theory, 280–81, 283–84    distributive rationales, 169, 170    division of powers, 281–82, 320   identity, 286–87    minorities & majorities, 289, 322, 322–23    regional units, 286, 293–94, 319–20, 322    secession, 22, 250, 279–80, 281, 283–84, 287–88, 289–92, 337, 360, 363 Franck, 330, 331 Garant, 359, 362–63 Gellner, 210, 217 Glover, 210 gratitude principle, 98, 99 groups,    associative-ascriptive, 18, 85    associative commitments, 103, 104, 231–33    consent, 87, 88, 104, 105–06   liberalism/communitarianism, 105    membership, 85, 88   privileges, 105    rights, 17, 102–07, 143    will-formation, 12, 327   see also associations, federalism, nationalism Habermas, 77, 294, 346 Haldane, 320 Hanna, 13 Hart, 2, 16, 58, 63–64, 152 Havel, 4–5 Herder, 212, 213, 214, 216, 217 Hirschmann, 113 Honneth, 228, 384 Hobbes, 33, 86, 155 Hobsbawm, 207 Hohfeld, 135–37, 139–40 Hogg, 272 Howse and Malkin, 278–79 Hume, 89 incommensurability,   see commensurability individual,   consent, 87–88    defined by nation, 198, 199–200, 201, 206–07, 219–20, 222, 225, 230–32, 234–35, 238    identity, 130, 196–97, 215, 222–23, 236, 241–43, 244–45    self-determination, 119, 196–97, 199, 240–41, 244   see also autonomy institutions and institutionalisation, 47, 72, 73, 75, 142–143, 379    authority function, 61–62    institutional premise, 74–76, 78, 219    relational ordering, 72–74, 142, 153, 157    remedies, 152, 153–55

   repository of meaning, 74–75, 76, 77    system of rules, 64 Jefferson, 90–91 judicial review, 306–07 Kelsen, 2 Kymlicka, 116, 181, 185, 195, 210, legitimate expectations, 114–15, 117, 118 legitimacy and legality, 4, 9, 12, 322–23, 328, 329, 331, 379    associative commitments, 61, 82    group membership, 85, 327    validity, 12, 166, 365   see also judicial review, rule of law Levinson, 8 liberalism, 8, 34, 44, 119, 190, 191, 244    consent theory, 86, 105   nationalism, 201   secession, 17   sovereignty, 88 libertarianism, 85–86 Locke, 86, 89, 97, 106, 121 Lukacs, 39–40, 69 MacCormick, 74, 80 Maitland, 319 majority/minority, 109 McKim, 210 Mill, 5 Monahan, 272, 273, 274, 278, 302 monarchy,   see secession Montesquieu, 29 mutuality,   see associative commitments nationalism, 194–95, 196, 206–08, 209, 215–16, 244    ascriptive approach, 85, 210    associative commitments, 145–46, 159, 204, 209, 210–12, 216–17    autonomy, 195, 285, 286–87    defining members, 198, 199–200, 201, 206–07, 219–20, 222, 225, 230–32, 234, 235    discrimination, 177, 228   dissent, 94   liberal, 236   nations, 224    national self, 200–04, 227–28, 234, 235    pre-political entity, 205    primacy/priority, 199–200, 205, 221, 228, 230, 231–33, 235, 237    primary right theory, 198–99, 201, 202–03   reification, 238    secession, 17, 159, 186–88, 195–96, 198–99, 201, 202–03, 227, 239–40, 287–88, 289–90    solidarity and cohesion, 217–18, 220    territory, 195, 286–87   see also federalism negotiation, 311, 326–28, 329, 340–41, 358, 359, 367, 372, 377–78

Index 427   democracy, 322    right to secede, 343–44 Norman, 16, 22, 116, 126, 252, 253, 256–57 Nova Scotia (secession petititon), 316 Nozick, 111 oppression, 127–31, 160–61, 185, 192, 332    culture, 126, 179, 180, 192, 228    discrimination, 165–66, 168–69, 174–75, 177, 190    grounds for secession, 125, 126, 133, 160–61, 162, 167, 168–69, 171–72, 179, 180, 259    historical grievances, 182    illegitimacy of state power, 128, 131    nationalism, 177, 228   see also constitution, constitutionalism, discriminatory redistribution, secession Parsons, 51 Patenaude, 284 Parizeau, 301 Pellet, 330, 331 Plamenatz, 98 political association,   see constitution political question, 3–4, 5, 71, 304, 305, 307, 312–14, 338–39, 359, 362, 363, 369 positivism, 2, 371, 379 pre-commitment values, 32, 46, 71, 163, 315   nationalism, 203–04   see also constitutions, constitutionalism prerogative, 357 public-private divide, 43–46, 53–54, 361 public administration, 38–39, 42 Putnam, 49–50 Rawls, 98, 101 Raz, 76–77, 110 realism,   see constitutional realism reciprocity   see associative commitments referendum, 250, 303–04, 326,    Quebec secession, 9, 10, 300–02    secession process, 302, 368–69 reification, 39–40, 41–42, 43, 45–46, 238    constitutions, 42, 43, 46, 47, 382    intersubjective relations, 40, 41    perils of, 47 remedies, 132–33, 135, 136–37, 146–48, 149, 152, 156    commitments, 154–55, 156   damages, 150–51    declaratory judgment, 149–50   imprisonment, 151–52    instrumental/institutional character, 152–55, 164    oppression, 133, 182, 185    performative aspects, 147–48, 148–49, 151, 152, 162–64    secession, 133, 137, 140–141, 144, 145, 156, 162, 163, 188–91, 303 Renan, 234 republicanism, 8

428  Index revolution and reaction, 10, 21, 249, 252–53, 255, 258–59 rights, 141–42, 143    continuity condition, 143–44    culture, 142, 180–83, 184, 185    group rights, 102–07, 143    mutuality condition, 145    taxonomy (Hohfeld), 139–40    territorial claims, 189–90    to remedies, 135, 136–37, 149, 154–55   see also groups, secession Ross, 98 Rousseau, 97, 214 rules and norms, 64–65, 66–67, 68, 69, 79, 152–53   articulations, 69–70    associative constitutionalism, 66–67, 68, 70    public-private mediation, 66–67 rule of law, 6, 7, 8, 9, 12, 13, 260–61, 305, 308, 311, 323, 324, 325, 347    democracy, 324, 344   see also constitutionalism Schmitt, 176 Schwartz and Waywood, 126 secession, 9–10, 14–15, 62, 82–83, 116, 130, 157, 160, 324, 331    civil disobedience, 19, 21   classification, 17,18    clear majority, 253, 321–23, 326, 352, 353, 354, 359, 369, 375, 376    collapse and dissolution of states, 20, 252–58, 335, 384    consent theory, 89, 90–91, 101, 256, 327–28, 329, 335    culture/nation, 179, 180, 186–88, 191, 195–96, 198–99, 201, 202, 227–28, 239–40, 325, 335    disorder, 13, 157–58, 160    disjunction of sovereignty and law, 13, 62    dissent right, 91–92, 93, 94–95    effectivity principle, 331    fairness principle, 99, 100    group rights, 105–07    institutionalised, 16–17, 78, 253–54, 256–58    justification required, 106–07, 108, 109, 118, 305, 335–36    monarchy, 266, 267, 270–71    moral rationale, 124–25, 131    opposing/incompatible associations, 158–59, 160   oppression basis, see oppression    remedial basis, 125, 127–28, 132–34, 137, 140–41, 144, 145, 156, 167, 168–69, 172, 190, 191    political character, 1, 2, 5, 14–16, 21, 32, 255, 260    rights character, 16, 17, 144, 189–90, 328    strategic bargaining, 114, 119, 235, 367, 372–73    territorial account, 185, 188–91    unconstitutional, 303–06, 326, 332    unilateral declaration of independence, 9, 10, 11

  see also devolution, federalism, nationalism, negotiation, revolution and reaction secession referenda (Québec), 92, 94 self-determination, 11, 12, 17, 137, 186, 199, 245, 289–290, 308, 322, 332    identity, 130, 196–97, 240–41, 242–45    international law, 330–33, 334    nationalism, 145–46, 194–95, 196, 221, 239–40    oppression trigger, 129–31, 192 separation of powers, 3, 4, 5, 7, 36, 37, 310–11, 313–14 Shaw, 330, 331 Smith, 206 sovereignty, 20–21, 88, 266, 322, 330   nationalism, 218    popular, 5–6, 9, 11–12, 21, 322    rule of law, 7, 9 Simmons, 95, 98, 110, 111, 112 state,    equality and discrimination, 166, 171    institutional character, 37–38   supremacy, 38 Sunstein, 120, 214 Tamir, 210, 236 Taylor, 16, 120, 242–44, 245 territorial claims, 185, 188–91, 282–83, 330   nationalism, 195    primary right theory, 117–18   see also federalism, secession de Tocqueville, 51 Tierney, 22 Tradition (Herder), 212 transformative event, 22–23, 53–54, 77–81, 143, 153, 158, 160–61, 178, 281, 329, 341    nationalism, 218, 220, 234, 237, 238    secession, rupture of, 82, 83, 160–62, 192, 354, 379 Turp, 279, 359 unilateral declaration of independence   see secession van Creveld, 6, 37, 38, 47 van de Putte, 222 Vile, 34, 35 van der Tang, 36, 42 Walzer, 48 Webber, 8, 272, 273, 274, 278, 280, 321 Wellman, 252 Wheare, 47, 267, 287 Wildhaber, 330, 331 Woehrling, 273 Zijderveld, 228 Zusamenwirkung, 213, 214, 215