Law and Public Policy



D02(c) - Constitutional Pluralism and Asymmetry

Date: Jun 12 | Time: 10:15am to 11:45am | Location: 680 Sherbrooke St. West 395

Chair/Président/Présidente : Yonatan Fessha (The University of the Western Cape)

Discussant/Commentateur/Commentatrice : Yonatan Fessha (The University of the Western Cape)

A Systematic Comparison of Self-determination Practices in Multinational Democracies: Félix Mathieu (University of Winnipeg), Dave Guénette (University of Sherbrooke)
Abstract: In what ways do contemporary multinational democracies deal with claims related to political self-determination typically made by agents of their constitutive societal diversity? In answering the question, this communication aims to shed new light on how various liberal democracies that are made up of two or more demoi organize their constitutional order to deal with demands for secessionism and self-determination more broadly. It does so in a decidedly interdisciplinary and comparative way, drawing on the tools of both normative political theory and comparative constitutional law. It compares cases such as Belgium, Canada, France, Italy, Spain, and the United Kingdom, with regard to the relative hospitality of their respective constitutional architecture towards claims that have been expressed with various degrees of intensity by the Flemish, Quebecois and Indigenous Peoples of Canada, Corsican and New Caledonian, South Tyrolean, Catalan and Basque, and Scottish and Northern Irish communities.


Legitimacy in Multilevel Constitutional Orders: Between Multilateral and Mutual: Maja Sahadžic (Utrecht University)
Abstract: Legitimacy in multilevel constitutional orders is influenced by several factors, one of the most prominent ones being the asymmetrical positioning of individuals, groups, and levels of government (in national, international, and transnational settings). Since asymmetrical positioning results in differences in status, powers, and fiscal autonomy (Sahadžić, 2021) they question, among others, the relationship between individual and collective rights, (Requejo, 2001) and the balance between the levels of government. This reflects on the perception of the legitimacy of multilevel constitutional orders (Burgess, 2006). For the multilevel order to be legitimate under the influence of asymmetrical solutions, the system has to be established in such a way as to acknowledge that legitimacy originates from several sources (multilateral). It also has to enable all these sources in their search for the accommodation of their interests (dynamic). But, the question is how to position the concept of legitimacy to achieve and maintain broad inter-acceptance and support for such a thing (mutual). Drawing upon research on multilevel constitutional orders, this paper attempts to (1) use the concepts of input, output, and throughput legitimacy to evaluate what effective and accountable participation and transparent processes use to build multilateral awareness and (2) explore the principles of equality and transparency that underline the concept of legitimacy to transform the narratives about mutual acceptance. In the outcome, the paper will reinforce the (3) concept of dynamic legitimacy.


Asymmetrical Constitutional Pluralism in Africa: The Coexistence of Indigenous and Received Constitutionalisms Then, Now, and in the Future: Jan Erk (Université Mohammed VI Polytechnique (UM6P))
Abstract: This paper takes a longue durée perspective covering colonial and post-colonial periods in Africa aiming to map out the different ways uncodified indigenous constitutional traditions are incorporated into the fold of modern written constitutions. The paper tracks the fate of three indigenous kingdoms which preceded the arrival of colonialism, their constitutional status as protectorates within the British imperial order, the strong position they enjoyed during the early days of independence, their weakening under the centralist/populist decades that followed, concluding with their recent resurgence. The paper has selected three case-studies from the three corners of Africa: Ghana’s Asante Kingdom from west Africa, Uganda’s Buganda Kingdom from east Africa, and Zambia’s Lozi Kingdom from southern Africa. What unites the three kingdoms is that, while they have all have gone through ups-and-downs constitutional history, they have remained more prominent in comparison to other indigenous polities inhabiting the same geography. The resilience of their traditional systems of law and the continuing loyalty they command from the grassroots make the three kingdoms informative case-studies. The main angle in the longue durée analysis is the relationship between uncodified systems of traditional law and governance and the formal constitutional order. The findings are from field-research and archives. The paper identifies three types of relationship which has varied over time, and the political consequences of each type. The final part of the paper is a reflection on how the future might unfold for these three kingdoms and what all this might mean for political stability and societal peace.