Constitutional law and regionalism: a comparative analysis of regionalist negotiations

Breda, Vito (2018) Constitutional law and regionalism: a comparative analysis of regionalist negotiations. Elgar Monographs in Constitutional and Administrative Law. Edward Elgar Publishing Limited, Cheltenham, United Kingdom. ISBN 978-1-78347-012-9

Abstract

This topical book analyses the practice of negotiating constitutional demands by regional and dispersed national minorities in eight multinational systems. It considers the practices of cooperation and litigation between minority groups and central institutions in Australia, Britain, Canada, New Zealand, Italy, Spain, and the U.S. and includes an evaluation of the implications of the recent Catalan, Puerto Rican and Scottish referenda. Ultimately, the author shows that a flexible constitution combined with a versatile constitutional jurisprudence tends to foster institutional cooperation and the recognition of the pluralistic nature of modern states.


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Item Type: Book (Commonwealth Reporting Category A)
Refereed: Yes
Item Status: Live Archive
Additional Information: This is a monograph on constitutional negotiations between central institutions and regional national minorities. The book is divided into eight chapters. The first chapter explains why and when an identity-based constitutional claim should be inserted into a democratic constitutional system. The chapter explains that sub-state national identities, from the Maori to the Basque and from Native Hawaiians to the Scottish, should be considered as an element of modern constitutional democracy. I argue that a constitution is the manifestation of a distinctive identity and that any attempt to explain it as a culturally-neutral endeavour is contrafactual. The idea of ‘neutered’ public bureaucracy, that Hegel saw as the ‘universal class’ in the Philosophy of Right, is a projection of a self-directed and imagined national community. The characterisation of the state as neutral is potentially undemocratic because it allows the majority group that has already selected the cultural features of a democracy, such as its language and its established church, to exclude political claims because they are not culturally neutral. Chapters 2, 3 and 4 evaluate the past two decades of British, Italian and Spanish decentralisation policies. European nation states are under pressure externally by the expanding role of international organisations, such as the European Union, and internally by regionalism. Central institutions in Italy, Spain and the UK have different constitutional traditions and have chosen different strategies to grapple with the new regionalism. Italy’s federal reform has been driven by its amoral political system, called ‘neo-patrimonial’ by Fukuyama. Spain continues to experience an extensive constitutional litigation and political tensions. Hundreds of central and regional statutes to have to go through the review of the Constitutional Court. However, there are strong indications that such high levels of constitutional litigation, and the political tension related to it, are partly due to the political commodification of nationalist narratives by both regional and unionist political parties. Chapters 5, 6, 7 and 8 review Canada, New Zealand, the US and Australia’s constitutional systems, respectively. New Zealand adopts its own variation of the Westminster Models so it has a relatively flexible constitution. Maoris and Pacific Islanders have well-supported constitutional claims (e.g. the Treaty of Waitangi) that have progressively re-shaped the economic and territorial structure of the Kingdom of New Zealand. Canada, the US and Australia all have rigid constitutions. These, like New Zealand, are large, multicultural and mostly unbidden immigration nations that endorse civic nationalism and their distinctive, substantive constitutional patriotism. A democratic constitution should be, amongst other things, a historical manifestation of a covenant between individuals who might otherwise have nothing in common. This assumption is unproblematic insofar as it is not engaged by identity groups that pre-existed that model of political association. The chapters on Canada, New Zealand, the US and Australia discuss the effects that identity-based constitutional claims by national minorities, such as Native Hawaiians, Puerto Ricans, Quebecois and Aboriginals, have on these constitutional systems.
Faculty / Department / School: Current - Faculty of Business, Education, Law and Arts - School of Law and Justice
Date Deposited: 28 Sep 2018 05:37
Last Modified: 07 Feb 2019 04:36
Uncontrolled Keywords: comparative law, comparative public law, regionalism, secession, nationalism
Fields of Research : 21 History and Archaeology > 2103 Historical Studies > 210313 Pacific History (excl. New Zealand and Maori)
18 Law and Legal Studies > 1802 Maori Law > 180203 Te Tiritio Waitangi (The Treaty of Waitangi)
16 Studies in Human Society > 1606 Political Science > 160603 Comparative Government and Politics
22 Philosophy and Religious Studies > 2202 History and Philosophy of Specific Fields > 220209 History of Ideas
21 History and Archaeology > 2103 Historical Studies > 210311 New Zealand History
18 Law and Legal Studies > 1801 Law > 180101 Aboriginal and Torres Strait Islander Law
18 Law and Legal Studies > 1802 Maori Law > 180299 Maori Law not elsewhere classified
16 Studies in Human Society > 1605 Policy and Administration > 160501 Aboriginal and Torres Strait Islander Policy
18 Law and Legal Studies > 1899 Other Law and Legal Studies > 189999 Law and Legal Studies not elsewhere classified
18 Law and Legal Studies > 1801 Law > 180122 Legal Theory, Jurisprudence and Legal Interpretation
16 Studies in Human Society > 1606 Political Science > 160608 New Zealand Government and Politics
18 Law and Legal Studies > 1801 Law > 180108 Constitutional Law
16 Studies in Human Society > 1606 Political Science > 160601 Australian Government and Politics
21 History and Archaeology > 2103 Historical Studies > 210301 Aboriginal and Torres Strait Islander History
21 History and Archaeology > 2103 Historical Studies > 210305 British History
18 Law and Legal Studies > 1801 Law > 180106 Comparative Law
Socio-Economic Objective: C Society > 95 Cultural Understanding > 9599 Other Cultural Understanding > 959999 Cultural Understanding not elsewhere classified
C Society > 94 Law, Politics and Community Services > 9402 Government and Politics > 940201 Civics and Citizenship
URI: http://eprints.usq.edu.au/id/eprint/33630

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