Constitutionalising Secession proceeds from the question, 'What, if anything, does the law have to say about a secession crisis?' But rather than approaching secession through the optic of political or nationalist institutional accommodation, this book focuses on the underpinnings to a constitutional order as a law-making community, underpinnings laid bare by secession pressures. Relying on the corrosive effects of secession, it explores the deep structure of a constitutional order and the motive forces creating and sustaining that order. A core idea is that the normativity of law is best understood, through a constitutional optic, as an integrative, associative force. Constitutionalising Secession critically analyses conceptions of constitutional order implicit in the leading models of secession, and takes as a leading case-study the judicial and legislative response to secession in Canada. The book therefore develops a concept of constitutionalism and law-making - 'associative constitutionalism' - to describe their deep structure as a continuing, integrative process of association. This model of a dynamic process of value formation can address both the association and the disassociation of constitutional systems.
David Haljan is an Affiliated Senior Researcher in the Institute for Constitutional Law of the Faculty of Law at the University of Leuven,and Co-Editor of the Constitutional Law Series, International Encyclopaedia of Laws.
1 Constitutionalising Secession? Constitutional Order and Disorder Disorder: A Secession Crisis A Right Ordering of Secession Ordering the Right to Secede Terms of Reference A Note on Nationalism Reference Terms Outline of the Book Canada? In a Broader Context 2 Associative Constitutionalism The Realist's Challenge Form and Function: Structural Concepts National Constitutional Law Generally Constitution and Association Form's Legacy: Reification Reification and Constitutional Stress Civil Society Associative Constitutionalism Associations, Morality and Values Government and Constitution Government: Control and Authority Authority: Legality and Legitimacy Rules and Associations The Hart of a Constitution Nature of Rules Articulating the Constitution Associations, Institutions and Law A Theory of Institutions Transformation: Institutional Premise, Constitutional Promise A Constitutional View on Secession 3 Primary Right Theory Consent as Primary Consent, Obligation and Secession Insufficiency of Tacit Consent Insufficiency of the Fairness Principle What is Really Consented To? Consent and Group Rights From Primary Right to an Instrumentality Needing Just Cause Consent as Insufficient Grounds An Instrumental Concept Based on Just Cause Law and Politics of Consent Theory 4 Remedial Right or Just-Cause Theory Oppression as Justification for Secession Concept of Oppression Fundamental Difference from the Primary Right Model From Right to Remedy A Right Understanding of Secession Continuity Condition Mutuality Condition Parsing Remedies Institutions and Rights to a Remedy The Remedy of Secession Responsibility for Constitutional Collapse Implications of Transformative Failure: Remedial Secession What Gives Rise to Remedial Secession? 5 Remedial Secession and Disassociation Discriminatory Redistribution Discrimination as the Violation of Equality Equality, Commensurability and Associative Relationships Cultural Preservation and Self-defence A Nationalist Application of the Oppression Grounds? Rectificatory Justice Law and Politics of Just-Cause Theory 6 Nationalist Theory of Secession The Core of Nationalist Secession: National Self-determination Nationalism's Gloss on Remedial Rights: A Primary Right to Cultural Identity Nationalism's Affinity for Primary Rights: the Nation as Rights-Holder Summary: Different Strokes for Different Volks The Nation as the Summum Bonum A Concept of a Nation Culture of a Nation Subjective Standard: Imagining a Nation Nationalism and Politics Considerations on Subjectivity in Nationalism Next Steps: Who's the Boss? 7 Nationalism and Association Nation and Identity Protection of Identity Priority of National Identity: Enforcing the Boundaries Identity and Transformation Sources of the 'National' Self Law and Politics of Nationalism Theory 8 Constitutional Text and Context Of Text Hard Realities of Drafting A Questionable Achievement? Of Context Structure of Context Context of Structure Context of Amending Powers Context of Constitutional Rights and Freedoms Secession and Federal Constitutions Structure and Politics Federalism and Voice Conclusion 9 Negotiating Secession: Of Voice and Veto Background Bertrand v Quebec Bertrand v Quebec (No 1) Bertrand v Quebec (No 2) Quebec v Constitution of Canada Setting the Reference References and Constitutional Interpretation The Supreme Court's Opinion Preliminary Objection Justiciability and Constitutionality Question 1: the Constitution and Unilateral Secession Unwritten, Basic Constitutional Principles Federalism and Provincial Autonomy Deliberative Democracy and Qualified Majorities Bound by the Law: the Rule of Law and Constitutionalism Protecting Minorities Unconstitutionality of Unilateral Secession Primary Right Modelling of Constitutional Secession Questions 2 and 3: International Law, Secession and Constitutions Question 2: International Law and Secession Question 3: Domestic Law v International Law Justiciability and Justifiability Remedial Right Modelling Summary Of Voice and Veto: Popular Sovereignty and the Rule of Law Democratic Will and Constitutional Amendment Secession and Constitutional Veto Of Voice and Veto: Law, Politics and Secession Conclusion 10 Legislating Rules for Secession? Origins of the Clarity Act What the Clarity Act Says A Liminal Issue: Characterising the Powers under the Act Being Clear on the Constitutional Questions No Interference with Quebec's Referendum Jurisdiction No Clear Violations of the Charter of Rights No Vagueness to the Act's Provisions No Interference with Parliamentary Sovereignty The Absence of 'Clarity' No Definition of 'Clarity' Strategic Bargaining Restricted to Province-oriented Secession Attempts No Reference to Majorities Outside of a Secessionist Province A Clearly Positivist Approach to Constitutional Secession Process and Structure Pitfalls of the Positivist Approach 11 Conclusions Disassociating the State Disassociation and Theories of Secession Law, Politics and Beyond