Emancipatory Federalism and Juridical Pluralism: The Multinational European Context

Joxerramon Bengoetxea - University of the Basque Country

1. Introduction

Adrás Jakab, in his impressive European Constitutional Language (2016), has identified what he sees as the key concepts of European constitutional law. These concepts are common to all constitutional cultures of the EU, they have a date of origin and a telos – i.e., a purpose to which they are meant to respond, a type of social challenge they are meant to address. Jakab also pro-vides normative guidance or advice for the use of the concepts in today’s constitutional discourse in Europe. The list of concepts, further developed in the book, co-mes in a useful table (pp. 88–9). The key concepts are “sovereifgnty,” “the rule of law,” “constitution,” “demo-cracy,” and “nation.” “Sustainability” is a concept in statu nascendi but not yet in the list.

There are two striking omissions, two key concepts of national constitutional laws – “republic” and “federa-lism” – that Jakab omits on the grounds that some of the constitutional cultures of the EU explicitly reject them. This argument seems flawed; for it may be that national constitutional cultures reject federalism as a key concept internally or nationally, but it remains a key concept in the external, supranational context of the EU. Likewise, the key concept of republic (or, in similar ways, of mo-narchy) might be rejected in one country but be consi-dered crucial to refer to another. As regards federalism, it is revealing that Jakab has instead selected “nation,” defined as a homogenous political community of equal members, giving it a telos that reflects similar concerns as those underlying the concept of federalism – especial-ly the question of how to accommodate ethnic diversity.

Jakab’s advice is to use the concept of “the European Nation” to refer to citizens of the EU. This approach implies a rejection of difference, of diversity, of asym-metries. The question of whether several nations could integrate or federate into a larger political community, while preserving their own, is apparently excluded. Moreover, a nation would require homogeneity, a requi-rement which multicultural societies might not satisfy. Separatism is a threat to the nation. But so would be communitarianism, and even some versions of pluralism.

It was in a similar vein that, in the autumn of 2019, President Macron responded to a question on Réunion la 1ère and Antenne Réunion about whether the wearing of the full veil was desirable in the public sphere. He said: “Le port du voile dans l’espace public n’est pas mon affaire. C’est ça la laïcité. Le port du voile dans les ser-vices publics, à l’école, quand on éduque nos enfants, c’est mon affaire. C’est ça la laïcité.” For Macron, the heart of the problem is communitarianism: “il y a aujourd’hui des femmes et des hommes, citoyens français, qui disent : ‘de par ma religion je n’adhère plus aux valeurs de la République, je sors mon enfant de l’école pour le mettre peut-être à la maison; je refuse qu’il aille se baigner avec d’autres, apprendre la musique… Et j’ai un projet de vie et de société qui n’est plus d’être ensemble dans la Répu-blique mais, au nom de ma religion, de porter un autre projet politique. Ça, c’est un problème pour moi. Ça, c’est un communautarisme. Et dans ce cas-là, j’ai un problème avec l’utilisation, la revendication, en quelque sorte, qui devient politique, de ce séparatisme. Si on confond les sujets, à ce moment-là on se met en situation de ne pas pouvoir véritablement régler le cœur du problème qu’a la République française, qui est le communautarisme.”

I do not intend to enter into a debate with Jakab as to whether federalism should or should not be a key concept of European constitutional law. What I find interesting is how a concept may be ingrained in a constitutional or political culture at one level, but not at another. Federalism is arguably a key concept of Basque constitutional culture, but not of Spanish culture; and yet again, it may be considered essential to the EU – much more so than the concept of the “nation.”

It is indeed telling that the concept of “federalism” should be excluded in Jakab’s list, but we should not re-sort to nominalism as the yardstick to identify a concept. Just because some constitutional cultures avoid the concept does not mean that they also avoid dealing with the issues addressed by that concept. Just because a culture lacks the term “law” does not mean that there is no law in its society (Tamanaha, 2017). Even when a term is in use, that is no reliable guide to what concept is behind it. There is a law of excluded middle, a law of thermodynamics, a law of the strongest, and the law of the land. The “law” in lex and the law in “ius” are distin-guishable synchronically and diachronically. This also seems to be the case for the term nation.

The concept of a nation as “dealing with diversity,” as opposed to the concept of a nation as reflecting a com-mon origin (natio-native as the place of birth or origin), takes us to the contrast between pluralism and union. This paper uses the term multinational, a term which can also connote different concepts. One “multinatio-nal” is a type of company that operates and has prin-cipals and subsidiaries in different states. Closer to the topic at hand, multinational can connote the coexistence of nations in a common entity or polity, or the make-up of an organization comprising people of different nationalities. As concerns federalism, the misleading effects of nominalism become clear when we enter into the details, distinguishing symmetric from asymmetric federalism, cooperative from competitive federalism, fiscal from compensatory federalism, or even federation from confederation. An important qualification of fede-ralism for many that advocate it is that it be emancipatory. A key requirement for this is pluralism. This is clear in the European context. Emancipatory federalism can be distinguished from those federalisms that are oppressive or bound. We will also need to problematize the other key concepts of our enquiry: pluralism and European. In the way the term is employed in this paper, federalism is based upon the constitutional recognition of difference and diversity (pluralism) and upon the concept of territo-rially divided, limited and shared government.

Part I of this article addresses the main features of European integration as a common project for unity in diversity, a telos spelled out as the “ever closer union amongst the peoples of Europe.” These words are in-cluded in the preambles of European treaties since 1957 and retain a place of honour in Article 1 of the Maastricht Treaty of European Union (TEU). This telos raises questions around multinational polities, the peoples of Europe making up a plural demos. Respecting this plurality, this diversity, while aiming at a common and shared legal, political, economic and social consti-tution, is really the essence of federalism.

In Part II, we deal with the question of pluralism in law and in constitutionalism, since we argue that there is a link between diversity – pluralism – and federalism. When federalism does not purport to dissolve or overco-me diversity, but rather tries to make sure this diversity is duly represented in federal governance, it can be said to emancipate the diverse and plural component entities. Otherwise, union will risk reverting to uniformity. The EU is an important case as regards the rela-tionship between the Member States and the Union. But diversity also exists within the nation-states: territorially through regions, and culturally through the plurality of cultures. In order to accommodate such plu-ralism, Member States could show a series of attitudes and outlooks, i.e. an ethos, along with legal and constitu-tional instruments: subsidiarity, pragmatism, flexibility, asymmetry, calculated ambiguity. These accommodations are balanced by ethos and instruments for the coming and living together of diverse peoples or demoi and their sharing a complex polity: citizenship, multiple identities, republicanism, and federalism.

From this link between federalism and pluralism, we move, in part III, to the essence of federalism as an attempt to reconcile pluralism and union – plural identities, rights and entitlements, power-sharing fe-deral bargains, distribution of competencies, collective decision-making in the common institutions – and then consider different versions of federalism to characterize the EU. We conclude that the version of federalism that makes best normative and analytical sense of the EU is asymmetric emancipatory federalism. An emancipatory federalism is necessarily one that respects pluralism, but also one that accommodates self-determination – the free will of its component entities to govern them-selves on some matters and share sovereign powers on other matters.