David Haljan, Constitutionalising Secession
| DOI | 10.3366/elr.2016.0379 |
| Author | |
| Pages | 411-413 |
| Published date | 01 September 2016 |
| Date | 01 September 2016 |
This is a very well-researched, original piece of work which manages to find a genuinely new angle in light of the plentiful scholarship on secession. Available literature is broadly considered, and both the style of writing and the conduct of argument are very convincing. The book offers a strong theoretic background, illustrates the argument by case studies (in particular with regard to the Canadian Constitution), and provides interdisciplinary insight by meandering, in particular, between legal and political perspectives.
The author's hypothesis that law, and in particular constitutional law, should be able to regulate threats of secession is appealing, as this could help to provide intrinsic safeguards to a development that may threaten the constitutionally entrenched unity of a state. It is also appealing from the point of view of democracy, as Haljan's “associative constitutionalism” attempts to derive rules for exceptional circumstances from the original consensus that once founded a nation. To support this thesis, the author makes a number of theory-driven arguments and aptly analyses the Canadian Supreme Court jurisprudence. At the same time, one should concede that, in order to infer more generally applicable conclusions, a more in-depth comparative constitutional analysis would have been useful. Constitutions may (explicitly or implicitly) authorise secession or not, the latter probably being the far more common situation. Constitutions and constitutional courts may show remarkably different responses to threats of secession. Hence, a more distinctly comparative analysis might have served to test the author's conclusions and to lead to more differentiated and hence robust results.
Haljan argues that some guidance may be sought from “associative rules” to be found in a “deep constitution” that can only be revealed by going beyond textual constitutional analysis. This raises a number of concerns. While the author should be commended for identifying fundamental principles within constitutions, it is not always clear throughout his analysis how his method and results differ from what constitutional courts (and academia) already do in using the established methods of constitutional interpretation. The fact that some of these principles are implicit rather than explicit would normally be well-established in constitutional doctrine. With regard to concrete secession scenarios, the problem is: what can be derived from such principles without...
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