Theories and Practices of Federalism in Deeply Divided Societies

AuthorRosalind Dixon,Ron Levy,Mark Tushnet
DOI10.1177/0067205X1804600401
Publication Date01 December 2018
Date01 December 2018
SubjectArticle
/tmp/tmp-18Qb8nV8rbSfxA/input THEORIES AND PRACTICES OF FEDERALISM IN DEEPLY
DIVIDED SOCIETIES
Rosalind Dixon, Ron Levy and Mark Tushnet*
I INTRODUCTION: POLITICAL DIVISION IN CONSTITUTIONAL
CONTEXT
Federal systems are often compared based on their history or origins: Riker famously
distinguished between ‘coming together’ and ‘holding together’ forms of federalism.1
Federal systems can also be viewed as serving a variety of potential purposes: they may
help promote government closer to the people, greater democratic experimentation,
forms of vertical as well as horizontal political accountability, and the accommodation
of diversity.2
This special issue of the Federal Law Review (‘FLR’), on ‘the theory and practice of
federalism in deeply divided societies’, explores those federations that originate from
‘holding together’ rather than ‘coming together’ processes, and that are designed to
respond to a range of ethnic, religious, racial and territorial cleavages. There is a growing
comparative literature on constitution-making and practice in ‘divided societies’, which
includes attention to federalism. 3 But there is still important work to be done
understanding when and how federalism succeeds in managing social and political
conflict, and promoting peace, stability and democratic resilience, especially in the Asia-
Pacific. This volume thus seeks to fill this gap—by encouraging a wide-ranging
exploration of these issues and contributing to a global debate on constitutionalism and
constitutional design.
Federalism has long been billed as a solution to division, including deep division.
The earliest federations adopted the model partly as a means of accommodating pre-
existing established cultures and polities. In Switzerland, the United States, Canada and
even relatively homogeneous Australia, federalism promised both unity and diversity.

*
Special editors of this Federal Law Review symposium edition. Dixon is a Professor of Law at
the University of New South Wales, Faculty of Law. Levy is an Associate Professor at the
Law School of the Australian National University. Tushnet is the William Nelson Cromwell
Professor of Law at Harvard Law School.
1
William H Riker, Federalism: Origin, Operation, Significance (Little, Brown, 1964). For
discussion see, eg, Michael G Breen, ‘The Origins of Holding-Together Federalism: Nepal,
Myanmar, and Sri Lanka’ (2018) 48 Publius: The Journal of Federalism 26.
2
See discussion in Rosalind Dixon, ‘The Functional Constitution: Re-Reading the 2014 High
Court Constitutional Term’ (2015) 43 Federal Law Review 455.
3
See, eg, George Anderson and Sujit Choudhry (eds), Territory, Power and Constitutional
Transitions (Oxford University Press, forthcoming).

482
Federal Law Review
Volume 46
_____________________________________________________________________________________
Federalism continues to be, if not the only model available to fuse one society out of
many, then at least one of the most common. It rests on an aspiration that acknowledging
diversity—giving it constitutional expression by investing sovereignty at two levels,
federal and state—can defuse some of the pressure for parts of the whole to further
divide, or even to break away.
For the symposium, we have asked our ten groups of authors to range broadly in
considering societies around the world that have used (or contemplated using) federalist
solutions to social division. The ten teams collectively covered thirteen jurisdictions:
Bosnia-Herzegovina, Canada, Italy, Kenya, Malaysia, Myanmar, Nepal, Pakistan, Papua
New Guinea (especially the Autonomous Region of Bougainville), Sri Lanka and the
United States. The bulk of these are located in the Asia-Pacific or Africa, but four are
jurisdictions in Europe and North America.
We have chosen to include the latter four (three of which, by most metrics, have no
recent histories of widespread intercommunal violence) under the ‘deeply divided’
rubric, even though they might more commonly be classed as merely ‘divided’. We have
done so because we think the debates and problems surrounding the use of federalism
in all thirteen of the covered jurisdictions possess more commonalities than differences.
Moreover, we might query the point at which a divided society becomes deeply
divided—for example, is the US approaching that threshold, or has it even crossed the
line? And does a society in which the deepest divisions focus on a relatively small
subpopulation (eg, Canada’s and Malaysia’s Indigenous populations), leaving much of
the rest of the society coexisting in comparative harmony, count? In any event, what
distinguishes Italy, Canada and the US from ‘deeply’ divided societies, if anything, is
perhaps not the extent of division, but the success with which the effects of division have
been managed. Every society is divided. The question, for scholars of federalism and of
division or conflict, is why not every divided society is unstable or subject to widespread
communal violence.
The contributions to this issue are largely distinct from each other in their geographic
scope and in the sets of insights they yield. But despite this diversity, and despite their
frequent novelty, the articles’ insights often align with two foundational questions in
federalism studies. First, all ten entries inquire—expressly or implicitly—into whether
federalism is enough. That is, is federalism a sufficient constitutional solution for the
repair or management of fractures in multi-ethnic or multinational societies? All of our
articles suggest it is not. But their reasons for that conclusion differ, as do their views of
what more might be required. The second foundational question, which some
contributions also address, is whether federalism is necessary. Though we asked our
authors to consider federalism in theory and practice amid division, we did not stipulate
that federalism was the only or the best constitutional solution to division. Some authors,
in some parts of their work, indeed dispute that it is. Thus, in our authors’ wide survey
of federalist solutions to division, though they raise often striking and novel insights the
authors also remain grounded in these questions of sufficiency and necessity—two of
federalism’s fundamental and recurring debates.



2018
Theories and Practices of Federalism in Deeply Divided Societies
483
_____________________________________________________________________________________
II IS FEDERALISM SUFFICIENT?
Federalism is a solution that, to an extent, the originators of early federations viewed as
per se useful to hold together their grand projects of political unification.4 Yet, even
though the federal solution arose in a period when democratic government was
relatively new, and scholarly thinking about it still rare and generally thin, from the
outset federalists were aware that their model needed to fit a wider political and
intellectual context. The US Federalists drew from their own developed visions of
political psychology and political and constitutional theory and history.5 And, similarly,
today’s federalism scholars chiefly adopt a ‘federalism and’ approach: an understanding
that federalism and federalism theory in themselves are insufficient to explain when
constitutions might succeed at managing,...

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