1 The Federal Matrix for the Regulation of Pluralism (or: The Grandfather’s Company)
When reading the title of this book, scholars from the field of minority rights and diversity management might wonder what federalism has to do not with the accommodation of diversity, but with its law: how can federalism produce rules to regulate diversity, if it is nothing else than a tool to split the cake among different groups and in this way to accommodate them (and their appetite)? Conversely, federal scholars are likely to have a similar reaction when looking at the table of contents: where is federalism left? What do non-territorial (i.e. essentially personal) forms of autonomy, legal pluralism and participatory democracy have to do with federalism? Something should be wrong here.
In fact, a recent field of studies (of which this book is one of the spearheads) investigates how federalism inspires several related instruments within the framework of constitutional pluralism. Many of such instruments are in some way derived from federalism, as they share the same goal: regulating pluralism.
Metaphorically, it can be argued that federalism is the grandfather of most other instruments for the constitutional management of pluralism. Federalism can be seen as the founder of a company that produces a whole set of tools that aim at managing ever more sophisticated pluralistic claims. Such tools being, inter alia (and particularly fit for the management of ethno-diversity pluralistic claims) non-territorial autonomy, legal pluralism and participatory democracy. Having become old, federalism increasingly operates through proxies, and spreads its genes through its grandsons and -daughters, who have been inheriting the company. The family remains the same, and so the company’s products: constitutional tools to accommodate pluralism as the backbone of constitutionalism. But the actors evolve, change, bring with them some important elements or legacies of the progenitor while adding new features and elements and modernizing the company.
The metaphor describes what is happening to federalism in relation to the accommodation of ethno-national (linguistic, religious, etc.) diversity. For a long time, a sort of in-vitro combination of the goal (accommodating the claims of self-government by certain groups within unchanged national
The constitutional systems are pluralizing5 and decisions are being made by a growing number of actors vested with different legitimacies beyond the mere political/electoral one. These actors are arrayed both vertically (levels of government) and horizontally (parliaments, governments, agencies, courts,
This is why traditional self-government (federalism, autonomy and the like) is no longer enough to address the claims of an increasingly pluralizing society. At the same time, federalism is as critical as never before as it represents the prototype of institutional regulation of pluralism. As a matrix, it can hardly be used itself, at least not in the traditional way, but it remains the tool that inspires all the others as it has been the first one to deal with a pluralizing society. Initially in an institutional way only, now increasingly also within societies. The claim, however, remains the same: accommodating different needs within a unitary constitutional framework. Such claims are different from those of the past, but, at the same time, show that no other constitutional tool has more potential than federalism as a conceptual and practical matrix for providing the answers required by contemporary societies, since federalism is the most consolidated and sophisticated tool for regulating institutional and procedural complexity.
2
All the tools derived from the federal matrix can be subsumed under the heading of the “law of diversity”.7 The three instruments analyzed in this volume (non-territorial autonomy, participatory democracy, and legal pluralism) are particularly relevant in this context, as they are the most widespread, and probably the most advanced in constitutional terms.8
This book focuses on a number of paradigmatic examples of how the Law of diversity works and is evolving in different (groups of) countries and in diverse subject areas. All contributions describe how new institutions and procedures are being established and how they work in practice for the management of ethno-national complexity challenges. Most of them contribute to the development of an original methodological framework for the analysis of ever more intricate forms of diversity accommodation.
The analysis carried out in this volume shows that diversity governance cannot but be multi-level and multi-actor, with some important consequences following from this tendency. In the first place, what used to be the ‘protection’ of minorities ceases to be a ‘competence matter’ (if indeed it ever was such) vested with one subject or another. Rather, managing the diversity of and in societies (far more than ‘protecting’ certain groups) becomes a transversal and shared objective which is to be realized by different actors and instruments in a combined approach: while minimum denominators are determined at international and supranational level, the state acts as the motor for macro-policies in the field of equality, and subnational and local authorities and the minority groups themselves are in charge of micro-policies of diversity. What matters are in particular the procedures that make it possible for groups to engage, participate, self-govern and allow the system to be plural itself (legal pluralism).
Second – and as a consequence of the plurality of different actors actively engaged in reaching the common objective of celebrating diversity within a rule-of-law context – a permanent obligation of loyal cooperation should exist
This is what allows for a gradual move from a majority-driven ‘Law of minority protection’ to a more complex ‘Law of diversities’, much more in line with today’s culturally complex societies. A Law of diversity which is made of procedures that keep the system open and flexible and allows for the inclusion of further (potentially countless) factors of difference which compose a diverse society.9 Such procedures work inasmuch as they avoid the structural domination of one position over the other and guarantee the necessary – permanent but never stable – balance between equality and difference, protection and living together, rights and obligations, autonomy and integration.10
The Law of diversity resulting from such procedures is necessarily characterized by three main elements: asymmetry regarding its application as well as the single instruments (differentiation in the legal position of the groups thus becomes the rule); pluralism of legal sources and of actors; permanent negotiation of its content in a quasi-contractual framework, i.e. going beyond pre-established majority and minority positions (and making the distinction between rule and exception as well as between majority and minorities increasingly difficult if not obsolete).
Why is all this tremendously relevant for federal studies? First, because asymmetry, pluralism of sources and actors as well as negotiation are precisely what federalism has always been about and what has determined its success or failure as an instrument of ‘minority accommodation’. Now it’s the time of the (federalism-inspired) Law of diversity to prove fit for the new challenge of the management of diverse societies.
Secondly, the link between the Law of diversity and federalism is not only ‘generational’, in the sense explained above (common genesis from the federal matrix). A strong link also exists with regard to the theory of federalism. In this regard, the editors also propose the term feder(ation)alism in order to emphasize the connection between the (theory of) federalism and its manifold constitutional manifestations like in particular the ones analyzed in this volume: an attempt that requires further investigation but already hints to the
Third, pluralism is in fact the backbone of federalism since federalism is at odds with any constitutional framework aimed at protecting only one interest, such as the interest of the leader in autocratic states, that of the dominant denomination in religious states, that of the majority nation in nationalistic states, etc.
When the idea of federalism was first born, it was a philosophical approach to political organization, serving essentially economic and military purposes.12 In legal terms, the early idea of federalism was closer to international rather than constitutional law, aimed at bringing together sovereign units that alone were no longer competitive in economic and military terms; this has been the case for historic federations, notably, the US, Switzerland, and Germany. The more federal systems established themselves (19th century) and significantly increased in number (20th century),13 the more federalism became noteworthy not only to political philosophers and political scientists, but also to constitutional lawyers and economists. All of these methodological perspectives facilitated the study of how federations (and subsequently their derivative forms such as regional or devolved states)14 work in practice, what are the comparative elements in common, how their functioning can be improved, and, above all, what institutions and procedures are needed in order to make federations work. And of course how they can be used to accommodate minority claims.
In the 21st century, the challenge is not so much the creation of new federations,15 the federal idea has been sufficiently explored, and so are its
Federalism – with its institutions, procedures, structured relations, and mechanisms for the prevention and resolution of conflicts – is inspiring the development of procedural solutions for the growing demands for pluralist (participatory, inclusive, multilevel) democracy. As the older brother of complementary decision-making processes,16 federalism, with its history and its machinery, is the unavoidable benchmark for the design and the development of new instruments and procedures for accommodating pluralism and participation. The family line continues, and the Law of diversity is the newborn.
Bibliography
Advisory Committee on the Framework Convention for the Protection of National Minorities. Third Thematic Commentary The Language Rights of Persons Belonging to National Minorities under the Framework Convention (acfc/44doc(2012)001).
Alessi, Nicolò P. A Global Law of Diversity: Evolving Models and Concepts. London-New York: Routledge, 2025.
Beck, Hans and Peter Funke, eds., Federalism in Greek Antiquity. Cambridge: Cambridge University Press 2015.
Benedikter, Thomas. The World’s Modern Autonomy Systems. Bolzano: Eurac Research, 2009.
Burgess, Michael. “The Penumbra of Federalism. A Conceptual Reappraisal of Federalism, Federation, Confederations and Federal Political System.” In The Routledge Handbook of Regionalism and Federalism, edited by John Loughlin, John Kincaid and Wilfried Swenden, 45–60. London-New York: Routledge, 2013.
Dowdle, Michael W. and Michael A. Wilkinson, eds. Constitutionalism beyond Liberalism. Cambridge: Cambridge University Press, 2017.
Elazar, Daniel J. Exploring Federalism. Tuscaloosa: University of Alabama Press, 1987.
Franchi, Elena. “Leghe e stati federali.” In Introduzione alla storia greca, edited by Maurizio Giangiulio, 185–196. Bologna: il Mulino, 2021.
Frey, Bruno S. “Functional, Overlapping, Competing Jurisdictions: Redrawing the Geographic Borders of Administration.” European Journal of Law Reform v, no. 3/4 (2005): 543–555.
Häberle, Peter. Europäische Rechtskultur. Berlin: Suhrkamp, 1997.
Hueglin Thomas O. and Alan Fenna. Comparative Federalism: A Systematic Inquiry. Peterborough, ON: Broadview Press, 2006.
Kincaid, John. Federalism. London: Sage, 2011.
Krisch, Nico. Beyond Constitutionalism: The Pluralist Structure of Postnational Law. Oxford: Oxford University Press, 2012.
Lapidoth, Ruth. Autonomy: Flexible Solutions to Ethnic Conflicts. Washington: US Institute of Peace Press, 1996.
Loughlin, John, John Kincaid and Wilfried Swenden, eds., The Routledge Handbook of Regionalism and Federalism. London-New York: Routledge, 2013.
Marko, Joseph and Sergiu Constantin, eds., Human and Minority Rights Protection by Multiple Diversity Governance. London- New York: Routledge, 2019.
Palermo, Francesco and Jens Woelk. “From Minority Protection to a Law of Diversity? Reflections on the Evolution of Minority Rights.” European Yearbook of Minority Issues 3 (2003/2004): 5–13.
Palermo, Francesco. “Territory and the Law of Ownership: From Misunderstanding to Opportunity.” In Law, Territory and Conflict Resolution. Law as a Problem and Law as a Solution, edited by Matteo Nicolini, Francesco Palermo and Enrico Milano, 16–38. Leiden-Boston: Brill-Nijhoff, 2016.
Popelier, Patricia. Dynamic Federalism: A New Theory for Cohesion and Regional Autonomy. London-New York: Routledge, 2021.
Romans, William, Iryna Ulasiuk and Anton Petrenko Thomsen, eds., Effective Participation of National Minorities and Conflict Prevention. Leiden-Boston: Brill-Nijhoff, 2020.
Roter, Petra. “Commentary of article 5 of the Framework Convention for the Protection of National Minorities.” In The Framework Convention for the Protection of National Minorities: a commentary, edited by Rainer Hofmann, Tove H. Malloy, Detlev Rein, 126–147. Leiden-Boston: Brill-Nijhoff, 2018.
Watts, Ronald L. Comparing Federal Systems. 3rd ed., Montreal-Kingston: McGill-Queens University Press, 2008.
Weller, Marc and Stefan Wolff. Autonomy, Self-Governance and Conflict Resolution: Innovative Approaches to Institutional Design in Divided Societies. London-New York: Routledge, 2005.
See inter alia Ruth Lapidoth, Autonomy: Flexible Solutions to Ethnic Conflicts (Washington: US Institute of Peace Press, 1996), Marc Weller and Stefan Wolff (eds.), Autonomy, Self-Governance and Conflict Resolution (London and New York: Routledge, 2005), Thomas Benedikter, The World’s Modern Autonomy Systems (Bolzano: Eurac Research, 2009), and many more.
Studies confirm that already in ancient Greece this idea was widespread and largely used, despite the concept of federalism (and the very term) was still to be born and was distant from the contemporary understanding, which implies statehood and is thus a post-Westphalian product. See Hans Beck and Peter Funke, eds., Federalism in Greek Antiquity (Cambridge: Cambridge University Press 2015) and Elena Franchi, “Leghe e stati federali,” in Introduzione alla storia greca, eds. Maurizio Giangiulio (Bologna: il Mulino, 2021), 185–196.
Petra Roter, “Commentary of article 5 of the Framework Convention for the Protection of National Minorities,” in The Framework Convention for the Protection of National Minorities: A Commentary, eds. Rainer Hofmann, Tove H. Malloy and Detlev Rein (Leiden-Boston: Brill-Nijhoff, 2018), 126–147. See also Advisory Committee on the Framework Convention for the Protection of National Minorities, Third Thematic Commentary The Language Rights of Persons Belonging to National Minorities under the Framework Convention (acfc/44doc(2012)001), no. 17–18.
See Francesco Palermo, “Territory and the Law of Ownership: From Misunderstanding to Opportunity,” in Law, Territory and Conflict Resolution. Law as a Problem and Law as a Solution, eds. Matteo Nicolini, Francesco Palermo and Enrico Milano (Leiden-Boston: Brill-Nijhoff, 2016), 16–38.
See among many others Nico Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (Oxford: Oxford University Press, 2012).
This might also involve the relationship between public and private spheres, thus going beyond the public law realm to imply the possibility and even the opportunity to create functional jurisdictions populated by private actors competing with or substituting for the public service providers. See Bruno S. Frey, “Functional, Overlapping, Competing Jurisdictions: Redrawing the Geographic Borders of Administration,” European Journal of Law Reform v, no. 3/4 (2005): 543–555.
See Francesco Palermo and Jens Woelk, “From Minority Protection to a Law of Diversity? Reflections on the Evolution of Minority Rights,” European Yearbook of Minority Issues 3 (2003/2004): 5–13. The concept has been developed much further especially by Nicolò P. Alessi, A Global Law of Diversity: Evolving Models and Concepts (London-New York: Routledge, 2025), as well as in this very volume.
For further considerations on the variety of possible constitutional instruments dealing with pluralism (not limited to ethno-national claims) see inter alia Michael W. Dowdle, Michael A. Wilkinson, eds., Constitutionalism Beyond Liberalism (Cambridge: Cambridge University Press, 2017).
See William Romans, Iryna Ulasiuk and Anton Petrenko Thomsen, eds., Effective Participation of National Minorities and Conflict Prevention (Leiden-Boston: Brill-Nijhoff, 2020).
See Joseph Marko and Sergiu Constantin, eds., Human and Minority Rights Protection by Multiple Diversity Governance (London-New York: Routledge, 2019).
See inter alia Patricia Popelier, Dynamic Federalism: A New Theory for Cohesion and Regional Autonomy (London: Routledge, 2021), who introduces the concept of “multi-tiered systems” (mts).
See in particular John Kincaid, Federalism (London: Sage, 2011); John Loughlin, John Kincaid and Wilfried Swenden, eds., The Routledge Handbook of Regionalism and Federalism (London-New York: Routledge, 2013); Daniel J. Elazar, Exploring Federalism (Tuscaloosa: University of Alabama Press, 1987).
The number of federal or quasi-federal countries has more than tripled in the course of the 20th century; at present, the majority of the world’s population lives under federal or quasi-federal rule. See Thomas O. Hueglin and Alan Fenna, Comparative Federalism: A Systematic Inquiry (Peterborough, ON: Broadview Press, 2006), 3.
Ronald L. Watts, Comparing Federal Systems (3rd ed., Montreal-Kingston: McGill-Queens University Press, 2008).
For the distinction between federalism and federations, see in particular Michael Burgess, “The Penumbra of Federalism. A Conceptual Reappraisal of Federalism, Federation, Confederations and Federal Political System,” in The Routledge Handbook of Regionalism and Federalism, eds. John Loughlin, John Kincaid and Wilfried Swenden (London-New York: Routledge, 2013), 45–60.
The German scholar Peter Häberle once famously described regionalism as the younger brother of federalism (Peter Häberle, Europäische Rechtskultur (Berlin: Suhrkamp, 1997), 233). Federalism might thus have more little brothers than just regionalism.