Forms of Pluralism and Democratic Constitutionalism

Jean Cohen, Andrew Arato, Astrid von Busekist

• Publisher: Columbia University Press
• Year: 2018
• ISBN:
  9780231546959
• Topic: Philosophy
• Subtopic: Political Philosophy

The achievements of the democratic constitutional order have long been associated with the sovereign nation-state. Civic nationalist assumptions hold that social solidarity and social plurality are compatible, offering a path to guarantees of individual rights, social justice, and tolerance for minority voices. Yet today, challenges to the liberal-democratic sovereign nation-state are proliferating on all levels, from multinational corporations and international institutions to populist nationalisms and revanchist ethnic and religious movements. Many critics see the nation-state itself as a tool of racial and economic exclusion and repression. What other options are available for managing pluralism, fostering self-government, furthering social justice, and defending equality?

In this interdisciplinary volume, a group of prominent international scholars considers alternative political formations to the nation-state and their ability to preserve and expand the achievements of democratic constitutionalism in the twenty-first century. The book considers four different principles of organization—federation, subsidiarity, status group legal pluralism, and transnational corporate autonomy—contrasts them with the unitary and centralized nation-state, and inquires into their capacity to deal with deep societal differences. In essays that examine empire, indigenous struggles, corporate institutions, forms of federalism, and the complexities of political secularism, anthropologists, historians, legal scholars, political scientists, and sociologists remind us that the sovereign nation-state is not inevitable and that multinational and federal states need not privilege a particular group. Forms of Pluralism and Democratic Constitutionalism helps us answer the crucial question of whether any of the alternatives might be better suited to core democratic principles.

PART I

AFTER EMPIRE

Historical Alternatives

1

FEDERATION, CONFEDERATION, TERRITORIAL STATE

Debating a Postimperial Future in French West Africa, 1945–1960

FREDERICK COOPER

In French Africa in the 1950s, federalism was not a utopian nor a theoretical option. Most political actors thought some combination of political union of African territories with each other and with France was preferable to what they considered the “nominal” independence of the territorial nation-state. They thought about the institutions that could make federalism a practical proposition; they wrote a constitution for a francophone West African federation, and for a brief period an African federation held power, first within the French Community, then as an independent entity with two member states. The Mali Federation, as it was called, broke up. Since then, its failure has been taken as inevitable in the face of the supposedly inexorable drive of people to have their own nation-states, and it is easily forgotten that the nation-state was a fallback option for the leaders most involved at the time.

The starting point for the political inventiveness of French Africans in the 1950s—also easily ignored—was not an abstract idea or the existence of nations that might agree to unify in a federal form but rather empire, specifically, colonial empire. African political leaders had grown up with this reality, and they understood very well the racial denigration and economic exploitation that existing empires entailed. But they also understood that empires were linguistically and culturally heterogeneous. The question they posed as they confronted a France trying to reimagine itself after its defeat in World War II was how to transform a structure of unequal connections into one that respected diversity, acknowledged the economic and social inequality colonization had produced, and was capable of transforming society toward substantive as well as formal equality.

They confronted influential elements of a colonial empire who thought Africans were inferior and whose role in a French polity could only be to serve French economic and political interests. But the self-evident quality of such thinking was much diminished after the debacle of world war, and an alternative viewpoint within part of the French political establishment overlapped with the perspective of African politicians. One of the more thoughtful members of that establishment, Robert Delavignette, argued in 1945 that France did not have an empire, it was an empire.¹ What constituted France as a state, he meant, was the totality of its parts, however unequal they were; a French state independent of its overseas territories did not exist. For all the prejudices of the French elite, that conception offered a way out of the problem they faced in 1945. Rather than having to think about giving up something France claimed to possess, the relationship of parts of the empire could be rearranged to preserve the whole.

Postimperial Federalism?

Although Jean Cohen persuasively emphasizes the distinction between empire and federation,² the two share an important dimension: both notions acknowledge the heterogeneity of the political unit. By granting limited political autonomy to overseas territories while keeping overall direction in Paris, France could respond to newly invigorated critics of colonial domination while retaining a sense of belonging to a “grand ensemble,” crossing seas and continents and governing themselves on their own territory. French Africans would not have to think they would cease to be Africans if they entered a federation, although they would remain, in another sense, French.

An influential colonial governor positioned the alternative this way in 1943: “France brings the colonies into a French federal system, following in this respect the international movement toward federation that is particularly well illustrated by the British Empire, Soviet Russia, and, in one form or another, by North America and China.” Postimperial federalism did not, for the time being at least, imply equality. European France would retain a tutelary role, supervising the evolution of institutions for each territory.³ A federation with a strong central authority appealed to Charles de Gaulle as he moved from leader of resistance to Vichy rule to the authority governing France’s postwar transition: “I believe that each territory over which floats the French flag should be represented within a system of federal form in which the Metropole will be one part and in which the interests of everyone can be heard.”⁴ Federalist ideas were also being bandied about in the Dutch and British empires in anticipation of a changing postwar political environment.⁵

In 1945, the man who was to become one of French West Africa’s most influential politicians, Léopold Sédar Senghor, was also thinking along federalist lines. Senghor often cited Delavignette, and Delavignette cited him. Senghor wanted a degree of autonomy for France’s African territories sufficient for them to develop their own political personality, but he wanted all to share a common citizenship, turning all of France’s people into “citizens of empire.” Heretofore, the empire’s population had been divided into rights-bearing citizens, mostly of European origin, and the large majority of the indigenous population of overseas territories, who were considered subjects—French but without the rights of the citizen. Postimperial federalism would give an institutional framework to the way Senghor viewed the relationship of world civilizations: different but equivalent and connected.⁶

But as soon as French and Africa leaders thought more specifically about institutions, they confronted a dual problem. In its classic formulations, federalism presumes equality among its components, but a colonial situation is fundamentally unequal. At the same time, as a committee of jurists looking into the problem stated, “One can only federate that which exists.”⁷ Colonies had no juridical standing as political entities, no institutions as yet to govern themselves or to act in relation to the federal governing apparatus.

Whatever the jurists said, French politicians were intent on inventing something new. The government was serious enough about demonstrating an inclusive vision of a postimperial polity to give a place to representatives of different categories of people from overseas France in the National Constituent Assembly that was to write a new constitution. Colonial subjects would be among them, but not in proportion to population. Subjects would vote in a separate electoral college, with a limited franchise. There were 6 African deputies from French West Africa (settlers had their own representatives) in an assembly of 586, and 64 from overseas France as a whole.

I have discussed the deliberations over what became the Constitution elsewhere, so I will be brief.⁸ The word “federal” and possible federal institutions were debated at length at the Assembly, but federalism was in the end neither accepted nor rejected. Instead, everyone agreed that the empire should be renamed (as had been suggested earlier) the French Union, embodying another category of political theory and echoing the Union of Soviet Socialist Republics, whose structure around national republics was cited as a precedent even by anticommunist deputies.⁹ The Preamble to the Constitution referred to the French Union as “composed of nations and peoples,” in the plural. The Constitution did not confer significant power on any legislative body in the territories, although it did not prohibit the National Assembly from doing so via subsequent legislation. Sovereignty and legislative authority remained in Paris, in the hands of the National Assembly, in which overseas territories were represented but not in proportion to population. The federal idea was expressed in the Assembly of the French Union, half of whose members were from the overseas territories. This assembly had to be consulted on matters relevant to Overseas France—and it proved to be an important forum for debate—but it had no actual legislative power. From then on, two of the most important demands of African politicians were to give territorial legislatures real power over internal affairs and to give the Assembly of the French Union real power over the Union as a whole.

After intense debates and a brief but dramatic walkout, the overseas deputies had won their bottom-line demand: the demeaning status of “subject” was abolished first by a law proposed by an African deputy, then by the Constitution of October 1946. All inhabitants of the territories of overseas France were now citizens. Moreover, they had a right that citizens of European France did not: their personal affairs did not have to come under the French Civil Code. Marriage, inheritance, and filiation could be regulated under Islamic or “customary” law unless the overseas citizen chose to renounce his or her “personal status.” The Constitution (Article 82) specified that keeping one’s personal status “can in no case constitute a motive to refuse or limit the rights and liberties attached to the quality of French citizen.” In that sense, the Constitution recognized that people could be citizens in more than one way.

The Ministry of Overseas France could assert, in effect, that postwar France was now both egalitarian and multicultural.¹⁰ It was in fact neither. With power concentrated in an assembly dominated by metropolitan deputies and interests, with racial prejudice still prevalent, a franchise that was only slowly moving toward universality (it took ten years to get there), with colonial governors still in place and territorial legislatures unorganized, and with economic power and access to education and health facilities unevenly distributed over the French Union, many elements of the colonial situation remained in place.

Alternative Federalisms

Citizenship is a claim-making construct, a right to claim rights. The claim to rights lies in the same framework as the state’s claim to obligations and authority. Senghor was not entirely displeased with the National Constituent Assembly’s ambiguous position on federalism because it allowed the African territories two possible futures: toward full integration into the French Republic (a path followed by the Caribbean colonies) or toward a looser form of federalism, in which the territories would be largely self-governing within a larger French ensemble.¹¹

For Africans in French West Africa and French Equatorial Africa, up to 1957 or 1958, the least sought after option was independence as a territorially defined nation-state. Senghor referred to nationalism as “an old hunting rifle.” His close collaborator in Senegalese politics, Mamadou Dia, stated, “It is necessary that the imperialist concept of the nation-state give way definitively to the modern concept of the multi-national state.”¹² The only major political party that advocated independence before 1957 was the Union des Populations du Cameroon, which was marginalized and eventually driven underground by the administration.¹³ Senghor’s campaign to balance the political expression of Africans with the benefits of belonging to a “grand ensemble” was shared by the other most influential political movement in French Africa, the Rassemblement Démocratique Africain (RDA) founded in the fall of 1946, an organization that was attempting to unite political parties in all the French territories. Its manifesto stated, “We have taken care to avoid equivocation and not to confuse PROGRESSIVE BUT RAPID AUTONOMY within the framework of the French Union with separatism, that is immediate, brutal, total independence. Doing politics, do not forget, is above all to reject chimeras, however seductive they may be and to have the courage to affront hard realities.” The manifesto concluded, “Vive l’Afrique Noire, Vive l’Union Française des Peuples Démocratiques.”¹⁴

There were as many routes out of empire as there were different ways of governin...

Table of contents

• Cover 
• Title Page
• Copyright
• Contents 
• Acknowledgments
• Introduction: Forms of Pluralism and Democratic Constitutionalism
• Part I: After Empire: Historical Alternatives
• Part II: New Federal Formations and Subsidiarity
• Part III: Status Group Legal Pluralism
• Part IV: The Challenge of Corporate Power
• Conclusion: Territorial Pluralism and Language Communities
• List of Contributors
• Index