Abstract
Bengoetxea focuses on MacCormick’s contribution to the understanding of nation, law and state in contemporary Europe, and, in particular, on his concept of “internal enlargement”, or, to express it differently, the possibility that Member States divide or split into new Member States so as to realise the aspirations to self-government of region-states. He reflects on the correlation between MacCormick’s institutional theory of law, with his emphasis on non-state institutional normative orders, and his defence of “liberal nationalism”, as a legally differentiated and distinct form of liberal political philosophy. Bengoetxea considers in detail the key role that such a form of nationalism could play in rooting and providing support for the cosmopolitan telos which characterises the European integration project
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- 1.
See my own La Europa Peter Pan (Oñati: IVAP, 2005).
- 2.
For a view contrary to the existence of group rights, see Luis Rodríguez Abascal, “El debate sobre los derechos de grupo”, in: J.L. Colomer & E. Díaz (eds), Justicia, estado y derechos (Madrid: Alianza, 2002), pp. 63–81.
- 3.
With varying nuances, on Liberal Nationalism, see Y. Tamir, Liberal Nationalism (Princeton NJ: Princeton University Press, 1993), Neil MacCormick, Questioning Sovereignty (Oxford: Oxford University Press, 1999); W. Kymlicka, “Territorial Boundaries: A Liberal Egalitarian Perspective”, in: D. Miller & S. Hashmi (eds), Boundaries and Justice (Princeton NJ: Princeton University Press, 2001), Alain Gagnon, “The moral foundations of Asymmetrical federalism: a normative exploration of the case of Quebec and Canada”, in: A. Gagnon & J. Tully (eds) Multinational Democracies (Cambridge: Cambridge University Press, 2001); W. Norman, Negotiating Nationalism (Oxford: Oxford University Press, 2006). Regionalism is not a term normally used in this context, but it would be interesting to associate it with nationalism, communitarianism or multi-culturalism, politics of recognition, and identity politics of politics of difference.
- 4.
The term is taken from Yael Tamir, note 3 supra, and MacCormick’s Questioning Sovereignty, note 3 supra, in which the idea develops in this sense: “To become a full human individual involves things like acquiring a name, learning to speak a language and becoming acculturated into some culture, or into some sub-culture in some idiosyncratic mix with some wider and more inclusive culture or cultures. Schooling and further education, work and the workplace, marriage and family, friendship, engagement in sport or voluntary activity or politics, and all suchlike engagements and relationships with other persons, make us the persons we come to be. Such things account for the continual evolution of character and individuality in our lives as human persons.” (p. 180)
- 5.
The law providing for a consultation of the Basque people – on two points, on peace negotiations to bring about a permanent ceasefire and on negotiations between political parties to bring about the recognition and practice of the right of the Basque people to decide on their preferred political status – was passed with a narrow majority by the Basque Parliament as law 9/2008. The consultation was to take place on the 25 October 2008. The Spanish Constitutional Court declared this law (un-) constitutional on the grounds that only the Spanish State has the competence to call for referenda and that the said consultation is really a form of referendum. See the ruling of 11 September 2008, available at: http://www.tribunalconstitucional.es/jurisprudencia/Stc2008/STC2008-05707.html
- 6.
See its Declaration of 12 June 2008, opposing the constitutional amendment aimed at declaring that the regional languages are part of the French heritage.
- 7.
Although legal order and legal system can be distinguished in a strict sense (see my “Legal System as Regulative Ideal” (1994) 53 ARSP, [Archiv für Rechts- und Sozial-Philosophie], pp. 66–80. In this section, I use the terms legal system, legal order and law as equivalent.
- 8.
Whether democracy is possible in any polity, even in the nation-state is a loaded question, which requires clarification of the principles that inspire democracies. Local and regional democracy and democracy at a multi-national federal state level are quite different, too. According to the logics of subsidiarity, the local and regional levels would be closer to the citizens, and, in principle, they would be the “natural” forum for the adoption of decisions, unless greater efficiency and economies of scale be obtained by taking the decisions at a larger level, i.e., the state or the supra-state levels or even the global level. The difficult issue will, then, be how those decisions are adopted at a higher level, by which representatives, and under what possibilities of citizen control.
- 9.
See S. Besson, The Morality of Conflict, A Study on Reasonable Disagreement in the Law (Oxford: Hart Publishing, 2005); and W. Kymlicka, Liberalism, Community and Culture (Oxford: Oxford University Press, 1989); Multicultural Citizenship (Oxford: Oxford University Press, 1996); and Multicultural Odysseys: Navigating the New International Politics of Diversity (Oxford: Oxford University Press, 2007).
- 10.
On the other hand, when an issue decided at European level gets sufficient public attention, the citizens are keen to have a voice, as the discussions on the services (for example, the Bolkenstein) directive showed.
- 11.
BVerfG, 2BvE 2/08 vom 30.6.2009, Absatz-Nr (1–421).
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Bengoetxea, J. (2011). Nation-States vs. Nation-Regions in the Post-sovereign European Polity. In: Menéndez, A., Fossum, J. (eds) Law and Democracy in Neil MacCormick's Legal and Political Theory. Law and Philosophy Library, vol 93. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-8942-7_12
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