(andreaseshete@yahoo.com)
Ethiopian Journal of Federal Studies, Vol. 1., No. 1, May 2013
“…it is of great importance in the republicnot only to guard the society against the oppression of its rulers, but toguard one part of the society against the injustice of the other part.”
-James Madison
“Where is an example of ‘Federalism’ everhaving been a preconceived plan? Who carts around Federalism as an a priori panacea? Federalism has always appeared in any factualsituation as a response to an existing division of power within a territorythat comes together, or is thrust together, in one State.”
-BernardCrick
Introduction
A newpolitical vision now guides Ethiopia. The vision is a departure from prevalent African politicalpractice. In Ethiopia, too, the newpolitics - its source, spirit and style - seems unfamiliar to many.
Since 1991, Ethiopia has embarkedupon a bold experiment in the conduct of public life. The hallmark of the experiment is a readinessto face the fact of ethnic diversity. New political arrangements aim to shape Ethiopian political identityaround the country's constituent nations and nationalities. Even in this era of the politics of identity,Ethiopia's resolve to extend full public recognition to her varied national communitiesis unique. Ethiopia's recognition of Eritrea's right to self-determination isalso unprecedented. Following a referendum on independence held in 1993,Eritrea went her own way. Theestablishment of a sovereign Eritrean homeland marks the first birth of anAfrican nation through secession. Within Ethiopia, the commitment to uphold theright to self-determination is equally striking. The right to secession is now aconstitutional entitlement. All cultural communities are entitled to fairrepresentation in the institutions of state and federal government. Territorially based nationalities exercisewide powers of self-government in political, economic, legal, cultural andeducational affairs. The result is apolitical order open to cultural diversity, self-expression and autonomy.
Ethiopia's ethnic turn is a sharpbreak from African political practice. With rare exceptions such as Botswana and Somalia, vast culturaldiversity characterizes African states. African states are not built on nations of their own making. Upon independence, African states inheritedpopulations capriciously contrived by colonial powers that arbitrarily joinedor divided cultural communities. Thenewly independent states sought to preserve the uneasy national legacy of colonialism. Amid heterogeneity, political rule tried tocreate and maintain unity in various ways. Some cobbled together coalitions whereby elites from diverse groupscould have a stake in a unitary polity. Others designed political arrangements blind to cultural differences andcleavages. Another tack was to fosteroverarching identities---African or ideological---in order to overshadow orovercome internal differences over national and cultural identity.
Whatever the differences inapproach, the overriding aim almost everywhere in Africa was to refuse fullpolitical expression to cultural pluralism. Even on the rare occasion where national identity was an exercise inself-definition carried out through internal struggle and negotiation, therewas no disposition to cultivate or even to acknowledge diversity. In the recent constitutional exercisesundertaken by South Africa and Uganda, the choice was in favor of a unitarystate. The pursuit of political unity atthe expense of cultural plurality has been a leading objective of Africanstatecraft that enjoyed wide legitimacy: for example, ethnic parties were oftenprohibited by law; African states consistently complied with OAU's principle ofupholding colonial borders.
The inclination to ignore,conceal, subdue or erase cultural diversity in African politics has beensustained at considerable cost. Monopolistic political arrangements such as military government,one-party rule, systematic suppression of human and political rights are oftenrationalized as inescapable means of safeguarding unity. Despite these draconian measures, ethnicdiversity has not been banished. Bitterwars for secession were fought by Katanga, Biafra, Eritrea and SouthernSudan. Though nothing approaches thegenocide perpetrated in Rwanda, ethnic turmoil exists in most parts of Africa.
Even when strife in Africacentered on other matters, it was seldom altogether free of ethniccontention. Yet neither the threat ofpartition nor ubiquitous ethnic contest called into question African allegianceto a conception of statehood that excludes national or cultural pluralism fromthe definition of political identity. Thus as we enter the new millennium, a vision of political unity thatdisavows or devalues diversity survives intact throughout most of Africa.
What, then, prompted Ethiopia togo virtually alone against the prevailing current in the continent? Ethiopia's anomalous new course is all themore surprising, for, unlike the rest of Africa, her heterogeneity of nationalities,cultural traditions, religions and languages is not a fortuitous outcome ofalien imposition. Though Ethiopia'sautonomous development is no guarantee of the emergence of a national society,it is hard to overlook the society's resilience in the face of a long historyof internal warfare and foreign encroachment. Even outsiders, without evident partisanship, detect the contours of anintegral political community.
Admittedly the image ofEthiopians as a well-defined people conveyed in international scholarship issometimes merely a result of selective perception. Much the most addressed part of Ethiopia isthe north, where literate cultures and salvationist religions have flourishedsince the distant past
[2]. Accessibility to modern scholarship andcultural affinity rendered this terrain familiar to western observers. Another area of focus, one driven by concernsof development, is the small, largely urban area where modern economic andpolitical institutions have gained a foothold. The impression of homogeneity gleaned from these perspectives does notreflect Ethiopian culture as a whole but rather the interests of othersocieties.
Still, those aspects of Ethiopiacaptured from culturally alien perspectives cannot be dismissed as merefragments, for they have played a crucial role in drawing the wider communitytogether. For good or ill, northernculture is diffused throughout the entire country. For instance, Amharic speakers can be foundalmost everywhere; the new Regional State of the Southern Peoples has adoptedAmharic as its working language. Amongthe small but culturally influential urban population, identities that cutacross nationality, religion and language have, and are seen to have, salience. The purview of both Amhara - Tigraycivilization and urban culture tends to define Ethiopia not just under westerneyes; it is an important dimension of Ethiopian self-perception.
Even those who extend their sightbeyond comparatively self-contained or integrative elements of the society inorder to take notice of the whole are impressed by the presence of abidingaffinities among Ethiopia's dispersed and diverse cultural communities.
[3] Strands of a common sense of communityinclude: close and longstandingconnections of far-flung trade and migration; collective historical legacy;shared cultural beliefs, rituals, symbols and ideals; common systems of socialand political authority. On account ofthese ties, a distinctive community encompassing all the peoples in Ethiopia'spresent territory has endured despite recurrent fragmentation. The confluence of Ethiopia's variedidentities can also be seen in the ambitions of empire-builders ---from withinand without---who rarely settled for less than domination over what is nowEthiopia.
Though important, these indicationsof a shared sense of community show, at most, the possibility of politicalunity. Societies like Somaliawell-endowed with traits conducive to national self-identification and cohesionhave floundered in the search for statehood. Similarly, a bitter lesson of Ethiopian history is that the potentialfor unity, however promising, cannot be realized without effectiveinstitutional means for its political expression.
It is a testimony both to theweight of Ethiopia's past and its political inconclusiveness that differencesover the present dispensation are fought as battles over historicalinterpretation. Is Ethiopia threethousands years old or only one hundred? Have the Oromo and the Southern Peoples always been members of Ethiopiansociety or were they joined to Ethiopia through invasion and conquest in thenineteenth century? Is Eritrea anamputated limb of Ethiopia or is it a distinct society with only a brief,forced marriage to Ethiopia during the federation and subsequent incorporation?
Some speak with self-confidenceof belonging to an Ethiopia with a robust national identity intricatelyinterwoven out of the country's constituent identities. They claim that they cannot recognizethemselves in the new ethnically defined Ethiopia. Others, however, speak with distance ofEthiopia as a community of which they were never willing members. For them, the new political vision enablesthem to identify with Ethiopia for the first time. The former feel that the present diminishesthe past, creating a void that cannot be filled. The latter feel that the present redeemsinjustices of the past. These clashingconceptions of Ethiopia are a subject of everyday contention because of awidespread conviction that the uncertainties surrounding the country'sself-identity are rooted in the past. While everyone agrees that Ethiopia houses a plurality of languages,religious and nationalities, disagreement rages over whether or not ethnicdifferentiation and inequality is so entrenched in Ethiopian history that itrequires recourse to a new political order.
Even indisputable collectiveaccomplishments of Ethiopian history do not yield a shared sense of pride. Undoubtedly the most significant achievementof modern Ethiopia is independence, successfully defended against a successionof invaders --- the British, the Egyptians, the Sudanese Mahdists, and theItalians. In this history of struggle, asingular triumph was in 1896 at the Battle of Adwa, where Ethiopia inflicted astunning defeat on Italy. Inspirationalas it was to oppressed peoples and their champions everywhere, the Adwa victorymarks a peak in Ethiopia's international prestige. Internally, too, Adwa was a watershed. Peoples from the entire empire marched to thebattle: unlike previous resistance toforeign aggression, Adwa was a national victory. Adwa was also a formative moment in thecreation of Ethiopia as a modern nation-state. In the wake of the victory, Ethiopian sovereignty was recognized by theEuropean powers. Yet, Adwa's legacy remainsambiguous. Emboldened by his nationaland international prestige, Emperor Menlik II continued his expansion into thesouth and west, and consolidated his empire in the decade following Adwa. As a result, many peoples of Ethiopia whofought valiantly at Adwa are ambivalent about the victory: they see themselvesas victims of their own triumph. Here aselsewhere, Ethiopians seem to be at once exalted and anguished by their past.
It is not obvious that anyone isnow in a position to resolve the sharp differences separating these conceptionsof Ethiopia's past and the attitudes they yield toward the politicalpresent. These incompatible myths aboutthe Ethiopian past do show that the new political order that gives pride ofplace to cultural diversity has not yet settled over the landscape. Myths about the past are conjured up in orderto bolster or undermine the legitimacy of the new political vision. This is not of course a surprise: "The past has always been the handmaidof authority.”
[4]These judgments of the present by reference to the past are useful in otherways --for example, to reach a prognosis of the new politics. The traumas and upheavals that the countryhas suffered explain the rise of nationalist politics as well as the principlesand practices in which it now finds political expression. A glimpse at the past also enables us totake a measure of the novelty of the present. For all their novelty, the present arrangements may well showremnants--desirable or undesirable --of the past.
Federalism
Remarkson Method
Even believers in an idealconception of society do not insist that federalism must be realized in everylegitimate polity. Nor is federalismsupported by all ideal conceptions of constitutional democracy. Federalism therefore differs from publicideals of universal reach. For instance, federalism is distinct from humanrights: unlike federalism, “their political (moral) force extends to allsocieties, and they are binding on all peoples and societies, including outlawstates.”
[5] Violationof human rights justifies condemnation or even coercive intervention. In contrast, rejection of federalism by aregime does not demonstrate imperfection, much less, wrongdoing in the regime.
Federalism is not, therefore, anecessary part of an ideal conception or theory of a democratic society; it israther an ideal for a society in unfavorable circumstances, circumstancesunfavorable to constitutional democracy. It might, of course, be argued that all political ideals answer tounfavorable conditions. For example,human rights are honored because everyone always needs to avoid being killed,assaulted, deceived, used as a resource, or neglected in an emergency. The illsagainst which human rights afford protection represent evils to which all humanbeings are always vulnerable. The vitaldifference is that federalism is a public value tailored to conditionsunfavorable to constitutional democracy that are not universal but ratherpeculiar to certain societies. However,the distinction suggested between ideal and nonideal theory may be blurred byadopting a position taken by a few political theorists: namely, either thatthere are no positive political values or that the only practicable publicvalues are those that serve to ward off unfavorable features of men or theirenvironment. Forging an intellectuallink among all societies on the basis of the exclusive importance of pervasiveunfavorable conditions would yield a minimalist political theory such aslibertarianism or what Judith Shklar calls the liberalism of fear.
[6]Still, this view is not a direct challenge to the proposal to treat federalismunder nonideal theory, for the view does not amount to a denial of nonidealtheory but rather to an affirmation of its ubiquity.
If, however, we subscribe to theposition that social co-operation can aim beyond the avoidance of vice to theachievement of virtue, the distinction between ideal and nonideal theorysurvives. Federalism can then be seen asa proper part of nonideal theory which, according to John Rawls, “deals withunfavorable conditions, that is, with the conditions of societies whosehistorical, social, and economic circumstances make their achieving awell-ordered regime, whether liberal or decent, difficult or impossible.”
[7]Nonideal theory delimits the requirements of an account of society burdenedwith unfavorable conditions. First, toidentify the conditions – poverty; divisions of power, culture or identity; anintolerant public culture – that tend to stand in the way of fidelity to thevalues and institutions of constitutional democracy. Second, to determine the policies andpractices that mitigate, overcome or deploy to advantage unfavorable conditionsin the service of constitutional democracy. In the task of unburdening a society from unfavorable conditions,nonideal theory is guided by the aim of reaching or approximating idealtheory. In Rawls’s words: “nonidealtheory asks how the ideal conception of society … might be achieved or at leastworked toward, generally in gradual steps; it looks for policies and courses ofaction that are likely to be
effectiveand politically permissible for that purpose”
[8](italics mine). Rawls’s remarks indicate a third demand of nonideal theory:starting from where the society is now, the search is for a passage todemocratic institutions by democratic means. Unless nonideal theory furnishes democratic means for surmountingbarriers to democracy it cannot reconcile us to unfavorable conditions.
To clarify the significance of the treatment of federalism under theaspect of nonideal theory, it may be helpful to contrast it with its morefamiliar alternative: to explain and justify federalism as an integral part ofan ideal conception of constitutional democracy. A few political philosophershave made serious attempts to find a theoretical underpinning for federalismand other public manifestations of diversity as a freestanding value or idealof constitutional democracy.
A notable example is CharlesTaylor’s influential essay on “The Politics of Recognition.”
[9]Taylor identifies two forms of recognition that he deems important tocontemporary politics. The first is recognition of what human beingsimportantly share, and it yields “a politics of universalism, emphasizing theequal dignity of citizens, and the content of this politics has been theequalization of rights and entitlements.”
[10] Thesecond is a recognition of what makes human beings culturally distinct ordifferent, and it yields a politics of particularism. “With the politics ofequal dignity, what is established is meant to be universally the same, anidentical basket of rights and immunities; with the politics of difference,what we are asked to recognize is the unique identity of this individual orgroup from everyone else.”
[11]Taylor’s chief concern is with the second form of recognition, for he believesthat the first is dominant in contemporary political theory and practice, andthat it has tended to undermine the second by aspiring to distance or evenefface the culturally distinct from political life. Taylor argues that ourallegiance to recognition of our common humanity should not blind us to thefact that recognition of distinctness is a vital human need, though the urgencyof the need makes itself felt only after our release from social forms wherethe identity of individuals and groups had been preordained.
Taylor’s thesis then is that tobe recognized in one’s cultural distinctness is a universal human interest.Multiculturalism and its institutional expressions such as federalism arereasonable realizations of a human interest for recognition of culturaldistinctness. Indeed, to avoid denigration and forcible assimilation,universalist recognition of individuals as worthy of equal concern and respectdemands public affirmation of their culturally particularist identities.
Now, it is not entirely clear whyTaylor singles out cultural and linguistic identity, as opposed to, say,religious identity as a dimension of distinctness that warrants recognition anddifferential treatment in public life. Taylor does not, of course, deny thatreligious distinctness finds recognition outside public life in freeassociations. Yet he does not explain what is special about the claim ofdistinctness by Quebeckers such that he can say that here “what was at stakewas the desire of these people for survival, and their consequent demand forcertain forms of autonomy in their self-government, as well as the ability toadopt certain kinds of legislation deemed necessary for survival.”
[12]
Even if we allow that there arereasons for politically privileging cultural distinctness, it is not evidentthat recognition of a particular cultural identity is a categorical demand.Taylor’s bold idea that recognition of one’s distinct cultural identity mustmatter and always requires public affirmation is not altogether convincing. Itseems more plausible to say that cultural identity does not necessarily matter,but if in a given case it does, it must be recognized. But then the claim torecognition of distinctness is not a fundamental human interest on a par, say,with the interest to be treated with equal concern and respect. The importanceof securing recognition for one’s cultural identity therefore depends onhistorical circumstance.
Why does Taylor suppose thatrecognition of one’s cultural distinctness always matters? Taylor seems to beled to the conclusion that he has seized upon a vital human interest by a focuson recognition to the exclusion of its source. Even if cultural identityhappens to be important to a person or a group and so anchors a claim torecognition of it by others, it is not obvious that recognition by any othersis what is desired or desirable. Do French Quebeckers seek recognition of theirdistinct society by Zulus or Texans? Would Zulus or Texans have standing toextend or withdraw recognition from French Quebeckers? Indeed, if we acceptTaylor’s idea of the value of cultural difference and its recognition, it ispuzzling why the demand for recognition is not put forward across societies asoften as it is within societies. It is more plausible to think that recognitionof distinctness or difference by others matters only when the others are thosewith whom there are reasons to feel closely identified. Recognition becomessalient with differences among those who, for any number of reasons, otherwisefeel a sense of mutual identification. Whether or not there are such reasonshas less to do with fundamental human needs or interests than with thecontingencies of history.
Will Kymlicka is anotherpolitical theorist who is impressed by worldwide resurgence of entho-culturaldisputes and conflicts. He concedes that “every dispute has its own uniquehistory and circumstance that need to be taken into account in devising a fairand workable solution.”
[13]Still, his “aim is to step back and present a more general view of thelandscape—to identify some key concepts and principles that need to be takeninto account, and so clarify the basic building blocks for a liberal approachto minority rights.”
[14] Despitethe modesty of this characterization, Kymlicka has the ambitious aim to locatemulticultural citizenship, group-differentiated rights and federativearrangements in the very foundations of a liberal conception of an idealsociety. According to Kymlicka, aside from protecting the individual’s choicesfrom intervention by others and government, a basic value of liberalism is toenable a person’s freedom to form and revise a conception of a worthwhile life.He faults contemporary liberalism for overlooking the fact that meaningfulchoice and pursuit of a way of life requires secure membership in a particularculture. “Put simply, freedom involves making choices amongst various options,and our societal culture not only provides these options, but also makes themmeaningful to us.”
[15] Andagain: “Liberals should be concerned with the fate of cultural structures, notbecause they have some moral status of their own, but because it is onlythrough having a rich and secure cultural structure that people can becomeaware, in a vivid way, of the options available to them, and intelligentlyexamine their value.”
[16]
For Kymlicka, the importance ofsecure cultural membership is a perfectly general claim about liberalism. It isacknowledged in the classical liberal theories of Mill and Green, and in thepractice of established liberal democracies, where liberal rule relies on anational culture upheld by the state. Kymlicka firmly resists the suggestionthat cultural membership can be secured in free associations or throughdecentralized policies in language, education and land tenure. Culturalmembership is instead a primary good that must be supported by a liberalpolitical community, if the capacity to fashion and revise a conception of aworthy individual life is to be realized. The separation of state and religioncannot serve as a model for the relation between the state and ethnic orcultural identity. “The whole idea of ‘benign neglect’ is incoherent, andreflects a shallow understanding of the relationship between states andnations. In the areas of official languages, political boundaries, and thedivision of powers, there is no way to avoid supporting this or that societalculture, or deciding which group will form a majority in political units thatcontrol culture-affecting decisions regarding language, education, andimmigration.”
[17]Every liberalism is necessarily a national liberalism. The only question is tofind a fair way to reconcile multinational societies to the inseparability ofthe state and the nation, required by the ideal conception of liberal society.A federative arrangement with group-differentiated rights of self-government isthe only way to guarantee equality of cultural membership for individuals in amultinational society. Benign neglect or separation of state and ethnicitywould only mask the dominance of the official culture over the rest, whosemembers would be deprived of a context for the effective choice of a meaningfullife.
Kymlicka’s attempt to justify multicultural citizenship, collectiverights, and federative institutions by appeal to primary values and principlesof liberalism yields curious consequences that he countenances all too lightly.One concerns the extent to which a liberal, multinational state toleratesilliberal groups. Suppose a self-governing national group restricts thecapacity of its members to lead lives of their own choice. Kymlicka allows thatthe federal state should try to change the illiberal national community. But,barring extreme cases—cases that would justify international intervention—hethinks legal intervention is impermissible. To assent to this strangeconclusion is to grant that the rationale for rights to self-government can befreely violated by those exercising self-government. Put differently, individualsare entitled to secure cultural membership in order to ensure their freedom tolead a life of their own choice, but nothing more than persuasion is possibleif cultural membership robs them of this essential freedom. How can a multinational state legitimatelycount as liberal if member states can violate rights central to liberalism withimpunity? The sanctity of cultural membership as a primary good of liberalsociety seems, in the end, to override the value of freedom it was originallyintended to subserve.
This result is doubly disquieting. First, a liberalism founded on thevalue of individual autonomy is more permissive in respect to infringements ofindividual freedom than liberalisms that avoid protection of substantivevalues, including autonomy, in public life. For example, in Rawls’s politicalliberalism human rights define the bounds of pluralism. Secondly, tolerance ofilliberal cultures eliminates Kymlicka’s sole ground for advocating a marriageof culture and a liberal state while endorsing the separation of religion andthe state. The ground is that religion, not culture, involves shared values.Leaving aside the question whether this is a trivial truth about liberalcultures or an interesting but controversial claim about all cultures, Kymlickastill faces a problem. Since both impose a conception of the good, there is nojustification for being tolerant toward illiberal cultures and intoleranttoward illiberal religions.
There is another unwelcome consequence of the liberal defense of multiculturalcitizenship, which Kymlicka points out, that has wider implications than heanticipates. Kymlicka argues that a stable liberal polity requires a sense ofsolidarity: “a shared civic identitythat can sustain the level of mutual concern, accommodation and sacrifice thatdemocracies require.”
[18]Yet, Kymlicka fears that a liberal state with a plurality of politicalcommunities may not foster an inclusive sense of solidarity sufficient tosustain the commitments of liberal citizenship to justice and the common good.Indeed, Kymlicka’s skepticism about the possibility of solidarity in amultinational state inclines him to side with Mill, who, in Kymlicka’s view,held that fidelity to liberalism is possible only in a state with a singlenational culture. Assuming that non-coercive assimilation is difficult,Kymlicka is unsure why a liberal faced with a multinational society should notbe favorably disposed to secession in order to pave the way for nation-states,the only settings suited to stable liberal democracies. What checks Kymlicka’sliberal advocacy of secession is that natural circumstances are unfavorable tothe exercise of secession. Many national groups may not prove viable asindependent states. Secession often occasions violent conflict. There is notenough room in the world to create states to accommodate all nations. Even ifall this is true, it is noteworthy that it does not prohibit a given nationalgroup from seeking secession on liberal grounds. More importantly, Kymlicka’spessimism on the fate of solidarity in a multinational state shows that it isunfavorable circumstances for states with a single national culture, notintrinsic merit from an ideal liberal point of view, that compels multinationalliberal states.
Given that multinational states are, though not strictly desirable,unavoidable, Kymlicka feels that we must somehow search for sources ofsolidarity in multinational states adequate to liberal democratic citizenship.Kymlicka considers shared public values, which he finds insufficient sincepeoples may go their own way despite such agreement. At any rate, as we sawearlier, there is no reason to expect adherence to the same principles orvalues in Kymlicka’s conception of the liberal multinational state. A morepromising basis is a commitment to what, following Taylor, he calls ‘deepdiversity.’ Roughly, this is to appreciate and prize that there are variedgrounds for allegiance to the wider political community in a multinationalstate. Even this he urges may be too thin unless it is coupled with somethingelse he deems most important. “For citizens to want to keep a multinationalstate together, therefore, they must value, not just ‘deep diversity’ ingeneral, but also the particular ethnic groups and national cultures with whomthey currently share the country.”
[19]
This is an arresting conclusion: it is a clear admission that nationalidentity may be based on something other than a distinct cultural identity.Pride in historical achievements is a an example that Kymlicka offers of ashared national identity that does not draw on membership in a particularculture. Since Kymlicka insists it is Mill’s belief that a single nationalculture is a requirement of a liberal state, it is worth noting that Millhimself holds that a shared past is a powerful source of a sense ofnationality. He writes:
A portion of mankind may be said to constitute aNationality if they are united among themselves by common sympathies—which makethem cooperate with each other more willingly than with other people, desire tobe under the same government, and desire that it should be government bythemselves, or a portion of themselves, exclusively. This feeling ofnationality may have been generated by various causes. Sometimes it is theeffect of identity of race and descent. Community of language, community ofreligion greatly contribute to it. Geographical limits are one of its causes.But the strongest of all is identity of political antecedents, the possessionof national history, and consequent community of recollections; collectivepride and humiliation, pleasure and regret, connected with the same events inthe past.[20]
What Mill singles out as the strongest source of nationalidentity—collective pride and humiliation in a shared past—may, for all we know,account for a sense of community even in culturally homogeneous societies. In any case, there is little reason to acceptthe thesis that a liberal political community is necessarily rooted in culture,the thesis on which Kymlicka, in part, mounts his case for a multinationalliberal state. There is also reason to doubt the claim that a distinct cultureis the only context for making choices about what life to lead. A shared pastand the sense of identity it engenders may enable a Swiss or a Canadian to lookinto options for a worthwhile life in the wider community beyond the particularculture to which the citizen belongs.
This brief discussion indicates that the search for an invariant,particularst value of constitutional democracy to anchor a generaljustification of multicultural politics and federative arrangements is vain.For example, the candidates put forward for an invariant value or ideal cannotpossibly account for the existence, importance or persistence of a federalstate in the United States and Germany, where cultural distinctness or securecultural membership does not loom large in federal politics. Moreover, theeffort to define collective rights or federal distribution of powers byreference to an invariant value—a task undertaken more by Kymlicka thanTaylor—tends to inhibit or distort abiding values of constitutional democracy.None of this is, of course, to deny the importance of the questions Taylor andKymlicka formulate and the problems they probe. Rather, the difficulties and limitationsin their answers and solutions attest to the limits of a particularist ideal orphilosophical theory in coming to terms with a particularist phenomenon such asfederalism. Multiculturalism andfederalism enter the political agenda only under peculiar circumstancesunfavorable to familiar universal ideals of democracy. The unfavorableconditions as well as the democratic norms that answer to them varysignificantly. The focus of nonideal theory is on the actual unfavorablecircumstances and the specific ways in which they are reconciled to thestanding values of constitutional democracy. Since the unfavorable conditionsand the terms of reconciliation are diverse, a deeper understanding invites acomparative assessment of different federal arrangements. Under nonidealtheory, federalism thus seems a subject more fit for social science than forideal or philosophical theory. The reason is that multiculturalism,multinationalism, and federalism do not call for a new value or theory ofconstitutional democracy; instead, they necessitate a nuanced institutionalrealization of universal ideals of constitutional democracy.
An application of the method ofnonideal theory to federalism circumscribes the scope of an adequateinterpretation of federalism. First, theperspective guides and shapes the selection of conditions unfavorable todemocratic rule that call for federalist policies and practices. Second, it requires us to show how theprinciples and structures of federalism promote democratic ideals by checkingand exploiting unfavorable circumstances. The defense of federalism is persuasive to the extent that it comes toterms with the unfavorable conditions that prompted it in ways that enhance or,at least, do not compromise democratic ideals of universal reach.
This understanding of theinterpretation of federalism from the perspective of nonideal theory leaveswide room for disagreement. A site ofdebate over federalism since its inception are differences over what values itserves and how well it serves them. Onearea of contention is how best to strike a balance between the claims of unityand the claims of diversity. A formativeexample is the constitutional debate in the United States between federalists(inclusive nationalists) and anti-federalists (exclusive or localnationalists).
[21] Another source ofdisagreement is whether federalism is a source of collective rights or merelyan effective protection of individual rights in a pluralist society. An example is the debate over the status ofthe American bill of rights before and after the reconstruction.
[22]Finally, there is a question kept alive by failed or troubled federalisms: Doesfederalism entrench or attenuate the nonfavorable conditions that occasion it?
[23]This question arises not only where democratic aspirations have beendisappointed but also where they have been reasonably fulfilled.
