I Introduction

Is the European Union (EU) a unique and novel type of entity? This question has beset much of the intellectual and political debate on the EU since its early beginnings in the post-war period. Behind this question lingers a deeper one, namely that of systemic transformation. If the EU is a novel and unique type of entity then this may be an indication of a more profound systemic transformation, i.e. a change from a global system of nation-states to some other order. This question has sparked a large and increasingly interdisciplinary debate. Andrew Linklater notes that: �What has declined in recent years is the level of consensus about the adequacy of sovereign states and the principles of international relations which have prevailed during the Westphalian era.� [1] This transformation has variously been referred to as the decline of the Westphalian Order, the emergence of the post-national constellation, [2] the beginnings of a cosmopolitan order, and so forth. The interesting point about the EU is not only that it appears to challenge the nation-state based system. Equally important is that it raises a fundamental question: is democracy beyond the nation-state possible?

 

The EU is committed to democratic principles and seeks to pursue these through peaceful and democratic means. Albeit it exhibits traits reminiscent of the nation state, it is neither a state nor a nation. It is made up of existing nation-states. Thus, it is very unlikely that it will develop a sense of attachment and allegiance on par with that of the nation-state. It is often also labelled a post-national entity. Is such a structure capable of fostering and sustaining democracy beyond the nation-state?

 

The purpose of this chapter is to shed light on the peaceful and democratic transformation of the nation-state. The EU is an obvious test case of such a transformation, but is a case of one and may be a reflection of the particular Western European experience, rather than herald in systemic change. The EU has its roots in a Western Europe marked by deep supranational remnants, an uneven development of the nation-state, [3] two still quite recent and major instances of war and devastation, and a now universal embrace of democracy. A more convincing test would therefore include cases from other parts of the world to see if there is a deeper process afoot. This chapter offers a modest contribution to this end by comparing the EU with the case of Canada, variously referred to as a post-national entity, a multinational federation, a confederation etc. It is a democracy but has never succeeded in becoming a nation-state. It has also undergone the longest and most comprehensive constitutional debate experienced anywhere � in terms of discussion of principles and practices and the number of participants. Hence, it may be a particularly apposite case to compare the EU with in an assessment of the peaceful and democratic transformation of the nation state.

 

To discuss this we first need to establish a set of indicators of transformation. These are derived from the defining characteristics of the nation-state and from democracy. There is no assurance that the two entities will converge or exhibit the same magnitude or direction of transformation. That is also not the point of this investigation. The concern here is to establish whether these entities represent democratic divergences from some of the core tenets of the nation-state model. Second, both entities will be assessed in terms of how well they cohere with the criteria.

 

            Relevant criteria pertain to:

a)         the extent to which these entities depart from the type of sovereignty and identity that we associate with the nation state. For this to be part of systemic change, it has to relate to:

- the emergence of supranational or international bodies or arrangements that tie states up and undermine their sovereignty

-  the emergence of new non-state actors on the international level that seek and propound other types of allegiance than those associated with the nation-state, and the entrenchment of such in institutional structures so as to form viable alternatives to national identity and sense of attachment

- the orientation of politics along divisions and cleavages other than those associated with sovereignty and territory

 

This is likely to be a matter of degree and changes along one or several dimensions need not converge and reinforce each other. It is therefore necessary to look for instances of self-conscious change. Nation-state formation is a political project. Further, nation-states vary considerably in their structural-institutional set-up, as well as in the allegiances they muster. Therefore, for these entities to be real departures from the nation-state - it is not enough to detect differences along socio-political and institutional terms - such differences also have to be recognised and form part of self-conscious efforts at developing new solutions and arrangements and even ideologies that can replace the nation and national identity. It is also worth noting that there is a distinct vocabulary of the nation-state and that this is highly malleable. Many actors and analysts are committed nationalists and may seek to subsume novel phenomena under old rubrics, hence downplay the actual magnitude of change. If they on the other hand are committed to new and alternative forms, this will show up through the development of new doctrines, or as new terms. Even in the absence of new coherent and comprehensive doctrines, if the new terms start to form a coherent vocabulary of association, this is also a sign of significant change. Therefore, it is necessary to examine: 

 

b)      the extent to which such departures are reflected in the objectives/self-conceptions of central actors (decision-makers and academic analysts) within each entity

- the espousing of new doctrines or ideologies that replace nationalism

- the development of new terms or a new terminology of association

- the forging of such terms into a coherent alternative vocabulary of association

 

These criteria are still inadequate with regard to properly assessing the magnitude of change and its democratic contents. Profoundness would have to refer to constitutional essentials. The concern here is not with the institutional structures or arrangements prescribed in the constitution but rather with the normative principles that it is based on. Are new normative principles and justifications developed? Are these reflected in the mode of legitimation that is endorsed? Do we find new criteria of legitimacy? It is necessary to examine:

 

c)      the extent to which such departures show up as constitutional concerns or as constitutional transformations, with particular emphasis on the question of legitimacy

- the development of new normative principles, justifications and modes of legitimation

- the embarking on constitutional change to entrench such principles in practice

- the conducting of the process of constitutional change in a democratic manner, consistent with such principles

 

This is necessary to properly shed light on both of the aspects of change that we will examine, departures from the nation-state model or template and whether such are democratic.

 

II. The nation-state � principles and context

Max Weber�s famous distinction between state and nation has informed subsequent scholarship on the state, sovereignty, the nation, and national identity. [4] The state is a political institution and an organisational form, whereas the nation is a cultural community and an idea. To Weber the state is �a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory�. [5] This definition only applies to the nation-state form of state. [6] The state is sovereign. [7] Andrew Linklater outlines the classical doctrine of sovereignty in the following manner: �first, no one can be the subject of more than one sovereign; second, only one sovereign power can prevail within a territory; third, all citizens possess the same status and rights, and fourth the bond between citizen and sovereign excludes the alien.� [8] The international system of states is marked by anarchy in the sense that sovereign states do not recognise any superior authority. [9]

 

Nation refers to a specific type of community based on a form of solidarity. This form of solidarity translates into a sense of community - both of which are maintained and shaped by patterns of communication and interaction. [10] A nation is an invented or even imagined community [11] , i.e. some symbols and aspects of a community�s past are highlighted at the behest of other: �Only the symbolic construction of �a people� makes the modern state into a nation-state.� [12] National identity is derived from �(1) an historic territory, or homeland; (2) common myths and historical memories; (3) a common, mass public culture; (4) common legal rights and duties for all members; [and] (5) a common economy with territorial mobility for members.� [13] National identity is based on the conception of a collective national consciousness, whose sources are culturally based, but need not be predetermined or given, and can be forged. [14] Nationalism can take many different forms � some see it as kaleidoscopic [15] - and it also has many different sources. It is important to note that it is nationalism as a doctrine of popular freedom, sovereignty and self-determination, not the type of community associated with the nation that has given the phenomenon such political force and ubiquity. Nationalism is so pervasive that it can be deemed the dominant ideology today. [16]

 

The emergence of nationalism saw the eradication, suppression, transformation or channelling of a wide range of different attachments into various modern notions of national identity. There is a profound ambiguity at the heart of nation and nationalism, as they �purport to disclose conditions of association but � specify no mode of association.� [17] But despite this ambiguity, there is a clear sense that in each nation is found a type of attachment that is reflective of and intrinsic to the particular and unique community that makes up this nation-state. It is given institutional recognition by and is sustained by a self-professed nation-state, as well as through the internationally established legal code or �law of the peoples�. The so-called Westphalian state system, the system of nation-states, privileges the particular type of allegiance and attachment associated with nation and national identity. [18]

 

The nation-state as source of meaning was different from its forebears. Whilst initially embodying a hierarchical system of governance, over time, this became democratised. As a community the nation is marked not by a sense of hierarchy, but by a sense of solidarity among those who are part of it. As Benedict Anderson has noted: �regardless of the actual inequality and exploitation that may prevail in each, the nation is always conceived as a deep, horizontal comradeship.� [19]

 

The nation-state is also an institutionalised means of exclusion of those not deemed to belong to that particular nation. The criteria of access and of exclusion are based on whether outsiders comply with some aspect of cultural and ethnic and historic community, and not with individuals� mutual recognition of each other. Nationally based democracy therefore also confines the notion of self-rule to those who are acknowledged as nationals of the state. Democracy is therefore confined by the nation. There are several problems of democracy that are amplified in such a system. For one, territorial borders cannot be altered by democratic means. Further, in a democracy the people cannot determine who the people are, i.e. establish viable criteria for exclusion.(Offe 2000)

 

Ontologically speaking, very few if any states will fully fit the mould. [20] The emergence of the nation-state meant the gradual shaping of a coherent epistemology that has formed the mould that subsequent nation-builders have assessed their projects in relation to and sought to conform to. It is also noteworthy that at the time it emerged, (what has come to be known as) the modern European nation-state was itself a relatively novel association. �The manners in which they emerged were as diverse as the local conditions from which they sprang were various; their fortunes were uneven, their durability unequal� But although the differences which distinguished one from another were large and have never been extinguished, they came to be recognized as versions of, or as approximations to an emergent ideal character.� [21] An important aspect of this process is the development of a vocabulary to depict the ideal character of this phenomenon. When the nation-state was established in Europe �the whole European vocabulary of association � [was] ransacked for suitable expressions with which to describe and to appraise the formal character of a modern European state.� [22] One side of this story is �the emergence of a novel mode of association, of the exploration of the ambiguities of its character and of the reflective engagement to understand it.� [23]

 

This was clearly not a �neutral� vocabulary; it was steeped in and depended on, a set of normative principles, both of which have greatly contributed to the sustenance and legitimacy of the nation-state, [24] albeit it is certainly not without logical contradictions, ambiguities and limitations. The nation and nationalism have since obtained a hegemonic role. Nationalism is so malleable as to cover a wide range of phenomena. Further, �one reason for the vitality of the states system is the tyranny of the concepts and normative principles associated with it�. [25] Is this changing today? 

 

III. Departing from the nation�state mould? - the EU and Canada Assessed

The sources of nation-state transformation are legion. The process of globalisation is one such general category of changes, albeit certainly not the only, and often interacts with deeper historical factors, hence will be built into the assessment here.

 

Weakened or beyond sovereignty and national identity?

 

Today, state sovereignty is challenged by major transformations within the realm of international law. The first is the recognition of individuals and groups as legal subjects of international law. Second, the realm of international law is shifting from primarily being focused on political and geopolitical matters to an increased focus on regulation of economic, social, communication and environmental matters. Third, is the change in the sources of international law � it is no longer exclusively focused on states but includes international treaties or conventions, international custom and practice, and �the underlying principles of law recognized by �civilized nations��. [26] �International law recognizes powers and constraints, and rights and duties, which have qualified the principle of state sovereignty in a number of important respects; sovereignty per se is no longer a straightforward guarantee of international legitimacy. Entrenched in certain legal instruments is the view that a legitimate state must be a democratic state that upholds certain common values.� [27]

 

These legal developments are not uniform across the globe and have been carried further in Europe than anywhere else. This applies to the European Convention of Human Rights (ECHR of November 4, 1950) and also to European Law (the two converge in the field of human rights). With regard to the ECHR �The European initiative was and remains a most radical legal innovation: an innovation which, against the stream of state history, allows individual citizens to initiate proceedings against their own governments. Within this framework, states are no longer free to treat their own citizens as they think fit� The European Convention on Human Rights is most explicit in connecting democracy with state legitimacy, as is the statute of the Council of Europe, which makes a commitment to democracy a condition of membership.� [28] The most explicit curtailments of state sovereignty have occurred in Western Europe, where the greatest transformations of international law have taken place. Here these are bolstered and sustained by a supranational structure of governance.

 

The EU embeds this legal system in a supranational structure of governance, another obvious curtailment of state sovereignty. In institutional terms, the EU is a highly complex entity, which holds a number of features that set it apart from any state. [29] It is a complex mixture of supranational, transnational and international features. Its legal system claims preponderance over national systems and has direct effect on the Member States, in the areas within its jurisdiction. Many analysts also claim that the EU has a constitution. [30] The European Parliament, the Court of Justice and the Commission are supranational institutions and are institutionally committed to further integration. But the Member States continue to see themselves as the �masters of the treaties� and each Member State has the right to veto treaty changes, thus retaining a strong �statist� imprint on the EU. This is also retained in some of the institutions. The Council is an intergovernmental body but permits an extensive amount of �pooling of sovereignty� through a consensual decision process ensured by complex voting systems (based on co-decision, co-operation and consultation).

The EU has not been granted international recognition on a par with a state. It also defies conventional conceptions of sovereignty as consistency between a set of rules and the territory on which they operate. On the one hand its rules and regulations spread well beyond its formal bounds. It has signed the EEA agreement with the EFTA states, which effectively extends much of the Acquis Communautaire to these countries, and has signed association agreements with applicant countries. On the other hand, it does not have a clearly defined territory on which its own institutions work in an exclusive manner. In that sense it is perhaps better to think of as marked by variable geometry. This has many sources, among which are treaty provisions permitting further integration, as well as a wide range of exemptions. Some countries have exemptions from treaty provisions (Denmark has among others exemptions from European citizenship), some member states have opted out of the Euro, and some are not members of the Schengen Convention (whereas some non-members are affiliated). It does not have a clearly established centre of authority. Nor is it entirely clear where its sovereignty is ultimately located. The EU is no doubt the most radical current peaceful attempt to depart from the prevailing doctrine of state sovereignty and national identity. As a novel system of binding interstate interaction it poses a direct challenge to the still prevailing conception of the international system, the Westphalian one.

 

European citizenship is also different from established nation-state based conceptions: �Union citizenship is not so much a relation of the individual vis-a`-vis Community institutions, but rather a particular legal status vis-a`-vis national member states, which have to learn how to cope with the fact that persons who are physically and socially their citizens are acquiring a kind of legal citizenship by means of European citizenship without being their nationals.� [31] European citizenship reflects the explicit inclusion of non-nationals into the operations of every Member State. In this context, we are reminded of the tenuous and contextual link between citizenship and national identity. Citizenship and national identity, as Jürgen Habermas reminds us, are not conceptually linked although they may be so empirically.

 

In terms of inclusiveness, there is an important distinction between European citizens, i.e. citizens of the Member States on the one hand and third-country citizens resident in the EU on the other. The latter are less included but have obtained some rights, which vary considerably from one Member State to the other. [32] Terms such as post-national citizenship [33] and denizenship have been used to depict their role.

 

Despite the magnitude of transformation that has taken place in Western Europe in the sense of developing an unprecedented system of law and a set of supranational institutions, Western Europe is probably less unique with regard to the changes that have taken place in the member states� (and affiliated states�) autonomy. The autonomy of the state is challenged by heightened interconnectedness � states are far more closely linked together than before across the whole range of political, social, cultural, economic and legal domains; new international and transnational actors; the revolution in communications, and the global reach of the environmental and other pressing problems. Today�s process is unprecedented in both spatio-temporal and organisational terms. It is far more extensive, intensive, has a far higher velocity and also impact than earlier processes of globalisation. It is also far more strongly institutionalised, through international treaties and conventions, regimes, networks and patterns of interaction and contact. Held et al. refer to this as a unique confluence of factors and processes. [34]

 

In the EU there is no single language, ethnic group or nation that can command majority support. There is no overarching European identity. Although not without ambiguity, most of these efforts refer to more inclusive and universal values than those associated with national identity. [35] The European Union at present consists of 15 member states (4 are federal or quasi-federal), has 11 official and working languages, numerous minority nationalisms and ethnic minorities (some of which cross state bounds), and regional movements.

 

Canada is recognised as a sovereign state - and widely regarded as a valuable member of the international society of states. It is also one of the oldest constitutional democracies in the world. As part of NAFTA it is tied up in a semi-continental economic agreement, which places limits on its sovereignty. Canadians have always feared that their country would eventually be included in the United States. Further, it was only in 1981 that Canada patriated its constitution, through the Constitution Act 1981, and formally declared that the constitution emanated from the Canadian people. [36] The province of Quebec has still not signed this Act. The unresolved question of the role of Quebec within the Canadian federation � �two nations within the bosom of one state� � is one of several grounds for considering whether Canada may represent a lasting departure from the nation-state model. The territorial make-up of the country is not settled, as the threat of Quebec separation still looms. In the latest referendum in 1995 (the second such referendum), 49.4 per cent voted Yes, whereas 50.58 percent voted No (the No side won by only 54,288 votes), although the proportion of committed separatists is significantly lower. If Quebec separates, there is no automatic assurance that the Rest-of-Canada will stay united. For a long time this problem was not taken seriously but the close call in 1995 has prompted attention to this. If Quebec secedes, the Rest-of-Canada will have to reconstitute itself � a very difficult process due to the strong centrifugal pressures inside the federation. [37] Further, there is not agreement as to what territory will precisely make up an eventual independent Quebec, a problem that is compounded by pleas for partition. Partitionists claim that if Canada is divisible then so should also Quebec be. [38] Finally, extensive aboriginal self-government - in territorial and jurisdictional terms - will not break up the country but will likely produce a far more complex conception of the location of sovereignty and the nature of citizenship and may complicate the relations between Quebec and the rest-of-Canada. These issues arise out of the fact that Canada has never resolved the fundamental question as to where sovereignty is ultimately to be located. [39]

 

The main underlying concern is that of national unity. Although there is a clear majority of English-speakers, there are four sets of national identifications that are currently being propounded: a) rest-of-Canada Canadian nationalism (or Canada-without-Quebec nationalism), b) Quebecois nationalism, c) Aboriginal nationalism, and d) Canadian nationalism (Canada as it exists today). At present no national identity can legitimately claim to be the overarching one. For Canada as a whole language as a basis for identity is highly divisive. The same applies to ethnicity. Originally the tension was between English and French. These groups occupied special status, as �Founding Nations�. This status has now been challenged by aboriginal peoples, who refer to themselves as �First Nations�. The country has also, as a result of large-scale immigration from all parts of the world and in particular the so-called Third World, become far more ethnically diverse. In 1996, 17.2 per cent of the population was foreign-born. In relative terms, this is far more than the US, the other major country with immigration-induced pluralism. [40] Leslie Laczko sees Canada as an outlier or extreme case of diversity among modern industrialised countries: �it contains more types of pluralism than these others do [United States, Belgium and Switzerland]. It is this combination of types of pluralism that makes Canada distinctive.� [41]

 

Both the EU and Canada deviate from the conventional conception of nation state. They are �multinational�, �polyethnic� [42] and multicultural. The EU does not only challenge established conceptions of state but also of nation. It is increasingly being labelled a post-national [43] entity, which implies that it is marked by and promotes allegiances and identities that derive from other sources and are more inclusive than those associated with the nation. Canada is also sometimes referred to as a post-national entity. Northrop Frye, for one, has noted that Canada "has passed from a pre-national to a post-national phase without ever having become a nation (Frye cited in Lipset 1990:6). 

 

Emergence of New Types of Actors and Transnationalisation of Established Actors

 

In Europe, the integration process fosters transnational activity, formation of networks and organisations. In Canada, as we will see, the deep process of constitutional introspection has helped mobilise social movements, which actively draw on international developments � and help shape such � in their politics. This was greatly aided by the Canadian obsession with identity.

            These developments correspond with, draw from and themselves help spur, the emergence of a whole range of new actors on the international arena. Of particular note is the great surge in transnational and international social movement activism. These may be benign or malign, as the recent spate of terrorist activity has testified to.

 

The politics of recognition of unique identity [44] has long revolved around the protection and propounding of national identity, which was institutionally privileged in the Westphalian system. That form of privileging of national patterns of difference and uniqueness appears to be less so the case, as other types of organisations and other conceptions of identity seek a more pronounced place in our societies and in our very conception of what society is.

 

Social movements such as the women�s movement, aboriginal organisations, gay and lesbian organisations, organisations for the disabled, for anti-war activists and environmentalists and ecologists have become increasingly internationalised. To varying degrees they are proponents of a politics of recognition of identities that are not privileged by the Westphalian system. As Andrew Linklater has noted �The increased prominence of the politics of recognition is one key indicator of movement beyond the Westphalian era.� [45]

 

Their commitment to democratic procedures varies considerably, albeit they can and do contribute to heightened reflexivity and contestation, they help nationalise and localise global patterns and problems, as well as globalise national and local issues and questions. In that sense individual states face the dual challenge of integration and fragmentation - from �above� as well as from �below� by increasingly assertive social movements and regions.

 

Albeit often part of wider international networks, social movements and groups have played critical roles in both Western Europe (at the national and European levels) and in Canada. The European integration process helps forge such transnational groups, through the establishment of a new level of governance and through the emergence of new institutional access points, such as the EP, the ECJ, the Commission and the system of Comitology. Canada�s ethnic heterogeneity probably contributes to make it particularly sensitive to international developments, through the experiences, networks, and concerns that the various groups bring forth, and amplified through official endorsement of multiculturalism and heterogeneity.

 

The Canadian philosopher James Tully speaks to Canadian reality when he notes that �What is distinctive of our age is a multiplicity of demands for recognition at the same time; the demands are for a variety of forms of self rule; and the demands conflict violently in practice.� [46] . The globalisation of human rights highlights the universalisable component of citizenship and identity and thus further challenges the national basis for identity. This development combines with and helps reinforce the political mobilisation of groups and communities that assert rights and identities. In some cases, these developments help challenge existing nation-states and raise new and highly challenging issues of human rights and human dignity, in other cases established democratic standards may themselves be challenged. With regard to the latter, extreme right-wing and neo-nazi groups also seek to �go global� and exploit new technologies. Their objective however is often to close states from foreign people and influences, and nourish ethnically homogeneous societies.

 

The argument thus far has been that the two entities exhibit a significant measure of divergence from some of the core traits of the nation state model. This is most explicit in Europe, where supranational institutions that greatly weaken state sovereignty have been established. To a lesser extent, it also applies to Canada, due to its membership in NAFTA and in particular because of its unresolved constitutional questions which pertain to the territorial integrity and very existence of the state. Both entities are extremely diverse in cultural terms and neither forms a coherent and self-conscious nation. They foster transnational activity, and help sustain non-state actors at the international level, and the orientation of politics along non-territorial divisions. Insofar as there is a systemic transformation afoot it appears to result more from transformation of states and emergence of new quasi-state actors such as the EU than from the emergence of new non-state and social movement actors, however.

 

These patterns of transformation suggest the emergence of new forms of moral inclusiveness and heightened respect and tolerance of difference, clearly beyond those offered by the nation-state, even in its most liberal trappings. The question is whether, or the extent to which, the essential principles of organisation and conceptions of community, identity and citizenship that are intrinsic to the nation state qua model are becoming transformed in Europe and Canada. To get a better sense of this we need to examine whether the changes are part of conscious efforts or programmes of action, whether such are given normative justifications, and whether action follows talk, in the sense that they show up as constitutional concerns and are part of constitutional change programmes.

 

Objectives/Self-conceptions: New Official Doctrines?

 

Official statements and even constitutional documents reveal that the political elites are aware that the two entities differ from conventional nation states. The founders of the EU were acutely aware of the excesses of nationalism after having gone through two devastating world wars. A central objective in establishing the EU was to preserve peace through legally binding co-operation. Deeply embedded in the EU then is the desire to develop new forms of political association.

 

During and after the war there were many visions of European unity. But these were never made into a coherent plan or doctrine that the participants were able to agree upon and that could supplant nationalism. Jean Monnet and Altiero Spinnelli, two of the most influential figures in the movement towards European unity, envisaged the formation of a political system that built upon but transformed and transcended the nation-state, also in terms of its end product. Monnet saw the EU as an experiment and was less clear on the nature of resultant entity than was Spinelli who envisaged a European federation. Monnet was particularly concerned with the method of integration. He was foremost a practitioner, and sought to propel the process through the combination of imagination, pragmatism and incrementalism. [47] The process has been marked by a close interaction between the development of theories of integration and the development of strategies of integration. [48] The dominant ones are functionalism, federalism and neo-functionalism. The integration process has been a testing ground of ideas, principles, procedures, institutional arrangements and policies. It has been contested throughout from defenders of the nation-state, from de Gaulle to Thatcher, to Berlusconi.

These tensions also lie at the heart of the idea of Europe. As Gerard Delanty has noted �Lying at the core of the idea of Europe is a fundamental ambivalence about the normative horizons of collective identity in the modern polity. This ambivalence is apparent in an unresolved tension between two models of collective identity: an exclusivist and formal notion of the polity, on the one side, and on the other, one based on participation and solidarity.� [49]

 

During the 1980s and 1990s, the pace of integration has proceeded much further than have efforts on the part of the responsible elites to clarify the nature of the entity that they are constructing. The last few years has seen a revival of debate, touched off by the German foreign minister Joschka Fischer�s speech at the Humboldt University in Berlin on May 12, 2000. Symptomatically, Fischer presented this as a private reflection and not in his capacity as foreign minister. Here he propagated a European federation - not a European nation-state. This speech sparked considerable debate and responses have since emerged from numerous heads of state and academic analysts. [50] First announced at Nice in December 2000 was a commitment on the part of the EU to embark on a comprehensive debate on the future of Europe. This was amplified at the Laeken Summit in December 2001, which decided to establish a Convention on the Future of Europe. Through this Constitutional Convention the EU has embarked on a proper constitutional debate (will be further dealt with below).

 

Thus far, the EU has served more as a meeting-place for visions than as a hammered-out project. Three traits stand out in terms of allegiance. One is inclusiveness and accommodation of difference, well beyond protecting national sources of difference. In its present form it is no doubt a new and innovative, albeit incomplete attempt, at accommodating difference in a more inclusive manner than can the nation-state. The other is the commitment to social solidarity and a European social model. This is very clearly expressed in the Charter of Fundamental Rights of the European Union, as well as in the treaties and in various policy measures and commitments from the EU. The third is that these values are getting contested, mainly but not exclusively from right-wing populists.

 

Throughout its history, there have been numerous nation-builders in Canada - in the federal capital in Ottawa, in the capital of Quebec in Quebec city, and even in provincial capitals and the more than 630 First Nations communities. [51] The sheer multitude of national projects is testimony to the failure to reach agreement on a coherent sense of a Canadian nation. Precisely what type of community it is has been contested. Is it a community of communities, a failed nation, a federation, a multinational federation, a confederation, or a post-national or even postmodern entity?

 

Historically speaking, federalism has always been part of the Canadian experiment. To Samuel LaSelva, the Canadian experiment has been that of creating a political nationality through federalism. The existence of a French-Canadian (catholic) and an English-Canadian (protestant) community meant that the essential challenge was to create a sense of common allegiance, whilst also respect the uniqueness of each group. This was a very different challenge from that facing the American founders. �Canadian nationalism presupposes Canadian federalism, which in turn rests on a complex form of fraternity that can promote a just society characterized by a humanistic liberalism and democratic dialogue.� [52] To address this Canada had to develop its own special version of federalism. La Selva attributes this to one of the founders, George-Étienne Cartier, and argues that this notion is based on federalism as a way of life. �For Cartier, the justification of federalism was � that it accommodated distinct identities within the political framework of a great nation. The very divisions of federalism, when correctly drawn and coupled with a suitable scheme of minority rights, were for him what sustained the Canadian nation.� [53] Such accommodation of difference presupposed tolerance, co-operation, mutual accommodation, and minority justice. The requisite sense of attachment is not nationalism but fraternity. Nationalists appeal to the value of fraternity but confine it to one group, or culture or language community, whereas federalists expand it: �the idea of fraternity looks two ways. It looks to those who share a way of life; it also looks to those who have adopted alternative ways of life.� [54]

 

This spirit has shaped inter-cultural relations in Canada. What gives Quebec nationalism its strength, as Charles Taylor (1993) has noted, is recognition. The quest for recognition revolves around the need to ensure recognition of the special status of Quebec, as a distinct nation or society within Canada. Even most Quebec sovereignists insist on a formal arrangement with Canada after Quebec independence. They have opted for sovereignty-association, or some other close relationship with Canada, rather than complete independence. The ambiguous relationship they exhibit to Canada is significant. Hedley Bull has noted that: �if nationalist separatist groups were content to reject the sovereignty of the states to which they are at present subject, but at the same time refrained from advancing any claims to sovereign statehood themselves, some genuine innovation in the structure of the world political system might take place.� [55] These tensions play themselves out in the debate on Quebec�s relationship to Canada.

 

Aboriginal nationalism is certainly not about separation from Canada but about redefinition of the terms of co-existence so that their uniqueness and cultural traditions are properly preserved. The greatly increased ethnic diversity of the country, coupled with other factors, has spawned claims for recognition of difference and uniqueness from immigrants and women�s groups and gays and lesbians and a host of other groups. Some of these claims have emerged in response to minority nationalisms, and have been greatly aided by group-based provisions in the Charter of Rights and Freedoms (1981). Many have no real bearing on territory and challenge the privileged position and status of nationally based claims. Will Kymlicka has noted that: �In our 130-year existence, Canadians have managed to build a prosperous, tolerant, free, and democratic society in one of the most ethnoculturally diverse countries in the world. We have become so accustomed to our diversity that we often fail to notice how exceptional Canada is in this regard.� [56]

 

A New Official Doctrine?

What makes Canada of today unique is the multiplication of forms and claims of difference, including attempts at accommodating these, as well as attempts at finding common ground and a sense of unity of purpose and togetherness. Contemporary Canada is an experiment both in the sense of accommodating difference and respecting diverse ways of life, as well as in attempting to develop a sense of commonality out of this.

 

The diversity of Canada has long been officially recognised and propounded through minority rights and multiculturalism. The country is officially bilingual and multicultural. [57] It contains specific legal categories for native people, and it offers official recognition of immigrant ethnicity. For instance, Prime Minister Jean Chretien has recently stated that: �The Canadian approach to diversity strengthens Canada�s reputation as a just and fair society. Canada is renowned for its rich cultural mosaic and the Canadian model has become an example for the rest of the world.� [58] Noted Kymlicka: �Canada is a world leader in three of the most important areas of ethnocultural relations: immigration, indigenous peoples, and the accommodation of minority nationalisms. Many other countries have one or more of these forms of diversity, but very few have all three, and none has the same wealth of historical experience in dealing with them.� [59]

 

Multiculturalism is the policy of integrating immigrants from diverse cultural backgrounds into society - without eliminating their characteristics. It seeks to avoid the twin evils of assimilation and ethnic separation or ghettoisation. It is also an ideology that speaks to interethnic tolerance and the benefits that accrue to society from its diversity. [60] The policy is premised on the notion that integration or incorporation of people from different backgrounds is a two-way process, which places requirements on those that integrate but also on those who are already there. The essence of this policy is to stimulate inclusivity and self-reflection on the part of both the arriving minority(ies) and the receiving majority, to ensure a process of mutual accommodation and change. This policy programme has contributed to the heightened awareness of difference and the associated need for accommodating difference and diversity. [61] This approach to socialisation and incorporation is different from that of nationalism, which is far more attuned to integrating people into a set mould or into a community with a clear sense of itself and its national identity. It is noteworthy, however, that the multiculturalism policy has not been very well explained, nor has it been well defended by public officials. [62]

 

The Canadian attempts at accommodation of diversity are motivated by considerations of justice. They seek to adjust the concern with individual autonomy to the cultural and contextual factors that affect each individual�s life. This concern with justice has been extended to the international realm, and been incorporated into Canadian foreign policy, through the official embrace of the notion of human security. �For Canada, human security is an approach to foreign policy that puts people � their rights, their safety and their lives - first. Our objective is to build a world where universal humanitarian standards and the rule of law protect all people; where those who violate these standards are held accountable; and where our international institutions are equipped to defend and enforce those standards. In short, a world where people can live in freedom from fear.� [63]

 

This doctrine bespeaks a notion of global responsibility. This is not unique, as several states have adopted human rights norms in their foreign policy and have committed themselves to comply with such. Equally important is whether they are willing to have human rights norms and universal conceptions of justice and fairness determine their critical internal issues, in particular issues of vital importance to sovereignty, such as secession. The question of Quebec secession is one such. In the aftermath of the Quebec referendum, the federal Canadian government sought to clarify the legal framework surrounding possible future Quebec referenda. The Supreme Court handed down its advisory opinion in 1998. [64] It stated that Quebec has no legal right � under Canadian or international law � to unilaterally secede from Canada. It went on to note that:

 

Our democratic institutions accommodate a continuous process of discussion and evolution, which is reflected in the constitutional right of each participant in the federation to initiate constitutional change. This implies a reciprocal duty on the other participants to engage in discussions to address any legitimate initiative to change the constitutional order. A clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other participants in Confederation would have to recognize. [65]

 

The Court was careful to note that the issue had to be determined politically. It did note however that: �The ultimate success of [an unconstitutional declaration of secession leading to a de facto secession] � would be dependent on recognition by the international community, which is likely to consider the legality and legitimacy of secession, having regard to, amongst other facts, the conduct of Quebec and Canada, in determining whether to grant or withhold recognition.� The critical question is precisely what role the international community would have. If it was permitted to serve as the source of standards of legitimacy, then a qualitative move away from sovereignty would have been taken. At the least this example testifies to a great sensitivity to the international community or international public opinion as overseer of standards.

 

This brief presentation has revealed that both in the EU and Canada policies of inclusion and exclusion have been developed that are more inclusive than those of nationalism. In both entities, whilst they have developed such practices, the decision-makers have refrained from adopting a set of agreed-upon doctrines that serve as explicit departures from the nation-state framework. There are different views and positions and some would embrace a notion of the EU and Canada as post-national. [66] Academics have played a critical role in devising the justifications of many of the policies and practices that have been developed. In fact, in many cases academics and intellectuals have had to try to fill the void left by the architects� failure to spell out what kind of structure they are erecting and what kind of justifications such require.

 

Having said that, no coherent sense of Europe and no coherent sense of the type of community or the type of polity emerging can be discerned from the academic literature. �Europe� is a meeting ground or place for ideas and visions, not a clearly hammered out intellectual project. That also applies to Canada, where there are also competing visions. This is significant given the prominent role academics and intellectuals played in �writing the nation into existence�. [67]

 

Social scientists and political philosophers have sought to understand the nature, magnitude and implications of the challenges that these entities face and have proposed a range of novel solutions. [68] Although the decision-makers have refrained from adopting and embracing explicit doctrines that serve as coherent alternatives to nationalism and the nation-state template, the constitutional debates and the emerging practice do reveal alternative visions, principles and conceptions.

 

Constitution-making and the Quest for Legitimacy

In principle, the constitution is the substantive and symbolic manifestation of the core characteristics of a given political entity. Formal constitutions often diverge considerably from the actual nature and operation of the entities they are to regulate and depict. Whilst constitutionalism as such clearly predates state, [69] contemporary constitutions are reflections of the nation-state mode of organisation and community and are seen as instruments to designate nation-states. Obviously, then, if the EU and Canada are departing from the nation state model this must be reflected in their constitutions: as altered constitutional principles, as altered constitutional arrangements, or as unique processes of constitutional transformation.

 

In Canada, the problems and challenges have been recognised as constitutional for a very long time. In the EU, post-Nice, there is now a similar recognition. Since the late 1970s, three major efforts at constitutional change were made in Canada. The first such was the patriation of the Constitution in 1982, and the two latter are the defunct Meech Lake (1987) and Charlottetown (1992) Accords. These were the core components of what has been referred to as �mega-constitutional politics�. [70] Mega constitutional politics is qualitatively different from normal constitutional politics:

 

First, mega constitutional politics goes beyond disputing the merits of specific constitutional proposals and addresses the very nature of the political community on which the constitution is based. Mega constitutional politics, whether directed towards comprehensive constitutional change or not, is concerned with reaching agreement on the identity and fundamental principles of the body politic. The second feature of mega constitutional politics flows from the first. Precisely because of the fundamental nature of the issues in dispute - their tendency to touch citizens� sense of identity and self-worth - mega constitutional politics is exceptionally emotional and intense. When a country�s constitutional politics reaches this level, the constitutional question tends to dwarf all other public concerns. [71]

 

In Canada this process has touched on virtually all aspects of the political system and society and produced a wide array of radical proposals for how to address these challenges. Canada is unique in that it has been involved in mega constitutional politics for so long (from the mid-1960s to the mid 1990s). Mega constitutional politics, although it certainly can take place within an established constitutional framework, is more appropriately labelled constitution-making than constitutional change, as in principle the entire constitutional system is �up for grabs�.

 

In a similar manner, albeit not portrayed as constitutional by the key actors involved, just since the mid 1980s, the EU has gone through three major treaty changes, the Single European Act of 1985, the Maastricht Treaty of 1991 and the Amsterdam Treaty of 1997 and is in the process of ratifying the fourth, the Nice Treaty 2000. At present the EU is preparing further reforms to make itself ready for enlargement. This lengthy and continuous effort at polity-building is now explicitly referred to as constitution making.

 

New Principles?

Samuel LaSelva notes that �Canada is regarded as a difficult country to justify, even by those who accept the distinction [between ethnic and civic nationalism] and understand the implications of civic nationhood.� [72] The general principles used to depict Canada are those of tolerance, fraternity, community, federalism, democracy, rule of law, and solidarity. Federalism plays a key role but it is �stretched� or extended, precisely to accommodate deviations from the nation-state model. As noted above federalism as principle and as mode of attachment is distinct from nation and a federation need not be a state. Daniel Elazar has noted that: �the federal principle represents an alternative to (and a radical attack upon) the modern idea of sovereignty.� [73]   In no other country is this tension more apparent than in today�s Canada. Analysts use the term federation and confederation almost interchangeably, with few attempts to differentiate between them. They also supplement the federal component with other terms such as �multinational federation� [74] , �asymmetrical federalism� [75] , and pluralist federalism, executive federalism, and federalism as cultural compact.

 

The attempts to grapple with the whole complex of identity politics and the accommodation of multiple forms of difference have led to a whole new vocabulary to properly depict the types and forms of difference that make up Canada. Relevant terms to depict the entity are cultural mosaic (as opposed to the American notion of melting-pot), pluralistic civilisation, [76] multinational federation, and multicultural and polyethnic society. Charles Taylor has argued that Canada is marked by �deep diversity� and James Tully has talked of the need for �diversity awareness�. It is also noteworthy that the very term �nation� is increasingly disassociated from state, in particular in relation to aboriginals or �First Nations� who see each aboriginal community � however small - as a nation. Such a designation also serves to further weaken the semantic association between nation and state.

 

The Canadian experience has prompted analysts to challenge constitutional orthodoxy on several accounts. Simone Chambers argues that the notion of constitution as contract is deficient, as �contracts cannot accommodate deep diversity�. [77] The complex issues cannot be settled at a privileged moment and once and for all, and instead require reconceptualising constitution as ongoing conversation. James Tully takes this further in his conception of what should be the nature of contemporary constitutionalism: �Both the philosophy and practice consist in the negotiation and mediation of claims to recognition in a dialogue governed by the conventions of mutual recognition, continuity and consent.� [78] These alternative visions are all attempts to grapple with the accommodation of difference.

 

These are terminological innovations that deviate from the nation-state model in that they open up for a considerably more flexible set of terms of association. But they do not form a coherent set of principles to denote an alternative mode of association. But this is also one of the problems of the nation, i.e. its malleability or its lack of specificity in terms of mode of association.

The general principles that the EU appeals to are cast in very general terms and refer to democracy, the rule of law, solidarity, subsidiarity, tolerance and respect for difference and diversity. There is also a process of ransacking of vocabulary similar to that associated with the emergence of the modern European state currently taking place in Europe � as an effort to depict the EU qua polity - as well as the peculiar traits of it. To clarify its nature as polity some analysts resort to the vocabulary of federalism, such as cooperative confederation, [79] or quasi-federal entity; [80] others see it as a system of multi-level governance, such as a multi-level polity, [81] or a mixed commonwealth, [82] or condominio, consortio; [83] others think of it as some form of transition, such as partial polity [84] or post-national entity; [85] and others still think of it in globalist terms, such as cosmopolitanism. [86] These are new terms that depict a more complex relation between territory and identity. Old pre-nation principles have also been redesigned to try to capture the institutionally complex and asymmetrical nature of this multi-level entity, such as subsidiarity. [87] New principles of governance such as deliberative supranationalism have been coined to designate the manner in which experts and state representatives deliberate within the ambit of transnational networks. These terms reveal that in both places there is a wide-ranging effort at exploration of new concepts and principles and assessments of their normative status.

 

New conceptions of legitimacy or more complex ones?

Prior to the patriation of the Canadian constitution in 1982, the constitution (BNA Act 1867) was based on parliamentary sovereignty at both levels of government. In principle, this means that the federal level of government would be deemed legitimate within its sphere of competence, and the provincial level within its. This system therefore was premised on a jurisdictional division of powers that could be seen as compatible with the needs and wishes of people within each parliamentary sphere of competence. Such compatibility has been found to be wanting, and is probably one of the most widely commented features of the Canadian federal system. The point is that the federal structure of Canada effectively prevented the federal parliament from claiming parliamentary sovereignty on its own. In a federal structure (which is based on a jurisdictional rather than for instance a functional division of powers and competencies) the principle of parliamentary supremacy, this suggests, is not confined to a particular parliament but rather can be said to apply to all parliaments involved. The federal parliament had to share its parliamentary sovereignty with the parliaments at the provincial level. The pre-patriation constitutional system was thus based on two principles, namely parliamentary sovereignty at both levels, and a second principle, which may be termed the federal principle (and which implies non-centralisation). In formal terms, the 1867 BNA Act did privilege the federal level, but the initial British and later federal government preponderance in constitutional matters has been successfully challenged by the provinces. The federal government�s claim to preponderance has received scant support. The province of Quebec has long sought veto in constitutional matters and has conceived of the process as bilateral, i.e. as one between itself and the federal government, because Quebec has conceived of itself as a nation on par with the rest-of-Canada. This two-nation view of Canada has been challenged by the other provinces, which have argued that the federal principle entails provincial equality. No single province will have unique weight or importance in constitutional deliberations. Neither of these two principles - national and provincial equality - has been fully accepted.

 

The most dramatic effort to break out of this situation was the patriation of the constitution in 1982 which included a Charter of Rights and Freedoms and constitutionalised a third principle of equality, that of equality of citizens. [88] The Constitution Act of 1982, which the government of Quebec refused to sign, has deeply affected the manner in which constitution making is conducted and the manner in which the constitution is legitimated.

 

The Charter of Rights and Freedoms constitutionalised a new principle of legitimation, that of rights-based legitimation. This mode of legitimation, which is foremost based on the notion of individual autonomy and popular sovereignty, challenged the established complex of parliamentary sovereignty and federalism. Domestic reasons and considerations were clearly important in prompting the decision to introduce the Charter, but there were also important international reasons associated with the development of international law. [89] Rights-based legitimation is premised on every citizen as a rights bearer and with a direct stake in the constitution because for the people to be truly sovereign, in normative terms, they have to consider themselves, and be considered as, the authors of the law. [90] Individual rights as a mode of legitimation is less contextual and more universalist, as the government is constrained both by its own legal system and by an external body of law. A rights-based mode of legitimation thus also entails a more open and inclusive process of constitution-making. [91] Citizens as rights bearers cannot be content with a system of constitution making in which the heads of government negotiate among themselves.

 

But the Charter was no clean break with the past. The governments succeeded in obtaining a so-called notwithstanding clause, which enabled them to opt out of some of the provisions of the Charter. Further, the Charter also contained exemptions for Quebec and for Aboriginal peoples. [92] The Charter was also not only a source of individual rights, it contained important provisions on group-rights. These provisions have served as essential mobilising devises for women�s groups, aboriginals, the disabled, and gays and lesbians. One objective of the Charter was as a means to accommodate new and internationally important forms of identity and difference, in particular women and aboriginals. It privileged social movement types of identity over more conventional ones associated with territorially based nationalism, in an explicit effort to weaken the governments� � in particular provincial ones� � hold on the population. Language provisions to make the country bi-lingual were explicit efforts to weaken the association of French and the province of Quebec. The Charter helped bring to light deep-seated disagreements over �first principles�.

 

Many of the provinces have insisted on the importance of respecting the principle of provincial equality, in opposition to demands from Quebecers, aboriginals and social movements for special status and treatment. Today�s Canada is marked by three principles of equality that vie for space: equality of nations, equality of provinces, and equality of citizens. The notion of three equalities is another way of talking of a different configuration of moral universalism and difference than what marks the nation-state. [93] The degree of moral universalism surpasses that of a nation-state and the extent of difference also surpasses that of a nation-state. Reactions against the Charter have also generally been motivated by the need to accommodate difference, i.e. that the Charter was not sufficiently attentive to all the types of difference, in particular those associated with nation and province. These types of accommodations have been so complex that they have failed.

 

Canada has been involved in a truly unprecedented comprehensive and lengthy process of constitutional politics, which has revolved around first principles. This process led to the constitutionalisation of a new principle of rights-based legitimation that has deeply affected the other two principles (parliamentary sovereignty and federalism). The result is a more complex system of legitimation that continues to be contested and that therefore requires a conception of constitution as ongoing discursive contestation.

 

The question of the legitimacy of the EU has entered centre stage of academic debate and scrutiny in the 1990s. The legitimacy of the EU was initially related to its outcomes and conceived of as �indirect� or �derivative�. It was conditioned on the legitimacy of the democratic nation states of which the EU is composed, [94] i.e. based on the parliamentary or popular (through referenda) sovereignty of each member state. [95] The EU itself could claim legitimacy not with reference to its constitutional make-up, institutional structure and associated principles of governance but insofar as is was able to �deliver the goods�. This largely performance-based mode of legitimation has become increasingly problematic after Maastricht, which strengthened the supranational features of the EU, and increased the depth and breadth of integration. This was further reinforced at Amsterdam, in institutional terms, in the vocabulary used to depict the entity, and in the standards of legitimate governance that EU officials and critics referred to. The political and academic debate in the 1990s has revolved around this question of the democratic and legitimacy deficit of the EU. The view that the EU is a polity in its own right and requires direct legitimation has gained many adherents, but no consensus has emerged. The argument refers to the fact that the EU has developed strong supranational features and also that it affects the member states and their citizens so much and so directly that the democratic quality of the member states can no longer be seen in isolation from the EU. [96] The real underlying issue is the transformation of the nation-state and the prospect for democracy beyond the nation-state. The debate focuses on the constitutional essentials of the EU � whether it can have a constitution, whether it already has one, and which standards of legitimate governance such a constitution can be based on. The debate thus also touches on what a constitution is, and whether non-state entities can have constitutions.

 

Once the focus shifted to the need for direct legitimation, the next step was to establish what this might consist of. Could it be based on a similar mixture of representative parliament and federalism as that of Canada? This has been widely discussed. The EU is not a parliamentary system, albeit it has a parliament. It is not strictly speaking federal, albeit it has important federal traits and a division of powers and competencies between levels. In the last few years, there has been a much stronger onus on individual rights as a principle of legitimation. [97]

 

The most explicitly stated commitment to individual rights, as a core principle of legitimation, that we can read out of the European case, is the Charter of Fundamental Rights of the European Union that was solemnly proclaimed at the Nice IGC Meeting in December 2000. [98] The Charter holds provisions on civil, political, social and economic rights - to ensure the dignity of the person, to safeguard essential freedoms, to ensure equality, to foster solidarity, to provide a European citizenship, and to provide for justice. It lists a total of 54 articles and includes both provisions common to most charters and bills of rights, as well as a number of articles that speak to contemporary issues and challenges.

 

The Charter was proclaimed at Nice but is not listed in the Treaty of Nice. In formal terms it is a political declaration and not a legally binding document. The plan is to have its legal status decided by 2004. If the Charter is only a political declaration, does this mean that the commitment to a rights-based mode of legitimation is merely symbolic? However, there is much to suggest that the Charter is already more than a mere political declaration. For one, the Convention that formulated the Charter was barred from affecting its formal status but did seek to influence this decision, nevertheless, in that they wrote the text as if it were legally binding. Second, the Charter is based on existing rights, derived from the EC Treaties, the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the constitutional traditions of the Member States, and other international conventions. Third, important restrictions were imputed. For instance, Article 51 (Section 2) states that the Charter does �not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties.� The Charter will only be made to apply to the �institutions and bodies of the Union� and only to the Member States: �when they are implementing Union law.� Fourth, the EP and the Commission have suggested that they may act as if the Charter is a binding document. Fifth, the �as if� doctrine makes it much easier for the Court to invoke it as a source of legal evidence. The Charter has already been referred to in numerous opinions of advocates general in the EU and by the Spanish Constitutional Court. [99] Koen Lenaerts, Judge of the First Instance of the European Communities and Eddy De Smijter, a legal scholar, have recently argued that the Charter is �part of the acquis communautaire, even if it is not part yet of the Treaties on which the Union is founded.� [100]

 

These observations suggest that the formal status of the Charter as a political declaration does therefore not detract from its symbolic role as a particularly visible manifestation of the onus on rights. The more pressing question is whether the framework of rights that the Charter draws on is adequate as a source of legitimacy. An obvious limitation is the weakly developed system of citizenship rights in the EU, which are clearly inadequate to ensure citizens� public autonomy. [101] The Charter contains important provisions against discrimination of many kinds. For instance, EU law has developed strong measures against discrimination on national grounds, and a body of law is emerging on gender and sex. But the horizontal clauses of the European Charter provide significant opt-outs or exemptions for Member state governments � far more extensive than the notwithstanding clause in the Canadian Charter. The preamble of the Charter underlines this in that it speaks of the need to protect national identities. The Charter does therefore not, in substantive and symbolic terms, represent a clear break with the past in terms of mode of legitimation. Instead, although the setting is more complex than in Canada, there is an emerging similar tension between three principles of equality in Europe as in Canada. The EU is seen as premised on the equality of member state nations, although this is challenged by two additional pleas for equality, that of equality of citizens and to a somewhat lesser extent that of equality of regions. The European setting reflects the stronger role of nation-state based actors in the EU, as well as the far greater institutional complexity of the EU. The above has shown a certain convergence between Canada and the EU with regard to approach to legitimation. Does it apply to the process of constitution making, as well?

 

From Closed and Executive-led to Open and Democratic Process?

Historically speaking, an important similarity between Canada and the EU is that in both entities, the executive officials (heads of governments and their supportive staffs) have played the most important role in fashioning comprehensive changes of a constitutional nature. [102] Agreements of a constitutional nature or with constitutional implications have been struck among government elites in a closed manner, akin to interstate diplomacy. [103]

 

Up until now, in the EU, the heads of government from each member state have come together in the European Council (EC) and met 2-3 times a year and have been responsible for treaty changes. This type of treaty change is labelled intergovernmental conference (IGC). Despite its obvious and recently strengthened supranational features, in the EU treaty changes are still formally conducted by this �intergovernmental approach�- although the recently established Constitutional Convention may be said to represent a significant break. The process of treaty change provides every member state with the right of veto. Although the EU has long been involved in constitution-making, treaty changes have been negotiated by executive heads of government and their respective staffs, in a formal system of summitry, with the European Council at its apex, rather than in specifically designed constitutional conferences. Ratification procedures vary, from parliamentary ratification to popular referendum. In formal terms, the European Parliament has no role in the process, which frustrates many MEPs. [104] To a very limited extent only, the strengthened role of the EP in the EU�s institutional system has spilled over into the conduct of treaty change. [105]

 

The system of treaty change that has emerged in the EU, finds an obvious parallel in the Canadian approach to constitutional change, although the two are certainly not synonymous. Also here the heads of government - from the federal and each provincial government - come together in a system termed the First Ministers' Conference (FMC). It is this body that has played the most important role in the numerous efforts to fashion constitutional change in Canada, although in Canada there has never been agreement on how constitutional changes should be organised. Despite this, the mainstay of the system, in particular up until 1980 was the First Ministers� Conference (FMC). Since then, the process of Canadian constitution making has become much more complex, but the executive heads have never relinquished their role as the core actors in constitutional change. The Canadian parallel to the European Council is the First Ministers' Conference, which consists of the Prime Minister and all the Provincial Premiers, or First Ministers. This system is based on a similar logic as that which marks constitution making in the EU, insofar as each participating government is popularly elected; each First Minister is held accountable by the relevant legislative assembly; and each First Minister has the de facto power to veto a proposal. [106]

 

In both Canada and the EU, these arrangements have in recent years seen their legitimacy weakened, in the sense that the legitimacy of this executive-led mode of fashioning constitutional change has been questioned and even challenged. This is an important change, as in earlier times, constitution making was conceived of as a pre-eminent elitist undertaking, as evinced by the notion 'Founding Fathers'. Today, in Canada and the EU this notion of constitutional change is seen as closed and elitist, and even illegitimate.

 

In Canada, the inclusion of the Charter in the constitution mobilised a wide range of hitherto excluded or marginalized groups, and thus deeply altered the debate on how comprehensive constitutional changes should be organised. [107] Opposition to what has come to be seen as an elitist process of constitutional change has included a wide range of demands. This included, for instance, (a) demands from various interest-groups and so-called constitutional stake-holders for access to the process so that their interests be protected in the different stages of the process (for instance women�s groups, Aboriginals, and disabled people); (b) demands for a more prominent role for deliberative bodies in the process of change, (c) demands for direct participation in the process of constitutional deliberation by hitherto excluded groups, in particular Aboriginals or First Nations groups; (d) demands for a truly consultative and open process, i.e one that is based on debates and deliberations at all stages of the process, and (e) demands for a popular referendum to sanction the proposed changes. At various stages and points in time, many of these demands have been addressed and some have been met. The Canadian example reminds us that a rights-based mode of legitimation has profound effects on the process of constitution-making.

 

This mode of legitimation presupposes that citizens as rights holders must be consulted and in today�s EU the requisite mechanisms to ensure this are clearly deficient. Analysts and decision-makers alike have pointed to the obvious discrepancy between on the one hand the present role of the EU as an independent polity that claims legitimacy in its own right, and the member-state-based and indirect manner in which much of the process of constitution making has been conducted on the other.

The Charter process represents an innovation in the EU and does bring the process of constitution making in closer conformity with the rights-based mode of legitimation. The Charter was drafted by a 62-member self-proclaimed Convention that was headed by the former German president Roman Herzog. The process was unique within the European setting in several important ways. First, a substantial majority of the members were parliamentarians (sixteen members of the EP, and thirty members of the Member State Parliaments - two from each of the Member States), which lends considerable legitimacy to it, clearly beyond what the IGC-based processes can claim. Second, the process was also far more open than are for instance IGCs. [108] Open hearings with representatives from civil society (SN 1872/00) were conducted and hundreds of NGOs submitted briefs to the Convention, which are available on the internet. Whilst there were obvious limitations to this approach, analyses have shown that on balance it as a marked improvement on earlier processes of a constitutional nature, in terms of openness, transparency and accountability. [109]

 

The Charter was touted as a vehicle to spark a constitutional discussion, not to be the end result of such. This effort has been carried forward in a major way through the Convention on the Future of Europe, which was also modelled on the Charter Convention. This new Convention has been dubbed a constitutional convention (it is made up of a majority of parliamentarians (46 out of 66 voting members, and 26 out of 39 from the non-voting candidate countries). It is set up as a deliberative body and instructed to produce one - or several - proposals for the next IGC in 2004. It has a much broader mandate than did the Charter Convention. It is quite clear that a core intention is to establish a European constitution.

 

Does this opening up of the process, with a stronger attendant onus on legitimation through rights suggest that the EU is on the verge of �mega-constitutional politics�? Will there be a �Canadian repetition� in Europe? The Charter and Constitutional Conventions provide civil society with important outlets to register their views and grievances. The EU has � willingly or not - embraced an approach to constitution making that will stretch over time. The approach will require a lot of talk � arguing as well as bargaining - and exploration, as there is not even agreement that the forging of a European constitution is a viable undertaking. It remains to be seen how this process unfolds and what results it will bring.

 

IV Conclusion

The purpose of this chapter was to examine and compare the EU and Canada as democratic departures from the standard tenets of the nation-state model. It was shown that within a setting of globalisation, for various reasons � pertaining to history and contemporary context - the two entities depart in significant respects from the conception of sovereignty and national identity associated with the nation state model. Both entities are marked by highly complex and multifaceted conceptions of identity and belonging which do not readily support the sense of community that nationalists seek and consider necessary for a viable polity. This is not reflected in the establishment of agreed-upon comprehensive new doctrines or ideologies that are seen as explicit alternatives to nationalism, however. The paucity of such clear and explicit doctrines, notwithstanding, there are significant efforts to draw on normative standards � and attune such to actual measures � so as to seek a more inclusive and reflective accommodation of difference� beyond that embedded in nationalism. Decision-makers have been more concerned with developing practice, and have to a large extent left it to academic analysts to devise proper justifications.

 

As noted above, new categories of citizenship have been developed. Examples are European citizenship, aboriginal self-government, post-national citizenship, and denizenship, all of which are terms to depict new and more complex relations between inclusion/exclusion on the one hand and various types of rights on the other. There is far less congruity between the two dimensions � exclusion and types of rights than what is associated with the nation-state. New modes of belonging and attachment have also emerged. Examples are post-national identity, constitutional patriotism, deep diversity [110] , and diversity awareness and these have been accompanied with new policies to ensure inclusion of others. The most important such examples are multiculturalism, minority nationality accommodation, accommodation of and granting of rights to third-country nationals or denizens. These developments are reflective of the search for a new vocabulary of association. In both the EU and Canada there is considerable willingness to invent new terms, explore alternative ways of thinking of polity, of community and of identity.

These transformations also show up in the constitutional make-up, as both entities go through profound and lengthy processes of constitutional transformation. These transformations have brought forth competing and even conflicting principles of legitimation � the accommodation of which is a long and arduous process. Constitution making or transformation cannot draw on pre-existing demoi in the conventional sense of relatively coherent and culturally based identities and attachments. Instead, such have to be created and they have to be more attuned to moral universalism and accommodation of difference than those associated with the nation-state. This is complicated by the lack of agreement on how constitution making should be legitimated, which feeds into the issue of how constitution making should be conducted. The two entities have converged in their resort to legitimation through rights, although this notion of legitimation is still contested in both places. A rights-based mode of legitimation also requires a far greater popular input into the process of constitution making, hence requiring further experimentation with process.

 

Both entities represent enough of a departure from the standard tenets of the nation-state model to warrant further examination as to whether they represent qualitative departures. It is Canada that has spent most explicit effort to accommodate diversity, whereas the EU has spent more effort to foster commonality. Both seek to do so within a setting of joint embrace of rights as core principle of legitimation. Does this then suggest a deeper convergence?

 

Are there also relevant lessons to be passed on? The accumulated Canadian experience in and reflection on accommodating difference may be an important source of lessons for a Europe still imbued with images of homogeneity and nationally based difference. Further, the Canadian case is also important to Europe now that European elites claim to be willing to embark on something akin to mega-constitutional politics. The Canadian case provides valuable insights into how such processes can unfold � and it also serves as a powerful reminder of the many pitfalls and problems and challenges that are associated with such comprehensive processes. It serves as an important reminder of how taxing and demanding such processes are both in intellectual and emotional terms. The Canadian case can be used as a template to assess how committed Europeans are to such a process. It also reminds us that this process is not only marked by the exploration of new solutions, it is as much a revamping of existing ones. The Canadian failures to strike agreements on comprehensive change efforts are also instructive in that they remind us of the need for those involved to provide ongoing justification, evaluation and sometimes even proper conceptualisation. We need to know why we embark on such efforts, what the value of such is, and what their effects will be � all the way to the effects they have on the vocabulary we use (nation-state vocabulary), the values we embrace, the institutional structures we develop, the constitutional models we apply and the normative standards we endorse.

 

Mega constitutional politics may be a necessary ingredient in constitution making in extremely diverse polities but as the Canadian example shows, it forces us to reconceptualise constitution making. For one, it is essential to think through the legitimacy implications of process. Further, and consistent with this, less focus must be placed on the results of single instances such as the Constitutional Convention and more onus must be placed on what types of agreements can be obtained over time. The Canadian example suggests that central actors should refrain from underlining the dangers of failure, as Valery Giscard d�Estaing did in his opening speech to the Convention.

 

To conclude, then, these entities may be considered as �vanguards� as they hold important traits of democratic deviation from the standard tenets of the nation-state. Given this, it is necessary to probe more deeply into the intellectual debates that are conducted in the two entities, as well as to look more closely at how the processes of transformation play themselves out. Comparison is needed also to prevent the mistakes in one place from being repeated in the other and to make sure that the lessons learnt in one place are communicated to others so as to facilitate their learning.

 

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