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Toward a Proceduralist Theory of Secession

Published online by Cambridge University Press:  09 June 2015

Daniel M. Weinstock
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Extract

Substantive theorists of secession face a problem explaining why the international community ought on their view to withhold recognition from secessions which involve a loss in terms of the substantive criteria they privilege; this is so because the normal electoral politics giving rise to such a loss should not in their opinion meet with any adverse international reaction. The substantive theory of David Miller uses criteria for the legitimacy of secessions which give rise to strangely amoral consequences. A procedural theory of secession is to be preferred on both moral and pragmatic grounds; this is one which that countenance secession when appropriate procedural hurdles are cleared, regardless of the substance of the claims put forward by secessionists to justify secession.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 13 , Issue 2: SECESSION , July 2000 , pp. 251 - 264
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2000

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References

1. I argue this at greater length in “On Some Advantages of Constitutionalizing the Right to Secede” in J. Pol. Phil., forthcoming.

2. Miller, David, “Secession and the Principle of Nationality” in Couture, J. et al., eds., (1996) 22 Can. J.P. Supp. Vol., Rethinking Nationalism.Google Scholar

3. An author who in my view commits the second error, that of inferring what a morally appropriate reaction on the part of the international community should be to a given secession from the legality of the secession as seen from the point of view of the larger state's laws, is Buchanan, Allen. In “Recognitional Legitimacy and the State System” ((1999) 28/1, Phil. & Publ. Aff. 46)Google Scholar, Buchanan writes that “if a new entity is to be awarded statehood status it must not come about through the violent or otherwise unlawful overthrow of a recognitionally legitimate state.” Ibid. at 61 (my emphasis). Such a view however ignores the fact that the omission by otherwise just multination state constitutions of secession clauses might itself be unjust.

4. Supra note 2 at 264.

5. See for example, Buchanan, Allen, “Theories of Secession” (1997) 26/1 Phil. & Publ. Aff. 31.Google Scholar

6. I hasten to add that this has not been the result of the altruism and generosity of English Canadians. There is an identity stake for all Canadians in Québec remaining Francophone. Indeed, much of English Canada's sense of distinctness vis-à-vis the United States stems from their having been able to point to the presence of French culture in their midst.

7. I thank Elizabeth Elbourne for insight into the South African case.

8. See my “National Partiality: Confronting the Intuitions” (1999) 82/3 The Monist 516Google Scholar. See Tamir, Y., Liberal Nationalism, (Princeton, N.Y.: Princeton University Press, 1993).Google Scholar

9. Though not a substantive theorist, David Copp has made a suggestion of this kind. Copp, David, “International Law and Morality in the theory of Secession” (1998) 2/3 J. of Ethics 516.Google Scholar

10. Supra note 2 at 264.

11. This kind of view is defended in Norman, Wayne, “The Ethics of Secession as the Regulation of Secessionist Politics” in Moore, M., ed., National Self-Determination and Secession (Oxford: Oxford University Press, 1998).Google Scholar

12. Supra note 1.

13. See Rawls, John, A Theory of Justice (Cambridge, MA: Belknap Press, 1971) at 142-61.Google Scholar