Constitutional Asymmetry as a Surrogate in Conflict Accommodation or How (Not) to Stabilize a Constitutional System

Abstract

To date, the study of federalism in comparative constitutional law has been subject to considerable discussion. In particular, investigating how federalism can be explored as a device for managing internal conflicts is a continuing concern within this field. Equally important, federalism studies have gradually gained importance in international public law due to potential consequences for the territorial integrity of the state linked to the right to self-determination and right to secession. However, there is an existing and growing gap between traditional and contemporary theoretical understandings about federal devices used to address autonomy claims and ultimately accommodate internal conflicts. In contrast to the earlier theoretical framework, contemporary research in federalism recognizes that federal relationships are dynamic. Importantly, distinctive identity markers have been of crucial importance in processes of fragmentation which lead to the establishment of intermediary tiers of government and ultimately to constitutional asymmetries. The theoretical split that has dominated the field of federalism studies reflects on two important aspects linked to constitutional asymmetries: firstly, the use of constitutional asymmetry as a federal device in conflict accommodation and secondly, the understanding of stability. Unlike the traditional federal approach, the contemporary federal perspective remains open for discussing the application of constitutional asymmetries as a tool ensuring the stability of the system as well as for the dynamic interpretation of stability to respond to contemporary challenges. Drawing upon two strands of research, this contribution attempts to transform the narratives about understanding constitutional asymmetry as a federal device. To that end, the contribution explores: first, the theoretical split between traditional and contemporary federal theory; second, perspectives about using constitutional asymmetry in conflict accommodation; and third, its effects on the stability of the constitutional system.KeywordsConstitutional asymmetryStabilityFederalism