The justiciability of secession? : a theoretical foundation for constitutional association and disassociation

This dissertation addresses whether and to what extent constitutions, and their constitutional law more generally, make provision for secession. More broadly put, the question is what place secession has, or should have under municipal constitutional law. The two aspects of the question naturally are different in focus and intent. Whether secession has a place under any constitutional system depends very much on the text of any given constitutional document and the current body of constitutional law and norms. It is principally a factual enquiry, a matter for descriptive jurisprudence. Whether secession should figure in some way in a constitution or the constitutional law and norms is more speculative an enquiry, bordering on politics, legal theory, constitutional theory, and like matters, and pertains more to analytic jurisprudence. The two are nonetheless conjoined inasmuch as the subsuming of secession under a constitutional system in the absence of express provisions therefor depends in a large measure on what analytic stance we take on constitutional and legal theory, and on what a constitution, generally and in particular, should address. Now obviously, the two sides of this single issues are related, insofar as the first draws upon norms and principles to inform – implicitly – constitutional and relevant law, and the second upon the constitution and law as practical framework or instantiation of the norms and principles. This suggests that in constitutional theory, secession should be conceived less as purely some institutional re-arranging inside or outside the current institutional and regulatory framework. Similarly, a constitution should be conceived less as purely a template or map of state, and more as institutional architecture, namely the building of institutions to strengthen and develop the moral foundations of a society. We take the position in this thesis that secession is indeed a matter appropriate for constitutional law, and is governed thereby. Whilst secession provisions are not and should not be incorporated expressly into a constitution the process of secession is certainly subject to constitutional law and norms. Some inroad to a full grasp of this position (but not its implications) has already been forged by the Supreme Court of Canada, in the Québec Secession Reference. As such, and to the extent outlined below, secession, as an element of constitutional law, engages the courts at least on that basis, insofar as their jurisdiction permits. Accordingly, secession is more than a purely political (

Récupéré en direct depuis OpenAlex et désinversé. Les résumés ne sont pas conservés dans cette base de données : les index inversés représentent 8,6 Go des 9,3 Go de texte de la base, et le serveur dispose de 13 Go libres.