Old Imperial Dilemmas and the New Nation-Building: Constitutive Constitutional Politics in Multinational Polities

“Old Imperial Dilemmas and the New Nation-Building: Constitutive Constitutional Politics in Multinational Polities” (2005) 37 Connecticut Law Review 933-945.

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As Noah Feldman has argued, imposed constitutionalism and nation-building are nothing new and pose a serious dilemma for liberal democrats, because of the deep and irreconcilable tension between the outside imposition of a constitutional order and the right of all peoples to self-determination. Feldman’s defense of the legitimacy of his version of imposed constitutionalism relies on a sharp distinction between the “old” and the “new” nation-building. The old nation-building was an imperialist enterprise that was motivated by a mixture of self-interest and patronizing noblesse oblige, and which paid lip service to the right to self-determination. By contrast, the new nation-building structures the obligations of the occupying (not imperial) power to take the right to self-determination seriously. There is a fundamental conceptual challenge to Feldman’s distinction that the proponents and defenders of the new nation-building must address. The idea of letting the people of a country under trusteeship exercise the right to self-determination presupposes that who the people are who possess this right and wish to exercise it is an uncontroversial question. But of course, the central problem in nation-building is often precisely what the boundaries of the “they” or “local people” whose right to self-determination foreign trusteeship seeks to protect are, and the terms of association among the various ethnic and cultural groups who coexist within a nation-state. Indeed, in two of the most prominent cases of the new nation-building—Bosnia and Kosovo—the very reason for the breakdown of the previous constitutional order was that members of different ethnic and cultural groups could not agree on the answer to this question. So while building a theory of legitimate nation-building around the right to self-determination may solve or attenuate one dilemma, in many countries, it exposes another. In these countries, present-day occupiers with the noblest of liberal democratic motives are faced with a dilemma largely indistinguishable from that which faced their imperial predecessors.