chapter  15
16 Pages

Ways of seeing? Consociationalism and constitutional law theory


Coming to this volume as a constitutional lawyer it is interesting to see in John McGarry and Brendan O’Leary’s eloquent and persuasive chapter evidence of a whole world that is only partly known to the writer. Of course there is a fair degree of overlap between what we might clumsily still refer to as political science and public law, particularly constitutional law. Indeed the work of McGarry and O’Leary is known and referenced in many constitutional law accounts. The problem is that this consideration is not reciprocated. This means that the authors are focusing with a very particular lens which, while it picks up very much of value, fails to bring into the field of view a number of important issues that a wider reading might bring to their attention. In particular, a foray into the world of legal scholarship might go some way towards remedying the rather narrow and formalistic conception of their subject matter. This seems focused almost exclusively on the high politics of political parties and electoral systems, institutions, and executives while simultaneously being taken up by very local issues and ad hominem concerns such as what they perceive Sinn Féin or the Democratic Unionist Party to believe or be willing to accept. Contrary to perhaps some expectations, legal scholarship can and often

does take a broader perspective of its subject matter. Recognition of these approaches might perhaps assist in moving McGarry and O’Leary from their rather self-referential framework where commentators either declare for “accommodation” (or better are fully fledged consociationalists) and therefore side with them, or belong instead to one of their four species of “integrationists” who are forever in error. For the constitutional lawyer it is hard to recognize oneself as either fully in the consociationalist camp or, necessarily, as an integrationist. The reality is that many constitutional lawyers see things differently, perhaps are none the worse for this, and may indeed have something to offer even the most ardent consociationalist. The argument that will be sketched out here is that the terms of the debate

as constructed by McGarry and O’Leary are in some ways strangely oldfashioned, formalistic, and top-down and that a reading of how some

modern constitutional law theory approaches similar territory might widen the field under consideration. In particular, it might allow recognition that the constitution, like public power itself, operates at many levels both above and below the high politics of the Belfast Agreement, and that organizing the political parties together into a grand-scale constitutional framework is only part of the business of a constitution. There is a whole structure of legitimation, recognition and transition, partnership and practice, as well as, most importantly, a tool kit of rights and equality that can allow a genuinely endogenous, bottom-up form of constitutionalism to grow up in the space afforded by the achievement of a political deal. Indeed it could be said that the institutions exist to defuse the wider, quarrelsome “constitutional/sovereignty” issues and this provides the space for other elements of the Agreement to operate. The Agreement offers much more than simply a way of locking the main parties into a structure of government, and even in so far as it achieves this, it is not simply by the consociational nature of its constitutional design. Rather, as a fuller, properly legal reading of the situation provided by the Belfast Agreement and the Northern Ireland Act 1998 can show, the new dispensation offers some very significant and novel constitutional forms that have widespread implications for both the United Kingdom form of constitutionalism and that in the Republic of Ireland. In what follows, the point will be made that constitutional lawyers often

address and acknowledge the value of the consociational framework but then generally they go on to develop other frameworks – ideas of an external constitution operating beyond simple ideas of sovereignty, transitional justice, constitutional moments, governmentality, and so on – which bring out a range of issues that may be missed if consociationalism is the only lens employed. Having offered modest suggestions towards widening the consociational agenda, issue will then be taken with McGarry and O’Leary’s own rather wayward characterization of the role of constitutional norms in what they describe as “the UK’s constitution-free system.”1 Constitutional thinking is in fact considerably more sophisticated than they allow.