ABSTRACT
This chapter examines how traditional notions of constitutionalism are challenged by the rise of ethnic identity in numerous parts of the globe. In their origin, the rule-of-law and constitutionalism, closely connected, paid little attention to diversities among the people of the state. They were based on the assumption of the homogeneity of the people, in part by the exclusion of specific communities, religious or ethnic, from rights and participation in public life. After the Westphalian settlement, political and legal concepts, developed under the sovereignty of the state, reflected the essential principles of the modern state. Gradually the concept of citizenship, based on the rights and duties of the individual, became central to membership in the political community constituted by the state. With growth of the notion of human rights and democracy, members of excluded communities were given the right to citizenship. This did not imply the political incorporation of these communities, as such; instead citizenship became a means towards their assimilation in the wider political community. From the eighteenth century onwards, as the political map of Europe came
to be redrawn, the homogeneity of the people (defined by their cultural, particularly linguistic, affiliation) became the basis of the creation of new states. Congruence between a cultural community and the boundaries of the state became the major principle of the reorganization of states (“nation state”). This approach was justified on the grounds of the preservation of both culture and democracy, and subsequently social welfare (arguing that redistribution of resources implicit in welfare programs was possible only if there is social solidarity, dependent on a common history and culture). The rise of ethnic consciousness and its political mobilization (for which phenomenon I use the term “ethnicity”) has challenged many of these assumptions, including the concept of a homogenous people. I examine reasons for the rise of ethnicity, the form its challenge has taken, and the implications for the rule-of-law and constitutionalism. Ethnicity presents its claims as imperatives of identity. Under its impact, some key principles and components of the liberal state
(which came to personify the rule of law and constitutionalism in its “highest” form) have been critically examined and are being redefined: sovereignty as vested in the entire people as a collectivity and manifested in the centralization of the state; common citizenship with equal rights and obligations; equality; uniformity of law and legal institutions; majoritarian democracy; the nature of rights; and the distinction between the public and the private.
