Federalism and the “Law of Diversity”: A new theoretical approach to diversity management

This study aims to provide a general overview of the trends related to the accommodation of diversity within the constitutional tradition. Based on these observations, some theoretical considerations in support of the introduction of a renovated conceptual framework will be offered. The analysis attempts to provide a global perspective on this issue, by taking into account the most innovative traditions and legal instruments of the Global North and Global South. As a result, it will become apparent that this field of study, traditionally dominated by a Global North approach based on majority-minority and rights-based discourse, is undergoing significant evolutions. In the Global North, legal sources at both domestic and international levels show signs of an emerging approach that understands and legally addresses diversity as a general phenomenon, the management of which requires the dynamic and proportionate employment of a wide set of legal instruments, regardless of the recipients’ differential condition and legal status. Alongside non-discrimination – a basic and essential guarantee for every individual – and minority and indigenous peoples’ rights, other legal approaches and tools are emerging. Along with international developments and their various implementations, further and “less orthodox” forms of accommodation have emerged in the Global North. The latter are meant to accommodate diversity beyond non-discrimination, and diverge, to different degrees, from the traditional structure of minority and indigenous rights – primarily focussing on governance rather than rights. As concerns the Global South, two regions of the world will specifically be addressed, namely, South America and Southeast Asia. They are thought to reflect comprehensive constitutional traditions that complement the mainstream liberal-democratic approach to constitutionalism and diversity accommodation through the introduction of innovative constitutional concepts and approaches. The description of the innovative perspectives related to diversity accommodation in the Global North and Global South – which will underscore the changes this area of law is experiencing – will represent the first step of the study. A more analytical and theoretical part will then follow. The second part of the work will be devoted to assessing the appropriateness of the existing “mainstream” theoretical tools and concepts – in particular minority and minority-related concepts as well as rights discourse – to grasp the ongoing evolution of this field of law. A reconsideration of the traditional conceptual categories and the introduction of the expression “Law of Diversity” will be proposed as a theoretical framework to grasp the ongoing developments in this area. The expression “Law of Diversity” will be advanced to comprehensively describe the wealth of legal instruments that are sensitive to the numerous differential elements of human beings (also referred to as models for the accommodation of diversity) originating from various constitutional approaches, departing from the mainstream theoretical framing. Among the models studied in this work, those emerging in the Global North appear to be the most in need of theoretical recognition, validation and explanation. To this end, in chapter 6, it will be argued that the theory of federalism may serve a rather unexplored theoretical (or, as will be defined, meta-theoretical) function. It will therefore be argued that federal theory may be a very useful theoretical instrument to frame, explain and provide emergent instruments for the accommodation of diversity, as well as practical solutions for their development.