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Choudhry on Linguistic Nationalism & Constitutional Design

By Lawrence Solum

Sujit Choudhry (University of Toronto - Faculty of Law) has posted Managing Linguistic Nationalism Through Constitutional Design: Lessons from South Asia (International Journal of Constitutional Law, Vol. 7, No. 4, pp. 577-618, 2009) on SSRN. Here is the abstract:

How should constitutional design respond to competing claims for official language status in countries where there is more than one language, whose speakers are concentrated in a specific territory, and hence, where more than one language is a plausible candidate for use in public services, public education, legislatures, the courts, and public administration? This is one of the most pervasive and pressing constitutional problems of modern political life. It has been largely ignored in the literatures on comparative constitutional law and constitutional design. This article therefore turns to constitutional practice, and focuses on South Asia, where linguistic nationalism has been one of the principal forces shaping constitutional developments for over sixty years. South Asia has been a constitutional laboratory on questions of linguistic nationalism, and vividly illustrates both that it is possible to manage linguistic nationalism through constitutional design, and conversely, that the cost of getting official-language policy wrong can be very high.

This paper draws some general propositions from the South Asian constitutional experience, with respect to the political sociology of linguistic nationalism that is the source of competing claims to official-language status and the specific constitutional claims that flow from a claim to official-language status. These propositions are: 1. Political elites who control the central government have tended (a) to describe the adoption of a single official language at the center as furthering a civic, integrative conception of citizenship and (b) to criticize demands for official-language status by members of regionally based linguistic minorities as grounded in a primordial, ethnic nationalism; 2. Demands for linguistic federalism do not pit the building of modern nation-states against the preservation of primordial ethnic sentiments. Rather, they reflect competing nation-building projects at the subnational level that parallel statewide nation building in terms of their goals and means; 3. Underlying political competition over official-language status is economic competition over public sector employment, which fuels political mobilization on the basis of language; and 4. Religious conflict should not be confused with linguistic conflict.

This paper also sets out four propositions on how constitutional design should respond to linguistic nationalism: 1. Liberal neutrality is a non-option with respect to language because the state must choose a language or limited set of languages to operate in to coordinate communication among officials and between officials and citizens; 2. Official-language status should be disaggregated into its constituent components (i.e. The language of internal public administration, the language of public services, the language of the legislature, and the language of the courts); 3. The disaggregation of official-language status complicates the simple equation of federalism with multiple official languages. The principal reason for linguistic federalism is to allow different language groups opportunities for white-collar public sector employment; and 4. Linguistic federalism alone will not answer fully to the demand for white-collar public sector employment. To the extent possible, such opportunities should be offered at the center as well, to bind regional linguistic minorities to the state as a whole. This is another way of thinking about federalism as a system combining self-rule and shared rule.

Full post as published by Legal Theory Blog on June 23, 2010 (boomark / email).