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A New Faroese Constitution? – Faroe Islands between Parliamentary Sovereignty and Sub-Sovereign Constitutionalism, between Statutory Positivism and Pragmatic Reasoning

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AbstractThe Bill for a Faroese Constitution [StjórnarskipanFøroya] submitted to Parliament [Løgtingið] on 6 March 2010, proposes a comprehensive Constitution for the Faroe Islands, for the first in history. This seems left somewhat on the late side, since the Faroes are an ancient polity with similar historic developments to Norway and Iceland, both of which got their full-bodied constitutions as sub-sovereign entities, in 1814 and 1874 respectively. Furthermore, few metropolitan powers should prima facie be more accommodating to sub-sovereign constitutions as Denmark, to whose Crown the Faroes have been associated, as she has historically recognised both an Icelandic constitution ‘besides’ and both a Common Constitution1 and EU quasifederal2 structure ‘above’ the Danish one. However, the same proud civil service that produced a beautiful construction of federation with the ‘Basic-Law on the Rights of Nationality’ of 1756 with its elaborate hierarchy of ‘Realms and Lands’ and ‘equivalents’ has perplexingly advised rather strongly against the proposed expression of popular sovereignty of the equivalent Nation of one of these Lands and the intended invitation to continue a long-standing peaceful plurality. In a Note of 2 June 2010, and a supplementary Note of 20 June 2011, the Danish Justice Ministry expressed the disgust of the Danish administrative establishment. The critique mostly focused on the supposed collision course with the Basic Law of the Danish Realm [groundless] and claimed that the Faroese Constitution would create considerable ‘doubt of a constitutional character.’ We argue that the issues raised do not follow from any convincing constitutional doctrine but are more ideological and based on an anti-pragmatic, a-historic and fundamentalist view of constitutional law, best categorised as late-late statutory positivism. As an alternative, we suggest the tradition of the Home Rule compact as a pragmatic and constructive disagreement that the Justice Ministry is about to abandon at its peril. Blocking the development of a living constitutional culture on the Faroe Islands will create tension that will be released somehow. The Ministry’s preoccupation with the proclamation that all power stems from the People of the Faroe Islands is at odds with the classic and almost trivial democratic notion of popular sovereignty. However, this is but the latest skirmish in a larger tragic and unnecessary campaign against realism and, indeed, reality that creates all sorts of problems for a small polity that needs to focus on principled solutions and gradual developments of the particulars of law in all fields.

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