Martina Trettel is Senior Researcher at the Institute for Comparative Federalism of Eurac Research and expert member of the Autoritá per la partecipazione locale of the Autonomous Province of Trento. Her main research interests are Participatory democracy and Institutional Innovation, Federal and Regional Studies and Comparative Constitutional Justice. Particularly, her research focuses on participatory and deliberative democracy intended as complementary decisional mechanisms to the more traditional representative and direct democratic instruments.
Nicolò P. Alessi holds a PhD in Law and European and International Law at the Universities of Verona and Fribourg/Freiburg (CH). He currently is post-doctoral researcher in European and Comparative Public Law at UniDistance Suisse and the University of Bern. He was adjunct professor of Comparative Public Law at the University of Aosta Valley, junior researcher at the Institute for comparative federalism at Eurac research and guest researcher at the Institute of federalism of Fribourg/ Freiburg. His main research interests are European and Comparative Constitutional Law, Diversity Accommodation, Federalism, and Climate and Commons Governance.
Abstract
This contribution aims to shed light on innovative phenomena of diversity accommodation and assess their practical and theoretical implications. It illustrates that, based on the mentioned innovative developments, emerging legal scholarship is offering fresh perspectives on federalism and diversity governance. These show that the time is ripe to complement the established categories and approaches in these areas to apprehend the complexity of this legal phenomenon.
Introduction
Managing diversity is one of the most pressing challenges faced by societies worldwide. In a time of rising nationalisms, focusing on how legal systems can foster peaceful coexistence is more needed than ever. Emerging legal scholarship is exploring innovative ways to accommodate diversity beyond traditional approaches, offering new perspectives on federalism and pluralism governance. This contribution aims to shed light on these emergent phenomena as well as assess their theoretical implications as regards the relationships between federalism and diversity accommodation.
The Variety of Contemporary Diversity Accommodation
Historically, diversity management has relied on non-discrimination policies and minority rights. While crucial, these represent just one dimension of a broader framework. New legal responses are emerging globally, extending beyond liberal-democratic models (Alessi 2025a). Several regions in the world are enriching diversity accommodation by integrating the very vocabulary of constitutionalism. South America, Southeast Asia, and Europe are experiencing a shift in their approaches to diversity management, accompanied by a departure from the nation-state model that has long shaped this area (Marko et al. 2019).
At a micro level, three key innovative models are reshaping diversity governance: non-territorial autonomy, participatory democracy, and legal pluralism, each contributing to the creation of a more flexible and inclusive system of diversity accommodation. All these models distance themselves – to different extents – from the traditional structure of minority rights, which relies on rigid, top-down regulations and a specific notion of who the addressees of these measures should be (i.e. national, linguistic, ethnic minorities).
Non-territorial autonomy
NTA enables cultural, linguistic, and religious communities to self-govern without establishing autonomous territories. Flexible, less institutionalized forms of NTA operate through private organizations. In Germany and Denmark, minority associations provide services and cultural preservation (Malloy 2015). Indigenous peoples in Canada and Australia have developed privatized autonomy models through community-led organizations (De Villiers 2021). Other similar experiences have been taking place in Canada and are described as forms of institutional completeness (in the interest of the French-speaking minorities outside Québec) (Chouinard 2014).
Participatory democracy
Participatory democracy fosters inclusion and ensures diverse voices in governance. “Transversal” participatory structures, such as Germany’s Minority Council and Croatia’s Council for National Minorities, bring together non-majority groups to influence policy. Co-decision bodies, like Canada’s indigenous co-management institutions, enhance collaborative governance (De Villiers 2018; White 2020).
Legal pluralism
Legal pluralism allows multiple legal systems to coexist within the same space, enabling communities to operate under their legal frameworks. This challenges the traditional state-law model by recognizing religious, customary, and community-driven legal orders (Tamanaha 2021). Religious arbitration courts, such as Islamic Sharia councils and Jewish Beth Din courts in the UK and US, offer alternative dispute resolution (Broyde 2017). Romani Kris tribunals in Europe and North America similarly resolve conflicts based on cultural traditions (Salat and Miscoiu 2021).
The Law of Diversity as a Unifying Framework
To capture these evolving trends and reconnect traditional and contemporary perspectives on diversity accommodation, the notion of the Law of Diversity has recently been introduced (Palermo and Woelk 2003; Alessi 2025a). The employment of the concept of the Law of Diversity is meant to overcome the theoretical limitations one encounters when studying this area of law through the lens of minority (and indigenous peoples’) rights categories. The Law of Diversity can be imagined both as an umbrella conceptual framework and a practical toolbox containing all the instruments aimed at accommodating differential human aspects. It serves as a theoretical framework that broadens scientific observations and interest beyond the well-trodden path of minority rights-related practices and models.
What Does Federalism Have to do with the Law of Diversity?
While the Law of Diversity identifies and “validates” emerging models of diversity governance, these require a stronger theoretical foundation to develop. This foundation can be found in federalism. Although these models may seem disparate, they can all be framed as forms of self-governance that do not correspond to full-fledged subnational governments but nonetheless enhance the expression of pluralism and diversity and contribute to policymaking and public service provision (Alessi 2025a). If all the emergent instruments of the Law of Diversity may be seen as peculiar forms of autonomous arrangements having a major governance dimension, then there seems to be room for them to be framed through a federal lens. This necessitates rethinking federalism beyond its traditional framework.
Federalism has long been framed as a model of state organization based on a territorial division of powers (Popelier 2021; Tierney 2022). This approach of traditional federal theory fails to capture contemporary governance dynamics. Yet, contemporary policymaking often relies on governance structures that involve several non-institutionalized actors, particularly in the area of diversity accommodation.
It has been argued that federalism is not merely a prescriptive model or a set of institutional features but can act as an analytical framework capable of explaining diverse governance systems (Gaudreault-DesBiens & Gélinas 2005; Alessi 2025a). As a basic analytical tool, federalism can be used to frame all those models that imply the expression of a certain degree of (variously institutionalized) autonomy and shared power and stay irreducible to their annihilation. All form the federal phenomenon, which evolves with human organization adapting to changing circumstances across systems (Lépine 2015).
Several scholars have contributed to this perspective on federalism as an interpretive paradigm applicable beyond state structures. Friedrich (1968) and Elazar (1987) emphasized federalism’s adaptability, while Macdonald (2005), and Gerken (2010) explored federalism beyond government and state structures. Ostrom (1969) connected federalism to polycentric governance, reinforcing its broad applicability. Tully (1995) inspired the reinterpretation of federalism with his considerations on concept formation and employment.
Following this approach, federalism provides a unifying analytical tool for emerging diversity governance models, integrating federal studies more deeply with diversity accommodation.
The main reason why this is proposed is that it can lead to practical benefits as it provides a common ground of understanding for countless practices regardless of contingencies that characterize the time and place in which these phenomena take place (Lépine 2015).
Firstly, this approach unleashes the analytical potential of federalism, i.e. the possibility to use federalism to explain and understand phenomena of power diffusion that go beyond classic federal systems. The reason underlying the focus on federalism is that, as suggested by Palermo, it is arguably “the best-suited instrument to serve as a basis for developing governance theories and practices that meet the requirements of contemporary democratic pluralism” as it is “the most tested tool for institutional pluralism” and “the oldest instrument for dividing and diffusing power” (Palermo 2015). If this holds true, then federalism may act as a “conceptual and institutional matrix for contextualizing, proceduralizing, and regulating new forms of participatory decision-making; thus, for regulating governance in addition to government” (Palermo 2015). In other words, the theory and practice developed studying federal systems – which can be seen as vanilla models of pluralism management (Ryan 2020) – has the potential to be used to analyze the functioning, possibly explain the dynamics and foresee the development of these (and possibly other) governance systems. Considering federalism as a wide phenomenon that embeds among its manifestations all the phenomena of diffusion of powers – from the most to the least institutionalized – allows the observer to reflect on these models as federal arrangements and to benefit from federal theory and practice to explain them. Studying this phenomenon following this approach can give fruitful insights to fields where governance models are emerging and spreading, such as diversity accommodation.
Secondly, this approach to federalism seems beneficial for federal theory itself. Such a perspective renovates and seems to give federal theory a new lease of life in times of increasing complexity. In an era of interconnection and changing power structures (Ortino 2010), a federal theory castled in its traditional focus on state and governmental territorial structures can turn obsolete and risk heading to exhaustion. For federal theory to keep and exploit its explanatory function, this change of perspective seems necessary (Palermo 2015). In other words, “federalism is as critical as never before as it represents the prototype of institutional regulation of pluralism. As a matrix, it can hardly be used itself, at least not in the traditional way, but it remains the tool that inspires all the others as it has been the first one to deal with a pluralizing society” (Palermo 2025). Endorsing this perspective frees federal thought from orthodoxy and from its supposed (but not completely proved) necessary premise, i.e. the (here ontological) focus on some specific forms of diffusion of powers – governmental and territorial.
The Way Forward: Putting this Connection into Operation
Once the connection between federalism and the Law of Diversity is established, the real challenge is to concretize it to prove its usefulness. Notably, first attempts have been made in two recent (open access) publications: A Global Law of Diversity: Evolving Models and Concepts and Federalism and the Law of Diversity: The Theoretical Contribution of Federalism to the Explanation of Emergent Models for the Accommodation of Diversity (Alessi 2025a; Alessi and Trettel 2025). The first book illustrates the similarities between the functioning of the innovative models for the accommodation of diversity and federal dynamics and, based on this, how federal theory and practice may contribute to a better understanding of contemporary diversity accommodation. These similar dynamics are: negotiation and asymmetry; complex decision-making processes; definition of areas of jurisdiction in complex policy areas and power coordination; conflicts of jurisdictions (Alessi 2025a).
The second publication collects the contributions of several experts who further investigate the relationships between federalism and diversity accommodation. The authors focus on the relationships between federalism on the one side, and non-territorial autonomy, participatory democracy and legal pluralism on the other. This has led to a variety of approaches to the relationships between federalism and the Law of Diversity. Some chapters offer theoretical considerations on one or both concepts, others focus on case studies, others on both. The chapters collected in the edited book offer several significant insights and potential directions of research that are summarized here. Firstly, they remind the reader that the traditional understandings of both notions and their interconnections are not being replaced by new perspectives but complemented by them. They remain a reality one should not overlook. The use of “orthodox” (even if evolving) federal arrangements is still a powerful (and sometimes successful) tool to accommodate some forms of diversity (Kössler 2025), as are consolidated diversity accommodation mechanisms (i.e. minority and indigenous peoples’ rights mechanisms). As well, federal structures interact with the functioning of traditional instruments for the accommodation of diversity, contributing to their further consolidation (Breen 2025; Expósito 2025) or establishing complex relationships (Trettel 2025; Sonnicksen 2025) that can also show some sorts of incompatibility (Toniatti 2025).
At the same time the book demonstrates that the traditional models and the relevant theoretical approaches should no longer be the exclusive interest of scholars in this area. On the one side, innovative models are enriching diversity accommodation and contributing to the emergence of complex systems of diversity governance. Such systems contemplate various forms of self- rule and shared rule that range from full-fledged federal arrangements to non-institutionalized forms of legal pluralism (Alessi 2025b; Topidi 2025). On the other side, and most importantly, federal theory and practice have been suggested as frameworks of understanding for these innovative models with interesting results. It seems indeed possible to affirm that there is room for the theoretical proposals described above to be put in operation and bring useful perspectives that improve one’s understanding of diversity accommodation and federalism in contemporary times. In particular, federal theory and practice are precious repositories of concepts, theories and experiences that can definitely give a contribution to explaining the emerging governance systems for the accommodation of diversity (Alessi 2025b; Topidi 2025). Lastly, this publication underscores that putting in operation the proposed innovative use of federalism to frame emergent models for the accommodation of diversity is complex and needs refinement. Further research will hopefully unveil the promising results that are evoked here. However, suggesting them and test their theoretical legitimacy were the main goals of this publication. In other words, a first step and a long way ahead.
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Further Reading
Arato, Andrew, Jean L. Cohen, and Astrid von Busekist, eds. 2018. Forms of Pluralism and Democratic Constitutionalism. Columbia University Press: New York and Chichester.
Castellino, Joshua, ed. 2016. Global Minority Rights. Routledge: London and New York.
Dann, Philipp, Michael Riegner and Maxim Bönnemann, eds. 2020. The Global South and Comparative Constitutional Law. Oxford University Press: Oxford.
Elstub, Stephen and Oliver Escobar. 2019. Handbook of Democratic Innovation and Governance. Edward Elgar Publishing: Cheltenham and Northampton.
Hueglin, Thomas O. 1999. Early Modern Concepts for a Late Modern World: Althusius on Community and Federalism. Wilfried Laurier University Press: Waterloo.