Basic comparative concepts of Federalism

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Basic Elements of Federalism

What is a federal system?

A federal political system involves (at least) two spheres of government within the same polity, each with a measure of constitutional autonomy, each directly governing and accountable to the people (or a section of them).

Different goals of Federalism

Vertical Separation of PowersAccommodate DiversityStrengthen the smaller UnitsEconomic IntegrationAvoiding secession

Main Challenges and Critics of Federalism

InefficiencyTwo ComplicatedInequalityNo leadership

Pairs of competing values

Federalism balances and enables competing values to be secured:

• Self-rule and shared rule• Unity and diversity• Uniformity and difference• Solidarity and self-reliance• Co-operation and competitionOne challenge in designing a federal system

is to capture each of these in a suitable way

Other constitutional values

Federalism must be combined with other constitutional values, in both spheres of government, for its benefits to be fully secured. These include:

• Legitimacy• Democracy• Constitutionalism, including the rule of law• Effective and accountable government• Mutual respect; a willingness to share

power; appreciation of diversity, solidarity, tolerance

Importance of institutions

• Importance of specifically federal institutions are obvious (eg division of powers)

• Institutions of government equally important– Mechanism through which federalism

delivered– Mechanism through which other values

delivered• Institutional design must capture

– Aspirations for federalism– Aspirations for government generally

General observations

• Many of the institutions that we presently use were designed for unitary states

• They need to be fully adapted to the different context of federalism

• Range of possibilities is not fixed• Increasing experimentation in recent years• Eg asymmetry, forms of co-operation

Comparative federalism

• Comparative constitutionalism now a very hot topic

• Relevant to:– Making a Constitution– Using a Constitution (in particular,

interpretation by courts)• Problems of method of comparison• Particularly for institutional comparison

Variations between federations

• Degrees of diversity• State of the pre-federal state(s)• History• Legal system

– Legal philosophy– Doctrine

• Goals of Federations• Democratic system

Institutional building blocks: overview

• Two (+) spheres of government• A division of powers• A division of resources• Constituent representation in central

institutions• (some) constituent autonomy with own

institutions• Prescribed common standards in relation

to, for example, governance, rights, economic union

• Entrenched Constitution, effectively enforced

Two spheres of government

• Representing the people, grouped in different ways, allowing the emergence of different majorities & minorities

• How many units?– Not too many, not too few…

• Borders. – How are they drawn & changed?– According to what criteria?

• Symmetry or asymmetry

Division of powers

• What powers?– Potentially, legislative, executive, judicial

• How?– Horizontal/vertical/mixed– Exclusive/concurrent/shared– Provision for co-operation?

• Who gets what?

Division of resources

• This includes taxation, other revenues, loan funds, grants

• Mechanism likely to be influenced by the approach to the division of powers– Horizontal/vertical– Exclusive/concurrent

• Fiscal Equalisation– Bases– Process– Constitutional mandate?

Unit representation at the Centre

• Why?– Mixture of symbolic and practical

reasons• Typical mechanisms for representation

– Upper House of central legislature– Making and changing Constitution

• Other options– Choice of President/Head of State– Composition of government/cabinet– Composition of Constitutional Court– Central Bank; Fiscal Commission, etc

Institutions of the federal units

• Designed with federal and other governance values in mind

• Quality equally important• Significance of autonomy (within overall

constitutional limits)• Separate sub-national constitutions?• The issue of secession

Common standards

Many federations prescribe certain common standards, applicable to both spheres of government, in the Constitution itself. Typically these apply to:

• Governance (democracy, accountability, republicanism)

• Human rights• Economic union (mobility of people,

economic activity)

Constitution of the federal state

The Constitution should:– Be made by a suitable process– Create the central & constituent

governments– Provide the institutional framework– Provide the federal framework– Provide the means for its own alteration

Protection & enforcement

• A mixture of rigid and flexible• Federal quality of amendment procedure• Effectively enforced:

– Usually, general or specialist constitutional court

– Other options? Switzerland (sui generis). USA?

• Techniques for conflict avoidance: SA• Some internal flexibility eg through co-

operation

Challenges

• Making a commitment to federalism• Developing a federal culture• Building sufficient capacity in smaller, poorer units• Ensuring accountability, transparency,

responsiveness in all spheres of government and for shared programs

• Avoiding unproductive competition & disputes• Providing flexibility to meet new needs

Distribution of Powers

Self Rule

Main Questions:

Purpose of Distribution

Who decides?

Concept and Technique of Distribution

Criteria‘s

What is distributed

Who decides

Constitution maker

Federal Legislature

Both

Court (US, EU)

Common Law: Family Law, Property Law, Contract, Criminal Law, Procedure, commercial law etc.

Purpose of Distributionand Criteria’s

LegitimacyDiversity

Efficiency

Democracy

Justice

Financial Capacity

Need for Coordination

Interest of the task limited to the region

Need for a uniform solution

Delegation to Local Authorities

Subsidiary Principle

Commerce Clause

Necessary and Proper Clause

Purpose Criteria’s Principles

What is distributed

Branches ofGovernment

Constitution MakingLegislationExecutionJudiciary

FinancialCompetences

Income:Taxes, Grants,Bonds, Loans

Expenditures

FinancialEqualisation

GovernmentalTasks

Foreign PolicyIncl. Defence

PoliceEducation, Cul-tureHealth, EnvironmentEconomy andDevelopment

Mineral Resource, Water etc.Public Services

Civil Law Common Law

Individual / col-lective rights

CommonLaw, Codi-fication Spending

Power

Techniques of Distribution

Exclusive

Parallel

Concurrent

General Clauses

Detailed Regulations

Concept Technique

Bottom up

Top Down

Parallel Distribution

Supremacy

Legislatures in federations

• The first of the governance institutions• Others:

– Executive– Courts

• All exist in both federal & unitary states• All are necessarily affected by federalism• NB: need to consider both spheres

Underlying themes

• Legitimacy– Democracy (representation of the

people overall– Federalism (representation of the people

federally organised)• Effectiveness

– Capacity to do the job– In a way that reflects the federal

character of the polity

Context

Legislatures are affected by:• Form of executive government

– Presidential– Parliamentary– Other

• Use of direct democracy• Choice of electoral system• Concept of federal division of power

What (federal) legislatures do

• Make/approve law• Authorise tax/expenditure/budgets• Accountability role• Role in constitutional change• Treaty ratification?• Role in executive/judicial appointments? • Other specifically federal functions?

– Federal intervention; interstate compacts, grant distribution etc

What (federal) legislatures don’t do

• Have final authority over all subjects of legislation

• Have final authority over the constituent units

• Other federal limits on the manner in which they exercise their powers?– Requirement of uniformity?– Principle of federal comity?

Designing a federal legislature

• How to capture both:– Legitimacy– Effectiveness

• In a way that supplements– Democracy– Federalism

• So as to carry out the tasks required

The usual answer

(applicable in most federations)• A bicameral legislature, comprising

– A popular chamber, performing the traditional democratic role

– A federal chamber, performing a specifically federal role

• In fact, a bit more complicated. Consider:– How each Chamber is constituted– Who does what?

The “popular” Chamber

• Represents the people overall• Has powers to match (money; government

confidence)• Elected for fixed or flexible term• Federal influences:

– Electoral system– Units as electoral building blocks– Minimum unit representation– Other

The “federal” Chamber

What does it mean to be a federal Chamber?Some variables:• Representation of units or of people

organised in units• Symmetry or asymmetry• Powers• Significance, for federalism

Two (proto) types (on which many variations are possible)

• Type 1: Federal chamber represents the units as units – Governments or legislatures?– Veto over legislation affecting units– Other? Eg judges, treaties, constitutional

change, federal fiscal arrangements– Probably not: budget, government

confidence• Co-operation between governments

internal to the federal legislature

Two prototypes (continued)

• Type 2: Chamber represents the people organised in federal units– Electoral system?– Scope of veto over legislation?– Other?– Probably not: budget government

confidence• Co-operation between governments

external to the federal legislature

Relations between Chambers

• Potential for disagreement– (Majoritarian) democracy v federalism– Different party political majorities

• Options for dealing with disagreement– Do nothing– Internal resolution mechanisms (eg

mediation; joint sitting)– External resolution mechanisms (new

elections, referendum)

Unit legislatures

• Likely to reflect federal model, although• (somewhat) less likely to be bicameral• Potential to extend federal principle to

governance within unit (eg by representation of local government)

• Usual legislative functions• Particular federal functions?

Forms of Federal Executives and Legislatures in

Selected Federations (Watts)

Federation

Executive Legislature

Head of Government

Head Fe- deration

Bicameral unic. Leg.

Austr. Cabinet Prime Mini. Monarch Bicamer.

Austria Cabinet Chancellor El. Presid. Bicamer.

Belgi. Cabinet Prime Mini. Monarch Bicamer.

Canada Cabinet Prime. Mini. Monarch Bicamer.

Germa. Cabinet Chancellor Pres. El. Assembly

Bicamer.

Malays. Cabinet Prime.Min. Sel. Her. rulers

Bicamer.

Spain Cabinet Prime.Min. Monarch Bicamer.

CH Fixed termExec.Dire.

Rot. Pres. Rot. Pres. Bicamer.

US Sep. Pres. Congress

President Pres. Elected

Bicamer.

Variations in Selection, Composition and Powers of

Second Chambers S. Watts

Selection Composition Powers Role

App. By Fed. Gov. CA Mal.63% Seats

Equal Regio.Repr. CA

Absol VetoMediation US, CH

Legislature CH; US, AT AU MY

App. By Fed. Gov. Nom. Pr.

Equ. St. Re. AU, US,CH

Abs. Veto f. some Leg.

Legis.; int. Gvt Rel ZA

App. State Gov. GE

2 Cat. Of St. Repres. CH

Susp. Veto time ES MY

Ind. El. State legis. AT IN MY

Weighed. St. Repr. AU. I.

Susp.Veto GE

Dir.El. Simpl. Plur. CH, US

Weighed St. Repr. IN, AT

Deadlock: joint Sitting

Dir. El. Prop. AU Ad.repr.for other IN,MY

Deadlock: Diss. Joint Sit.

Choice left to Cantons CH

Min. reg. repr. ES,BE

Money Bill Sus Veto IN,My

Mixed. BE.ES, MY

ConstitutionMaking

Constitution Constituent Power

How?: Procedure

Decentralization

Centralization

Step by Step

InternationalCommunity

Who?Inclusive

Exclusive

Who decides?

Legitim

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