The subject matter of this course: Institutions of federal states Analyses and Concepts of federations fragmented by diversities
Today 24 states consider themselves as fede- ral states. 45% of the world population lives within a federal system. On many different parts of the world federalism has become an important institutional concept for peaceful management of ethnic conflicts (cf. among others Iraq, Sudan and Congo), some unitary states have already important federal institutions such as Spain and Italy. In the European Union federalism is consi- dered by many scholars as the only institutio- nal tool to strengthen the Union and to deepen its democratic legitimacy.
Institutions are the means through which federal government is delivered Consider two categories: Specifically federal institutions Institutions of democratic constitutional government These categories are interdependent Federalism affects democratic institutions and the choice of democratic institutions affects federalism Institutions
Second Class Introduction to Comparative Federalism
Value of Comparative Federalism How did others design institutions to deal with the particular needs of their societies ideas about institutional design for emerging federations models for adoption and adaptation Exemples: South Africa India Ethiopia
Comparative federalism Comparative constitutionalism now a very hot topic Relevant to: –Making a Constitution –Using a Constitution (in particular, interpretation by courts) Note problems of method Particularly for institutional comparison?
Variations between federations Degrees of diversity State of the pre-federal state(s) Legal system –Legal philosophy –Doctrine History Governmental System Other?
Institutional building blocks: overview A division of powers Two (+) spheres of government 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? NB:implications of the answers to these questions for the institutional structure of all governments
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?
Challenges Each federation has a set of interlocking institutions with a structural logic of their own, through which the values of both federalism and constitutional government are met The operation of these institutions may be affected by the wider context Both logic and context need to be appre- ciated to understand another system (and to borrow from it)
Some Examples of Prototypes United States Presidential System 2nd chamber Competitive Federalism Goal of F Judiciary Germany Parliamentary System 2nd chamber Executive Federalism Goal of F Judiciary Switzerland Directorial System 2nd chamber Executive Federalism Goal of F Judiciary
Some examples of adaption Australia American System with Parliamentary Government And one Common Law Switzerland American Senate French legal System Direct Democracy European Union German Second Chamber Directorial System
Constitutional Principles Of Federalism US Commerce Clause Principle of Subsidiary Residual Powers Intergovernmental Relations Interstate Compact Top Down Bottom up Opting out
The Basic differences of the two systems: The Power of the Court Civil law: The one who has right should win the case Common Law: The one who wins the case has right Thus Division of powers with regard to the Judiciary within countries of common law Tradition is much more important Compared to legislative power
Federalism Embedded within Two different legal systems
Different Perception of the state, the nation and sovereignty Different perception of the law Different perception of the courts Different perception of access to justice
Common Law: John Locke To limit the power of The government Civil Law: Thomas Hobbes: Absolute Power of the Leviathan: Constitution: Empower government And limit governmental powers Constitutionalism
Constituting a State or Constituting a government Legitimacy of the state / or Government Rule of Law versus Rule of the Laws (legis- Lature) Federalism: Limit federal power Accommodate Diversity Federalism
Basic Differences Hierarchy of Norms Napoleonic Public Law Concept Notion of Authority Prerogative writs Habeas Corpus Mandamus Writ of Certiorari Due process / Natural Justice The continental legal system: legislature Administration Administrative Tribunals Administrative Acts European Court on Human Rights
Legal Systems Unitary or Parallel Legal Systems Independence of the Judiciary Legal Dualism
Nation Concept Constitution Making of Local Units Distribution of Powers Conclusions