Basic comparative

1
Basic comparative concepts of Federalism
Thursday
2
Basic Elements of Federalism
Constitution
Shared Rule
Self Rule
3
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).

4
Different goals of Federalism
Vertical Separation of Powers Accommodate
Diversity Strengthen the smaller Units Economic
Integration Avoiding secession
Main Challenges and Critics of Federalism
Inefficiency Two Complicated Inequality No
leadership
5
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 competition
• One challenge in designing a federal system is to
  capture each of these in a suitable way

6
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

7
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

8
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

9
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

10
Variations between federations

• Degrees of diversity
• State of the pre-federal state(s)
• History
• Legal system
• Legal philosophy
• Doctrine
• Goals of Federations
• Democratic system

11
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

12
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

13
Division of powers

• What powers?
• Potentially, legislative, executive, judicial
• How?
• Horizontal/vertical/mixed
• Exclusive/concurrent/shared
• Provision for co-operation?
• Who gets what?

14
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?

15
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

16
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

17
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)

18
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

19
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

20
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

21
Distribution of Powers Self Rule
22
Main Questions
Purpose of Distribution
Who decides?
Criterias
What is distributed
Concept and Technique of Distribution
23
Who decides
Constitution maker
Federal Legislature
Both
Court (US, EU)
Common Law Family Law, Property Law, Contract,
Criminal Law, Procedure, commercial law etc.
24
Purpose of Distribution and Criterias
Purpose
Criterias
Principles
Legitimacy
Efficiency
Subsidiary Principle
Diversity
Financial Capacity
Democracy
Commerce Clause
Justice
Need for Coordination
Necessary and Proper Clause
Need for a uniform solution
Interest of the task limited to the region
Delegation to Local Authorities
25
What is distributed
Branches of Government
Financial Competences
Governmental Tasks
Constitution Making
Income Taxes, Grants, Bonds, Loans
Foreign Policy Incl. Defence
Legislation
Individual / col- lective rights
Execution
Mineral Resource, Water etc. Public Services
Judiciary
Police
Education, Cul- ture
Common Law, Codi- fication
Expenditures
Health, Environment
Spending Power
Economy and Development
Financial Equalisation
Civil Law Common Law
26
Techniques of Distribution
Concept
Technique
Bottom up
Exclusive
Parallel
Top Down
Concurrent
Parallel Distribution
General Clauses
Supremacy
Detailed Regulations
27
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

28
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

29
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

30
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

31
What (federal) legislatures dont 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?

32
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

33
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?

34
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

35
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

36
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

37
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

38
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)

39
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?

40
Forms of Federal Executives and Legislatures in
Selected Federations (Watts)
41
(No Transcript)
42
Variations in Selection, Composition and Powers
of Second Chambers S. Watts
43
(No Transcript)
44
Constitution Making
45
Constitution Constituent Power
Decentralization
Centralization
Legitimacy Treaty, Agreement, Constitution?
How? Procedure
Step by Step
International Community
Inclusive
Who?
Exclusive
Who decides?
46
(No Transcript)