Perspectives on Comparative Federalism


(article published on http://50shadesoffederalism.com/theory/perspectives-on-comparative-federalism/ on 15 October 2018)

Abstract

The number of countries embracing federalism is rocketing and research on federalism is booming. Federal studies are eventually abandoning the vain search for definitional clarity, and increasingly look at the potential of federalism to provide solutions to some of the most pressing challenges to contemporary constitutionalism. Federalism is indeed the oldest institutional mechanism to regulate pluralism, and has therefore a lot to offer in solving contemporary challenges originating from the quest for more pluralism, both institutional and societal.

Introduction: Living (well) without a Definition

The number of countries embracing federalism is rocketing (Huegelin and Fenna 2015:3) and federal studies are booming, despite the fact that no one can precisely define federalism. The good news, however, is that the hysteria about the search for a definition is relenting. Instead, a more pragmatic approach to federal issues is spreading. This will hopefully allow federal studies to address some of the most pressing challenges to contemporary constitutionalism, bringing in an essential perspective and offering solutions based on century-long refinement of federal instruments.

Defining federalism and classifying federal states have kept scholars busy for centuries, filling libraries in the process. Nevertheless, there is no universal agreement on what federalism means (Gamper 2005), nor is there agreement on how to classify federal countries (Watts 2008). Nor can there be one. Federalism is an essential component of theory and practice of states and power structures, but the federal principle is indeed much older than the modern and even the pre-modern state (Burgess 2006). In fact, federalism is at the heart of one of the most pressing challenges in the history of mankind: how to order public life and how to limit, organise and regulate power in a way that guarantees freedom and efficiency, unity and plurality, autonomy and coordination. This is why it can be seen in different ways, under different disciplinary angles, taking different features into account and coming to very different results as to the identification of traces of federalism.

In recent times, the study of federalism seems to have been gradually abandoning the obsession to define federalism, and reorienting focus towards its manifestations. A pragmatic approach that resembles the famous definition of obscenity by Justice Potter Stewart in Jacobellis v.Ohio, 378 U.S. 184 (1964): “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it”. Precisely because of the absence of any possible definition of federalism going beyond the general formula by Elazar “self-rule plus shared rule” (Elazar 1987, Müller 2017), growing attention is being paid in more recent literature to the institutions and the procedures of federalism (Halberstam 2012, Huegelin and Fenna 2015, Palermo and Kössler 2017). Ultimately, it is their functioning that makes machines interesting, rather than what qualifies them as machines.

Evolution and Consolidation

Against this background, why are federal ‘machines’ interesting and popular like never before and what are the most pressing research questions for contemporary comparative federal studies?

When the idea of federalism was born, it was primarily a philosophical concept and a principle of political organization, essentially serving economic and military purposes. In legal terms, the early idea of federalism was closer to international rather than constitutional law, aimed at bringing together sovereign units that alone were no longer competitive in economic and military terms.

The more federal countries established themselves (in the nineteenth century) and significantly increased in number (in the twentieth century), the more federalism became noteworthy not only to political philosophers and political scientists, but also to constitutional lawyers and economists. All of these methodological perspectives facilitated the study of how federal systems (both classical federations and related manifestations such as regional or devolved states) work in practice, what elements they have in common, how their functioning can be improved, and, above all, what institutions and procedures are needed in order to make them work.

In the twenty-first century, the challenge is no longer the creation of new federations by pooling together sovereign states, as the example of the EU and the insurmountable obstacles to it becoming a fully-fledged federal state clearly shows. Even the establishment of federal systems through decentralization has lost the grip it had in the course of the second half of the twentieth century (Belgium, Spain, Italy, United Kingdom, South Africa and so on). The federal idea is by now sufficiently explored. Institutional strengths and weaknesses are well-known, and so is the importance of cooperative instruments and of the readiness to cooperate by the involved actors, as there can be no federalism without a certain degree of cooperation.

What does really matter? The Challenges Ahead?

While all this seems to be consolidated, the critical test that remains is the effective management of pluralism and its inherent complexity, given the challenges that pluralism is posing to contemporary societies. Federalism is the most developed constitutional instrument to deal with the pluralism of interests, actors, institutions and procedures marking contemporary societies, and can represent the matrix for dealing with their challenges. To do so, however, federalism can no longer be seen as a pure institutional interplay, a system accommodating the coexistence of institutions belonging to different tiers of government but has to include the understanding of how federalism works (or may work) in practice, what its added value could be and how it could be developed. Institutional facets are just one aspect of the contribution that federalism can provide to contemporary challenges: they are the historically most developed aspect and are thus fit to serve as a matrix for developing new instruments, but alone are by far no longer sufficient to make federalism relevant in the twenty first century.

The most pressing areas which could benefit most from hints and inputs from federal studies seem to be the following:

The first and most important one is the management of pluralism, in its various territorial, ethno-cultural and other manifestations. While this has always been the core task of federal systems, recent developments seem to indicate that all countries that are decentralizing do so in order to respond only to ethno-cultural challenges (Choudhry 2008, Broschek 2013:101). This seems confirmed by developments in countries such as Ethiopia, South Sudan, Kenya, Nepal, Myanmar, possibly the Philippines, and by adaptations in several other countries, also in Europe, where ethno-cultural issues are shaping federal dynamics much more than other elements and certainly more than in the past. If that is the case, one could argue that in present times federalism is seen, rightly or wrongly, at least at political level, primarily as an instrument to accommodate minority claims. If so, greater attention should be paid to rule of law instruments that balance the idea of exclusive control of a territory by a titular group (Kössler 2015).

The second main challenge is that of participation. This has also been an essential element of the federal toolkit from the inception. However, traditional institutional forms of (territorial) participation are no longer sufficient to establish a workable system, as shown by the ongoing crisis of second chambers in federal and regional systems (Gamper 2018). Not only are rules on participation essentially procedural, determining who can participate, how, under which conditions, exercising what rights, and – not least – what are the consequences of inclusion in or exclusion from the process (for example, whether those excluded have the right to challenge the decision in a court or not). In present times, the pressure towards more democratic and participatory decision-making makes it necessary to look beyond merely institutional participation and to include (and regulate) also forms of societal participation (Palermo and Alber 2015). The ways non-institutional stakeholders can be included in decision-making processes can more easily be designed by digging into the federal toolkit.

Finally, it is necessary for federal studies to look more carefully at policies, including how they are managed on the basis of legal norms and how they are interpreted by courts (Palermo and Kössler 2017). Only the analysis of relevant policy fields, both related to the constitutional division of powers and to the political processes, can illustrate the trends and challenges resulting from the governance of complex and transversal areas involving a plurality of actors, such as the environment, education, financial relations, immigration, and many others, forcing involved actors to develop effective forms and procedures for cooperation. In other words: making federal studies fit to provide responses to contemporary challenges of an ever more complex forms of governance of ever more complex phenomena in ever more complex societies.

Conclusion

It is expected that looking further into these aspects will be the main challenge for federal studies in the years to come. These are ultimately some of the main challenges of contemporary constitutionalism and are the reason why federalism is looked at with increased attention worldwide. Diversification of responses within a common constitutional framework allows for tailor-made solutions, for experimentation, for wider participation, for enhancing democracy by dividing and sharing powers. It is up to the academic community to take up this challenge and to provide answers that can be developed from a contemporary reading of the solution and procedures that federalism can offer.

 

Suggested Citation: Palermo, F. 2018. ‘Perspectives on Comparative Federalism’. 50 Shades of Federalism. Available at: http://50shadesoffederalism.com/theory/perspectives-on-comparative-federalism/

 

Bibliography

Broschek, J. 2013. ‘Between Path Dependence and Gradual Change: Historical Institutionalism and the Study of Federal Dynamics’, in Benz A. and Broschek J. (eds). Federal Dynamics: continuity, change and the varieties of federalism. Oxford: Oxford Univ. Press, 93-113

Burgess, M. 2006. Comparative Federalism: Theory and Practice, Abingdon: Routledge

Choudhry, S. (ed.) 2008. Constitutional Design for Divided Societies, Oxford: Oxford Univ. Press

Elazar, D.J. 1987. Exploring Federalism. Tuscaloosa, AL: University of Alabama Press

Gamper, A. 2005. ‘A “Global Theory of Federalism”: The Nature and Challenges of a Federal State’. German Law Journal (6), 1297-1318

Gamper, A. 2018. ‘Representing Regions, Challenging Bicameralism: An Introduction’. Perspectives on Federalism 2, I-IX

Halberstam D. 2012. ‘Federalism: Theory, Policy, Law’ in Rosenfeld M. and Sajó A. (eds.). The Oxford Handbook of Comparative Constitutional Law. Oxford: Oxford Univ. Press, 576-608

Hueglin, T. and Fenna, A. 2015. Comparative Federalism. A systematic Inquiry. 2nd ed. Toronto: Broadview Press

Kössler, K. 2015. ‘Conclusions: Beyond the Illusion of Ethno-culturally Homogenous Territory’ in Malloy T. and Palermo F. (eds.) Minority Accommodation through Territorial and Non-Territorial Autonomy. Oxford: Oxford Univ. Press, 245-272

Mueller, S. 2017. ‘Self-rule and Shared Rule’. 50 Shades of Federalism. Available at: http://50shadesoffederalism.com/theory/self-rule-shared-rule/

Palermo, F. and Alber E. (eds) 2015. Federalism as Decision-Making. Leiden-Boston: Brill

Palermo, F. and Kössler, K. 2017. Comparative Federalism. Constitutional arrangements and case law, Oxford and Portland: Hart

Watts, R.L. 2008. Comparing federal systems. 3rd ed. Montreal and Kingston: McGill and Queen’s Univ. Press

 

Further reading

Birch, A. (2006). Approaches to the Study of Federalism. Political Studies 14(1), 15-33

Hueglin, T. (2003). Federalism at the Crossroads: Old meanings, new significance. Canadian Journal of Political Science / Revue canadienne de science politique Vol. 36, No. 2, 275-294

Gagnon, A, Keil, S. and Mueller S. (eds.) (2015). Understanding Federalism and Federation. London: Routledge

Kincaid, J. (ed.) 2011. Federalism. 4 volumes anthology. London: Sage

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The Global Citizens’ Initiative: Interview with Francesco Palermo

TGCI: Thank you for doing this interview. Let’s begin with you. How did you get interested and engaged in issues of federalism and governance?

Francesco Palermo: I was born in Bolzano, in South Tyrol, which is an autonomous province in northern Italy and is itself a fascinating case of federal governance. Perhaps because of where I was born I became interested in federalism, and the
question of how different levels of government can interact in a cooperative and not a conflictive way. I pursued this interest by getting a PhD in University of Innsbruck, where my doctoral thesis focused on regionalism and the foreign relations of subnational entities. I then started as a researcher at EURAC, and over time came into my present position as Director of EURAC’s Institute for Studies on Federalism and Regionalism. I also am a member of the Italian Parliament, having been elected as an independent Senator from South Tyrol.

TGCI: Can you tell a little more about EURAC?

Francesco Palermo: The European Academy of Bozen/Bolzano (EURAC) lies in the heart of the Dolomite mountains in Northern Italy. Created in 1992 as an independent research center, EURAC is home to researchers from all over the world who work together on a wide range of interdisciplinary projects. Experts in law and natural sciences, linguists and geneticists collaborate with public and private agencies towards the resolution of the central issues of our day. Together they contribute to create a future-oriented Europe.

TGCI: How would you define federalism?

Francesco Palermo: The term “federalism” is used to describe a system of government in which sovereignty and power are constitutionally divided between a central governing authority and constituent political units (such as states or provinces). Federalism is a system based upon democratic rules and institutions in which the power to govern is shared between national and provincial/state governments, creating what is often called a federation As the late Daniel Elazar said: “Federalism is a mix of self-rule and shared rule.”

TGCI: How many countries in the world today operate on a federalist model?

Francesco Palermo: It depends on how you define federalism. There are at least 25 federal countries in the world today representing 40 percent of the world’s population. But many more countries show federal features, despite not defining themselves as “federal”, such as Spain, Italy, the UK and many others.

TGCI: So federal governance seems quite applicable in today’s world.

Francesco Palermo: Yes, growing complexity in governance marks today’s world. There are many different constituencies clamoring to participate in decision-making processes. Often the political response to such complexity is to call for the simplification of decision-making. However, in practice what’s needed are tools that can help countries say “yes” to such complexity, and bring actors who otherwise would have been excluded into the governance decision-making process.

TGCI: Including citizens of course.

Francesco Palermo: Absolutely including citizens. In the final analysis those in positions of political power have the final word, they need to consult with citizen groups and other societal actors in order for their decisions to be perceived as legitimate.

TGCI: You make the point that there is no “one size fits all” model of federalism.

Francesco Palermo: Yes for example look at the difference in the federal governance systems that exist in countries such as Australia, Brazil, Mexico, the United States, Germany, and South Africa. All of these countries follow the principles of federal governance, though they apply them in different ways. The origins of many federal states lies in unity governments, which made political decisions to decentralize. They did this so that power could be shared with subnational units representing different constituencies. Such was the case in countries such as Belgium, the United Kingdom, India and lately South Sudan. On the other hand you have countries like Germany, Switzerland or the US, which joined together previously independent sovereign states to form a federal system.

TGCI: Can you describe some of the tools that federal countries use to ensure power sharing between the state and its sub-national units of government?

Francesco Palermo: The most common used tool is the device of having dual legislative chambers, one based on population and one based on giving representation to a sub-national unit, such as the US Senate. Another tool are intergovernmental relations among executives of different tiers of government in several matters, from financial resources to the environment. There also are tools focused on participatory procedures that enable individual states or citizens to engage in the
drafting of legislation.

TGCI: Federalism is widely viewed as an effective governance system for the protection of minority rights. Can you speak to this point?

Francesco Palermo: There is a delicate balance that needs to be achieved when constructing a federal state composed of various minorities. If you have a distinct ethnic group, the more self-government they can achieve the less interest they have in establishing their own state. For example, had Scotland been given broader autonomy from the United Kingdom an independence referendum would most likely not have been needed. Catalonia in Spain is another example of an opportunity foregone. Had Spain not refused to adopt more of a true federal system, in response to requests from Catalonia to do so, the prospect of Catalonia seceding from Spain would not have occurred.

TGCI: Are there governance debates in other parts of the world that can draw on successful lessons learned about how federalism works from elsewhere?

Francesco Palermo: In many countries you find regions or municipalities asking for greater autonomy; for example in Flanders in Belgium or parts of the former Soviet Union or South Tyrol here in Italy. If the central state listens to these requests and is able to be flexible and grant these regions a certain degree of autonomy, then federalism can help keep these countries together. If the central state is stubborn and unresponsive to these requests, in all likelihood the regions will end up
seceding. Secession reflects a failure in the federal system. It proves that something went wrong.

TGCI: Can you give an example of a state that failed to respond to the needs of its regions for more autonomy?

Francesco Palermo: Ukraine is a good example. Over the past two decades successive governments in Kiev failed to recognize Crimea’s interest in having genuine autonomy. Ukraine is a very diverse country but it has been ruled as a centralized state. Had the central government in Kiev been able to grant more political autonomy to the regional government in Crimea, it probably would have averted the recent Russian takeover of that region. Russia took advantage of Ukraine’s political neglect of the Crimea. The same dynamic is at play in the Eastern part of Ukraine where military intervention now makes it more difficult for a solution that grants more autonomy to Ukraine’s eastern provinces and forestalls the prospect of the regions seceding.

TGCI: What are the potential drawbacks of a federalist system? 

Francesco Palermo: Federalist systems respond to changes in the political environment. When you have a conflictive political system, as you have at the moment in the US, the system exerts its control and blocks decisions that are too unilateral.

TGCI: What about the relationship between federalism and democracy?

Francesco Palermo: Federalism and democracy need to go together. An essential part of federalism is for a country’s citizens to be able to have control over the exercise of political power, and ensure that its leaders are accountable to the people they serve.

TGCI: Is it possible to have federalism without democracy?

Francesco Palermo: On paper you can have a constitutional design that has all the elements of federalism except democracy; see for example the former USSR, some countries in Latin America, or Ethiopia, which has a federal system but only one political party so there are no opportunities for reciprocal political control. In practice, however, federalism cannot operate without democracy.

TGCI: Does federalism have a role to play in global governance?

Francesco Palermo: The need for more effective global governance systems is widely recognized. The question is how feasible is it to have stronger global governance? Is the world too geographically and culturally diverse? Are the global differences between rich countries and poor countries too great? Can federalism work without a minimum level of homogeneity among its constituent parts? Even in Europe you have this problem. Look at the differences between Finland and Greece. Do they have something in common other than the Euro? I am morally convinced that we need to work towards better global governance but we have to move slowly given the differences that exist between countries.

TGCI: What are your views on global citizenship? Do you consider yourself a global citizen?

Francesco Palermo: If being a global citizen means being an aware person who fits his or her actions into different governance contexts, than I can identify with this term. In terms of citizenship I always try to reflect the roots that I come from. But this changes depending on the context in which I’m operating. If I am in Italy I see myself as a South Tyrolean; if in Europe I am an Italian; on a larger stage perhaps a European or a global citizen. I am not sure.

TGCI: Thank you very much.

www.theglobalcitizensinitiative.org/

https://mlsvc01-prod.s3.amazonaws.com/ddc2f822401/73a5f58e-e9df-4ce1-8890-052c28e82811.pdf

via eurac.edu: Institute for Studies on Federalism and Regionalism

Francesco Palermo, the Head of the Institute for Studies in Federalism and Regionalism at the European Academy of Bozen/Bolzano tells us why he thinks federalism is an important tool for governance. He gives five examples of federal states from around the world (United States, India, Switzerland, Germany and South Tyrol) and describes how their federalist concepts make them economically and/or socially strong.