Transcript Slide 1
First Class: Introduction The subject matter of this course: Institutions of federal states Analyses and Concepts of federations fragmented by diversities Today 24 states consider themselves as federal 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, Congo and Sri Lanka), some unitary states have already important federal institutions such as Spain and Italy. In the European Union federalism is considered by many scholars as the only institutional tool to strengthen the Union and to deepen its democratic legitimacy. Basic Elements of Federalism Constitution Shared Rule Self Rule Federalism Unitary state - Confederation Decentralization DeconDecentralicentration Sation administraLegislation tive Autonomy Decision ResponsiOrder Bility RevocaFinance tion Federation ConstituTion Constitution making Legitimacy ConfedeRation Treaty Legitimacy International court Institutions 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 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 • 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 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 appreciated to understand another system (and to borrow from it) Some Examples of Prototypes United States Germany Presidential Parliamentary System System 2nd chamber 2nd chamber Competitive Executive Federalism Federalism Goal of F Goal of F Judiciary 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