Comparative Federalism

Theory and Practice

Michael Burgess

• Publisher: Routledge
• Year: 2006
• eBook ISBN: 9781134219483
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

A new examination of contemporary federalism and federation, which delivers a detailed theoretical study underpinned by fresh case studies.

It is grounded in a clear distinction between 'federations', particular kinds of states, and 'federalism', the thinking that drives and promotes them. It also details the origins, formation, evolution and operations of federal political interests, through an authoritative series of chapters that:

• analyze the conceptual bases of federalism and federation through the evolution of the intellectual debate on federalism; the American Federal experience; the origins of federal states; and the relationship between state-building and national integration
• explore comparative federalism and federation by looking at five main pathways into comparative analysis with empirical studies on the US, Canada, Australia, India, Malaysia, Belgium, Germany, Austria, Switzerland and the EU
• explore the pathology of federations, looking at failures and successes, the impact of globalization.

The final chapter also presents a definitive assessment of federal theory. This book will be of great interest to students and researchers of federalism, devolution, comparative politics and government.

Part I
Concept and meaning

1 Federalism and federation
The quest for meaning

Introduction

The intellectual debate about modern federalism – its meaning and significance – can be traced back to the late eighteenth century. The peculiar circumstances that surrounded the shift from confederation to federation in the United States of America in the years between 1781 and 1789 shaped and moulded the nature of the subsequent intellectual debate in a way which had far-reaching consequences for understanding one of the most important historical innovations in modern government and politics. The American federal model established in 1789 was based upon a set of core principles that were consciously imitated by others, and in consequence it helped to spark an enduring analytical debate about what it meant to be ‘federal’. In this sense the American federal precedent corresponded simultaneously to both theory and practice.

In the two separate sections of this chapter I want to examine how the meaning and significance of federalism and federation have changed over time. I want to show how these concepts have fared at the hands of prominent historians, political scientists and practitioners in the mainstream Anglo-American literature. As we shall see, the survey will locate the origins of many of the main contemporary analytical concerns about federalism and federation. These concerns were first identified and discussed by interested observers well over a century ago and our conceptual and methodological review will therefore examine the important early contributions before concentrating upon the contemporary intellectual debate. But I will notok at the lose concepts through the eyes of the various political philosophers who have also wrestled with federalism as part of their own political discourse. There are many established texts that already do this. Instead I shall refer to them only in the extent to which they have loomed large in the intellectual debate itself.

The conceptual and methodological review enables us in Chapter 2 to revisit the intellectual and empirical distinctions between confederation and federation made by Americans in the late eighteenth century. After all, the American federal experience during 1781–89 had enormous implications for government, politics, political systems and the study of political science itself during the next two centuries. And for our purposes it allows us to place the conceptual analysis of federalism and federation on a firm foundation. In Chapter 2 I will also explore some of the main philosophical conceptions of federalism post-1789 precisely because they continue in general to furnish the basis for the management of contemporary problems in politics. The question of individual and collective identities in particular represents one of the most difficult challenges for federal political systems in the twenty-first century. Let us begin, however, with Part I of the conceptual and methodological review of federalism and federation.

Conceptual and methodological review (i)

The earliest selected contribution to the intellectual debate about modern federalism was the combined effort of Alexander Hamilton, John Jay and James Madison (under the pseudonym of Publius) whose clever and pugnacious defence of the new ‘compound republic’ that they had helped to create turned into a veritable philosophical treatise on the blessings of federal government. And while their talent for legerdemain in explaining the shift from confederation to federation was as cynical as it was effective, their explanation of the federal form of government in The Federalist during 1787–88 remains impressive to this day for its logic, conviction and clarity. As Clinton Rossiter observed:

The Federalist converted federalism from an expedient into an article of faith, from an occasional accident of history into an enduring expression of the principles of constitutionalism.¹

We will assess the significance of Publius and The Federalist for the debate about federalism in the next chapter. For the moment let us resume our intellectual odyssey and move from the late eighteenth to the early nineteenth century.

In his Democracy in America, first published in 1835, Alexis de Tocqueville examined the complex interaction of liberty, equality and mass democracy that he had witnessed first hand in the young emergent American society of the early 1830s. His aim was to assess the implications of this democratic revolution for European states. His search for America however was not the limit of his ambitions. In practice he saw not only America but also ‘the image of democracy itself, with its inclinations, its character, its prejudices and its passions’ and this equipped him to write what has since become one of the classics of political science.² Combining the role of political scientist, sociologist and political philosopher, Tocqueville’s shrewd observations of people, ideas and events not only gave him an insight into the workings of democracy but they also enabled him to identify some of the cardinal features of federalism and federation. He believed that the republican form of government depended for its vitality and permanence upon the durability of the federal system and that the federalism in the federation – America’s enduring social diversity – sprang directly from the local communities, townships and provincial assemblies. ‘In America’, as he put it, ‘the township was organised before the county, the county before the States, the State before the Union’.³

The implication of this for the political organisation of the United States of America was that both the spirit and reality of freedom and independence, which had characterised the townships for nearly two centuries prior to the new union, would have to be protected and preserved. In order for the local citizen to continue to practise what Tocqueville called ‘the art of government in the small sphere within his reach’, the ‘independence of the government of each State in its sphere was recognized’.⁴ The new union therefore was based upon the sovereignty of the people, but it was built from below with political authority spiralling upwards from the individual in local communities and townships via the constituent state governments to the federal government itself. Power was both shared and divided.

Tocqueville’s understanding and appreciation of the federal idea cannot be entirely divorced from his general opinions and anxieties about democracy itself. But it was nonetheless federal democracy. And this meant recognition of the needs of, as well as the threat to, minorities together with an emphasis upon the limits and possibilities of government. Interestingly he also referred to specific ‘Anglo-American’ political values, traditions and behaviour that were tantamount to a particular federal tradition. We will return to this classification in Chapter 6. For our purposes, then, Tocqueville’s contribution to the intellectual debate about federalism and federation was to acknowledge the significance of what he called the ‘social condition’ of the Anglo-Americans’ as well as the vitality of state autonomy and the overarching role of the formal mechanisms, procedures and institutions of federal government itself. This early recognition of the social condition of Anglo-American federal democracy is useful to our analysis of the preconditions of asymmetrical federalism that appear later in Chapter 8. There is much in Tocqueville’s penetrating observations about democracy in America therefore which have a retrospective value for our comparative analysis of federalism and federation.

When we turn to look at the observations of John Stuart Mill in his Considerations on Representative Government, first published in 1861, the focus shifts from Tocqueville’s largely deductive method and his uniquely sociological-philosophical approach to understanding and explaining American federalism and federation to the British representative parliamentary tradition.⁵ Indeed we encounter a very different perspective of our subject. Tocqueville was, after all, investigating American democracy, and while Mill’s philosophical purpose was not that different from the French nobleman’s in his desire to identify the best form of government, his empirical focus was much wider. There is however one major similarity that is of particular relevance to our brief review. Like Tocqueville, Mill, too, identified certain social preconditions necessary for federation to work successfully. These ‘sympathies’ were primarily those of ‘race, language, religion’ and, of special interest to our survey, ‘political institutions’, which together were most conducive to ‘a feeling of identity of political interest’.⁶ But Mill also mentioned another precondition that we shall discuss in more detail in Chapter 3. This is the question of the combined resources and relative size of constituent units in a federation. Mill suggested that territorial magnitude was certainly one of the considerations that should be taken into account in determining whether or not a country opted for a federal form of government. The implication of his essay was that fully fledged federation was generally the natural result of the political conditions of a large country rather than a small one.

For Mill the separate states should not be so powerful as to be able to rely solely upon themselves for military defence otherwise they would be ‘apt to think that they do not gain, by union with others, the equivalent of what they sacrifice in their own liberty of action’. If these circumstances prevailed the ‘internal and sectional breach’ would be in danger of going so far as to dissolve the union. Moreover, the general inequality of strength between the states comprising the union should also not be too great. Mill’s assertion is worth quoting at length:

There should not be any one state so much more powerful than the rest as to be capable of vying in strength with many of them combined. If there be such a one, and only one, it will insist on being master of the joint deliberations: if there be two, they will be irresistible when they agree; and whenever they differ everything will be decided by a struggle for ascendancy between the rivals.⁷

While virtually only a passing reflection upon the nature of federal government, Mill’s contribution to the analytical debate retains its utility to our survey for the focus that it placed upon the important preconditions of federation as well as upon the significance of representation in federal studies. These remain of critical importance to contemporary accounts of federalism and federation. Shortly after Mill’s brief excursion into the subject of federal representative government a major contribution to the Anglo-American intellectual debate was made when, in 1863, Edward Freeman’s historical study of federation entitled the History of Federal Government in Greece and Italy was published.⁸ As an established historian of some considerable repute and the new Regius Professor of Modern History at Oxford, Freeman had set himself the task of exhibiting the practice of federal government throughout history, stretching back to ancient Greece and the Italian city states of the Middle Ages. This book and the numerous articles that he wrote about the federal idea, Ireland and the British Empire established Freeman as an acknowledged authority on the subject of modern federalism in late Victorian England.⁹ Indeed, in another classic work on federalism entitled The Problem of Federalism: A Study in the History of Political Theory, first published in 1931, Sobei Mogi alluded to Freeman’s History of Federal Government as ‘the first and most exhaustive survey of the federal idea and of the history of federal government’.¹⁰ Freeman referred to himself as ‘a historian of federalism’ but he was a particular kind of historian.¹¹ Unlike Tocqueville, whose Democracy in America he had read and admired, Freeman was essentially an empiricist ‘in the sense of being crudely hostile to all deductive or philosophical theories of politics’ and a fervent advocate of the ‘Comparative Method’ in history and politics which made him ‘an inveterate classifier and lover of parallels and analogies’.¹²Naturally these scholarly preferences determined his own particular view of federalism that continues today to furnish us with many novel insights.

Freeman’s own political creed was that of the mid-nineteenth-century English ‘liberal nationalist’ who believed that the contemporary processes of state-building and national integration should incorporate the federal idea in order to reconcile ‘as much as possible of long-established particularity with nation-statehood’. ¹³ His conception of federalism, then, was that it was essentially a compromise; it was, broadly speaking, an attempt to mediate between what he called ‘two extremes’. Using, as he put it, a ‘cross-division to the common classification into monarchies, aristocracies and democracies’, Freeman arrived at the following destination:

A federal government is most likely to be formed when the question arises whether several small states shall remain perfectly independent, or shall be consolidated into a single great state. A federal tie harmonizes the two contending principles by reconciling a certain amount of union with a certain amount of independence. A federal government then is a mean between the system of large states and the system of small states. But both the large states, the small states and the intermediate federal system, may assume a democratic, an aristocratic, or even a monarchic form of government.¹⁴

According to Freeman, federation was a mechanism of compromise between two opposing political forces under any of these three classes of government. It was an intermediate state that combined the advantages of the large state – peace, order and general well-being – with those of the small state – the full development and autonomy of the individual citizen.

Freeman concluded that a federal union was ‘the most finished and the most artificial production of political ingenuity’:

A Federal Union will form one state in relation to other powers, but many states as regards its internal administration. This complete division of sovereignty we look upon as essential to the absolute perfection of the Federal ideal.¹⁵

In summary, federation for Freeman was characterised by three essential qualities: it was artificial; it was based ultimately upon human reason; and it was entirely circumstantial. We will look again at these characteristics later in Chapter 3. Our short survey of the contribution of Edward Freeman to the analytical debate, then, suggests that his writings continue today to repay close attention. Being a huge and, for our purposes, the first major academic study of our subject, his History of Federal Government remains a veritable reservoir of historical analysis about the subtleties and complexities of contemporary federalism and federation. As we shall see the assumptions, values and beliefs of many of the subsequent contributors to the debate originated from this early work.

Following the English liberal tradition of political thought sustained by Mill and Freeman, it is important to include James Bryce in our conceptual and methodological review. Bryce was formerly Regius Professor of Civil Law at Oxford and an influential politician. As a Gladstonian Liberal who reached the lofty heights of cabinet government in the 1890s, he was already a well-respected scholar for his history of The Holy Roman Empire, first published in 1864. But his intellectual contribution to the Anglo-American literature on federalism was confirmed with the publication of his two superb volumes on The American Commonwealth in 1888.¹⁶ It might appear that Bryce literally followed in the footsteps of Tocqueville when he set out in the late 1880s to investigate the social and political life of the United States of America, but this was not so. Bryce attempted something quite different. He wanted to portray ‘the whole political system of the country in its practice as well as its theory’. Unlike Tocqueville, who had produced a general treatise on democracy rooted as much in French preconceptions as in the American experience, Bryce sought to avoid the ‘temptations of the deductive method’ and instead ‘to paint the institutions and people of Amer...

Table of contents

• Cover Page
• Half Title page
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgements
• Introduction The problem with studying federalism
• Part I Concept and meaning
• Part II Bases for comparative analysis
• Part III Lessons of experience
• Notes and references
• Bibliography
• Index