Dynamic Federalism

A New Theory for Cohesion and Regional Autonomy

Patricia Popelier

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000359220
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book offers a new theory of federalism.

The work critically discusses traditional federal theories and builds on theories that focus on the dynamics of federalism. It offers a definition of federalism and federal organizations that encompasses both new and old types of multi-tiered system. Unlike traditional federal theory, it is well-suited to research both multinational and mononational systems. It also takes into account the complexity of these systems, with bodies of governance at the local, regional, national, and supranational level. The book is divided into three parts: the first part outlines the contours of dynamic federalism, based on a critical overview of traditional federal theory; the second part develops comprehensive indexes to measure autonomy and cohesion of multi-tiered systems; and the third part focuses on the dynamics of federal organizations, with a special focus on institutional hubs for change.

Dynamic Federalism will be an essential resource for legal, social, economic, and political scholars interested in federalism, regionalism, and de/centralization.

Part I

Theoretical framework

1What is federalism? In search of building blocks for a new federal theory

Federalism is a perennially popular research topic amongst constitutional legal scholars and political scientists. Throughout the world, universities and research institutions have established their own centers of federalism studies, many of which are members of the International Association of Centers for Federal Studies (IACFS). Yet, there is no general understanding of what they are actually studying: what are federalism and federal systems, exactly?¹ Even Palermo and Kössler, in their seminal book on comparative federalism, leave the definition open. Not only do they find “no universal agreement on what federalism means” or any consensus “on how to classify federal countries”; they even claim that no such agreement can ever be reached,² and any attempt to define federalism is both impossible and futile.³ Kincaid is also of the opinion that the multiplicity of forms in which the federal concept is applied makes it “impossible for one definition to fit all cases exactly and for generalizations to be set forth without exceptions”.⁴

The question is: why should we care? If federalism studies can prosper even without a common agreement on what federalism or federations mean, why would we agonize over a proper definition? Why not simply set aside these discussions and take a pragmatic approach? In this chapter, I will argue that a pragmatic approach is insufficient, and explain why a proper definition matters (section 1.1). I will then turn to traditional definitions of federalism and point out their weaknesses, in order to better establish what a renewed theory needs to offer (section 1.2). These definitions then lead us to the distinction between federalism and federations. The notion of ‘federalism’ as a principle, pointing to the value of ‘federalism’ is further explored (section 1.3), because it gives us insights into the core or the essence of federal systems. By analyzing old federal theories, this chapter provides us with the building blocks for a renewed theory of ‘dynamic’ federalism that is set out in Chapter 2. These building blocks are summarized in section 1.4.

• 1 Anna Gamper, ‘A “Global Theory of Federalism”? The Nature and Challenges of a Federal State’, (2005) 6 German Law Journal 1297.
• 2 Francesco Palermo and Karl Kössler, Comparative Federalism: Constitutional Arrangements and Case Law (Hart, 2017) 2–3.
• 3 Ibid 38.
• 4 John Kincaid, ‘Editor's Introduction: Federalism as a Mode of Governance’, in J. Kincaid (ed), Federalism (Sage 2011, Volume 1) xxi.

1.1 The importance of defining federations

1.1.1 Why a pragmatic approach to the definition of federal systems is insufficient

Palermo and Kössler argue for a pragmatic approach as a coping strategy to avoid difficult definitions. They distinguish two forms of pragmatism, which we can describe as an intuitive method and a generalizing method. A third can be added: the method of self-definition.

Palermo and Kössler compare the most minimal form of pragmatism with Justice Potter Stewart's approach to the definition of obscenity: “I know it when I see it”.⁵ So, do we know it when we see a federal system? Apparently not. Different eyes see different things. Some argue that Spain is a federal system,⁶ others insist that it is not.⁷ In the end, the intuitive method conceals an implicit definition that may differ depending on who's talking.

Under the method of self-definition, it is left to the constitutional system itself to decide whether it is federal or not. For Elazar, this is the first test to qualify states as federal: “the desire or will to be federal on the part of the polity involved”.⁸ Several constitutions include a structure clause, which lists the basic elements that define the state. Constitutions that pronounce the federal structure as a basic trait of the system can be found, amongst others, in Austria, Belgium, Brazil, Ethiopia, Germany, Iraq, Mexico, Nigeria, Pakistan, and Russia. In other cases, the ‘basic structure’ is not made explicit in the constitution itself, but is recognized by the supreme or constitutional court. For example, federalism is read into the Canadian Constitution as a basic principle,⁹ to guide the interpretation of constitutional provisions and to fill in gaps.¹⁰ The Indian Supreme Court reads the constitutional term ‘Union of States’¹¹ as a synonym of a federation and includes ‘federalism’ as an unamendable component of the system's basic structure.¹²

• 5 Palermo and Kössler (n 2) 3.
• 6 Gemma Sala, ‘Federalism without Adjectives in Spain’, (2013) 44 Publius: The Journal of Federalism 109–134.
• 7 Ferran Requejo, Multinational Federalism and Value Pluralism (Routledge 2005) 82.
• 8 Daniel J. Elazar, Exploring Federalism (University of Alabama Press, 1987 – ed. 1991) 42.
• 9 Tsvi Kahana, ‘Canada’, in Dawn Oliver and Carlo Fusaro (eds), How Constitutions Change. A Comparative Study (Oxford, Hart 2011) 12–13, 37.
• 10 Eugénie Brouillet, ‘The Supreme Court of Canada: The Concept of Cooperative Federalism and its Effect on the Balance of Power’, in Nicholas Aroney and John Kincaid (eds), Courts in Federal Countries: Federalists or Regionalists? (University of Toronto Press 2017)151. The Canadian Constitutional Act 1867 itself does not explicitly define its structure, although the Preamble underlines the desire of the Provinces to be ‘federally united’.
• 11 Section 1(1) Indian Constitution.

Self-definition, then, seems to be an easy solution, but ultimately comes up against the same difficulties it tries to avoid. Switzerland is not even the most complex example. The Constitution refers to the Swiss ‘confederation’,¹³ but there is a general agreement that the historical title was kept for pragmatic reasons¹⁴ and that Switzerland is in fact a federal system. The US Constitution also does not use the word ‘federal’, but nonetheless, the United States is commonly regarded as a federal system, if not the prototype of modern federalism.¹⁵ In other cases, it is more difficult to decide how a state defines itself. For example, the Constitution of Bosnia and Herzegovina only mentions that it “shall consist of the two Entities, the Federation of Bosnia and Herzegovina and the Republika Srpska”,¹⁶ but it is not clear whether this is intended as a federal or a confederal set-up. To determine this, there may be discussions about whether a federation can actually consist of another federation. On one hand, can a constitution that leaves so few powers to the central level still be considered a federation? On the other hand, can a system that does not consist of independent states be considered a confederation? Even when a constitution defines a state as a federation, disputes may arise about the real nature of the state's structure. In some cases, federalism is a part of constitutional self-definition, but considered in practice to be a ‘paper principle’.¹⁷ Without actually having in mind some idea of what a federation means, how do we distinguish between ‘real’ federations and those that are only federal on paper? Further, if we do not make any distinction, what can we learn from research on a topic that treats both highly centralized and highly decentralized systems in the same way? How comparable are ‘unitary federations’ – for example systems that call themselves federal but at the same time emphasize their unity and indivisibility¹⁸ – to federations such as Belgium, which is said to have ‘confederal traits’? If these systems are comparable, why include highly centralized systems such as Mexico and Malaysia but not highly decentralized systems such as Spain; simply because the one calls itself a federation and the other does not? And another argument: in Belgium, a highly topical debate has arisen on the definition of a federal and a confederal system, with the leading Flemish party Nieuw-Vlaamse Alliantie (N-VA) striving for a confederation but maintaining that this does not by definition imply separatism. How useful is a theory if, by clinging to the systems’ own self-definition, the theory is not able to guide political discussions on the system's future?

• 12 Mahendra Pal Singh, ‘India’, in Oliver and Fusaro (n 9) 183. See also Palermo and Kössler (n 2) 41.
• 13 Art. 1, 3 and 5a Swiss Constitution.
• 14 Thomas Fleiner, ‘Constitutional Revision: The Case of Switzerland’, in Xenophon Contiades (ed), Engineering Constitutional Change, (London, Routledge 2013) 337. See also Giovanni Biaggini, ‘Switzerland’, in Oliver and Fusaro (n 9) 305.
• 15 Kenneth C. Wheare, Federal Government (Oxford University Press 1953) 1.
• 16 Art. 3 Constitution of Bosnia and Herzegovina.
• 17 Palermo and Kössler (n 2) 6.
• 18 See for example Art. 2 Mexican Constitution, Art. 2 (1) Nigerian Constitution, Art.1 Iraqi Constitution.

Similar questions arise from what Palermo and Kössler call the more “sophisticated form” of pragmatism,¹⁹ which encapsulates a very broad working definition – a method often also used by many other ...