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7th Class: Main Institutional Concepts of Federal Systems of Governance

Prof. Thomas Fleiner*/ Prof. Dr. Lidija R. Basta Fleiner Theories and Praxis on Peace, Federalism, and Human Rights 2nd Week: PART II – PRAXIS: Federal Institutional Principles and Designs. Effects upon Peace within State. 7th Class: Main Institutional Concepts

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7th Class: Main Institutional Concepts of Federal Systems of Governance

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  1. Prof. Thomas Fleiner*/ Prof. Dr. Lidija R. Basta Fleiner Theories and Praxis on Peace, Federalism, and Human Rights 2nd Week: PART II – PRAXIS: Federal Institutional Principles and Designs. Effects upon Peace within State 7th Class: Main Institutional Concepts of Federal Systems of Governance Thomas Fleiner

  2. Basic Elements of Federalism Constitution Shared Rule Self Rule

  3. Pairs of values Famously, federalism balances and enables competing values to be secured: • Legitimacy and efficiency • Self-rule and shared rule • Unity and diversity • Uniformity and difference • Solidarity and self-reliance • Co-operation and competition • Complexity and Transparency One challenge in designing a federal system is to capture each of these in a suitable way

  4. 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 • Human Rights • Effective and accountable government • Solidarity: Mutual respect; a willingness to share power; appreciation of diversity

  5. Importance of institutions and Procedures • 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

  6. General observations: Balance ofShared Rule v. Self Rule • 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 • Now plenty of experience with this • But range of possibilities is not fixed • Increasing experimentation in recent years • Eg asymmetry, forms of co-operation

  7. Comparative FederalismLearning from Each Other • Comparative constitutionalism now a very hot topic • Relevant to: • Making a Constitution • Using a Constitution (in particular, interpretation by courts) • International Cooperation • Problems of Method • Particularly for institutional comparison?

  8. Variations between federations: Dilemma of Legitimacy v. Efficiency • Degrees of diversity • State of the pre-federal state(s) • Legal system • Legal philosophy • Doctrine • History and Cultural Tradition • Other? Religion / Language, Geography, Size

  9. 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 enforced

  10. 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

  11. 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

  12. 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?

  13. 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)

  14. 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

  15. 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? • NB techniques for conflict avoidance: Switzerland, • Some internal flexibility eg through co-operation

  16. Constitution Constituent Power Decentralization Centralization Legitimacy: Treaty, Agreement, Constitution…? How?: Procedure Step by Step International Community Inclusive Reconciliation Who? Exclusive Who decides? Units - Borders?

  17. Constitution Constituent Power Eternity Clause? Shared Rule Revision and Amendment Partial General Revision Referendum Federal Units Who? Parliament Special Council

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