Federal systems characteristically seek to establish constitutional structures reconciling self-rule and shared rule (Elazar, 5). Given the avowed objective of such systems to protect and promote self-rule, federalism inevitably relates to autonomy and its beneficiaries. Yet, there are limits to an approach linking federalism and autonomy:
Some common trends are discernible despite these variations. One is the centrality of the constitution and consequently the critical importance of constitutional justice, with the increasingly important role of judicial review in developing federalism, and its impact on shared rule, self-rule or other forms of autonomy. Nonetheless, Swiss federalism functions effectively without having any system of constitutional judicial review of federal laws; an exception that highlights the importance of developing a truly federal culture in the daily working of the federation, in which judicial review of federal laws is seen as an instrument of unification at the federal level.
A second trend concerns the political uses of federalism, which has become an important nation-building tool in divided or post-conflict societies, particularly those where ethnicity played a significant role in triggering divisions and fuelling conflict. Yet, federalism is not a ‘magic tool’ for fragmented societies, as constitutional and political factors in each case tend to change its function. Appropriate distinctions therefore must be made between monistic federalism, inhospitable to claims for political recognition of ethnic, religious and linguistic group identities (United States, Australia), and pluralist federalism, embracing constitutive principles and institutions more prone to accommodate sub-state ethnic, religious or linguistic identities (Canada, Switzerland and Belgium).
The interplay between federalism and autonomy will be examined by mapping various approaches to federalism, its underlying values and the potential tensions that might erupt between the latter (see Section 12.2). Various types of federal and quasi-federal arrangements will then be described (see Section 12.3). The chapter will next focus on shared rule and constitutional limits to autonomy (see Section 12.4), closing with a look at self-rule and constitutional guarantees of autonomy (see Section 12.5). Throughout, the focus is on federations at the national level.
The self-rule/shared-rule distinction should not evoke polar opposites, but instead be understood as describing a continuum. Federations are often shaped through sinuous dynamics of aggregation (centralization) and disaggregation (decentralization). Moreover, political autonomy within a broader polity can be fostered in many ways, the creation of a federation being only one possibility. An illustration is the federalizing regionalism that has recently characterized the constitutional evolution of Italy and Spain, or the Scottish devolution within the United Kingdom.
This self-rule/shared-rule distinction serves additionally as a springboard for normative judgments about the successes and failures of particular federations, pointing to the values typically claimed by federalism. Examining the most important values sheds light on the central role of autonomy when reflecting upon federalism. Because these values sometimes clash with one another, the federal nature of a polity cannot alone explain all positive or negative outcomes; they are inevitably influenced by other variables such as the party system, the depth of identity pluralism within society, the urban–rural ratio, the level of economic disparities, or the degree of concentration of economic power. Contingency characterizes the relation that federalism entertains with the values it allegedly fosters.
A federal structure is particularly appropriate for addressing a polity’s social, ethnic and cultural diversity, even though these vectors of diversity can also be grasped by other political means, such as administrative decentralization. Consequently, federalism is not an end in itself, but rather a political response to the fact of diversity.
The nature of internal diversity and, most importantly, its political salience obviously influences the structure of a given state. The presence of political minorities, whose primary locus of identification is a sub-state entity rather than the global polity, and for whom belonging to the latter is conditional upon the respect by the polity of their primary identification, risks making a significant difference in the ultimate configuration of that state, as opposed to the mere presence of social minorities, who are in a legitimate position to advance an equality claim but whose form of belonging to the broader polity is not conditional (Lajoie, 34, 45).
All forms of federalism cannot accommodate such a deep level of diversity, but pluralist federalism seeks to do it. To sustain the viability of nation-building in multicultural and, a fortiori, multinational societies, such a polity embraces principles and establishes institutions designed to acknowledge the particular configuration of its demos and to accommodate sub-state ethnic, religious or linguistic identities (Requejo).
Among multinational or multicultural federations, differences abound as to how diversity is constitutionally recognized. One example is the manner in which Canada and Belgium deal with minority language education. Canada envisages the right to be educated in one’s language as a personal right, exercisable if a sufficient number of speakers justify the funding of public schools in the official minority language (French or English); Belgium privileges the territoriality principle in linguistic policy. Another illustration is Indian federalism’s embrace of diversity, while most Euro-American models of federalism seem rather inclined to tame it, even when they give it a say, for example through the enshrinement of minority rights—a structure that somehow presupposes a majoritarian cultural background.
Federalism, diversity and self-government are intertwined to a significant extent. Federalism allows federated units a regulatory space precisely as regards their particular circumstances. From that perspective, the idea of a perfectly symmetrical federalism (in law, conventions and practices) is arguably an illusion. Yet, federalism also rejects the artificial amplification of differences so common in identity politics, which brings up its potential role as a peace-making tool.
Enlightenment thinkers had already debated the normative potential of international federalism to promote peace in Europe (Kant). Their concern is still valid today, as federalism is often associated with peace, in spite of not always being conducive to it. The internal conflicts plaguing some federations have sometimes led to civil wars, such as those that erupted in the United States in the nineteenth century or in Yugoslavia more than a century later. Undoubtedly, a federation undermined by the lack of any foundational consensus can lead to social unrest if it does not otherwise find means to foster the loyalty of all segments of society. This does not mean, however, that federalism, under certain conditions, cannot help bridge longstanding antagonisms. These conditions are context-related and must first and foremost guarantee that belonging to the federation remains non-negotiable on a day-to-day basis across community lines. All three ex-communist federations dissolved precisely because no federal democratic consensus was at hand.
Federalism’s relation to democracy is ambiguous. On a positive note, the presence of federated units arguably closer to citizens than a remote central government might provide them with an enhanced opportunity to be involved in the self-government of their community. There might be some truth to that, but one can imagine a similar outcome in other forms of decentralized regimes. Still, federalism might promote such opportunities more regularly than unitary regimes.
On the other hand, federalism is accused of undermining democracy when it frustrates majority rule as a result of the division of the ‘national’ polity into constitutionally protected smaller segments. On certain issues falling under the sub-state units’ jurisdiction, local majorities may end up defeating national ones. Nonetheless, a federal polity is not an abstract polity. It is a polity that, for diverse reasons, has been politically designed and legally constituted as federal, which by definition implies some degree of political fragmentation. Reducing democracy to majority rule therefore enshrines a normative bias against federalism. Moreover, it ignores that federalism is about political group accommodation, implying that majority alone does not express the will of the sovereign, and that the very identity of the sovereign, or of its modes of expression, is plural and highly debatable.
A more complex definition of democracy is needed in order to better grasp the relation between this concept and federalism. Human rights and the principle of the rule of law may provide further layers of complexity by supplementing the traditional majoritarian narrative of democracy. One can legitimately wonder what to make of notions of equal citizenship and human rights in a federal context, where the actual exercise of self-rule by federated units in their spheres of competence may lead to disparities in the treatment of citizens. The bare reality is that federalism, like multiculturalism or multinationalism, puts into question and aims at redefining absolute political equality as political liberty (Basta Fleiner 2011, 226). How to understand, then, differential treatments imposed upon the citizens of a federation depending on the federated unit in which they reside? If the differential treatment at stake affects the enjoyment and/or exercise of human rights, the problem becomes even more complicated given that federated units have a constitutional right to see their normative autonomy respected, provided they remain within their competences. Quebec’s laws restrict the use of languages other than French in commercial advertising and force immigrants to send their children to French schools, to perpetuate the French fact in a country and on a continent where English rules. In Switzerland, the territoriality policy envisages collective language rights, allowing, for example, for the prohibition of private German schools in the French-speaking district of the bilingual canton of Bern. The solution echoes in this case the priority of inter-communal peace over individual freedoms. More importantly, it testifies to a different nature of the relation between democracy and federalism. The availability of the referendum and initiative transformed an abstract principle of people’s sovereignty into participatory democracy. This original Swiss contribution to the modern democracies of the nineteenth century has a two-fold function: (1) promoting democratic integration, by maintaining and promoting communal and cantonal loyalty in light of linguistic and religious diversities; (2) making direct democracy a systemic element of checks and balances. By ‘federalizing’ participatory democracy federalism also plays the key competitive role in the Swiss political arena.
The tension between the asymmetries brought about by federalism on the one hand, and human rights on the other, paradoxically provides an argument in favour of federalism, tying it to the constitutionalist democratic ideal of the separation of state powers. This argument, which was first articulated in the United States, values federalism because it has the potential to increase the individual freedom of citizens by establishing structures that spread rather than concentrate power. If one level of government abuses its powers, the citizens may seek protection, or at least some form of counter-intervention, in the other level of government. A similar idea may be formulated horizontally: If a federated unit commits abuses while exercising its autonomous powers, its citizens—after having voiced their discontent to no avail— may move to other units in search of greener pastures. Here again, an element of contingency must be included. This ‘checks-and-balances’ argument presupposes that each level of government is meaningfully autonomous and therefore not subordinated to the other, that both levels of government respect the rule of law, and that the judiciary is independent from these governments. No constitutionally established division of powers ever prevented abuses in non-democratic ‘federations’.
It is often said that federalism’s constitutional recognition of several self-governing federated units, and the diversity of policies they elaborate, may transform them into laboratories for innovation. This presupposes that they enjoy a meaningful legal and financial autonomy, without which it is difficult, if not outright impossible, to go off beaten paths.
Whether federalism actively seeks to integrate sources of cultural diversity within a broader polity, thus downplaying them, or is instead open to accommodating and promoting them, remains anchored in the logic that underpins the type of federalism in question.
Monistic federalism is intrinsically suspicious of ethnic, religious and linguistic identities, tending to be hostile to their political and legal recognition, as the United States’ ‘melting pot’ doctrine shows. Alternatively, a monistic federalism based upon a cultural nation-concept may privilege the identity of the federation’s cultural majority, understood as its ‘constitutive’ ethno-nation (e.g. the contested German national concept of Blutgemeinschaft’ [community of blood] or ‘Schicksalsgemeinschaft’ [community of fate]).
In contrast, pluralist federalism recognizes as the ultimate locus of political sovereignty a ‘composed’ nation formed by distinct and politically salient linguistic, ethnic and religious communities (Choudhry, 171). Its sub-types—multicultural/multinational and ethnic federalism—differ in terms of the scope and focus of the strategies privileged for accommodating diversity, the constitutional status of self-determination rights, and the role territory plays in identity politics. Switzerland, India, and Canada can arguably be characterized as multicultural or multinational federations, whereas Ethiopia and ex-communist federations enshrine under one form or another an ethnic-federalism model.
The choice between integration and accommodation of diversity directly leads to key constitutive differences between the two types of federalism. Whereas the United States paradigmatically represents a democratic federation and federal polity in which federalism serves as an anti-majoritarian check of governmental powers, Switzerland’s federalised participatory democracy (initiative and referendum) is an answer to the dilemma about the reconciliation of divergent majority and minority interests. Such a regime protects multiple loyalties by giving collective rights to historical sub-state communities. Being a constitutive element of the sovereign people’s will, these rights therefore limit governmental powers (Basta Fleiner 1996, 60–65).
Given such constitutive particularities, pluralist/multinational federations tend to entail the following complementary institutional arrangements: significant constitutionally guaranteed autonomy for federated units, and consociational decision-making rules at the federal level. The more multinational they are, the greater the probability that pluralist federations embrace the concept of divided sovereignty or sovereign powers (McGarry, O’Leary & Simeon, 64), although of course there are exceptions to this generalization. Federalism in multinational federations actually replaces sovereignty with a ‘diffusion of sovereign power’, which is best reflected by the fact that internal sovereignty is divided, with sovereign powers vested in both the federation and federated units.
There can be no federation properly understood if the federal constitutional design is not built upon a federal polity. Consequently, communist multinational federations reflected a type of ‘façade federalism’ (Friedrich 1968). On the other hand, while not formally constituted as a federation, South Africa is characterized by a system of federal governance. As the majority of the country’s black population associated federalism with apartheid politics, it was deemed politically inappropriate to designate the new regime as a federation. The system was given strong unitary features, while federal elements—such as a separated list of competences, shared rule and a supremacy clause—were left to the interpretation of the courts. This led to a much-criticized ‘judicialization of federal claims’ (Basta Fleiner 2008, 80). Yet, regardless of South Africa’s ‘unofficial status as a federal country’, its constitution establishes a federal framework because of the way ‘power has been dispersed between three spheres of government (national, provincial and local) and for its explicit articulation of a principle of cooperative government’ (Steytler, 312–13). A federal-governance dynamic without a federal constitution, strictly speaking, epitomizes the distinction between ‘federal governments’ and ‘federal constitutions’ (Wheare, 15–20).
Constitutionally, Italy is a ‘state of regions’ and Spain a ‘state of autonomous communities’. In Spain, the 1978 Constitution laid down an open-ended model of a federalizing territorial organization with ‘differential status’ for ‘historical nationalities’ (Aja; Moreno, 291). Italy first introduced a de facto federal system by means of ordinary legislation. The constitutionalization of federal principles followed in the form of three constitutional laws, passed between 1999 and 2001. The new system ‘considerably limits the legislative and administrative powers of the national level, abolishes State control over regional legislation and puts the presumption for general regional legislative competence in the constitution’ (Palermo, 113). Spain and Italy are neither decentralized unitary states nor federations, but both have embraced, albeit differently, solutions reminiscent of federalism. Notably, both states have allowed regionalism to permanently inform their development, and have recognized the legitimacy of asymmetrical statuses for their regions (Italy) or autonomous communities (Spain). In both cases, their institutional features reveal a federal telos of accommodating cultural diversities on a territorial basis, and specific procedures enabling regions to co-determine their status with central authorities. This last feature has effectively made Italian and Spanish regions de facto partners with central authorities when deciding on matters concerning them, but not other types of matters. It distinguishes their status from that of Northern Ireland and Scotland in the United Kingdom, where, due to the resilience of Parliament’s absolute sovereignty, the current system of asymmetric devolution does not envisage the participation of devolved units as such in the central government, even on matters that concern them alone. An important aspect of the devolution settlement is the Sewel Convention, which ensures that Westminster will normally legislate on devolved matters only with the express agreement of the Scottish Parliament, after proper consideration and scrutiny of the proposal in question. In a similar vein, even though their status is arguably closer to that of federated units, Italian and Spanish regions are no more constituent units of the central state than are Northern Ireland or Scotland, as they do not participate in the constitution-making power.
Whether a modern federation belongs to the common-law or the civil-law tradition is critical in order to properly understand the underlying principles of that federation, as well as the institutional factors affecting its functioning dynamics. The main difference lies in fundamentally different perspectives on the nature and role of the state and, accordingly, its relation to law. In civil law countries, the resilience of Bodin’s absolutist theory of sovereignty, which posits that the sovereign is the ultimate source of law, renders difficult conceiving the de jure and de facto division of sovereignty that characterizes federalism (Beaud, 58–65; Fleiner & Basta Fleiner, 311–12).
Conversely, common law jurisdictions, tending to adhere to the idea that the sovereign is bound by the fundamental law rather than being its ultimate source, are less reluctant to accept such a division of sovereignty. The acceptance of the principle of divided sovereignty in common law systems has even affected the internal working of the state, by influencing the institutional design and role that courts play. The fact that courts are viewed as law-making bodies empowered to review governmental action ex post facto in concrete disputes made possible an arguably broader judicial review of laws and executive acts on federalism grounds in common law federations than in civil law federations. Predictably, courts have often significantly influenced the shape of federalism in the former, the US Supreme Court being a pioneer in this respect, with its key role in the development of US federal principles, notably the allocation of powers (McCulloch v Maryland, 1819). On the contrary, notwithstanding the existence of a constitutional complaint procedure, judicial review on federalism groups occupies a narrower scope in civil law federations (Austria or Germany, among others), where special constitutional courts are responsible for reviewing the constitutionality and legality of legal acts, ex ante and abstractly.
Last, the division between constitutional law and politics is not exactly the same in common law and civil law federations. For the purpose of laying down the rules governing federalism, the latter tend to privilege formal, often detailed, legal frameworks over less specific frameworks more tolerant of political arrangements or expedients, as is the case in several common law federations (Poirier 2001, 8).
The key constitutional mechanisms for shared rule provided by federal constitution are: (1) representation of constitutional units in federal bodies, most importantly the second chamber; (2) distributions of powers among government levels, including which powers are to be exclusive and which are to be explicitly or implicitly concurrent; (3) allocation of residual powers; (4) institutions or mechanisms to resolve conflicts between orders of government, especially those over the distribution of powers; (5) the supremacy of federal laws enacted within the national government’s sphere of constitutional authority; (6) an independent judiciary umpiring or policing the division of powers between orders of government. The aim of all these mechanisms is to guarantee the the representation of the federation’s diversity within federal institutions, this in view of achieving a proper balance between unity and diversity.
Like decentralized unitary states, federations have to arbitrate centripetal and centrifugal forces. Competing claims over primarily federal legislative powers characterize all federations, the only difference lying in the type and level of conflicts. Some federations are more successful than others in managing them. The Swiss directorial system better mediates such conflicts when compared with the US presidential system or the German parliamentary regime. The key conflict-management rules and principles in the constitutional politics of all federations are generally found in their division of powers. Nonetheless, concurrent powers tend to enhance the potential for conflicts. The German ‘framework legislation’ on the uniformity of living conditions has long been targeted as one of the main constitutional avenues for federal intrusions into affairs of the Länder (interlocked systems, Politikverflechtung). A constitutional revision in 1994 reduced the veto rights of the Bundesrat, which had covered over 60 percent of federal legislation. Since 1994, the federation can pre-empt Länder only if the general interest of equivalent living conditions demands so, or in order to secure the legal and economic secutiry of the country (Gunlicks). Some constitutions expressly provide mechanisms for resolving conflicts. The Indian Constitution provides, ‘If any provision of a law made by the Legislature of a State is repugnant to […] any provision of an existing law with respect to one of the matters enumerated in the Concurrent List […] the law made by Parliament […] shall prevail’ (Art. 254.1).
The Russian Constitution allows the President of the Federation to use dispute-settlement procedures to settle conflicts between the recognized federated units of the Russian Federation. Other federal constitutions leave this question to the judiciary (United States, Canada).
In a nutshell, concurrent powers have served more to limit autonomy by making federation stronger than to sustain autonomy through shared rule. A judicially developed common law is generally more flexible when establishing shared rule, and more adaptable to changing trends in majority/minority contestations, especially when concurrency is understood to deal with the level of government rather than division of powers. Australia is the only federation with legislative inter-delegation within uniform legislation. (…) In Canada, only administrative inter-delegation and legislation ‘by reference’ (i.e. legislation relying on concepts defined in laws validly enacted by another level of government) are allowed.
Given varieties in legal status and closeness to politics, intergovernmental relations are also critical for the effective application of conflict-management rules or principles in a federation.
Courts are pivotal in arbitrating centripetal and centrifugal pressures; even more so when a federal constitution is devoid of fomal conflict-management institutions, but contains constitutional principles guiding courts in solving, according to legal criteria, political conflicts over the interpretation of the constitutional allocation of powers between the federal government and federated units. The most widespread principle is expressed in federal supremacy clauses, whose origins can be traced back to the world’s first modern federation, the United States.
Important conflict-management rules and principles are not always constitutionally enshrined but developed instead by constitutional courts. Whereas the Swiss Constitution provides that ‘the Confederation shall only undertake tasks that the Cantons are unable to perform or which require uniform regulation by the Confederation’, in Germany, the principle of subsidiarity has been developed in the rulings of the Federal Constitutional Court. The sometimes weak conception of subsidiarity promoted by courts of law is supplemented by the somewhat more robust understanding it receives in the political realm, which often emphasizes the federated units’ autonomy.
The principle of loyalty may limit the autonomy either of the federated units or of the federal order. The weaker level is federal comity, formulated by full faith and credit clauses (Art. IV.1 of the US Constitution: ‘Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state’). A stronger conception of loyalty, known as loyalty proper (Bundestreue) or conviviality, has been embraced by younger federations (Germany, Belgium, post-1999 Switzerland, and South Africa, in which federal loyalty is most comprehensively enshrined). Although strictly speaking not federations, Italy and Spain, with their highly federalized structure and political dynamics, have also elevated federal loyalty to a constitutional principle. Notably, this principle always operates reciprocally, and can have vertical and horizontal dimensions. Federal loyalty proper as a constitutional principle was in fact invented under the first Constitution of the German Empire but the 1949 Fundamental Law contains no such provision. In Germany and Austria, the principle of federal loyalty became inherently linked to federalism by these countries’ constitutional courts. In both cases, federal loyalty was applied when ruling on the distribution of constitutional powers and deciding how such powers are actually to be exercised by their legal holders (Gamper 2010, 163–65). Even when a federation’s constitutional tradition does not formally refer to the notion of loyalty, its logic can be detected in legal developments, especially in times of crisis. When ruling on the legality of a potential unilateral declaration of independence by the province of Quebec, the Supreme Court of Canada built on implicit constitutional principles (federalism, democracy, constitutionalism and the rule of law) and imposed a reciprocal duty to negotiate, should a clear majority in favour of independence be expressed, this in view of ensuring an orderly process protective of the rights and interests of all those affected by a secession (Reference re Secession of Quebec, 1998).
The dichotomy between and the practice of asymmetrical and symmetrical federalism reveal the difficulty of implementing the notion of intergovernmental equality. Asymmetrical federalism presupposes the existence of variations in the legislative and administrative powers conferred on federated units or in the fiscal arrangements they have with their central government. Exceptionally, the possibility that asymmetries be created can also be explicitly recognized in a Bill of Rights and in a constitution’s amending procedure through opting-out rights, or, implicitly, through the incremental evolution of federal constitutions (Gaudreault-DesBiens, 238–47).
Asymmetrical federalism gives more autonomy to some federated units than others, creating formal inequalities among such units. Such formal inequalities are sometimes constitutionally enshrined so as to enhance the substantive equality of particular federated units, for example when they overlap with a minority within the federation.
The Russian and Belgian federations provide interesting illustrations of asymmetrical arrangements. Russia currently represents the most asymmetrical federation, with 83 ‘subjects of federation’, divided into five categories, according to the level of constitutionally guaranteed autonomy and participation in decision-making at federal level that is granted to them. The situs of federal asymmetries in Russia is territorial. The situation is different in Belgium, where a mixed form of asymmetry has been constitutionally recognized since 1993, notably through the recognition of jurisdictional differences between the three territorial regions and the three non-territorial communities.
Another important distinction is between de jure and de facto asymmetrical federalism. Conventions or political practices may lead to the creation of asymmetries with no legal formal basis, but which may reinforce the political legitimacy of the federation among all of its federated units. Particularly important as regards multinational federations is the issue as to whether asymmetrical federalism has stabilizing or destabilizing effects, the latter being the case with India.
Nonetheless, the conceptual relevance and usefulness of the symmetry/asymmetry dichotomy remains limited; a certain level of asymmetry is arguably an intrinsic consequence of any federal arrangement. Its centrality is obvious in states where the constitutional dynamics can be associated with pluralist federalism. It is the case in Spain or in Italy, as well as in the United Kingdom, where asymmetrical arrangements, whether constitutionally enshrined as in Spain or Italy, or provided for by Acts of Parliament as in the UK, give tangible meaning to regionalism. Beyond states enshrining one form or another of pluralist federalism, political asymmetry is unavoidable among the federated units of most federations, due to demographic, economic or cultural differences. Once such disparities, particularly economic ones, detrimentally affect one territorially concentrated ethnic community, serious tensions and instability can arise (in Switzerland, the internal secession of the northern French-speaking part of Jura from the canton of Bern).
Asymmetry can be further enhanced with ‘soft-law’ or purely political mechanisms of intergovernmental relations. In Canada, thanks to political agreements between the federal government and the province of Quebec, this province now plays a much more important role than other provinces in the management of immigration, and is significantly more active than its counterparts on the international scene.
Last, a particular design of symmetrical division of powers may nevertheless facilitate the creation of asymmetries. Although all Canadian provinces enjoy the same jurisdiction over ‘property and civil rights’ (a head of power that encompasses most private law subjects), only the province of Quebec has used it to select civil law rather than common law as its jus commune. The normative space created by symmetrical divisions of powers may therefore help sustain or even deepen the distinctiveness of some federated units (Gaudreault-DesBiens 2012, 232).
Interpersonal equality in federal structures primarily addresses equality in minimal living standards for all citizens of a country, notwithstanding socio-economic disparities among federated units, including welfare services. Typically, fiscal equalization systems, based upon the redistributive-justice principle, seek to implement this type of equality.
Except for the US Senate, where all states are equally represented regardless of population, the American federalist model affirms an absolute equality of civil and political rights. It is therefore hostile to collective rights and presents itself as the antithesis of pluralist federalism. In contrast, the Indian discourse of human rights heavily emphasizes the importance of negotiating the values of citizenship through the affirmation of differential rights in a plural and unequal society. Constitutional and statutory provisions for affirmative action in favour of disadvantaged groups became ‘an arena of contestation between two constitutional principles of equality and difference, […] calling for judicial intervention’ (Suresh, 134). The Swiss model of pluralist federalism is based on collective rights as part of the citizenship principle. The territoriality principle in language rights policy allows the overruling of individual rights for the sake of protecting traditional linguistic patterns in the country. The equality of federated communities, as opposed to the equality of individuals, thus becomes the focus of the constitutional order. The Canadian situation lies somewhere in-between, recognizing two official linguistic communities and their individual members’ rights to have access to public schooling wherever they are, provided that they are in sufficient number. In this model, language rights are to be understood primarily as individual, but as such may only be exercised if a broader societal culture is protected (Kymlicka, 76–77) (see Chapter 30).
Typically, the notion of autonomy is central to theorizing about both the understanding and practical functioning of federalism. We shall look, first, at some structural and normative features that, in federations, serve as safeguards for protecting the autonomy of constitutionally recognized levels of governments, and, second, at various archetypal logics underlying the organization of autonomy.
A defining characteristic of a federation is a constitutionally entrenched division of powers, which is supreme and thus non-modifiable at the will of a single party. Within a federation, the constitutionally recognized levels of government must enjoy constitutional protection from changes imposed upon them, unless these changes are validly made according to the relevant amending procedure. In many federations, the assent of governments affected by such crucially important changes, or of a substantial majority of them, is mandatory. In Canada, the division of powers can only be amended with the assent of the federal Parliament and of seven provinces (out of 10) representing at least 50 percent of the population of all the provinces. Moreover, provinces disagreeing with an amendment modifying their legislative powers in the manner set forth above may ‘opt out’ of this amendment by expressing their dissent. In Switzerland, constitutional revision must be accepted by the majority of both people and cantons.
A division of powers materializes the idea that each level of government, being a legal order distinct and autonomous from the others, is immune to actions that would alter its constitutional status and prerogatives within the federation. Once created, the central government cannot be considered as a mere ‘creature’ of the federated units. Conversely, once created or recognized by the constitution, the federated units’ existence and autonomous powers are equally guaranteed. In several federations, various interpretive theories have stemmed from such constitutional enshrinement of competences, for example the theory of sovereign powers. Essentially, they all boil down to a non-subordination principle, subject to the paramount application of federal laws in case of conflict. The division of powers therefore guarantees a relative normative and political autonomy of a federation’s constitutionally recognized levels of government.
Within the parameters set forth by the federal constitution, the central government and the federated units enjoy some level of organizational and institutional autonomy: as a matter of principle, they are free to adopt or modify their internal constitution and to organize the functioning of government, encompassing the structure and interplay of legislative, executive and judicial powers. Many federal constitutions ensure that all levels of government enjoy revenue-raising powers, be they exclusive or concurrent, thereby protecting to some extent their financial and fiscal autonomy. Some even regulate financial transfers from one level, often the central government, to another, most likely the federated units, in order to stabilize and equalize the revenues of the recipient governments, thus further contributing to their financial autonomy.
Supplementing the division of powers are conflict rules or principles, broadly understood, whose aim is to ensure that there cannot be any jurisdictional vacuum or legal incoherence arising out of the division of powers. Among those rules is the allocation of residuary powers to a particular level of government. These powers are most often attributed to federated units, especially when the division of powers does not enumerate the competences of such units. The United States, Switzerland, Germany and Malaysia, among others, embraced the former solution, while in fewer federations (Canada, India, Belgium) the central government possesses residuary powers. The principle of subsidiarity—explicitly recognized or not—also contributes to regulating power transfers between levels of government, with a view to avoiding arbitrary power grabs. Moreover, federal constitutional frameworks deal with the inter-delegation of legislative powers, with some allowing it (Australia) and some prohibiting it (Canada). Another way of increasing the efficiency and predictability of division of powers is the use of the primacy principle. Most often, it is federal laws that prevail in cases of conflict, irrespective of the ‘cooperative’ or ‘competitive’ nature of federalism in question.
This distinction is not watertight, though, since some level of cooperation is arguably inevitable in any federation. Even when the federal constitution seemingly enshrines a type of federalism that is closer to the competitive model, political actors often circumvent such constitutional hurdles by resorting to intergovernmental agreements, the legal status of which varies depending on the federation. In many federations, this has led to a burgeoning practice of ‘peri-constitutionalism’. Still, the distinction between ‘cooperative’ or ‘competitive’ federalism remains relevant, displaying different patterns as to the space that constitutionally recognized levels of government actually enjoy when exercising their autonomy. A competitive federalism assumes that vertical and horizontal competition between governments better serves citizens by avoiding the creation of normative or economic monopolies; a cooperative federalism model establishes to institutions that seek to reduce inter-jurisdictional conflicts to a minimum. The former tends to maximize the autonomy of both levels of government while the latter has the effect of reducing it in view of achieving its conflict-reduction objective, sometimes at the risk of inducing a centralization dynamic, as was the case in Germany. Put differently, the former is more conducive to self-reliance—a value also to be fostered by federalism—while the latter builds instead on the value of solidarity. The emergence of neo-liberal state conceptions since the 1980s, economic globalization, as well as the recurring inefficiencies caused by the often interlocking nature of cooperative federalism, resulted in the expansion of the competitive federalism model in the past two decades. This dynamic comes with a price tag, however. In India, the rise of competitive federalism has increased economic disparities across the federation (Basta Fleiner 2008, 81–83).
The distinction between these two visions of federalism also reflects the various ways in which the federation’s internal division of sovereignty is shared and managed, for autonomy in a federation is always relative. Emphasis is purposely placed on internal sovereignty. Regarding external sovereignty, only the federation as a whole, represented by the central government, is fully sovereign. Consequently, federated units are not international legal subjects in the sense used in international law. Nevertheless, they are not entirely absent from the international scene, even though the legal framework governing their activities varies extensively depending on the federation involved. Belgium goes as far as constitutionally recognizing a limited and constrained jus tractatus to its federated units while others, like the United States, explicitly grant this power to the central government. Canada does not solve this question by formal constitutional means, and distinguishes between the international action of provinces as public actors and as private actors, allowing some leeway to provinces (essentially Quebec) when interacting with foreign governments and some international institutions.
Because the judiciary plays a crucial role in interpreting the division of powers in most federations, courts’ independence from the central government’s control needs to be built into their institutional design. This ensures that they will be impartial when they adjudicate disputes between a federation’s governments. This is especially true if the polity’s federal culture is weak.
The judiciary is not the only state institution arbitrating the interests of the central government and the federated units. In a number of federations, the federal parliament is also vested with such a responsibility, its second chamber’s (or upper house’s) primary function often being to defend, through different mechanisms, the interests of the federated units, or at least to voice their concerns. The archetypal example is Germany’s Bundesrat (Federal Council). However, this second chamber’s role is not universally shared, or carried out effectively: the American and Canadian senates provide eloquent counterexamples. Typical for old federations, the senate type of the federal house builds on the liberal model of equal representation. Federal units as constituencies are represented by an equal number of members in the chamber, directly elected in federal units as constituencies. Conversely, the council type of federal house is constituted by proportional representation of the governments of federal units. In Austria, the parliament of each Land elects its delegates to the Bundesrat. The representatives of each Land in the Federal Council reflect the proportion of the political parties as represented in the respective Land parliament. In Germany, the Bundesrat members are delegated by the respective state government, according to the votes a state has in the second chamber. Votes are allocated based on a principle that favours smaller states and aims at preventing domination by the most populous states.
The two different types of federal houses reflect different conceptions of federalism. The senate type of second chamber is asked to evaluate legislation under the criteria of common interests, taking into account the different interests of the different constituencies. In Germany and Austria, the states have to implement federal statutes. The states’ governments can evaluate to what extent federal legislation is in fact appropriate and to what extent they can guarantee implementation. In the nineteenth century, the second chamber was established in Switzerland with a focus on legislation rather than administration. The Council of States accordingly replicated the US Senate type, constituted as part of the legislature to represent the interest of the cantons.
Typically, the role of one house in legislation is limited, with the fully bicameral decision-making in Switzerland and the United States representing exception.
Two main models of organizing autonomy of the federated units exist. The autonomy of federated units can first be anchored in a territory. Several modern federations, such as Canada, Mexico, Germany and Nigeria, have adopted this model. Under a territorial regime, all people residing in the territory of a federated unit are deemed its members, irrespective of their other identities. This territorial paradigm assumes a relative homogeneity of the population of that federated unit, or, alternatively, downplays its heterogeneity. But the socio-demographic make-up of some federations does not easily lend itself to the application of that paradigm. In Russia, there are federal republics that have a minority as the ‘constitutive nation’ although ethnic Russians are a majority of the population. Some historically significant and politically salient groups, sharing a language, a religion or an ethnicity, may not be territorially concentrated. One way to accommodate constitutionally their claims for recognition is to structure their status of autonomy on the basis of the personality principle. The model generally implies setting up autonomous institutions controlled by these groups, which are given jurisdiction over some core issues such as family law, personal status or education. An important feature of this model, when materialized in a democratic context, lies in the individual’s self-identification with a particular community and the formal registration of that identification by the state. Moreover, the model often provides constitutional guarantees respecting representation of the recognized communities within federal institutions. Such ‘personal’ or ‘corporate’ federalism is best exemplified by the ‘millet system’ that was in force in the Ottoman Empire and that has strongly influenced Lebanon.
In practice, several federations have integrated the two models. Although primarily a territorial federation, Canada has incorporated elements of personal federalism through the recognition of particular rights to members of official language minorities (English or French) wherever they reside. Belgium systemically combines personal and territorial federalism, through both the territorial jurisdiction of the three communities (Flemish-speaking, French-speaking and German-speaking) and three regions (Flanders, Wallonia and Brussels-Capital), and the personal jurisdiction of the French-speaking and Flemish-speaking communities in the Brussels area (Deschouwer, 53).
If this cartography of the dynamic relation between federalism and autonomy has shown anything, it is not only that federalism cannot be conceptualized without reference to autonomy. The tangible implementation of autonomy within federations goes beyond constitutional norms and institutional design: it requires the presence of a federal culture that must be sustained and promoted by both institutional actors and civil society. Law, in this respect, is clearly an element of a society’s culture.
Aja, E (2003). El estado autonomico. Federalism y hechos diferenciales, 2a edicion (Madrid: Allianza Editorial).
Basta Fleiner, LR (2008). ‘Nation-Building and Diversity’, in Watts, R & Chattopadhyay, R (eds), Unity in Diversity, Volume 1 (New Delhi: Forum of Federations and Viva Books), 77 – 88.
—— (2011). ‘Nation Building: Favouring Multiculturalism through Federalism?’ in LIX Annals FLB– Belgrade Law Review 3: 224 – 240.
—— & Fleiner, T (eds) (1996). Federalism and Multiethnic States: the Case of Switzerland (Fribourg, Institut du Fédéralisme).
Beaud, O (2007). Théorie de la fédération (Paris: Presses Universitaires de France).
Choudhry, S (ed) (2008). Constitutional Design for Divided Societies. Integration or Accommodation? (Oxford: Oxford University Press).
Deschouwer, K (2005). ‘Kingdom of Belgium’, in Kincaid, J & Tarr, GA (eds), Constitutional Origins, Structure and Change in Federal Countries (Montreal & Kingston: McGill-Queen’s University Press), 48 – 75.
Elazar, D (1987). Exploring Federalism (Tuscaloosa & London: University of Alabama Press).
Gamper, A (2010). ‘On Loyalty and the (Federal Constitution)’, in www.cil-journal.com, Vol 4, No 2, 157 – 70.
Gaudreault-DesBiens, JF (2012). ‘Religious Identities: Testing the Limits of Canadian Federalism?’ in Appleby, G, Aroney, N & John, T (eds), The Future of Australian Federalism: Comparative and Interdisciplinary Perspectives (Cambridge: CUP), 228 – 49.
Gunlicks, AB (2005). German Federalism and Recent Reform Efforts in 6 German Law Journal. No. 10, http://www.germanlawjournal.com/pdfs/Vol06No10/PDF_Vol_06_No_10_1283-1296_SI_Articles_Gunlicks.pdf
Kymlicka, W (1995). Multicultural Citizenship (Oxford: Oxford University Press).
Lajoie, A (2002). Quand les minorités font la loi (Paris: Presses Universitaires de France).
McGarry, J, O’Leary, B & Simeon, R (2008). Integration or accommodation? The enduring debate in conflict regulation, in Choudhry, S (ed), Constitutional Design for Divided Societies: Integration or Accommodation? (Oxford: Oxford University Press), 41 – 88.
Moreno, L & Colino, C (eds) (2008). A Global Dialogue on Federalism, Volume 7: Diversity and Unity in Federal Countries (Montreal & Kingston: McGill-Queen’s University Press).
Palermo, F (2004). ‘Asymmetric, “quasi-federal” regionalism and the protection of minorities. The case of Italy’, in Tarr, A, Williams, RF & Marko, J (eds), Federalism, Subnational Constitutions and Minority Rights (United States: Praeger Publishers), 107 – 32.
Poirier, J (2001). The Functions of Intergovernmental Agreements: Post-Devolution Concordats in a Comparative Perspective (London: The Constitution Unit, School of Public Policy UCL), http://www.ucl.ac.uk/spp/publications/unit-publications/75.pdf
Reference re Secession of Quebec [1998] 2 S.C.R. 217.
Requejo, F (2003). Federalisme plurinacional I estat de les autonomies. Aspectes teòrics i aplicats (Barcelona: Proa).
Stepan, A (1999). ‘Federalism and democracy, Beyond the US Model’, in Journal of Democracy, 10. 4, 19 – 34, http://www.catedras.fsoc.uba.ar/deluca/Stepan.htm
Steytler, N (2005). ‘The Republic of South Africa’, in Kincaid, J & Tarr, GA (eds), Constitutional origins, structure and change in federal countries: Global dialogue on federalism, Vol 1 (Montreal & Kingston: McGill-Queen’s University Press), 311 – 46.
Suresh, K (2004). ‘Citizenship and Differential Rights of Minority Protection in India, Constitutional
Principles and Judicial Intervention’, in 2 Indian Journal of Federal Studies 134. Wheare, KC (1963). Federal Government, 4th edn (Oxford: Oxford University Press).
Fabbrini, S (2007). Compound Democracies (Oxford: Oxford University Press).
Fleiner, T (2011). ‘Constitutional Underpinnings of Federalism: Common Law vs. Civil Law’, in Courchene TJ, Allan, JR, Lauprecht, C & Verrelli, N (eds), The Federal Idea: Essays in Honour of Ronald L. Watts (Montreal & Kingston: McGill University Press).
—— & Basta Fleiner, LR (2009). Constitutional democracy in a Multicultural and Globalised World (Berlin Heidelberg: Springer Verlag).
Friedrich, CJ (1968). Trends of Federalism in Theory and Practice (New York: Praeger).
Funk, A (2010). Asymetrical Federalism: A Stabilizing or Destabilizing Factor in Multinational Federations http://www.ie-ei.eu/bibliotheque/memoires2010/Funk.pdf
Gamper, A (2005). ‘A Global Theory of Federalism’. The Nature and Challenges of a Federal State in 6 German Law Journal. No. 10 http://www.germanlawjournal.com/pdfs/Vol06No10/PDF_Vol_06_No_10_1297-1318_SI_Articles_Gamper.pdf
Gaudreault-DesBiens, JF (2010). ‘The State Management of Legal and Cultural Diversity in Canada’, in Foblets, MC, Gaudreault-DesBiens, JF & Dundes Renteln, A (eds), Cultural Diversity and Law. State Responses from Around the World (Brussels: Bruylant), 195 – 234.
Govinda Rao, M & Singh, N (2004). Asymmetric Federalism in India, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=537782
Kincaid, J (2005). ‘Comparative Observations’, in Kincaid, J & Tarr, GA (eds), Constitutional Origins, Structures and Changes in Federal Countries, Global Dialogue, Vol. 1 (Montreal & Kingston: McGill University Press), 409 – 48.
Poirier, J & Saunders, C (forthcoming). Intergovernmental Relations in Federal Countries (Montreal & Kingston: McGill-Queen’s University Press).
Saunders, C (2011). The Constitution of Australia. A Contextual Analysis (Oxford: Hart Publishing).
Watts, RL (2009). Comparing Federal Systems, 3rd edition (Montreal & Kingston: McGill Queen’s University Press).