First, Second, Third Class:

First, Class:

General Introduction

The subject matter of this course: Institutions of federal statesAnalyses and Concepts of federationsfragmented by diversities

Today 24 states consider themselves as fede-ral 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 and Congo), some unitary states have already important federal institutions such as Spain and Italy. In the European Union federalism is consi-dered by many scholars as the only institutio-nal tool to strengthen the Union and to deepen its democratic legitimacy.

Shared Rule Self RuleConstitution

Basic Elements of Federalism

Decon-centrationadministra-tive Decision OrderRevoca-tion

Decentrali-SationLegislationAutonomyResponsi-BilityFinance

FederationConstitu-TionConstitu-tion ma-kingLegitimacy

Confede-RationTreatyLegitimacyInternatio-nal court

FederalismUnitary state - Confederation

Decentralization

Institutions are the means through which federal government is deliveredConsider two categories:

Specifically federal institutionsInstitutions of democratic constitutional government

These categories are interdependentFederalism affects democratic institutions and the choice of democratic institutions affects federalism

Institutions

Second ClassIntroduction to

Comparative Federalism

Value of Comparative Federalism

How did others designinstitutions to deal with the particular needs of their societiesideas about institutional design for emerging federationsmodels for adoption and adaptationExemples: 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• Governmental System• 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 enforced

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 metThe operation of these institutions may be affected by the wider contextBoth logic and context need to be appre-ciated to understand another system (and to borrow from it)

Some Examples of Prototypes

United StatesPresidential

System2nd chamberCompetitiveFederalismGoal of FJudiciary

GermanyParliamentary

System2nd chamber

ExecutiveFederalismGoal of FJudiciary

SwitzerlandDirectorial

System2nd chamber

ExecutiveFederalismGoal of FJudiciary

Some examples of adaption

AustraliaAmerican

System withParliamentaryGovernment

And one Common Law

SwitzerlandAmerican

SenateFrench legal

SystemDirect

Democracy

EuropeanUnion

GermanSecond ChamberDirectorial

System

Constitutional PrinciplesOf Federalism

US Commerce ClausePrinciple of SubsidiaryResidual PowersIntergovernmental RelationsInterstate CompactTop DownBottom upOpting out

Common Law

Civil Law Federalism

The Basic differences of the two systems:

The Power of the CourtCivil law: The one who has right should win the caseCommon Law:The one who wins the case has right

Thus Division of powers with regard to theJudiciary within countries of common lawTradition is much more important Compared to legislative power

FederalismEmbedded within

Two different legal systems

Different Perception of the state, the nation and sovereigntyDifferent perception of the lawDifferent perception of the courtsDifferent perception of access to justice

Common Law:John LockeTo limit the power ofThe government

Civil Law:Thomas Hobbes:Absolute Power of the Leviathan:Constitution:Empower governmentAnd limit governmentalpowers

Constitutionalism

Constituting a State orConstituting a governmentLegitimacy of the state / or GovernmentRule of Law versus Rule of the Laws (legis-Lature)Federalism: Limit federal powerAccommodate Diversity

Federalism

Basic DifferencesHierarchy of NormsNapoleonic Public Law ConceptNotion of AuthorityPrerogative writs

Habeas CorpusMandamusWrit of CertiorariDue process / Natural JusticeThe continental legal system:

legislatureAdministrationAdministrative TribunalsAdministrative Acts

European Court on Human Rights

Legal SystemsUnitary or Parallel Legal SystemsIndependence of the JudiciaryLegal Dualism

• Nation Concept• Constitution Making of Local Units• Distribution of Powers

Conclusions