Abstract
Since the end of the Cold War, federalism has been on the rise but it also continues to face setbacks. This chapter discusses federalism’s origin and the factors contributing to the continued interest. In the following eight sections, this chapter elaborates some of the general features that one observes among polities called federations. The key pillars of federations as distinct from other forms of organizing polities are discussed. Because every federation operates within a specific context, overemphasizing on those common characteristics does not explain why federations evolve in different ways. The real forces social, cleavages and political that necessitated the establishment of the federation matters most in understanding the dynamics of federal systems.
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Notes
- 1.
Harold Laski, ‘The Obsolesce of Federalism,’ in D. Karmis and W. Norman eds., Theories of Federalism: A Reader (Palgrave: New York, 2005).
- 2.
Will Kymlicka, Multicultural Odysseys (Oxford: Oxford University Press, 2007): 6.
- 3.
Nicholas Schmitt, ‘Swiss Confederation,’ in J. Kincaid and A. Tarr eds., Constitutional Origins, Structure, and Change in Federal Countries (Montreal, QC: McGill-Queen’s University Press, 2005).
- 4.
Alain-G Gagnon, ‘Multinational Federalism: Challenges, Short Comings and Promises,’ Regional and Federal Studies 31:1 (2021).
- 5.
Daniel Elazar, ‘From Statism to Federalism: A Paradigm Shift,’ Publius: The Journal of Federalism 25:2 (Spring 1995) at 15; Ronald Watts, Comparing Federal Systems, 3rd edn (Montreal and Kingston: McGill-Queen’s University Press, 2008).
- 6.
Daniel Elazar, Federalism and the Road to Peace (Kingston, Ontario: Institute of Intergovernmental Relations, Queen’s University, 1994): 21–25.
- 7.
William Riker, Federalism: Origin, Operation, Significance (Boston: Little Brown, 1964).
- 8.
T. Pettersson, and P. Wallensteen, ‘Armed Conflicts, 1946–2014,’ Journal of Peace Research, 52:4 (2015): 537; see also Soeren Keil, ‘Federalism as a Tool of Conflict Resolution,’ in John Kincaid ed., A Research Agenda for Federalism Studies (Cheltenham, UK and Northampton, MA, USA: Edward Elgar Publishing, 2019): 151–161.
- 9.
Since 1945 ethnic violence has played a major role in about half of all wars, caused an estimated 12 million refugees and resulted in at least 11 million deaths and because contemporary wars are between people rather than states, civilian casualties have increased tremendously. It is estimated that some three quarters of today’s war casualties are civilians. Nancy Bermoe, ‘A New Look at Federalism: The Import of Institutions,’ Journal of Democracy 13:2 (April 2002) at 96.
- 10.
See for instance Dimitrios Karmis and Wayne Norman, “The Revival of Federalism in Normative Political Theory,” in Dimitrios Karmis and Wayne Norman eds., Theories of Federalism: A Reader (New York: Palgrave Macmillan, 2005): 13.
- 11.
Ted Robert Gurr, Minorities at Risk: A Global View of Ethnopolitical Conflict (Washington: United States Institute of Peace Press, 1993): 18–20; see also Sujit Choudhry and Nathan Hume, ‘Federalism, Devolution and Secession: From Classical to Post-Conflict Federalism,’ in Tom Ginsburg and Rosalind Dixon eds., Comparative Constitutional Law (Cheltenham: Edward Elgar, 2011): 364.
- 12.
See for details John Burton, Violence Explained (Manchester: Manchester University Press, 1997): 32–37.
- 13.
Dawn Walsh, Territorial Self Government as Conflict Management Tool (Chan: Palgrave Macmillan, 2018): 4–5.
- 14.
Walker Connor, ‘Nation Building or Nation Destroying?’ World Politics 24:3 (1972): 343.
- 15.
W.S. Livingston, ‘A Note on the Nature of Federalism,’ Political Science Quarterly 67:1 (1952): 81–95.
- 16.
Jan Erk, Explaining Federalism: State, Society and Congruence in Austria, Belgium, Canada, Germany and Switzerland (London: Routledge, 2008).
- 17.
K.C. Wheare, Federal Government, 4th edn (London: Oxford University Press, 1963).
- 18.
Erk (n 16): 3.
- 19.
See Sujit Choudhry, ‘Bridging Comparative Constitutional Law: Constitutional Design in Divided Societies,’ in Sujit Choudhry ed., Constitutional Design in Divided Societies (Oxford: Oxford University Press, 2008): 4; George Anderson and Sujit Choudhry, ‘Territorial Cleavages and Constitutional Transitions: Political Mobilization, Constitution Making Processes and Constitutional Design,’ in Anderson and Choudhry eds., Territory and Power in Constitutional Transitions (Oxford: Oxford University Press, 2019); Arend Lijphart, ‘Constitutional Design for Divided Societies,’ Journal of Democracy 15:2 (2004); Andrew Reynolds ed., The Architecture of Democracy: Constitutional Design, Conflict Management and Democracy (New York: Oxford University Press, 2002).
- 20.
As will be shown later federalism as a mode of governance (other than ensuring peace) may be introduced for other purposes. South Africa and Kenya use devolution to ensure local development and service delivery. In other contexts, federalism’s peace making role may be combined with promoting development and service delivery.
- 21.
Carl Friedrich, Trends of Federalism in Theory and Practice (Praeger Publishers, 1968).
- 22.
Soeren Keil and Sabine Kropp eds., Emerging Federal Structures in the Post-Cold War Era (Cham: Palgrave Macmillan, 2022).
- 23.
Daniel Elazar, Exploring Federalism (Tuscaloosa: University of Alabama Press, 1987); Philip Roeder, ‘Ethnofederalism and the Mismanagement of Conflicting Nationalism,’ Regional and Federal Studies 19:2 (2009): 203–219.
- 24.
John McGarry, Brendan O’Leary, ‘Must Pluri-National Federations Fail?’ Ethnopolitics 8:1 (2009): 11; Jan Erk and L. Anderson, ‘The Paradox of Federalism: Does Self-Rule Accommodate or Exacerbate Ethnic Division?’ Regional and Federal Studies 19:2 (2009).
- 25.
Erk and Anderson (n 24): 191–202.
- 26.
Experts indicate degree of centralization and decentralization in federations across time and how that impacts the federal system. See for details Paolo D, John Kincaid et al., ‘Dynamics of De/Centralization in Federations: Comparative Conclusions,’ Publius: The Journal of Federalism 49:1 (2018): 194–219. Whether the federation was coming together or holding together, the nature of the cleavage and level of mobilization (Canada vs. USA), modernization, war like contexts, the party system and how it aligns with the federal and sub unit governments also affect the federation.
- 27.
See McGarry, Brendan O’Leary (n 24): 8; Soeren Keil and Elisabeth Alber, ‘Introduction: Federalism as Tool of Conflict Resolution,’ Ethnopolitics 19:4 (2020).
- 28.
See for details Gagnon (n 4); see also Tarunabh Khaitan, ‘Killing a Constitution by a Thousand Cuts,’ Law and Ethics of Human Rights 14:1 (2020): 49–95. Populism comes in many ways. Often come with tin ideology and claim the elites in power do not represent the people and aim to bring strong leaders that claim to represent natives to power. They claim main stream parties have outlived their purpose and institutions have become unresponsive and want to do away the system of checks and balances and judicial autonomy leading to totalitarian system and pushing non natives.
- 29.
Keil and Alber (n 27): 332.
- 30.
Wilfried Swenden, ‘India: An Emerging or Fragile Federation?’ in Soeren Keil and Sabine Kropp eds., Emerging Federal Structures in the Post-Cold War Era (Cham: Palgrave Macmillan, 2022): 165–188; Khaitan (n 28).
- 31.
See for details Will Kymlicka, Multiculturalism: Success, Failure, and the Future (Migration Policy Institute, 2012).
- 32.
Gagnon (n 4): 109.
- 33.
By now there are enough evidences indicating that these were window dressing federations because they were operating under communist dictatorships that is opposed to the idea of autonomous decision making inherent in federalism. Nor were they supported by democratic institutions. See Thomas Hueglin and Alan Fenna, Comparative Federalism: A Systematic Inquiry (Broad View Press, 2006): 26.
- 34.
Watts (n 5): 1–10; Elazar (n 5) at 15.
- 35.
The Institute of Federalism based in Fribourg Switzerland was one of the oldest but since then we have many centers in Italy (Bolzano), the United States (two), Austria, Germany, India, South Africa and Ethiopia. Among the global networks we have the Canada based Forum of Federations that combine both academics and practitioners and continue to conduct research, training and policy advocacy across the globe.
- 36.
William Riker (n 7); K.C. Wheare (n 17): 3. W. Riker, one of the distinguished writers on federalism, limits the origins of federations to only two reasons. According to his famous ‘law of federations’ ‘the necessary conditions in the federal bargain are that politicians, both those who offer and those who accept the bargain seek, to meet an external military or diplomatic threat or to expand militarily or diplomatically. It is important to understand the force of this law of federal origins. If framers overlook these necessary conditions their federations are likely to fail.’ However, Riker himself later conceded that this may not necessarily explain all federations. In the case of Nigeria, it was formed, although there was neither a military threat nor expansionist ambition and his thesis seems questionable but at the same time he doubts if Nigeria is a federation at all. However, protection or expansion may be attained without necessarily joining as formal federations, see for instance Davis supra, 132–133. Against Riker’s thesis, Dikshit wrote, ‘we do not think that the military condition is a necessary condition in all cases of federations. Today with the rise of modern federations and its further course of integration necessitated by the rise of large scale industrial economy and globalization, military security can no longer be sufficient reason to explain federations. The purposes that bind federations are not narrowly limited to political or military situations.’ R. Dikshit, The Political Geography of Federalism: An Inquiry into Origins and Stability (Delhi: Macmillan, 1975) at 35. More importantly, such an interpretation overlooks the central role of federations in accommodating diversity based on ethno-linguistic demands for autonomy. In the case of India for example, it is hardly acceptable to explain the federation’s survival in light of military or expansionist theory. As Davis remarked, ‘cultural diversity alone made unitary government in India unthinkable.’ Rufus Davis, The Federal Principle: A Journey Through Time in Quest of a Meaning (Berkeley: University of California Press, 1978) at 137.
- 37.
John Kincaid, ‘Value and Value Trade Offs in Federalism,’ Publius: The Journal of Federalism 25:2 (Spring 1995): 29–44.
- 38.
In a dissenting Supreme Court decision Justice Louis Brandeis of the United States in New State Ice Co. v. Liebmann argued ‘It is one of the happy accidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory, and try novel social and economic experiments without risk to the rest of the country.’ New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932).
- 39.
Ivo Duchacek, ‘Antagonistic Co-operation: Territorial and Ethnic Communities,’ Publius: The Journal of Federalism (Fall 1977): 4–25; Hereinafter called Antagonistic Cooperation; Watts, Comparing Federal Systems (n 5) at 4; Elazar (n 5) at 5.
- 40.
Explaining this paradigm shift Daniel Elazar wrote, ‘it is not that the states are disappearing; it is that the state system is acquiring a new dimension. There are now networks of agreements that are not only militarily and economically binding for de facto reasons but are also becoming constitutionally binding de jure. This overlay increasingly restricts what was called state sovereignty and forces states into various combinations of self-rule and shared rule rather than limited into federations as we understand it today.’ States are now recognizing their interdependence and that rather than single centers there exist multi-centered decision-making units. Elazar (n 5) at 7.
- 41.
Watts, Comparing Federal Systems (n 5).
- 42.
Gagnon (n 4).
- 43.
Watts (n 5) at 5.
- 44.
See for details Assefa Fiseha, Federalism and the Accommodation of Diversity in Ethiopia: A Comparative Study (Nijmegen: Wolf Legal Publishers, 2006): chapter five.
- 45.
For long Nigeria was the only country in the continent that claimed to be federal. In many other African countries federalism is viewed as a means for disintegrating the state. Nigeria is perhaps an exception but it certainly is not a happy case, as for most of its time, the federal system has been under military dictators, which goes contrary to the spirit of negotiation, the idea of federalism as a covenant and the division of power in federalism. As in most African cases, centralization of power made the federal promise a half reality.
- 46.
This federation lasted for a decade (1953–1963) but was not able to forge genuine unity in diversity between the whites and the blacks. It was rather a federation based on the supremacy of the whites. The situation in southern Rhodesia was particularly acute (white minority notorious for its discriminatory laws against the blacks) compared to the other two. There was thus a tension by the two northern territories that southern Rhodesia’s policy affecting the blacks will be extended to them who were slightly guaranteed with native paramouncy. Thomas Franck, ‘Why Federations Fail?’ in Thomas Franck ed., Why Federations Fail: An Inquiry into the Requisites for Successful Federalism (New York: New York University Press, 1968): 167–200.
- 47.
There is hardly any dispute that these federations were imposed by colonial forces. The French imposed such an arrangement in central and west Africa and the British in east and central Africa including Nigeria. Besides, they were also nation-state federations ill-suited to a multi-ethnic context. Ursula Hicks, Federalism: Failure and Success, a Comparative Study (London: The Macmillan Press 1978) at 4.
- 48.
Elazar (n 23): 240–244; Hicks (n 47): 16: 171–196; Franck (n 46).
- 49.
Goran Hyden, ‘Electoral Systems and Political Reform,’ in Constitutionalism: Reflections and Recommendations, Proceedings of the Symposium on the Making of the New Ethiopian Constitution (Addis Ababa: Inter Africa Group, 1993) at 9; See Andreas Eshete, ‘Ethnic Federalism: New Frontiers in Ethiopian Politics,’ in First National Conference on Federalism, Conflict and Peace Building (Addis Ababa: United Printers, 2003): 142–172.
- 50.
Will Kymlicka, “Emerging Western Models of Multination Federations: Are They Relevant for Africa?” in David Turton ed., Ethnic Federalism: The Ethiopian Experience in Comparative Perspective (Oxford: James Currey, 2006).
- 51.
Ruddy Doom, ‘International Setting,’ in Constitutionalism: Reflections and Recommendations, Proceedings of the Symposium on the Making of the New Ethiopian Constitution (Addis Ababa: Inter Africa Group, 1993) at 3.
- 52.
John McGarry, ‘Federal Political Systems and the Accommodation of National Minorities,’ in Ann L. Griffiths ed., Handbook of Federal Countries 2002 (Montreal and Kingston: McGill-Queen’s University Press, 2002) at 424.
- 53.
Kincaid (n 37): 30–31; Duchacek (n 39) at 14.
- 54.
Riker (n 7) at 25.
- 55.
For instance K.C. Wheare emphasized more on the importance of the existence of commonly shared institutions among federations and his study has been criticized as too legalistic, see Wheare (n 17); Livingston on the other hand argued that the essential features of federalism are to be looked for, not in the shadings of legal and constitutional terminology but in the forces—economic, social, political and cultural—that have made the outward forms of federalism necessary. In short, federalism is a function of societies that is a territorially grouped diversity. Livingston (n 15): 84–87; still Blindenbacher and Watts acknowledging Livingston’s contribution point out that it is also one-sided. They rightly contend that not only are institutions reflections of societies but once created they also influence the society that created them. One cannot deny the fact that the 1789 US federation, the 1848 Swiss federation and the 1995 Ethiopian federalism certainly were turning points in changing the political dynamic of the respective countries. In the two older federations by transforming confederations to modern federalisms and in the latter by restructuring the state based on federalism as well as on language. Raoul Blindenbacher and Ronald Watts, ‘Federalism in a Changing World—A Conceptual Framework for the Conference,’ in Raoul Blindenbacher and Arnold Koller eds., Federalism in a Changing World: Learning from Each Other (Montreal and Kingston: McGill-Queen’s University Press, 2003): 12–13.
- 56.
For instance William Riker employs in his book ‘centralized federalism’ to mean federations and ‘peripherized federalism’ to refer to confederations, p. 5. William Riker also employs federalism to mean confederations, federations and the federal idea. ‘The notion of federalism has existed from ancient times. Ancient and medieval federalisms succumbed rather quickly ... modern federalism has been notably successful’ in this short quotation one sees the use of federalism to mean three things: the idea, confederate states and federations. William Riker, ‘The Origin of Federal Government,’ in William Riker, The Development of American Federalism (Boston: Kluer Academic publishers, 1987): 9–10. In the famous The Federalist Papers the word federal was synonymous with confederations. See George Carey, The Federalist, Design for a Constitutional Republic (Urbana and Chicago: University of Illinois Press): 97; Wheare (n 17): 9–10.
- 57.
Preston King, Federalism and Federation (London: Croom Helm, 1982).
- 58.
Watts (n 5) at 1; Michael Burgess, ‘Federalism and Federation,’ in Michael Burgess, Federalism and Federation in Western Europe (London: Croom Helm, 1986); Alain-G. Gagnon, ‘The Political Uses of Federalism,’ in M. Burgess and A. Gagnon eds., Comparative Federalism and Federation (London: Harvester, 1993); Douglas Verney, Federalism, Federative Systems and Federations: The United States, Canada and India,’ Publius the Journal of Federalism 25:2 (1995): 81–87.
- 59.
‘Is to mean the recommendation and sometimes the active promotion of support for federation. It is ideological in the sense that it can take the form of an overtly prescriptive guide to action.’ Federalism seeks federation but to achieve diverse ends and values. In the real world, the commitment to federations represents more a response to specific interests and problems than does a general ideological desire to achieve some abstract notion of democracy or freedom. Federalism has been examined as a political ideology in the sense that it reflects values and benefits, which recommend specific forms of federation. The particular type of federation prescribed is determined by the interests that the framers and the actors want to achieve. Thus, federalism is not as such a universal value. See for more Michael Burgess, ‘Federalism as Political Ideology: Interests, Benefits and Beneficiaries in Federalism and Federation,’ in M. Burgess and A. Gagnon eds., Comparative Federalism and Federation (London: Harvester, 1993): 102–113.
- 60.
King (n 57) at 74.
- 61.
Elazar (n 23): 2–7.
- 62.
Blindenbacher and Watts (n 35) at 9.
- 63.
Watts (n 5): 6 and 17.
- 64.
King (n 57): 15–17.
- 65.
Watts (n 5) at 6. This broad concept called federal political systems refers to all sorts of multi-tier governments. Federations constitute one among them. Others include, federacies, associated states and autonomy. In federacies a smaller political entity is linked to a larger one, usually a former colonial power, but the smaller unit retains considerable autonomy, perhaps more than is constitutionally granted to constituent states in a federation, in return for a minimal role in the government of the larger one. It is based on a bilateral arrangement and is given to a part of a state hence creating asymmetrical self-government. Associated States refers to a more or less the same kind of relationship except that in this case the arrangement can be dissolved by either of the units acting alone. Autonomy refers to the exercise of political power by a sub unit within a unitary state while the rest of the country remains centralized one as in Zanzibar of Tanzania or Eritrea in the 1950s. See ibid.: 7–9; R. Watts, ‘Forward: States, Provinces, Länder and Cantons: International Variety Among Sub-national Constitutions,’ Rutgers Law Journal 31 (Summer 2000): 941–958.
- 66.
King (n 57): 74–75.
- 67.
Ibid.: 74.
- 68.
Ibid.: 76, Perhaps this explains why federations manifest themselves differently in different societies. It might also explain, albeit weakly, why federations change and develop over time in a certain way. Federations move; they change and in this process they may depart from the normative orientation. See also Michael Burgess, ‘Federalism and Federation,’ in Michael Burgess and Alain-G Gagnon eds., Federalism and Federation: A Reappraisal Comparative Federalism and Federation: Competing Trends and Future Directions (Hemel Hempstead: Harvester Wheatsheaf, 1993): 12.
- 69.
Dimitrious Karmis and Wayne Norman eds., Theories of Federalism: A Reader (New York: Palgrave Macmillan, 2005): 25.
- 70.
Hueglin and Fenna (n 33): 76.
- 71.
Ibid.: 85.
- 72.
Wheare (n 17).
- 73.
Hueglin and Fenna (n 33): 91.
- 74.
Ibid.: 95.
- 75.
Dimitrious Karmis and Wayne Norman eds., Theories of Federalism: A Reader (New York: Palgrave Macmillan, 2005): 7.
- 76.
See Ferran Requejo, ‘Three Theories of Liberalism for Three Theories of Federalism,’ in Michel Seymour and Alain Gagnon eds., Multinational Federalism: Problems and Prospects (New York: Palgrave Macmillan, 2012): 57.
- 77.
Watts (n 5) at 17.
- 78.
Ibid.: 17, 35.
- 79.
Elazar (n 23) at 6–7.
- 80.
Watts (n 5) at 17.
- 81.
Wheare (n 17): 1–2; Ronald Watts also subscribes to this approach. He states: ‘federations represent a particular species in which neither the federal nor the constituent states of government are constitutionally subordinate to the other’. Ibid. at 7.
- 82.
Ibid.: 50–51 (emphasis by the author). Livingston states: ‘the difference must not be too great, else the community may break up into independent groups. Federalism cannot make coherent a society in which the diversities are so great that there can be no basis for integration.’ Livingston (n 15) at 89.
- 83.
Ronald Watts, New Federations: Experiments in the Common Wealth (Oxford: Clarendon Press, 1966): 92–93. Hereinafter called New Federations.
- 84.
The Federalist Papers consist of 85 essays written in 1787 and 1788 by James Madison, Alexander Hamilton and John Jay. Their purpose was to convince the limited electorate of New York to vote for the new constitution. The Federalist No. 34 in Roy Fairfield ed., The Federalist Papers, 2nd edn (Garden City: Anchor Books, 1966): 88; see also Davis (n 36) at 85.
- 85.
Davis (n 36) at 85. Yet one needs to note that these papers were written to pacify the fears of those who opposed the move towards centralization. Otherwise Davis, who has made a comprehensive review of the authors of The Federalist Papers, wrote, ‘from the outset and almost to the very end of the Philadelphia convention, the attempt to explain the relationship of the national government to the states, even by those most ready to compromise on almost everything but the idea of national government was translated in the language and analogy of hierarchy, primary/subsidiary, supremacy/inferiority, independent/dependent, general/limited power. Rarely if at all were the states spoken of as coordinates or co-equal institutions.’ Besides, The Federalist Papers is, a work of 85 papers manifesting partisan as well as the personal positions of the victors of the convention, the chief ones being Hamilton and Madison. See for instance, The Federalist Papers No. 14, where Madison states, ‘it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects which concern all the members of the republic but which are not to be attained by the separate provision of any of the subordinate governments’. Ibid.: 85, 26, 46.
- 86.
Dikshit (n 36) at 219.
- 87.
Ibid.: 4, 219.
- 88.
G. Smith, ‘Mapping the Federal Condition: Ideology, Political Practice and Social Justice,’ in Graham Smith ed., Federalism: The Multi-ethnic Challenge (London: Longman, 1995): 5–6.
- 89.
Dikshit (n 36) at 219.
- 90.
King (n 57): 59–60, 113–120; despite this generalization, however, John Kincaid argues that there are bound to exist differences in emphasis on either unity or diversity depending on several factors. It all depends on the values the federal system wants to achieve. In some cases the values to be achieved may lean towards diversity, which opposition may label separatism or may lean towards unity which opponents may label centralism. Kincaid (n 37) at 32.
- 91.
King (n 57): 20–21.
- 92.
Dikshit (n 36) at 220.
- 93.
Riker (n 7) at 13.
- 94.
See Watts (n 5): 87.
- 95.
Hueglin and Fenna (n 33): 20.
- 96.
Wheare (n 17): 3–4. After Independence on July 4, 1776 the thirteen American States established on November 15, 1777 the Articles of Confederation that were later replaced by the 1789 federal Constitution.
- 97.
Davis (n 36) at 75.
- 98.
William Riker ‘The Invention of Centralized Federalism,’ in Riker ed., Development of American Federalism (Boston: Kluer Academic Publishers, 1987) at 18.
- 99.
Wheare (n 17): 3–4.
- 100.
C. Hughes, ‘Cantonalism: Federation and Confederacy in the Golden Epoch of Switzerland,’ in M. Burgess and C. Gagnon eds., Comparative Federalism and Federation (London: Harvester, 1993) at 155.
- 101.
Riker (n 98) at 18. According to Riker ‘as practical men, federalism, the result of the convention was an unanticipated consequence of practical judgment of the founders. The compromise between the forces for unity and for states' rights was motivated more by practical expedition to save the union from dissolution than the intention to improve the confederation. It is hardly possible to attribute the conventions success as something resulting from the intent to create federalism. They were intending to centralize power at the expense of federalism, not to preserve federalism at the expense of centralization. The invention resulted in the process of trying to transcend the limits of the alliance, and after series of compromises.’ Ibid.: 40–41.
- 102.
Ibid., at 22. On the other hand, the New Jersey Plan provided for something close to the Articles of Confederation, only with minor improvements.
- 103.
Ibid.: 30.
- 104.
Ibid.: 36.
- 105.
Ibid., at 40.
- 106.
Davis (n 36) at 114.
- 107.
Ibid.: 93, 122.
- 108.
Wheare (n 17) at 3.
- 109.
King (n 57) at 24.
- 110.
Wheare (n 17) at 7.
- 111.
Arthur Gunlicks, ‘State (Land) Constitutions in Germany,’ Rutgers Law Journal 31 (Summer 2000) at 972.
- 112.
Ibid., at 972; the system is called executive/administrative federalism and is still the dominant feature of the German federation.
- 113.
Ibid.: 47.
- 114.
Some contend that except for the years from 1933 to 1945 the political landscape of Germany always had a federal [confederal] structure. Martin Rogoff, ‘The European Union, Germany, and the Länder: New Patterns of Political Relations in Europe,’ Columbia Journal of European Law 5 (Fall 1999) at 417.
- 115.
Elazar (n 23) at 132. Following WWI and the Revolution of 1918, 421 delegates to an assembly elected by universal suffrage, met at Weimar to frame a constitution. In the actual task of framing the constitution there were two parties with opposing views as to the position of the states. One wanted to wipe off the states and establish complete centralization and the other wanted to retain the separate character of the states with the only stipulation of curbing the power of Prussia. A compromise was reached between the two views and a federal constitution was drawn up and adopted by the Assembly on July 31, by 262 votes against 75 and came into force on August 11, 1919. With the coming to power of Hitler as a chancellor of Germany in 1933, the old battle on the division of power revived owing to the conception of the Empire as a federation or a unitary state with decentralized power to the states came close to complete centralization of power at the center. Officially, the states’ sovereignty came to an end in 1933 and they were converted to mere subordinates. After the defeat of Germany in WWII, the Allied powers divided it into occupation zones under the US, UK, France USSR and later formed the Republic of Germany with a parliamentary system of government. Ibid.: 51–54. The decision to establish a federal system in West Germany was not entirely an indigenous determination seeking to provide a genuine democratic foundation; the Allies had decided quite early that there should be no concentration of power in the country. See Dikshit (n 36) 34 at 150. With unification on October 3, 1990, came the debate on the mechanism of unification and the status of the Basic Law (it was viewed as temporary text in 1949): between those who advocated unification under Article 146 that stipulated for unification of Germany via a new constitution approved by a referendum and those that forwarded the unification scheme to be conducted under Article 23 (which in essence meant the Länder in East Germany apply collectively to join the Federal Republic). The latter option was pursued and as a result the Basic Law continued to serve for the whole of post-unification German polity. Watts (n 5) at 26; see also Arthur Gunlicks, ‘State (Land) Constitutions in Germany,’ Rutgers Law Journal 31 (Summer 2000) at 971. For a more detailed account of the process of unification and the new challenges in the German federation see Charlie Jeffery ed., Recasting German Federalism: The Legacies of Unification (London: Pinter, 1999).
- 116.
Wheare (n 17) at 15.
- 117.
William Riker and Ronald Schaps, ‘Disharmony in Federal Government,’ in Riker ed., Development of American Federalism (Boston: Kluer Academic Publishers, 1987): at 75.
- 118.
W. Riker, ‘The Senate and American Federalism,’ in Riker ed., The Development of American Federalism (Boston: Kluer Academic Publishers, 1987): 136–137.
- 119.
Anderson (n 19): 220.
- 120.
Elazar (n 23) at 35.
- 121.
For the different meanings on decentralization see Markus Bockenforde, A Practical Guide to Constitution Building: Decentralized Forms of Governments (International Institute for Democracy and Electoral Assistance, 2011): 4; compare with Watts (n 5): 9.
- 122.
Jean-Paul, Faguet, ‘Decentralization and Governance,’ World Development 53 (2014): 2–12.
- 123.
Watts (n 5): 9.
- 124.
Bockenforde (n 121): 7.
- 125.
Watts (n 5).
- 126.
Nico Steytler ed., The Place and Role of Local Government in Federal Systems (Konrad-Adenauer-Stiftung, 2005): 8.
- 127.
Bockenforde (n 121): 2.
- 128.
John Stuart Mill quoted in Roberta Ryan and Ronald Woods, Decentralization and Subsidiarity: Concepts and Frameworks for Emerging Economies, Occasional paper Series Number 15, Forum of Federations (2015): 9.
- 129.
L. Pratchett, ‘Local Autonomy, Local Democracy and the New Localism,’ Political Studies 52 (2) (2004): 359.
- 130.
Elliot Bulmer, Local Democracy, Primer 13, International Institute for Democratic and Electoral Assistance (2017): 4.
- 131.
Peter O’Brien and Andy Pike, ‘City Deals, Decentralization and the Governance of Local Infrastructure Funding and Financing in the UK,’ National Institute Economic Review 233 (2015): 14–26.
- 132.
For comparative insights see Peter O’Brien and Andy Pike, ‘City Deals, Decentralization and the Governance of Local Infrastructure Funding and Financing in the UK,’ National Institute Economic Review 233 (2015): 14–26; Introducing UK City Deals: A Smarter Approach to Supercharging Economic Growth and Productivity. https://assets.kpmg/content/dam/kpmg/pdf/2014/10/uk-city-deal-economic-growth-productivity.pdf.
- 133.
Steytler (n 126): 6.
- 134.
Bockenforde (n 121): 18–22.
- 135.
Bulmer (n 130): 3.
- 136.
S. Chattopadhyay, ‘Decentralized Provision of Public Service in Developing Countries: A Review of Theoretical Discourse and Empirical Evidence,’ Social Change 43:3 (2013): 426.
- 137.
Peter Wanyande, ‘Decentralization and Local Governance: A Conceptual and Theoretical Discourse,’ Regional Development Dialogue 25:1 (2004): 5.
- 138.
Bockenforde (n 121): 18–22.
- 139.
Wanyande (n 137): 2004, 5.
- 140.
Conrad Bosire, Devolution for Development, Conflict Resolution and Limiting Central Power: An Analysis of the Constitution of Kenya 2010 (Unpublished LL.D thesis, University of the Western Cape, 2013).
- 141.
Martin Ardanaz, Marcelo Leiras, and Mariano Tommasi, ‘The Politics of Federalism in Argentina and Its Implications for Governance and Accountability,’ World Development 53 (2014): 26–45.
- 142.
James Gathii, Harrison Otieno, ‘Assessing Kenya’s Cooperative Model of Devolution: A Situation-Specific Analysis,’ Federal Law Review 46:4 (2018): 605–606.
- 143.
Mahmood Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton: Princeton University Press, 1996).
- 144.
Assefa Fiseha, ‘Intra Unit Minorities in a Context of Ethno National Federation in Ethiopia,’ Utrecht Law Review 13:1 (2017).
- 145.
Riker (n 7) at 17.
- 146.
Wheare (n 17): 55–57.
- 147.
US Constitution Article VI Section 2.2.
- 148.
German Basic Law Art. 20 sub 3.
- 149.
Ethiopian Constitution Art. 9 sub 1.
- 150.
Elazar (n 23): 2–7.
- 151.
John Kincaid (n 37) at 32.
- 152.
Alain Gagnon, ‘Federalism in Multi-Community Countries: A Theoretical and Comparative Framework of Analysis,’ in Lloyd Brown-John ed., Centralizing and Decentralizing Trends in Federal States (Lanham: University Press of America, 1988) at 25. In support of this assertion Nancy Bermeo claims, ‘in each of the post-communist cases, failed federalism was the legacy of imposed rule and of a past shaped by a dictatorial party. The countries that broke away from the Soviet Union had their federal status imposed on them at the end of WWII by the Soviets.’ She proposes that an imposed federal system would be unlikely to last. The roots of the word federal lie in the Latin term foedus meaning covenant or compact. Covenants have to be voluntary and based on a sense of partnership. Every federal system that split apart or turned towards unitary form was imposed by an outside (usually) colonial power. Bermeo (n 9): 106–108. They are often called ‘forced together’ federations which indicates strong evidence of the fact that federal arrangements must be based on a domestic covenant if they are to survive.
- 153.
Daniel Elazar, Covenant and Polity in Biblical Israel: Biblical Foundations and Jewish Expressions. The Covenant Tradition in Politics, v. I (New Brunswick, NJ: Transaction Publishers, 1995): 35–51, 194–195. Elazar has contributed enormously to the idea of covenant in many of his publications.
- 154.
King (n 57) at 58.
- 155.
Ibid., at 59.
- 156.
Ibid.: 88–89.
- 157.
Ibid.
- 158.
Ibid.
- 159.
Rudolf Hrbek, ‘Germany,’ in Ann Griffiths ed., Handbook of Federal Countries 2002 (Montreal and Kingston: McGill-Queen’s University, 2002): 149.
- 160.
King (n 57) at 97.
- 161.
Ibid., at 98.
- 162.
Ibid.
- 163.
Hrbek (n 139) at 149.
- 164.
King (n 57) at 101.
- 165.
Egite Oyovbaire, Federalism in Nigeria: A Study in the Development of the Nigerian State (London: Macmillan Publishers, 1985): 17.
- 166.
Friedrich (n 21): 6–7.
- 167.
D.J. Kriek, ‘The Rigidity of the Constitution,’ in D.J. Kriek ed., Federalism the Solution? (Pretoria: HSRC Publishers, 1992): 57–58. The term rigidity means here that the procedures for amending the constitution differ from the procedures for amending an ordinary law. Often the former require a more rigorous procedure.
- 168.
Indian Constitution Article 368.
- 169.
US Constitution Article V.
- 170.
Swiss Constitution Article 142 sub 3 states the result of popular vote in a canton determines the vote of the canton.
- 171.
See Articles 138–142 of the Swiss Constitution; see also Kriek (n 167) at 64.
- 172.
German Basic Law Article 79 sub 2.
- 173.
Ibid. Article 79 sub 3; see also Kriek (n 167) at 66.
- 174.
Ethiopian Constitution Article 105 (1) a and 105 (1) b, and c.
- 175.
Ethiopian Constitution Article 105(2) a and 105(2) b.
- 176.
Wheare (n 17): 60–61.
- 177.
Davis (n 36) at 143.
- 178.
Wheare (n 17) 9: 18–19.
- 179.
Donald Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany, 2nd edn (Durham: Duke University Press, 1993) at 3.
- 180.
See chapter eight for details.
- 181.
See for details Martin Riegl and Bohumil Dobos eds., Unrecognized States in the 21st Century (Cham: Springer, 2017).
- 182.
Glen Anderson, ‘Unilateral Non-Colonial Secession and Internal Self-Determination: A Right of Newly Seceded Peoples to Democracy?’ Arizona Journal of International and Comparative Law 34:2 (2016): 2.
- 183.
Allen Buchanan, Justice, Legitimacy, and Self-Determination (Oxford: Oxford University Press, 2004).
- 184.
D. Gauthier, ‘Breaking Up: An Essay on Secession,’ Canadian Journal of Philosophy 24 (1994): 357–372.
- 185.
In Switzerland this happened in 1847 when some cantons attempted to secede from the confederation. See Thomas Fleiner and Lidija Basta, ‘Federalism, Federal States and Decentralization,’ in Lidija Basta and Thomas Fleiner eds., Federalism and Multiethnic States: The Case of Switzerland, v. 16 (Fribourg: Institute of Federalism, 1996) at 36. They stated ‘Great personalities like Alexander Hamilton insisted on giving the central government sufficiently large powers while the others like Thomas Jefferson were critical about such a move. The two not only represented different views but were also leaders of two prominent parties, the former of the Federalist and the second of the Republican. A crucial factor in the intensification of the tension between the north and the south was the slave system. The northern states were pro industrialization, while the South were mainly agricultural. Industry needed skilled and free labor, while agriculture in the south depended on slave labor. The latter states owned large number of slaves to work on their farms while the industries of the north could be run with the help of free and skilled labor. As a result the north went for abolition of slavery to free the slaves so that they could work wherever they liked and this created a great rift between the north and the south on economic and social questions and finally led to the Civil War (1861–1865). Outraged by these moves from the center and the north, on December 20, 1860 the South Carolina legislature called a convention and passed a unanimously approved decision repealing the Constitution of the United States and approving secession. Within a short period of time a similar decision was made in Mississipi, Florida, Louisiana, Georgia and Texas. On February 14, 1861, the delegates of the seceding states met at Montgomery, Alabama and drew up a constitution for the Southern Confederacy. This led to the Civil War from 1861 to 1865, resulting in a complete victory for the federalist forces.’ King (n 57) at 109.
- 186.
See Margaret Moore, ed., National Self-Determination and Secession (New York: Oxford University Press, 1998).
- 187.
King (n 57) at 109.
- 188.
Francois Rocher and Elisenda Casanas Adam, ‘Responding to Secession Referenda: Constitutional and Quasi Constitutional Change in Quebec and Scotland,’ in Andre Lecours, Nikola Brassard-Dion and Guy Laforest eds., Constitutional Politics in Multinational Democracies (Montreal and Kingston: McGill-Queen’s University Press, 2021): 62.
- 189.
George Anderson, Federalism: An Introduction (Oxford: Oxford University Press, 2008): 79.
- 190.
Alain-G. Gagnon and Richard Simeon, ‘Canada,’ in Luis Moreno and Cesar Colino eds., A Global Dialogue on Federalism: Diversity and Unity in Federal Countries (Montreal and Kingston: McGill-Queen’s University Press, 2010): 119.
- 191.
Karlo Basta, The Symbolic State: Minority Recognition, Majority Backlash and Secession in Multination Countries (Montreal and Kingston: McGill-Queen’s University Press, 2021): 107.
- 192.
Ibid.: 110.
- 193.
Francois Rocher and Elisenda Casanas Adam, ‘Responding to Secession Referenda: Constitutional and Quasi Constitutional Change in Quebec and Scotland,’ in Andre Lecours, Nikola Brassard-Dion and Guy Laforest eds., Constitutional Politics in Multinational Democracies (Montreal and Kingston: McGill-Queen’s University Press, 2021): 51.
- 194.
Livingston (n 15) at 84. By federal society he meant a territorially grouped and politically mobilized diversity.
- 195.
Federalism is also linked with political economy and resources and fiscal and resource management in federations is well developed discipline on its own.
- 196.
Jan Erk, Explaining Federalism: State, Society and Congruence in Austria, Belgium, Canada, Germany and Switzerland (London: Routledge, 2008).
- 197.
Philip G. Roeder, Where Nation-States Come from Institutional Change in the Age of Nationalism (Princeton: Princeton University Press, 2007): 20–21.
- 198.
Cheryl Saunders, ‘Constitutional Arrangements of Federal Systems,’ Publius: The Journal of Federalism 25:2 (Spring 1995) at 62.
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Fiseha, A. (2024). Federations: Concept, Theory and Main Features. In: Federalism, Devolution and Cleavages in Africa. Federalism and Internal Conflicts. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-50426-6_2
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