First, Second, Third Class

First, Second,
Third Class:
First,
Class:
General
Introduction
The subject matter of this course:
Institutions of federal states
Analyses and Concepts of federations
fragmented 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.
Basic Elements of Federalism
Constitution
Shared Rule Self Rule
Federalism
Unitary state - Confederation
Decentralization
Decon- Federation
Decentrali-
centration Constitu- Confede-
Sation
administra- Tion Ration
Legislation
tive Constitu- Treaty
Autonomy
Decision tion ma- Legitimacy
Responsi-
Order king Internatio-
Bility
Revoca- Legitimacy nal court
Finance
tion
Institutions
Institutions are the means through

which federal government is delivered
Consider two categories:
Specifically federal institutions
Institutions of democratic constitutional
government
These categories are interdependent
Federalism affects democratic
institutions and the choice of
democratic institutions affects federalism
Second Class
Introduction to
Comparative Federalism
Value of Comparative Federalism
How did others design

institutions to deal with the particular
needs of their societies
ideas about institutional
design for emerging federations
models for adoption and adaptation
Exemples: 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
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 met
The operation of these institutions may
be affected by the wider context
Both logic and context need to be appre-
ciated to understand another system
(and to borrow from it)
Some Examples of Prototypes
United States Germany Switzerland

Presidential Parliamentary Directorial
System System System
2nd chamber 2nd chamber 2nd chamber
Competitive Executive Executive
Federalism Federalism Federalism
Goal of F Goal of F Goal of F
Judiciary Judiciary Judiciary
Some examples of adaption
Australia Switzerland European

American American Union
System with Senate German
Parliamentary French legal Second
Government System Chamber
And one Direct Directorial
Common Law Democracy System
Constitutional Principles
Of Federalism
US Commerce Clause
Principle of Subsidiary
Residual Powers
Intergovernmental Relations
Interstate Compact
Top Down
Bottom up
Opting out
Common
Law
Civil Law
Federalism
The Basic differences of the two systems:
The Power of the Court

Civil law:
The one who has right should win the case
Common Law:
The one who wins the case has right
Thus Division of powers with regard to the

Judiciary within countries of common law
Tradition is much more important
Compared to legislative power
Federalism
Embedded within
Two different legal systems
Different Perception of the state, the nation
and sovereignty
Different perception of the law
Different perception of the courts
Different perception of access to justice
Constitutionalism
Civil Law:
Thomas Hobbes:
Common Law: Absolute Power of the
John Locke Leviathan:
To limit the power of Constitution:
The government Empower government
And limit governmental
powers
Federalism
Constituting a State or
Constituting a government
Legitimacy of the state / or Government
Rule of Law versus Rule of the Laws (legis-
Lature)
Federalism: Limit federal power
Accommodate Diversity
Basic Differences
Hierarchy of Norms
Napoleonic Public Law Concept
Notion of Authority
Prerogative writs
Habeas Corpus
Mandamus
Writ of Certiorari
Due process / Natural Justice
The continental legal system:
legislature
Administration
Administrative Tribunals
Administrative Acts
European Court on Human Rights
Legal Systems
Unitary or Parallel Legal Systems
Independence of the Judiciary
Legal Dualism
Conclusions
• Nation Concept
• Constitution Making of Local
Units
• Distribution of Powers

First, Second, Third Class

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First, Second,

Institutions are the means through

How did others design

Each federation has a set of interlocking

United States Germany Switzerland

Australia Switzerland European

The Power of the Court

Thus Division of powers with regard to the

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