First, Second, Third Class:
description
Transcript of First, Second, Third Class:
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