1. First Class: Main Institutional Concepts of Federal Systems of Governance Thomas Fleiner Prof. Thomas Fleiner*/ Prof. Dr. Lidija R. Basta Fleiner Theories and Praxis on Peace, Federalism, and Human Rights First Week: Federal Institutions Principles and Designs. Effects upon Peace within State

2. Shared Rule Self Rule C o n s t i t u t i o n Basic Elements of Federalism

3. Pairs of values Famously, federalism balances and enables competing values to be secured: Legitimacy and efficiency Legitimacy and efficiency Self-rule and shared rule Self-rule and shared rule Unity and diversity Unity and diversity Uniformity and difference Uniformity and difference Solidarity and self-reliance Solidarity and self-reliance Co-operation and competition Co-operation and competition Complexity and Transparency Complexity and Transparency One challenge in designing a federal system is to capture each of these in a suitable way

4. Other constitutional values Federalism must be combined with other constitutional values, in both spheres of government, for its benefits to be fully secured. These include: Legitimacy Legitimacy Democracy Democracy Constitutionalism, including the rule of law Constitutionalism, including the rule of law Human Rights Human Rights Effective and accountable government Effective and accountable government Solidarity: Mutual respect; a willingness to share power; appreciation of diversity Solidarity: Mutual respect; a willingness to share power; appreciation of diversity

5. Importance of institutions and Procedures Importance of specifically federal institutions are obvious (eg division of powers) Importance of specifically federal institutions are obvious (eg division of powers) Institutions of government equally important Institutions of government equally important –Mechanism through which federalism delivered –Mechanism through which other values delivered Institutional design must capture Institutional design must capture –Aspirations for federalism –Aspirations for government generally

6. General observations: Balance of Shared Rule v. Self Rule Many of the institutions that we presently use were designed for unitary states Many of the institutions that we presently use were designed for unitary states They need to be fully adapted to the different context of federalism They need to be fully adapted to the different context of federalism Now plenty of experience with this Now plenty of experience with this But range of possibilities is not fixed But range of possibilities is not fixed Increasing experimentation in recent years Increasing experimentation in recent years Eg asymmetry, forms of co- operation Eg asymmetry, forms of co- operation

7. Comparative Federalism Learning from Each Other Comparative constitutionalism now a very hot topic Comparative constitutionalism now a very hot topic Relevant to: Relevant to: –Making a Constitution –Using a Constitution (in particular, interpretation by courts) –International Cooperation Problems of Method Problems of Method Particularly for institutional comparison? Particularly for institutional comparison?

8. Variations between federations: Dilemma of Legitimacy v. Efficiency Degrees of diversity Degrees of diversity State of the pre-federal state(s) State of the pre-federal state(s) Legal system Legal system –Legal philosophy –Doctrine History and Cultural Tradition History and Cultural Tradition Other? Religion / Language, Geography, Size Other? Religion / Language, Geography, Size

9. Institutional building blocks: overview A division of powers A division of powers Two (+) spheres of government Two (+) spheres of government A division of resources A division of resources Constituent representation in central institutions Constituent representation in central institutions (some) constituent autonomy with own institutions (some) constituent autonomy with own institutions Prescribed common standards in relation to, for example, governance, rights, economic union Prescribed common standards in relation to, for example, governance, rights, economic union Entrenched Constitution, effectively enforced Entrenched Constitution, effectively enforced

10. Two spheres of government Representing the people, grouped in different ways, allowing the emergence of different majorities & minorities Representing the people, grouped in different ways, allowing the emergence of different majorities & minorities How many units? How many units? –Not too many, not too few… Borders. Borders. –How are they drawn & changed? –According to what criteria? Symmetry or asymmetry Symmetry or asymmetry

11. Division of powers What powers? What powers? –Potentially, legislative, executive, judicial How? How? –Horizontal/vertical/mixed –Exclusive/concurrent/shared –Provision for co-operation? Who gets what? Who gets what? NB:implications of the answers to these questions for the institutional structure of all governments NB:implications of the answers to these questions for the institutional structure of all governments

12. Division of resources This includes taxation, other revenues, loan funds, grants This includes taxation, other revenues, loan funds, grants Mechanism likely to be influenced by the approach to the division of powers Mechanism likely to be influenced by the approach to the division of powers –Horizontal/vertical –Exclusive/concurrent Fiscal Equalisation Fiscal Equalisation –Bases –Process –Constitutional mandate?

13. Common standards Many federations prescribe certain common standards, applicable to both spheres of government, in the Constitution itself. Typically these apply to: Governance (democracy, accountability, republicanism) Governance (democracy, accountability, republicanism) Human rights Human rights Economic union (mobility of people, economic activity) Economic union (mobility of people, economic activity)

14. Constitution of the federal state The Constitution should: –Be made by a suitable process –Create the central & constituent governments –Provide the institutional framework –Provide the federal framework –Provide the means for its own alteration

15. Protection & enforcement A mixture of rigid and flexible A mixture of rigid and flexible Federal quality of amendment procedure Federal quality of amendment procedure Effectively enforced: Effectively enforced: – Usually, general or specialist constitutional court –Other options? Switzerland (sui generis). USA? NB techniques for conflict avoidance: Switzerland, NB techniques for conflict avoidance: Switzerland, Some internal flexibility eg through co- operation Some internal flexibility eg through co- operation

16. Constitution Constituent Power How?: Procedure Decentralization Centralization Step by Step International Community Who? Inclusive Exclusive Who decides? Legitimacy: Treaty, Agreement, Constitution…? Units - Borders? Reconciliation

17. Constitution Constituent Power Revision and Amendment Eternity Clause? Shared Rule Partial General Revision Referendum Who? Federal Units Parliament Special Council