Shades of Federal Theory

Thomas O. Hueglin

Gagnon

Thomas O. Hueglin has been professor of political science at Wilfrid Laurier University in Canada for 36 years and as of this year is professor emeritus. He received degrees from the University of St. Gallen in Switzerland (PhD) and Konstanz University in Germany (Habilitation). His work has mainly focused on federalism and the history of political thought. In 2019, he received the Publius Distinguished Scholar Award (International Political Science Association). His books include Early Modern Concepts for a Late Modern World (1999), Comparative Federalism (2nd edition 2015, with Aland Fenna), and Federalism in Canada (2021). He is currently working on a book on the history of federal thought.

Abstract

The conceptual history of federalism only begins in the 17th century as a response to Bodin’s doctrine of absolute and indivisible sovereignty. Modern federalism has therefore typically been understood as a variation of the state, most importantly in the form of the federal state. Non-statist federal concepts have been ignored or neglected. Against the pessimistic assumption that a universal federal principle cannot be found, I suggest that it is at least possible to identify a coherent set of normative principles without which federalism would not make sense. These principles are membership equality, subsidiarity, social solidarity, and federal comity.

 

 Introduction: Is Federal Theory Possible?

A recent authoritative handbook of political theory does not mention federalism at all (Dryzek et al. 2007). Perhaps wisely so. The ancient Greeks, to whom we owe so much of our understanding of politics, did not give any conceptual thought to federalism. The history of federal thought properly only begins in the 17th century as a response to the rise of state absolutism and its doctrine of absolute and indivisible sovereignty (Karmis and Norman 2005, 25). In the modern age of statism, then, federalism almost inevitably came to be conceptualized as a variation of the state, as a federal state. All other forms of federalism were essentially thought of as pre-state, intra-state, inter-state, or supra-state (Koselleck 1972, 583).

Genuine efforts at formulating federal theory in its own right, such as most importantly the Politica of Johannes Althusius (1614; Hueglin 1999), were typically overlooked or dismissed because they did not fit into either the pre-state or the statist framework (e.g. Habermas 1974, 67-68.) Non-statist or non-territorial concepts such as Pierre-Joseph Proudhon’s agro-industrial federation (1863) or Karl Renner’s cultural autonomy (1899) have remained at the margins of theoretical interest. It is thus not surprising that writing a conceptual history of federalism has been attempted only rarely. The last major attempt, almost half a century ago, came to the conclusion that it is impossible to identify a general concept of what is federal (Davis 1978).

I want to suggest that it is at least possible to identify a coherent set of normative principles without which federalism would not make any sense. They all have to do with the covenanted nature of federalism. Political systems may be created through gradual evolution over time or by revolutionary bang. Federal political systems differ in that they come into existence through negotiated agreement among their constituent members. As preformulated by Althusius, what the members of a federal union establish, through their collective ownership of the rights of sovereignty, remains in place as the established and agreed-upon order “unless something else pleases the common will” (1614, IX. 18). What can be identified as normative federal principles are minimum requirements without which lasting agreement cannot be achieved: membership equality, subsidiarity, social solidarity, and a general commitment of federal comity.

 

Membership Equality

The principle of membership equality distinguishes federal systems from other forms of multilevel governance. It is also one of the oldest political principles. As already Polybius (200-118BCE) pointed out, the stability of the Achaean League in the 3rd century BCE was owed to the fact that it granted equal rights to all cities regardless of size or strength (2.37). Livy (63/59-12/17CE) in turn reported that the vote on important decisions was taken by cities (32. 19-23). Finally, we know from Strabo (63BCE-23CE) that the votes of cities in the Lycian League were weighted. Individual member cities were given one, two, or three votes according to size (14. 3. 3). Montesquieu thought that this made for an “excellent federal republic” (1748, IX.3).

Regardless of size, economic power, or population, the founding members of a federal union would expect and accept nothing less than to enter such a union on equal – or at least equitable – terms. More specifically, one of the most sacrosanct principles of modern federalism is constitutional symmetry according to which all constitutional provisions shall apply equally to all member units. Most importantly, this means that all member units will possess the same sets of self-governing authority. In fact, however, this is not as unproblematic as it might appear at first glance. A more qualitative consideration of membership equality would also suggest that substantive differences of interest or need in one or several member units ought to be treated distinctly. In particular, a growing literature points to the need of asymmetrical constitutional accommodation of member units with distinct cultural-linguistic characteristics (Popelier and Sahadžić 2019).

As exemplified by the ancient Lycian League, recognizing membership equality in principle does not necessarily amount to numerical voting equality as it was established in the US senate and other federations following the American model. The second legislative chamber in the German Federal Republic, the Bundesrat, employs a weighted system of voting. Respective of their populations, the Länder (member states) have between three and six votes. One might say that these provisions give expression to a compromise between equality and proportionality.

 

Subsidiarity

Even though subsidiarity gained notoriety only when it explicitly appeared in the 1992 Maastricht Treaty of the European Union, it has been implicitly present as a guiding principle for the division of powers in all federal systems. As a general principle of political philosophy, subsidiarity gives expression to the idea that all decisions should be taken as closely as possible to the people directly affected by them. In terms of federalism, this means that the constituent members of a federation should retain autonomy over matters particular to them and, reversely, that the federal or union government should act on behalf of all members only subsidiarily, when a matter of common interest cannot be resolved by the members individually.

As such, subsidiarity in the context of federalism must not be confused with the meaning and objective of subsidiarity in Catholic social doctrine (Hueglin 2021a, 31-32), the primary objective of which is to protect if not insulate Christian civil society from competing regulatory intrusions by public power. In the context of federalism, by comparison, the principle of subsidiarity is meant to provide a test of political legitimacy for the appropriate allocation of public power. As such, subsidiarity considerations not only aim at safeguarding spatial identity and local autonomy, they may also deliberately overrule efficiency concerns favouring centralization.

The first explicit formulation of subsidiarity occurred in 1571 when the General Synod of the Dutch Reformed Churches in the Eastern Frisian city of Emden resolved that “provincial or general assemblies must not deliberate on matters already decided at a lower level,” and that “they shall concern themselves only with such matters as pertaining to all churches generally” (Akten 1571, 79-83). Intellectually formed by the same Calvinist environment, Althusius then recast the idea of subsidiarity in procedural terms as a principle of pluralized governance: The members of a composite polity will decide by majority only “in matters that concern all orders together, but not in those that concern them separately” (1614, VIII. 70). Member autonomy over matters of particular need or interest, in other words, is secured by veto rights.

Over time, however, under conditions of ever more complex modern governance, the boundaries of what is common or universal, and what is local or particular, have become blurred. With all orders of government active in almost any policy field, federal divisions of power are no longer about who should do what but about who should do how much of what. In such a context of governance complexity, the principle of subsidiarity does not so much provide a formula for the final allocation of powers as it offers heuristic guidance for the distribution of tasks in what essentially amounts to negotiated power sharing agreements.

As such a principle of heuristic guidance, subsidiarity ultimately gives expression to a dialectical relationship of autonomy and interdependence in federal systems. Autonomy means indeed that the constituent members of a federation should retain authority over what is particular to them. At the same time, however, interdependence requires a commitment to social and regional balance in a federal system that precludes parochial withdrawal from common responsibility. Subsidiarity and social solidarity are two sides of the same federal coin.

 

Social Solidarity

Constituent members enter into a federal union with the expectation that there will be benefits for all. Constitutionally guaranteed equal rights and powers are meaningless without equal or at least equitable material means to act upon them (Hueglin 2015). In order to provide and maintain political and social stability, the federal bargain therefore contains a commitment not only to mitigate structural economic inequalities, but also and more importantly to correct inequalities resulting from inevitably shifting economic fortunes. Legitimately functioning federal systems, in other words, require what has been called a “political surplus recycling mechanism” (Varoufakis 2016, 37).

Such a mechanism can come in many forms that ultimately all amount to asymmetrical redistribution of general revenue. The German constitution recognizes “equitable living conditions” as a federal principle (Article 72.2), and the Canadian constitution obliges the federal government to make fiscal equalization payments so that all provinces have “sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation” (Section 36.2). Federalism is in this way incompatible with the dictates of free market ideology.

 

Federal Comity

Just as political parties and their leaders in a democracy must abide by the rules of the game, accepting electoral outcomes and limits to power, so the members and governments of a federal union must act in a pro-federal manner. This means not only accepting the division of powers and other rules of the game, but also acting within these rules in a way that is respectful of each other’s needs and interests. Federal comity ultimately is a behavioural maxim. Inherent in the original compact, treaty, or constitution, is a commitment of loyalty to the union and among all its members and governments.

For good measure, however, modern federal constitutions contain formal requirements ensuring that this loyalty is not easily betrayed. Constitutional guarantees protect the territorial integrity of the federated member units. Constitutional amendments require broad super majority approval of the member units. An independent judiciary provides constitutional interpretation and final arbitration of power disputes (Hueglin and Fenna 2015). Yet while these constitutional safeguards are of primary importance for the stability of a federal union, they still will only work so long as the members of that union abide by their original commitment to federal comity, loyalty, or, as the Germans say, Bundestreue (Arban 2017). Because of the built-in tension between autonomy and interdependence in federal systems (Benz 2021, Hueglin 2021b), federal comity is the normative glue that keeps a federal union together as a partnership of spatial communities.

 

Hueglin, T. O. 2021. ‘Shades of Federal Theory’, 50 Shades of Federalism. Available at: https://50shadesoffederalism.com/theory/shades-of-federal-theory/

Bibliography and Further Reading

Althusius, Johannes (1614) Politica. Indianapolis: Liberty Fund 1995.

Arban, Erika (2017) “Exploring the Principle of (Federal) Solidarity.” Review of Constitutional Studies 22: 2, 241-60.

Benz, Arthur (2021) Föderale Demokratie. Baden-Baden: Nomos.

Davis, S. Rufus (1978) The Federal Principle. Berkeley: University of Callifornia Press.

Die Akten der Synode der Niederländischen Kirchen zu Emden vom 4. – 13. Oktober 1571 (1571) Neukirchen-Vluyn: Neukirchener Verlag 1971.

Dryzek, John S. and Anne Phillips eds. (2006) The Oxford Handbook of Political Theory. Oxford: Oxford University Press.

Habermas, Jürgen (1974) Theorie und Praxis. Frankfurt: Suhrkamp.

Hueglin, Thomas O. (1999) Early Modern Concepts for a Late Modern World. Waterloo: Wilfrid Laurier University.

Hueglin, Thomas O. (2015) “Social Justice and Solidarity as Criteria for Fiscal Equlization.” In R. Geißler et al. eds. Das Teilen beherrschen. Baden-Baden: Nomos.

Hueglin Thomas O. (2021a) “Federalism as a Yardstick for Democray.” In Arthur Benz and Jared Sonnicksen eds. Federal Democracy at Work. Toronto: University of Toronto Press.

Hueglin, Thomas O. (2021b) Federalism in Canada. Toronto: University of Toronto Press.

Hueglin Thomas O. and Alan Fenna (2015) Comparative Federalism. Toronto: University of Toronto Press.

Karmis, Dimitrios and Wayne Norman (2005) Theories of Federalism: A Reader. New York: Palgrave Macmillan.

Koselleck, Reinhart (1972) “Bund, Bündnis, Föderalismus, Bundesstaat.” In Otto Brunner, Werner Conze and Reinhart Koselleck eds. Geschichtliche Grundbegriffe volume 1. Stuttgart: Ernst Klett.

Livy, Roman History. Online at https://www.gutenberg.org/ebooks/19725

Montesquieu (1748) The Spirit of the Laws. Transl. Anne M. Cohler et al. Cambridge: Cambridge University Press, 1989.

Polybius, The Histories. Online at https://www.gutenberg.org/ebooks/44125

Popelier, Patricia and Maja Sahadžić eds. (2019) Constitutional Asymmetry in Multinational Federalism New York: Palgrave Macmillan.

Proudhon, Pierre-Joseph (1863) The Principle of Federation. Transl. Richard Vernon. Toronto: University of Toronto Press 1979.

Renner, Karl (1899) State and Nation. In Ephraim Nimni ed. National Cultural Autonomy and its Critics. London: Routledge.

Strabo, Geography. Online at https://www.gutenberg.org/files/44886/44886-h/44886-h.htm

Varoufakis, Yanis (2016) And the Weak Suffer What They Must? London: Bodley Head.