COMPARATIVE CONSTITUTIONAL FEDERALISM
Nenad Dimitrijevic
Fall Term 1995
Department of Legal Studies, Budapest
CENTRAL EUROPEAN UNIVERSITY



COURSE DESCRIPTION


The aim of this course is to offer an introductory comparative analysis of modern and contemporary federalism. As the term "constitutional" suggests, the exclusive subject of the course is the democratic federalism: we will explore constitutional democracies that the adopted a federal system of government (with the focus on The USA, Canada, Switzerland, Germany, and India). Combining methodological approaches of constitutional law and political science, we will search for those patterns, similarities and differences among democratic federations that help clarify their basic nature and functioning.

One of the main purposes of case-studies will be to check validity of the normative axiom which states that federalism makes sense only within the framework of constitutional democracy. This statement is obviously in contradiction with empirical data: if we limited our ambition to the mere description of existing federal states, a probable conclusion would be that federalism is at home in very different political systems, including totalitarian ones. Therefore, to say that federalism is a specific form of constitutional democratic rule, means to accept and explore it as both value concept and institutional arrangement.

Institutional structure of a democratic federation rests always - despite otherwise enormous differences among federal countries - upon a basic presumption of the worth and validity of differences/distinct identities within a state. Federal form of government gives constitutional and political relevance to the state's territorially grouped diversities. The main justification of the federal structure is of liberal nature: to guarantee basic human rights where implementation of some of these rights - because of tradition, culture, ethnicity, social or geographical reasons - is linked to identifiable groups that form territorially delimited communities within the common state.

At the same time, since federation is not "government of governments," but a political community sui generis , it must be able to reconcile conflicting claims of autonomy (of federal units) and unity (of common state). The tension between pluralism and consensus is the common feature of all federations - through the analysis of different federal practices, we will try to show that the balance between these two poles is the essential condition for a successful federation. This balance, in the of constitutional arrangements, is possible only in democracy: based on primacy of human liberty, democracy is the only governmental form that recognizes pluralism and inner societal differences as legitimate ingredients of its own existence. Being by definition limited government , democracy is able to accept, to promote and to protect diversities that act as reasons for implementation of the federal formula, preserving at the same time stability of the common state.

Throughout our course we will be dealing with 1.) normative basis of federalism, 2.) inner divisions that, combined with common interests, act as reasons for implementation of federalism in different countries, 3.) constitutional structure of federal state (division of powers; representation of member-states in federal institutions; independent judiciary as guarantor of federal arrangements), 4.) dynamics of federalism ( how federations succeed/fail in the face of contemporary challenges; 'dual' vs. 'cooperative' federalism; the so-called 'crisis of federalism';growing centralization vs. dangers of disintegration).

The course will be divided into seven topics, in the following way:

I. Introduction : Basic Concepts


(Note: In this lecture we will analyze main issues of our course in an introductory way, without trying to find definite answers. Rather, the ides is to offer preliminary notions and methodological approaches that will serve as conceptual framework for case-studies.)

- what federalism is
- why federations are created
- prerequisites of federal government
- federal balance: autonomy vs. unity
- federalism and liberty
- federal political culture
- federation as a specific form of constitutional government
- basic architecture of a federal constitution
- division of powers between member-states and central government
- representation of member-states in central government
- solving the conflicts: the role of the judiciary

II. The USA: Modern Federalism in its Model-Form

III. Canada: Federalism as a Remedy for Societal Cleavages

IV. Switzerland: Consociational Federalism

V. Germany: Strange Success of an Imposed Federalism

VI. India: A Case of Dubious Federalism

VII. Conclusion: Tendencies and Prospects of Federal Government




Digitized version prepared by the Curriculum Resource Center (CRC)
CEU Budapest, Hungary
Revised: April 1996

Dim_ConstFed.F95Leg.v2


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