Why Federalism Matters – Francesco Palermo and Karl Kössler, Comparative Federalism Concepts and Case Law, Oxford, Hart, 2017, 478 pp.

Why are federal and regional systems looked at with increasing interest? What are their objectives? How do these systems look like in times of globalization and supranational integration? How are powers divided legally and exercised in practice? How do courts interpret intergovernmental relations? Which are the lessons to be learned and applied by practitioners, policy-makers and civil servants, operating within federal and regional systems?

The volume “Comparative Federalism: Concepts and Case Law” offers an updated, profound and original analysis of both the legal dimension and the practical implementation of federalism in different systems, taking into account their transformation by processes of globalization and supranational integration. In fact, modern institutional forms of federalism are much more diverse than the traditional concept of the aggregation of sovereign states suggests. In fact, we claim that such coming-together federation, where a new national constitution transforms sovereign entities in a moment of a “federal big bang” into legally derived but autonomous subnational entities, are not anymore the only manifestations of federalism (p. 40). Besides traditional federal states through aggregation, such as the United States and Switzerland, the concept today comprises also those created by a devolutionary process as well as regional states and, with regard to some structural elements, even the European Union. This new situation of different paths of federalization requires comparative analysis as well as a re-interpretation of traditional concepts, challenging the rigid distinction between federalism and regionalism and presenting them in a common framework.

Most handbooks and manuals on federalism take either a political theory (Burgess, among others) or a comparative politics approach (Huegelin and Fenna, for example). Our book, by contrast, is characterized by the perspective of comparative constitutional law as well as by a strong emphasis on the functional and practical dimensions of federalism. This is reflected in the two most innovative elements of the book. First, it explores from a comparative point of view the legal frameworks that allow for multilevel policy-making and interaction, which is a practical necessity in a globalized world. The selection of highly relevant policy fields, such as  environmental protection, immigration or social welfare and healthcare, permits the illustration of the interrelations across different systems. Secondly, the comparative analysis of the case law of constitutional and supreme courts illustrates the practical impact of federalism on the lives of citizens. Dozens of court decisions from federal and regional states worldwide, from the 18th to the 21st century, explain in an easily accessible format the most complex debates in federal systems and their (often diverging) solutions. Case law boxes discussing seminal judgments demonstrate the practical impact of federalism on policy-makers and citizens alike. They also show how, on the other hand, policy-makers and citizens shape federalism by taking disputed matters to the courts. In view of the growing complexity of modern governance, with policy challenges usually requiring efficient interaction of actors at different government levels and even from the non-governmental sector, such disputed matter are bound to increase. At this point, it is crucial to recognize that conflicts over these issues are not per se negative but inherent to federalism (and governance, more generally) so that the real question is how to solve them, amicably through intergovernmental cooperation or judicially through constitutional and supreme courts as ultimate umpires.

Our book is divided into three main parts. The first deals with theory, history and current most essential debates on federalism. In dealing with conceptual and definitional issues, we deny that federalism can be defined in a universally acceptable way. At the same time, however, the analysis shows that the absence of a definition, which goes beyond the characteristic combination of self-rule and shared rule, does not in any way impede the possibility of meaningful analysis (p. 64). Simply, societal developments as well as historical and cultural backgrounds have great influence on how federal systems deal with the various and constantly evolving challenges they must face. The book takes a very useful methodological approach in comparative works: instead of looking at different countries separately, it first identifies the issues and then analyses them on the basis of the solutions chosen in the different systems, focusing on the comparative relevance or on the originality of each case.

The second part of the book focuses on “self-rule and shared-rule” (mirroring the famous definition of federalism by Daniel Elazar) and takes into account the dynamic relationship between the levels of government in federal systems. In this part, the institutional and procedural instruments for the functioning of federal systems (constituting the so-called “toolbox of federalism”) are analyzed in a comparative perspective. The toolbox  includes, first, mechanisms ensuring a significant scope of autonomy of subnational units. This capacity of self-rule has a constitutional dimension, embodied by the (limited) right to have an own subnational constitution, a legislative dimension, an administrative dimension and, at least in some cases, a judicial dimension through own subnational courts. Secondly, possibilities of  subnational entities to participate in national decision-making processes is essential for federalism’s element of shared rule and may take many more forms than the traditional instrument of the less and less relevant second chambers. Thirdly, the toolbox comprises the mechanisms regulating financial relations. Only adequate funds and the freedom to spend them according to own priorities enable truly autonomous policy-making, while financial equalization ensures, to very different degrees, redistribution within a federal system in the name of fairness and solidarity. Fourthly,  instruments (political, judicial, institutional and procedural in nature) are, as mentioned above, essential to prevent and resolve conflicts in a world of increasingly complex governance. Fifthly, our overview of the federal toolbox also takes into account the increasing role of local governments. Even if a focus on local governments does not fit easily with the traditional dualistic approach of federalism,  this is justified by their increasing practical significance, in view of globalization and urbanization especially for governance in metropolitan areas.

The third part of the book is the most innovative, focusing on how different federal systems approach a set of distinct yet common policy issues. These range from the protection of fundamental rights, the provision of social welfare and healthcare, the protection of the environment as well as immigration and migrant integration to external relations. In analyzing the different instruments in place in different countries, this part provides useful insights for both scholars and practitioners on how to manage some of the most crucial contemporary challenges in multilevel systems. As the division of powers between the national government and the subnational entities deviates significantly from case to case, there is no “magic formula” for dealing with the same topic in different federal systems, but rather a set of instruments whose effectiveness depends on a number of factors that are both legal and meta-legal. Issues such as history, society, demography, language, ideology and culture are no less significant factors than the legal instruments in coping with complex reality through effective multilevel policy-making.

Such an approach is functional to our firm belief in the practical and pragmatic meaning of federalism, whose purpose is ‘the effective management of pluralism’ (pp. 6, 449). To this end, our book’s analysis shows that federal systems often respond differently to the same problem by deploying different tools, or by deploying the same tools in different ways, because of the sometimes very different historical or institutional circumstances.  This means that responses to pluralistic challenges are and ought to be different, but the problems are essentially similar. In the conclusions, the book spells out what the authors consider the most significant challenges for contemporary governance that the toolbox of federalism can contribute to solve. In our view, these are the “4Ps”, namely the management of pluralism (the overall challenge and the primary goal of federalism in all its manifestations) by means of institutional and societal participation, both formal and informal procedures and policies within their legal context, being devised on the basis of the distribution of powers and interpreted (sometimes invalidated) by courts. Looking at how the federal toolbox is being used in dealing with these challenges can help a great deal in developing up-to-date solutions to commonplace problems of contemporary societies and in showing the growing relevance of federal studies in todays’ world.

Posted by Professor Francesco Palermo (Director – Institute for Comparative Federalism EURAC research) and Karl Kössler (Senior Researcher – Institute for Comparative Federalism Eurac Research)