Federalism: Comparative and Theoretical Perspectives

The federal principle has made a long ‘journey through time in quest of a meaning’ (S.R. Davis). Its etymological origins lie in ‘foedus’—a word that signified ‘compact’ or ‘contract’. Contractual bonds are variously made; and the federal principle was thus open to a variety of conceptual directions. Early on, the federal idea became associated with legal arrangements between political communities; yet modern federalism only emerged with the rise of the modern State system, whose normative pluralism provides the conceptual background to all modern federal thought. It is the moment when federalism could come to refer to legal arrangements between normatively distinct political communities: states.

However, not one but three historical traditions of federalism emerge in the modern era: the international, the American, and the European (national) tradition. The meaning of the federal principle thereby differs in each tradition. In a first stage, the dogma of State sovereignty relegated the federal principle to purely international and contractual relations between sovereign States; federal Unions were conceived as international organizations (Pufendorf, Kant). By the end of the eighteenth century, this international tradition became overshadowed by a new American tradition. In this tradition, federalism came to represent the ‘middle ground’ between international and national law (Madison, Tocqueville). This mixed format was, in turn, challenged in the course of the nineteenth century, when a third (European) tradition now insisted on a national and constitutional meaning of the federal principle. Federation here came to mean Federal State (Jellinek, Laband).

Since the end of the ninetieth century, this national tradition – insisting on the indivisibility of sovereignty – has generally prevailed. And despite unprecedented transfers of power to the international sphere (European Union, United Nations) and an often – parallel – downward decentralisation towards the regional sphere (Italy, United Kingdom), the normative ideal of state sovereignty continues to reign supreme today. But if the “State” is too small for the big global problems yet too big for the small local ones, what does this mean for our constitutional theories? Should modern social developments – such as economic globalisation – not eventually challenge our traditional legal theories? Contemporary international and constitutional theory is still not able to satisfactorily deal with non-sovereign subjects today, even if the emergence of the European Union has seriously challenged classic legal doctrine. For the Union was immediately seen to stand on the “middle ground” between international and national law (Hay, Sasse). Yet, Europe’s conceptual tradition initially blocked the identification of that “middle ground” with the federal idea and the Union was proudly declared to be sui generis (Walker, Weiler).

When and how did the “American” idea of a “federation of states” return? Its revival in discussions of the European Union was slow. In a first step, it was accepted that the Union had borrowed the federal principle from the public law of federal States (Haas). The European Union was thus said to be the ‘classic case of federalism without federation’ (Burgess). It had ‘federal’ features but was no ‘federation’ because federation still meant Federal State. In order for European constitutionalism to accept the idea of a ‘Federation of States’ a second step was required. Europe needed to abandon its obsession with the idea of undivided sovereignty and accept that ‘[t]he law of integration rests on a premise quite unknown to so-called ‘classical’ international law: that is the divisibility of sovereignty’ (Pescatore). Today, the European Union is indeed a “Federation of States” and may even represent the best manifestation of ‘true’ federalism that presently exists in positive law.

Ever since my PhD thesis, I have been working on the federal nature of the European Union in one way or another, with a range of publications already out. (The key publication that is however still missing is the third volume on the changing structure of European law entitled “From International to Federal Union”.) And beginning with my earlier ERC project on “Neo-Federalism: Towards a New Federal Theory for the 21. Century”, I have also been trying to explore supranational federalism beyond the European Union. One future publication here will be the long promised “Oxford Handbook on Federalism”.