Beyond Autonomy: Practical and Theoretical Challenges to 21st Century Federalism 9789004446755, 2020056536, 2020056537, 9789004446748

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Beyond Autonomy

Tracy B. Fenwick and Andrew C. Banfield - 978-90-04-44675-5

Studies in Territorial and Cultural Diversity Governance Series Editors Francesco Palermo Joseph Marko Editorial Board Cheryl Saunders (University of Melbourne) G. Alan Tarr (Rutgers University, Camden, nj) Anna Gamper (University of Innsbruck) Nico Steytler (University of Western Cape) Petra Roter (University of Ljubljana) Joshua Castellino (Middlesex University) Stefan Oeter (University of Hamburg) Ilze Brands-​Kehris (Director hcnm Office, The Hague)

volume 12

The titles published in this series are listed at brill.com/​tcdg

Tracy B. Fenwick and Andrew C. Banfield - 978-90-04-44675-5

Beyond Autonomy Practical and Theoretical Challenges to 21st Century Federalism

Edited by

Tracy B. Fenwick and Andrew C. Banfield

LEIDEN | BOSTON

Tracy B. Fenwick and Andrew C. Banfield - 978-90-04-44675-5

Library of Congress Cataloging-​in-​Publication Data Names: International Association of Centers for Federal Studies. Conference (2018 : Australian National University) | Fenwick, Tracy Beck, 1975-​ editor. | Banfield, Andrew C., editor. | Australian Centre for Federalism, host institution. Title: Beyond autonomy : practical and theoretical challenges to 21st century federalism /​edited by Tracy B. Fenwick and Andrew C. Banfield. Description: Leiden, The Netherlands : Koninklijke Brill NV, [2021] | Series: Studies in territorial and cultural diversity governance, 2213-​2570 ; volume12 | Includes index. | Identifiers: LCCN 2020056536 (print) | LCCN 2020056537 (ebook) | ISBN 9789004446748 (hardback) | ISBN 9789004446755 (ebook) Subjects: LCSH: Federal government–Congresses. | LCGFT: Conference papers and proceedings Classification: LCC K3185.A6 I573 2018 (print) | LCC K3185.A6 (ebook) | DDC 342/​.042–​dc23 LC record available at https://​lccn.loc.gov/​2020056536 LC ebook record available at https://​lccn.loc.gov/​2020056537

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/​brill-​typeface. issn 2213-​2 570 isbn 978-​9 0-​0 4-​4 4674-​8 (hardback) isbn 978-​9 0-​0 4-​4 4675-​5 (e-​book) Copyright 2021 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Requests for re-​use and/​or translations must be addressed to Koninklijke Brill NV via brill.com or copyright.com. This book is printed on acid-​free paper and produced in a sustainable manner.

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Contents  Foreword: Reflections on Australia’s Recent Efforts at Federal Reform 2013–​15 vii David de Carvalho  Acknowledgements xvi  List of Illustrations xviii  Notes on Contributors xix

part 1 Revisiting the Idea of Autonomy in Federalism: Theoretical Considerations 1  Beyond Autonomy Practical and Theoretical Challenges to 21st-​Century Federalism 3 Tracy B. Fenwick 2  Squaring the Circle? Balancing Autonomy and Intergovernmental Relations in Federal Democracy 11 Arthur Benz 3  Is Federalism Natural? Rethinking Federalism’s Origin, Operation and Significance 27 Troy E. Smith 4  Sovereignty and Autonomy of Constituent Units in Federal and Regional Systems A Case Study of Italy 47 Erika Arban

part 2 Balancing Autonomy from within: Institutions and Actors 5  (Still) in Search of the Federal Spirit Autonomy and Self-​Determination in Multinational Federations 69 Félix Mathieu and Alain-​G. Gagnon

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vi Contents 6  The Political Reconstitution of Canadian Federalism 88 Anthony M. Sayers 7  ‘Swimming Outside the Flags’ Continuity and Change in Australian Intergovernmental Management 112 Isi Unikowski

part 3 Challenges to the Autonomy of Federal Sub-​units: The Policy Problem 8  Australian Health-​Care Federalism Beyond the Logic of Autonomy 137 Alan Fenna, John Phillimore and Vijaya Ramamurthy 9  Federalism and Security in the 21st Century 158 Christian Leuprecht and Mario Kölling 10  Sub-​National Tax Autonomy in Argentina’s Fiscal Constitution A Perspective from Recent History 172 Miguel Angel Asensio

part 4 Real versus Imagined Autonomy: Emerging Federations 11  Real or Imagined Local Autonomy Experiences from Local Government in Ethiopia, South Africa and Zimbabwe 191 Tinashe Chigwata, Jaap de Visser and Zemelak Ayele 12  Concluding Remarks 217 Andrew C. Banfield  Index 225

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Foreword: Reflections on Australia’s Recent Efforts at Federal Reform 2013–​15 David de Carvalho Those familiar with the Game of Thrones books and television series will know that the popular saga depicts the seven clans who rule the seven kingdoms of Westeros involved in a multi-​generational and bloodthirsty struggle for political supremacy. The ultimate prize is to sit on the Iron Throne, the seat of power that can be wielded either for the good of all citizens or for the benefit of the elite. It is a story of ego, of good and evil, of honour and treachery, of alliance and betrayal, in which the destinies of the protagonists and the outcome of the ultimate denouement are always in doubt. Just when you think the forces of good are going to prevail, they suffer a setback as the narrative arc takes another surprising twist. The key question is whether the seven kingdoms will finally be united into a peaceful and prosperous federation, in which the most powerful clan is also the wisest and most benevolent, allowing the other six clans a high degree of autonomy to run their own kingdoms, but at the same time setting the overall direction and tone of civic affairs and politics. From my experience as a senior public servant, the story of Westeros’s seven kingdoms could be creatively construed as a parable about the perils of federal reform, with some violence, sex, magic, zombies and dragons thrown in to make it more interesting. I have no doubt that the author, George Martin, had the travails of federalism front of mind in writing Game of Thrones—​though perhaps not to the same extent as William Shakespeare had the problem of tyranny front of mind when he wrote Richard iii, The Winter’s Tale and Macbeth. Martin may, apocryphally, even have had Australia’s federation in mind, judging by the presence of a seven-​pointed star above the Iron Throne, reminiscent of the ‘Federation Star’ depicted on our national flag. In Australia, our most recent concerted effort at reforming relations between the national and provincial governments came after the election of Tony Abbott’s Coalition government in 2013, and the establishment of a White Paper process on the ‘Reform of the Federation’. In this Foreword, I want to provide a brief account of that White Paper process from an insider’s viewpoint, up until September 2015 when the prime minister was removed from his role in a bloodless version of a Game of Thrones sub-​plot. I will conclude by offering

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some observations, based on this experience, about how federal reform might be prosecuted in the future. After winning the 2013 federal election, the new prime minister established a dedicated taskforce in his department to run the reform process and provide expert advice on reform options. I regard myself as very fortunate to have been asked to run that taskforce. However, the usual reaction to this news from my colleagues in the Australian Public Service was merely one of pity. ‘Good luck with that’, was a common response from my peers. Many colleagues offered the helpful and only half-​joking suggestion along the lines of: ‘Oh, reforming the federation is easy—​just get rid of the states!’. This fresh attempt to cut the Gordian knot of tangled relationships and responsibilities followed reforms introduced under the prime ministership of Kevin Rudd in 2008, which were intended to usher in a new era of collaborative or cooperative federalism, and which involved the establishment of the coag Reform Council—​c oag being the acronym for the Council of Australian Governments set up in the 1990s. The coag Reform Council was an independent, cross-​jurisdictional body charged with monitoring progress on, and fidelity to, a vastly reduced number of intergovernmental agreements. It was intended to accurately measure comparative performance against ‘agreed’ targets and funding regimes. An early indication of Prime Minister Abbott’s approach to federal reform was to abolish the coag Reform Council entirely. In retrospect, this was a strange decision, as the Council could have been an important ally in prosecuting the case for reform under the Coalition government. In announcing the White Paper process, Abbott said, like many of his predecessors, that he wanted to address the growing problem of ‘overlap, duplication and inefficiency’ associated with the fact that in many areas of public policy, both the national and state/​territory governments were running programs and initiatives that took no account of the impact of existing programs run by the other layer of government, resulting in misalignment and waste, and confusion for the citizenry (Abbott 2014). In a landmark speech to mark the 125th anniversary of the famous Tenterfield address by Sir Henry Parkes, widely recognized as the leader of the movement to unite the various colonies of Australia into a single federation, he noted that when Parkes delivered his important address: Then we had no national government. Then we had six colonies, each of them with a prime minister. No army, no unified railway, an embryonic sense of Australian-​ness, but no nation that we could call our own, no government that was our national government … That was then—​these

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days are different. We certainly have a national government and yet we have an unsatisfactory system of governance, because all too often wherever you look—​whether it be the roads, the schools, the hospitals—​it’s hard to know who is in charge. abbott 2014

The importance of ‘knowing who is in charge’ was the key idea behind Abbott’s publicly declared aspiration to shrink the role of the national government in those matters which were constitutionally the responsibility of states. He wanted what he referred to as ‘clean lines’ that clarified what areas the national government was responsible for and what areas were the preserve of the states. He urged his fellow jurisdictional leaders to ‘fix the dog’s breakfast of divided responsibilities’, so that, in his vision, states would be ‘sovereign in their own sphere’. And he wanted to reform Commonwealth/​state financial relationships to make the states less dependent on the national government. To this end, at the same time he initiated a Tax Reform White Paper, and the two processes were intended to progress in lock step, such that the reform of the tax system would enable a ‘grand federal bargain’, with the states taking on more responsibility for their own fiscal situation, and being given more scope to do so as the result of the Commonwealth ceding some of its fiscal power to the provincial level of government. In adopting this forceful attitude, Abbott was guilty of what many people operating at the national level regarded as heresy. The point of the national government, according to the orthodox view from Canberra, was to leverage the Commonwealth’s superior fiscal power to bend the states to the will of the national government through financial bribery, while at the same time avoiding as far as possible any political responsibility when your meddling in state affairs turns out to have unintended negative consequences. Ever since the transfer of income-​taxing powers to the Commonwealth during the Second World War, enabling the Commonwealth to collect the lion’s share of revenues, it has exploited, in a fairly undisciplined way, Section 96 of the Australian constitution, which says that the Commonwealth can make grants on conditions to the states for any purpose. In doing so, it has reversed the balance of power between the Commonwealth and states envisaged by the original framers of the constitution. That is not to say that evolving democratic development should remain constrained within the imagination only of the original framers. It is, rather, simply to highlight that through the course of Australian constitutional history, the power and reach of the national government has grown considerably, so much so that there is virtually no major area of state responsibility that is

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not significantly affected by national policy and national money. This bears out the view of Alfred Deakin, writing anonymously in the London Morning Post in 1902: As the power of the purse in Great Britain established by degrees the authority of the Commons, it will ultimately establish in Australia the authority of the Commonwealth.  The rights of self-​government of the States have been fondly supposed to be safeguarded by the Constitution. It left them legally free but financially bound to the chariot wheels of the Central Government. Prime Minister Abbott, at least in theory, wanted to remove the ability of the states to blame the Commonwealth for inadequately funding those services for which they were constitutionally responsible. Indeed, he regularly stated that he wanted each level of government to exercise ‘sovereignty in its own sphere’—​it became his mantra. To that extent, the prime minister’s aspirations aligned with the political scientist Robert Dahl’s 1983 definition of a federal democracy as a system in which some matters are exclusively within the competence of certain local units—​cantons, states, provinces—​and are constitutionally beyond the scope of the authority of the national government; and when certain other matters are constitutionally outside the scope of the authority of the smaller units. The White Paper review process got off to a promising start. The timing meant that, after the Victorian election in November 2014, there was going to be clear electoral air for about 18 months around the country. And the officials at both levels of government worked cooperatively to prepare and publish a range of well-​researched issues papers covering health, housing, education and federal financial relations (see Australian Government 2015). Each paper put a number of questions to readers wishing to express views either through written feedback or by participating in round-​table discussions that were well attended by the key business and civil society stakeholder groups. At the political level, the process was being conducted well by the prime minister. There was certainly little evidence on show to support his pugilistic reputation during consultations on federal reform at coag meetings. He saw this as a long-​term process that required patience, perseverance and respect. He was also fortunate to have two strong premiers from different sides of the political fence—​Mike Baird from the conservatives in New South Wales and

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Jay Wetherall from the progressive side in South Australia—​who publicly supported the airing of controversial options. As the prime minister stated, Reforming the federation is not something that one person, one party or one parliament can determine alone. Because it involves numerous governments of different political persuasion, reforming the federation will require people from across the usual political divides and from different levels of government to work together over an extended period of time. abbott 2014

Ultimately, however, this proved too difficult to sustain. The causes that led to the eventual demise of the process are various, both in number and in kind. I will go through them in no particular order. First, while the prime minister may have had a clear view about what he wanted to achieve from the process—​such as cleaner lines of responsibility, a smaller national role in state responsibilities—​it was not the case that his own ministers or their departments were fully on board with the program. There was a degree of passive resistance from Commonwealth line agencies to participation in the interdepartmental committees set up by the prime minister’s department to develop the various options for reform. There were some noble and not-​so-​noble reasons for this lack of enthusiasm. The noble motivation sprung from a genuine belief—​for which there is no shortage of empirical evidence—​that the default tactical position of states and territories is to take as much ‘Commonwealth money’ with as little accountability for how it is spent, and that therefore states cannot be trusted to deliver better outcomes to citizens. The less noble motivation sprang from the threat to the influence of Commonwealth ministers and departments were the national government to wind back its involvement in key areas. Second, apart from the standard process of producing issues papers, calling for submissions, holding a series of roundtables with insider stakeholder groups,and producing a Green Paper outlining options, no genuine effort was made to engage the wider public and generate a strong case for change. A suggestion from the Expert Advisory Panel of eminent persons announced in the ‘Parkes Oration’ to run a nationwide ‘deliberative democracy’ process, was deemed too politically risky, as it could not be easily managed nor the outcome controlled. Third, the prime minister’s own standing within the government was increasingly under threat. His political near-​death experience in March 2015 led him to establish a number of backbench policy committees in an effort to counter

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the accusation that he did not listen to his parliamentary colleagues. One of those was a backbench committee on the Federalism White Paper, chaired by up-​and-​coming then parliamentary secretary Alan Tudge. This committee met four times between March and July (when I departed the process to take up a role in the nsw public service). It generated good engagement from the backbench members, but clearly was too little too late to save the prime minister from the fate that awaited him. Fourth, trust between the states and the Commonwealth was weakening. The new Labor Government in Victoria was less engaged in the process than its predecessor. And in June 2015, the good work done by officials over the course of the previous 18  months was undermined by the leaking of a very early draft of the Green Paper, probably for opportunistic reasons. The draft included a number of recommendations that had been included at the request of the prime minister, as well as a number whose inclusion was dictated by theoretical policy logic, without any real regard to political practicalities. All the officials regarded it very much as a working draft and shared the view that the final version would be more politically saleable. The leak allowed the federal Labor opposition to highlight the less likely options as if they were government policy—​for example, the idea that the Commonwealth would cease funding government schools. The prime minister took the view that, in this situation, it was better to release the whole document and call it a ‘discussion paper’. Recovering from that damaging loss of trust was always going to be difficult, and arguably the process was terminal from that point. Fifth, one of the very factors that made the process successful in the early phases—​the ability of officials in all jurisdictions to work collaboratively to negotiate and agree on the wording of the key public documents—​made the process less effective as an instrument of reform. That is, when it comes to genuine reform, it is going to be hard to get agreement, so if you try too hard to get agreement on the issues to be addressed, it is not surprising your agenda ends up being less genuinely transformative than it could have been. Sixth, once the change of leader to Malcolm Turnbull took place at the national level in September 2015, the whole case had to be re-​prosecuted to the new prime minister by the bureaucracy, and the prime minister’s department was not successful in persuading Turnbull of the benefits of his predecessor’s priority. It is unlikely that the prime minister’s department would have had any assistance in this task from any of the line departments that would have been most affected. Seventh, the government was taking policy positions that were at complete odds with the rhetoric of states being sovereign in their own sphere. The new education minister was negotiating a new school-​funding agreement with the

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states that was completely inconsistent with the Intergovernmental Agreement on Federal Financial Relations, resorting to standard Commonwealth rhetoric about holding the states accountable for how the money provided to them for schools was distributed and how it was spent. Finally, the one aspect of the agenda that the new prime minister seemed particularly interested in was the issue of allowing the states to have a defined share of income tax. But when this proposal was presented to them, at the coag meeting held, perhaps auspiciously, on 1 April 2016, there had been little or no prior discussion between Commonwealth and state officials or any of the normal, formal preparations for such an important discussion. In that context, it was completely unsurprising that few states were prepared to even consider it. The Victorian premier even ridiculed it as a ‘thought bubble’. Prime Minister Turnbull’s response was to cite the off-​hand rejection of the Commonwealth’s proposal as further evidence that the states were not interested in any reform that would reduce their ability to blame the Commonwealth for their own policy failures. This further undermined enthusiasm for the reform process. Nothing more was heard of the Reform of Federation White Paper until its death was announced posthumously later the same month by officials in the prime minister’s department in response to questions at Senate Estimates hearings. No other public statement was made to explain its demise. So what useful lessons could be drawn from this experience for those who are interested in reforming federal systems to make them better serve the interests of citizens? 1. Federal reform needs to be driven by prime ministers and they need to get complete buy-​in from key ministers, who in turn need to ensure they get buy-​in from their officials. 2. There needs to be a coherent communications strategy across national government, prosecuted with equal fervour by those key ministers as well as the prime minister, and drawing on powerful examples of how the current arrangements result in citizens experiencing inefficient and ineffective service delivery. 3. Genuine efforts need to be made to engage the broad public to build the case for change; people need to be convinced of ‘the problem’ and support the proposed ‘solutions’. 4. In terms of communications, actions speak louder than words, so federal reformers must ensure the actions of their government align with their stated intentions in regard to relationships with the lower level of government—​above all, show respect for their expertise and experience in local service delivery.

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Strong leadership is also needed at the state level. The prime minister needs cross-​party allies at the state level for reform. Clean air politically is necessary. Once political considerations begin to loom larger with the approach of elections, the temptation to political opportunism is hard to resist. Big Bang reform initiatives involving ‘grand bargains’ are very hard to pull off if reformers do not have all these pre-​conditions in place. Arguably, the Abbott reform process was too bold, too ambitious and too high risk. Too much could go wrong and did. The policy logic was right—​in order to drive true reform you had to be able to address taxation issues as well as expenditure issues across areas that matter deeply to citizens: education, health, housing, in particular. But going about reform of the Australian federation this way is the equivalent of solving a Rubik’s cube that has 100 squares on each face, not just nine. Clearly, there were just too many moving pieces, too many vested interests to contain the politics. At this point I am reminded of the prescient warning issued by Machiavelli to would-​be reformers: it must be remembered that there is nothing more doubtful of success, nor more dangerous to manage than a new system. for the initiator has the enmity of all those who would profit by the preservation of the old institutions, and merely lukewarm defenders in those who gain by the new ones.

8.

Finally, in reflecting on our trajectory of reform, it appears that the love of money is the root of all evil. In other words, the centralized fiscal power of the national government must not be allowed to get to a point where, when it gets too extreme, it cannot but be involved in almost every area of state responsibility, where the notion of genuine autonomy for provincial governments is little more than a fiction. I think Australia has for too long been drifting into this situation, so that it is now difficult for citizens and politicians and officials to imagine that things might be different. It is more than likely that state governments have become so used to their financial dependence on the Commonwealth that they do not actually want more autonomy and the political responsibility that comes with it. This is a pity for good government in Australia. But someone has to keep that flame alive, and point out how the federation could be better if the underpinning principle of subsidiarity was more respected. To return to my Game of Thrones analogy, perhaps the White Paper was killed off like some of the characters in the drama, but can be brought

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back to life by those carrying the fire of the federalist faith. Many of the people attending the 2018 federalism conference hosted by the International Association of Centers for Federal Studies are those who will keep the flame alive. I wish them all the best in their future endeavours. References Abbott, Tony (2014). Sir Henry Parkes’ oration. Address by the prime minister, Tenterfield, nsw, 25 Oct. Australian Government (2015). Reform of the Federation Green Paper, Discussion Paper, Canberra. Dahl, Robert A. (1983). Federalism and the democratic process, in J. R. Pennock and J. W. Chapman (eds), Liberal Democracy. Nomos 25, New York: New York University Press, pp. 95–​108.

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Acknowledgements This collection of essays started at the 2018 International Association of Federal Centres Annual Conference hosted by the Australian Centre for Federalism at the anu in Canberra Australia. We were fortunate to have Elisabeth Alber and Arthur Benz as visiting fellows at the federalism centre to offer us sage advice on the thematic development of the “beyond autonomy” idea. There was enthusiastic agreement that a book should be produced to capture the spirit of that conference. We want to thank all of the contributors for their thoughtful comments and helpful suggestions in the production of this book. We also want to thank the College of Arts and Social Science, the Research School of Social Sciences, the School of Politics and International Relations, and Australian Federalism Centre for their generous support throughout this process. Thanks also to the Department of Political Science at the University of British Columbia who accepted Tracy as a visiting researcher to provide her time and kind collegiality from expert federalists to complete the manuscript. Our thanks to Bea Timmer at Brill who has guided us through the publishing process. An extra special thanks to copy editor extraordinaire, Anne Gelling, who with a gentle humour and a striking red pen made the prose in this book eminently more readable. Finally, Tracy and Andrew want to thank our respective families who endured the longest, crankiest hours of this project. Erika Arban’s research for Chapter  4 was fully funded by the Australian Government through the Australian Research Council (arc) Laureate Program ‘Balancing Diversity and Social Cohesion in Democratic Constitutions’. Chapter 5 is a revised and updated version of a conference paper by Alain-​ G. Gagnon, ‘Internal and external self-​determination process of a minority nation: Quebec in a comparative context’, given at a colloquium on Qualified Autonomy and Federalism versus Secession in the EU and its Member States, Eisenstadt, 26–​8 February 2014. Anthony M. Sayers’s research for Chapter 6 was supported by Insight Grant #43520190964, Canadian Social Sciences and Humanities Research Council, ‘From Chaos to Cohesion:  How Single Member Electoral Districts Shape Political Representation in Canada’. For Chapter 8, John Phillimore and Vijaya Ramamurthy gratefully acknowledge The Australia and New Zealand School of Government (anzsog) for their funding of this research via the project ‘Devolved Governance and Collaboration in the Australian Health System: Is It Working?’.

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Christian Leuprecht and Mario Kölling acknowledge support from the Forum of Federations in Ottawa, Canada, and the Fundación Manuel Giménez Abad in Zaragoza, Spain, for this project. Chapter 9 builds on and extends initial findings from Christian Leuprecht, Mario Kölling and Todd Hataley, Public Security in Federal Systems (University of Toronto Press, 2018). Tracy B. Fenwick and Andrew C. Banfield

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Illustrations Figures 6.1  Average district electoral rank of major parties by election 99 6.2  Federal Liberal vote in Atlantic Canada 100 6.3  Federal Liberal vote in Ontario 101 6.4  Federal Liberal vote in British Columbia 102 6.5  Federal Liberal vote in Quebec 103 6.6  Federal Liberal vote in the prairies 104 6.7  Building a national Liberal government 106 6.8  Governing-​party seats as percentage of total seats, Quebec provincial elections 107 6.9  Governing-​party seats as percentage of total seats, bc provincial elections 108 8.1  Proportion of surveyed lhn board members with association to phn s and other primary care organizations (n=210) 151

Tables 6.1  Character of federal–​provincial intra-​party linkages by major party 97 8.1  Proportion of phn board members with association to lhn s 150 8.2  l hn board member views on the quality of their board’s relationship with phn s (n=192) 152 10.1  Tax Assignment in an Idealized Federal Context 175 10.2  Classification of Tax Powers at the Sub-​Central Government (scg) Level 177 10.3  Modifications to Sub-​national Taxation under the Federal Agreement of 1993 180 10.4  Fiscal Consensus 2017: Tax Cuts and Changes to the iib 182 10.5  Relative Weight of the Tax Burden Generated in Argentina (% of Tax Revenue/​ gdp) 184

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Notes on Contributors Erika Arban is a post-​doctoral research fellow at the Centre for Comparative Constitutional Studies, Melbourne Law School, and lecturer at the Faculty of Law, University of Antwerp. Miguel Angel Asensio is Professor at Doctoral Program in Public Administration at Universidad Nacional del Litoral (unl); Professor of Argentine and International Economic History at Universidad Caólica de Santa Fe (ucsf), President of Observatorio Fiscal Federal (ofif), Buneos Aires. Zemalak Ayele is Associate Professor and Director:  Centre for Federalism and Governance Studies, Addis Ababa University; Extra-​ordinary Associate Professor at the Dullah Omar Institute (doi), University of the Western Cape (uwc) South Africa. Andrew C. Banfield is a Senior Lecturer in the School of Politics and International Relations at The Australian National University. Arthur Benz is a Professor of Political Science, Institute for Political Science, Technical University of Darmstadt. Tinashe Chigwata is a Senior Researcher, Dullah Omar Institute for Constitutional Law, Governance and Human Rights, University of the Western Cape, South Africa. David de Carvalhois is the Chief Executive Officer of the Australian Curriculum, Assessment and Reporting Authority. Jaap de Visser is the Director of the Dullah Omar Institute, Faculty of Law, University of the Western Cape.

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Alan Fenna is a Professor of Politics at the John Curtin Institute of Public Policy at Curtin University. Tracy B. Fenwick is the Director of Australian Federalism Centre, and Senior Lecturer, in the School of Politics and International Relations at The Australian National University. Alain-​G. Gagnon is a Canada Research Chair in Quebec and Canadian Studies and Professor of Political Science in Department of Political Science, at Université du Québec à Montréal. Mario Kölling is an Assistant Professor at Spain’s National Distance Education University (uned). Christian Leuprecht is the Class of 1965 Professor in Leadership at the Royal Military College of Canada, Director of the Institute of Intergovernmental Relations at Queen’s University, and Adjunct Research Professor in the Australian Graduate School of Policing and Security at Charles Sturt University. Félix Mathieu is a Postdoctoral Fellow at the Department of Political and Social Sciences, Pompeu Fabra University, and a Research Fellow at the Canada Research Chair in Quebec and Canadian Studies, Université du Québec à Montréal. John Phillimore is the Executive Director of the John Curtin Institute of Public Policy, Curtin University. Vijaya Ramamurthy is an Adjunct Research Fellow at the John Curtin Institute of Public Policy, Curtin University. Anthony M. Sayers is the Director of the Canadian Elections Database and an Associate Professor in the Department of Political Science at the University of Calgary.

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Troy E. Smith is Professor of Political Science at Brigham Young University, Hawaii. Isi Unikowski is in the Crawford School of Public Policy at the Australian National University.

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pa rt 1 Revisiting the Idea of Autonomy in Federalism: Theoretical Considerations

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­c hapter 1

Beyond Autonomy

Practical and Theoretical Challenges to 21st-​Century Federalism Tracy B. Fenwick The purpose of this book is to return to Riker’s fundamental concern about the relevance of federalism in the 21st century. In order to do so, our chosen conceptual focus is to re-​evaluate the idea of autonomy in both theory and practice in federal studies. A well-​known key characteristic and defining feature of federalism is to combine ‘self-​’ with ‘shared rule’ (Elazar 1987). For many federal scholars, the idea of ‘self-​rule’ signifies autonomy—​autonomy granted not only to territories, but also to key groups (minorities), to decide, finance and implement their own policies via their ability to exercise autonomous sovereign authority in at least some areas of jurisdiction. For Robert Dahl (1986, p. 114), the standard definition of a federal democracy is a system in which some matters are exclusively within the competence of certain local units—​cantons, states, provinces—​and are constitutionally beyond the scope of the authority of the national government; and when certain other matters are constitutionally outside the scope of the authority of the smaller units. [emphasis added] While this underlying logic explains both the purpose and potential of federalism in many of our federations, our central question driving the collective contribution in this book is to ask, does it still hold true in practice for 21st-​century federal systems and their societies, and if not, why? Contested in both the literature and by the authors of the chapters in this book, the idea of ‘autonomy’ in federalism as equating to the ‘self-​rule’ or ‘sovereign authority’ of one level of government pitted against another is re-​ examined. Taking various epistemological perspectives, the goal of the book is not to provide a unified definition of ‘autonomy’ or to redefine it—​an endeavour we soon realized was beyond the scope of an interdisciplinary international collaboration. Rather, our goal is to question whether we could conceptualize federalism beyond the idea of autonomy or, stated otherwise, to ask if autonomy—​the potential of a level of government to ‘go it alone’—​within

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4 Fenwick societies that are increasingly complex and interdependent is still relevant in the 21st-​century context. Our collective consensus is that rather than thinking about a federal system of government as one of ‘clean lines’ of authority, which is in practice unrealistic, scholarship needs to better analyse and explain why some federations generate cooperative behaviour, thus generating both democratic stability and progressive policy outcomes, while others generate instability by transforming constituent unit into dissenters, rivals and even challengers for national power. One easily forgets that the original motivations of federalism were to force people and groups who would prefer not to sit down together to come to the table in order to compromise and to collaborate for the sake of the collective good, be it security-​, economic-​or welfare-​oriented. The origins of federalism were always about ‘coming-​together’ (Riker 1964) or ‘holding-​together’ (Stepan 1999). Therefore, as Benz suggests (Chapter 2), the principle of federalism is about managing interdependence, not preserving autonomy as is regularly assumed. 1

Theoretical Goals

In the theoretical section of the book, several authors raise this challenge, signalling that it may be problematic to begin with the classical conceptions of federalism dating back to the seminal works of William Riker (1964, 1987, 1996). Rikerian federalism frames the constituent units in a federation or federal system as autonomous sovereigns, who both challenge federal power and protect democracy from the dangers of populism. For Riker, what maintained federal systems after they had been formed was the mutual need of two or more levels of government to uphold the federal bargain that is conditioned on each having at least some degree of autonomy, and a guarantee of this autonomy being maintained (1964, p. 11). Using autonomy as a principle to characterize federalism, however, is problematic. As Benz (Chapter 2) highlights, federalism involves a continuous keeping in play of contrasting (and often contradictory) values such as ‘autonomy’ and ‘interdependence’ that are hard to balance. Filipov, Ordeshook and Shvetsova (2004) and Bednar (2009) advance this theoretically by forwarding the idea of ‘self-​sustaining federations’, whereby autonomy is coupled with other conditions that operate as safeguards (structural, political, judicial and popular), in order to ensure the federation has the potential to achieve its intended political and economic objectives. While these influential theories acknowledge that federalism is in fact a ‘collaborative system’, they still characterize federalism as a system of boundaries that

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must be protected from both ‘encroachment by higher levels’ and the ‘shirking’ of responsibility from below. Both dilemmas are characterized as undermining federal stability (see de Figueiredo and Weingast 2005), the central preoccupation of many federal scholars. A Rikerian rational choice perspective, therefore, suggests that when a federal government encroaches on the sub-​units, or the sub-​units shirk or free ride their responsibilities, it becomes a federalism problem—​a turf war about winning or losing autonomy: the majority’s, the minority’s, a federal agency’s, a territory’s, or mine versus yours. Contemporarily, and in violation of what Michael Burgess (2012) refers to as the ‘federal spirit’,1 it is increasingly the judiciary we turn to as the referee of last resort in federal democracies. Supreme courts in federal systems rule on everything from the right of a sub-​national unit to hold a referendum to the legitimacy of its wording, a case Gagnon and Mathieu take up in relation to Canada and Quebec (Chapter 5). The courts have likewise become the ultimate decision makers on policy issues, when public policies compete on questions such as residency requirements for individuals seeking same-​sex marriage or euthanasia, or on defining who is, and who is not, subject to national and/​or local laws. This is problematic for two reasons. First, the operation of federalism becomes dependent on its legal interpretations, which are culturally, historically and contextually defined and cannot be resolved theoretically. As Gagnon and Mathieu, for example, highlight in their contribution to the book, while the Supreme Court of Canada has traditionally recognized ‘the autonomy of the provincial governments to develop their societies within their respective spheres of jurisdictions for much of the past fifty years’, Canada and Quebec had competing societal projects. Second, even moving beyond multinational federations, we know that competing levels of government implement public policies on contentious social issues in order to consolidate both their sphere of autonomy and public legitimacy. Federal courts can, however, undermine this sub-​national ‘legitimacy’, particularly when policy innovations challenge national norms and/​or societal values, because they are either too progressive or not progressive enough. From a judicial perspective, therefore, legal theories of federalism continue to identify autonomy with federalism such that constituent units are conceptualized as both sovereign and autonomous.

1 For Burgess (2012, p. 19) the ‘federal spirit’ is predisposed on notions of political cooperation, compromise, accommodation, and partnership, if not loyalty; i.e. ‘good faith to one another’.

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6 Fenwick Erika Arban (Chapter  4), building on the cases of Italy and Spain, takes issue with this contention. She suggests that while many federal scholars commonly use the concepts of sovereignty and autonomy interchangeably, classifying 21st-​century federations (including emerging, quasi-​federal, regional) is extremely complex. She cites Wheare (1963), who states: There must be some matter, even if only one matter, which comes under the exclusive control, actual, or potential, of the general government and something likewise under the regional governments. If there were not, that would be the end of federalism. [emphasis added] Reiterating the central research question put to the participants of the International Association of Federal Studies 2018 Conference, is it possible to promote the principal of federalism beyond the idea of unit autonomy? If we cannot, federalism’s relevance may wither in the context of increasing interdependence between levels of government. We know interdependence increases along with the complexity of issues to be addressed in the context of increasing financial and economic globalization. As federal scholars, therefore, we should no longer assume that sovereignty is ‘divided’ in all federations as in the traditional Anglo-​American varieties. Peripheral units in the cases of Italy and Spain have constitutionally protected autonomy, but they are not de jure sovereign. Particularly in the case of Spain, where the risk of secession is high, the idea of autonomy as equating to sovereignty de facto is considered a real threat to its current federal arrangements. Now more than ever, we must explore the ways in which federal systems of government can balance interdependency with autonomy. As Benz (Chapter 2) succinctly states, as a system of government, federalism does not imply autonomy of governments at different levels. Rather, federalism invites governments to operate in a mutually coordinated manner (see Bolleyer and Thorlakson 2012). If we accept this theoretical proposition, contemporary federalism can promote the organization of naturally occurring societal complexity. Moving ‘beyond autonomy’ as the organizing feature of federalism, however, may require us as scholars to move beyond Riker. For Smith (Chapter 3), Riker’s explanations of federalism, the so-​called ‘race to the bottom’ in federal systems, presumes a Hobbesian competition for power and control that is based on assumptions of power and greed. Forwarding an alternative conceptualization of federalism based on a theory of human nature and a bottom-​ up complex adaptive-​systems model, Smith challenges the assumption that order must be imposed, arranged and continually maintained. Echoing other contributions, he questions the institutionalist power-​distribution approach

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to understanding how federalism can solve its inherent challenges. Like Benz, he argues that varying design features change the degree of effects, but no institutional design can rule out externalities of policies and interdependence between levels of government. Smith also moves beyond ‘design’ features to suggest that we need to place less emphasis on the issue of sovereignty and top-​down control. Instead, he proposes a socially embedded version of self-​ government and freedom more consistent with a vision of federalism that is naturally occurring, as opposed to one that sees ‘federalism as a waystation towards a more enlightened national union’. In a similar vein, we should no longer assume that the goal of ‘preserving autonomy’ is what ‘holds federations’ together (Stepan 1999). Newly emerging federations such as Nepal, Myanmar and Sri Lanka did not ‘come together’ in order to preserve their autonomy, as Riker (1964) predicted. In these newer federations, power is devolved to the periphery in order to prevent the breakup of a country and to reduce ethnic tensions (Breen 2017). Balancing ethnic and racial tensions is, likewise, what motivates the emergence of federal arrangements and the granting of local autonomy in many African countries. In the cases of Ethiopia, South Africa and Zimbabwe examined in Chapter 11, the tension between federalism and democracy is real, because the granting of ‘imagined’ local autonomy obfuscates democratic accountability. 2

Empirical Narratives: Institutions and Actors

The zeitgeist of federalism and democracy in the 1990s, decentralization (devolution) did not produce the intended outcome of increasing accountability and transparency and/​or reducing corruption. Many international organizations believed that these features were related to excessive centralization (inclusive of large inefficient bureaucracies), primarily colonialism in Africa and authoritarianism in Latin America. As Miguel Asensio demonstrates, using the case of Argentina (Chapter 10), de facto ‘effective autonomy’ (which he defines as the actual manoeuvring room enjoyed by sub-​national actors in a federal context) is conditioned by fiscal factors. An array of centralizing fiscal mechanisms enables central authorities to constrain sub-​national autonomy and, likewise, enables local authorities to shift blame for suboptimal policy outcomes on to higher levels of government—​both of these scenarios obfuscating accountability in a federal setting. Paradoxically, in many emerging democracies, decentralization enabled sub-​units to opt out, perpetuate undemocratic practices and human rights violations, and undermine national stability. Decentralization in theory

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8 Fenwick was about enhancing self-​rule, often at the consequence of shared rule as shared decision making. Increasingly however, in the context of highly sophisticated technologies and digital networks, global terrorism threats, dense organized crime networks, climate change and immigration, the idea of isolated self-​governing territories and US President Reagan’s ‘fend for yourself federalism’ (wherein state and local officials are encouraged to be self-​reliant in order to further neoliberal priorities) seem hardly realistic for federalism to thrive in the future. Using two distinct policy sectors, Chapters 8 (health care) and 9 (public security) show us how the inherent complexity of many policy systems leads to increased interdependence between levels of government. The realities of global networks of terrorism and organized crime described in Chapter 9 entail that the potentially overbearing security capacity of the federal level in the 21st century does not necessarily reflect divisions of power in the constitution. Alan Fenna (Chapter  8) refers to ‘complex systems of collaborative intergovernmentalism’ which, in the case of Australia, account for the considerable divergence from state policy autonomy as it was originally enshrined in the federal constitution. Isi Unikowski further analyses these webs of intergovernmentalism in Chapter 7, focusing on the role of the bureaucracy. Deploying a discursive analysis, Unikowski demonstrates how bureaucratic actors navigate that intersection of public administration and federalism on a day-​to-​day basis. He asserts that the bureaucracy (its norms, values and culture) plays a role in harnessing a federation’s cooperative capacity. In contrast with Australia, the federal policy role in Canada, particularly in social areas such as health and education, is increasingly passive. Neither a constitutional nor a cultural ‘federal spirit’-​type analysis alone can account for how Canada has preserved sub-​national policy autonomy. Returning to an institutional analysis in Chapter  6, Anthony Sayers examines how the party system affects the distribution of power among the constituent units in the Canadian case. He suggests that, beyond autonomy, provincial premiers have a considerable amount of authority to legislate in areas under their jurisdiction because of the nature of executive federalism in Canada. 3

How We Define Autonomy in Federal Practice

If we define autonomy as Benz suggests, Autonomy means that ability of a community, organization or government to decide on its own affairs without the intervention of a higher

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authority. In a federation it refers to the power assigned to constituent units to make and implement laws independent of the federal government, many chapters in this collection, therefore, accept that autonomy is in fact ‘imagined’, either because it is constrained or promoted via other factors, or because it never really existed, or because it is negotiated through the analytical prism that Burgess (2012) labels ‘the federal spirit’. Understanding autonomy through this prism takes it far beyond its definitional parameters. All the contributors frame their theoretical contributions and empirical analysis within a world characterized by increasing interconnectedness and interdependence (and policy spillovers). Now, more than ever, for contemporary federalism to remain relevant and effective in its real-​world manifestations, it needs new mechanisms that manage these interdependencies to produce cooperation and compromise between groups, individuals and territories. 4

Outline of the Book

The first section of the book is primarily concerned with advancing theory. What stands out here in particular is an emerging consensus around repurposing the goals of federalism towards ‘managing interdependence’ and separating the concept of de jure ‘sovereignty’ from de facto ‘autonomy’ in our applications. As stated previously, our book does not aim to provide a new theory of autonomy. However, we propose a perspective on what autonomy is and means in practice, in order to further the debate of its relevance in 21st-​century contexts. The book is not organized by region, but rather by themes. Section 2 provides empirical evidence, drawn from different cases, regions and perspectives. Chapters 5–​7 introduce actors and institutions that either promote effective sub-​unit autonomy or constrain it. Section 3 looks at challenges to the idealized autonomy of federal sub-​units via specific policy areas. Section 4 is a standalone chapter on local government specifically, distinguishing it from the regional or state/​provincial level in Africa. The purpose of the book is not to redefine what autonomy means in federal theory, or ought to be, but to suggest the preservation of autonomy is not the central organizing principle of 21st century federations. While we acknowledge this is problematic for multinational federations, we contend that for the majority of the participating authors of this collection, it is not. Autonomy, however precisely defined, in a federal democracy, remains to be negotiated

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10 Fenwick among two or more constituent units. We do not assume in either the theoretical or, the empirical section that these negotiations even in a multinational federation occur among independent, greedy, self-​interested levels of governments in a zero-​sum Rikerian game.

References

Bednar, J. (2009). The Robust Federation. Cambridge: Cambridge University Press. Bolleyer, N. and L. Thorlakson (2012). Beyond decentralization:  the comparative study of interdependence in federal systems. Publius:  The Journal of Federalism 42(4): 566–​591. Breen, M. G. (2017). The origins of holding-​together federalism: Nepal, Myanmar, and Sri Lanka. Publius: The Journal of Federalism 48(1): 26–​50. Burgess, M. (2012). In Search of the Federal Spirit:  New Theoretical and Empirical Perspectives in Comparative Federalism. Oxford: Oxford University Press. Dahl, R. A. (1986). Democracy, Liberty and Equality. Oslo: Universitetsforlaget. de Figueiredo, R. J. P. and B.R. Weingast. (2005). Self-​Enforcing Federalism. The Journal of Law, Economics, and Organization 21(1): 103–​135. Elazar, D. J. (1987). Exploring Federalism. Tuscaloosa: University of Alabama Press. Filippov, M., P. C. Ordeshook and O. Shvetsova (2004). Designing Federalism: A Theory of Self-​Sustainable Federal Institutions. Cambridge: Cambridge University Press. Riker, W. H. (1964). Federalism:  Origin, Operation, Significance. Boston:  Little, Brown & Co. Riker, W. H. (1987). The lessons of 1787. Public Choice 55(1), 5–​34. Riker, W. H. (1996). European federalism:  the lessons of past experience, in J. Hesse and V. Wright (eds), Federalizing Europe: The Costs, Benefits and Preconditions of Federal Political Systems. Oxford: Oxford University Press, pp. 9–​24. Stepan, A. C. (1999). Federalism and democracy:  beyond the US model. Journal of Democracy 10(4): 19–​34. Wheare, K. C. (1963). Federal Government. Oxford: Oxford University Press.

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Squaring the Circle? Balancing Autonomy and Intergovernmental Relations in Federal Democracy Arthur Benz 1

Introduction

If we take common concepts of federalism seriously, they all seem to be inherently contradictory. A federal system should balance unity and diversity, integration and differentiation, or centralization and decentralization. Criteria that have been suggested to find an adequate balance, like cost and benefits, efficiency, equality, or subsidiarity turn out to be empty signifiers when decisions have to be made on divergent principles (Treisman 2007). All efforts to determine an optimal or satisficing allocation of power or distribution of fiscal resources are therefore futile. Accordingly, scholars have suggested considering federalism as a process of continuous balancing of contrasting values (Bednar 2009; Filippov, Ordeshook and Shvetsova 2004; Friedrich 1968; Riker 1964). In a similar vein, Thomas O. Hueglin (2013) has reformulated subsidiarity into a negotiation principle. These approaches indicate ways of coping with the conflicts between principles and power, not the least the centralization–​decentralization problem, as the distribution of power can indeed be balanced in processes of negotiations and mutual adjustment induced by countervailing forces or institutional safeguards. In reality, these contradictory requirements are met by political compromises and ongoing processes of allocating and reallocating power and resources. There is, however, a more fundamental conflict built into a federal system, at least if it is organized as a federal democracy. From a normative point of view, many scholars have taken federalism and democracy as two corresponding concepts (e.g., Burgess 2012; Elazar 1987; Watts 2008). In reality, they constitute incompatible institutions and cause divergent processes of politics and policy making. Although normative theories claim that both principles of a political order are essential, balancing them is highly problematic. Democracy as a way to govern by the people and for the people requires that those holding power in government are accountable for their decisions. The principle of accountability implies that governments are

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12 Benz autonomous and, accordingly, fully responsible for their decisions. As long as federalism, like democracy, is presumed to imply autonomy of governments at their different levels, there is no conflict inherent in a federal democracy. Yet, not only is this concept of a dual federalism and a constitution separating powers into ‘watertight departments’ unrealistic, it has never been an accurate notion of federalism. Federalism’s goal has always been, as Alfred Stepan (1999) put it, a ‘coming-​together’ or ‘holding-​together’ of constituent units. In modern society, governance in a federation is mainly about managing interdependence. Autonomy and interdependence are conditions which are difficult to balance. On the one hand, the meaning of autonomy and the causes and consequences of interdependence are not clearly demarcated. On the other hand, there is no obvious trade-​off between these contradictory requirements, as they are rooted in different institutions and arenas of policy making. Setting a workable constellation between federalism and democracy is much more difficult than balancing unity and diversity, integration and differentiation or centralization and decentralization. The challenge inherent in the concept of a federal democracy is comparable to the classical mathematical problem of squaring the circle with ruler and compass. In theory, it cannot be solved; there might, however, be pragmatic ways to cope with the dilemma at hand. Yet, in contrast to the mathematical problem of turning a circle into a square, the comparable task for a theory of federalism and for political practice in a federation is not well defined. For a long time, scholars took the US and the Swiss federations as models to explain why federalism supports democracy and the other way around. They identified a federal democracy with separation of powers and mutual checks and balance. Thus, they ignored the increasing interdependence between levels of government and the basic mechanisms of representative democracy and party competition. In federations with parliamentary democracies, the conflict between autonomy and interdependence is obvious and has long been discussed. However, the conditions under which it materializes and how it can be resolved is less apparent. In order to outline the basic challenge for federal democracies, I will start by exploring the fundamental conflict between the autonomy of accountable governments within a federation and the requirement for intergovernmental coordination entailed by the interdependence of their policies. The contradiction surfaces when we clarify why autonomy is a condition for democracy and how interdependence between jurisdictions is managed in a federation. Next I suggest a conceptualization of linkage between federalism and democracy, which should allow us to identify how they actually interact in different federal systems. I  then suggest that a comparative approach on

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the autonomy–​interdependence problem might ultimately help us to establish guidelines for practical solutions. 2

Autonomy and Interdependence in Federal Democracy

2.1 Federalism and Interdependence Autonomy means the ability of a community, organization or government to decide on its own affairs without the intervention of a higher authority. In a federation, the concept refers to the power assigned to constituent units to make and implement laws independently of the federal government. The legal approach to federalism emphasizes autonomy in the sense of self-​rule by a government (or state) and, consequently, a separation of power between levels of government. Although nobody today believes that powers can be completely separated, there is still a tendency to maintain this demand as a guiding principle of federalism. In consequence, shared rule or intergovernmental policy coordination, although accepted as inevitable from a pragmatic point of view, are regarded as a necessary evil to be avoided as far as possible. The economic theory of federalism also relies on the autonomy of governments. Traditional fiscal federalism considers that governments are autonomous in a policy field if they dispose of powers to legislate, to implement and to raise revenue to finance the relevant tasks. The principle of ‘fiscal equivalence’ requires that all three powers should be concentrated at the level of government which is responsible for a policy. The need for intergovernmental coordination should be avoided by an appropriate allocation of powers or a reorganization of territories, so that external effects of policy making are minimized. Autonomous governments should be motivated to efficient policies by interjurisdictional competition (Tiebout 1956). The new economic theory of federalism takes into account the need to manage interdependence (Breton 1996), but the old idea still affects reform debates in politics. In theories of multinational federalism, autonomy refers to the ability of specific communities and their governments to protect their particular interests against a majority in society and majority rule in politics. Again, this concept implies that a sphere of power should be separated from federal powers and protected against federal intervention or interference from other governments. Sharing of powers and multilevel governance are perceived as problematic, undermining the advantages of a multinational federation (Gagnon 2018). In reality, the policies of autonomous communities overlap, and interdependence needs to be managed in order to avoid conflicts or divisions in federal society, but this is rarely discussed in this context.

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14 Benz These concepts identify autonomy with federalism. They are based on the assumption that federalism aims at separating powers. Yet, powers which are divided between levels of governments regularly overlap, and when government apply their powers, they often interfere with the powers of other governments. Decentralizing legislation on public services or environmental policy is likely to hamper free trade in a federation, whereas federal legislation promoting free trade constrains decentralized legislation in these areas. If federal or sub-​federal governments autonomously raise taxes, they reduce other governments’ scope for taxation. Federal fiscal policy affects regional economies and the related policies of regional governments, whereas decentralized taxation and spending influences the national economy and the effects of central government’s economic policy. Irrespective of whether powers are separated or shared, therefore, they can neither constitute nor justify autonomy of governments in a federal polity. In a complex society characterized by interdependence between individuals, organizations, communities, and territorially defined jurisdictions, division of powers always leads to interference of powers, and even a ‘watertight’ separation of powers does not prevent interdependence from materializing in politics and policy making. For this reason, autonomy cannot be considered as a feature characterizing a federal system. Nor can it apply as a standard by which to evaluate to what extent a political system qualifies as federal. As a system of governance, federalism does not imply the autonomy of governments at different levels. As a constitutional principle, federalism is about bringing together separate units or holding together units driving towards separation. As a guideline for political practice, it entails recognizing economic, social or cultural diversity in a society by establishing a territorially differentiated polity. Accordingly, policy making in a federation is about managing interdependence between the policies of the diverse communities and their governments. Interdependence is not necessarily entrenched in institutions in federalism—​although that might depend on the way powers are allocated (Bolleyer and Thorlakson 2012). First and foremost, it results from the simultaneous pressures for unity and diversity, integration and differentiation, centralization and decentralization. As a rule, it does not compel, but rather ‘invites’ governments to ‘operate in a mutually coordinated manner’ (Bolleyer and Thorlakson 2012, p. 569)—​that is, it gives rise to some kind of intergovernmental relations. This is not to argue against the concept of autonomy in theories of federalism. Certainly, a federal constitution has to define spheres of competence for governments, and to allocate significant powers to constituent states of a federation. Moreover, autonomy is indeed relevant. It should be considered,

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though, not as a principle of federalism, but as a fundamental prerequisite of democracy and as a principle which becomes reality under democratic governance. In a federal democracy, autonomy appears as an essential analytical concept and as a standard for evaluating the quality of government at the different levels; federalism, meanwhile, is about managing interdependence between levels and jurisdictions. 2.2 Democracy and Autonomy Democracy presumes that governments act autonomously, irrespective of the pattern of a federation, whether its powers are separate from those of other governments or shared, whether governments make policies on their own or cooperate in one way or another. The principle of democratic legitimacy requires that policies are made by responsible office-​holders who are accountable to a parliament or the people. Accountability concerns the way power is applied and the consequences of decisions and actions; it means that those actors exerting power are responsible for their decisions and actions to those affected by them—​that is, to the people in their jurisdiction or the parliament representing the people. Elected office-​holders are fully responsible for their decisions, regardless of whether they make policies on their own or in conjunction with others. Citizens and parliaments can only hold accountable those office-​holders who act for them, not those from other jurisdictions interacting with their government. It is, therefore, not federalism, but democracy which requires autonomy. When making decisions according to the rules of democracy, a government has to pretend to act autonomously. This is not only a normative principle, but a real claim determining the behaviour of actors and shaping politics and policy making. Accordingly, federal and state governments negotiating an intergovernmental agreement are expected to speak for their people, and they actually do so when defining their bargaining positions and strategies in multi-​level policy making (Scharpf 2000). Hence even if they cooperate, they tend to prioritize their own interests, regardless of the external impact of their policies. In a federal democracy, levels are, in a way, separated. Yet the reason for this separation is not the allocation of powers, but the territorial organization of democracy. In this context, federalism constitutes, in the first place, the distinction between the people (demos) of a federation and the peoples (demoï) of constituent units. One could argue that this is an artificial distinction, as, in reality, the demos and the demoï include the same citizens having the same interests. However, without this distinction, which highlights the different roles of citizens in a federal democracy, federalism would be redundant.

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16 Benz Moreover, the people and the peoples are represented by and act through distinct governments. Second, one might argue that a federal government speaks for the people of the federation, as well as for the peoples of the constituent units, who might both be represented in federal parliaments, in particular in those with elected second chambers. Nevertheless, a federal parliament and a federal executive act for and are accountable to the people of the federation, not the peoples of the constituent states. If bicameralism introduces a territorial dimension of representation in a federal legislature, this amounts to ‘descriptive representation’, as Hannah Pitkin (1972) has labelled it, whereas ‘responsive representation’—​that is, acting for—​requires autonomy of legislation within a jurisdiction. Third, speaking and acting for the people actually means speaking for a party or a coalition of parties holding a majority in parliament. But, nonetheless, those in power claim to speak for the people, as do parties. Parties compete to gain a majority in elections. The existence of opposition parties thus forces parties in power to act for the people. In consequence, competition reinforces the autonomy of government, which in the democratic process materializes on a particular level. Of course, the same parties may exist and participate in elections at different levels of a federation, as clearly happens in an integrated party system (Thorlakson 2009). Under these conditions, they can serve to harmonize policies across federal and sub-​federal governments and provide a channel of communication between levels. While this has consequences for intergovernmental coordination, it does not affect the claim that a responsible government autonomously acts for its people. To conclude: in democratic federations, autonomy finds expression in the process of democratic governing. This process is organized within a territorially defined jurisdiction where the government can be hold accountable to parliaments and the people. Thus, it has nothing to do with the division of power, with shared rule or self-​rule. Irrespective of whether they apply separate or shared powers, governments act on their own responsibility, if they act in accordance with the rules of the democratic process. As long as federalism, like democracy, is presumed to imply autonomy of governments at the different levels, there is no conflict inherent in a federal democracy. Yet, this concept of a dual federalism and a constitution clearly separating powers into ‘watertight departments’ is unrealistic and was never an appropriate idea of federalism. A  federation claiming to act on its own responsibility causes problems if policies made by governments at different levels are interdependent. Whereas democracy separates governance at the different levels, federalism links them in multi-​level governance in order to

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manage interdependence between policies made at the different levels. This requires intergovernmental coordination between governments, a process which conflicts with their claim to autonomy. 3

Federalism, Interdependence and Intergovernmental Coordination

Interdependence between levels of government has increased with the complexity of issues in a modern society and a globalized world, but it is nothing new. It was, in a certain sense, foreshadowed in the political philosophy of Reformed Protestantism. Johannes Althusius argued for a political system which forms a consociation of smaller and larger units of government. A consociation divides powers according to societal functions, but presumes a close interlinkage between politics at the different levels (Althusius [1614] 1995). The concept of federalism which emphasizes the separation of powers evolved about two centuries later in political theories justifying the US constitution. The aim of a federation then was not to enable governance, but to limit government, be it by division of power, as the ‘Federalists’ suggested, or by decentralization and populist democracy, as the ‘Antifederalists’ proposed (Hueglin and Fenna 2015, pp. 103–​6). As mentioned above, interdependence is not an institutional dimension. It relates to policies made at the different levels, and their intended or unintended consequences. Whereas the old concept of federalism as a consociation aims at constituting a polity without a sovereign ruler, and the US federation aims at limiting sovereignty, contemporary federalism is about organizing complexity of societies. Complexity implies differentiation and independence. The former is expressed in a division of levels of governments, the latter results from the external effects of policy making within a jurisdiction. These effects may increase due to features of the institutional design of a federation, such as the size of constituent units, the extent of decentralization of power, functional differentiation between legislative, administrative and fiscal powers, fiscal imbalance, and so on. However, no institutional design and no way of allocating powers can completely rule out externalities of policies and interdependence between policies made at the different levels. As a rule, it is handled through intergovernmental relations among executives, but interdependence between levels of government exist, regardless of whether powers are shared or separated. Interdependence can be ignored by governments, but this causes serious conflicts and inefficient policies. As a rule, governments respond with some kind of coordination in intergovernmental relations. This way, interdependence

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18 Benz turns into interaction aimed at managing its consequences. Coordination of policies can be achieved by unilateral or mutual adjustments. Unilateral adjustment would mean, for instance, that a federal government sets rules which governments at the lower levels have to comply with. These rules may be combined with financial incentives, or they may be enforced by legal action in case of non-​compliance. Mutual adjustment can be induced by intergovernmental competition, by policy transfer between levels of government, or by a sequence of ‘thrust and riposte’. More often than not, governments aim at coordination by negotiated agreements. We can distinguish institutionalized forms of joint decision making or voluntary cooperation in various patterns (vertical or horizontal, multilateral or bilateral; Painter 1991, 1998; Poirier, Saunders and Kincaid 2016; Scharpf 1997). Regardless of the mode applied, intergovernmental coordination poses a challenge for policy making, given the autonomy of governments. Autonomous actors do not ignore interdependence, but they defend their own interests when competing or negotiating with others. Governments behave in the same way, not because they are rational egotists, but because they have to act for their people, are responsible to parliaments, face competition from opposition parties, and are held accountable for their actions by their constituency. In a federation, democracy expresses the conflicting wills of the demos of the federation and the demoï of constituent units. People in a federation might agree on promoting renewable energies, but people in certain regions may be opposed to ending coal mining or expanding wind power. Equivalent public services may be accepted as a general goal, but this does not mean that people in a region will willingly transfer revenues from their tax resources to other regions. Via the democratic process, these incompatible interests find expression in conflicts between governments and have to be dealt with in intergovernmental relations. Here positions can become confrontational, because responsible executives all have incentives to pursue the will of their parliaments. This makes intergovernmental coordination difficult. Yet, in a federal system, if policies are effectively coordinated, the outcome can constrain the discretion of parliament. Or it can discriminate between citizens, between those who profit and those who face the burden of redistributive policies, without this discrimination being legitimized by the democratic process. The need to accommodate autonomy and interdependence in a federation is thus identical to the inevitable problem of linking democracy and intergovernmental relations. While normative theories have often assumed that federalism supports democracy or that democracy is a condition of federalism, empirical research has pointed out many tensions, incompatibilities, if not

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contradictions, between democratic government and intergovernmental relations. These have been extensively discussed in relation to federations with parliamentary democracies (Benz 2015; Sharman 1990), but have also been revealed as an issue in non-​parliamentary federations (Benz and Sonnicksen 2017; Conlan 2017; Vatter 2018). So far, though, variations in linkages between institutions and processes in federalism and democracy have been little studied. 4

Linking Democracy and Intergovernmental Politics

Before discussing these linkages in greater detail and exploring how to cope with the dichotomy between autonomy and interdependence, one aspect needs to be underlined. More often than not, intergovernmental relations emerge in public administration and concern administrative tasks, like harmonizing the implementation of law. These patterns of policy coordination are independent from legislation and subject, at best, to supervision by ministers. Therefore, there is no direct interference between democracy and patterns which we can label ‘multi-​level administration’ (Benz, Corcaci and Doser 2017). The problem of interference arises in matters of high politics and legislation, which produce external effects on areas under the jurisdiction of other governments. Here, intergovernmental relations overlap with democratic procedures. We can categorize the different types of linkages using the concept of coupling (Benz 2019). In system theory and theories of organization, this concept describes the intensity of linkages between sub-​systems or subunits. In federal democracies, it refers to the linkage of politics in the democratic arena and in the arena of intergovernmental relations. They can be tightly coupled if processes in one arena determine actors’ behaviour and policy making in the other, and if these effects change the logics of politics in intergovernmental relations. They are decoupled if politics in both arenas operate separately and according to their own logic without influencing each other. With loose coupling, we can describe different varieties of linkages which allow for mutual influence and adjustment of policies in the democratic and intergovernmental processes, without one dominating the other. Tightly coupled structures exist if executives share powers and need to negotiate intergovernmental policies, and if they are committed to the will of their party in parliament or have to consider competition with opposition parties. This constellation is typical for federations with parliamentary democracies. The impact of party politics on intergovernmental politics is even stronger if governments are formed by coalitions of parties, as regularly happens

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20 Benz in Germany (Lehmbruch 2000: 134–​178). Single-​party governments afford the executive more leeway, and even minority governments benefit from not having their hands tied by coalition agreements, although they do have to seek issue-​specific support in parliament. Tight coupling also characterizes a federal democracy where ministers or administrative specialists negotiate intergovernmental agreements supported by specific interest groups, if not based on clientelist relations between executives and these particular groups. Joint decision making in legislation, where governments of the constituent states participate in a second chamber, like the German Bundesrat, or in intergovernmental relations which commit federal and state governments to implement agreements on the distribution of funds, also tightly links intergovernmental and democratic politics. It goes without saying that the first and third constellations obstruct the effectiveness of coordination between levels of government. The second causes a democratic deficit (which can also occur in the third pattern of governance). Decoupling is rare, although the US is an example. Its federal constitution separates not only executive and legislative powers, with both operating according to distinct modes of democracy, but also the powers of federal and state governments. In this institutional context, the federal government does not need the assent of state governments to legislation. The latter can only try to make their voice heard in federal politics via intergovernmental lobbying. State and local interests are expressed by members of Congress, more so in the House of Representatives than in the Senate. But these legislative institutions do not provide a venue for managing interdependence between levels of government. In the context of power separation in the federal system, informal intergovernmental negotiations in policy implementation and mutual adjustment by competition emerged in response to increasing interdependence. They take place in the arena of technocrats, as Samuel Beer (1978) put it, not of elected politicians. Meanwhile, as Tim Conlan (2017) has recently reported, the polarization of party politics affects intergovernmental relations and divides state governments in their efforts to promote their interests against the federal government. Policy making is obstructed by party polarization not only in federal legislation, but also in the intergovernmental arena. Due to the separation of powers, governments can make policies, but in cases of serious political conflict, they are rarely able to effectively coordinate them if necessary; hence we sometimes find clearly contradictory policies in the federal system. However, the contrasting cases of Germany and the US do not prove that interdependence can only be coped with at the cost of autonomy or that the management of interdependence is obstructed by autonomy, or—​to put it in another way—​that democracy and federalism cannot be linked in

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an appropriate way. Other federations reveal loosely coupled structures:  for instance, the highly decentralized Swiss federation, where parties in parliaments, as well as federal and cantonal governments, negotiate agreements in order to prevent or, in cases of constitutional amendments, to influence the outcome of a referendum (Vatter 2018). In Australia, the need to negotiate among majority and opposition parties in the bicameral legislatures, and intense intergovernmental cooperation, seems to render the system prone to deadlocks caused by multiple veto points. In reality, vetoes are avoided by pragmatic interplay between legislative and intergovernmental policy making (Hollander and Patapan 2007), and the plurality of party politics reduces the probability of confrontation within both arenas. Even in Germany and the US, we find instances of loose coupling generated by emergent practices, which respond to the dilemmas inherent in those federal democracies where institutions separate powers (the US) or pool powers (Germany). Loose coupling means that structures do not determine politics and that arenas of politics are linked by processes (Benz 2019). Even parliamentary democracies do not necessarily link governments to parliament so tightly that party competition determines governmental decisions. In general, the idea of representation does not require office-​holders to carry out mandates of their electorate or a parliament, but allows them latitude to decide on their own under the condition that, ex post, they maintain the support of a majority of citizens or of parliaments (Scharpf 2019). Moreover, representatives and represented are linked by public communication. It is not parliamentary democracy, then, which causes tight coupling, but party polarization, whereas a pluralist party system can increase a government’s flexibility. On the other hand, it is not consensus democracy which provides for loose coupling, but patterns where consensus has to be continuously renewed. For this reason, coalition governments which commit an executive to implement a coalition treaty, reduces discretion in intergovernmental relations, whereas minority governments can seek issue-​specific support and gain discretion in a strategic ‘two-​level game’ (Putnam 1988) between intergovernmental and democratic politics. However, patterns of democracy are difficult to change, since they are partly entrenched in constitutions, partly based on emergent norms, and partly shaped by the party system which reflects changes in society. Instead, patterns of intergovernmental policy making are more appropriate for creating loosely coupled structures in a federal democracy. In general, governments should avoid mandatory intergovernmental agreements. Hence constitutional rules requiring joint decisions are problematic (Scharpf 1988). Although they do not necessarily prevent governments from effectively coordinating their policies, they regularly shield intergovernmental negotiations from control

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22 Benz by parliaments. Intergovernmental agreements should, therefore, be voluntary and allow individual governments to opt out should the parliament of a constituent state wish. Waivers, which are increasingly used in the US, can be used to relax the effects of binding agreements, and they can stimulate experimental policies (Wong 2015). In contrast to traditional intergovernmental relations, they increase the discretion of governments or political executives and thus might attract the attention of parliaments and the public (Thompson 2013). Similar flexibility can be exploited if governments coordinate their policies by standards and contests for best practices (Benz 2012). This mode of ‘yardstick competition’ motivates policy makers to improve their policies and reveals deficits to parliaments and citizens, while preserving the autonomy of governments. In contrast, tax competition compels governments at the regional or local level to participate and to adjust their policy in line with other governments. Democratic and federal politics can also be linked by committees or intergovernmental councils (Behnke and Mueller 2017), which establish a kind of ongoing communication, cross-​cutting the institutional divides between executive and legislative actors and between levels of government. If these councils develop a differentiated structure with political and administrative tiers of interaction, and if they include committees of experts or representatives of civil society, several benefits follow. They can avoid political bargaining dominating negotiations; they reduce the impact of party confrontation in intergovernmental policy making; and they increase the probability that outcomes of multi-​level governance find acceptance in parliaments and with the public. Moreover, such differentiated structures allow dealing with conflicts in a policy sequence and in arenas where bargaining and confrontation can be balanced by arguing and problem-​solving (Benz 2016, pp. 30–​42). Finally, interactions between parliaments, whether by parliamentary committees including members from different levels and constituent units or exchange of information about parliaments’ preferences, can create processes of deliberation linking federalism and democracy (Benz 2017; Bolleyer 2010). These are no theoretical ideas, but patterns of linking federalism and democracy that can be observed in practice. Unfortunately, they are often discussed as exceptions to the rule, as practices not in accordance with the principles of federalism or democracy, even as developments contradicting constitutional law or undermining the constitution. Quite the contrary is true. Patterns of loosely coupled federalism and democracy are a condition sine qua non for a democratic federation. They are a way to accommodate the autonomy of governments and to manage the independence of their policies. If these patterns contradict a constitution, then an overregulated constitutional law is to

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blame, rather than the pragmatism of policy makers who have to deal with the tensions between autonomy and federalism. And if our scientific concepts of federalism are not in accordance with these patterns which emerge in practice, we need first and foremost to review these concepts. 5

Conclusion

Federalism and democracy are principles for designing a political system. Such a polity—​that is, a federal democracy—​consists of different, but connected institutions serving different purposes in different processes. If federalism aims at unity and diversity, integrates diverse communities and establishes an appropriate balance of centralization and decentralization of powers, it is characterized by interdependence of powers and policies. Managing these interdependencies must be a basic prerequisite of a stable and effective federation. If democracy should guarantee that governments act according to the will of the people, it must be presumed that governments are fully responsible for their decisions. Accordingly, democratic legitimacy requires that governments have autonomy to act for their people. In order to cope with these contradictory purposes, which find expression in conflicting processes within the democratic and intergovernmental arenas, a federal democracy must be conceived as a loosely coupled system and organized accordingly. Loose coupling is a very abstract design principle. It can be implemented by particular patterns of democracy and intergovernmental relations. As patterns of democracy are unlikely to be susceptible to institutional reform, due to their path-​dependent evolution and the impact of changes in society, we should investigate ways to adjust patterns of multi-​level governance. These can not only be changed, varied and adjusted to specific policies, but also offer significant potential to democratize federalism.

References

Althusius, Johannes ([1614] 1995). Politica:  An Abridged Translation of Politics Methodically Set Forth and Illustrated with Sacred and Profane Examples, 2nd edn, ed. and trans. Frederick S. Carney. Indianapolis: Liberty Fund. Bednar, Jenna (2009). The Robust Federation: Principles of Design. Cambridge: Cambridge University Press. Beer, Samuel H. (1978). Federalism, nationalism, and democracy in America. American Political Science Review 72(1): 9–​21.

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24 Benz Behnke, Nathalie and Sean Mueller (2017). The purpose of intergovernmental councils:  a framework for analysis and comparison. Regional and Federal Studies 27(5): 507–​527. Benz, Arthur (2012). Yardstick competition and policy learning in multilevel systems. Regional and Federal Studies 22(3): 251–​267. Benz, Arthur (2015). Making democracy work in a federal system. German Politics 24(1): 8–​25. Benz, Arthur (2016). Constitutional Policy in Multilevel Government: The Art of Keeping the Balance. Oxford: Oxford University Press. Benz, Arthur (2017). Patterns of multilevel parliamentary relations:  varieties and dynamics in the EU and other federations. Journal of European Public Policy 24(4): 499–​519. Benz, Arthur (2019). Conclusion:  governing under the condition of complexity, in Nathalie Behnke, Jörg Broschek and Jared Sonnicksen (eds), Configurations, Dynamics and Mechanisms of Multilevel Governance. Cham: Palgrave Macmillan, 387–​409. Benz, Arthur and Jared Sonnicksen (2017). Patterns of federal democracy:  tensions, friction, or balance between two government dimensions. European Political Science Review 9(1): 3–​25. Benz, Arthur, Andreas Corcaci and Jan W. Doser (2017). Multilevel administration in national and international contexts, in Michael Bauer, Steffen Eckart and Christoph Knill (eds), International Bureaucracies: Challenges and Lessons for Public Administration Research. New York: Palgrave Macmillan, 151–​178. Bolleyer, Nicole (2010). Why legislatures organise: inter-​parliamentary activism in federal systems and its consequences. Journal of Legislative Studies 16(4): 411–​437. Bolleyer, Nicole and Lori Thorlakson (2012). Beyond decentralization:  the comparative study of interdependence in federal systems. Publius: The Journal of Federalism 42(4): 566–​591. Breton, Albert (1996). Competitive Governments:  An Economic Theory of Politics and Finance. Cambridge: Cambridge University Press. Burgess, Michael (2012). In Search of the Federal Spirit: New Comparative, Empirical and Theoretical Perspectives. Oxford: Oxford University Press. Conlan, Timothy (2017). Intergovernmental relations in a compound republic:  the journey from cooperative to polarized federalism. Publius: The Journal of Federalism 47(1): 171–​187. Elazar, Daniel J. (1987). Exploring Federalism. Tuscaloosa: University of Alabama Press. Filippov, Mikhail, Peter C. Ordeshook and Olga Shvetsova (2004). Designing Federalism: A Theory of Self-​sustainable Federal Institutions. Cambridge: Cambridge University Press. Friedrich, Carl Joachim (1968). Trends of Federalism in Theory and Practice. New York: Praeger.

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Gagnon, Alain-​G. (2018). Multilevel governance and the reconfiguration of political space, in Guy Lachapelle and Paolo Oñate (eds), Borders and Margins: Federalism, Devolution, and Multi-​level Governance. Leverkusen: Verlag Barbara Budrich, 77–​90. Hollander, Robyn and Haig Patapan (2007). Pragmatic federalism: Australian federalism from Hawke to Howard. Australian Journal of Public Administration 66(3): 280–​297. Hueglin, Thomas O. (2013). Comparing federalisms: variations or distinct models?, in Arthur Benz and Joerg Broschek (eds), Federal Dynamics: Continutity, Change and the Varieties of Federalism. Oxford: Oxford University Press, 27–​47. Hueglin, Thomas O. and Alan Fenna (2015). Comparative Federalism:  A Systematic Inquiry, 2nd edn. Toronto: University of Toronto Press. Lehmbruch, Gerhard (2000). Parteienwettbewerb im Bundesstaat:  Regelsysteme und Spannungslagen im Institutionengefüge der Bundesrepublik Deutschland, 3rd edn. Wiesbaden: Westdeutscher Verlag. Painter, Martin (1991). Intergovernmental relations in Canada: an institutional analysis. Canadian Journal of Political Science 24(2): 269–​288. Painter, Martin (1998). Collaborative Federalism:  Economic Reform in Australia in the 1990s. Cambridge: Cambridge University Press. Pitkin, Hanna Fenichel (1972). The Concept of Representation. Berkeley: University of California Press. Poirier, Johanne, Cheryl Saunders and John Kincaid (eds) (2016). Intergovernmental Relations in Federal Systems. Oxford: Oxford University Press. Putnam, Robert D. (1988). Diplomacy and domestic politics:  the logic of two-​level games. International Organization 42(3): 427–​460. Riker, William H. (1964), Federalism:  Origins, Operation, Significance. Boston and Toronto: Little Brown & Co. Scharpf, Fritz W. (1988). The joint decision trap: lessons from German federalism and European integration. Public Administration 66(3): 239–​278. Scharpf, Fritz W. (1997). Games Real Actors Play:  Actor-​centered Institutionalism in Policy Research. Boulder: Westview Press. Scharpf, Fritz W. (2000). Interdependence and democratic legitimation, in Susan J. Pharr and Robert D. Putnam (eds), Disaffected Democracies: What’s Troubling the Trilateral Countries? Princeton: Princeton University Press, 101–​120. Scharpf, Fritz W. (2019). Multilevel democracy: a comparative perspective, in Nathalie Behnke, Jörg Broschek and Jared Sonnicksen (eds), Configurations, Dynamics and Mechanisms of Multilevel Governance. Cham: Palgrave Macmillan, 249–​271. Sharman, Campbell (1990). Parliamentary federations and limited government: constitutional design and redesign in Australia and Canada. Journal of Theoretical Politics 2(2): 205–​230. Stepan, Alfred (1999). Federalism and democracy: beyond the U.S. model. Journal of Democracy 10(4): 19–​34.

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26 Benz Thompson, Frank J. (2013). The rise of executive federalism: implications for the picket fence and IGM. American Review of Public Administration 43(3): 3–​25. Thorlakson, Lori (2009). Patterns of party integration, influence and autonomy in seven federations. Party Politics 15(2): 157–​177. Tiebout, Charles M. (1956). A pure theory of local expenditures. Journal of Political Economy 65(5): 416–​424. Treisman, Daniel (2007). The Architecture of Government:  Rethinking Political Decentralization. Cambridge: Cambridge University Press. Vatter, Adrian (2018). Swiss Federalism:  The Transformation of a Federal Model. New York: Routledge. Watts, Ronald L. (2008). Comparing Federal Systems, 3rd edn. Montréal:  McGill–​ Queen’s University Press. Wong, Kenneth K. (2015). Federal ESEA waivers as reform leverage: politics and variation in state implementation. Publius: The Journal of Federalism 45(3): 405–​426.

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­c hapter 3

Is Federalism Natural?

Rethinking Federalism’s Origin, Operation and Significance Troy E. Smith At the center of federalism is Martha Derthick’s question, ‘How many communities are we to be—​one or many?’ (Derthick 1999; Livingston 1952). Federal systems obviously answer ‘many’; yet they have often adopted, or tacitly accepted, philosophies from the modern, positivistic state that favour ‘one’. This creates difficult incongruencies and paradoxes for federalism that lead some scholars and policy makers to oppose federalism or to see federalism as a waystation towards a more enlightened national union. New scientific findings, however, challenge the assumptions and philosophies of the modern, positivistic state to such an extent that, as one researcher put it, ‘we have to completely rethink and rebuild the social sciences’ (Cochran 2018; Pinker 2002). This suggests the possibility of rethinking the state in ways that place less emphasis on sovereignty and top-​down control, and favour a socially embedded version of self-​government and freedom more consistent with federalism.1 The difference between these two different understandings can be appreciated by examining federalism using William Riker’s (1964) classic book, Federalism: Origin, Operation, Significance, which exemplifies the standard, scientific model and positivistic state, against the new theories of human nature, and a bottom-​up, complex adaptive-​systems model. 1

Federalism’s Origin and Operation

This comparison begins with anthropology—​the study of humans and human nature. Two different anthropologies prevail in the standard political science 1 There are many varieties of federalism. This chapter refers primarily to the US federal system or, in James Madison’s phrase, the ‘compound republic’ that follows from the covenant tradition (Lutz 1988; Schechter 1990), intends to preserve separateness between federal and state governments, seeks self-​government that allows individual participation in government via popular sovereignty, and allows individuals to pursue happiness as they understand it so long as they do not become a burden on others (see Smith 2017).

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28 Smith model. Thomas Hobbes presents an anthropology which claims that humans are by nature individualistic (that is, non-​social) and are motivated by their natural appetites and aversions. Some humans possess an appetite for power. They use their reason to acquire power and, once acquired, use that power and their reasoning to reshape society by building rewards and punishments into the political, legal and social systems. Ever present, however, is the potential for war between those with an appetite for power. To prevent that competition from destroying civilization, Hobbes favours sovereignty and top-​down control to create a unified society. This, if done correctly, Hobbes claims, can lead to an absence of conflict. While Hobbes would empower the Leviathan with near-​absolute control, he does think nature will impose some limitations on the sovereign’s powers. Riker’s explanation of federalism’s origin and operation presumes a Hobbesian competition for power and control, where leaders seek power when possible; otherwise, they compromise and cooperate to consolidate the power they have. Neither Riker nor Hobbes thinks there is a natural human inclination to social cooperation or a natural moral sense that would constrain human behaviour. The standard model’s other major anthropology proclaims that human nature is plastic, or easily mouldable. In the words of John Locke, humans are a ‘blank slate’ to be written on by their environment. From this perspective, nurture completely shapes human behaviour, which means that humans and human society are perfectible (Pinker 2002). Plato, the despiser of democracy, and Rousseau, the champion of the general will, similarly believe that humans are malleable. They differ from Locke by distrusting individual judgement as a basis for governance. To achieve a reordered and perfected state, Plato favours philosopher kings, who use a noble lie and rigged lotteries to break the natural human bonds of family and community. Rousseau and Marx similarly empower a new aristocracy, the tribunate and the vanguard, to rework human desires and society. Post-​modern theorists, like Foucault and Marcuse, posit that humans unintentionally ‘construct’ nearly all aspects of their reality, from gender and race to power and exploitation, because the exercise of power ‘reifies’ and justifies itself. What unites these philosophers is the belief that humans are a blank slate shaped haphazardly by the environment they inhabit or consciously engineered by elites. These philosophers share another assumption of modern, positivistic science—​that order must be imposed, arranged and continually maintained. Such an assumption fits the law of entropy, the second law of thermodynamics. These two different anthropologies dominate the standard model of positivistic social science and post-​modernism. Despite their differences, they

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share a few assumptions about human nature and the nature of order. First, they believe that humans and human society can be significantly reordered and, hence, favour designing human institutions and beliefs to construct their vision of the best society. Second, they reject the notion that nature has a natural method of ordering and organizing that makes social interaction beneficial. Two conclusions flow from these assumptions. First, the primary objective of political activists is to acquire power. Second, once acquired, power should be used to reorder society, often from the top down. These two competing anthropologies share the same means and thereby find themselves pitted in a fierce, zero-​sum competition to acquire power and direct a top-​down restructuring of society.2 This is why so much modern political science, like Riker’s, focuses on power as the primary causal variable, and views the acquirement of power as a zero-​sum game. These anthropologies have something else in common: they are both wrong. According to a strong consensus among evolutionary biologists, cognitive psychologists and sociologists, humans possess a strong nature that will resist radical social engineering. This new consensus supports the Hobbesian idea that humans possess an innate nature, which includes a drive for dominance, self-​ interest and tribalism. But, in contrast to Hobbes and the blank-​slate philosophers, that nature also includes a moral sense that fosters cooperation, support for liberty and opposition to oppression (Haidt 2012; Pinker 2002; Plomin 2018; Ridley 1996; Tomasello and Moll 2010; Tuschman 2013; Wilson 1993). What the new understanding of human nature means for the social sciences is not clear. But it obviously means that Riker’s anthropology based on power-​seeking is too narrow and pessimistic, and that theories which presume human perfectibility are impossible. 2

The Race to the Bottom and Human Nature

Let us examine the new anthropology via Riker’s claim that a unitary state is more efficient in the creation and enforcement of policy than a federal state. His reasoning is a version of the race-​to-​the-​bottom hypothesis that competition for taxes in federal states leads to inefficient policies. This claim rests on two assumptions: first, that central governments can know and control policy; 2 There is some agreement on the means to acquire power, such as elections, and there may be some agreement on the objectives to pursue (such as liberty and fairness, though not on how to draw that balance), but their different anthropologies, though both originating in the liberal tradition, means they are polar opposites on how to accomplish their objectives.

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30 Smith and, second, that human greed (whether for money, fame or power) knows few limits. Whether that greed is natural (Hobbesian) or nurtured (Locke, Rousseau) is irrelevant, as both standard model anthropologies accept it. Thousands of studies have now tested the race-​to-​the-​bottom hypothesis. John Kincaid (1991) shows that, when properly structured, intergovernmental competition can produce significant social and individual benefits. Supporting Kincaid’s claims are three separate meta-​analyses of the race-​to-​the-​bottom studies. All three reached similar conclusions:  first, races to the bottom are weak and rare; and second, interjurisdictional competition usually leads to positive results, which include efficiency, innovation, robustness, resilience, responsiveness and greater choice (Oates 2001; Schneiberg and Bartley 2008; Smith 2018).3 So, the benefits of top-​down uniformity are lower than Riker predicted, and the benefits of federalism are higher.4 These are surprising results, given the intuitive logic of the race-​to-​the-​ bottom thesis. But that logic is based on the standard model’s anthropologies. The new anthropology helps explain why races to the bottom are rare. It teaches that humans are neither as power-​mad nor as greedy as the standard model claims—​‘Just as often as not, people’s moral values are dearer to them than dollars. And they run deeper’ (Tuschman 2013). The criminologist, James Q. Wilson, wrote a book on humans’ moral sense because he thought what needed explaining was ‘not why some people are criminals, but why most are not’. He found the answer in an innate human moral sense of sympathy, fairness or reciprocity, self-​control and duty (Wilson 1993). Not all scholars agree with his list of moral senses, but there is general agreement that fairness or reciprocity fosters cooperation, and significant similarities with his other identified moral senses (Haidt 2012; Pinker 2002; Ridley 1996; Tuschman 2013; Wilson 1993). The idea that humans have a moral sense that influences their behaviour is not entirely new. It fits Aristotle’s claim that humans are social, political animals who possess an innate ability to cooperate and desire meaning and purpose. A similar line of thinking comes from the Scottish philosophers of the 18th century, who claimed that human nature contains moral sentiments that influence human behaviour more than reason. Those moral sentiments include benevolence, sympathy, compassion and a desire for approval from 3 While there are a number of studies that find evidence for races to the bottom, many of them rely on a diluted definition that does not fit the understood and deleterious consequences predicted by the race-​to-​the-​bottom hypothesis (Oates 2001; Smith 2018). 4 Furthermore, Riker’s emphasis on efficiency neglects other outcomes of healthy competition, such as resilience and responsiveness.

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others. David Hume described it thus: ‘There is some benevolence, however small, infused into our bosom; some spark of friendship for human kind; some particle of the dove kneaded into our frame, along with the elements of the wolf and the spider’ (Himmelfarb 2001). Adam Smith argued that market economies succeed because selfishness is ‘tempered by an equally powerful inclination toward cooperation, empathy and trust—​traits that are hard-​wired into our nature and reinforced by our moral instincts’ (Pearlstein 2018).5 This anthropology suggests, contrary to the standard model, that society and cooperation are, to a significant degree, natural. However, it also acknowledges that human nature may be temporarily repressed or redirected, but will eventually come roaring back either directly or in some black forms (Delsol 2003). Philosophers from this line of thinking also often recognize that government is artificial, created by the need to stop unjustified violence and coercion (Schelling 1960). Once those harmful acts are constrained, humans may be freed to ‘pursue happiness’ as they best understand it. The idea that the ‘pursuit of happiness’ is an individual right comes from the American Declaration of Independence. Its authors would not have thought it a right if they believed it would lead to selfish, rapacious, hedonistic or indolent human behaviour (Gregg 2019). The author of the phrase, Thomas Jefferson, had a Scottish interpretation of happiness. Happiness, he believed, came from ‘the personal commitment of one’s faculties to purposes of enduring and justifiable value’. The individual pursuit of happiness, Jefferson believed, would benefit society, because ‘good acts give us pleasure … [b]‌ecause nature hath implanted in our breasts a love of others, a sense of duty to them, a moral instinct, in short, which prompts us irresistibly to feel and to succor their distresses’ (Jefferson [1814] 1975, pp. 540–​4). Some modern scholars who agree with Jefferson’s anthropology claim that human happiness comes from ‘earned success’ that means creating value in our lives or the lives of others (Brooks 2010). In other words, happiness comes not from avoiding but accepting responsibility and obligations, and fitting one’s life and liberty to socially meaningful endeavours (Erikson 1968; Kekes 2002).6

5 Adam Smith is famous for his quote that it is not from the butcher, brewer and baker’s altruism that we receive our meal, but from their self-​interest. Yet often overlooked in that quote is that, despite their self-​interest, they do not ‘conspire’, ‘deceive’ or ‘oppress’, but follow the rules of the free market. Why people follow rules needs to be explained. The new anthropology helps unpick this conundrum. 6 The psychologist Erik Erikson (1968, ch. 3) argues that the transition to adulthood involves answering the question: ‘To what useful goal can I commit my grown-​up years?’ A healthy person finds ‘a fit between his aptitudes and an honorable purpose of his life’.

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32 Smith If correct, there is reason to trust that individual freedom to pursue happiness can lead to creative and productive social benefits. Much of modern society, however, holds a different notion of happiness. This notion requires both greater top-​down control of society and the liberation of individuals from social obligations and responsibilities. It is based on Romanticism’s ideal, championed by Rousseau, that individuals should be authentic, reject the norms and ideals of society, and blaze their own identity and path. This ideal encourages government policies that liberate individuals from all unnecessary and undesirable obligations and constraints, including social embeddedness, to choose their own path (Kekes 2002; Manent 2007; Milbank and Pabst, 2016). Often this ideal fosters attitudes that ignore social conventions and disregard obligations and responsibility for one’s actions; instead, individuals should rely on the state guided by top-​down elites to solve an individual’s problems (Deneen 2018; Lane 2017; Lowi 1979; Milbank and Pabst 2016).7 This may be part of the reason why the civilized world is experiencing a significant decrease in social solidarity—​today, 40 per cent of Americans are lonely; many lack a purpose or meaning; and there is rising depression and suicide (Sachs 2018). One reaction to this extreme individualism and resulting loneliness has been for individuals to find society by fragmenting into sects of the like-​ minded. This is a form of tribalism and minority rights that can create positive, supportive associations and yet also inhibit the associations that would transcend differences (Hawkins, Yudkin, Juan-​Torres and Dixon 2018; Sachs 2018). The contrast between Romanticism’s authentic individualism and the idea that happiness comes from ‘earned success that is embedded in social relations’ for both government policy and individual choice is profound. For example, the blank-​slate theory of human nature explains, and Romanticism justifies, extreme individual behaviour that gives little consideration to social convention and obligations and, hence, why competition and races to the bottom are expected to be harmful. The new anthropology, with its recognition that humans are social creatures with a moral sense, helps explain why races to the bottom are weaker than predicted and why freedom need not result in anarchy and chaos. Yet, the new anthropology’s claims of a human moral sense are insufficient to explain the weakness of races to the bottom, because the human moral sense is not determinative and can be overridden by individual choice.8 An 7 8

Individualism and autonomy are not a solution to statism, but often a cause (Lane 2017). The moral sense’s influence on human behaviour is limited. James Q. Wilson (1993, p. 251) concluded his study of the human moral sense with this paragraph:  ‘Mankind’s moral sense is not a strong beacon light, radiating outward to illuminate in sharp outline all that

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additional piece of the puzzle is the new science of complexity’s understanding of the nature of order, specifically, the concept of emergence, which violates the standard model’s assumptions of linearity. 3

Emergence—​A Missing Variable

Riker’s analytical method, consistent with the standard model, is linear, reducible and deductive. He presumes that humans form governments to acquire or consolidate power, and that human social order is created from the top down. From those presumptions, Riker deduces that federalism is a viable, modern form of government, because it is more efficient than empire for conquest and consolidating power. He also deduces that political systems are controlled by elites, and dismisses public opinion’s influence, because it can be manipulated by elites (Riker 1964). We see this reductive, linear and deductive method at work again in Riker’s claim that he can predict a federal state’s fate at its founding merely by assessing whether the federal government or constituent units hold the preponderance of power. If the bulk of power lies with the states, he predicts, then the nation will eventually become confederal; otherwise, a unitary nation will evolve (Riker 1964). Riker’s focus on power and his deductive methodology turns the origin and operation of federal states into competitions for power, measured by the ‘autonomy’ those officials possess, and with only a backward glance to democracy. Riker’s claims fit the standard model’s support for consolidating and centralizing government. so that elites, drawing on science and an army of bureaucrats, can adopt and implement policies that would more efficiently order society.9 In short, power is to Riker as gold and silver were to mercantilists; he cannot imagine that order or organization could flow from anything else. Reductive, linear and deductive methods, however, are blind to an important new concept called emergence.10 One form of emergence is ‘spontaneous

9 10

it touches. It is, rather, a small candle flame, casting vague and multiple shadows, flickering and sputtering in the strong winds of power and passion, greed and ideology. But brought close to the heart and cupped in one’s hands, it dispels the darkness and warms the soul’. In other words, moral sentiments influence, but do not determine our behaviour. For problems with the bureaucratic state, see MacIntyre 1984; Ostrom 1973, 2008; and Wilson 1995. Aristotle also seems to have understood, or at least anticipated, emergence with his concept of teleology, that things in nature are driven by internal and pre-​given purposes, and his claim that the whole is greater than the sum of its parts.

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34 Smith order’, which is the idea that order need not be imposed top down, but may emerge spontaneously from simple rules (Colander and Kupers 2014; Lane 2017; Milbank and Pabst 2016; Pally 2016; Schelling 1960). Emergence claims that interactions and relationships at the micro level, under the right conditions, generate complex emergent characteristics and patterns at the macro level. These emergent macro properties persist, despite continual turnover in their constituent parts (Holland 1995). They are irreducible: that is, they are found only in the whole and are often completely different from anything found in the parts (Morçöl 2012; Vermeule 2011). These emergent elements exert downward causation: that is, they feed back into the system, affecting the behaviour of the components of the system (Morçöl 2012).11 A few counter-​intuitive examples illustrate emergent, spontaneous order. Consider a pack of hunting wolves, a flock of birds and a school of fish. Biologists did not understand how these groups behaved without some central direction until learning that a few rules can create spontaneous and complex order. An incredibly effective and efficient wolf pack can be explained with two rules: first, get as close to the target prey as possible without being injured or killed; second, move away from your closest hunting companion (Muro, Escobedo, Spector and Coppinger 2011). Three rules explain how birds can flock and fish can school without crashing into one another or other physical objects (Hartman and Benes 2006). Movie makers and computer programmers apply this knowledge to create armies of orcs and 101 dalmatians that move across the screen like real objects. Spontaneous orders share certain properties. First, the system’s aggregate characteristics and behaviour will usually differ significantly from what is predicted by its components. Second, inputs are not always linear (that is, proportional)—​micro causes may have large macro effects, and macro causes may have micro effects (Colander and Kupers 2014). Third, the interactions among agents within the system may be so dense and integrated that the system resists command and control by external forces. Emergent, spontaneous orders are found throughout human societies. The ‘invisible hand’ in Adam Smith’s market economy appears to be one. Another example is the complex order that emerges from the USA’s institutions and basic rules (Vermeule 2011). Nobel Prize winner Elinor Ostrom describes many spontaneous orders in her (1990) study, Governing the Commons. The simple rules that create emergent human order may be derived from our natural human sentiments and moral sense’s innate norms or they may be 11

This idea of downward causation is rejected by rational choice theory (Morçöl 2012).

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conventional; often it is a combination of both (Bicchieri 2006; Fiddick 2006; Gintis, Bowles, Boyd and Fehr 2005; Joyce 2007; Nichols 2004).12 Another human example of emergent order achieved through bottom-​up, negotiated interactions are the traffic intersections that eliminate all top-​down and external controls—​that is, traffic signs and traffic lights. At these intersections, pedestrians, cyclists and motorists must interact and negotiate their movement through the ‘shared space’ without outside guidance or direction. ‘When people do not know who has the right of way’, states the engineer Hans Monderman, ‘they seek eye contact with other users, reduce speed, and take greater care’. These intersections increase the risk factor slightly by giving individuals greater control and less direction, which induces individuals to accept responsibility and exercise restraint. The result is fewer accidents and traffic that flows more efficiently (Monderman n.d.; Vanderbilt 2008).13 The nature of spontaneous orders is that the agents in them are not controlled or directed, only influenced. In such systems there is often no direct, linear, causal link between government actions and outcomes (Colander and Kupers 2014; Morçöl 2012). Rather, public policy needs to be understood as a self-​organizational process in which government officials are one of many self-​ conscious actors trying to influence the system (Lane 2017; Morçöl 2012). The important point is that a government need not seek to create order or impose control, but rather may provide a mechanism through which people can coordinate their actions. This does not prohibit the use of top-​down directives and control, but it does recommend those should be a last resort, used to stop existential threats (Colander and Kupers 2014). The idea that complex order can emerge endogenously runs counter to the standard model and positivistic science which holds that causation is exogenous and linear, and the whole is reducible to its parts (Morçöl 2012). In other words, elites cannot know, control or predict as effectively as the standard model claims they can and requires they must in order to achieve its promises (Brooks 2018; Colander and Kupers 2014; Hayek 1945; Hooghe and Marks 2012; Lane 2017; McArdle 2013; Morçöl 2012; Tetlock 2005).

12

13

Scientists have shown that children naturally distinguish between two types of rules: prudential/​conventional and moral. Prudential or conventional rules are relative to time and place and may be set aside under certain circumstances. Moral rules are considered categorical. Children will follow an authority’s direction to ignore a conventional rule, but not a moral rule. This distinction between rules fits Elinor Ostrom’s distinction between constitutional and operating rules. ‘Shared space’ intersections have been criticized for being too difficult to navigate for visually and auditory-​impaired individuals.

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36 Smith Consider the American war on poverty: despite federal oversight and billions spent, systemic, multi-​generational poverty has grown (Deneen 2018; Eberstadt 2016; Gramm and Early 2018; Mitchell 2018). Similarly, at the global level, a top-​down, fully funded effort that spared no expense failed to significantly reduce poverty and, more significantly, failed to produce self-​sustaining growth (Barnett, Massett, Dogbe et al. 2018; Christensen, Ojomo and Dillon 2019). In contrast, after the Cold War, the spread of neoliberalism and the institutions that support and protect freedom has led to the most significant decline of global poverty ever witnessed and a convergence of incomes between nations (Acemoglu and Robinson 2016; Paris 2004; Patel, Sandefur and Subramanian 2018; Radelet 2016; Roy, Kessler and Subramanian 2016; Shleifer 2009; World Bank 2018). In short, under the right conditions and institutions, individuals acting freely may create spontaneous orders that have broad social benefits. This is not to say that elites know nothing. Elites are often correct when they share a strong consensus, and they have and will continue to contribute to better government and a better society (Tetlock 2005). However, the new science of complexity provides the theoretical basis to explain why top-​down, elite-​ driven policies have often failed to accomplish their objectives. It also helps explain why individual freedom under the right conditions and institutions may address social problems more effectively and efficiently than top-​down policies. 4

Federalism’s Significance

In evaluating federalism’s significance, Riker argues federalism is both inefficient and does not foster freedom, because it is a system that favours minority decision making and imposes high external costs on everybody except the privileged minority. Thus, determining whether federalism is a benefit or harm requires determining which minority is favoured by the system, and then deciding whether one favours that privileged minority’s goals and values (Riker 1964). This conclusion flows from some of the standard model’s assumptions and a loaded definition. The standard model sees diversity as a source of inefficiency (Colander and Kupers 2014). This is because the standard model assumes normal distributions, and thus seeks causal variables and public policies that fit within two standard deviations of the mean. Diversity and differences beyond two standard deviations are generally considered either meaningless or harmful. Federalism, Riker concludes, is harmful because it fosters diversity and competition that impair clear policy direction and control.

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In complex systems, however, assuming normal distributions and seeking averages will often miss the relevant variables and result in a misleading analysis, because it is the abnormal distributions (that is, the long-​or heavy-​tailed distributions or patterns) that often have the greatest influence on the system. In complex systems, sufficient diversity and competition are actually beneficial; they make the system run smoother and better by fostering resilience, robustness and innovation that allow the system to withstand shocks and disruptions and adapt to new situations, all without oversight, direction or planning (Colander and Kupers 2014; Page 2011). In federal systems, competition between governments is a means to check tyranny, protect liberty and keep government attentive, accountable, efficient, resilient and innovative (Kincaid 1991; Oates 2001; Schneiberg and Bartley, 2008; Smith 2018). Riker’s analysis, consequently, undervalues federalism’s benefits and overstates its costs. The standard model and a complexity policy framework also differ in their treatment of values and norms. The standard model requires a strict separation of facts and values, because science is unable to address metaphysical things like values. Also, under the rational choice model, norms and values are usually assumed to be fixed and unchangeable. Consequently, scientists are to defer the selection of values to two broad, aggregating and competitive processes—​the market and politics. Each process relies on self-​interested individuals and groups (firms and political parties) intentionally seeking to manipulate or alter the process for their own benefit. In both instances, little attention is given to norms, the public good, or the principles the public values. Insisting on a strict fact–​values distinction in public policy analysis can lead to value advocacy coming in through the back door under the pretence of value neutrality (Strauss 1953). Consider Riker’s definition of freedom. Riker defines ‘freedom’ as the ability to make policy. This allows the conclusion that one harms freedom by impairing either the majority or elite’s ability to make and direct policy. Yet Riker’s definition of freedom ignores the more common definition of freedom as the right to pursue one’s version of happiness in both the public and private realm. Under this more common definition, federalism may foster freedom by supporting and protecting diversity and competition. Riker’s non-​normatively operationalized definition of freedom justifies top-​ down elite policy making, while dismissing as irrelevant the common understanding of freedom. Riker’s final conclusion about federalism also follows the fact–​value distinction. ‘If in the United States one approves of Southern white racists’, Riker (1964, p. 155) writes, ‘then one should approve of American federalism. If, on the other hand, one disapproves of the values of the privileged minority, one should disapprove of federalism. Thus, if in the United States one disapproves

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38 Smith of racism, one should disapprove of federalism’. This statement, though literally value-​neutral is deeply fraught with normative advocacy. The consequence of sustaining that mask of neutrality, however, is not the simple normative solution to replace the bad norms with better norms, but rather an institutional solution of rejecting the entire structure associated with those bad norms (for example, federalism).14 In contrast, complexity policy recommends evaluating and adopting a clear norms policy that identifies the values that define and bind a community. Norms and rules coevolve. The norms give meaning, purpose and context to the rules. Consequently, norms are the most effective means to stabilize or affect change in complex, human systems (Colander and Kupers 2014; Meadows 2008; Wheatley 2006;). This is because if people’s values and ideals change, then they change their behaviour, and that change reverberates throughout the system in ways that create new understandings, institutions and emergent properties that then reinforce those changes and norms. Given the power of norms to shape systems, conscious attention and choice should be given to studying and selecting the norms that underlie and animate complex, human systems. The power of norms to shape complex, human social systems and the standard model’s insistence on the fact–​values distinction can result in policy reforms that have little effect if they are inconsistent with the prevailing norms. Existing conditions may ‘lock-​in’ existing policies. Consequently, what exists as a public’s norms may differ considerably from what a public desires for its guiding norms (Colander and Kupers 2014, p. 185). A benefit of a complexity policy model, then, is that it encourages a values debate beyond the merely abstract and analytical assessments to consider what are the genuine ideals and values, motives and passions within a specific context (Kass 2002, ch. 2). Neglecting the power of norms, the non-​linear nature of complex systems and the existence of emergence leads the standard model to exaggerate human intelligence’s ability to know and leadership’s ability to control complex human social systems. Complexity theory teaches that control and prediction are impossible in complex systems. Unfortunately, an exaggerated view of intelligence fostered by the standard model has led to an unjustified deference to authority:  justifying leadership action without genuine public discourse that harms democracy (Garsten 2006; Hirschman 1970; Manent

14

For a trenchant critique of the analytical method that favours the fact–​value distinction see Kass 2002, ch. 2.

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2006, 2007; Moore 2017);15 shifting responsibility for solving problems from individuals to the government (Deneen 2018; Lane 2017; Lowi 1979; Milbank and Pabst 2016);16 and denying citizens important opportunities that could create social connections, meaning and purpose in their lives (Hawkins et al. 2018; MacIntyre 1984; Minogue 2010; Pally 2016; Sachs 2018). Moreover, when government fails to solve important problems, the public becomes cynical and alienated, because the government did not do what its leaders and advocates claimed it could. This has contributed to the crisis of authority in our world today (Appelbaum 2018; Brooks 2018). Political science’s standard model teaches that politics is competition for resources and power, and the solution is often government centralization, unity and uniformity or market choices influenced by self-​interested firms. The standard model rests on an assumption that people with differing ideas will behave in competitive and antagonistic relationships. This ‘tragedy of the commons’ is a founding myth of modern political science. Yet, research shows, humans are often capable of resolving the allocation of common resources without government oversight (Ostrom 1990); and Ridley (1996) claims that actual tragedy-​of-​the-​commons events are almost always the result of government intervention. Laboratory experiments show that teaching college students that humans are rational and motivated by self-​interest creates a mindset that often becomes a self-​fulfilling prophecy requiring centralized, top-​down control to constrain (Ridley 1996).17 The standard model’s approach to social problems has not been to develop social and civic institutions that foster individual responsibility and social cooperation, or meet the very human need for connection and society, but quite the opposite. The standard model’s recommendations are now highly suspect, because the standard model assumes a false anthropology, its methods miss a fundamental source of order, and it overestimates elites’ ability to know and control. The standard model that defines the social sciences needs to be rethought. It is time for a paradigm shift that gives due consideration to non-​linear, dynamic systems, 15

16

17

For Hobbes and much of the standard model, this shift away from persuasion to justification and manipulation is intentional (Garsten 2006). Rousseau’s idea that individuals can be ‘forced to be free’ and Marx’s idea of ‘false consciousness’ also discount the value of genuine discourse and persuasion. Pierre Manent (2006) argues that justification prevails in our modern societies. This idea stems in no small part from Hobbes’s anthropology that humans are by nature radically independent and autonomous beings, Romanticism that favours individual autonomy free from unnecessary and unchosen constraints and obligations, and the modern liberal view that the state can solve problems. Studies show that students who learn game theory become more selfish (Ridley 1996).

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40 Smith beneficial competition and natural human sentiments that favour social interaction, and cooperation. In this paradigm shift, the potential lies in recognizing that individuals are smart and adaptive, who benefit from bearing some risk and respond with responsibility and restraint, whose nature seeks social connections, and who can work collaboratively to design institutions and structures that respect the common good and help them achieve their goals (Colander and Kupers 2014) This requires an environment that recognizes the value and place for both local interactions with bottom-​up influence and limited top-​down direction. How to accomplish this is not yet clear, but a federalism that values self-​government may provide a valuable framework. A federalism that values self-​government will provide a minimal normative national framework that unites the nation, but allows significant local discretion. An example could be the United States’ Declaration of Independence which defines some fundamental values that define an American identity, while the Constitution allows constituent units significant freedom and diversity consistent with those values. Too much local control, however, can be harmful. The natural human sentiments that contribute to cooperation also foster tribalism and local tyranny. A  federalism that values self-​government will recognize the problems of prejudice and bias that make local tyrannies possible. Clearly, some top-​down and macro-​direction is both beneficial and necessary to overcome local tyrannies and tribalism, but it will also acknowledge that local control (or federalism all the way down) can be an effective means to empower minorities (Gerken 2010), and foster transformative bottom-​up movements. A federalism that values self-​government provides a means to overcome the trust problem—​how can you trust others to forgo their short-​term self-​ interest for long-​term cooperation (Ridley 1996)? The solution to problems of self-​government is often more self-​government. Many have noted that the rules that make trust and cooperation possible are more likely to be internalized, effective, robust and monitored if they are created closer to the people and through popular participation (Colander and Kupers 2014; Moore 2017; Morçöl 2012; Ostrom 1990; Ridley 1996).18 Tocqueville famously noted that self-​government teaches the art of associating and cultivates the virtues that make more self-​government possible (Tocqueville 2000). Similarly, the value 18

In contrast, Robert Dahl (1989) thought the solution to greater rule by the people required either insulating political decisions from economic inequalities or reducing those inequalities. This is a broadly shared sentiment today, but Madison clearly rejects this idea in Federalist #10 (1987).

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of character education for cultivating the ‘better angels of our nature’ should not be neglected. This need was understood by America’s founding fathers (see Vetterli and Bryner 1996). Finally, developing shared public spaces that require responsibility and restraint provides an educative function. Hans Monderman (n.d.) noted that when people learn to navigate the ‘shared space’ intersections they also often come to realize that government is not necessary to solve every problem. More self-​government means more human interactions which require trust, and this leads humans to both behave more trustworthily and identify and sanction those who behave irresponsibly and untrustworthily. In this regard, federalism’s contribution will probably be less in refining the institutions of government or the techniques of intergovernmental management. Rather, it will help structure an ecosystem that fosters greater self-​ government through human associations that self-​organize in unplanned, unpredictable and creative ways. Making this work well requires a better understanding of when top-​down command and control is efficient and effective, and when bottom-​up diversity and competition are better. 5

Conclusion

Our modern, globalized world is more open than closed, and increasingly interconnected, interdependent and dynamic. Order, it is now clear, does not necessarily come from above, but may emerge from small, distributed and connected parts. And human happiness is largely tied to accepting responsibility and engaging in meaningful activities. These things persist, and often prevail, despite significant political and cultural institutions and beliefs arrayed against them. A more supportive ecostructure would likely induce greater social interaction and cooperation (Colander and Kupers 2014). The new anthropology and the science of complexity have led many to conclude that the social sciences need to be completely rebuilt. How to do that is still being developed and will take time. At a minimum, this paradigm shift will require relinquishing the chimera of control that positivism has given us. It will require fostering freedom, individual responsibility and trust in the moral purposes of the average man and woman. Rejecting this option is to hold to the false promise of human control, to believe that the elites at the top can control and direct, to dismiss the average person’s actions as inconsequential to the final outcome—​in short, to ignore what complexity has made clear is impossible. While complexity science is new, the ideas are not. There are deep echoes here of Aristotle and Althusius, Smith and Hume, Madison and Tocqueville,

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42 Smith Elazar and Ostrom—​philosophies the standard model has discounted in favour of power and structures.19 As we think about a new paradigm of government, federalism with its supporting philosophies of freedom, self-​government, individual responsibility, divided sovereignty, local control and a limited but strong national government has much to contribute.

Acknowledgements

The author would like to thank iacfs for the call and conference where this chapter was first presented, and also Erik Shane Munton, Alena Smith and Morgan Smith for their suggested revisions.

References

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For a review of other philosophers who challenge the centralized, sovereign state and standard model, see Hueglin 1999, 2008.

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44 Smith Jefferson, T. [1814] (1975). Letter to Thomas Law, June 13, in M. D. Peterson (ed.), The Portable Thomas Jefferson. New York: Penguin Books. Joyce, R. (2007). The Evolution of Morality. Cambridge, MA: mit Press. Kass, L. R. (2002). Life, Liberty and the Defense of Dignity: The Challenge for Bioethics. New York: Encounter Books. Kekes, J. (2002). The Art of Life. Ithaca: Cornell University Press. Kincaid, J. (1991). The competitive challenge to cooperative federalism: a theory of federal democracy, in D. A. Kenyon and J. Kincaid (eds), Competition among the States and Local Governments: Efficiency and Equity in American Federalism. Washington, DC: Urban Institute Press. Lane, R. (2017). The Complexity of Self-​government. Cambridge: Cambridge University Press. Livingston, W. S. (1952). A note on the nature of federalism. Political Science Quarterly 67: 81–​95. Lowi, T. (1979). The End of Liberalism. New York: W. W. Norton & Co. Lutz, D. S. (1988). The Origins of American Constitutionalism. Baton Rouge: Louisiana State University Press. MacIntyre, A. (1984). After Virtue, 2nd edn. Notre Dame: University of Notre Dame Press. Madison, J. (1987). Federalist #10, in I. Kramnick (ed.), The Federalist Papers. London: Penguin Books. Manent, P. (2006). A World beyond Politics? A  Defense of the Nation-​State, trans. M. LePain. Princeton: Princeton University Press. Manent, P. (2007). Democracy without Nations: The Fate of Self-​government in Europe. Wilmington: isi Books. McArdle, M. (2013). America’s new mandarins. Daily Beast, Feb. 21, . Meadows, D. H. (2008). Thinking in Systems: A Primer. White River Junction: Chelsea Green Publishing. Minogue, K. (2010). The Servile Mind:  How Democracy Erodes the Moral Life. New York: Encounter Books. Milbank, J. and A. Pabst (2016). The Politics of Virtue: Post-​Liberalism and the Human Future. Lanham: Rowman & Littlefield. Mitchell, D. J. (2018). Poverty in the U.S.  was plummeting  –​until Lyndon Johnson declared war on it, . Monderman, H. (n.d.). Shared spaces—​naked streets—​how it all started [video file], . Morçöl, G. (2012). A Complexity Theory for Public Policy. New York: Routledge. Moore, A. (2017). Critical Elitism: Deliberation, Democracy, and the Problem of Expertise. Cambridge: Cambridge University Press.

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Muro, C., R. Escobedo, L. Spector and R. P. Coppinger (2011). Wolf-​pack (canis lupus) hunting strategies emerge from simple rules in computational simulations. Behavioral Processes 88: 192–​197. Nichols, S. (2004). Sentimental Rules. Oxford: Oxford University Press. Oates, W. E. (2001). Fiscal competition or harmonization? Some reflections. National Tax Journal 54: 507–​512. Ostrom, E. (1990). Governing the Commons: The Evolution of Institutions for Collective Action. Cambridge: Cambridge University Press. Ostrom, V. (1973). Can federalism make a difference? Publius: The Journal of Federalism 3: 197–​237. Ostrom, V. (2008). The Crisis of Public Administration, 3rd edn. Tuscaloosa: University of Alabama Press. Page, S.E. (2011). Diversity and Complexity. Princeton and Oxford: Princeton University Press. Pally, M. (2016). Commonwealth and Covenant: Economics, Politics, and the Theologies of Relationality. Grand Rapids: Wm B. Erdmans Publishing Co. Paris, R. (2004). At War’s End: Building Peace after Civil Conflict. Cambridge: Cambridge University Press. Patel, D., J. Sandefur and A. Subramanian (2018). Everything you know about cross-​country convergence is (now) wrong. Center for Global Development, . Pearlstein, S. (2018). Five myths about capitalism. Washington Post, Sept. 28, . Pinker, S. (2002). The Blank Slate:  The Modern Denial of Human Nature. New  York: Penguin Books. Plomin, R. (2018). Blueprint: How DNA Makes Us Who We Are. Cambridge, MA: mit Press. Radelet, S. (2016). Progress in the global war on poverty. Christian Science Monitor, Feb. 7, . Ridley, M. (1996). The Origins of Virtue: Human Instincts and the Evolution of Cooperation. New York: Penguin Books. Riker, W. H. (1964). Federalism: Origin, Operation, Significance. Boston: Little, Brown & Co. Roy, S., M. Kessler and A. Subramanian (2016). Glimpsing the end of economic history? Unconditional convergence and the missing middle income trap. cgd Working Paper 438. Washington, DC: Center for Global Development. . Sachs, J. (2018). Morality in the 21st century, episode 6.  bbc Radio 4 Podcast. Aug. 13, .

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46 Smith Schechter, S. L. (ed.) (1990). Roots of the Republic:  American Founding Documents Interpreted. Madison: Madison House. Schelling, T. 1960. The Strategy of Conflict. Cambridge, MA: Harvard University Press. Schneiberg, M. and T. Bartley (2008). Organizations, regulation, and economic behavior:  regulatory dynamics and forms from the nineteenth to twenty-​first century. Annual Review of Law and Social Science 4: 31–​61. Shleifer, A. (2009). The age of Milton Friedman. Journal of Economic Literature 47: 123–​ 135, . Smith, T. E. (2017). A compound republic—​if you can keep it: Martha Derthick’s empiricism and the value of federalism. Publius: The Journal of Federalism 47: 153–​170. Smith, T. E. (2018). Federalism’s favorite phantom: race to the bottom theory. Paper presented at the American Political Science Association’s Annual Meeting, Boston, MA. Strauss, L. (1953). Natural Right and History. Chicago: University of Chicago Press. Tetlock, P. E. (2005) Expert Political Judgment:  How Good Is It? How Can We Know? Princeton: Princeton University Press. Tocqueville, A.  de (2000). Democracy in America, trans. H. C. Mansfield and D. Mansfield. Chicago: University of Chicago Press. Tomasello, M. and H. Moll (2010). The gap is social: human shared intentionality and culture, in P. M. Kappeler and J. B. Silk (eds), Mind the Gap. Berlin: Springer-​Verlag, pp. 331–​349. Tuschman, A. (2013). Our Political Nature: The Evolutionary Origins of What Divides Us. Amherst: Prometheus Books. Vanderbilt, T. (2008). The traffic guru. The Wilson Quarterly 32: 26–​32. Vermeule, A. (2011). The System of the Constitution. New York: Oxford University Press. Vetterli, R. and G. Bryner (1996). In search of the Republic: Public Virtue and the Roots of American Government. Lanham: Rowman & Littlefield. Wheatley, M. J. (2006). Leadership and the New Science: Discovering Order in a Chaotic World. San Francisco: Berrett-​Koehler. Wilson, J. Q. (1993). The Moral Sense. New York: Free Press. Wilson, J. Q. (1995). Political Organizations. Princeton: Princeton University Press. World Bank (2018). Poverty and Shared Prosperity 2018:  Piecing together the Poverty Puzzle. Washington, DC: World Bank, .

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­c hapter 4

Sovereignty and Autonomy of Constituent Units in Federal and Regional Systems A Case Study of Italy Erika Arban 1

Introduction

When outlining the main features of a classic federation, scholars commonly contend that both the federal government and federated entities are sovereign and autonomous in their own powers, meaning that neither level is subordinate to the other, and they both share the ‘nature of state’, enjoying the whole bundle of functions and state powers (Bin and Falcon 2012, p. 51). This idea of sovereignty ‘divided’ between federal and peripheral units (embedded for the first time in the US constitution of 1787) is regarded as one of the most important elements distinguishing a pure federation not only from unitary states, but also from quasi-​federal/​regional states. In fact, in regional states sovereignty belongs to the centre, with territorial sub-​units enjoying only mild forms of autonomy: in other words, while in federal states the two concepts are commonly used interchangeably, peripheral units in regional states are autonomous but not sovereign, as sovereignty remains undivided at the central level. The question thus becomes: how does the sovereignty of federated entities differ from the constitutionally protected autonomy enjoyed by regions in regional states? Using the Italian regional system as a case-​study, this chapter contributes to the discussion on the differences between federal and regional systems by looking at the meaning of sovereignty and autonomy of constituent units. Section 2 briefly sketches the main differences between regional and federal states. Section 3 retraces the intellectual history and meaning of sovereignty in general terms, and the specific concept of divided sovereignty in federal states. Finally, Section 4 contains an empirical study of Italy and examines the classification of sovereignty and autonomy made by the Italian Constitutional Court (hereafter ‘the icc’).

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Federalism and Regionalism

2.1 Classic Federations In federalism scholarship there is no unanimous consensus on the definition and features of a federal state, as each federation is unique and reflects the specific socio-​economic, cultural and ethnic features of the territory. Despite the differences among federal states, however, federalism embodies an idea of ‘shared rule’ and ‘self-​rule’ that distinguishes it from the unitary state and that is normally translated into the following characteristics. First, the constitution of a pure federation1 entrenches a division of legislative powers between central and peripheral units, although the way these powers are divided may vary significantly among federations. In fact, in order to have a federation, [t]‌here must be some matter, even if only one matter, which comes under the exclusive control, actual or potential, of the general government and something likewise under the regional governments. If there were not, that would be the end of federalism. wheare 1963, p. 75

Another feature characterizing classic federations is the presence of an Upper Chamber or Senate representing the interests of the periphery at the centre, providing a forum at national level to advance their claims and participate in national legislation. Third, fully fledged federal systems are characterized by a Constitutional or Supreme Court, settling conflicts of attribution between central and peripheral governments with, ideally, some of the justices being appointed by the peripheral entities. Fourth, in pure federations, each level of government enjoys financial and fiscal autonomy, so that they can exercise their powers independently from each other. Fifth, classic federations are characterized by the involvement of territorial entities in the revision process of the constitution. In fact, the constitution would not be amendable unilaterally (for example, by the federal government only), but would require the participation of peripheral units, thus corroborating the idea that both levels of government are equally important and sovereign in their own sphere of powers. Sixth, in pure federations local sub-​units also enjoy autonomous judicial functions. Seventh, a federal 1 Throughout this chapter, the expressions pure, fully fledged and classic federation are used interchangeably to refer to the most traditional federal scheme shaped in the 1787 US federal constitution.

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constitution is usually construed as a covenant, thus distinguishing it from constitutions of regional or unitary systems, where it would simply be a law. Likewise, federated entities enjoy constitution-​making powers and can draft their own constitutions. Finally, from a historical standpoint, several pure federations have emerged from the ‘coming together’ of formerly independent states, who have joined the federal government in a covenant to create a new entity. Until some decades ago, the US model entrenched in the 1787 constitution was considered the archetypal federal system; schemes that did not fit into this mould were considered non-​federal. This thin understanding of federalism, however, is no longer viable, as federal models have evolved into sophisticated schemes. While this has allowed a more flexible approach to federalism, it has also made classification more complex. The consequence is that, if the federal features just outlined may help distinguish a federal from a unitary model, they are less helpful in clarifying the differences between a federal and regional system, as the next subsection illustrates. 2.2 Regional States What are the differences between federal and regional states? Intuitively, a regional state is something more than a unitary state, but something less than a pure federation, meaning that only some—​but not all—​the federal features sketched above are present. But which federal elements are present (or absent) in a regional system? The answer is not straightforward. Before addressing it, it might be helpful to recall that the regional state was first introduced by the 1931 Spanish constitution, which created autonomous communities endowed with legislative powers, and is thus regarded as the ‘pioneer text of regionalism in Europe’ (Ruggiu 2012, p. 26). However, the Spanish Civil War prevented its application, so scholars contend that the regional state was invented by the members of the Italian constituent assembly in their quest to find a viable alternative to the ‘unitary vs federal’ dyad for the 1948 constitution (Bin and Falcon 2012, p. 48). The expression ‘regional state’ was coined by Gaspare Ambrosini (a member of the Italian Constituent Assembly), who had studied the 1931 Spanish constitution, the Soviet Union model and the extinct Austro-​Hungarian scheme (Bin and Falcon 2012; p. 48), as well as Swiss federalism and the Weimar Republic for comparison (Mangiameli 2014, p. 3). Thus inspired, Ambrosini conceived of a new entity enjoying legislative powers—​ the region—​but not as powerful and sovereign as federated entities (Bin and Falcon 2012, p. 48). In turn, the 1948 Italian regional model partially inspired the 1978 Spanish autonomic state. To this day, Italy and Spain remain archetypal examples of regional states.

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50 Arban Returning to the distinction between federal and regional models, we observed that federal constitutions usually entrench a division of legislative powers between the centre and the periphery. This element is present also in regional states: see, for example, article 117 of the Italian constitution. The presence of an Upper Chamber or Senate representing the interests of the periphery at the centre is not a decisive element even in classic federations, as there are federal systems—​like Canada—​that have weak federal Senates. When this is the case, other forums, such as intergovernmental conferences, allow the centre and periphery to come together. In a regional state like Italy, senators do not sit in representation of local interests (although they are elected on a regional basis and seat distribution is proportional to local population), but the absence of a regional Senate has led to the creation of a ‘State–​Region Conference’ for the centre and the periphery to meet. As for an umpire settling conflicts of attribution between central and peripheral governments, regional states may have this feature too. In Italy, article 134 of the constitution, for example, indicates that the icc shall pass judgments on ‘conflicts arising from allocation of powers of the State and those powers allocated to State and Regions, and between Regions’.2 Financial and fiscal autonomy of constituent units may also be present in regional states. In Italy, article 119(1) grants autonomy of revenues and expenses to all local sub-​units, while article 119(2) dictates that the sub-​units enjoy independent financial resources and may levy taxes and collect revenues. Furthermore, article 119(5) mandates that local sub-​units have their own properties, while articles 119(3) and (4) contain provisions on equalization funds for territories with lower per-​capita taxable capacity. Another element characterizing classic federations is the degree of involvement of territorial entities in the constitutional revision process. In regional states like Italy, regions play no major role in the constitutional amendment process, but article 138 permits regions, in certain circumstances, to request a referendum on bills proposing constitutional modification. Indeed, although the power of regions cannot be equivalent to that of federated entities, in some federal states constitutional amendment procedures can be so complex that regional powers in this area—​although they exist—​are rarely or never exercised. Whereas federated entities may operate autonomous regional courts, regional systems often have access to only a single national judicial system. But there are pure federations where the jurisdiction of regional courts is very 2 Hereafter, all numbered articles, unless otherwise specified, refer to the Italian constitution.

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limited, provincial judges of general jurisdiction are appointed by the federal government and are all part of a centralized system leading up to the Supreme Court (for example, Canada). A federal constitution is usually construed as a covenant, thus distinguishing it from constitutions of unitary systems where it would simply be a law. In classic federations, federated entities enjoy constitution-​making powers and can draft their own constitutions, although this is not true of all federal states: Canadian provinces, for example, lack a formal document that qualifies as ‘provincial constitution’, and the same is true for Belgium. In regional states like Italy, the national constitution is the only constitution, one that has not emerged from a covenant and is not competing with other constitutions within the constituent units (Bin and Falcon 2012, p. 62). However, Italian regions can adopt documents (statuti) that, while not sub-​national constitutions, nonetheless present interesting features: among other things, their scope is to lay down the ‘form of government’ and the ‘basic principles for the organization of the Region and the conduct of its business’ (article 123). Finally, most classic federations have emerged from the merger of formerly independent states, while regional states have usually followed a ‘devolutionary’ path, progressively decentralizing from a unitary system. Yet this state-​ formation rationale is not entirely flawless; while Italian and Spanish regionalism emerged from a process of decentralization of a once unitary state, the opposite can also be true, since decentralization can lead to the formation of a fully-​fledged federation, as was the case with Belgium. Similarly, not all federations have materialized from the merger of formerly independent states: for example, not all the 50 states in the US were independent at the time they joined the Union. While the common features of a pure federation are a good clue to distinguishing federal from unitary states, they are not equally helpful in differentiating federal from regional systems. In the next subsection, I shall consider another, more substantial, feature: the difference between concepts of sovereignty and autonomy of constituent units. 2.3 Sovereignty and Autonomy of Constituent Units Federalism scholarship usually contends that both the federal government and the governments of the constituent units are sovereign and autonomous in their own spheres of powers, so that there is no subordination between the two, as they enjoy a ‘partnership’ relation and share the ‘nature of state’ (Bin and Falcon 2012, p.  51). Consequently, in classic federations peripheral governments ‘are not the mere delegates of the central power’—​as in unitary states—​since ‘they all have their own primary, law-​making powers attributed

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52 Arban to them by the Constitution’, even if federal partners ‘are bound by common rules, constitutional rules, to one another’ (Cyr 2014, p. 21). Because this understanding of federalism is influenced by US scholarship, for reasons that will be explained in Section 3, authors write of the sovereignty and autonomy of constituent units as if the two terms were synonyms and thus interchangeable. Conversely, in a unitary state, the ‘ultimate political authority’ or ‘sovereignty’ lies with the central government and any administrative, legislative or financial decentralization ‘occurs at the discretion or will of the central government, which may, if it so determines, overrule constituent units on any matter’ (Watts 2013, p. 20). Regional states are positioned somewhere in between, since sovereignty belongs only to the centre, while regions are not sovereign but enjoy forms of constitutionally protected autonomy, as the icc has indicated. But in what ways does sovereignty in federated entities differ from the constitutionally protected autonomy enjoyed by regions in regional states? Section 3 offers a theoretical answer to this question. 3

Sovereignty and Autonomy

3.1 In General Black’s Law Dictionary (Black 1990) defines autonomy as [t]‌he political independence of a nation; the right (and condition) of power of self-​government. The negation of a state of political influence from without or from foreign powers. It defines sovereignty as [t]‌he supreme, absolute, and uncontrollable power by which any independent state is governed; supreme political authority; the supreme will; paramount control of the constitution and frame of government and its administration; the self-​sufficient source of political power, from which all specific political powers are derived; the international independence of a state, combined with the right and power of regulating its internal affairs without foreign dictation; also a political society, or state, which is sovereign and independent. The power to do everything in a state without accountability—​to make laws, to execute and to apply them, to impose and collect taxes and levy contributions, to make war or peace, to form treaties of alliance or of commerce with foreign nations, and the

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like … By ‘sovereignty’ in its largest sense is meant supreme, absolute, uncontrollable power, the absolute right to govern. The word which by itself comes nearest to being the definition of ‘sovereignty’ is will or volition as applied to political affairs. These definitions help us to tease out the meaning of sovereignty and autonomy only to a certain extent. The first, obvious, observation is that the concept of sovereignty is larger than that of autonomy, since sovereignty includes all that autonomy implies, but goes beyond that. The difference between them is thus a matter of degree: sovereignty is broader than autonomy, as the latter is encompassed in the former. Second, the literal definition of sovereignty reported above resembles its conceptual understanding, as an absolute, supreme and uncontrollable power, subject to no limitations, being the source of all other powers that exist within a given system. It is perhaps useful at this point to briefly retrace the intellectual history of sovereignty. 3.2 A (Brief ) Intellectual History of Sovereignty Although for some scholars the origins of sovereignty can be traced back to the Middle Ages, it was with the emergence of the modern state in the 17th century that sovereignty was theorized as encompassing unlimited powers and the possibility of legislating ‘on every possible aspect of human life’ (Troper 2012, p.  354). The notion of sovereignty which led to the conception of the modern state—​as articulated by Bodin and Hobbes—​was initially shaped by the unique context of 16th-​and 17th-​century Europe plagued by religious and dynastic wars (Palermo and Kössler 2017, p. 84). As Troper indicates, ‘theories of sovereignty have been a central part of constitutional discourse … since Bodin’, to the point that sovereignty has become ‘an essential and distinctive characteristic of the state’ (Troper 2012, pp. 350–​351). Jean Bodin’s Les Six Livres de la République, published in 1576, became the ‘classic rationalization’ of the unitary, monarchical and strongly centralized state which would dominate European culture (Burgess 2000, p.  2). Bodin called for an absolute and perpetual power as a necessary feature of the modern state, without which anarchy and civil war would be inevitable; consequently, his model (originally intended for France) was necessary for the achievement of order, stability and security in a world that was dangerous and uncertain (Burgess 2000, p. 2). Bodin’s ideas deeply influenced some of his contemporaries such as Hobbes, whose Leviathan can be directly traced to it (Burgess 2000, p. 3). The Leviathan can be explained as an ‘authority with unlimited and indivisible sovereignty’ (Palermo and Kössler 2017, p. 85).

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54 Arban For both theorists, this undivided and unlimited sovereignty was the necessary solution to the unstable political and socio-​economic situation in Europe. The consequence, however, was that absolute monarchs adopted these theories to justify an unlimited concentration of powers in their hands (Palermo and Kössler 2017, p. 85). In 1648, the Peace of Westphalia terminated the Thirty Years’ War and all the religious wars that had beset Europe until then, thus helping the transition from a medieval model to an idea of indivisible sovereignty reposing on the state (Loughlin 2013, p. 5). Since Bodin and Hobbes, therefore, saying that the state is sovereign means two things: (1) that the state has an absolute power to decide on every aspect of human life (internal sovereignty); and (2) that the state is independent from external power (external sovereignty) (Troper 2012, p.  354). Regarding internal sovereignty, the absolute power to decide implies that the state possesses and exercises a power that is its own and is unlimited (Troper 2012, p. 354). International sovereignty is part of internal sovereignty, since the ‘capacity to make treaties and be bound by them was thus viewed not as a limitation but as an expression of sovereignty’ (Troper 2012, p. 359). Therefore, international relations were (and still are) meant to be among and between sovereign states (Troper 2012, p. 359). A few centuries later, the French constitutionalist Raymond Carré de Malberg further elaborated on this idea of sovereignty, identifying three meanings for the term: (1) the supreme character of the state’s power; (2) the range of powers included in the state’s authority, being therefore synonymous with that authority; and (3) the position occupied within the state by the highest organ of state’s authority, so that sovereignty is the same as the power of that organ (Troper 2012, p.  353). However, while in French (or even Italian), the same term, sovereignty, was used to refer to these three different conceptions, German employed three words:  Souveranität (the supreme character of the state on the international and domestic levels); Staatsgewalt (the powers that can be exercised by the state); and Herrschaft (the power of domination by one organ) (Troper 2012, p. 353). Not everyone agrees on all aspects of sovereignty, so it has been questioned whether sovereignty can be divided (Troper 2012, p. 351), an issue that is important for this chapter. To address it, we need to discuss the philosophy of Althusius. A near-​contemporary of Bodin and Hobbes, Johannes Althusius offered a view of the state that challenged their strong and centralized vision of sovereignty. In his work Politica Methodice Digesta, he described the various forms of associations in which human beings express themselves, operate, are represented and maintain their liberties: families, collegia, cities, provinces and the commonwealth (Althusius [1614] 1995, p. 27; Elazar 1994, pp. 41–​42). While

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families and collegia were simple and private associations, cities, provinces and the commonwealth were considered mixed and public ones (Althusius [1614] 1995, p. 27). Although considered the godfather of federalism, Althusius did not elaborate a complete federal theory at this time. What was remarkable in his work was a new way of conceiving society as a multi-​layered compound built up from the family; and in this new conception of multi-​layered society we can see an embryonic federal idea. At the same time, sovereignty was, for Althusius, a principle that could be shared by the different associations composing the commonwealth (Palermo and Kössler 2017, p. 86). In other words, sovereignty was divisible, because his multi-​layered society challenged the idea of absolute monarchy and undivided sovereignty advocated by Hobbes and Bodin (Palermo and Kössler 2017, p. 86). Nonetheless, Althusius’ work was far from being earth-​shattering in his own time, and his Politica did not receive the attention it probably deserved; his ideas remained unnoticed until the 19th century, when they were eventually rediscovered by Otto von Gierke (Hueglin 1979, p. 18). Building on the work of Bodin and Hobbes, the understanding of sovereignty followed different trajectories in the Anglo-​American common law and the Continental European civil law traditions (Palermo and Kössler 2017, p.  87). In the latter, (undivided) sovereignty remains a central tenet to this day, while in the Anglo-​American tradition, sovereignty has much less weight (Palermo and Kössler 2017, p. 87), to the point that some scholars have dismissed Bodin’s absolute and undivided conceptualization of sovereignty, thus paving the way to the idea of divided sovereignty, exemplified by the US federal model of 1787 (Palermo and Kössler 2017, p. 88). Hence, in the Anglo-​ American tradition, scholars have limited interest in sovereignty, contrary to Roman Law tradition. 3.3 Divided Sovereignty in US Federalism and Its Legacy While Althusius’ ideas were mainly ignored in Europe, they somehow travelled across the Atlantic, contributing to the creation of the first archetypal federal system, the US constitution of 1787. As Justice Kennedy noted, [t]‌he Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursions by the other. The resulting Constitution created a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to

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56 Arban the people who sustain it and are governed by it. (US Term Limits, Inc. v. Thornton, 514 US 779 (1995), Justice Kennedy (concurring)) The novelty of the Philadelphia compromise of 1787 was that it placed the US in a position somewhere in between an international and a national structure, with sovereignty shared between the Union and the states (Schütze 2009, p. 23). Sovereignty was virtually divided between the two levels of government, although—​technically speaking—​the US federal constitution does not specify where it resides (Palermo and Kössler 2017, p. 89). Although not an absolute rule, other classic federations now entrench divided sovereignty. For example, article 3 of the Swiss constitution mandates that The Cantons are sovereign except to the extent that their sovereignty is limited by the Federal Constitution Likewise, article 30 of the German Grundgesetz is explicitly labelled ‘Sovereign powers of the Länder’ and mandates that Except as otherwise provided or permitted by this Basic Law, the exercise of state powers and the discharge of state functions is a matter for the Länder However, while the German and Swiss federal constitutions explicitly refer to the sovereignty of the constituent units, federal constitutions of systems such as Canada or Australia are silent in this regard. In dividing sovereignty between two levels of government, federalism somehow disrupted the classic understanding of sovereignty in Europe. Perhaps this is one of the reasons why—​Germany and Switzerland aside—​for a long time federalism was not enthusiastically welcomed in Europe (Beaud 2012, p. 274). In fact, in the European legal tradition, the power of the state is ‘held to be a power of dominance … such that the state may be defined as a unit for decision-​making and action’ (Beaud 2012, p. 274). Within this framework, only the unitary state could exist, as federal states would undermine the idea of sovereignty (Beaud 2012, p. 274). To overcome this antinomy between federalism and sovereignty, some creative solutions have been engineered. For example, in countries like Italy and Spain, whose constitutional systems were initially shaped quite heavily by the French unitary state, but were at some point forced to decentralize, the solution was to distinguish between the concept of sovereignty (which is one and belongs only to the centre) and that of autonomy (which is what

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the regional level enjoys). Here, the central government retains full sovereignty (foreign policy, defence, currency, and so on), while regional governments enjoy exclusive powers in areas such as town and country planning, tourism, health, and so on (Beaud 2012, p. 275). In other words, while they enjoy broad autonomy and legislative powers, they are not considered sovereign, and remain subject to the control of the central government (Beaud 2012, p. 275). But is this distinction between autonomy and sovereignty truly fundamental, or is it just using different terms to refer to the same thing? After all, we observed that classic federations invariably refer to the spheres of competences of the constituent units as sovereign and autonomous powers, as if the two terms mean the same thing, while only in regional states like Italy does this distinction become important. Furthermore, while there is a long-​standing scholarly tradition investigating the many shades of sovereignty, autonomy is simply construed as the ‘little sister’ of sovereignty and encompassed within it. 4

A Case-​Study of Sovereignty and Autonomy in Italy

Following the continental European tradition of monolithic sovereignty as discussed above, regional states insist upon the difference between autonomy and sovereignty of constituent units as a fundamental feature distinguishing them from pure federations, as the Italian case-​study exemplifies. 4.1. A (Brief ) Overview of Italian Regionalism This is not the place for a detailed account of the Italian regional system. I will point out that the 1948 constitution created an archetypal regional model, a compromise between the unitary and decentralizing forces that have constantly torn Italy since its unification. It divided Italy into 20 regions, five of which enjoy special forms and conditions of autonomy in consideration of their geographical location and/​or the presence of autonomist/​separatist movements coupled with linguistic minorities.3 In 2001, a reform to Title v of the constitution on local autonomies profoundly changed Italian regionalism by strengthening the scope and powers of regions. All discussions on regionalism in Italy shall start from article 5, providing that

3 The five special regions are:  Friuli Venezia Giulia, Sardegna, Sicilia, Trentino-​Alto Adige/​ Südtyrol and Valle d’Aosta/​Vallée d’Aoste.

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58 Arban [t]‌he Republic is one and indivisible. It recognizes and promotes local autonomies, and implements the fullest measure of administrative decentralization in those services which depend on the State. The Republic adapts the principles and methods of its legislation to the requirements of autonomy and decentralization. While article 5 encourages autonomy, it also mandates that Italy is ‘one and indivisible’: the tension between this principle of unity and indivisibility and the constitutional recognition and promotion of local autonomies has been a constant feature of Italian constitution making. The local autonomies mentioned in article 5 are spelled out in article 114(1): The Republic is composed of Municipalities, Provinces, Metropolitan Cities, Regions and the State. Municipalities, provinces, metropolitan cities and regions are autonomous entities having their own statutes, powers and functions in accordance with the principles laid down in the Constitution. Italian regionalism is thus articulated in different levels, building up from metropolitan cities and municipalities. However, not all these local autonomies have the same powers, as only regions enjoy constitutionally recognized legislative powers. 4.2 Sovereignty and Autonomy According to the icc When outlining Italian regionalism, constitutional scholars insist upon the fact that regions are not sovereign, but merely enjoy forms of ‘constitutionally protected autonomy’, even if they are vested with constitutionally entrenched legislative, administrative and fiscal powers (articles 117, 118 and 119 respectively). This idea of ‘constitutionally protected autonomy’—​ as opposed to sovereignty—​has also been emphasized by the icc. How has this been explained? As the next subsections will better illustrate, the arguments made by the constitutional judges revolve around three main elements: (1) the principle of ‘unity and indivisibility’ of the state and constitutional and statutory limits to regional powers; (2) historical reasons; and (3) the differences between regional legislative councils and the national parliament. I will analyse each of them separately. 4.2.1

The Principle of ‘Unity and Indivisibility’ of the State and Constitutional and Statutory Limits to Regional Powers In one of its first decisions in the late 1950s, the icc clarified that, regardless of the constitutional recognition of regional autonomy, regions shall be situated within

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the framework of the unity of the state and subordinate to it. Consequently, regions can never replace the national government in its tasks and offices, unless such power has been expressly devolved by law (icc decision 9/​1957). The icc also underlined that, while regions are granted broad constitutional autonomy, they are not sovereign, as only the central state is a subject of international law (icc decision 49/​1963, par. 2). Likewise, even if regional statutes grant broad autonomy to the region, this autonomy is not comparable to the sovereignty enjoyed by the state, because regions are subordinate to the state and their powers are limited to the subject matters listed in the statutes (icc decision 66/​1964, par. 3). Although this contrasts with traditional federal theory (wherein the two levels of government are sovereign and not subordinate to one another), even federated entities cannot replace the federal government in the exercise of its functions. They are also limited by the boundaries imposed by the (federal) constitution, nor are they sovereign entities at international level. In subsequent decisions, the icc cemented its position, contending that only the state enjoys a sovereign position in relation to regions, since the latter are vested with autonomy but always within the ‘political unity of the Italian state’, which is ‘one and indivisible’ (icc decision 120/​1969). In other words, regional autonomy shall be balanced with the unitary form of the state that is ‘formally and solemnly’ enshrined in article 5 (icc decision 39/​1971, par. 4). For this reason, regional powers shall be ‘harmonically compliant with the unitary interests of the state community’, since regions are not in opposition to the state, but represent different articulations of it (icc decision 39/​1971, par. 5). In 1989 the icc released an interesting decision, in which it canvassed the main traits of the Italian regional state (icc decision 229/​1989, par. 4). In addition to article 5, it identified article 115 as a fundamental provision, since it indicated that regions are autonomous entities having their own powers in accordance to the principles set forth in the constitution, thus distinguishing them from provinces and municipalities, which article 128 qualified as autonomous entities within the boundaries set forth by national laws. The constitutional nature of regions implies that the relationships between the state and the regions shall find its basis in the constitutional text (icc decision 229/​1989, par. 4).4 The icc also pointed out that regional autonomy has political character and is limited to the ‘assessment and pursuit of the specific interests of the region’; only the state can pursue general interests and is, as such, sovereign (icc decision 512/​1988, par. 1). In 1991, the icc defined each region as an autonomous 4 The 2001 constitutional amendment repealed both article 115 (which provided that ‘[r]‌regions are autonomous entities with their own powers and functions according to the principles

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60 Arban entity ‘within a decentralized, cooperative and solidarity-​based system’ with the central state called to protect the unity and indivisibility of the Republic (icc decision 51/​1991, par. 2). In 2013 the icc used the expression ‘regional state’ to define the Italian legal system, characterized by the ‘constitutional and political autonomy of the regions’, which is the foundation of the system of territorial autonomy; however, regional autonomy is always integrated within the principle of unity and indivisibility ingrained in article 5 (icc decision 219/​2013, par. 14.4). The icc acknowledged that the 2001 reform of Title v of the constitution caused regions to broaden their legislative competences; nonetheless, such autonomy does not imply that regions can deviate from the constitution, which embeds values and principles transcending any territorial dimension (icc decision 219/​2013, par. 14.4). Consequently, despite the amendment of Title v and the expansion of regional legislative powers, the exclusive legislative powers assigned to the national government prevail (icc decision 219/​2013, par. 14.4). Finally, in a decision declaring the unconstitutionality of a proposal contained in a regional law of Veneto to hold a consultative referendum for the independence of the region, the icc argued that, although Italian regionalism is premised on the principles of territorial autonomy and social pluralism, the Italian Republic remains ‘one and indivisible’ pursuant to article 5, and the ‘unity and indivisibility’ of the country is one of those features so essential to the constitutional architecture that they are beyond the reach of constitutional amendment (icc decision 118/​2015, par. 7.2). Furthermore, building upon previous decisions, the icc reiterated that pluralism and autonomy neither allow regions to qualify themselves in terms of sovereignty, nor allow regional government bodies to be compared to those at the national level (icc decision 118/​2015, par. 7.2). 4.2.2 Historical Reasons In 2007, the icc rendered what is perhaps the most exhaustive decision on the absence of divided sovereignty in Italy. At issue here was the constitutionality of certain provisions contained in a regional law of Sardinia appointing a board to draft a proposal for a new regional statute. Among other things, this proposal contained references to concepts such as the ‘autonomy and sovereignty’ of the people of Sardinia, which became the subject of constitutional challenge (icc decision 365/​2007, par. 5). set forth in the constitution’) and article 128 (providing that provinces and municipalities ‘are autonomous entities within the principles set forth by the general laws of the Republic, which also determine their powers’). Their main terms were incorporated in article 114.

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The icc indicated that the use of the term sovereignty by the Sardinian board implied the intention to qualify the region in terms radically different from the existing constitutional system and more appropriate in a federal model. At this point, however, the icc made a conceptual mistake: it asserted that federal systems are normally the product of ‘historical processes where the constituent units of the federal system preserve forms and institutions that convey their pre-​existing sovereign condition’ (icc decision 365/​2007, par. 6). As explained above, this conception of federal systems essentially reflects a US-​derived federalist vision and does not encompass all federations. The icc further recalled that, when referring to the scope of regional powers, the constitution always uses the term autonomy (or declinations thereof) and never sovereignty (icc decision 365/​2007, par. 7), this being a legacy of the debates on the form of state that took place within the constituent assembly. While there was a common agreement on the introduction of forms of regional autonomy, members of the constituent assembly ‘were absolutely resolute in excluding ideals that could appear to be even only broadly traceable back to federalist—​or even confederalist-​type modes’ (icc decision 365/​2007, par. 7). Finally, the icc pointed out that the novelties to Italian regionalism introduced in 2001 did not disfigure the original nature of regional autonomy: in other words, the state’s sovereignty was not undermined by either supra-​ national integration or domestic regionalism. Consequently, the concepts of sovereignty and autonomy are so different that they should be construed as ‘oxymorons’ rather than ‘hendiadys’, with regional sovereignty being ‘foreign to the configuration of Italian regionalism as embedded in the constitution and shaped by regional statutes’ (icc decision 365/​2007, par. 7). 4.2.3

Differences between Regional Councils and the National Parliament In several decisions beginning in the early 1960s, the icc insisted on the difference between regional legislative assemblies and the national parliament, to draw the line between sovereignty and autonomy of constituent units. For example, it rejected the argument, made by Sicily, that the regional legislative assembly could be considered as constitutionally equal to the national parliament (icc decision 66/​1964). Among other things, the icc posited that the legislative activity of a region, even when it falls within the ‘exclusive’ set of constitutionally assigned competences, is limited by national legislation, pursuant to the principle of unity and indivisibility of the state; consequently, regional laws are not equal to national laws (icc decision 66/​1964, par. 3). Furthermore, only the legislative powers of the national parliament are complete in scope. Regional assemblies reflect a

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62 Arban constitutionally protected but limited political autonomy, while the national parliament is the expression of a power of general political direction, also exercised through the control over regional legislation pursuant to article 127 (icc decision 66/​1964, par. 3).5 Finally, the constitution guarantees the independence of the national parliament and some prerogatives that are broader than those of regional councils. For example, in article 122 the constitution grants parliament the ability to adopt its own rules, to verify the credentials of its members and the causes of disqualification, and the unaccountability of its members for the opinions expressed and votes cast in performing their duties, whereas it extends only this last protection to regional councillors (icc decision 66/​1964, par. 4).6 In 1970, the icc confirmed that, in a unitary state like Italy, regional assemblies cannot be compared to the national parliament because, even if regions enjoy political autonomy, the Republic is one and indivisible and such autonomy is not sovereignty (icc decision 6/​1970, par. 6). In other words, the tasks assigned to regional assemblies and to the national parliament are not identical: the former are an expression of constitutionally protected autonomy, the latter an expression of sovereignty (icc decision 110/​1970, par. 4). Likewise, the icc posited that the tasks and duties of the national parliament express a power of general political direction that is represented by sovereignty, while regional councils only enjoy autonomy powers (icc decision 171/​1989). Even after the constitutional reform of 2001, the icc did not change its position. For example, in 2002 the national government challenged the constitutionality of a resolution of the regional council of Liguria ordering that the expression ‘regional council’ be coupled with the expression ‘parliament of Liguria’ (icc decision 106/​2002, par. 1). The icc argued that the Italian

5 Article 127 was abolished in 2001. It provided that ‘[e]‌very statute passed by the regional council shall be notified to the Commissioner who … shall approve it within 30 days … When it deems that a statute passed by the regional council exceeds the regional competences or contrasts national interests or the interests of other regions, the national government shall return the said statute to the regional council’. 6 Article 122 was amended in 2001 and now provides that ‘[t]‌he electoral system and the cases of ineligibility and incompatibility of the president, the other members of the regional executive and the regional councillors shall be established by a regional law in accordance with the fundamental principles established by a law of the Republic, which also establishes the term of elective offices. No one may belong at the same time to a regional council or to a regional executive and to either house of parliament, another regional council, or the European parliament … Regional councillors are unaccountable for the opinions expressed and votes cast in the exercise of their functions’.

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constitution employs the term ‘parliament’ only in reference to the national institution (article 55 et seq.), whereas at regional level the term used is ‘regional council’ (article 121) (icc decision 106/​2002, par. 2). The word ‘parliament’ cannot be used for regional institutions because only the parliament is the seat of national political representation by virtue of article 67; consequently, the nomen ‘parliament’ has not only a lexical, but also a more substantive value, as it refers to the exclusive position that the body occupies within the constitutional organization (icc decision 106/​2002, par. 4). Regions are thus banned from appropriating the term ‘parliament’, which evokes the function of national representation (icc decision 106/​2002, par. 4). In 2006 the regional council of Marche decided to match the expression ‘regional council’ with the expression ‘parliament of Marche’ and the expression ‘regional councillor’ with ‘deputy for Marche’ (icc decision 306/​2002, par. 1). Recalling its previous decision regarding the term ‘parliament’, the icc argued that the Italian constitution mandates the use of the term ‘councillor’ and not ‘deputy’ for regional members, the latter being assigned only to members of the national assembly (icc decision 306/​2002, par. 4). The following year, the icc reiterated that no assimilation is possible between the national parliament and regional councils; unlike the functions that belong to the national branches of government, the powers of regional councils can be framed as expressions of ‘constitutionally protected autonomy’ and not of ‘sovereignty’ (icc decision 301/​2007, par. 3.1). 5

Conclusion

The distinction between federal and regional systems remains one of the unresolved dilemmas in federalism studies. Although regional states can be construed as incomplete federations (they display some, but not all, of the typical federal features), it is not easy to draw a line between the two. Regional systems are often the compromise when federalism is contested, as in Italy. However, while centralizing forces are stronger in regional states, there are also federations that work in a centralized fashion, to the point that their federal nature is questioned. And although this distinction might appear irrelevant (after all, federalism in its broadest term encompasses regional and quasi-​federal states), it might be still important to understand why we put one label instead of another to a given system. The goal of this chapter was to contribute to the debate on distinguishing between federal and regional systems by looking at the conceptual and practical understanding of autonomy and sovereignty of constituent units, using

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64 Arban Italy as a case-​study. In fact, while in federal systems the distinction between sovereignty and autonomy seems irrelevant—​the two terms are used as synonyms, and the understanding of sovereignty rests on the Anglo-​Saxon conceptualization of the principle—​at regional level it becomes pivotal: it is the very point on which the state is labelled regional and not federal. However, sovereignty is far from being an accepted concept, and while it generally implies ‘the undefeatable ability or right to have the last word, politically or legally’ (Oliver 2003, p.  142), its meaning becomes less clear when juxtaposed with autonomy in decentralized systems. This may be relevant for at least two reasons. First, federalism has significantly evolved since the implementation of the 1787 US constitution, as new forms of quasi-​federal models have emerged, regional systems being exemplary. Second, illuminating the differences between the two, as well as examining the sovereignty and autonomy of constituent units, may have a broader comparative significance, especially for those countries now considering federalism reforms. The case law of the icc has been useful in showcasing three main arguments: the sacrosanct principle of unity and indivisibility of the state sanctioned by article 5; the different role and functions of regional legislative assemblies and the national parliament; and historical reasons. The conclusions reached by the icc seem to be rooted in the understanding of ‘undivided’ sovereignty that has deeply imbued European constitutionalism since Bodin and Hobbes. Two observations can be made at this point. First, the icc has strongly insisted that regions enjoy ‘constitutionally protected autonomy’ instead of sovereignty but has not offered a clear explanation of the distinction. Second, and most importantly, the case law of the icc has changed little since the significant constitutional amendments of 2001. This can be explained by the deep discrepancy between the constitutional text and the real functioning of Italian regionalism; in fact, the 2001 reforms have not been fully implemented. Consequently, Italy still functions and is understood as a unitary state. In conclusion, I point out that even the original and sovereign powers of federated entities are not unlimited or absolute. In fact, their sovereignty is only internal, since the federal government remains the only one acting at international level. Their purpose is to protect local interests, but it is the federal government that acts in the general interest of the country. Likewise, they are also bound domestically by constitutional law and in case of conflict between a federal and a regional law, federal law usually prevails. So, their sovereign powers are not absolute, but subject to limitations—​as in regional systems.

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References

Althusius, Johannes [1614] (1995). Politica:  An Abridged Translation of Politics Methodically Set Forth and Illustrated with Sacred and Profane Examples, 2nd edn, ed. and trans. Frederick S. Carney. Indianapolis: Liberty Fund. Beaud, Olivier (2012). Conceptions of the state, in Michel Rosenfeld and András Sajó (eds), The Oxford Handbook of Comparative Constitutional Law. Oxford:  Oxford University Press. Bin, Roberto and Giandomenico Falcon (2012). Federalismo, confederazione, federazione, stato regionale, autonomia, decentramento, in Roberto Bin and Giandomenico Falcon (eds), Diritto Regionale. Bologna: Il Mulino. Bin, Roberto and Giandomenico Falcon (2012). Principi e tecniche dell’interpretazione della costituzione, in Roberto Bin and Giandomenico Falcon (eds), Diritto Regionale. Bologna: Il Mulino. Black, Henry C. (1990). Black’s Law Dictionary, 6th edn. St Paul: West Publishing. Burgess, Michael (2000). Federalism and European Union. London: Routledge. Cyr, Hugo (2014). Autonomy, subsidiarity, solidarity: foundations of cooperative federalism. Constitutional Forum constitutionnel 23: 20–​40. Elazar, Daniel (1994). Federalism and a Way to Peace. Kingston:  Queen’s University, Institute of Intergovernmental Relations. Hueglin, Thomas O. (1979). Johannes Althusius: medieval constitutionalist or modern federalist? Publius: The Journal of Federalism 9: 9–​42. Loughlin, John (2013). Reconfiguring the nation-​state:  hybridity vs uniformity, in John Loughlin, John Kincaid and Wilfried Swenden (eds), Routledge Handbook of Regionalism and Federalism. London and New York: Routledge. Mangiameli, Stelio (ed.) (2014). Italian Regionalism:  Between Unitary Traditions and Federal Processes. Cham: Springer. Oliver, Peter (2003). Sovereignty in the twenty-​first century. King’s College Law Journal 14: 137–​178. Palermo, Francesco and Karl Kössler (2017). Comparative Federalism:  Constitutional Arrangements and Case Law. Oxford: Hart Publishing. Ruggiu, Ilenia (2012). Gli altri Stati federali “storici”, in Roberto Bin and Giandomenico Falcon (eds), Diritto Regionale. Bologna: Il Mulino. Schütze, Robert (2009). From Dual to Cooperative Federalism: The Changing Structure of European Law. Oxford: Oxford University Press. Troper, Michel (2012). Sovereignty, in Michel Rosenfeld and András Sajó (eds), The Oxford Handbook of Comparative Constitutional Law. Oxford: Oxford University Press. Watts, Ronald (2013). Typologies of federalism, in John Loughlin, John Kincaid and Wilfried Swenden (eds), Routledge Handbook of Regionalism and Federalism. London and New York: Routledge. Wheare, Kenneth C. (1963). Federal Government, 4th edn. Oxford: Oxford University Press. Tracy B. Fenwick and Andrew C. Banfield - 978-90-04-44675-5

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pa rt 2 Balancing Autonomy from within: Institutions and Actors

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­c hapter 5

(Still) in Search of the Federal Spirit

Autonomy and Self-​Determination in Multinational Federations Félix Mathieu and Alain-​G. Gagnon 1

Introduction

Understanding federalism and federation was for Michael Burgess his ‘magnificent obsession’ (Burgess 2015), and students and scholars of federalism will continue to benefit greatly from his enlightening contribution to this field of study. In this chapter we intend, from a critical point of view, to better account for the evolution of the Quebec–​Canada relationship through the analytical prism of the ‘federal spirit’ (Burgess 2012). We aim at furthering Michael Burgess’s reasoning on the necessary conditions for the federal spirit to thrive and prosper, in particular in the context of multinational federations. In so doing, we focus on the Quebec–​Canada dynamics which characterized much of the 1970s, the first part of the 1980s and the second half of the 1990s, periods during which a major tug of war took place between centralizing and decentralizing forces—​or, to formulate it differently, between two competing societal projects. We also consider the cavalier manner in which the Quebec government’s recent Policy on Québec’s Affirmation and Canadian Relations (June 2017) has been received (and ipso facto rejected) by the central government. In the context of contemporary Canadian politics, both Quebec and Ottawa were determined to win without conceding much to each other, thus contributing to heightened tensions and further polarizing public opinion. The middle-​ ground position found some advocates (for example, Lenihan, Robertson and Tassé 1994; Burelle 2005), but they gained little traction as the main rival camps attempted to settle their score once and for all. Stakes got higher, and so did the consequences of a defeat for either side. As we shall see, this is symptomatic of a significant lack of a federal spirit. Our main objective is to critically appraise how autonomy and self-​ determination have been promoted and contained with respect to Quebec–​ Canada dynamics, reflecting on how this specific case may inform our theoretical and practical understanding of the federal spirit. In doing so, it is our hope to cast additional light on Michael Burgess’s contribution to the study

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of federalism and federation. We begin by referring to some of Burgess’s work, in order to define what is meant by the notion of federal spirit. This brief conceptual clarification leads us to outline an analytical framework for the assessment of Quebec–​Canada political relations. Second, we discuss the evolution of Quebec–​Canada dynamics from the 1970s to the present. Third, we assess the degree to which political actors imbued their actions with the federal spirit, enabling us to formulate some recommendations for the necessary conditions to put in place so that the federal spirit can thrive in the context of multinational federal democracies. 2

The Federal Spirit

In In Search of the Federal Spirit (2012), Michael Burgess’s ‘initial purpose is to investigate what is meant in the mainstream literature on federalism by the nebulous phrase “the federal spirit”—​as ambiguous as it is seductive’ (p.  3). Although this is not the first time the former head of the Centre for Federal Studies at Kent University had reflected on the matter, his 2012 monograph provides an in-​depth discussion of its meaning and content. Burgess (2012, p. 3) summarizes the notion in the following terms: ‘a political predisposition to negotiate and bargain among equals—​suggesting above all a willingness to compromise—​over fundamental questions concerning constitution-​making in the process of state formation or reformation’. This is, of course, a rather theoretical and normative conception that one must not confound with empirical reality. All federations somehow fail to live up to the promised virtues of federalism. Nonetheless, if one is committed to democracy and the principles it rests on—​and because of ‘the interrelationship between federalism and democracy’ (Burgess and Gagnon 2010, p. 10)—​it is then of a matter elementary logic to demand that the working dynamics within federations come as close as possible to the federal spirit. Following Ramon Maiz, we also argue that ‘when considering national problems from the perspective of encouraging democracy … it makes little sense to separate the analysis of what is … from the analysis of what should be and its philosophical-​political and moral fundamentals’ (Maiz 2000, p. 36). The federal spirit is not something that partners in a political association can simply put into motion as the federation emerges and dismiss it from their thoughts thereafter; partners need to understand the federal spirit as a ‘daily plebiscite’, to borrow Ernest Renan’s potent expression. Put differently, if ‘the federal spirit … is to be kept alive it must be persistently pursued’ (Burgess 2000, p. 32). What, then, is the federal spirit?

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Foremost, by spirit, one may understand ‘a synonym for the word “idea” or “notion”, something that conveys a sense of affinity for a thing of value in and of itself’ (Burgess 2012, p.  7). Hence the federal spirit appeals to a firm commitment to a specific assemblage of values or principles, that of federalism. According to Burgess, such values are of two distinct but interrelated kinds:  those that relate to ‘federal loyalty’ and those that relate to ‘federal comity’. As he put it, The first of these ideas, federal loyalty [Loyauté fédérale, or Bundestreue], [refers] to the fundamental commitment of the constituent units and their representatives to the overall needs of the larger federal system, while the second concept, federal comity, [requires] of both federal and local officials a sense of ‘fair play’—​the presumption of a willingness to ‘give the other side a “break”, to be ready for compromise’ wherever serious strains developed, to be, in other words, ‘pragmatic in the approach to problems’ on which the federal and local authorities were divided or on which ‘their intrinsic interests clashed’. burgess 2012, p. 14

In a nutshell, then, the federal spirit consists in a ‘predisposition to “think federally”, that is, to avoid centralist, hierarchical solutions to problems and instead to adopt power sharing, non-​centralist, participatory approaches in a compound polity based upon consent’ (Burgess 2012, p. 15). Now that we have a better understanding of the philosophical grounds and moral underpinnings of the federal spirit, what criteria shall one derive from it to critically appraise the evolution of the relationship between different partners in a (multinational) federation? Again, let us probe Burgess’s thoughts. He identified four core dimensions from which the federal spirit should transcend political dynamics in a federal state (2012, pp. 20–​1): 1. Self-​restraint, that is, ‘the duty and obligation of both the federal and constituent unit governments to take account of each other’s interests when exercising their respective constitutional powers’; 2. Damage limitation, which refers to ‘the duty and obligation of each [order] of government to exercise its powers in such a manner that will avoid harm to other parts of the federation and to the federation as a whole’; 3. Moral imperatives, meaning that ‘there is both a moral and a political obligation for each [order] of government to observe the unwritten constitutional norms that together comprise the substantive meaning of the written constitution’; and

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4. Political empathy, ‘the predisposition of each [order] of government to conduct both vertical and horizontal relations in a spirit of partnership that incorporates friendship, understanding, mutual trust, respect, and good faith’. The third dimension, ‘moral imperatives’, obviously needs to be adapted to the proper language of any case-​study, while the others are more universal in focus. As we shall see below, the Supreme Court of Canada (scc), in its now-​famous Reference re. Secession of Quebec (1998), precisely determined and defined four underlying yet unwritten constitutional principles that ought to ‘assist in the interpretation of the text and the delineation of the spheres of jurisdiction, the scope of rights and obligations, and the role of our political institution’ (par. 52). These principles are: 1) federalism, 2) democracy, 3) constitutionalism and the rule of law, and 4) protection of minorities (para. 49). These principles are said to be of equal value and none of them can trump the others. To avoid any conceptual ambiguity, the scc states that the principle of federalism recognizes the diversity of the component part of Confederation, and the autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction. The federal structure of our country also facilitates democratic participation by distributing power to the government thought to be most suited to achieving the particular societal objective having regard to this diversity. (par. 58) … The principle of federalism facilitates the pursuit of collective goals by cultural and linguistic minorities which form the majority within a particular province. (par. 59) The democratic principle refers to ‘the supremacy of the sovereign will of a people’ (par. 61), but the Court insists that the relationship between democracy and federalism means … that in Canada there may be different and equally legitimate majorities in different provinces and territories and at the federal level. No one majority is more or less ‘legitimate’ than the others as an expression of democratic opinion. (par. 66) … The consent of the governed is a value that is basic to our understanding of a free and democratic society. (par. 67) The ‘constitutionalism principle bears considerable similarity to the rule of law, although they are not identical’ (par. 70). Put simply, ‘the constitutionalism

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principle requires that all government action comply with the Constitution. The rule of law requires that all government action must comply with the law, including the Constitution’ (par. 70). Finally, ‘the fourth underlying constitutional principle … concerns the protection of minorities’, referring to ‘specific constitutional provisions protecting minority language, religion and educational rights’ (par. 70). In the following section we discuss the evolution of Quebec–​Canada dynamics over the past 50 years, seeking to understand how these two partners have managed (or not) to overcome their political differences. In so doing, we are concerned more with providing a fair interpretation than with the need to offer an exhaustive account of the most significant events. 3

Negotiating Autonomy and Self-​Determination

The ‘federal deficit’ at play at the beginning of the modern Canadian federal odyssey, in 1864–​7, has been thoroughly analysed since K. C. Wheare notoriously qualified Canada as ‘quasi-​federal in law’ back in 1946. Our purpose here is not to add to these well-​documented remarks on the foundational moment of the Canadian federation.1 Rather, let us fast-​forward a hundred years and see how the political dynamics between the Quebec government and the central government in Ottawa have evolved. The 1980 Sovereignty-​Association Referendum and the 1982 Patriation During the audiences of the Royal Commission on Bilingualism and Biculturalism (the so-​called B & B Commission, 1963–​71), it is fair to say that English Canada was more inclined than ever to formally recognize Quebec as a distinct society or as a national community within the Canadian polity (McRoberts 1997). Probably in part because of the sudden death in 1967 of André Laurendeau, the co-​commissioner of the Commission, but mostly because of the subsequent actions of the prime minister, Pierre E.  Trudeau (1968–​ 79 and 1980–​ 4), this predisposition towards formally recognizing Quebec was replaced by a strong bilingual, multicultural and mononational conception of the country (Laforest 1995). This was the context in the 1960s and 1970s when a series of constitutional initiatives took place, emanating from both the member states of the federation 3.1

1 For a detailed account of that period, consult Brouillet, Gagnon and Laforest 2019.

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and the central state. Quebec—​the only province in the country where French-​ speakers outnumber English-​speakers—​found itself isolated most of the time and sought to drive political events rather than simply being subjected to decisions made outside its domain of immediate political influence (Bourgault 2004, p. 342). Meanwhile, to take the pulse of its population, the Quebec state embarked on a program of self-​examination, establishing several commissions to study its political, cultural, economic, institutional and social needs. The election of the Parti québécois with a majority mandate in 1976 set in motion a new political process that could not be stopped until a referendum on sovereignty-​association had been held. While the pq government was developing its own constitutional platform to be proposed, in the event of winning the referendum, to the rest of Canada, the central government did not remain idle. However, as democrats and respectful of constitutionalism, other member states of the federation came to the conclusion that they could not stop the holding of a referendum by the Quebec National Assembly. Instead, they used all instruments in their power to influence the final result and to derail the Quebec initiative on negotiating a new partnership with the Rest of Canada (roc) (see Gagnon and Iacovino 2007; Gagnon 2008). For example, Ottawa joined the ‘no’ forces during the referendum campaign, developing arguments to convince Quebeckers that they would lose economically, socially and politically were Quebec to secede from the Canadian federation. Among the arguments used to mobilize the no vote were: economic uncertainty, political disruption, debts to be reimbursed, closure of economic markets in the rest of Canada, loss in procurement policies, shrinking of personnel working in the civil service, family divisions, outward migration, and the like. At the very end of the process, a couple of days before the first referendum, in a last-​ditch attempt to convince Quebeckers to continue their partnership with the roc, Pierre Trudeau, the leader of Ottawa’s governing party, formally declared that all his Liberal mp s had agreed to put their seats on the line to make appropriate constitutional changes that would satisfy Quebeckers, and that his party, which had defended the place of French-​speakers in the country, could be trusted to do so. This last political and dramatic move helped shore up federalist support in Quebec. On 20 May 1980, 85 per cent of eligible voters participated in the referendum. When the votes were counted, 60 per cent of voters chose to turn down the Quebec government proposal to embark on a sovereignty-​association project and instead gave their support to what they believed they had been presented with: that is, a genuine renewed federalism. However, immediately after this defeat for Quebec nationalism, and contrary to what was perceived as a guarantee for change, Ottawa frantically pursued a

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series of constitutional reforms that would further reduce the role and influence of Quebec within the Canadian federation (Gagnon and Lachapelle 1996). The first element of the puzzle was to proceed to the patriation of the constitution from the United Kingdom. A complex amending formula was also entrenched in the Constitution Act of 1982, removing the historical (and conventional) veto right that Quebec had heretofore been able to exercise. The central government’s plan was that, from now on, provinces would have identical powers and influence on the constitutional process. This transition was welcomed by all nine anglophone provinces, and multilateralism became a key word in constitutional politics. In addition, one of the leitmotivs of the reform was to make provinces equal politically whatever their population size and political responsibilities. This is well encapsulated by the expression:  ‘a province is a province, is a province’. Any deviation from this conception of the polity was considered as ‘a threat to Canada’s political stability’ (Gagnon and Lachapelle 1996, p. 180). With Honour and Enthusiasm: Meech Lake and Charlottetown Accords These constitutional changes led to a sharp drop in support for the Liberal Party of Canada in Quebec. As a result, Brian Mulroney’s Conservatives, who had declared themselves in favour of a ‘new deal’ for Quebec made some significant gains in the province. The Progressive Conservatives Party (pcp) won a clear majority of seats in Quebec at the federal elections of 1984, and again in 1988, but failed to deliver on their pledge to bring back Quebec into the federal fold with ‘honor and enthusiasm’. The pcp also failed to revamp the federation in a manner that would have restored a central role in the country to Quebec. Nonetheless, the pcp made serious efforts to rejuvenate the Quebec–​Canada relationship. The first attempt resulted in the Meech Lake Accord (1987–​90). Translating into actions a key promise of the 1984 federal election, Mulroney was minded to take seriously the main conditions set up by Quebec officials if ‘La Belle Province’ were to adhere to the 1982 Constitution Act. On 1 May 1987, he declared: 3.2

I am honored to inform the House that … the Premiers and I  reached unanimous agreement in principle on a Constitutional package which will allow Quebec to rejoin the Canadian constitutional family. This agreement enhances the Confederation bargain and strengthens, I believe the federal nature of Canada. … The Meech Lake Agreement springs from the Canadian tradition of honorable compromise, and is a tribute to the statesmanship and leadership of all First Ministers. mulroney 1987, emphasis added

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The Accord took into consideration five conditions reflecting Quebec’s demands: 1. The distinct society clause:  ‘Recognition in an interpretive provision and recognition of the role of the Québec legislature and government in promoting and protecting the distinct society’; 2. The federal spending power clause: ‘Provisions governing the establishment of new jointly funded programs in exclusively provincial sectors and granting the right to opt out with fair compensation if there is a measure or program compatible with the national objectives’; 3. The Supreme Court clause: ‘Clarification of the Court’s constitutional status, guarantee of Québec representation, establishment of a role for Québec in the selection of Québec judges and a role for the other provinces in the selection of the Court’s other judges’; 4. The amending formula clause:  ‘Expanded application of the rule of unanimous consent (veto), primarily for reforms of federal institutions currently covered by the “7/​50” procedure; expanded scope of the right to fair compensation if opting out in all cases of the transfer of jurisdiction to the Federal Parliament’; 5. The immigration clause:  ‘Obligation, within the policy agreement accompanying the Meech Lake Accord, to sign a Canada–​Québec agreement on the subject and constitutional mechanism for negotiating and protecting agreements between the federal and the provinces in this area of related to the temporary admission of aliens’. quebec 2017, p. 35

Even though the Accord was ratified by the House of Commons in Ottawa and eight provincial assemblies (including Quebec), hence representing roughly 94 per cent of the Canadian population, it failed because it needed to be approved unanimously within three years. In response to its failure, the then Quebec premier, Robert Bourassa, asserted that ‘No matter what anyone says and no matter what anyone does, Quebec is, today and forever, a distinct society, free and capable of assuming its destiny and development’.2 Two years later, a new round of constitutional debate culminated with the Charlottetown Accord. This time, even though Quebec originated discussions, the Accord mainly focused on a reform of the Senate, the Upper Chamber in Ottawa, and on Aboriginal issues. It was rejected by referendum on 26 October by 57 per cent of the population of Quebec and 54 per cent of Canada as a whole. 2 Robert Bourassa, speech to Quebec National Assembly, 22 June 1990.

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3.3 The 1995 Sovereignty-​Partnership Referendum and the Clarity Act Following the Meech Lake debacle of 1990 and the Charlottetown failure of 1992, Quebec nationalist forces for a time enjoyed the upper hand in the unfolding constitutional debates (Gagné and Langlois 2002). Federal Liberals under the leadership of Jean Chrétien (1993–​2003) were determined to prevent or oppose any autonomist or nationalist demands coming from Quebec. Prime Minister Chrétien rejected all Quebec’s demands, motivated as he was by his own nationalist ambitions. He attempted to impose Ottawa’s centralist and monist agenda with a renewed vigour. The Liberal victory in Ottawa contributed to mobilizing the Quebec electorate. After nearly 10 years in opposition, the Parti québécois regained power under the leadership of Jacques Parizeau. The elections of Chrétien and Parizeau caused further polarization on the constitutional front. On the one side, Ottawa wanted to impose the constitutional order of 1982 on Quebec which remained the only recalcitrant member state in the federation. On the other side, Quebec sought corrective measures to the constitutional arrangements that had been reached without its consent in 1982, short of which it was considering leaving the federation. Another major tug of war developed as each side attempted to advance its political agenda and adopted sharply contrasting positions. Ottawa wanted to firm up the role of the central government as the only legitimate expression of the demos, while Quebec was advancing a position that made clear that Canada had originally been formed by distinct demoi that remain free to choose their political future. Hence the political confrontation between Quebec and Ottawa saw the yes and the no sides advancing their competing visions of Canada as either a mononational or a binational democracy—​and, at times, as a multinational polity. In other words, the very nature of the debate concerned autonomy and self-​determination; Quebec and Ottawa simply did not agree as to whose autonomy and self-​determination were being debated. On 30 October 1995, with an unprecedented turnout of 94 per cent, Quebeckers were almost evenly split between pro-​Canada and pro-​Quebec forces. In fact, a mere 1 per cent (roughly 52,000 votes) separated the winners from the losers. Following the defeat of the referendum, Quebec had lost its momentum and Ottawa was able to regain the political initiative and impose its leadership on a demoralized Quebec’s social and political elites. Canada was granted another chance to advance a political program that would take seriously Quebec’s demands as a distinct society. However, as in 1980, when Quebeckers turned down the Quebec government’s proposal for an equal Quebec–​Canada renegotiated political arrangement, the central government—​with Ottawa acting on behalf of Canada

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outside of Quebec—​embarked once again on a path to contain rather than satisfy Quebec’s political claims (Gagnon 2014, pp. 59–​61, 64–​5). Ottawa moved quickly to impose its containment strategy known as Plan B (see Gibson 1994). Rather than attempting to assuage political tensions and to imagine scenarios to escape the political impasse, as suggested by most public intellectuals, political actors in Ottawa responded to Quebec’s claims by implementing an aggressive nation-​building agenda (see Gagnon and Iacovino 2007, chs 5 and 6). With the Liberals in Ottawa under the leadership of Trudeau and, later, Chrétien (1993–​2003), the central government generally pursued a strategy of containment, exemplified by the unilateral patriation of the Canadian constitution from the UK in 1981–​2; the imposition of a constitutional amending formula in 1982 that refused to recognize Quebec’s historic veto right; the repeated use by central government of its spending power in areas of exclusive provincial jurisdictions; the adoption in 1999 of a social union framework without the consent of Quebec; and, among various other actions, the use of public funds to advance Canadian unity and identity, as well as to promote the central government’s initiatives in Quebec (Gagnon and Iacovino 2005). Meanwhile, the Liberals consulted the scc as to whether, based on Canadian jurisprudence, Quebec, or any other member state of the federation, has the right to secede from the country. The Court delivered its response on 20 August 1998. As expected, and in summary, the scc declared that Quebec could not simply break up from Canada. It also stipulated that, were Quebec to seek to obtain its independence from Canada, the Canadian government would have the obligation to negotiate the terms of secession in good faith, as long as two conditions were met. First, Quebeckers would need to decide on a clear question of secession. Second, to be considered, a referendum question needed to obtain a clear majority. It remains uncertain, however, what the scc understood to be a clear majority; for most Quebeckers, it means 50 per cent plus 1 vote, while for other partners in the federation it usually refers to a qualified majority, meaning a result significantly higher than that. So, what mattered was not so much the right of Quebec to secede as the percentage to be obtained in order to be in a position to proceed. This juridical interpretation of Canada’s highest tribunal simply confirmed that the Quebec government was free to consult its population in 1980 and 1995 with respect to its political future. In other words, the right of secession was accepted as legitimate by the scc. This decision contributed to easing tensions between Quebec and Ottawa and restored some legitimacy to the scc, the credibility of which had been severely diminished in Quebec in 1980 when it agreed that Ottawa could proceed to patriate the constitution because it had secured substantial support from the member states of the federation (McRoberts 1997), implying

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that the central government could henceforward no longer be blocked by Quebec in constitutional matters. Both sides were quick to declare victory in the reference case of 1998 regarding Quebec’s right to secede. Ottawa focused on one aspect:  the idea that a unilateral declaration of independence (udi) would be illegal under both Canadian and international law. Meanwhile, the Quebec government was delighted that the scc would be willing to recognize, under certain conditions, Quebec’s right of external self-​determination. At any rate, the scc provided important insight into how an equitable process of national self-​determination could be undertaken by the Quebec government and warned Quebec’s partners of the obligation to engage in an authentic Canadian conversation. It stated: The continued existence and operation of the Canadian constitutional order cannot remain indifferent to the clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada. … Negotiations would be necessary to address the interests of the federal government, of Quebec and the other provinces, and other participants, as well as the rights of all Canadians both within and outside Quebec. (par. 92) The reference case points to the possibility of other ways of responding to claims made beyond the containment/​contentment dyad. However, rather than taking seriously the scc’s advice, the central government wanted to settle its score anew with Quebec and embarked on a risky road by adopting what was termed the Clarity Act (C-​20) that sought to fix the rules of the game were Quebec (or any other member state for that matter) to decide to go ahead with a new referendum. The Act was passed by the House of Commons on 15 March 2000 and adopted by the Senate on 29 June the same year. In a nutshell, the Clarity Act advanced six key points: 1. The House of Commons would have the power to determine if a referendum question is clear before people could vote; 2. Only a question concerning secession would be considered clear; 3. Ottawa will wait until the votes are counted before stating what is a clear result (suggesting that 50 per cent + 1 was unacceptable and that a substantial majority would be necessary); 4. As well as the central government, member states of the federation and Aboriginal nations would be part of the negotiation process; 5. Ottawa could override a vote in favour of secession if it considers that aspects of the Clarity Act have been violated; and

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6. An amendment to the constitution would be required to allow the secession of a province. This gesture on the part of central government led the Quebec National Assembly to pass its own Act Respecting the Exercise of the Fundamental Rights and Prerogatives of the Quebec People and the Quebec State the same year. Political tensions increased significantly, as Quebec was determined to stop any other government that might endeavour to limit its political authority. In line with the scc’s acknowledgement of the right of Quebec to secede, Article 13 of the Act stipulated that ‘[n]‌o other parliament or government may reduce the powers, authority, sovereignty or legitimacy of the National Assembly, or impose constraints on the democratic will of the Quebec people to determine its own future’. The passing of this Act put a stop, at least for a while, to the constitutional saga, as each side felt it had made clear to the other exactly where it stood on the matter of Quebec’s right to secede. 3.4. Open Federalism and Trudeau 2.0 Since the election of Jean Charest (a former leader of the pcp in Ottawa) as Quebec premier in 2003 and the victory of the Conservatives at the 2006 federal election with a mandate to explore a new approach depicted as ‘open federalism’, the Quebec national question seems to have been on the backburner (see Langlois 2018). ‘Open federalism’ succeeded in conveying the idea that previous Liberal governments in Ottawa had acted in bad faith with respect to the management of claims from Quebec, and that a new model of governance, less confrontational, ought to be put in place. Building on this new philosophy, first enunciated in December 2005, federal Conservatives succeeded in gaining some important electoral support in Quebec. Open federalism proposed a sharp break with the confrontational approach adopted by federal Liberals (Caron and Laforest 2009) and developed a four-​pronged strategy intended to: 1. Put an end to a severe fiscal imbalance between governments’ revenues and fields of jurisdiction and augment provincial accountability; 2. Respect exclusive provincial jurisdictions; 3. Limit Ottawa’s spending power in areas of exclusive provincial jurisdictions; and finally, 4. Recognize a role for Quebec within international forums starting with a Quebec presence within the Canadian delegation at unesco. Open federalism brought some electoral gains for the pcp in Quebec (10/​75 seats: 24.6 per cent) in the 2006 general election, but the Conservatives failed to make further inroads subsequently. Voters felt the party had too quickly put the open federalism philosophy on hold, causing it some political setbacks in

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the province in the general elections of 2008 (10/​75 seats: 21.7 per cent), 2011 (5/​75 seats: 16.5 per cent) and 2015 (12/​75: 16.7 per cent). The Liberal Party of Canada (lpc), which had attracted a lot of political support in Quebec, at least until the 1982 unilateral patriation of the constitution, after regaining some support following the disappointments of Meech Lake and Charlottetown under the Conservatives, seemed to lose momentum in the province, especially among francophones. In 2006, the lpc elected 13 mp s, with 20.7 per cent of the vote; in 2008, 14 (23.7 per cent), but in 2011 their total of mp s dropped to 7 (14.2 per cent). However, in 2015, they secured 40 seats in Quebec (35.7 per cent). From 1993, Quebeckers turned their backs on the two main federalist contenders and instead supported the Bloc québécois (bq) in 1993 (54 seats), 1997 (44 seats), 2000 (38 seats), 2004 (54 seats), 2006 (51 seats) and 2008 (49 seats). At the 2011 general election, in a striking political shift, Quebec voters voted en masse for arguably the most left-​leaning party represented in the House of Commons, the New Democratic Party (ndp), which succeeded in electing 59 candidates, while the bq won only 4 seats. At the 2015 general elections, the bq secured 10 seats, and the ndp 44. It is too soon to know the exact repercussions of these party shifts. It seems fair to say, though, that, with a view to keeping at bay nationalist, autonomist and independentist Quebeckers, the series of Conservative governments in Ottawa (2006–​15) did the best it could, for some time, not to alienate Quebec voters. Failing to gain any political ground, however, it changed its strategy by appealing to other regions and communities situated outside of Quebec. At all events, since 2015 the Liberal government has notoriously failed to take seriously the long-​standing demands from Quebec. While Prime Minister Justin Trudeau pursues his own father’s political vision, celebrating Canada as the first authentic ‘post-​national state’ in the modern world, he has also expressed—​at least in his discourse if not in his actions—​a clear desire to acknowledge the crucial need to treat Canada’s Indigenous peoples more fairly. However, this unprecedented concern with a proper recognition of Indigenous peoples in the federation has gone in tandem with a clear lack of consideration for Quebec’s new approach favouring a renewed Canadian federalism. On 1 June 2017, the Quebec government released its Policy for Québec Affirmation and Canadian Relations, proposing a plurinational and an asymmetrical conception of federalism. In short, a vision of federalism that makes it possible for it to affirm its national identity while participating in Canada. This vision is supported by history, and also by contemporary political thought, which sees federalism

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as the best way to manage the cohabitation of various national communities within a single state. … In Québec’s view, the affirmation of its national character and its acceptance by Canada are closely related to the basic ideal of federalism. A process to ensure the recognition of national identities appears to be the natural end result of the Canadian project, aiming, on the one hand, to recognize the collective identity of the Québec nation, but also, on the other hand, to give the French language its rightful place in Canada. quebec 2017, pp. 93–​4

On the very day the new policy was released, Justin Trudeau, without even taking the time to appraise the document, declared to journalists that ‘we are not opening the Constitution’ (McGregor 2017). Put differently, from his perspective, there was absolutely no need to discuss the merits of the policy. Once again, the governing Liberal Party of Canada embraced the politics of containing the aspirations of Quebec, rather than appealing to a politics of contentment, demonstrating its lack of the federal spirit. 4

(Still) in Search of the Federal Spirit

To what degree, then, are the recent actions of the Quebec government and the central state in conformity with the federal spirit? First, have they respected the principle of ‘self-​restraint’? In other words, have they taken into account each other’s interests when exercising their own constitutional powers? Second, what about damage limitation? Have they exercised their powers in such a manner as to avoid harm to other parts of the federation and to the federation as a whole? Third, have they respected moral imperatives? Have they acted in accordance with the underlying unwritten constitutional norms that together comprise the substantive meaning of the written constitution? Finally, did they embrace the principle of political empathy and were their actions led by a spirit of partnership that incorporates friendship, understanding, mutual trust, respect and good faith? Let us begin by appraising the Quebec government’s actions. Even though the right to secede might be comprised within the realm of federalism in the context of multinational democracies (Gagnon 2014, p. 6), it is only fair to say that the Quebec government did not have the interests of Ottawa, nor of the Canadian federation as a whole, in mind when it organized its referendums in 1980 and 1995. Quebec was in pursuit of full sovereignty; it was not seeking to emulate the federal spirit. In fact, because of this political dynamic in which

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Quebec and Ottawa were both sustaining competing societal projects, implementing public policies to consolidate their spheres of autonomy and public legitimacy, the Quebec government was no longer exercising self-​restraint towards its Canadian partners. While Quebec was undoubtedly fighting for a kind of social justice in the Canadian federation, it neglected to measure the consequences of its actions on the good functioning of the political association as a whole. Nevertheless, examining the 2017 Policy for Québec Affirmation and Canadian Relations, it is fair to say that it aims at better articulating its quest for autonomy and self-​determination while expressing self-​restraint. In fact, this policy might be one example of how the federal spirit can and should be integrated with the discourse among partners in a multinational federal democracy (see Burgess and Gagnon 2010). By explicitly stating Quebec’s demands, considering the issues that deeply concern the other minority partners in the federation—​in particular the Indigenous peoples and the French-​speaking minorities outside of Quebec—​and the need for Canadian federalism to be fair to every partner—​including, of course, the anglophone majority—​the Policy not only lived up to the principle of self-​restraint, but was undoubtedly inspired by those of damage limitation and political empathy. It is consistent, too, with the underlying constitutional principles of federalism, democracy, constitutionalism and the rule of law, and the protection of minorities (see Mathieu and Guénette 2019). The 1980, 1992 and 1995 referendums followed rigorous democratic rules, and the way they were institutionalized provided some damage-​limitation mechanisms. For that matter, they worked out in accordance with the underlying constitutional principles the scc had identified in the Reference Case re. Quebec Secession. And, with regard to the protection of minorities, the pq government had several times made clear at that were Quebec to gain independence, its anglophone minority would enjoy the same set of rights and protections as in the Canadian federation. Moreover, there is no reason to believe that a newly independent Quebec would have acted against its own charter of human rights and freedoms, adopted in 1975. That said, Jacques Parizeau’s unfortunate comments on the eve of the lost 1995 referendum—​in which he attacked big capital and ethnic minorities, and then spoke of ‘we’ the Quebec people plainly conceived of as the heirs to yesteryear’s French Canadian, continue to haunt the pq for years. Nonetheless, René Lévesque and subsequent leaders accustomed Quebeckers to a more balanced vision of the Canadian federation: after all, as Lévesque put it, Canada cannot be described as a gulag for Quebec. A spirit of partnership that incorporates friendship, understanding, mutual trust, respect

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and good faith might not have been present all the time, but it was part of the narrative. Ultimately, assessing the Quebec government’s recent proposal for a renewed Canadian federalism, one would have to conclude that serious efforts were made to respect the core principles sustaining a federal spirit. In line with its long-​standing politics of containment towards Quebec’s historical demands, however, the central government refused to endorse or even give any credit to this vision. Without any doubt, Brian Mulroney’s desire to meet Quebec’s conditions for it to rally the 1982 constitutional reform—​mostly through the Meech Lake Accord—​was driven by a sincere commitment to the federal spirit. To a certain degree, Stephen Harper’s ‘open federalism’ was committed to a similar vision, although its initial promise was not translated into lasting actions. The central state’s actions over the past 50 years generally lacked appreciation of the federal spirit. Clearly, it did not respect the principle of self-​restraint with its patriation of the constitution in 1981–​2. Not only did the patriation reduce the powers of Quebec’s National Assembly, but it did so without its consent. This was a clear violation of the principle of political empathy, and harmed Quebec’s desire to be recognized as a distinct society and national community within the Canadian federation. It also violated the underlying constitutional principle of ‘democracy’, since Quebec never consented to changing the fundamental law of the country. Moreover, the scc, in defining the principle of democracy, indicated that ‘in Canada there may be different and equally legitimate majorities in different provinces and territories and at the federal level. No one majority is more or less “legitimate” than the others as an expression of democratic opinion’ (Supreme Court of Canada 1998, par. 66). This conception of the democratic principle was clearly missing at the time of the patriation. Above all, the patriation took place after Pierre E. Trudeau’s declaration, at the time of the 1980 referendum, that he and his party would make appropriate constitutional changes that would satisfy Quebeckers, and that they could be trusted to do so. This line of action, in sharp contradiction to ‘a spirit of partnership that incorporates friendship, understanding, mutual trust, respect, and good faith’, to return to Burgess (2012, p. 21), would eventually guide the program of another Liberal government in the second half of the 1990s. Instead of echoing the scc’s decision in the reference case, and thereby building a new space for a fruitful dialogue between the Quebec government and all the other partners in the federation, the government in Ottawa adopted the Clarity Act in 2000. As we have already seen, the Clarity Act was marked by a complete lack of self-​restraint, damage limitation and political empathy. As Guy Laforest characterized it, the whole idea was to make Ottawa the sole

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senior government in Canada, while the provinces, and especially Quebec, would act as junior governments. Thus not only would the senior government have the sole authority to declare whether the results of a referendum were clear enough, but it had the leeway to do so after the votes had been counted. 5

Conclusion

Michael Burgess had already concluded that ‘Canadians must ‘federalise’ the democracy and buttress the legitimacy of the state’, and that they need to make serious efforts to ‘renew and restate the moral basis of Canadian federalism’ (Burgess 2000, p. 15). Two decades later, his statement remains pertinent. Taking the four underlying constitutional principles the scc identified in its 1998 Reference Case re. Quebec Secession, we suggest that all partners in the Canadian federation should focus on furthering the first two principles—​ federalism and democracy. The other two—​constitutionalism and the rule of law, and the protection of minorities—​are better entrenched in contemporary Canadian politics. In the Canadian context, as in any other multinational federal democracy for that matter, federalism and democracy must be conceptualized and understood as being interdependent. The fact that the quest for autonomy and self-​determination is at the centre of much contention between Quebec and Ottawa is due to too thin a conception of democracy favoured by the anglophone majority group or nation, rooted in the spirit of political monism (see Gagnon 2010). In other words, if only one demos, that of the all-​encompassing sovereign political community, is recognized as legitimate, then Canada is condemned to fail in its attempt to instill a federal spirit. In a multinational federal state, two or more national communities have accepted some kind of a pact, a covenant, sharing some jurisdictions through a central government, while the constituent national entities still enjoy substantial autonomy through self-​rule. In fact, that is the only way a political association may be fair to its constituent national entities, ensuring that being part of the overarching federal community does not prevent each from sustaining its own national particularism. If, then, the central state in a multinational federation argues that there exists only one legitimate demos in the polity, it is flouting the principles of self-​restraint, damage limitation and political empathy. In summary, only a firm and sustained multinational conception of federalism may provide a fair politics of contentment between partners. For that reason, ‘moving beyond autonomy’ would have major repercussions for thinking about and realizing

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social justice in the context of multinational federal democracies. There is a clear need to move beyond the ‘all-​encompassing nation’, and federalize our democracies.

References

Bourgault, J. (2004). Quebec’s role in Canadian federal–​provincial relations, in P. J. Meekison, H. Telford and H. Lazar (eds), Reconsidering the Institutions of Canadian Federalism. Montréal and Kingston: McGill-​Queen’s University Press, pp. 341–​376. Brouillet, E., A.-​G. Gagnon and G. Laforest (eds) (2019). The Quebec Conference of 1864:  Understanding the Emergence of the Canadian Federation. Montréal and Kingston: McGill-​Queen’s University Press. Burelle, A. (2005). Pierre Elliott Trudeau: l’intellectuel et la politique. Montréal: Fides. Burgess, M. (2000). The federal spirit as a moral basis to Canadian federalism. International Journal of Canadian Studies, 22 (2000): 13–​35. Burgess, M. (2006a). Comparative Federalism: Theory and Practice. New York: Routledge. Burgess, M. (2012). In Search of the Federal Spirit. Oxford: Oxford University Press. Burgess, M. (2015) Conclusion:  Understanding Federalism and Federation:  My Magnificent Obsession, in A.-​G. Gagnon, S. Keil, S. Mueller (eds) Understanding Federalism and Federation, Farnham: Ashgate Publishing. Burgess, M. and A.-​G. Gagnon (eds) (2010). Federal Democracies. London: Routledge. Caron, J.-​F. and G. Laforest (2009). Canada and multinational federalism:  from the spirit of 1982 to Stephen Harper’s open federalism. Nationalism and Ethnic Politics 15(1): 27–​55. Gagné, G. and S. Langlois (2002). Les raisons fortes: natures et significations de l’appui à la souveraineté du Québec. Montréal: Les Presses de l’Université de Montréal. Gagnon, A.-​G. (ed.) (2008). D’un référendum à l’autre:  Le Québec face à son destin. Québec: Les Presses de l’Université Laval. Gagnon, A.-​ G. (2010). The Case for Multinational Federalism:  Beyond the All-​ Encompassing Nation. London and New York: Routledge. Gagnon, A.-​G. (2014). Minority Nations in the Age of Uncertainty: New Paths to National Emancipation and Empowerment. Toronto: University of Toronto Press. Gagnon, A.-​G. and R. Iacovino (2005). Tinkering and spreading the blame:  how the first Gomery Report let Quebecers down. Policy Options, . Gagnon, A.-​G. and R. Iacovino (2007). Federalism, Citizenship, and Quebec: Debating Multinationalism. Toronto: University of Toronto Press.

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Gagnon, Alain-​G. and G. Lachapelle (1996). Quebec Confronts Canada: Two Competing Societal Projects Searching for Legitimacy. Publius 26(3): 177–​191. Gibson, G. (1994). Plan B: The Future of the Rest of Canada. Vancouver: Fraser Institute. Laforest, G. (1995). Trudeau and the End of a Canadian Dream. Montréal and Kingston: McGill-​Queen’s University Press. Langlois, S. (2018). Évolution de l’appui à l’indépendance du Québec de 1995 à 2015, in A. Binette and P. Taillon (eds), La démocratie référendaire dans les ensembles plurinationaux. Québec: Les Presses de l’Université Laval, coll. Diversité et démocratie, pp. 55–​84. Lenihan, D. G., G. Robertson and R. Tassé (1994). Reclaiming the Middle Ground. Montreal: Institute for Research on Public Policy. Maiz, R. (2000). Democracy, federalism and nationalism in multinational states, in W. Safran and R. Maiz (eds), Identity and Territorial Autonomy in Plural Societies. London: Frank Cass, pp. 35–​60. Mathieu, F. and D. Guénette (eds) (2019). Ré-​imaginer le Canada: vers un État multinational? Québec: Les Presses de l’Université Laval, coll. Diversité et démocratie. McGregor, Janyce (2017). We are not opening the Constitution, . McRoberts, K. (1997). Misconceiving Canada: The Struggle for National Unity. Toronto: Oxford University Press. Mulroney, B. (1987). Report on the First Ministers’ meeting at Meech Lake, May 1st, 1987, . Quebec (2017). Quebecers, Our Way of Being Canadians. Policy on Québec Affirmation and Canadian Relations. Québec: Bibliothèque et Archives nationales du Québec. Supreme Court of Canada (1998). Reference re Secession of Quebec. 1998. 2 S.C.R. 217.

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­c hapter 6

The Political Reconstitution of Canadian Federalism Anthony M. Sayers 1

Introduction

K. C.  Wheare (1946) famously classified Canada as ‘quasi-​federal’ due to its centralized constitutional design. Yet Canada has long functioned as one of the most decentralized federations in the world. The provincial rights movement secured initial victories against the constitutional power of the federal government in the decades following confederation, aided by decisions of the Judicial Committee of the Privy Council (jcpc) in Britain (Vipond 1985).1 But deeper change was difficult. For although effectively a self-​governing country by the early 20th century, Canada’s constitution remained an Act of the British Parliament. Formal constitutional change was largely limited to modest constitutional amendments and episodic judicial interpretation in Britain. While often consequential, these were cumbersome processes that served to highlight this odd situation.2 The practical politics of money and policy were negotiated among domestic governments sometimes finessing their way past constitutional niceties. Managing the disconnect between core institutions and practical governance through intergovernmental bargaining or executive federalism became the hallmark of Canadian politics (Simeon 1972; Smiley 1974). A rapidly expanding economy, along with strong population growth and the expansion of the state throughout the 20th century, strengthened ethno-​ linguistic and regional distinctiveness. It also led to increasingly sophisticated interaction among the provinces and between them and the federal government (Baldwin, Brown and Maynard 2005; Lazar, Telford and Watts 2003; Smiley 1974). With the constitution beyond reach, managing change required 1 Provinces benefited from many of the 173 major decisions of the jcpc—​the British Law Lords who interpreted the British North America Act—​that initially reshaped the working of the Canadian constitution before the Canadian Supreme Court became responsible for its interpretation. 2 The Balfour Report of 1926 made the point that Canada was a self-​governing entity, immediately prompting repeated attempts to develop a domestic amending formula (Hurley 1996).

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a nearly constant series of intergovernmental meetings and agreements that effectively turned the constitution on its head (Scott 1977).3 Executive federalism, the meeting of first ministers from the provinces, territories, and federal government, became the pre-​eminent mechanism for bootstrapping major institutional and constitutional change across the 20th century (Bakvis, Baier and Brown 2009, p. 104; Simeon 2006, p. 39; Watts 1989). The absence of a domestically controlled constitution presented Canadians with a double bind. They were prevented from directly changing their constitution to respond to local circumstances and lacked a legitimate and effective mechanism for resolving this situation. One would have to be created. To be acceptable and legitimate in a self-​governing country, any institutional innovation that enabled a subsequent process of constitutional change would need to be identifiably Canadian and hold out the hope of finding widespread—​ perhaps unanimous—​support across diverse provinces. This would help convince voters in Canada and politicians in Britain to support the use of the formal British amendment process to ‘patriate’ the constitution with additions including a domestic amending formula.4 Despite the arrival of executive federalism, it took 60 years and 14 separate federal–​provincial meetings from 1927 to solve this central dilemma. As evidence of the long road taken, one of the amending processes in the 1982 constitution was first suggested in the report of a 1936 federal–​provincial committee on constitutional change (Hurley 1996). Each failure on the road to success created both varied and often increased friction, with the final version imposed against the will of the Quebec government that to this day has not signed the patriated 1982 constitution. This hiccup in the self-​generated process for creating an amending formula has had little practical effect on the legitimacy of the new constitution. Given the continued difficulty of changing the constitution (it was gifted a series of complex amending formulas when it was patriated in 1982), the intensity of demands from Quebec, and the great diversity of preferences among the provinces, executive federalism remains the central mechanism for shifting of power around the federation.5 3 The Report of the Royal Commission on Dominion–​Provincial Relations, the Rowell–​Sirois Commission (1937–​40), presaged enormous growth in the reach of the state. Federal and provincial governments accounted for about 10 per cent of gdp in 1910 and 42 per cent in 1984. 4 The neologism ‘patriation,’ a back-​formation of repatriation, is used to describe the ‘bringing home’ of the Constitution Acts, 1867 to 1982 following amendments to the original BNA Act and the addition to it of the Charter of Rights and Freedoms by the British Parliament. 5 The exception is constitutional change that affects only one province. In these cases, passing enabling legislation through the federal parliament and the relevant provincial legislature is sufficient to amend the constitution.

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90 Sayers The centrality of executive federalism rests on two key features of Canadian politics that provide it with sufficient legitimacy and power to be effective. The first is the dominance of legislatures by executives that flows from a combination of single-​member plurality electoral systems, the logic of Westminster-​ style parliaments, and disciplined political parties. This is underscored by unicameralism in the provinces and the limited legitimacy of an unelected Senate in the federal parliament. The second is the dominance of political parties and their policy making by party leaders. Together, these ensure that first ministers speak with unusual authority during negotiations and can all but guarantee the passage of enabling legislation once intergovernmental agreements are signed. Riker’s emphasis on the centrality of bargaining and party systems in federal states is a useful starting point for an initial exploration of the possible interaction of executive federalism and partisan dynamics in Canada. The goal is to explore his claim that the structure of party systems captures the character of bargaining—​in essence, the distribution of power—​among the constituent units of a federation. I hypothesize that the expansion of executive federalism as a means for reconstituting the character of Canadian federalism should be accompanied by evidence of changing electoral and legislative party-​system dynamics as leaders strive to maximize their bargaining position (Riker 1964). Riker’s approach to the distribution of bargaining power in federations emphasizes, first, the importance of congruence in the ideology and organization of the parties from which the bargaining governments are formed. That is, ‘The federal relationship is centralized according to the degree to which the parties organized to operate the central government control the parties organized to operate the constituent governments’ (Riker 1964, p. 129). Second, the internal discipline of a party as a measure of the strength and reliability of its bargaining position in office. The mainly unicameral Canadian Westminster-​style parliaments, in combination with the electoral system (here, single-​member plurality), deliver nearly the entirety of government power to highly disciplined single-​party governments. In the Canadian case, the aim is to seek evidence that first ministers work to maximize their bargaining independence—​the terrain over which they feel free to make agreements—​and their bargaining authority—​their capacity to deliver on their promises by guaranteeing the passage of enabling legislation. Independence is measured in terms of both intra-​party organizational linkages that might constrain first ministers, and provincial or regional support for the federal government at elections as a proxy for relative support of the local versus national protagonists. Authority is measured in terms of executive dominance of the legislature, operationalized as the numerical strength of the

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governing party, itself partly a function of the translation of votes into seats by the electoral system. Operationalization of these indicators is achieved using electoral data extracted from the Canadian Elections Database that contains all federal, provincial, and territorial elections since 1867 to the district level (Sayers 2017). A first consideration, then, is limitations on a first minister’s power that might flow from organizational linkages between parties in different jurisdictions, particularly across the federal–​provincial divide. Maintaining such links might limit the policy discretion of a first minister if he or she is forced to balance competing views on a major issue in order to sustain organizational coherence. This is then followed by consideration of whether a first minister’s role as the sole representative of local interests is expressed in regional voting patterns. Weakness in regional electoral support for the federal government would be consistent with voters viewing local first ministers as defenders of their interests against an ‘opposing’ federal government. The final element explores the degree to which voters authorize first ministers to make binding agreements by giving them dominant seat shares of provincial legislatures. This initial exploration suggests there may be value in pursuing this line of research. Vertical inter-​jurisdictional party linkages are unusually attenuated in Canadian political parties, consistent with party leaders attempting to avoid limitations on their strategic behaviour. Second, those regions making the heaviest claims in intergovernmental relations, Quebec and the prairies, experience the greatest secular decline in regional support for federal Liberal governments across the century, followed by bc. Moreover, periods of intense intergovernmental negotiations appear to coincide with episodic drops in support for the federal government. Conversely, those regions whose approach has been more conciliatory, Ontario and Atlantic Canada, experience much higher and more stable levels of regional voter support for the federal government.6 Evidence of legislative correlates with respect to regional first minister authority (seat dominance) is less clear. Government dominance appears to track the dynamics of intergovernmental relations in some provinces but not in others. This may reflect a need to reconsider how best to both conceive of and measure authority. Future work should refine these approaches in order to better understand how electoral choice and government longevity interact with the authority of first ministers in intergovernmental bargaining. 6 Post-​1930s in Ontario.

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92 Sayers 2

The Power of Canadian Party Leaders and First Ministers

Canadian first ministers dominate their political parties and the Westminster-​ style executives that control the legislative agenda of the federal and provincial parliaments. This arrangement has allowed first ministers to conclude definitive intergovernmental agreements without fear of legislative contradiction, so long as the partisan complexion of their legislature remains unchanged.7 As provincial powers expanded, the capacity to make binding agreements—​ and its concomitant veto—​became the central dynamic of Canadian executive bargaining, both requiring and facilitating the political reconstitution of Canadian federalism.8 The traditionally powerful role of party leaders reflects the 19th-​century roots of most Canadian politics. Cadre-​style political parties were relatively loose agglomerations of well-​connected men who organized to contest elections but left the running of legislative affairs to the parliamentary leadership. The importance of national party leaders to the life and success of parties noted by Siegfried (1907) over a century ago is true also for provincial party leaders. This has only been enhanced by changes in the organization and operation of political parties over the last century as leader selection has moved from caucus, to convention and, more recently, direct election by party members. All of the major national political parties now select their leader through closed or semi-​open primaries. By 2017 at least one major party in each of the ten provinces was doing the same, although delegated conventions remain popular at the provincial level (Cross 2014; Pruysers and Sayers 2017). The use of conventions and direct election makes unseating a party leader difficult. Leaders can claim a distinct source of authority and paint opponents as anti-​democratic. Supporters of the winning candidate colonize the central office of the party, extending the power of the leader over the organization and deterring potential opponents. Moreover, electoral regulations and party constitutions give leaders a veto over who runs as a candidate for a party, allowing them to threaten potential challengers (Koop and Bittner 2011; Pruysers and Sayers 2017). Adding to this, party leaders are increasingly important to 7 The most famous instance of this logic being the collapse of the Meech Lake Accord. After the agreement was signed, but before it was implemented, the composition of provincial legislatures changed, giving power to parties and politicians who questioned its value. The agreement died when some of these parliaments failed to pass the necessary enabling legislation (Hurley 1996). 8 Territories are excluded because of their late inclusion in intergovernmental negotiations.

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electoral success, giving them even more sway over party policy and organization (Cross 2014). That local associations still select most candidates under these conditions is evidence of a bargain between the central and local parties that helps a leader to control policy. The stratarchical structure of Canadian parties is heavily shaped by the logic of single-​member plurality (smp) elections (Carty 2015). Party rules and the electoral system provide a tradable good—​control of candidate selection and influence in the subsequent campaign—​with which to engage and reward party activists. In return, local activists are expected to accept a limited say in party policy. The relatively high rate of turnover in Canada (often in excess of 40 per cent) exaggerates this effect, as it is difficult for individual representatives or their local supporters to use an electoral district as a power base from which to challenge the party leadership. Not surprisingly, a leader can expect to control the policy-​making apparatus of his or her party (Carty 2015; Pruysers and Sayers 2017). The power to guarantee the passage of legislation is the second key to the functioning of executive federalism, as it allows each first minister to bargain with authority. The oft-​noted power of Canadian prime ministers is true also of their provincial counterparts (Bakvis 1989; Savoie 1999; Sayers and Banfield 2013). By over-​rewarding the largest party and usually punishing other parties in the translation of votes to seats, smp strengthens the hand of the executive against the legislature. In reducing the likelihood of coalition governments, it removes one of the few possible restraints on executive authority. The rules of Westminster-​style parliaments, combined with disciplined political parties (a function of the leader’s capacity to punish members of caucus), give first ministers nearly full control of the legislative agenda. This removal of the legislative branch of government as a potential veto player is central to Richard Simeon’s (1972) insight that relations between the governments of Canadian federalism resemble diplomatic interactions among national governments in international politics. Others see it as evidence of a serious democratic deficit in Canadian policy making (Simmons 2007). Control of party policy and of the legislative agenda are key sources of bargaining independence and authority for first ministers. The potential veto this gives each leader, along with a lack of authoritative decision-​making rules at first ministers’ meetings, encourage pork-​barrel politics and logrolling in order to build super-​majority support for intergovernmental agreements (Sproule-​Jones 19 74).9 9 The strength of a first minister’s bargaining position will also depend on other factors, such as the resources available to a jurisdiction and its importance with respect to the matter being negotiated. Equivalence is not required for our analysis.

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The Political Correlates of Executive Federalism

Both levels of government in a federation may claim to speak for the interests of voters in a region. The contest for power involves convincing voters of the character of intergovernmental bargaining and, by implication, which of the players might best protect their interests. A number of features of the national party system can be used to search for evidence of whether first ministers attempt to maximize their bargaining power as implied by Riker (1964). These features are sensitive to efforts by premiers to maximize their bargaining independence and authority while holding the position of the federal government, personified in the prime minister, as constant. Again, independence refers to first ministers’ desire to maximize opportunities for strategically advantageous behaviour by presenting themselves as sole protectors of local interests, authority to their desire to dominate their legislatures to ensure passage of legislation associated with intergovernmental agreements, in order to maximize their bargaining power. The logic of independence suggests party leaders and caucuses, along with their supporters, will rebel against limitations on their behaviour such as those embedded in intra-​party linkages. This might include a desire to limit links to similarly named parties elsewhere, the creation of new parties, and the adoption of idiosyncratic local policies. That is, limiting linkages should enhance independence. Second, provincial first ministers may seek to demonize the federal government in intergovernmental bargaining. If the first minister is successful, we might expect to observe a decline in the aggregate level of support for the federal government in the relevant region at a national election. That is, decline in voter support for the federal government would suggest greater independence for a regional first minister.10 Authority is best viewed through a legislative lens as the relative dominance of a parliament by the governing party. The logic of authority suggests that parties—​leaders and politicians—​and their supporters prefer governments with clear majorities in order to protect their legislative decision-​making power. This analysis suggests a number of proxy measures that might be used to test the following hypotheses: With respect to independence: H1. Intra-​party linkages among parties of the same name or similar ideological disposition should reduce as intergovernmental negotiations become more important. 10

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H2. Regional support for the federal government should decline in periods of intense intergovernmental negotiations. With respect to authority: H3. There should be an increase in legislative dominance of regional governments in periods of intense intergovernmental negotiations. The search for the political—​electoral and legislative—​correlates of executive bargaining that have remade Canadian federalism begins with a discussion of intra-​party linkages, before moving on to the regional variation in the disposition of voters towards the federal government and, finally, the dominance of legislatures by regional governments. 4

Measuring Party-​System Dynamics

Well-​developed literatures that assess aspects of party-​system dynamics in federal systems can guide the development of measures to test hypotheses H1–​H3. The independence of first ministers is explored using intra-​party linkages and federal electoral data at the regional level. First minister legislative dominance is measured as the seats held by the governing party as a proportion of the total available. Canadian parties and the various Canadian party systems have long exhibited features that mark them as distinctive. The partisan composition and competitiveness of party systems vary, both between the federal and provincial level and from one province to the next. Linkages between parties across jurisdictional boundaries are limited, particularly since the 1970s. A standard comparative work on the relationship between parties in federal systems suggests that greater decentralization (as in Canada) is associated with increased incongruence between party systems across the local–​national divide, evidenced in part by internal organizational linkages (Thorlakson 2007; see also Stewart, Sayers and Carty 2015; Gibson and Suarez-​Cao 2010) use an index of congruence, attempting to account for both vertical (national–​state) and horizontal (state–​state) variation. There have also been attempts to synthesize these various approaches by distinguishing between dynamic (variation in vote share over time), distributional (equality of votes share across units) and party linkage (candidate sharing of party labels), leading to an explosion in ways of studying these effects (Caramani and Kollmann 2017; Schakel and Swendon 2018). Intra-​party linkages are used here to explore the independence of first ministers in a manner similar to Thorlakson (2007) and Stewart, Sayers and

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96 Sayers Carty (2015). This approach is most sensitive to the organizational relationship across the federal–​provincial divide. Operationalization is accomplished through publicly available party rules regarding intra-​party affiliations, evidence of funding connections from public records, known personnel connections and the judgement of experts on the character of organizational linkages. Originally focused on the USA, a now highly comparative literature considers the degree of nationalization expressed in the national party system as a means of understanding political coherence, particularly in federations. Nationalization is sometimes thought of as the degree of uniformity of electoral swings across elections by district or region. Other conceptions explore the homogeneity of vote distribution by election. Some argue that regional patterns of competition should be excluded altogether (Caramani 2004; Kasuya and Moenius 2008; Lago and Montero 2014; Pruysers 2014). The most widely used approach is the first: that is, the degree to which the vote shares of the major parties do not differ much from one province to the next—​that is, regionally (Jones and Mainwaring 2003, p. 140). We are interested in understanding changes in the disposition of regional voters towards the federal government that might be linked to intergovernmental relations. Focusing on regional electoral support for the federal government across elections provides a second means of thinking about the independence of first ministers. It draws upon the insights of the nationalization literature but is most sensitive to region-​rather than system-​wide dynamics. To reduce the complexity of the analysis, the Liberal Party vote share anchors the aggregate analysis of how regional voters view the federal government. The Liberals dominated federal government across the 20th century. As Canada’s ‘national party’, it is a useful proxy for the role of the national government in executive federalism. Various measures have been used to explore the degree of one-​party or executive dominance of legislatures, with increasing interest in state and provincial dynamics (see Bogaards and Boucek 2010). Vampa (2018) notes that dominance can be conceived of as absolute, relative or as a function of the time a party has been dominant. For simplicity, absolute dominance is measured here as the proportion of total seats won by the largest party. As most provincial and national elections in Canada have used smp electoral systems that over-​reward the largest party with a disproportionate share of the seats and control of government, this measure provides a simple test of executive dominance. The next section discusses these correlates of the executive bargaining that has reconstituted Canadian federalism.

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5

Data and Results: Intraparty Linkages

Rand Dyck (1996) provides a framework for understanding the character of intra-​party institutional linkages across the federal–​provincial divide in Canada, updated in Table 6.1. Importantly for H1, Dyck (1996) notes the tendency for linkages among non-​New Democratic Party (ndp) parties to decline over time. The limited character of these linkages is consistent with H1 regarding independence. The former national Progressive Conservative Party (one precursor of the current Conservatives) shared few or no formal linkages to provincial parties from its founding in 1942 until its demise in 2003. The national level Conservative Party formed in 2004 from the merger of the Progressive Conservative (pc) and Canadian Alliance parties has no organizational links to provincial parties, although there are clear personnel linkages with provincial right-​wing parties. This includes provincial Progressive Conservative Parties, the Saskatchewan Party, the newly formed United Conservative Party that now governs Alberta (2019) and perhaps the upstart Coalition Avenir Québec, which holds government in Quebec (since 2018) along with several provincial pc parties. The message is more mixed for the Liberals. The party remained relatively integrated until the 1970s, when its federal and provincial counterparts began to decouple. About half (five) of federal–​provincial Liberal party relationships table 6.1 Character of federal–​provincial intra-​party linkages by major party

Integrated organization Integrated finance Integrated campaigns Integrated leadership selection Integrated policy Integrated personnel Relations with another party at different level

ndp

Lib

Con

Yes Mixed No Yes Mixed Yes No

Mixed No No Mixed No Yes Mixed

No No No No No Mixed Mixed

Key: ndp = New Democratic Party; Lib = Liberal; Party Con= Various Conservative Parties. Mixed is a combination of yes and no. source: adapted from dyck 1996.

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98 Sayers might be classified as either integrated or somewhat integrated. The ndp remains the only relatively integrated party, with the exception of Quebec, where the provincial party once collapsed. A provincial New Democratic Party reformed in Quebec in 2016, but the federal ndp leader refused to endorse the party in the 2018 election. Patterns of partisan competition across the provinces are very distinctive (Stewart, Sayers, and Carty 2015). Linkages between parties of the same name across provincial lines generally follow the same rank order, but at a substantially reduced level. Even the ndp is not immune to the competitive effects of Canadian federalism on linkages between provincial parties, despite its tendency to share personnel. The very sharp dispute between the ndp governments of British Columbia and Alberta over the expansion of the interprovincial Trans-​Mountain Pipeline are a case in point.11 A word of caution is required here. Despite often limited formal vertical linkages, patterns of personal interaction remain strong, with activists often working for a party of the same name or similar ideological disposition in federal and provincial elections and also offering financial support (see, for example, Koop 2011). 6

The Dynamics of Federal–​Provincial Bargaining

The rest of this analysis draws on data from the Canadian Elections Database.12 This section deals with evidence that the dynamics of intergovernmental negotiations are reflected in regional variation in support for the federal government as first ministers vie for bargaining power, the next with the degree to which provincial governments dominate their legislatures. The intuition is that the more successful a first minister is in claiming to be the sole protector of provincial interests, the lower will be the regional vote for the party forming the federal government.13 Figure 6.1 displays the average rank ordering of political parties by all districts in federal elections since 1867. The Liberals have been the dominant federal party in Canada, winning 19 of 29 elections and governing for more than 70 per cent of the 11 See . 12 See . 13 Objective circumstances are important in shaping this effect. Quebec’s distinctiveness has clearly been a key resource in allowing its premiers to claim a special role in protecting its interests.

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1 2 3 4 5 6 1867

1887

1907

1927 Con

Lib

1947 NDP

1967 Other

1987

2007

­f igure 6.1  Average district electoral rank of major parties by election

last century. Conversely, other federal parties in the region will benefit electorally to the degree that a premier successfully paints the national government as a bargaining opponent. The level of support the federal Liberals attracts in a province is used to guide thinking about the degree of bargaining independence enjoyed by a local first minister. To ease interpretation results are regonalized for Atlantic Canada and the prairies. In each case the provincial results are well correlated with the displayed regional results. We are looking for both long-​term trends and episodic changes that might be related to periods of intense intergovernmental negotiations. Low levels of regional support for the federal Liberals might coincide with periods when they were out of government. A subsequent analysis will be needed to tease out these dynamics in more detail. Figure 6.2 captures federal Liberal support in Atlantic Canada. While there has been a gentle decline across the century, Atlantic Canada has sustained the highest and second-​most stable support for the Liberals of any region. This level of support in a single-​member plurality system is consistent with voters regularly rewarding the Liberals with most seats in the region. Volatility toward the end of the 20th century and into the 21st may well capture the beginning of change for Liberals in the region, although the extraordinary 2015 result suggests voters still believe it is in their interest to elect federal Liberals. This is broadly consistent with the bargaining role played by maritime and then Atlantic Canada across the 20th century. After some initial resistance to confederation (notably in Nova Scotia) and some episodes across the century,

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­f igure 6.2  Federal Liberal vote in Atlantic Canada

the region has generally been seen to work with rather than against the federal government in achieving its objectives. Episodic shifts in voter support for the federal government are muted. This suggests that regional first ministers do not demonize their national counterparts as competitors, at least not effectively, in the eyes of voters.14 Relative economic and demographic weakness combined with a traditional view of party politics may contribute to in this approach. Figure  6.3 captures federal Liberal support in Ontario, which is comparatively high. While lower than in the early days in Quebec, Ontario support for the Liberals has been relatively consistent with an average of around 40 per cent. Given the effects of single-​member plurality voting, this suggests on average that Ontario voters deliver a majority of seats in the province to the Liberals. There are periods of serious decline, consistent with the pattern of Liberal defeats across the 20th century (Carty 2015), but the overall impression is that Ontario does not exhibit long-​term alienation from the federal Liberal brand.

14

A recent exception not captured here is the fierce opposition to the Stephen Harper Conservative government (2006–​15) of Newfoundland and Labrador premier Danny Williams.

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­f igure 6.3  Federal Liberal vote in Ontario

While Quebec has been pivotal in deciding government, this has only been possible because of the comparatively consistent support of Ontario voters (Johnston 2016). With the decline of support in Quebec, federal Liberal governments have become increasingly Ontario-​centric. Ontario voters may well consider that their influence on federal governments of any partisan stripe, given the weight of the Ontario vote in determining government formation, makes it theirs. It is possible that painting the federal government as antithetical to Ontario’s interests is a difficult strategy for a premier to successfully pursue. The rise of the Progressive Party in the 1920s, mainly in Ontario and the West, had its roots in tensions between farmers, labour and the economic policies of the federal Liberal government under Laurier. Collapse in Liberal support at this time may capture in part the demonizing of the federal government by provincial first ministers. Liberal collapse in the late 1950s coincides with the controversial end of the St Laurent government which had worked more than any government up to this time to bring federal and provincial first ministers together to develop new economic and social policies. The early 1980s witnessed intense intergovernmental bargaining associated with patriation of the constitution followed by a period of fatigue as the decade progressed. Yet it is the stability of Ontario support for the federal government that is most notable, at least until its collapse in the post-​Chrétien period in the early 21st century.

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­f igure 6.4  Federal Liberal vote in British Columbia

As shown in Figure  6.4, the federal Liberals have rarely been as popular in British Columbia as in Quebec or Ontario. While the long-​term decline in support may look very western, the Liberals have not suffered quite as badly in bc as they have on the prairies or in Quebec. Starting with levels slightly above those found in Ontario, support for the Liberals in bc suffered from both swings and a secular decline across the century. The noticeably subdued recovery in the Liberal vote after 1993 is striking when compared with Ontario and Atlantic Canada. This heralds the arrival of a distinctive pattern of comparatively balanced competition between the three major federal parties in BC. British Columbia shares with the prairies some sense of alienation from Ottawa, yet a westward focus that reduces the pressure to engage stridently with the federation centred to its east. Although the trend in federal Liberal support is downwards, as in the prairies and Quebec, episodic losses have at times been partially recovered. The 1920s saw a more muted decline in support than on the prairies, but the St Laurent and Trudeau periods of intergovernmental bargaining coincide with serious declines in Liberal support in bc is closest to that found in Quebec and the prairies with a somewhat higher average over recent decades. This places it between these two and levels of support found in Ontario and Atlantic Canada. After some bleak outcomes in the early 21st century, the 2015 result in bc was better than on the prairies, suggesting greater resilience to the Liberal vote in the province.

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­f igure 6.5  Federal Liberal vote in Quebec

Success in Quebec has been essential to the Liberals’ long dominance of Canadian federal politics. Anyone aware of the history of intergovernmental relations and party politics with respect to Quebec will not be surprised by the results evident in Figure 6.5. Quebec has experienced the sharpest overall decline in Liberal vote share, in part because of high early results. From results often well above 50 per cent, the three elections from 2000 produced Liberal vote shares closer to 20 per cent While the pattern of support is cyclical, weak recovery in the Liberal vote since 1980 in the second most populous province maps the party’s growing challenge in forming government. The data are consistent with the growth in strategic independence gained by Quebec first ministers casting themselves as defenders of provincial interests against the federal government. A slump in support in the 1950s during the Diefenbaker government is followed by recovery across the next two decades. The initial appeal of Pierre Trudeau’s ‘new federalism’ gave way to deep discontent at the conclusion of the patriation period in the 1980s. The alienation felt in Quebec over the treatment of Parti Québécois premier René Lévesque, his unwillingness to sign the constitution, and its eventual patriation despite this profoundly altered the relationship between provincial voters and the federal Liberal party. The arrival of the separatist Bloc Québécois in Ottawa in 1993 fragmented the vote and hurt the Liberals in Quebec. The success of the NDP in 2011 may make it even harder for any one party to capture a high proportion

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­f igure 6.6  Federal Liberal vote in the prairies

of votes. The Quebec data are consistent with the claim that over the 20th century Quebeckers came increasingly to see the federal government, in the guise of the dominant Liberals, as bargaining opponents in intergovernmental negotiations. Whether the 2015 result reverses the trend or is an exception awaits future elections. The prairie results shown in Figure  6.6 suggest levels of disillusionment with the Liberals deeper than in neighbouring British Columbia and similar to those found in Quebec. Average early support of around 50 per cent of the vote for the Liberals starts somewhat below that found in Quebec. In reaching a similar level by the end of the period, the overall secular decline on the prairies is somewhat less than in Quebec. From a relatively healthy starting point around 50 per cent, the very serious decline seen during the Progressive era of the 1920s reset Liberal fortunes downward on the prairies. The pattern is repeated in the 1950s Diefenbaker and 1980s Pierre Trudeau periods. In each case, recovery is muted. The combination of episodic and secular decline has meant that the prairies challenge Quebec as the least friendly region for the federal Liberals. Again, we will have to wait to see if the 2015 result is an exception or begins a reversal of this trend. The premiers of Quebec and the prairie provinces, notably Alberta, have been the most strident in presenting themselves as outsiders poorly treated by

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the federation and in need of bargaining room with which to pursue serious change. From the Balfour Report onwards, across disputes around provincial ownership of resources on the prairies and the Quiet Revolution in Quebec, the federal government has often been portrayed as the problem to be overcome. The data for bc are less emphatic, but still on balance supportive of this conclusion. Atlantic Canada and Ontario exhibit the least sensitivity to this hypothesis. To summarize, the structure of regional support for federal Liberal governments appears to conform broadly to the expectations of H2. There is general cross-​period decline in three of five regions, and particularly in those that have had the most contentious relations with Ottawa. As well, episodic decline in all regions often coincides with periods of intense intergovernmental negotiations. Ontario, which has often played a key role in supporting the federal government, has relatively symmetrical oscillations in support over time. Periods of deep decline arrive last in Atlantic Canada, a region that has worked more with than against federal governments. Figure  6.7 summarizes the effect on regional federal Liberal support of a century of intergovernmental bargaining that reconstituted Canadian federalism. Executive federalism provided the Liberals a mechanism with which to both reconstruct and dominate federal politics. They used it to negotiate the disconnect between the constitution and federal political reality, integrate Quebec into the constitutional order, and domesticate the BNA Act to give expression to these changes. The period from 1921 to 1984 captures the era of peak federal government stability and likely negotiating power expressed as Liberal party dominance maintained by support in Quebec and Ontario. That is, unusual levels of support in Quebec combined with relatively high levels of support in Ontario after the 1930s underwrote this dominance and created a pivot around which intergovernmental negotiations moved. There is little doubt that this was essential to sustaining the ‘national party’ status of the Liberal party across the 20th century. Wilifred Laurier’s desire to include Quebeckers in the federal conversation began this process, and Pierre Trudeau’s patriation of the constitution marked its end. The Liberals authority to renegotiate Confederation across these 60 years relied heavily on its capacity to internalize Canadian duality by maintaining support in both French-​speaking Quebec and English-​speaking Ontario. This was its route to electoral dominance. However, Quebec has never formally signed the constitution, and support for the Liberals in the province is now decoupled from the pattern found in Ontario. The extremely close 1995 referendum on Quebec separation is a sharp reminder of the limits of this process. Ontario and Atlantic Canada are now distinctive as the bedrock of Liberal

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106 Sayers Proporon of Votes to Liberal Party by Region Federal Elecons post 1900 80.0%

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Ontario

Prairie

Quebec

Percentage of Votes

70.0% 60.0% 50.0% 40.0% 30.0% 20.0%

0.0%

19001107 19041103 19081026 19110921 19211206 19251029 19260914 19300728 19351014 19400326 19450611 19490627 19530810 19570610 19580331 19620618 19630408 19651108 19680625 19721030 19740708 19790522 19800218 19840904 19881121 19931025 19970602 20001127 20040628 20060123 20081014 20110502 20151019

10.0%

Vote Date

­f igure 6.7  Building a national Liberal government

support. The prairies anchor opposition to the Liberals along with bc, while Quebec has joined them in recent years. 7

Federal Bargaining and Legislative Dominance

This final section briefly deals with the degree to which provincial governments dominate their legislatures as a way of thinking about how the authority of first ministers to negotiate intergovernmental agreements might reflect their capacity to guarantee the passage of enabling legislation. To simplify analysis, the legislative dynamics of two provinces, Quebec and British Columbia, are used to explore the two broad patterns that recur across the provinces.15 Figure 6.8 displays the proportion of available seats gained by the governing party in Quebec provincial elections. As we know, the single-​member plurality system usually provides the largest party with a substantial premium in the proportion of seats over its proportion of the vote. The data is suggestive of a pattern of increased dominance across the middle of the 20th century, and a spike during the 1970s consistent with the period of peak constitutional 15

The results for all the provinces are available from the author.

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100.0% 90.0% 80.0% 70.0% 60.0% 50.0% 40.0% 30.0% 20.0% 10.0% 0.0%

­f igure 6.8  Governing-​party seats as percentage of total seats, Quebec provincial elections

tensions negotiated via executive federalism. The subsequent decline after the 1990s coincides with a period of relative quiescence in federal–​provincial relations. This pattern is repeated in Alberta and Ontario and, to a lesser extent, in Nova Scotia and Prince Edward Island. There is some limited support, then, for H3 in Quebec and these other provinces. Periods of intense intergovernmental negotiations are associated with increased numerical dominance of the provincial legislature by governing parties led by first ministers. It is also worth noting that the two provinces with a record of challenging the federal government, Quebec and Alberta, are represented in this group. More detailed contextual analysis that captures the moments of greatest disagreement may be valuable if we are to extract greater meaning from these figures. A more complex pattern is evident in the remaining provinces, represented by bc in Figure 6.9, although the long-​term trend is flat, suggesting little change over time. Along with bc, Manitoba, New Brunswick, Newfoundland and Labrador, and Saskatchewan offer no overall pattern across the century. As such, the data provide no obvious support for H3 in these provinces. Closer examination might be able to tease out episodic effects associated with the dynamics of executive bargaining that would be consistent with a version of H3. It may be that more appropriate measures might help in this regard.

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108 Sayers 100.0% 90.0% 80.0% 70.0% 60.0% 50.0% 40.0% 30.0% 20.0% 10.0% 0.0%

­f igure 6.9  Governing-​party seats as percentage of total seats, bc provincial elections

We have already seen that the Liberals dominated the federal legislature for much of the 20th century. We have not discussed the size of their legislative dominance, but the analysis suggests that longevity may be as important as degree in shaping bargaining dynamics. There are, too, other ways of specifying executive dominance that may prove more tractable in providing insights into legislative dynamics at the national and regional level. For example, electoral and legislative stability may be interpreted by first ministers as an endorsement of their bargaining position. A repeated slim majority for the same party may be as important as large majorities in empowering first ministers. 8

Conclusion

The reconstitution of Canadian federalism by first ministers via executive federalism is one of the more remarkable outcomes in the annals of federal constitution making. Well before the patriation of the constitution in 1982, Canadian politicians managed to rewire major political institutions to serve the difficult and often fraught politics of this complex federation. This was achieved across a century marked by rapid social and economic change as well as world financial and military crises. The use of executive federalism to bootstrap institutional reform in the absence of a domestic amending process while maintaining democratic legitimacy is a remarkable political achievement.

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Executive federalism is not without its weaknesses. The very dynamics that allow it to function successfully have anti-​democratic elements. Meetings of first ministers held in closed session with no official records of debates or decisions and lacking clear voting rules do little to enhance democratic transparency or accountability. Executive dominance of legislatures encouraged by the electoral system, party dynamics and Westminster parliamentary norms conspire to limit the effectiveness of political opposition. So, too, do periods of sustained one-​party dominance in several Canadian jurisdictions, including at the federal level. Yet, in contributing to the bargaining power of first ministers and pitting them against each other—​as relatively independent actors able to authoritatively deliver results—​executive federalism allowed for the political de-​integration of a relatively centralized federal constitution. As Riker’s approach predicted, the analysis here suggests that the dynamics of executive federalism and bargaining are intimately connected to electoral and legislative realities that help determine the negotiating power of first ministers. Cross-​jurisdiction internal party linkages are unusually rare among Canadian parties. First ministers of regions making the heaviest claims on the federation and in intergovernmental negotiations appear to benefit from diminished regional electoral support for their perceived bargaining foe, the federal government. Regions that more easily identify with the federal government do not experience this effect. Evidence of legislative correlates of first minister authority (seat dominance) is harder to find. Government dominance appears to track the dynamics of intergovernmental relations in some provinces, but not in others. This is an invitation to deeper analysis of the link between electoral and federal dynamics in search of a better understanding the factors that shape political power in federal countries.

References

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110 Sayers Bogaards, M. and F. Boucek (eds) (2010). Dominant Political Parties and Democracy: Concepts, Measures, Cases and Comparisons. London: Routledge. Caramani, Daniele (2004). The Nationalization of Politics: The Formation of National Electorates and Party Systems in Western Europe. Cambridge: Cambridge University Press. Caramani, Daniele and Ken Kollman (eds) (2017). The nationalization of electoral politics: frontiers of research. Electoral Studies 47: 51–​145. Carty, R. Kenneth (2015). Big Tent Politics: The Liberal Party’s Long Mastery of Canadian Politics. Vancouver: University of British Columbia Press. Cross, William P. (2014). Party leadership in Canada, in William P. Cross and Jean-​Benoit Pilot (eds), The Selection of Political Party Leaders in Contemporary Parliamentary Democracies. New York: Routledge. Dyck, Rand (1996). Provincial Politics in Canada: Towards the Turn of the Century, 3rd edn. Scarborough: Prentice-​Hall. Gibson, E., & Suarez-​Cao, J. (2010). Federalized Party Systems and Subnational Party Competition:  Theory and an Empirical Application to Argentina. Comparative Politics, 43(1), 21–​39. Hurley, James Ross (1996). Amending Canada’s Constitution: History, Processes, Problems and Prospects. Ottawa: Minister of Supply and Services. Jones, Mark and Scott Mainwaring (2003). The nationalization of parties and party systems: an empirical measure and an application of the Americas. Party Politics 9: 139–​166. Johnston, Richard (2016). The Canadian Party System: An Analytic History. Vancouver: University of British Columbia Press. Kasuya, Yuko and Johannes Moenius (2008). The nationalisation of party systems: conceptual issues and alternative district-​focused measures. Electoral Studies 27: 126–​135. Koop, Royce (2011). Grassroots Liberals:  Organizing for Local and National Politics. Vancouver: University of British Columbia Press. Koop, Royce and Amanda Bittner (2011). Parachuted into parliament: candidate nomination, appointed candidates, and legislative roles in Canada. Journal of Elections, Public Opinion, and Parties 21(4): 431–​445. Lago, Ignacio and Jose Montero (2014). Defining and measuring party system nationalization. European Political Science Review 6(2): 191–​211. Lazar, Harvey, Hamish Telford and Ronald Watts (eds) (2003). The Impact of Global and Regional Integration on Federal Systems: A Comparative Analysis. Kingston: Institute of Intergovernmental Relations and McGill-​Queen’s University Press. Pruysers, Scott (2014). Canadian party politics in the 2000s: a re-​examination of the regionalization thesis. Canadian Political Science Review 8(1): 27–​42. Pruysers, Scott and Anthony M. Sayers (2017). Party primaries in Canada, in Robert G. Boatright (ed.), Routledge Handbook of Primary Elections. New York: Routledge.

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Riker, William H. (1964). Federalism:  Origins, Operation, Significance. Boston:  Little Brown & Co. Sayers, Anthony M. (2017). Canadian Elections Database, . Sayers, A. M. and A. C. Banfield (2013). The evolution of federalism and executive power in Canada and Australia, in Arthur Benz and Jorg Broschek (eds), Federal Dynamics:  Continuity, Change, and the Varieties of Federalism. Oxford:  Oxford University Press, pp. 185–​208. Savoie, Donald J. (1999). The rise of court government in Canada. Canadian Journal of Political Science 32(4): 635–​664. Schakel, Arjan and Wilfried Swenden (2018). Rethinking party system nationalization: evidence from India 1952–​2014. Government and Opposition 53(1): 1–​25. Scott, F. R. (1977). Essays on the Constitution:  Aspects of Canadian Law and Politics. Toronto: University of Toronto Press. Siegfried, André (1907). The Race Question in Canada. London: Eveleigh Nash. Simeon, Richard (1972). Federal–​Provincial Diplomacy: The Making of Recent Policy in Canada. Toronto: University of Toronto Press. Simeon, Richard (2006). Federal–​Provincial Diplomacy: The Making of Recent Policy in Canada: With a New Preface and Postscript. Toronto: University of Toronto Press. Simmons, Julie M. (2007). Democratizing executive federalism:  the role of non-​ governmental actors, in Herman Bakvis and Grace Skogstad (eds), Canadian Federalism: Performance, Effectiveness, Legitimacy. Toronto:  University of Toronto Press. Smiley, Donald V. (1974). Federal–​provincial conflict in Canada. Publius: The Journal of Federalism 4(3): 7–​24. Sproule-​Jones, Mark (1974). An analysis of Canadian federalism. Publius: The Journal of Federalism 4(4): 109–​136. Stewart, David K., Anthony M. Sayers and R. Kenneth Carty. (2015). Partisan competition in the Canadian prairies, in Christopher Dunn (ed.), Provinces:  Canadian Provincial Politics, 3rd edn. Toronto: University of Toronto Press, pp. 101–​122. Thorlakson, Lori (2007). An institutional explanation of party system congruence: evidence from six federations. European Journal of Political Research 46(1): 69–​95. Vampa, D. (2018). Developing a new measure of party dominance: definition, operationalization and application to 54 European regions. Government and Opposition: 1–​26. Vipond, Robert C. (1985). Constitutional politics and the legacy of the provincial rights movement in Canada. Canadian Journal of Political Science 58(2): 267–​294. Watts, Ronald L. (1989). Executive federalism: a comparative analysis. Discussion Paper No. 26, Institute of Intergovernmental Relations, Queen’s University. Wheare, K. C. (1946). Federal Government. London: Oxford University Press.

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­c hapter 7

‘Swimming Outside the Flags’

Continuity and Change in Australian Intergovernmental Management Isi Unikowski 1

Introduction

With the abandonment in 2016 of a major White Paper review process that had aimed to ‘relaunch the [Australian] federation’ by delivering ‘a more rational system of government’ (Abbott 2014), the prospects for systemic, significant reform of the Australian federal system now appear remote. This is despite the fact that the review ostensibly responded to a mood for change among the Australian public. Over one third of respondents (36 per cent) to the Australian Constitutional Values Survey 2014 felt that ‘the current system of government, with three main levels, does not work well’; another 36 per cent felt that ‘the current system with three main levels works well—​but does not deliver legislative diversity, innovation, or collaboration well’. In the absence of substantial proposals or realistic prospects for major change in the short to medium term, incremental reform of Australia’s federation may depend on improvements to the mechanisms of intergovernmental cooperation that are such an intrinsic part of Australia’s concurrent federal system. Such cooperation, or the lack of it, forms part of the spectacle and theatre of the political dimension of Australian federalism. Assessing the federation’s capacity to harness cooperative effort also requires us to look beyond intergovernmental relations, which are all about the politics, whether they be arguments over fiscal federalism and funding inadequacies or the spectacle of the Council of Australian Governments (coag). We also need to pay attention to intergovernmental management, the role of the bureaucracy in supporting the federal system; a part of the system that receives little attention but that underpins its operations.1 As late as 1990, intergovernmental management as an object of study in its own right was still described as ‘embryonic’ and ‘shallow’, having ‘recently

1 For a discussion of the distinction between intergovernmental management and intergovernmental relations, see Marando and Florestano 1990; O’Toole 1988; Wright and Krane 1998.

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emerged in the literature’ (Marando and Florestano 1990, p. 287; Yeatman 1991, p. 41). Two decades later, intergovernmental management had all but disappeared as a focus for better practice in US public administration, as a result of the abolition or marginalization of federal agencies established to help improve and rationalize intergovernmental management (Conlan and Posner 2008, p. 4). Intergovernmental decision making is similarly under-​studied in the Canadian system (Inwood, Johns and O’Reilly 2011, p. 7). As for Australia, little has changed over the quarter of a century since Yeatman expressed concern over the lack of focus on intergovernmental management, which she attributed to a preoccupation with ‘coordinate’ views of federalism and the division of jurisdictional roles (Yeatman 1991, p.  43). Despite the broadening and deepening of the relationships between national and subnational governments that has taken place since the 1990s in Australia (Phillimore and Harwood 2015), only a handful of studies has explored the interface between public administration and federalism. This limited research history may reflect the ‘pragmatic’ nature of Australian federalism, characterized by ‘a direct engagement or confrontation with pressing problems, an engagement unmediated by larger theoretical concerns’ (Hollander and Patapan 2007). There is a distinctly instrumental flavour to the small number of studies of intergovernmental management conducted to date: many of them aim not just to understand the nature of intergovernmental management in Australia, but to assess and enhance its effectiveness. Moreover, a review of the literature to date shows that, until very recently, research focused almost exclusively on officials in central agencies, not on those in line departments, and on the commonwealth government, but not state jurisdictions. Finally, with the exception of the 2015 Future of Australian Federalism Survey (Smith and Brown 2017), there is no systematic research on practitioners’ attitudes towards federal arrangements generally, nor on the practice of intergovernmental management. Even the latter studies say little about where these attitudes have come from, how they change over time and how they translate into day-​to-​day decisions and strategies in practice. So, for all its importance to the health of Australian democracy and the everyday lives of Australians, the practice of intergovernmental management is poorly understood, and its capacities poorly assessed. As a result, we rarely consider the contribution that improving such capacities might make to the operations of the federal system overall. With these normative questions in mind, this chapter addresses the theoretical questions raised by the concepts of federal dynamics: what changes within federal systems, and what remains stable? Why does continuity often prevail over change, and, if systems do

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114 Unikowski change, why do they change in particular ways, and how do they change in and over time, with respect to direction, pace, duration and scope (Benz and Broschek 2013)? The particular challenge for Australia’s federation, to which the concept of federal dynamics draws attention, involves balancing the capacity to maintain institutional stability in the face of an unsettled and unclear policy environment, with the ability to change despite the inertia of ‘normal’ politics and institutional stability, if not stasis (Thelen and Karcher 2013, p. 136). William Anderson, an American academic involved in the late 1950s in the US Commission on Intergovernmental Relations argued, ‘It is human beings clothed with office who are the real determiners of what the relations between units of government will be’ (quoted in Cho and Wright 2004, p. 451). Accordingly, I  have adopted an institutionalist framework, looking particularly at the role concepts, ideas and cultures play in shaping the formal or informal procedures, routines, norms and conventions of intergovernmental management. This approach corresponds with the ‘institutional’ and ‘ideational’ layers of federal dynamics theory. Benz and Broschek (2013) relate the former to the formal institutions and informal routines that establish and distribute authority relationships within and between jurisdictions and establish regular patterns of behaviour within those institutions. In line with Friedrich’s approach to federalism as a composite body of congruent and divergent ideas (Burgess 2012, p.  150), they refer to the ideational layer of federations as ‘the normative or ideational constructs that actors employ in order to interpret their social and political environment’ (Benz and Broschek 2013, pp. 5–​7). 2

Methodology

The capacity of the older forms of neo-​institutionalism to deal with the practice of intergovernmental management is limited, because they posit institutions as structures external to agents, focusing less on the individuals populating these organizations and more on the settings from which actors draw their preference or incentive sets (rational choice theory), path-​dependent constraints (historical institutionalism) and culturally appropriate rules and norms (sociological institutionalism) (Jackson 2010; Schmidt 2010). For discursive institutionalism, by contrast, institutions are internal to sentient agents, serving both as structures of thinking and acting that constrain action and as constructs created and changed by those actors (Schmidt 2010). Nor are the older institutionalisms helpful in understanding how the federal system gives

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rise to a culture of ‘principled agents’: officials who act on the basis of principles and morals of public service and ‘protect the public’s money as if it were their own’ (DiIulio 1994, p. 281). Over the past decade, a burgeoning body of work in discursive institutionalism has illuminated and explained major processes of policy change. Several of these studies have looked at policies in a federal setting, including multi-​level governance studies of the Eurozone (Schmidt 2017) and EU trade policy (De Ville and Orbie 2014). However, there has been very little analysis of federalism itself through a discursive lens,2 and I have not identified any discursive institutionalist studies thus far of intergovernmental management. Accordingly, while my primary aim is to contribute to a better understanding of the practice of intergovernmental management, this chapter aims to extend a discursive institutionalist approach to an area to which it has hitherto not been widely applied. I undertook a series of semi-​structured, elite interviews, with the aim of getting to the heart of the ‘rules in use’ in intergovernmental management, the ‘distinctive ensemble of dos and don’ts that one learns on the ground’ (Elinor Ostrom, quoted in Lowndes and Pratchett 2005). Interviews were conducted with 42 senior public servants from the commonwealth, state and territory governments, ensuring comparisons could be made between those from larger and smaller subnational jurisdictions, and allowing me to test whether factors such as resourcing might differentiate the exercise of agency.3 I also wanted to explore whether there were jurisdiction-​specific cultures that informed individual strategic choices. A second criterion for selection related to whether the interviewee worked for a central or a line department. This distinction allowed me to explore issues such as whether officials in central agencies had greater scope for personal initiative because of the influence central agencies wield, and because they had access to jurisdiction-​wide perspectives and strategies. I was also interested in testing the extent to which officials in central agencies across the commonwealth–​state divide might make common cause against their respective colleagues in line departments (Botterill 2007; Harwood and Phillimore 2012; see Inwood et al. 2011 for the Canadian perspective on this issue).

2 Borriello’s and Crespy’s study (2015) of French and German approaches to EU integration is an interesting exception. 3 Around one third of the interviewees were either the head or deputy head of their organization.

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Findings and Analysis

3.1 The ‘Institutional Layer’ of Intergovernmental Management An initial empirical puzzle is the extent to which intergovernmental management is simply shaped and constrained by the formal and informal structures of federalism. I tested this issue by looking at the abolition in 2013 of a number of ministerial councils that supported coag, comparing the practice of intergovernmental management in the absence or continued existence of the council. The abolition formed a critical juncture in historical institutionalist terms:4 that is, a relatively short period of time during which actors face a broader than usual range of feasible options and consequently the probability that their choices from among these options will have a significant impact on subsequent outcomes (Cappocia and Kelemen 2007). How and why these choices were made tells us much about the role of individual agency in intergovernmental management practices, and its contribution to systemic change and resilience. On the one hand, a perceived effect of losing official council status is the loss of ‘gravitas’ it entails, meaning ‘profile and clout and the level of seniority and resourcing that goes along with the need to service a ministerial committee’, resulting in a shift from a structured agenda and process to ‘working politely across jurisdictional boundaries on things that are largely of a non-​threatening nature’ (interviewee: state line department). Specific policy areas interviewees nominated that had been affected by this loss of momentum included the listing processes for threatened species, the development of model occupational health and safety legislation, and housing policy.5 However, other officials (across the commonwealth–​state divide) felt that the abolition had changed little in practice in their policy fields. The formal abolition of the council was followed by its effective continuation as those ministers continued to meet, dealing with policies on agriculture and the environment, children, families and housing (Phillimore and Fenna 2017, p. 609). A number of officials commented on the opportunity to work more productively in the absence of the formal, commonwealth-​driven agendas at the ministerial councils. As a result, ‘they actually do a lot of work that doesn’t necessarily result in a big first ministers’ agreement’ (interviewee:  state line 4 Historical institutionalism is the primary methodology employed by federal dynamics theory (eg Broschek 2013). 5 Following abolition of the standing committee on community, housing and disability services, housing ministers did not meet until three years later in 2016 (Housing and Homelessness Ministers’ Meeting Communique, 31 Mar. 2016).

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department). Officials from smaller jurisdictions also felt that they had more of a role to play in the less formal arrangements, where there was less at stake and hence less domination by the bigger states. Individual agency comes to the fore in this environment; officials determined there was a need to replace the formal councils with other structures and took steps to do so. This is a particular example of what Jabko and Sheingate (2018, p. 13) refer to as ‘order preserving innovations’ where agency is exercised to maintain structures. In the environmental policy area, for example, interviewees described how they personally set up networks operating at all levels, both senior—​such as between the heads of the Environment Protection Authorities—​and among mid-​level regulators and technical specialists—​such as the contaminated environments network. Officials may also exercise such agency when the structure is in place, but does not provide sufficient support for what they perceive as a priority, such as the push by officials to elevate a low-​key network monitoring Indigenous sexual health into a group with ministerial and senior officials’ representation. Exercising agency to change or restore formal structures requires vision and commitment; it is a very particular form of agency, where substantial personal resources and organisational capital will have to be harnessed to restore the damaged institution. I also examined the negotiation of formal intergovernmental agreements in order to test how intergovernmental management is affected by and impacts on the formal and informal structures of federalism. Formal intergovernmental agreements set out objectives, outcomes, outputs and performance indicators, particularly for the transmission of funds between federal and state governments. These agreements also provide a major normative, aspirational setting for intergovernmental management. The governance of agreements is generally one of the key responsibilities in intergovernmental management of central agencies, who tend to have specialized and highly experienced units to deal with this matter, whereas policy areas in line departments only occasionally become involved in negotiating agreements. Two counter-​narratives are broadly discernible in the interviews, or two normative frameworks that govern negotiations. One is based on adversarial conflict and distrust, reflecting a rational-​choice type of calculus in seeking and achieving political and fiscal benefits; interests are perceived to trump principles. Many interviewees felt that individual states were making side deals with the commonwealth. Commonwealth officials contend that the states typically ‘cheat’ by cost-​shifting and failing to deliver on the terms of the transfer of federal money. State government officials, drawing on the tropes of coordinate federalism, emphasize the states’ drive for independence, within the constraints of fiscal federalism.

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118 Unikowski However, a strong counter-​narrative contends that negotiations are a more complex phenomenon than simply an alignment behind opposing sets of interests. Although central agencies tended to take a broader view that included systemic and national objectives, this was not always the case:  many interviewees from line departments articulated views that reflected this broader perspective: If we do a cunning funding deal with the commonwealth but at the end of the day the commonwealth ends up with a budget problem because health expenditure blows out and they can’t afford it, I’m not going to have a cunning funding deal for long. So we have to get a national interest outcome because if we don’t get a national interest outcome the brilliant deal we’ve got on paper will not be sustainable. (Interviewee: state central department) Such views inform policy brokering, exercised in problem-​solving, mediation and finding a way to resolve sticking points, and frequently described as a search for national or systemic outcomes as distinct from narrower organizational or jurisdictional interests. The conditions for the exercise of such brokering, the manner in which it is exercised and the outcomes from such endeavours are important indicators of federal dynamic trajectories at any point in time. Officials tended to describe their agency to broker policy as bounded, first, by formal rules (or ‘rules-​in-​form’ to use the institutionalist terminology), such as those requiring clarity in agreements on when payments can be made to a state, in order to avoid a breach of the constitutional clause governing appropriations. Second, agency is bounded by mandate, bestowed normatively by the policy outcomes being sought on behalf of the political executive, and/​or more generally by the policy settings established by their jurisdiction’s political executive, central agencies or ‘running instructions’ set by senior executives in their organization. For example, officials in one jurisdiction involved in negotiating the health funding agreement agreed at the April 2016 coag meeting decided to depart from the stance taken by other jurisdictions in seeking a restoration of previous levels of funding. We took the approach of saying, ‘Okay, we’re going to go with a principles-​ based approach acknowledging that the commonwealth’s fiscal position is not what it was previously. Therefore, there’s going to have to be a bit of give and take.’ Basically, we got the authority to go out and be an honest broker. (Interviewee: state central department)

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In this example, there is a political mandate from the premier to adopt this position; a jurisdictional mandate, via the longstanding tradition in this jurisdiction of working cooperatively with the commonwealth on national reforms; and an organizational mandate, based on the expertise this official had developed that allowed senior officers to be ‘comfortable for me to play quite a front seat role on that’. Finally, there was a policy-​specific strategy: this approach did not apply in other policy areas, such as in education, for example, where a more adversarial stance was adopted. Once these boundaries are set, it becomes possible for more junior officers to exercise discretion on matters such as performance measurement and payment design. Indeed, a degree of autonomy is built into the negotiation process to avoid the need to constantly seek approval for minor points. However, brokerage is not without its risks. Politicians may hold their own officials responsible if they feel their interests, political or jurisdictional, have been undermined. 3.2 The ‘Ideational Layer’ of Intergovernmental Management Some researchers have drawn attention to the interaction between the ideational and institutional elements of federal systems as a source of change (for example, Béland and Lecours 2011; Broschek 2011). Burgess (1993, p. 104) similarly argues that it is the ‘values, attitudes, beliefs and interests that combine to furnish action with purpose and commitment.’ Accordingly, I explored the motivations for strategies adopted by officials that took them beyond those prescribed by established political and jurisdictional norms. Such motivations are primarily derived from the theoretical distinction between the political and bureaucratic dimensions of federalism that I have alluded to. This distinction is a daily operational parameter for those working on intergovernmental management. They describe two slightly different aspects of the federal bureaucracy’s distinctiveness. One is normative, emphasizing the elevation of the bureaucratic process out of the political mire, and placing this work in the context of a broader Westminster set of public service values. The second is descriptive, rather than normative, seeing the bureaucratic domain as a primarily processual, or instrumental, separation of the process: [T]‌his is one thing officials can do really well … You can have a private conversation or an informal conversation where you talk about what really are the issues around this matter, what would a good solution look like, what are we trying to achieve and then what are the policy or the financial or the other impediments and where would you find a way of

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120 Unikowski dealing with them. You can have that sort of conversation without committing your government or without letting your government down in a negotiation. (Interviewee: commonwealth line department) A large part of the craft of intergovernmental management is about managing (and exploiting) the tension between the political and bureaucratic domains of federalism alluded to above. There is a strong self-​identification by officials as ‘technocratic trustees’, in Hood and Lodge’s term (2006, p. 39), that reflects a role for public servants as ‘impartial experts or technocrats making decisions on behalf of society as a whole rather than according to the interest of any single lobby group’;6 or, in this case, as the technocrats in charge of making sure the federal system operates effectively rather than in the interests of partisan politics. This was a perspective common to all intergovernmental managers, whether in the commonwealth or states, and whether they were in central or in line departments. Not surprisingly, then, government and ministerial policy directions were frequently cited as a constraint on policy development and negotiation. What is surprising, however, is the extent to which, within the Westminster convention of serving the minister, officials were prepared to exercise their agency in using that bureaucratic space to pursue public-​value outcomes they perceived as distinct from the goals of their political executives. This might occur, for example, through the negotiating process: I could hear the junior staff behind me flicking vigorously through the negotiating mandate and I  heard, ‘He does know we’ve got red lines, doesn’t he?’. I  was sufficiently confident that this was in the national interest if we got that outcome. Did it fit within the negotiating brief? Well, probably not. (Interviewee: state central department) Or through drafting processes: I’m a good public lawyer and I  knew what I  was doing and I  inserted provisions in that bill that I’m not sure were understood above me, and I didn’t necessarily bring them to the attention of those above me because I knew that they would be negotiated away. (Interviewee: commonwealth line department) 6 Hood and Lodge associate technocratic trustees with the German bureaucratic tradition; however, it is interesting to consider whether the traces of it I detect here reflect both the German and Australian federal traditions.

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Or through ongoing, de-​politicized communications among officials: We’d have outcomes from the intergovernmental meeting, but we didn’t report the outcomes to the Treasurer. I  can’t recall ever a minute or a brief going up to the Treasurer. I can remember having a few chats about some of the discussions with his chief of staff, but there was no formal brief. Treasurers of the day said, ‘Okay, that’s great. You guys are getting together and having a chat. That’s fine.’ (Interviewee:  commonwealth central department) One official I  interviewed found a particularly useful (and very Australian!) way of characterizing the boundaries on such agency as ‘swimming between the flags’, the metaphor implying that as long as officials negotiated or operated within boundaries set by the political executive or senior departmental officials they had a degree of discretion as to means and ends. Many interviewees used this metaphor to explore how such agency worked: Part of the reason why I’ve been able to make such a big impact in this role is because the flags are way left of centre, whereas in previous jobs I’ve had to do approach every issue or job within a much narrower boundary. It’s understanding the parameters of what you’re working in as defined by the relationships as opposed to defined by the constraints put on you by legislation or a funding envelope or an existing engagement structure. (Interviewee: commonwealth line department) ‘Swimming between the flags’, in terms of adopting a negotiating strategy or advising on one, is not a passive exercise; determining where the ‘flags’ should be set was a frequent exercise in personal agency, built up over time, to develop a good understanding of why other jurisdictions are likely to adopt a particular position (much of this information is, as I have noted, shared informally beforehand). Many officials commented on the importance of trust as the sine qua non for carrying out their intergovernmental functions. Although inter-​and intra-​ jurisdictional cooperation is affected by many other political and institutional factors beyond the control of the individuals concerned, developing the means and harnessing the opportunities to share information while bracketing political and organizational interests was something they saw as central to the success of their work. When I asked the interviewees to provide examples of where or how they had made a personal impact—​where they could see the ‘footprints in the sand behind them’, as it were—​many of them pointed to

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122 Unikowski this interpersonal skill and how they had used it, both within and between jurisdictions. High rates of turnover among one’s colleagues were identified by many officials as a barrier to the development of such trust. Turnover in personnel not only disrupts the establishment of personal relationships generally, but also makes it more difficult for the bureaucracy to provide the ‘corporate memory’ in support of the ministerial councils, introducing the risk that established interpretation of earlier decisions taken in those forums might be abruptly revised by ‘newcomers’. Trust requires a shared expertise based on longstanding experience in a particular policy field. The interviews explored one of Schmidt’s main contentions about discursive institutionalism: how discourse as content and process operates at three levels of generality and influence, which she categorizes as ‘policies, programs, and philosophies’ (Schmidt 2008, p. 306). As potential areas for the exercise of agency, policy ideas are more labile, or at least open to change, than programmatic ideas, and both policy and program ideas change more rapidly than the more fundamental philosophies from which they emerge (Schmidt 2011). Differentiating between these discursive forms and levels allows for different rates of change to be recognized, and suggests at least the possibility of a systemic capability for incremental improvement and individual creativity, even if overall change in the federal system is glacial and highly exposed to political interests and dynamics. One of the more surprising findings was the clarity with which a set of distinct ‘discursive styles’ emerged from my analysis. These discursive styles reflect particular values individual officials identify with, which help them to position themselves in the federal system, in terms of how they describe their personal goals and strategies; the issues which they identify as being most important to them in their work; how they understand the salient problems in intergovernmental management they are dealing with; and how they select and operationalize the solutions available to them. Such discursive alignment by individual officials contributes to the overall stability and transmission of the system, reflecting the notion of discourse as order-​sustaining: Cultural systems of knowledge, values, and practices, just like systems of relations between differently located social groups, are recurrently reproduced far more often than they are transformed; they must be considered as a form of social structure, a pattern of social life that tends to remain stable over time. Hays 1994, p. 69

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Consequently, officials exercise agency to shore up or support the system, as well as to change it; as I will discuss further below, they become change agents by adopting and applying a different discourse from the dominant one in the particular organization, network, policy field, and so on in which they are working. I should emphasize that, although most interviewees displayed a dominant discursive style, no interviewee adopted any one value set exclusively; with some exceptions, their discussion tended to move between the dominant and at least one other style, and I would characterize the differences between the styles as a matter of shading rather than hard borders. Nevertheless, in terms of the frequency and coherence of the key words and ideas they expressed, six discursive styles were apparent. 3.2.1 Partisans The key focus for this discourse is on the way the federal system is an arena for playing out different interests in the federal system, particularly where there are clashes and disagreements between jurisdictions and/​or organizations. Intergovernmental management is very much a zero-​sum game in terms of resources and interests; ‘holding the line’ is frequently mentioned in terms of how tied and untied funding is allocated or performance reporting agreed. The factors that are important to us are getting as much money out of the commonwealth as possible; policy autonomy, which is us as a state deciding what’s the best way to achieve the investment outcome; concepts around state sovereignty as well which play out in how much reporting we’re going to do. (Interviewee: state line department) This discursive style reflects the concerns of rational choice theory, with its emphasis on how individual strategic choices are constrained by an exogenous set of preferences and interests. Not surprisingly, then, the officials coded against this style nominated noticeably fewer instances of personal agency and impact than those coded against the other styles. The venues and processes of negotiation and bargaining are at the forefront of how the federal system is perceived through this discursive lens and form the core concerns in the practice of intergovernmental management by this group of officials: I’ll call a meeting of my colleagues in other states and territories and we’ll have a discussion, so what do we need to do to get across the line to get a shared view, because the commonwealth, they’ve got tried and true tricks,

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124 Unikowski like trying to divide and conquer and do other things. (Interviewee: state line department) As an example of how change occurs through the adoption of a counter-​style, one senior state official noted the shift when a commonwealth official introduced the policy-​driver perspective into a context where the partisan style had been prevailing: He had the benefit of not being burdened with much commonwealth-​ state experience and he said to me, “Look, I don’t even have any attitudes on many of these things.”. In fact, that was sort of disarming but quite helpful because it meant that we could have a collective conversation which wasn’t just rehearsing old positions, fights and battles. It was, ‘Let’s go on a collective journey together of understanding what could be mutually beneficial. Let’s help ourselves out.’ (Interviewee: state central department) 3.2.2 Networkers This is, in a way, the counter-​style to the partisan’s clash of interests. Here the practice of intergovernmental management is seen largely as a process of building and maintaining formal and informal interpersonal networks and relationships: structures are a tool. They’re necessary but not sufficient. Even if your structures aren’t great, if you have the right players around the room and the right relationships and the right windows of political opportunity to do various things, if you have those ingredients—​that actually is more important than whether you have the right structures in place. Structures only get you so far. (Interviewee: state central department) Unlike the partisan’s emphasis on negotiation and bargaining, this value set is focused on interpersonal affect, relationships and trust. The networker dislikes the conflicts and hierarchies that other types welcome, or at least are prepared to adopt for their purposes. Agency, rather, is exercised with a particular focus on peer to peer, ‘just pick up the phone’ horizontal inter-​jurisdictional relationships. The introduction of a network-​building discourse to an organization or policy area where it is not widely supported often has to overcome considerable organizational opposition, and consequently can require significant personal resilience and effort.

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I had to argue quite strongly for about eighteen months to two years to my manager that this network was still worthwhile, and that it was bringing the organisation and the unit that I’m in benefit. He could see that it was bringing the organisation benefit, but he didn’t share the same view that we should be running it anymore. And he also wanted to know where the authority for it was coming now that that standing committee had disbanded. (Interviewee: state line department) 3.2.3 Agreement Makers This discursive style focuses on the agreements for effecting conditional and unconditional intergovernmental transfers between the commonwealth and state governments. Not surprisingly, in view of their specialized role in administering the fiscal framework, Treasury officials at the commonwealth and state levels most commonly expressed this set of values. The intergovernmental management practices characterized by this style emphasize ‘guardianship’ and the provision of guidance to other organizations in the federal system. A key difference between this style and the partisan style lies in its downplaying of the importance of ‘sides’: what is important is ensuring that the principles and aspirations embodied in formal agreements are upheld. An earlier coag meeting had agreed and the Prime Minister had agreed that there would be a national partnership7 on [a specific policy] by a certain date. So I was determined to try and make that happen. The Prime Minister had said this and made this commitment, and I felt that it was important that that commitment be honoured. (Interviewee: commonwealth line department). Accordingly, agency was often described in instrumental terms, as applying a mixture of art and science in the design of agreements, or ‘problem solving in a way that suits everybody’. Of the six styles, this was the one most clearly linked to a particular group of tasks in intergovernmental management and arising from the discourses at work in that community; in this case, the central agencies responsible for agreement negotiations and maintenance.

7 ‘National partnerships’ in the Australian federation are formal federal–​state agreements on the delivery of specified projects and reforms, and are generally accompanied by tied grants.

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126 Unikowski When I first started doing intergov there was this whole concept of collaborative federalism being developed and let’s have a national reform agenda. We set up the intergovernmental agreement on federal financial relations. We were going to do big reform in important areas, and then the commonwealth was going to invest in reform through national partnerships as well as provide stable funding. We were going to agree to report on things through coag Reform Council. Like, it was going to be great (Interviewee: state line department) 3.2.4 Processors Unlike the ‘policy drivers’ discussed below, this discursive style focuses on means, rather than ends. The assumption here is that good processes allow the outcomes, which are vague and unpredictable, to look after themselves. You need to manage processes as well. You need to be quite skilled. It’s kind of like parliamentary process. There’s people who are very skilled in thinking, ‘If we take this process step to navigate it through the coag-​ type system, we’re more likely to get this outcome or that outcome.’ (Interviewee: state central department) Good processes are more important than the good relationships valued by networkers. The structures in which process-​focused change agents operate tend to be the departments and agencies. Change agents personally intervene to fix problems, to test positions beforehand, to ensure there are no surprises for the political leaders. Highlighting process tends to downplay the role of personal agency, which is exercised in the context of the efficiency and integrity of processes, rather than the attainment of outcomes: actual ministerial meetings themselves are rituals. Everyone knows what’s going to happen and everyone knows what their position has been. That’s all been negotiated beforehand. I’ve done a good job if I have taken steps to ensure that there are no surprises for either, say, my secretary or my minister, and I’ve taken steps to either negotiate to get part of a consensus ourselves or to move our positioning to be part of consensus or have gathered the intel. (Interviewee: state line department) 3.2.5 Policy Drivers The management practices and the personal agency this style brings to the fore are about breaking through the constraints imposed by resources, frameworks and organizational boundaries. These change agents are not just boundary

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spanners, they’re boundary smashers; what the processors see as important structural devices, they see as obstacles which they deliberately set out to remove or demolish. There is an impatience here with the processes and formalities that processors consider vital to a successful outcome. Last year [the officials’ committee] was going through the various elements of federation and we were getting to, ‘What’s next? Shall we have a session on health? We’ll get someone to draft a paper on health.’ I said, ‘No, let’s not do that. I wish you wouldn’t do that. Why don’t we get just someone to give us a presentation on the issues of health and we can discuss it?’ In previous commonwealth–​state negotiations then there would probably have been a huge discussion about, ‘Well, who should give the presentation? If it’s from a state will that skew it and whatever.’ (Interviewee: state central department) There was a clear tendency for department heads to display this style more often than those below them in the hierarchy, giving rise to the proposition that change agents at the head of organizations are more likely to derive their motivation from specific policy goals, whereas those lower down the organization are more likely to base their change agency on systemic and perhaps more widely and structurally embedded frameworks. The structures in which policy drivers operate tend to be the working groups that carry out the work to support the higher-​level formal councils. As a result, this group displayed the most distinct personal agency. I’ll be seeing the Deputy Secretary [of the commonwealth department] because I could go to the secretary but I won’t get the outcome I want. I want change. The person who actually I know who owns the issue is the Deputy Secretary. And it won’t be on record; we’re going to have a conversation about whether we can do this differently. (Interviewee: state line department) 3.2.6 Knowledge Workers This final discursive style is perhaps less of a stand-​alone style in its own right than an instrumental set of norms and values drawn on in support of all the other styles.8 However, given that role, and because its content was sufficiently

8 In terms of coding frequency, interviewees tended to adopt one of the other styles as their dominant style, with this as their second-​most coded style.

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128 Unikowski coherent and distinct from the other styles, I  consider it warrants separate discussion. This style prioritizes data and information as the currency of intergovernmental collaboration, with policy evidence as the outcome. Here, the discourse is about the value of knowledge, as an outcome of data and information processes and flows; for example, many officials commented on the importance of data and information in helping to frame or structure problems and issues, provide opportunities for policy learning and transfer between jurisdictions, or to support the work of federal councils and working groups. [Senior official in another state] is sending her crew down to look at what we’re doing around family violence. And I’m sending my crew up to her state to look at what they’re doing on supporting kids in care quite differently. So we have an agreement that we’re going to share our knowledge and see what our states can pick up from each other’s reforms. That happens very frequently. (Interviewee: state central department) The structures in which knowledge workers operate tend to be epistemic communities, meetings of experts, and so on. Agency in this style is frequently exercised through the establishment or conduct of informal cross-​jurisdictional working groups to facilitate policy projects and information gathering. 4

Discussion

Federal structures are more than just a set of constitutional, legal and political structures and processes that determine the interests and motives of the political and bureaucratic actors within them. The formal structures of the federation, consisting in particular of ministerial councils and their supporting working groups, intergovernmental agreements and networks form a necessary platform and venue for the work of intergovernmental managers; however, they do not, in themselves, provide sufficient motivation, guidance and legitimation, particularly for change agents and policy brokers. Federalism is, in Hay’s (2011, p. 67) terms, an ‘irredeemably ideational’ environment in which officials play an active role as ‘rule takers’, but also rule makers, breakers and shapers. The federal system as a ‘discursive space’ (Hardy and Maguire 2010, p. 1367) is characterized by active contestation between multiple narratives and discourses. These discursive spaces may be temporally limited, displayed in in short bursts of activity at formal dinners and gatherings of officials and

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politicians, or in the course of projects commissioned by ministerial councils; or they may become embodied in longer-​lasting structures and processes such as networks, the support structures for formal intergovernmental agreements and, of course, the policies that are produced through the federal system. Much of the practice of intergovernmental management is shaped by having to navigate between the strategies prescribed by competing roles, rather than simply adopting one or the other in an instrumental way. Intergovernmental actors understand their roles and are guided by norms and values in ways that are not uni-​dimensional but require choices to be made among them (such choices themselves representing a form of agency). The discursive styles described here illustrate how officials consciously draw on and choose from a range of discursive sources in the federal system to find the best solution to the particular problem at hand. These sources include the values, perspectives and narratives embedded in organizational and jurisdictional cultures; the formal and informal elements of the federal system that embody those narratives (such as formal agreements and communiqués, longstanding processes for committee work or informal networks and the conventions that underpin such work); and specific policies and programs that are accompanied by their own narratives and historical settings. This suggests that we need to adopt a more detailed and nuanced understanding of how intergovernmental management contributes to change and stability in the Australian federal system. The process of reaching ‘up’ for a guiding narrative and applying it to a policy canvas precludes a simple answer to the role officials play in providing both stability and opportunities for reform. The agency they employ clearly means different things according to the context and problem the individual official confronts, and the practices he or she adopts in response. Some limitations on the current study suggest directions for further work. It would be interesting to know, for example, why and how certain policies have been shaped by their discursive context,9 or whether discursive agency works differently in different federal policy settings, or even in other federations. It may be the case, for example, that networkers tend to appear more frequently in a regulatory policy environment because of the regulatory agencies’ greater independence from the centre and the need for policy harmonization to avoid ‘shopping around’ by the regulated community.

9 For example, see Selsky, Spicer and Teicher 2003 for a discussion of discourse in the context of industrial relations, and Mason and Moran 2018 for a comparative discursive analysis of social enterprise in the UK and Australia.

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Conclusion

These findings suggest that the application of a discursive institutionalist framework provides a useful addition to earlier functionalist explanations of federalism, illuminating the ‘creative relationship with an institutional environment’ (Hay and Wincott 1998, p. 955) in which policies are developed and implemented by officials adjusting to their formal and informal environment with strategies that draw from the relevant policy-​specific and federal discourses and, in turn, feed back into those discourses. Conceptualizing federalism as a set of ‘fashioning, identifying and strategising’ ideas (Hay 2011, p. 5) allows us to understand the role played by ideas and discourses as enablers of change, even in an environment of political stasis or equilibrium, as we appear to be at present in the Australian federation. My research suggests that the practices of intergovernmental management are neither frozen into stasis by path dependency, nor are they rendered irrelevant and ineffective by exogenous interest equilibria. Rather, new avenues for change may be opened up by making the practice of intergovernmental management conscious and reflective (Schön 1983) and by changing the discourses themselves; for example, by opening up new strategic possibilities through deliberately fashioning new narratives around the importance of interpersonal networks and information exchange. Finally, this research suggests intergovernmental management should become a focus for research and teaching in public policy, as a distinct class of important and influential bureaucratic work that is learned and practised over many years. Such longevity contributes to the relationships between officials, the depth of their technical expertise and their capacity for innovation. It is only appropriate that we foster that commitment, and recognize the contribution of those officials who are, indeed, ‘swimming outside the flags’.

References

Abbott, A. (2014). Sir Henry Parkes commemorative dinner, Tenterfield, October. . Béland, D. and A. Lecours (2011). The ideational dimension of federalism:  the ‘Australian model’ and the politics of equalisation in Canada. Australian Journal of Political Science 46(2): 199–​212. Borriello, A. and A. Crespy (2015). How to not speak the ‘F-​word’: federalism between mirage and imperative in the euro crisis. European Journal of Political Research 543: 502–​524. Tracy B. Fenwick and Andrew C. Banfield - 978-90-04-44675-5

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Botterill, L. C. (2007). Managing intergovernmental relations in Australia:  the case of agricultural policy cooperation. Australian Journal of Public Administration 662: 186–​197. Benz, A. and J. Broschek (eds) (2013). Federal Dynamics: Continuity, Change, and the Varieties of Federalism. Oxford: Oxford University Press. Broschek, J. (2011). Conceptualizing and theorizing constitutional change in federal systems:  insights from historical institutionalism. Regional and Federal Studies 21(4–​5): 539–​559. Broschek, J. (2013). Between path dependence and gradual change:  historical institutionalism and the study of federal dynamics, in A. Benz and J. Broschek (eds), Federal Dynamics: Continuity, Change, and the Varieties of Federalism. Oxford: Oxford University Press. Brown, A. J. (2014). Australian Constitutional Values Survey 2014. Centre for Governance and Public Policy, Griffith University. Burgess, M. (1993) ‘Federalism as Political Ideology: Interests, Benefits and Beneficiaries in Federalism and Federation’ in M. Burgess & A. Gagnon (Eds.), in Comparative Federalism and Federation:  Competing traditions and future directions. Hemel Hempstead: Harvester Wheatsheaf: 102–​114. Burgess, M. (2012). In Search of the Federal Spirit:  New Theoretical and Empirical Perspectives in Comparative Federalism. Oxford: Oxford University Press. Cappocia, G. and R. Kelemen. (2007). The study of critical junctures:  narrative and counterfactuals in institutionalism. World Politics 59: 341–​369. Cho, C.-​L. and D. S. Wright (2004). The devolution revolution in intergovernmental relations in the 1990s: changes in cooperative and coercive state–​national relations as perceived by state administrators. Journal of Public Administration Research and Theory 144: 447–​468. Conlan, T. J. and P. L. Posner (2008). Introduction: intergovernmental management and the challenges ahead, in T. J. Conlan and P. L. Posner (eds), Intergovernmental Management for the 21st Century. Washington, DC:  Brookings Institution Press: 1–​10. De Ville, F. and J. Orbie (2014), The European commission’s neoliberal trade discourse since the crisis:  legitimizing continuity through subtle discursive change. British Journal of Politics and International Relations 161:149–​167. DiIulio, J. D. (1994). Principled agents:  the cultural bases of behavior in a federal government bureaucracy. Journal of Public Administration Research and Theory 4(3): 277–​318. Hardy, C. and S. Maguire (2010). Discourse, field-​configuring events, and change in organizations and institutional fields:  narratives of DDT and the Stockholm Convention. Academy of Management Journal 536: 1365–​1392. Harwood, J. and J. Phillimore (2012). The Effects of coag’s National Reform Agenda on Central Agencies, ANZSOG research report. Melbourne: anzsog. Tracy B. Fenwick and Andrew C. Banfield - 978-90-04-44675-5

132 Unikowski Hay, C. (2011). Ideas and the construction of interests, in D. Beland and R. Cox (eds), Ideas and Politics in Social Science Research. Oxford: Oxford University Press: 65–​82. Hay, C. and Wincott, D. (1998) ‘Structure, Agency and Historical Institutionalism’. Political Studies, 46:(5): 951–​957. Hays, S. (1994). Structure and agency and the sticky problem of culture. Sociological Theory 12(1): 57–​72. Hollander, R. and H. Patapan (2007). Pragmatic federalism: Australian federalism from Hawke to Howard. Australian Journal of Public Administration 663: 280–​297. Hood, C. and M. Lodge (2006). The Politics of Public Service Bargains:  Reward, Competency, Loyalty and Blame. Oxford: Oxford University Press. Inwood, G. J., C. Johns and P. L. O’Reilly (2011). Intergovernmental Policy Capacity in Canada:  Inside the Worlds of Finance, Environment, Trade, and Health. Montreal: McGill-​Queen’s University Press. Jabko, N. and A. Sheingate (2018). Practices of dynamic order. Perspectives on Politics 162: 312–​327. Jackson, G. (2010). ‘Actors and institutions’, in G. Morgan, JL. Campbell, C. Crouch, O.K. Pedersen, and R. Whitley (eds), The Oxford Handbook of Comparative Institutional Analysis Oxford: Oxford University Press: 63:86. Lowndes, V. and L. Pratchett (2005). How ‘rules-​in-​use’ enable, or constrain, local political participation. Paper presented at Workshop 19, ecpr Joint Sessions, Granada. Marando, V. and P. Florestano (1990). Intergovernmental management: the state of the discipline, in N. Lynn and A. Wildavsky (eds), Public Administration: The State of the Discipline. Chatham: Chatham House Publishers: 287–​317. Mason, C. and M. Moran (2018). Social enterprise and policy discourse: a comparative analysis of the United Kingdom and Australia. Policy and Politics, 46 (4): 607–​626. O’Toole, L. J. (1988). Strategies for intergovernmental management:  implementing programs in interorganizational networks. International Journal of Public Administration 114: 417–​441. Phillimore, J. and A. Fenna (2017). Intergovernmental councils and centralization in Australian federalism. Regional and Federal Studies 27(5): 597–​621. Phillimore, J. and J. Harwood (2015). Intergovernmental relations in australia: increasing engagement within a centralizing dynamic, in J. Poirier, C. Saunders and J. Kincaid (eds), Intergovernmental Relations in Federal Systems: Comparative Structures and Dynamics. Forum of Federations/​Forum des féderations, International Association of Centers for Federal Studies, Don Mills Ontario: Oxford University Press: 42–​80. Schmidt, V. (2008). Discursive institutionalism:  the explanatory power of ideas and discourse. Annual Review of Political Science 111: 303–​326. Schmidt, V. (2010). Taking ideas and discourse seriously: explaining change through discursive institutionalism as the fourth ‘new institutionalism’. European Political Science Review 21: 1–​25.

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Schmidt, V. (2011). Speaking of change: why discourse is key to the dynamics of policy transformation. Critical Policy Studies 52: 106–​126. Schmidt, V. (2017). Arguing about the Eurozone crisis :  a discursive institutionalist analysis. Critical Policy Studies 74: 455–​462. Schön, D. (1983). The Reflective Practitioner. New York: Basic Books. Selsky, J. W., A. Spicer and J. Teicher (2003) ‘Totally un-​Australian!’: discursive and institutional interplay in the Melbourne port dispute of 1997–​98. Journal of Management Studies 407: 1729–​1760. Smith, R. and A. Brown (2017). Beyond ‘sovereign spheres’: public officials’ views on allocating policy responsibilities in the Australian federation, in M. Bruerton, T. Arklay, R. Hollander and R. Levy (eds), A People’s Federation. Sydney: Federation Press. Thelen, K. and S. Karcher (2013). Resilience and change in federal institutions: the case of the German Federal Council, in A. Benz and J. Broschek (eds), Federal Dynamics: Continuity, Change, and the Varieties of Federalism. Oxford: Oxford University Press. Wright, D. and D. Krane (1998) Intergovernmental management, in J. Shafritz (ed.), The International Enclopedia of Public Policy and Administration. Boulder: Westview Press: 1162–​1168. Yeatman, A. (1991). Tasks for intergovernmental management, in J. Uhr (ed.), Program Evaluation. Canberra: Federalism Research Centre, anu.

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pa rt 3 Challenges to the Autonomy of Federal Sub-​units: The Policy Problem

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Australian Health-​Care Federalism Beyond the Logic of Autonomy

Alan Fenna, John Phillimore and Vijaya Ramamurthy As in other federations, health care is a central concern of intergovernmental relations in Australia, a very large item in government budgets, and a major service delivery responsibility of the states. And as Greer (2018, p. 238) emphasizes, ‘understanding territorial politics means understanding the politics of managing large public sector organizations such as health systems’. For a long time, health care was a major area of state autonomy in Australian federalism. However, that changed in the last decades of the 20th century as the Commonwealth government assumed a progressively greater role in funding and regulating the health system. As a consequence, we must look ‘beyond autonomy’ to seek other ways of understanding the logic of such developments in Australian federalism as in other federations. In this case, current practices involve the continuing existence of a vertical division of roles and responsibilities, acknowledging the several different dimensions of health-​ care delivery, combined with an emerging structure of complex collaborative intergovernmentalism. As Duckett (2015) has written, neither complete centralization, nor restoration of the status quo ante, are likely or plausible; ‘[t]‌he real action in terms of reforming federalism in health care has been on improving coordination.’ In this chapter, we outline the general characteristics of health care and federalism, before turning to look at Australia, which has undergone a significant remodelling in health governance over the past decade. In doing so, we also move from the macro to the meso or even micro, looking in particular at the concerted attempts by both levels of government to increase local responsiveness and improve patient outcomes, while also promoting greater system integration and cooperation between the states and the Commonwealth. While the process and substantive outcomes of these efforts are still being played out, the trend of growing joint governance, rather than preservation of state autonomy, appears unstoppable.

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Federalism and Health Care

Health care is a major and challenging policy responsibililty for modern governments, and even more so when those inherent challenges are exacerbated by the complications of divided jurisdiction in a federal system. This is particularly the case for first-​generation federations, which have had to adapt to fundamental changes in the role of government and the dimensions of many policy domains that had originally been left with the constituent units. 1.1 Reversal of Roles The story of health care is the story of Australian federalism more broadly, where a system designed to be decentralized and ‘co-​ordinate’ has experienced great centralization and developed extensive de facto concurrency (Fenna 2019). Likewise, it reflects the realities of federalism in general, where education, health and welfare were typically left to the constituent units in original designs. This was because, in an earlier age, these functions were often vehicles for expression of local socio-​cultural autonomy, their consequences were overwhelmingly local rather than national, and they did not interfere in the development of national economic and strategic union. Among other things, then, what Olson (1969) called ‘the principle of fiscal equivalence’ made health and social policy logically a local responsibility. These realities have been reversed in most federations, including Australia, and, particularly with the mid-​ century emergence of the redistributive Keynesian welfare state, responsibility for these functions has flowed upward. According to Peterson (1995), this fundamental shift in the functional division of powers in federal systems leaves constituent units with a strong role to play in underwriting local economic development instead. What this does not acknowledge is the extent to which service delivery in the areas of education, health and welfare has nonetheless remained a primary responsibility of constituent units, a dominant component of their overall functions, and important ballast for what remains of their autonomous status. Thus, it has been anything but a clean reversal of responsibilities. In Australia, for example, the Commonwealth has assumed significant and often directive policy roles in traditional state policy domains without taking on the associated responsibilities for implementation and administration. Among other consequences, this has placed a premium on intergovernmentalism that was never originally imagined. The epitome of this new cooperative, and sometimes collaborative, federalism was the formalization of peak intergovernmental relations as the grandly titled Council of Australian Governments (coag) in the early 1990s (Painter 1998; Phillimore and Fenna 2017).

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1.2 Common Trends, Different Patterns A scan of health-​care arrangements in federal systems shows three things immediately. First is the general trend over the past century to centralization (Banting and Corbett 2002, p. 30). Second is the great diversity in the way that has happened and in the resulting patterns of divided and shared responsibility and program design. Third is that, as with so many policy fields, health care has a range of different components with varying characteristics as far as allocative logic is concerned. These include funding, policy, regulation and service delivery. With regard to the first two of these observations, the comparison between Australia and Canada is instructive. Both federations experienced a transformative centralization of their health systems in the second half of the 20th century with the introduction of universalistic public health insurance systems. In the Canadian case, this represented a major deviation from the North American patterns prevailing south of the border (Boychuk 2008; Maioni 1998). In Canada the federal government was instrumental in expanding Medicare across the country in the 1960s; in Australia the Commonwealth introduced Medicare in the early 1980s, following a short-​lived attempt a decade earlier. However, centralization took two very different forms in the two countries. In the Canadian case, the provinces retained full management responsibility for their respective systems, provided they complied with the basic design requirements stipulated by the federal government. These five principles, the most important of which was the requirement for true ‘universality’, whereby no charges to the patient are permitted for listed medical treatments, were eventually given statutory form in the Canada Health Act 1984. In the Australian case, centralization meant a much more qualified universalism, since a parallel private system was retained at the same time as a much stronger element of central government involvement. The Commonwealth assumed responsibility for funding part of the system—​primary care—​while the states were left with responsibility for managing their respective hospital systems, but were substantially dependent on the Commonwealth for necessary funding. The result was quite different systems, with the Canadian provinces retaining considerably greater autonomy, so much so that the Canadian health system is now one of the most decentralized (Banting and Corbett 2002, p. 14), while the Australian system is more centralized, yet less coherent and more intergovernmentally entangled. In Canada, provincial autonomy has increased in recent years as the federal government has relegated itself to a more passive role (Graefe and Bourns 2009; Marchildon 2018, p. 63). The differences between these two systems appear to be emblematic of a diversity

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across not only federal but also unitary systems in how they structure their health-​care systems (Palley and Fierlbeck 2015). 1.3 What Use Is Federalism in Health Care? Duckett (2015) has argued that while there is merit to the idea that federalism provides certain benefits, among them scope for policy experimentation and learning, there is little evidence in the Australian health system of this being the case. Both activity-​based funding of hospital treatments and devolved governance were first introduced in Victoria, but uptake by other states remained patchy for many years, at least until these initiatives were extended nationally under Commonwealth auspices. By contrast, the Canadian case provides one of the most clear and celebrated examples of laboratory federalism at work in health care:  the pioneering and instigating role Saskatchewan played in the introduction of Medicare and its adoption nationally (Banting 2005, pp. 112–​13; Gray 1991). Whether the experience since then has provided further evidence of the value of traditional policy autonomy is, however, another question. Best known is the introduction in Québec of the network of clsc s—​centre local de services communautaires (Pineault, Lamarche, Champagne et  al. 1993). However, Québec is a distinct society within Canadian federalism and its innovations have not been adopted in the rest of Canada. Fierlbeck and Palley (2015a) conclude from their comparative study that while some experimentation does occur, there has not been a commensurate degree of learning. Arguments have been made for more licence to experiment in the Canadian Medicare system; however, these are arguments for a relaxing of the defining features of Medicare, allowing experimentation of a free-​market nature (Boessenkool 2013). In addition, there is the question of whether federalism’s benefits are sufficient to outweigh its disabilities. Fierlbeck and Palley (2015b; also Haardt 2013a, 2013b) enjoin us not to underestimate those disabilities. In their view, any but the largest jurisdictions are unlikely to have the scale, resources and expertise to manage a health system well. 2

Australia’s Health-​Care System

As indicated above, health care epitomizes the overall trajectory of Australian federalism and indeed the trajectory of federalism more universally (Dardanelli, Kincaid, Fenna et al. 2019). At Federation, it was implicitly made an exclusive power and responsibility of the states. The only related authority granted to the Commonwealth in the Australian Constitution was that over

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quarantine (s.51ix). By the late 20th century, however, the Commonwealth had come to play the dominant funding and policy-​making role in the field. That role was reflected by the success of the Labor Party, after much resistance, in introducing a form of universal public health care—​abortively first in the form of Medibank, 1975, and then more lastingly in the form of Medicare, 1984 (Gray 1991). This was facilitated constitutionally by the 1946 social services amendment giving the Commonwealth authority to legislate, for, inter alia, ‘the provision of … pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorise any form of civil conscription)’. However, it was the Commonwealth’s financial power that was crucial to the development of a national health-​care system. Ever since the 1942 wartime takeover of the income tax system, the Commonwealth has controlled revenues far in excess of its allocated tasks and a high-​level of vertical fiscal imbalance has prevailed. Increasingly the Commonwealth took advantage of its surplus revenues to direct state activities through conditional, or ‘tied’, grants (Fenna 2008). As Gough Whitlam (1985, p. 716), whose Labor government (1972–​75) introduced Australia’s first national health insurance system, later put it: The main constitutional legacy of our federalism was the precedent for wider use of the Australian Government’s financial powers. It was commonplace before the Labor Government came to office for tied grants under Section 96 of the Constitution to be made to the States. What had never before been attempted was the use of those grants to achieve far-​ reaching reforms in education, medical services, hospitals. Public health care in Australia is now delivered through a complex arrangement in which the roles and responsibilities of the Commonwealth and state governments are deeply entangled. In this system of ‘cooperative federalism’, both levels of government have roles in policy and regulation across the spectrum of health-​care services, including prevention, primary care, hospital and emergency care, and out-​of-​hospital and community care. Funding roles and responsibilities are also closely entwined, but responsibility for service delivery lies predominantly with the states and the non-​government sector. 2.1 Arrangements Cooperative federalism requires intergovernmental architecture for coordination and collaboration on policy setting, funding, regulation and delivery of services. Intergovernmental mechanisms and structures can include conditional grants; compacts and agreements; joint forums and meetings; rules;

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benchmarks and standards; oversight bodies; and behavioural norms and working relationships (Fenna 2012). Australian governments collectively spent $124 billion on health care in 2016–​17 (aihw 2018). Historically, intergovernmental architecture in Australian health care has involved conditional grant agreements between Commonwealth and state governments and joint decision making in peak-​level meetings of health ministers and coag. The most significant grant agreement is the five-​ year arrangement for the provision of universal public hospital services. Under this agreement, the Commonwealth contributed $22 billion of the total $53 billion expenditure on public hospitals in 2016–​17 (aihw 2018). In addition, the Commonwealth spent $45 billion on the Medical Benefits Scheme for primary care and the Pharmaceutical Benefits Scheme. The significance of the health portfolio and its budget implications usually results in a large number of policy actors being involved in intergovernmental interactions, including the prime minister and state premiers, Commonwealth and state treasurers and ministers for health, and senior bureaucrats from Commonwealth and state agencies. 2.2 Issues Australian health outcomes rate well against most international measures. However, like many other countries, the health-​care system is under challenge from the pressures of an ageing and growing population; increasing rates of chronic and preventable disease; technological advances that increase health-​ care costs; and access and equity issues, in particular for indigenous people. Health care is also consuming an increasing share of Australian government budgets, with health spending almost doubling as a share of tax revenue over the past 30 years—​rising from 15.7 per cent in 1989–​90 to 24.1 per cent in 2013–​ 14 (aihw 2016, p. 30) and to 27 per cent in 2017 (aihw 2018, p. 11). Against these trends and developments, there has been increasing attention directed to the appropriateness of federal arrangements in health care. As Duckett (2015, p.  129) puts it, ‘the peculiar division of responsibilities in the Australian federal system hinders the development and implementation of effective policies to respond to contemporary health issues, including the escalation of health costs’. Successive reviews have confirmed a range of shortcomings in this regard, including: Program and performance deficiencies. These include unnecessary overlap and duplication; program discontinuities; administrative inefficiencies; distortions in consumer choice; and misallocation of resources (see, for example, hrscha 2006; nca 2014). Fragmentation of patient care. Federal arrangements are most problematic in the intersections between primary, aged, community and hospital

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care, where responsibilities are separated between Commonwealth and state governments. With an ageing population and escalating rates of chronic disease, there is a pressing need to increase system flexibility and responsiveness and redesign models of care to improve integration (oecd 2014; Petrich, Ramamurthy, Hendrie and Robinson 2013). Cost shifting. There are ingrained practices and incentives within both levels of government to shift costs and responsibilities on to the other, thereby blurring accountability. This dysfunctional behaviour permeates policy and service-​delivery decision making at all levels of the system (hrscha 2006). Recurring intergovernmental conflict. Relations between the two levels of government are highly contested and tend to be dominated by battles over public hospital funding (Anderson 2012; Ramamurthy 2012a, 2012b; Scotton and Macdonald 1993). 2.3 Intergovernmental Relations These issues are reflective of weaknesses in the Australian system of intergovernmental relations. There has been inadequate collaboration and integration across the health-​care system to bridge the sub-​sectors controlled separately by the Commonwealth and state governments. In health care (and more broadly), cooperative federalism in Australia has suffered from a lack of constitutional or legal prescription in intergovernmental architecture. Without formality and consistency in rules, processes and norms, intergovernmental collaboration has been prone to haphazardness, unduly dependent on perennially changing political and economic circumstances and the whim of the Commonwealth (Phillimore and Fenna 2017). This situation is exacerbated by the presence of the very high level of vertical fiscal imbalance; a large diversity of policy stakeholders; and long-​standing ideological differences between the two major political parties. Addressing these institutional gaps has been a key focus in the national health reforms implemented since 2011. Lurking in the shadows has been the possibility of a full Commonwealth takeover, which some have advocated as being either an expedient—​albeit distinctly un-​federal—​way to address vertical fiscal imbalance (Eccleston 2008) or the sine qua non of an efficiently organized and coordinated healthcare system (Podger 2010). 3.

Remodelling Australia’s Health-​Care System

Australia’s health-​care system has been through a period of change over the past decade that involved a refashioning of arrangements between the

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Commonwealth and the states and the introduction of a regionalized structure within each jurisdiction. 3.1 Federalism Reform 2007–​9 Momentum for reform accelerated during the 2000s, prompted by tensions over public hospital funding. The 1999 Intergovernmental Agreement on the Reform of Commonwealth–​State Financial Relations hypothecating total net revenues of the newly introduced gst to the states and territories had promised the states ‘secure funding for essential services, such as schools, hospitals and roads’. While annual average growth in gst revenues was around 8.9 per cent between 2000 and 2007, public hospital costs were increasing by 12 per cent. State governments increasingly had to find ways to bridge this gap: from 1998–​9 to 2008–​9, their contribution to public hospital funding rose from 48.4 to 51.2 per cent of total spending, while the Commonwealth’s contribution fell from 44.3 to 39.2 per cent. It was against this backdrop that the federal Labor Opposition led by Kevin Rudd promised to ‘fix’ the health-​care system as part of its 2007 election platform. Labor’s proposal involved a $2 billion funding injection for states to address waiting lists and raise hospital performance, with the threat of a referendum and Commonwealth takeover of public hospitals if agreed benchmarks were not met by 2009 (Wanna 2010). Under coag oversight, an energetic period of fiscal federal and intergovernmental relations reform followed the 2007 election. In 2008, governments signed the Intergovernmental Agreement on Federal Financial Relations (iga−ffr), replacing dozens of individual specific-​purpose payments with a handful of block grants (Fenna and Anderson 2012; Treasury 2009). One of those was for health. Under the associated National Healthcare Agreement (nha), the Commonwealth committed $60.5 billion over five years for public hospitals, including additional base funding of $4.8 billion, and agreed to a more generous indexation formula (hrscha 2006). The iga−ffr also established an array of targeted grants for specific programs (‘National Partnership Payments’), and committed to activity-​based funding (abf) for public hospitals. 3.2 Health-​Care Reform In pursuit of a blueprint for sweeping change to the system, the Rudd government established a commission of inquiry, the National Health and Hospitals Reform Commission (nhhrc). While collaborative federalism under the aegis of coag reached a frenetic highpoint in the early period of the Rudd government, this was a unilateral Commonwealth initiative. The Commission’s final report recommended a set of options for reform of public hospital funding

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and governance whose proclaimed goal was ‘one health system’ for the country (Bennett 2009; Boxall and Buckmaster 2009; Hall 2010; nhhrc 2009). The ‘vast majority’ of those recommendations were accepted by the government (Health 2010). Following on from the nhhrc report—​after intense coag negotiations—​ the National Health and Hospital Network Agreement (nhha) was introduced in April 2010 and signed by the Commonwealth, both territories and five of the six states. Western Australia rejected the proposed trade-​off between a greater Commonwealth contribution and a clawback of one-​third of the gst revenues. After an unceremonious change of prime ministers, this Agreement was superseded by the National Health Reform Agreement (nhra), which backed down on the financial clawback. Signed by all jurisdictions in July 2011 (Anderson 2012, pp. 256–​66), the nhra introduced two sets of changes: at the service-​delivery level, it mandated a shift to new modes of organization, and at the system level, it introduced a suite of collaborative institutions to operate at arm’s length from Commonwealth and state departments. While financial issues dominated public debates surrounding the nhha and nhra, perhaps the most novel and significant feature of both Agreements was the unprecedented expansion of a formal, legally enshrined, intergovernmental architecture in Australian health care through these new organizations. There has also been continuing support from the policy community for the new architecture. During negotiations of the latest National Health Agreement, a concerted campaign by states, medical professionals and consumer groups compelled the Commonwealth to re-​commit to the architecture, despite an earlier announcement that some of the institutions would be abolished (Biggs 2016). 3.3 The New Structure Four national bodies are specified in the Agreements:  the Australian Commission on Safety and Quality in Health Care; the Independent Hospital Pricing Authority; the National Health Funding Body; and the National Health Performance Authority (subsequently absorbed into the Australian Institute of Health and Welfare). These national bodies share key traits of being established as independent statutory authorities under Commonwealth legislation, with the governing board members jointly appointed by the Commonwealth, states and coag. The nhra includes prescribed roles and responsibilities for these bodies. The Agreements also provided for two new types of local governing organizations:  Medicare Locals (subsequently refashioned as Primary Health Networks—​m l s/​p hn s), established as companies incorporated under the Corporations Act 2001, with configuration and funding determined by the

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Commonwealth; and Local Hospital Networks (lhn s), established under state legislation with a governing body appointed by the states. The rest of this chapter focuses on this new system of decentralized governance, and in particular, on the state-​managed lhn s and their relationship with the Commonwealth-​funded ml s/​p hn s. These new governing organizations are intended to play a significant role in addressing a fundamental weakness of the Australian health system, namely fragmentation, a long-​standing criticism of the current model of cooperative federalism for health care. The proposition is that stronger working relationships between lhn s and ml s/​ phn s will help to bridge, at a local community level, the much-​discussed intergovernmental divide between primary health and aged care, on the one side, and the hospital system, on the other—​these different parts of the health system being the separate responsibility of the Commonwealth and the states, respectively. Two of the three authors of this chapter recently conducted a national research project on the form, functioning and effectiveness of lhn s.1 This included a survey of lhn board members (across New South Wales, Victoria, Queensland, Western Australia and Tasmania) and interviews with a selection of senior officers from state and territory health departments, lhn board chairs and ceo s (across the country). We draw from that exploratory study, as well as existing literature on ml s/​p hn s, to examine how intergovernmental workings have changed since 2011. This is also where federal theory—​ and past practice—​might predict state autonomy to be retained, or at least defended more vigorously, given the inherently greater knowledge and operational responsibilities of states through their ownership and control of public hospitals. 4

Decentralization of State Hospital System Governance

The 2011 reforms sought to create a ‘nationally unified and locally controlled health system’, with the objective of improving system responsiveness, performance and accountability. Claimed by the prime minister to be ‘the most fundamental change to health care in this country since Medicare’ (Thompson 2011), the Agreement required state and territory governments to decentralize the governance of their health and hospital systems and transform their 1 The project, ‘Devolved governance and collaboration in the Australian health system:  Is it working?’, was kindly funded by the Australia and New Zealand School of Government (ANZSOG) and undertaken by Professor Phillimore and Dr Ramamurthy.

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central departments of health into ‘system managers’. This development had a two-​fold aim: first, to improve the governance and performance of state-​owned public hospitals; and second, to promote better coordination, integration and local community control and influence over the various elements of the health service, including primary health care, hospitals and aged care. While the former objective was principally of interest to, and the responsibility of, state governments, the latter inevitably involved closer ongoing relations between the two levels of government. Greater local autonomy and clinician and community engagement are expected to improve accountability, service integration, efficiency and responsiveness. These desired outcomes are entirely consistent with the international evidence on decentralization, which suggests that by changing the level where power resides and strengthening ‘strategic capacities at the intermediate level of the health care system’ there can be beneficial effects on performance and accountability (Denis 2002, p.  5). Prior to the commitment to decentralize, most state health systems had gravitated towards more centralized control, attributed at the time to the alleged dysfunctionalities of hospital boards. Those dysfunctionalities included their resistance to reform; ‘political cronyism’; and dominance by senior clinicians ‘hostile to any change’. Over the 1990s and 2000s, however, those working in public hospitals became increasingly disenfranchised in the face of the growing dominance of a ‘head office’ (that is, state health department), far removed from the day-​to-​day pressures of delivering health care and the ‘constant reorganisation for the sake of it’. Centralization also blurred lines of accountability and meant that every issue or problem that arose ‘moved straight to the Minister’s office, intensifying the politicisation of the system’ (Gillespie 2010). 4.1 Progress under the nhra Eight years after the signing of the nhra, there are 134 Local Hospital Networks (lhn s) across the country (Administrator 2017).2 An lhn is a single, or small group of, public hospitals and health services spread across a geographical area, generally with an average catchment population of 300,000–​500,000 in most states and territories. The Agreement quite prescriptively stipulated that lhn s be separate legal entities, governed by a council or board, with board members to have an appropriate mix of skills and expertise including health, 2 Although referred to as Local Hospital Networks in the National Health Reform Agreement, states and territories have adopted differing names for their Networks. For example, in New South Wales, they are known as Local Health Districts and Speciality Networks; in Queensland, Hospital and Health Services; and in Western Australia, Health Services.

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business or financial management; clinical expertise; or other professional skills and experience where appropriate (Commonwealth of Australia and States and Territories 2011). The objectives and responsibilities of lhn boards as set out in the Agreement include shaping and delivering hospital and health services according to the needs of their local catchment population; meeting budget, performance, clinical governance, reporting and other requirements outlined in service agreements negotiated with state departments of health; improving engagement with local communities and clinicians; and strengthening system integration through collaboration with local providers and stakeholders such as phn s (see below). lhn boards are also obliged to contribute local knowledge and expertise to inform the work of state departments of health in state-​wide system planning, purchasing, capital, industrial relations and performance management. New South Wales (nsw) and Queensland (Qld) were early implementers of devolution, while Victoria continued to operate a pre-​existing decentralized model of governance. The less populous states were more cautious, implementing boards of governance in a transitional manner, with some even opting to wind back decentralization after initial adoption. Tasmania initially established three lhn s but later consolidated these into one, which acts as the lhn but is directly accountable to the department; the act government initially operated its single lhn as a departmental division, but more recently re-​established a separate ceo-​directed lhn; while the Northern Territory (nt) opted to replace its two lhn boards with an advisory committee governance structure. 4.2 Changes in Intergovernmental Workings The Agreement specifically requires lhn s to engage with the local community, clinicians and other key stakeholders, including ml s/​p hn s. Common or cross-​board membership between the two is explicitly ‘expected … where possible’, and states and the Commonwealth have also committed to working cooperatively to align the geographical boundaries for phn s and lhn s ‘wherever possible’. There are currently 31 phn s across the country, with one of their roles being to ‘develop partnerships that bring together different health providers and State and Territory-​based health authorities to create a more holistic system of care’ (Health 2018). While phn s and lhn s have been studied, the former more extensively, there has been less research on the federalism aspects of the new arrangements, or the local ‘intergovernmental’ relations between the state-​managed lhn s and the Commonwealth-​funded phn s. Studies undertaken on lhn s to date have been jurisdiction-​specific, looking at lhn relations with their system manager (that is, health department),

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structural issues, or at aspects of hospital and board operations and performance, in particular quality and safety (for example, Bismark and Studdert 2014; Bismark, Walter and Studdert 2013; Gadiel and Sammut 2012; Ham and Timmins 2015; Saunders and Carter 2017; Veronesi, Harley, Dugdale and Short 2014). In contrast, studies of phn s have been undertaken at both a national and jurisdictional level and, while they have not specifically applied a federalism or intergovernmental relations lens, they provide some useful insights into the joint workings of lhn s and phn s. Studies confirm evidence of joint working—​for example, collaborative planning, mou s and cross-​board membership—​but, at this stage, the evidence is overshadowed by a host of challenges being experienced. Barriers cited include lack of leadership, incentives, shared priorities and long-​term vision; role confusion on the part of ml s/​p hn s; entrenched cultures and behaviours; issues with technology and data access; policy instability at both federal and state levels; and little political will or commitment to change; among other things (for example, Brown, Katterl, Bywood et  al. 2013; Javanparast, Baum, Barton et  al. 2015; Nicholson, Hepworth, Burridge et  al. 2018; Robinson, Varhol, Ramamurthy et al. 2015). It would also appear that the strengthening of health-​system integration (and, by default, intergovernmental workings) is, at present, more central to phn objectives, leaving them somewhat dependent on the commitment of the lhn s, which tend to have a larger physical and political influence at ground level. The vast difference in relative local influence between these two organizations is captured by this telling observation from one lhn, ‘well, look, Medicare Local is not terribly relevant. I don’t know how long they’re going to be around for and through coag and everything there has been this lack of cooperation and … [are] really are not relevant to us’ (Brown et al. 2013, p. 24). This asymmetrical pattern was further validated by two separate but related analyses undertaken as part of a larger research project by two of the authors in 2017–​18. The first was a desktop assessment of annual reports and websites for phn s conducted in October 2018. This found that most phn s do appear to have actively pursued collaboration with lhn s through including board members with lhn experience. Table 8.1 shows that most of the phn s in the four most populous states have at least two board members who are either a current or former lhn board member, executive or clinician. By contrast, the influence of phn members on lhn boards is much lower. This is partly an inevitable outcome of there being so few phn s (31) in comparison to lhn s (over 130). But it is also due to phn s being much less significant for lhn s and their operations, than vice versa. Our survey of lhn board members indicated only a marginal proportion (13.3 per cent) of members

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table 8.1 Proportion of phn board members with association to lhn s

State

nsw Vic Qld wa Total

Number of phn phn s members who are also lhn board members (now or previously) 10 6 7 3 26

8 16 3 3 30

phn Total cross-​ members membership who are with lhn s also lhn executives or clinicians (now or previously) 5 13 7 6 31

13 29 10 9 61

Cross-​ membership ratio per phn

1.3 4.8 1.4 3.0 2.3

source: authors’ analysis of phn websites and annual reports.

participating, or having participated, on a phn/​m l board or other equivalent primary health care organization (see Figure 8.1). Consistent with earlier research, we also found phn  s held a lower profile than lhn  s, due to their smaller budgets and political standing at a local community level, and when considered against the quite ambitious results expected of them. Our interviews with senior officers in lhn  s and departments/​ministries identified that phn  s are not ‘awash with funding … [and] have struggled a lot … some … have a fabulous relationship [with lhn  s] … [but] it seems to be a bit ad hoc [and] far too people dependent’. Surprisingly, we also noted some hesitation over board cross-​membership due to concerns about phns being potentially dominated by lhn board members and also the risk of conflicts of interest. The survey also sought to understand lhn board member views on the quality of their current engagement with phn s (see Table 8.2). Although a quarter of respondents believed the relationship to be excellent, a third of respondents believed their relationship with phn s to be average, poor or very poor, indicating there is still significant room for improvement. In interviews, both lhn board chairs and senior officers commented: [phn s] are still finding their way … the jury is still out as to what they are doing and whether they are doing it well … Some are starting to fly …

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­f igure 8.1  Proportion of surveyed lhn board members with association to phn s and other primary care organizations (n=210)  Note: The online survey (with funding from the Australia and New Zealand School of Government) was constructed using Qualtrics software and distributed in April 2018 to either board chairs or board secretariats in nsw, Victoria, Qld, wa and Tasmania (the act and nt had no active boards at the time). A total of 212 valid responses were recorded, representing a 20.3% response rate, based on the estimated number of board members nationally. The response rate was validated by our department/​ministry contacts as being consistent with their internal survey completion rates.

we’ve got a real opportunity to try and start to coordinate budgets and to cooperate a lot more. There were no kpi s or other incentives to encourage the building of partnerships or increased integration. Other interviewees noted that phn s are ‘still in their infancy’ and ‘there’s a lot of rhetoric but not particularly a lot of action’, with phn boards being hampered by ongoing leadership changes, issues of capability and capacity, a lack of role clarity and sustained funding. Some interviewees suggested that officer-​level working groups had proved more effective in building collaboration than joint board meetings or membership; and that regional and remote lhn s and phn s appeared to have made much more progress than their metropolitan counterparts who had to deal with a larger number of stakeholders, competing interests and service demands. A common observation was that the relationships and outcomes achieved were heavily dependent on the personalities involved.

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table 8.2 lhn board member views on the quality of their board’s relationship with phn s (n=192)

State

Very poor

Poor

Average

nsw Vic Qld wa Tas Overall

1.4% -​ 4.3% -​ -​ 1.0%

5.6% 9.3% -​ 44.4% -​ 8.3%

30.6% 18.6% 26.1% 22.2% -​ 24.0%

Good 36.1% 44.2% 47.8% 33.3% 100.0% 41.7%

Excellent 26.4% 27.9% 21.7% -​ -​ 25.0%

This range of responses suggests there is opportunity for lhn s and phn s nationally, as well as for future research, to further illuminate ways and means of strengthening local intergovernmental partnership and system integration. Further, as proposed by Robinson and colleagues (2015), these results confirm the need for ongoing involvement and support from Commonwealth and state governments, if stronger local integration and join working capability is to be realized through these new arrangements. 5

Conclusion

Despite the substantial centralization that has occurred in Australian federalism in general, and the health system in particular, public hospitals remain a core state government responsibility. At first glance, it seems remarkable, then, that the states agreed to the nhra’s insistence upon the creation of lhn s, along with detailed prescriptions for their governance and structure, rather than defending their autonomy to choose their own hospital governance systems. The political mandate of the Rudd–​Gillard government and the prospect of additional hospital funding were no doubt key drivers for states committing to the nhra. In addition, it would seem that after many years of centralized management within each jurisdiction, a push for decentralized governance was beginning to emerge in the more populous states, with Victoria providing a working model. Our interviews indicate that beyond the initial funding disputes and the cautiousness of some smaller jurisdictions, there was very little other contention about the change. For the Commonwealth, devolved governance at state

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level was regarded as an important complement to enable newly established Medicare Locals (later phn s) to operate more effectively and to encourage a shift towards a more integrated, patient-​centric health system able to encourage collaboration between primary health, hospitals and allied services. For the states, there was general agreement that devolution could improve governance and accountability, and was consistent with international evidence, and also with changes occurring in other human service areas (such as disability care or aspects of education) in which central departments increasingly took on the role of system managers while service provision was devolved to the relevant agencies. Having embedded a much higher degree of joint governance into Australian health care, perhaps even irreversibly (given the opposition that arose to proposed changes in intergovernmental architecture), the question is now whether Australian governments, as well as the new organizations and stakeholders involved, can achieve the required and desired degree of local intergovernmental coordination, system integration and, ultimately, outcomes for patients. At a system level, effective planning, priority setting, funding and incentives are required for joint functioning. On the ground, it is clear from the experience of the phn s to date that it is the state-​managed lhn s that continue to dominate, bolstered as they are by a considerably larger resource base and local political influence, as well as the entrenched cultures, behaviour and community expectations around public hospital systems. Into the future, however, with an ageing and growing population and concerns over the sustainability of state health budgets, a continuing defence of state autonomy may come only at the expense of patient and community health outcomes. It is yet early days in the shift from autonomy to collaboration. The nhra has increased integration and functioning of cooperative federalism, but how durable this proves to be will depend among other things on whether the incentives are there to drive system integration, whether the necessary capacity-​building occurs, and how strong the links are between Commonwealth and state policy making and administration.

References

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Duckett, Stephen (2015). Australia, in Katherine Fierlbeck and Howard A. Palley (eds), Comparative Health Care Federalism. Abingdon: Routledge. Eccleston, Richard (2008). Righting Australia’s vertical fiscal imbalance: transferring public hospital funding as an option for reform. Agenda 15: 39–​52. Fenna, Alan (2008). Commonwealth fiscal power and Australian federalism. University of New South Wales Law Journal 31: 509–​529. Fenna, Alan (2012). Federalism and intergovernmental coordination, in B. Guy Peters and Jon Pierre (eds), The SAGE Handbook of Public Administration (London: Sage). Fenna, Alan (2019). The centralization of Australian federalism 1901–​2010: measurement and interpretation. Publius: The Journal of Federalism 49: 30–​56. Fenna, Alan and Geoff Anderson (2012). The Rudd reforms and the future of Australian federalism, in Gabrielle Appleby, Nicholas Aroney and Thomas John (eds), The Future of Australian Federalism:  Comparative and Interdisciplinary Perspectives. Cambridge: Cambridge University Press. Fierlbeck, Katherine and Howard A. Palley (eds) (2015a). Comparative Health Care Federalism. Farnham: Ashgate. Fierlbeck, Katherine and Howard A. Palley (2015b). Canada, in Katherine Fierlbeck and Howard A. Palley (eds), Comparative Health Care Federalism. Farnham: Ashgate. Gadiel, David and Jeremy Sammut (2012). How the NSW Coalition Should Govern Health: Strategies for Microeconomic Reform. Sydney: Centre for Independent Studies. Gillespie, James (2010). Health reform: the opening shot. Inside Story. 9 Mar., , accessed 11 Apr. 2019. Graefe, Peter and Andrew Bourns (2009). The gradual defederalization of Canadian health policy. Publius: The Journal of Federalism 39: 187–​209. Gray, Gwendolyn (1991). Federalism and Health Policy:  The Development of Health Systems in Canada and Australia. Toronto: University of Toronto Press. Greer, Scott L. (2018). Health policy and territorial politics:  disciplinary misunderstandings and directions for research, in Klaus Detterbeck and Eve Hepburn (eds), Handbook of Territorial Politics. Cheltenham: Edward Elgar. Haardt, David (2013a). Economic trends and challenges, in Katherine Fierlbeck and William Lahey (eds), Health Care Federalism in Canada:  Critical Junctures and Critical Perspectives. Montreal and Kingston: McGill–​Queen’s University Press. Haardt, David (2013b). The economics of health care federalism: what do we know? In Katherine Fierlbeck and William Lahey (eds), Health Care Federalism in Canada: Critical Junctures and Critical Perspectives. Montreal and Kingston: McGill–​ Queen’s University Press. Hall, Jane (2010). Designing the structure for Australia’s health system. Occasional Papers. Canberra: Academy of the Social Sciences in Australia. Ham, Chris and Nicholas Timmins (2015). Managing Health Services through Devolved Governance: A Perspective from Victoria, Australia. London: The King’s Fund.

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­c hapter 9

Federalism and Security in the 21st Century Christian Leuprecht and Mario Kölling 1

Introduction

No level of government is equipped to confront the security challenges of the 21st century alone. As with other public matters, federations go about security differently from unitary systems. The latter merely have to contend with collective action problems created by the horizontal division of security and intelligence services. Federal states, by contrast, further have to contend with a vertical separation of security powers and forces across constituent units. On the one hand, federalism has an advantage over unitary security systems: the constitutional division of powers by levels of government checks the potential risks that security and intelligence powers pose for individual and collective freedoms through the structural and functional distribution of responsibilities (Burgess 2006). On the other hand, federalism poses a security risk precisely because it is thought to impede efficient decision making in matters of public security. When terrorist attacks occur in federal or decentralized countries, they usually precipitate calls for more coordinated and centralized action at the central and/​or European level of government (Riedl 2018). Processes of shifting competences and governance practices which emanate from different and changing configurations of distribution of powers in federal, federalizing and decentralizing polities have been studied extensively across other policy fields (Watts 2007). The provision of security, however, has long been ignored in comparative federalism (Collins 2016). To identify more (and less) optimal approaches to exploit synergies between federalism and public security, we recently concluded a comprehensive comparison of the constitutions, institutions and legislation that inform security in different federations and the consequences for institutional design, public administration and public order (Leuprecht, Kölling and Hataley 2019). Research questions that drove the study included: does federal institutional design affect the exercise and provision of public security? How do public security systems actually work in practice? Is public security provided differently in homogenous (for example, Germany) or heterogeneous (for example, Canada) federations? How did the system change over time? What explains change and inertia? How are intergovernmental cooperation mechanisms implemented?

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In selecting Brazil, Canada, Germany, India, Mexico, South Africa, Spain, Switzerland and the USA as country case-​studies, we eliminated federations that are relatively small, have a dubious or no record of democratic governance, or are relatively new. One country in this remit, Spain, in effect is decentralized so as to function like a federation. Comparison is complicated because the constituent units across these federal systems are structured differently, with different types of status, power and jurisdiction. In each country, federalism and security have undergone quite particular and historically contingent developments. Furthermore, the impact of the institutional design on the efficient production and equitable allocation of security is difficult to isolate. Endogenous effects complicate efforts to disentangle the performance of a federal system. That makes it difficult to control systematically for vertical and horizontal effects, such as decentralization and asymmetry, on security outcomes. 2

Security and the Division of Powers in Federations

The modern state is premised on a social contract to provide citizens with public goods in the form of security, law, public order and basic services in return for taxation. It does so by maintaining effective and legitimate institutions of government that preserve and enforce the monopoly over the use of violence within a given territory (Althusser 1976; Bayley 1983; Bittner 1979). The provision of public security has two basic dimensions:  preventive and repressive and, as such, includes everything from the fight against delinquency to transnational crime, along with acts ranging from the ordinary measures taken by law enforcement within the framework of constitutional and relevant special laws to extraordinary measures to safeguard human rights and fundamental freedoms (Mehra 2014). Jean-​Paul Brodeur (1983) famously distinguishes between ‘high’ and ‘low’ policing. The term ‘high policing’ refers to policing that benefits elite interests of the government rather than local or community interests. In this context, national security is premised on high policing:  centralized norms, interests and priorities. Low policing is concentrated on law enforcement (setting aside the overlaps between security services and police and the gathering of intelligence and taking action). In Federalist Paper 17, Alexander Hamilton observed that federal arrangements attribute powers over local interests to federated entities, and powers over general matters and matters that are more remote from the immediate interests of citizens to the central government. On the one hand, economies of scale may be harnessed through coordination and

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centralization. On the other hand, local communities are best positioned to make credible commitments under conditions where the efficient delivery of services has to reflect and reconcile different values, interests and preferences. Federal countries have tasked a plethora of agencies and institutions at different levels of government with enforcement and security functions. Security agencies with national mandates tend to fall under federal jurisdiction:  the armed forces, customs, immigration, coastguard, federal police, security and intelligence services and criminal investigation agencies. Constituent units, meanwhile, are likely to have their own civilian police service, special police or militia forces (Sheptycki 2011). In general, federalism offers an approach to security that is close to local communities while optimizing for delivery of a public good across different levels of government that have autonomy within their realm of constitutional jurisdiction. The ensuing constitutional and legislative arrangements require constituent governments that make up a federation to coordinate among themselves. Intergovernmental relations facilitate cooperative policy making among different levels of government, but their relations are shaped by specific characteristics and differ across federations (Saunders, Poirier and Kincaid 2016). The delivery and administration of security to the satisfaction of all members of a federal community is predicated on an appropriate balance between shared rule and self-​rule in federal governance arrangements (Elazar 1987). Shared rule thus effectively amounts to sharing not only the state’s monopoly of the legitimate use of physical force in the enforcement of its order, but also the constitutional framework and rule of law that govern its use, and the ability to hold security actors to account. Moreover, security is the result of a political process that requires the support of a social collective that acknowledges a threat and the need for decisive action to deter, contain or eliminate it. (Buzan, Wæver and de Wilde 1998) Threats may be defined by the central state, but not necessarily. In fact, different actors prioritize security threats differently across a broad geographic spectrum. Bounded by a set of cultural, political, economic or social understandings, the meaning of security will vary horizontally and vertically. Fundamentally, different expressions of sovereignty mean that security is operationalized in federal countries differently from unitary countries. The way the USA and Canada commonly understand security is broadly steeped in the prevailing approach of neorealism, where the role of state institutions places the armed forces in particular and security institutions in general—​such as intelligence and law enforcement—​at the core of security policy. While security is commonly understood as the actual services the state provides, such as law enforcement, safety is commonly associated with the

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broader role and obligations that the institutions of the state have in fostering an environment where citizens and organizations, as well as private and non-​ governmental institutions, can flourish and prosper. In Europe, by contrast, security tends to be understood as more multi-​ faceted and complex, and dependent on a much wider range of bureaucracies than the armed forces, law enforcement and intelligence services, to include health, infrastructure and social development. So there are important nuances in what security means in a particular political, social, institutional, historical and discursive context. Ergo, spatial security strategies differ among federations and their sub-​state governments, and police activities are necessarily a function of territorial specificities. The larger a country, the more likely it is that its population faces different circumstances that give rise to different characteristics and interests. Federal territory and institutions thus constrain and enable police competencies and activities. 3

Observations

The limited sample of case-​studies necessarily renders the comparative findings preliminary; they are meant to stimulate further empirical and comparative work rather than provide definitive answers. 3.1 Principal Public Security Challenges Security challenges in Canada, Germany, Spain and Switzerland tend to be latent (in the sense of unintentional and non-​criminal). The USA faces a moderate risk, largely as a result of rates of violent crime that are above average among democratic federations. Four federations in the sample face high risks:  Brazil and Mexico from drug-​related homicides and organized crime, South Africa from disproportionate rates of murder, rape and robbery that are exacerbated by racism and socio-​economic conditions, and India from high levels of homicide and persistent political violence in different parts of the country (unodc 2019). Most of the countries in our sample confront the threat of transnational terrorism. India, by contrast, faces regular challenges from domestic, international state-​sponsored and transnational terrorism. Given this panoply of challenges, theory would predict a more centralized approach to security in India and, to a lesser extent, South Africa, than among the remainder of the sample. Analogous dynamics informed the centralization of security measures in many countries in our sample in the aftermath of 9/​11, resulting in a recalibration of self-​rule in favour of shared rule with respect to public security.

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3.2 Constitutional and Legal Frameworks Countries’ constitutional and legal foundations for legislative competencies and the provision of public security in the federal polity, including the division of powers along the centralization–​decentralization continuum seem to be a function of both path-​dependency and diversity. In particular, the distinct legal histories of each country case-​study have a path-​dependent impact on contemporary policy choices as mediated by current constitutional and legal frameworks (Leuprecht, Kölling and Hataley 2015). In Brazil, for instance, American legal and philosophical legacies influenced the way the Brazilian federation was designed and its division of powers among federal, state and municipal levels. At the same time, these ideas were grafted on to primarily Portuguese conceptions of colonialism that affected how power was understood, divided and organized. Similar provisos apply to Mexico with its Spanish colonial influence, India and its British colonial history, and South Africa with its Dutch and British legacies, as well as the aftermath of the apartheid regime. Liberal democracy in the Anglo-​Saxon world is premised on limited state intervention, and the conception of the state as an arbiter that adjudicates competing interests. By contrast, social democracy in continental Europe is much more comfortable with state intervention for the purpose of directing society, which has given rise to different and particular varieties of federalism on the one hand, and security on the other hand. Heterogeneous federations tend to centralize public security more than homogenous ones, likely because of a latent threat that heterogeneity is perceived to pose to the territorial integrity of the federation as a whole. India and South Africa stand out for their high level of centralization on matters such as policy, investigation, arrest and public order. In India, this is manifest in an emphasis on the Indian Union as opposed to its federal aspects, seemingly driven by a concern about territorial integrity, heightened by the experience and aftermath of partition. Indian states have just a few formal powers over public security, although, constitutionally, they have control over ‘police’ and ‘law and order’. In fact, the Indian constitution allows the president to dismiss and dissolve constituent units’ elected governments in emergency cases and bring them under direct central rule, as has happened in the Punjab, the North-​east and Kashmir. Since these constituent units abut an international border, it stands to reason that concerns about territorial integrity continue to outweigh their autonomy in the delivery and administration of public security. In South Africa, the centralized approach to security is a lag effect of the centralized security apparatus under the apartheid regime. Nowadays, the provinces are limited to oversight, consultation and social services; municipalities, by contrast, have limited powers of arrest, along with control over

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policing traffic and by-​laws. In all cases, suspects are handed over to national authorities for detention and prosecution. Mexico and Brazil show similar patterns of centralization, but to a lesser degree than India and South Africa. In Mexico, the legacy of decades of authoritarianism continues to shape public security. While the constitution adopts a balanced, decentralized approach, the Mexican regime is more centralized than it appears on paper. A similar situation can be found in Brazil. Constitutionally, the federal government’s control over security in constituent units is actually relatively weak, but de facto it has control over powerful civil and military police forces and intelligence agencies, which it is at considerable liberty to deploy because of areas of shared jurisdiction with the constituent units. In Spain, the legacy of decades of authoritarianism prompted a gradual process of decentralization. Today the State of Autonomies is characterized by a latent federalization and heterogeneity between the different constituent units. Those with a long history of some degree of linguistic and cultural autonomy, notably the Basque Country, Navarre and Catalonia, have been especially proactive in demanding their own security forces. Regaining the autonomy over security that these regions had traditionally enjoyed as a result of the decentralization process seems to have had a contagion effect. Other Autonomous Communities also sought a transfer of responsibilities for public security. However, the economic and financial crisis (2008–​13) halted their ambitions. Despite this strong decentralization trend, central government has maintained exclusive jurisdiction over public security, and both national police forces, the civil guard and the national police, are responsible for the development of security functions and the prevention and repression of crimes in rural areas and larger urban centres. By contrast, centralization in matters of public security among the sample of homogeneous federations is relatively low. The German arrangement is very decentralized—​right down to domestic security intelligence agencies under the purview of each Land—​but happens to be structured in such a way as to produce symmetrical outcomes. Legislative capacity and implementation relating to public security resides largely with the Länder. This is less by intentional institutional design than by the strategic interests of strong local bureaucracies, and predates the current constitutional arrangement by several decades, autocratic interludes in the first half of the 20th century notwithstanding. Competencies of the federal government are limited to overcoming collective-​action problems, such as might arise in national criminal investigations, counter-​terrorism or the armed forces. Insofar as Switzerland hitherto lacked a federal police force, it is even more decentralized than the German system, but has been subject to some

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centralizing security trends in recent years. In fact, the Swiss system takes the opposite approach to Germany: only those powers clearly vested in the federal authorities by the federal constitution, requiring a double majority by voters and cantons, are areas of federal competence. Switzerland’s approach relies heavily on cooperation among the cantons, which enjoy a substantial degree of autonomy, particularly in matters of public security. Federal countries with vast territories, such as the USA and Canada, have, historically, taken a more decentralized approach to matters of public security. However, in the USA that mindset is driven by scepticism of government in general, and of central government in particular, as exemplified by Posse Comitatus,1 which explicitly restricts the involvement of the armed forces in domestic law enforcement operations, along with other limitations on domestic operations by organizations such as the Central Intelligence Agency and the National Security Agency. In Canada, by contrast, decentralization is more a matter of administering and delivering public security equitably and effectively across large swathes of territory with linguistically and ethno-​culturally diverse populations. Both federations resolve concerns over the delivery and administration of security resources by granting constituent units sufficient powers of taxation to raise the resources necessary to cover their own public security obligations. Although constituent units in Canada, the USA, Germany, and Switzerland enjoy considerable autonomy over public security, all four countries have seen sub-​state autonomy compromised in the aftermath of 9/​11 through anti-​ terrorism legislation with latent centralizing tendencies, including the creation of federal police forces in Germany and Switzerland and more sweeping powers for security services in general and federal police in particular in the USA and Canada. 3.3 Public Security Operations We now turn to the way each public security system actually works in practice, whether it is plagued by overlap and duplication, how and why it has changed over time, and where it sits on the symmetry–​asymmetry spectrum. Asymmetric approaches to public security may be more tolerable where public security is already inequitably distributed (for example, in India and South Africa). Moreover, asymmetry may actually be necessary to achieve 1 The Posse Comitatus Act (18 U.S.C. §1385, original at 20 Stat. 152)  was passed on 18 June 1878, after the end of Reconstruction, and updated in 1981. Its intent (in concert with the Insurrection Act of 1807) is to limit the powers of federal government to use federal military personnel to enforce state laws.

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just outcomes under certain conditions, including linguistic, cultural, ethnic or national diversity (India, South Africa and Spain). India—​and, to a lesser extent, South Africa—​is somewhat of an outlier in this regard:  large and hyperdiverse, with a highly centralized approach to public security and little tolerance for asymmetry in its delivery. Public security in India is a task neatly divided between the union government and the states, but with overlapping and conflicting responsibilities. Despite a clear division of power, the constitution authorizes the central government to intervene in public security. Yet the centre has not always been able to perform its self-​assigned role. Indian police have organizational, personnel and training deficits, while security challenges mount. Brazil and Mexico face a dilemma in administering and delivering security: central intervention is driven by insufficient security capacity at the local level, yet calls into question the ability to bolster local capacity and reinforce local jurisdiction in the area, thus precipitating suboptimal outcomes for the federal arrangement as a whole. In Brazil public security has long been understood almost exclusively as protection against armed violence. However, a recent shift in public security policies has gradually been replacing militarized approaches based on repression with policies based on the rights of citizens to access services. This shift has begun to alter relations within the country’s federal system of government, in the sense that the past strict focus on centralized policing is slowly giving way to a more comprehensive understanding of security through education and health. Mexico’s public security crisis has given rise to tensions within the current arrangements of the public security system, leading to a re-​centralization of authority and resources at the federal level. Recent major reforms seek to reshape the distribution of power and the governance of Mexico’s public security system. It is a volte-​face from reforms in the 1990s promoting decentralization and multi-​level governance, which had been triggered by a democratization process after decades of a federation characterized by a strong central government and dominated by a single hegemonic political party. In South Africa, institutions concerned with public security are located mainly at the national level, but fail to meet the challenge. The national government’s response to crime has focused largely on law enforcement, while neglecting primary, secondary and tertiary crime prevention. Against this backdrop, the provinces play a very limited supervisory role over the South African Police Service, although metropolitan municipalities are increasingly complementing the national force’s efforts through their own metropolitan police forces.

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The US case shows the perils of not finding an adequate equilibrium between shared rule and self-​rule, and the disjunction between federal and local security priorities. In this sense, the challenges the founders faced in the 1700s are not so different from today’s: how to balance security threats and the preservation of national unity with respect for autonomy among individual states, and protection of civil liberties and civil rights, especially given how decentralization has enabled past and present abuses of human rights in some states. Historically, public security concerns have trended towards increasing the role played by the federal government, at the expense of local communities and states. Canada’s asymmetric, decentralized approach to public security is emblematic of a system of local control that is flexible enough to meet diverse demands, yet centralized enough to benefit from federal support in times of need. An equilibrium of de/​centralized service delivery makes possible relatively standardized, albeit asymmetric, service delivery in day-​to-​day operations and during times of disaster or emergency relief (Leuprecht and Kasurak 2020). The functionality of the Canadian public security model is premised on local engagement and accountability. Apolitical federal bureaucratic coordination encourages and supports national standards and provides surge capacity in times of crisis. However, the multi-​level provision of public security produces challenges for intergovernmental management and coordination, notably the difficulties of shared sovereignty in security governance. These are manifest in coordinating priorities and disconnects that arise when much of the emergency service response capacity resides with municipal and local governments, whereas jurisdictional authority is vested in provincial and federal authorities. The Canadian case demonstrates that, contrary to widespread belief, not only can decentralized and asymmetric delivery and administration of security yield effective and efficient security outcomes, but they may in fact be a precondition of such outcomes in large, diverse societies. The German federation has experienced the creeping centralization of security in a country whose security structure was intentionally designed, through decentralization, to curtail the central government’s purview of security. Similarly, security has also seen (limited) centralization in the Swiss federation. The Spanish case illustrates the problems of inefficiency to which duplication and lack of coordination give rise, in a polity that decentralized very rapidly and where the division of powers and labour between central and constituent governments with respect to security are often unclear and competitive. Owing to the decentralization process over the past 30 years, the powers of both national police forces overlap with those of the constituent units’ security forces.

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Switzerland’s pluralist cooperative federal system reflects diversity in unity of languages, religions, cultures and traditions. Swiss security policy is generally perceived as adequate, but with significant weaknesses: law enforcement at the federal and cantonal levels is insufficiently staffed to meet the growing demands posed by legal and illegal immigration, trafficking, crime, emergencies, and so on. At the same time, the division of competencies between federal and cantonal authorities is not always clear-​cut and thus can occasion uncertainty and conflict between jurisdictions. The nature and territorial concentration of distinct linguistic, cultural and ethnonational groups is likely to influence the need and extent of asymmetric public security arrangements. Irrespective of the degree of asymmetry, however, decentralization emerges as a key determinant of the legitimacy and efficacy of public security. The institutional logic that informs this finding is a function of territorial differentiation of security priorities, values and interests across constituent units on the one hand, and subsidiarity on the other. 3.4 Intergovernmental Relations As for intergovernmental mechanisms, their effectiveness, and whether they set appropriate incentives for cooperation, our sample divides into cases where intergovernmental relations in public security are heavily politicized and those where they are less politicized. Politicization seems to be determined more by institutions than by political development. Relations in Brazil, India and South Africa are heavily politicized; in Mexico less so. In Spain, dynamics between police forces are highly politicized and no formal mechanisms of cooperation among the different police forces have been established. The South African police is heavily influenced by a federal government controlled by the African National Congress. It has been politicized, it is demoralized by corruption and its public order policing is ill-​equipped and inadequately trained to deal with public disturbances. The National Prosecuting Authority, too, has been politicized, and its success rate is declining. The court system is backlogged, and the national Department of Correctional Services has been reduced to warehousing a large and growing prison population. Moreover, intergovernmental coordination is limited and ineffective. However, growing collaboration between the South African police and municipal forces shows that the relationship may become less politicized. In India, security rhetoric has legitimized strong central federalism, much to the chagrin of the constituent units—​and to the detriment of intergovernmental cooperation. However, politicization is not so much a function of federal political parties as of minorities who resent growing oppression by the central state and its security agents. In Brazil, regional elite interests and

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concomitant corruption reinforce the paternalism and clientelism lingering from its oligarchic past. Although not partisan per se, these dynamics complicate intergovernmental relations. In other words, politicization of intergovernmental relations tends to be driven by grievances over the use, provision and resourcing of public security at the level of constituent units and the lack of institutionalized cooperative bodies at the vertical and horizontal level. But politicization takes different forms: in South Africa especially, and to a lesser extent in Spain, it is driven by partisan politics, unlike in Brazil and Mexico. Ergo, partisan politics are neither a necessary nor a sufficient condition for the politicization of intergovernmental relations. Conversely, however, the absence of such partisan politics may not be a sufficient condition, but appears to be a necessary condition for objective intergovernmental relations. As in Brazil and Mexico, the administration and delivery of public security in Canada, Germany and Switzerland are largely above the fray of partisan politics. In the USA local sheriffs are elected officials, which can place them within the political arena. The Canadian and US experiences in particular suggest that lapses in public security are prone to exploitation for partisan gain by local and opposition politicians. Similarly, ideology has an impact on intergovernmental relations, as some parties see more or less of a role for the state in public security. In Germany and Switzerland, for instance, strong horizontal and vertical institutional structures are pivotal to intergovernmental relations and often see relatively little political involvement. Swiss intergovernmental relations on public security seem to have benefited from the opportunity to mature over a long time without significant disruption, accounting in part for their strong institutionalization within a robust rule-​of-​law framework. Germany’s Conference of Interior Ministers is a highly institutionalized and effective intergovernmental mechanism, but its name belies the fact that its primary purpose is to operate as a vehicle for horizontal and vertical coordination and cooperation among the bureaucracies of the Länder and the federal government. Intergovernmental relations in Mexico are equally institutionalized, but mechanisms such as the National Public Security Council, the Attorneys General Conference, the Minister of Public Security Conference, the Prisons Conference and the Municipal Public Security Conference operate primarily at the political rather than the bureaucratic level. In Canada, by contrast, intergovernmental relations on matters of public security tend to be fairly ad hoc and premised on political involvement, with bureaucracies usually acting at the behest of politicians rather than on their own initiative. The USA and Spain are outliers:  formal vertical intergovernmental institutions are all but

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non-​existent, and horizontal ones are ad hoc, and often bilateral, with relatively little sway. 4

Conclusion

Federal institutional design affects public security, as do a plethora of other endogenous effects whose impact on the performance of a federal polity’s strategy and capacity to generate public security cannot always be disentangled. That makes it difficult to control systematically for vertical and horizontal effects, such as decentralization and asymmetry, on security outcomes. Inherently, federal security institutions, practices and outcomes appear to be a result more of federalism per se than other general governance and societal factors in mature federations. Yet mature federations are also mature democracies. Democratic governance and a federal political culture are necessary conditions for federal security institutions. Federal approaches to security seem to work best where the principle of subsidiarity prevails, along with a consensus on the levels of government best suited to different security challenges (Kölling and Leuprecht 2020). Public security tends to be more centralized in heterogeneous countries than in homogeneous ones. However, particular legal histories continue to influence current constitutional and legal frameworks. The findings confirm that federations are prone to centralize public security when confronted with looming internal or external security threats. The centralization of security measures in many countries in the aftermath of 9/​11 resulted in a recalibration of self-​rule in favour of shared rule with respect to public security. The division of powers in the constitution may not reflect the potentially overbearing security capacity of the federal level. At the same time, their more limited constitutional competencies notwithstanding, sub-​state, and especially municipal, levels seem to fill some of the void when federal will or capacity are found wanting. In homogeneous countries, the principle of subsidiarity seems to prevail. Nevertheless, the necessity to ensure that sub-​state constitutional jurisdiction over public security is accompanied by a commensurate jurisdictional capability to raise resources, or at least benefit from a guaranteed transfer of resources by the federal government, is a recurring theme. Whether a federation has a top-​down or bottom-​up approach to security seems to be driven both by whether they were once unitary states and how homogenous they are. The decentralization of security and prospective inequitable capacity give rise to concerns about asymmetry in public security outcomes across

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constituent units, including inequitable human rights outcomes. Conversely, equity in public security outcomes emerges as a litmus test for the maturity of public security in a federal polity. However, equity does not necessarily imply symmetry. On the contrary, in deeply diverse asymmetric societies, the delivery of public security may actually be a precondition for equitable outcomes because of extensive variation in values, interests and priorities across sub-​ state units. Irrespective of the degree of asymmetry, however, decentralization emerges as a key determinant of the legitimacy and efficacy of public security and the intergovernmental relations that institutionalize it. The institutional logic that informs this finding is a function of territorial differentiation of security priorities, values and interests across constituent units on the one hand, and subsidiarity on the other. The impact of the degree to which intergovernmental relations are politicized has a bearing on vertical and horizontal coordination only absent a concomitant level of maturity and trust among politicians and bureaucrats at various levels of government. Where institutional capacity and legitimacy are low, whom citizens tend to trust with matters of public security depends on the level of government more closely associated with their interests: while minorities may tend to mistrust the federal government when they reside in a sub-​state unit where they comprise the majority, they may place greater trust in the federal government when they are in the minority in their sub-​state unit. However, low levels of accountability and transparency need not necessarily occasion mistrust as long as public security outcomes are adequate. Institutionalized intergovernmental relations, high levels of mutual trust and robust institutional capacity give rise to more proactive policy making and prevention; where the converse obtains, policy response tends to be reactive and the central government, preoccupied with enforcement, emerges as the sole guarantor of public security. In other words, proactive, preventive measures are difficult to operationalize, let  alone sustain, in federations whose constituent units lack the necessary capacity, resources or competencies and the concomitant intergovernmental relations and mechanisms. Federal governance is never easy; but without effective institutions and processes to respond to diverse local values, interests and priorities for freedom and security, neither federalism nor governance, let alone democracy, are likely to succeed. As in other policy areas, the greater the variance among priorities, interests and values, the greater the incentive for decentralization and asymmetry to reconcile unity in diversity.

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References

Althusser, L. (1976). Idéologie et appareils idéologiques d’État. L. Althusser (ed.) Positions (1964–​1975). Paris: Éditions Sociales. Bittner, E. (1979). The Functions of the Police in Modern Society: A Review of Background Factors, Current Practices, and Possible Role Models. Cambridge, MA: Oelgeschlager, Gunn, and Hain. Brodeur, J. P. (1983). High policing and low policing:  remarks about the policing of political activities. Social Problems 30: 507–​20. Burgess, M. (2006). Comparative Federalism: Theory and Practice. New York: Routledge. Buzan, B., O. Wæver and J. de Wilde (1998). Security: A New Framework for Analysis. Boulder: Lynne Rienner. Collins, A. (2016). Contemporary Security Studies. 4th edn. Oxford: Oxford University Press. Elazar, D. J. (1987). Exploring Federalism. Tuscaloosa: University of Alabama Press. Kölling, M. and C. Leuprecht (2020). Föderalismus und die Herausforderungen der Inneren Sicherheit:  ein internationaler Vergleich, in Knüpling, Kölling, Kropp, Scheller, (eds), Reformbaustelle Bundesstaat. Wiesbaden: vs Springer. Leuprecht, C. and P. Kasurak (2020). The Canadian Armed Forces and Humanitarian Assistance and Disaster Relief:  Defining A  Role. Waterloo, ON:  Centre for International Governance Innovation. Leuprecht, C., M. Kölling and T. Hataley (2015). Federalism as decision-​making: security structures, procedures and policies, in Francesco Palermo and Elisabeth Alber (eds), Federalism as Decision Making: Changes in Structures, Procedures and Policies. Brill Academic Publishers. Leuprecht, C., M. Kölling and T. Hataley (eds) (2019). Public Security in Federal Polities. Toronto: University of Toronto Press. Mehra, A. (ed.) (2014). Public Security in Federal Systems. Lancer llc. Riedl, J. (2018). Entwicklungslinien der Politik Innerer Sicherheit in Deutschland: eine Belastungsprobe für das föderale Verfassungsprinzip. Jahrbuch des Föderalismus, Nomos. Saunders, C., J. Poirier and J. Kincaid (eds) (2016). Intergovernmental Relations in Federal Systems. Oxford University Press. Sheptycki, J. (2011). Transnational Crime and Policing. London: Ashgate. unodc (2019). Global Study on Homicide. Vienna: United Nations Office on Drugs and Crime. Watts, R. L. (2007). Comparing Federal Systems. Montreal and Kingston: McGill-​Queen’s University Press for the Institute of Intergovernmental Relations.

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Sub-​National Tax Autonomy in Argentina’s Fiscal Constitution A Perspective from Recent History Miguel Angel Asensio 1

Introduction

During the last decades there have been considerable changes in intergovernmental fiscal relations in Argentina, some of them focused specifically on the taxation powers of its sub-​national units. These changes were implemented both legislatively and through so-​called ‘fiscal pacts’. The most recent constitutional reform (approved in 1994), indeed, provided for modifications in the federal–​provincial fiscal relationship. In Argentina, some powers are clearly evident from constitutional provisions. Others originate more explicitly in specific laws regulating their application and in judicial interpretations bringing clarification of issues that had not been clearly envisaged in the founding stages of the federal organization of the country. This situation is not unique, nor exclusive to the Argentinian case. In other federal countries, the lack of clarity or relative obscurity of the founding charter´s legal theory of fiscal federalism has required later judicial interpretations to adjust the specific operation of the system down to the present day.1 After Argentina’s constitution as a federation in the 19th century,2 its system of federal finances evolved in three broad stages:  a) separation of revenue souces (1853–​1990), b) concurrency of revenue sources (1890–​1930) and c) revenue sharing (1930–​) (Asensio, di Gresia and Garat 2016; Núñez Miñana 1994; Núñez Miñana and Porto 1983). Beyond these principle governing mechanisms for distributing the proceeds of the most important federal taxes, partners in the federation retain their own levies: for example, customs 1 For example, the USA in relation to income tax and Canada with respect to the power of its provinces to levy taxes on retail sales. 2 The Argentinian federal constitution was approved in 1853, more than 40 years after the revolution against Spain in 1810 and after a number of failed attempts to enact other constitutions of a unitarian nature, rejected by the provinces.

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revenues (the nation) and local sales, stamp and property taxes (the provincial governments). The latter are the ultimate bulwark for the exercise of provincial tax autonomy over exclusively provincial tax bases: that is to say, the levying of taxes through the exclusive decision of their own authorities, working within the framework of provincial constitutions, as permitted by the federal system enacted in the national constitution. This autonomy is the subject of this chapter. Both modern federalism theory and fiscal economists have suggested guidelines for the key features of ‘tax assignment’ and ‘expenditure assignment’ that can illuminate intergovernmental fiscal arrangements. Such guidelines, when embodied in the legislation of any country, define the actual room to manoeuvre or effective autonomy enjoyed by the actors in the federal system. There exists, too, an important role for the ‘spending power’ of the federal government vis à vis the margin for sub-​national ones. After these introductory comments, I consider a very narrow framework of issues. Initially I examine some general concepts related to federal finance and options for revenue assignment, embracing notions of fiscal coordination, harmonization and spending power. The chapter then considers developments in this area, in particular as they relate to Argentina and to relative tax powers under its federal arrangements. Finally, the conclusion focuses on the supposed and actual tax autonomy of sub-​national governments in the federation. 2

From Fiscal Constitution to Tax and Expenditure Assignment

Some time ago, the great international expert Anwar Shah pointed to the importance of what he called the ‘fiscal constitution’. It is obvious he did not intend to play down national constitutions: he observed only that the more modest concept of ‘fiscal constitution’, besides adhering to the provisions of the former, incorporates other, more specific, concepts and practices that have become the authentic references for understanding how fiscal issues actually play out in federal countries (Shah 2007). This is an important idea. Recent studies allow us to highlight some of the key components of such fiscal constitutions, with a particular initial focus on the essential features of multilevel finance3—​tax assignment, expenditure

3 I adopt the term from David King (1988), as a synonym for federal fiscal arrangements, fiscal federal agreements or simply fiscal federalism.

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174 Asensio assignment and mechanisms for making intergovernmental transfers. Among these features are the criteria for determining which of them correspond or can be assigned to the constituent units and which to the federal government, criteria that are also applied to the functions which generate public spending. The vertical imbalances (systematic gaps between the own-​source revenues and expenditure responsibilities assigned) that usually appear open the way for the establishment of mechanisms to transfer resources to reduce or eliminate such disequilibria. There are other important features, some of them linked to mechanisms for policy development and decision making. In federal countries, the process of decision making known as ‘co-​determination’ is particularly important. Co-​ determination involves the actions of other actors like the judiciary (in particular the Supreme Court) or the Senate. The former plays a central role in the formulation of revenue doctrines and in balancing the interests of territorial jurisdictions and those of the nation. The Senate, as the second chamber in federations, can also play a fundamental role, to the extent it represents and defends the true interests of the provinces or states as original constituent units (ocde 2016). Kenneth Wheare (1964) drew a particularly emphatic and prescriptive picture of the fiscal capacity of the members of a federation. The states must have sufficient revenues to enable them to act independently in their governmental activities. This perception in the matter of revenues is also reflected in perceptions of transfers (where they are needed). In this case, Wheare would point out that any such transfers would have to be granted free from any condition: that is to say, not subject or linked to any particular purpose, available to help meet the goals that the state governments themselves set. Wheare was writing in strong defence against quite insistent claims that federal systems face very strong forces pushing them ultimately towards unification; he insisted instead that federal systems posess a robust framework for a lasting existence, in which these financial principles play an important role.4 Over time, notwithstanding the originating principle of clear ‘separation’, we also see the development of a ‘cooperative’ and ‘consensual’ view of the relationship among federal actors. In particular, some have pointed out the frequent utilization of federal spending power in cooperative/​consensual federal frameworks. In brief, the spending power exercised by the federal government 4 The idea of a federation as an intermediate stage between confederation and a consolidated or unitarian state comes and goes in the literature. The 19th-​century Argentinian constitutional framer Juan Bautista Alberdi clearly stated that he held such a conception (Alberdi 1852).

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table 10.1 Tax Assignment in an Idealized Federal Context

National Taxes

Regional/​Local Taxes

1. Personal and corporate income tax 2. Main sales taxes 3. Excises 4. Taxes on natural resources 5. Customs taxes

1. Sales taxes 2. Excises 3. Property taxes 4. User fees 5. Surcharges

implies the imposition of its own priorities on the provinces, states, cantons, länder or similar sub-​national units, and on the municipal or communal levels (as minor sub-​national units). This is true, too, in the fiscal field (Bird 2011). The prescriptions of Wheare and others, based on a strict federal constitutional order in its ‘financial side’, could be included in what is called the ‘federal finance approach’, which can be contrasted with the contributions of fiscal economists adhering to the theoretical approach of ‘fiscal federalism’ (Bird and Chen 1998), focusing on capacity to consider and respond to the conceptual standards of efficiency, equity and administrability. From Charles Tiebout’s (1956) seminal contribution, and its emphasis on the possibility of ‘voting with one’s feet’, to the rationalized approach elaborated by the Musgraves (Musgrave and Musgrave 1992) and others, a framework (see Table 10.1) was developed according to which the main taxes should be assigned to the national government, while those that are related to land or local in nature should be assigned to intermediate and local governments (Due and Friedlaender 1981). In practice, this implies that personal income tax, corporate taxes and the main sales taxes should all be levied by central governments, leaving intermediate and local government finances resting essentially on property taxes and other minor or less profitable taxing options. As a result, federal arrangements can adopt a variety of different forms: a strict separation of revenue sources, some concurrency, and mechanisms for revenue sharing or ‘piggy backing’.5 Beneath this approach lies the principle that reserves the important functions of stabilizing macroeconomics and redistribution of personal incomes

5 In countries like the USA and Canada, among others, where piggy backing is utilized, the end result is an effectively ‘concurrent’ system of taxation (Asensio 2015; Keen 2003).

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176 Asensio to the federal government, assuming that they are inappropriate to the sub-​ national orbit. The latter must limit its activities to the allocative side of policies of a more restricted territorial scope.6 This leads to an unbalanced distribution of fiscal power, generally in favour of the national government. It does, however, provide an important safety-​valve for states and municipalities, in the form of the ability to levy supplementary rates on taxes legislated federally. Recent contributions to the literature generally agree on this approach, but add a moderate role for excise taxes, and distinguish various types of taxation on sales, as well as logically insisting on the concept of administrative feasibility for the design and levying of certain taxes (McLure 2000). This is important, because it defines how fiscal constitutions can be designed to grant certain taxing powers to each governmental level—​that is to say, the gross distribution of law-​making capacities in taxation matters. In practice, federal financial regimes exhibit a variety of options (Bird and Vaillancourt 1998). Moroeover, specific prescriptions as to the exercise of taxation powers could be introduced or established at more detailed level or in a complementary form. This approach, in other words, implies the existence of a tax autonomy that is regulated or circumvented in some way. The line between the imposition of constraints and ‘tax harmonization’7 as a necessary phenomenon is sometimes unclear and not fully defined. Tax harmonization, as a technical objective in systems with a large number of taxing authorities acting in an economic or fiscal union, can take a variety of different forms, as the experience of the European Union shows.8 Tax autonomy is analysed in the literature in terms of how strictly the parameters for the exercise of freedom to tax are set for that level. Table 10.2 outlines possible arrangements, illustrating the different degrees of tax autonomy under consideration. It is clear that only the first option entails a full degree of tax autonomy. All the others involve some type of control or limitation imposed by other levels 6 Recent developments show that the redistributive content of some spending functions located at the sub-​national level could, to some extent, modify this vision of revenue allocations dominated by restrictions on the taxation powers of the sub-​national level. 7 Usually the concepts of fiscal coordination and tax harmonization are viewed as closely related. In this chapter, I understand ‘fiscal coordination’ as the political and constitutional process that determines revenue and expenditure powers in federal systems and ‘tax harmonization’ as the technical adjustment of tax structures within the resulting framework (González Cano 1995). 8 Three approaches to tax harmonization. In the context of EU community laws exist: equalization, approximation and a differential approach. The strategy for achieving such harmonization can be competitive or institutional (González González 2016).

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table 10.2 Classification of Tax Powers at the Sub-​Central Government (scg) Level

a.1 The recipient scg sets the tax rate and any tax reliefs without needing to consult a higher-​level government. a.2 The recipient scg sets the rate and any reliefs after consulting a higher-​ level government. b.1 The recipient scg sets the tax rate, and a higher-​level government sets no upper or lower limits on the rate chosen. b.2 The recipient scg sets the tax rate, and a higher-​level government sets upper and/​or lower limits on the rate chosen. c.1 The recipient scg sets tax reliefs—​but it sets tax allowances only. c.2 The recipient scg sets tax reliefs—​but it sets tax credits only. c.3 The recipient scg sets tax reliefs—​and it sets both tax allowances and tax credits. d.1 There is a tax-​sharing arrangement in which the scg s determine the revenue split. d.2 There is a tax-​sharing arrangement in which the revenue split can be changed only with the consent of scg s. d.3 There is a tax-​sharing arrangement in which the revenue split is determined by legislation, and which may be changed unilaterally by a higher-​level government, but less frequently than once a year. d.4 There is a tax-​sharing arrangement in which the revenue split is determined annually by a higher-​level government. e Other cases in which the central government sets the rate and base of the scg tax. f None of the above categories applies Note. This table reflects the range of sub-​national taxation practices within oecd member countries including both unitary and federal states (Blochliger and King 2006; Blochliger and Rabesonna 2011).

of government on the exercise of taxation powers by sub-​national units. It is possible, at best, to discern ‘some’ but not ‘full’ autonomy. When these ‘constrained autonomy’ situations become widespread within a federation, the entire operation of its multi-​level finance system is affected. It is clear, therefore, that the effective level of tax autonomy must be assessed in light of the actual structure of the taxes levied by sub-​national units and their control over the component elements: the tax base, tax rates, tax exemptions, tax credits, and so on. It is these that, in the end, determine

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178 Asensio the actual degree of autonomy sub-​national levels have in the exercise of their designated taxation powers. 3

Argentina in the Last Three Decades

Against the background set out above, based on the broad international experience, it is worth briefly mentioning the evolution of some relevant norms in the Argentinian case. I begin with the federal Transitory Law for the Distribution of National Resources (Coparticipatory Regime) enacted in 1988. Following hard-​fought negotiations between the federal government and the 23 provinces, this implemented a scheme for the distribution of common revenues across federal and provincial jurisdictions.9 The distribution established a 44.34 per cent share for the nation, 54.66 per cent for the provinces and 1 per cent for an emergency fund (the Aportes del Tesoro Nacional a las Provincias). I refer here to ‘common revenues’ since, in the revenue-​sharing mechanism in force in Argentina, each level determines its ‘revenue mix’, combining its own resources or revenues from its own jurisdiction with a share of the common ones. Common revenues consist of federally legislated, administered and collected taxes (that is, the main taxes) in the proportions established by law and involves both a primary and a secondary distribution. The primary distribution is the one between the federal government and the provinces, as described in the preceding paragraph. The secondary distribution involves dividing the provincial share of the ‘revenue pie’ among the 23 provinces, likewise in specified proportions.10 The 1988 law—​which was explicitly intended to be transitional—​is still in force today, albeit with numerous modifications. It was the moment at which certain regulatory concepts for provincial taxation powers were enshrined in law, particularly those related to the Gross Incomes Tax (Impuesto sobre los Ingresos Brutos (iib)) and Stamp Tax (Impuesto de Sellos (is)), and especially in relation to their taxable bases, their sectoral incidence, the activities affected by the tax, and so on.

9

10

The early 1970s had seen the implementation of the most comprehensive revenue-​sharing mechanism in the country’s history. Enacted by Law 20.221/​73, it embraced all the principal federal taxes, other than customs duties, which the constitution assigns exclusively to the national government. From 1974 onwards, Value Added Tax (vat) was enacted at the federal level. As I will discuss below, the main tax levied by the provinces, a turnover tax (the iib), was eliminated for a very short period. For a general description of the Argentinian system, see Asensio 2013, 2014.

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The 1988 law (which has the status of a ‘Ley-​Convenio’, or ‘framework legislation’) set out the detailed regulatory framework applicable to the iib and the is, and was predominantly directed at enforcing revenue sharing, given the need for approval by the legislatures of all the provinces (including, in the case of bicameral legislatures, both Houses). It is worth emphasizing this point, because in a law mainly dealing with a principal instrument of fiscal coordination like the revenue-​sharing regime, clauses were introduced to precisely constrain the exercise of taxation powers recognised as provincial ones in the framework of the fiscal constitution previously in force. Besides an explicit requirement to avoid double taxation, the underlying idea then influencing federal tax policy was a durable one: the iib needed to be constrained given its cascading effects common to any ‘turnover tax’. Also targeted was the Stamp Tax (is) on the grounds that it was a ‘bad’ (that is, unduly distorting) tax. This was not the first attempt to deal with the iib. Previously, in 1974, when vat was adopted at the federal level, the iib was abolished and replaced with the Impuesto de Patentes. This fiscal experiment had a very short life, because the yields from the iib were too high to be replaced by other tax alternatives, and it was quickly reinstated. Subsequent reforms to the iib were intended to reduce its cascading effect by applying a scale of tax rates progressively increasing from agricultural products to manufactured goods and to services. This was the general situation of relative tax powers at the end of the 1980s when Law 23.548 was enacted. The federal government enjoyed a strong tax muscle thanks to vat, in place since 1974, but was required to share its proceeds with the provinces; meanwhile the provinces collected the iib and other levies that were widely seen as imperfect revenue bases. Though budgetary reasons precluded the abolition of the iib, its design, implementation and effects could still be altered. In 1991  ‘the age of pacts’ began, some of which targeted provincial tax powers. One of the main pacts was forced by the need to fund a reform of social security and entailed a reduction in the ‘shareable mass’,11 reducing the resources available for the provinces, despite a ‘guarantee’ clause (August 1992), but did not increase restrictions on provincial tax powers. A year later (August 1993), another of these pacts, in addition to modifying the vertical fiscal federal revenue-​sharing scheme (including a new guarantee of the level of federal resources to be transferred), included provisions that clearly altered the nature of the tax autonomy exercised by both provincial and municipal 11

This reduction was a retention of 15% of such ‘shareable mass’ previous to the primary distribution of federal revenue between nation and provinces, implying a significant ‘pre-​ coparticipatory’ device, which had lasting consequences (see below).

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180 Asensio table 10.3 Modifications to Sub-​national Taxation under the Federal Agreement of 1993

Order Taxes

Provisions

Clauses

1 2 3 4 5

Stamp tax Stamp tax Excise on gas Excise on banks Gross incomes (iib)

6

Gross incomes (iib) Property tax Property tax

Elimination on financial activities Progressive total elimination Immediate elimination Immediate elimination Exemption of agriculture, industry, water, gas, electricity, construction, finance, etc. Substitution by Retail Sales Tax

i.1 i.1 i.2 i.2. i.3 (a), (b), (d), (e), (f), (g) i.7

Maximum rates 1.2/​1.35 and 5.1% Taxable base 80% market value

i.5 i.5

7 8

Source: provincial laws and National Decree 14/​9 4, 6 Jan. 1994.

governments (see Table 10.3). Known as the Federal Agreement for Production and Growth, the pact’s stated objective was to enhance the competitiveness of the economy, including through further constraints on sub-​national tax autonomy that targeted both the tax rates and tax bases of provincial and municipal taxes and other levies. The modifications imposed on provincial and municipal taxes, some of them immediate and others to be phased in, significantly weakened the provincial ‘tax sword’, notably in relation to the Property Tax (Impuesto Inmobiliario (ii)) and Stamp Tax, both important provincial taxes, as well as to the ‘tasas’ levied by municipalities and local governments for different services delivered in their jurisdictions. The pact also eliminated sectoral charges in the iib. The logic of federal–​provincial negotiations which led to such ‘agreements’ was one of ‘carrot and stick’, based on assurances of a minimum level of transfers to provinces in exchange for provincial/​municipal renunciation of tax powers and homogenization of their taxes and levies, along with other reforms.12 Of prime importance was the requirement for the final elimination of the iib and its replacement by a tax similar to the Retail Sales Tax applied

12

Compensatory options such as these are not unknown in federal–​provincial fiscal arrangements internationally.

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in the USA and Canada. Again, the removal of the iib was the main target for getting to a more efficient tax system. The problem underlying this attempted reform was the heterogeneous weight in different provinces’ tax structures of the sub-​national taxes targeted for reduction or elimination. Usually, iib and is were of major importance to provinces with a more advanced economic structure. So, for ‘industrial’ provinces, the elimination of the iib on manufacturing would cause a major loss of revenue, while for others it would be negligible. Not all of them generated much revenue from is and many of them had very outdated cadastral values (assessed land values by a public organism) levying the ii. Additionally, if implementation of the proposed Retail Sales Tax had been immediate, required tax rates or ‘substitution rates’ for achieving similar revenues to those collected from a ‘cascading’ tax instrument like the iib would have needed to be very high: two or three times the average rate in force under the iib. The inflationary effect would have appeared immediately as a risk linked to the fiscal (revenue) risk. The natural development of the agreement would have entailed a march at different paces and following different paths for each province. In the end, implementation of the rst was abandoned:  the iib survived once more, though with reduction or elimination on primary and secondary sector production and a compensatory increase in rates on tertiary-​sector production. These changes took effect progressively in connection with fiscal feasibility considerations closely linked to the evolution of general macroeconomic conditions in the country as a whole. The end of the 1990s saw serious economic deterioration which culminated in the great crisis of 2001–​2, when the country was required to default on its debt obligations. That experience of economic failure left the different federal and provincial actors in varying financial positions and also left the tax reforms described above at different degrees of implementation. To further complicate the picture, new taxes were introduced in response to the crisis, both at the federal level and in the provinces.13 In late 2015, a decision by the Supreme Court suddenly changed the situation again. The 15 per cent reduction in the ‘shareable mass’ (in place since 1992)  that cut transfers to the provinces in the revenue-​sharing system was declared unconstitutional, imposing the need to build a new fiscal federal framework and to re-​balance an overall fiscal relationship that placed the Federal Treasury in a fragile budgetary situation. 13

At the federal level, the Congress created the Tax on Bank Debits and Credits, also known as the ‘Tax on Cheques’ (Impuesto al Cheque) which affected savings and current accounts, generated significant revenues, and is still in force.

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182 Asensio table 10.4 Fiscal Consensus 2017: Tax Cuts and Changes to the iib

Rates (percentages) Activities Taxed

2018

2019

2020

2021

2022

Agriculture, fishing, mining Manufacturing Electricity, gas, water Construction Commerce Hotels, restaurants Transport Communications Financial services Real estate, business, rent Social and health services

1.5 2.0 5.0 3.0 wm 5.0 3.0 5.0 wm 6.0 5.0

0.75 1.5 3.75 2.5 5.0 4.5 2.0 4.0 5.5 5.0 4.75

0 1.0 2.5 2.0 5.0 4.0 1.0 3.0 5.0 4.0 4.5

0 0.5 1.25 2.0 5.0 4.0 0 3.0 5.0 4.0 4.25

0 0 0 2.0 5.0 4.0 0 3.0 5.0 4.0 4.0

Key: wm = Without Maximum (or Limits). Source:  Annex i of the ‘Consenso Fiscal Federal’, approved by a national law that additionally requires approval by all the provinces of Argentina.

So, in 2017, barely 25 years after the pact of 1993, a new federal agreement was signed by the representatives of the nation and the provinces, going by the name of ‘fiscal consensus’ (see Table 10.4). It compensated the nation by granting it the exclusive right to the Tax on Bank Debits and Credits, as well as approving various specific changes limiting and re-​regulating the exercise of sub-​national tax autonomy as a way of achieving more efficiency and competitiveness for the economy. It also provided provinces with the ‘carrot’ of an acceleration of the phased-​in ‘refunding’ of the 15 per cent reduction that had been declared unconstitutional. Once again, the agreement targeted the iib. It aimed to reduce the impact and incidence of the iib on intermediate phases of economic activity, especially in interprovincial commercial operations, as well as defining rates and tax bases for certain sectors to be consistent with the macroeconomic and fiscal goals announced.14 Ultimately, the agreement involves an implicit basic 14

Once again expert and national government opinion broadly agreed on the need to modify this ‘bad’ tax (the iib). While this may indeed be the case, they ignored the reality emerging from global federal fiscal arrangements, whereby taxes that are essentially ‘bad’

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form of tax harmonization of the iib to be pursued and achieved at a prescribed pace. Table 10.4 sets out the schedule for implementing its changes to tax rates and tax structure.15 The agreement is thus conceived as a new phased-​in approach to eliminating the iib on primary activities, manufacturing, utilities and transport, at different paces over five years; and to reducing it in some other areas, while continuing to apply higher tax rates on commerce and financial services. In a certain sense, it is a similar strategy to the one followed in 1993: modifying the structure of the iib to shift the tax burden on to the final consumer and away from the productive and infrastructural sectors. Once more it followed a line of action where sub-​national tax powers are defined jointly with the redefinition of the revenue-​sharing system. And, in the end, it remains a federal strategy born in the national cabinet. We see here—​as in the other reform efforts described—​an additional form of ‘co-​determination’. The Senate intervened in the first instance (or, in constitutional terms, the provinces through their senators), which in itself implies its participation, then intervened again by means of the direct working of their institutions which approved to the ‘leyes-​convenio’ (provincial laws passed after a general agreement was made). Thus, there is, in effect, double co-​determination. In such a context, the type of autonomy emerging from national laws enacted following agreements between the national and provincial governments, despite being approved at each governmental level through their constitutional and legislative institutions, remains a ‘regulated autonomy’, operating as a principal–​agent-​type relationship even in the execution of those powers already contemplated in the fiscal constitution.16 Regulated autonomy does not usually emerge in its initial form from horizontal mechanisms for achieving consensus or agreement among provinces themselves (as represented by their governors, for example).17 Instead, it is born in general in the orbit of the national government, which becomes the main actor in the whole tax structure, national and sub-​national. As a result, the workings of Argentinian fiscal federalism at best only weakly resemble the

15 16 17

(such as the iib and stamp taxes) are levied by provinces, with the ‘good’ taxes reserved for the federal treasury. As mentioned above, in alluding to the European case, this reform could be classified as a partial harmonization of the ‘approximation type’, given the heterogeneous tax landscape and tax burden generated by the provinces (Adame Martínez 2008 [2011]). For such an organizational form and a nexus with reform of the state, see Przeworski 1999. For example, in institutions like the Council of the Federation (Canada) or the Council of Australian Governments.

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184 Asensio table 10.5 Relative Weight of the Tax Burden Generated in Argentina (% of Tax Revenue/​ gdp)

Tax Burden

2004

2006

2008

2010

2012

2014

2016

National Provincial Total Provincial/​ Total

20.92 3.73 24.65 15.1

21.54 3.81 25.35 15.0

23.92 3.96 27.88 14.2

25.12 4.14 29.25 14.2

26.12 4.6 30.71 15.0

26.1 5.25 31.35 16.7

25.81 4.99 30.8 16.2

Source: Secretaria de Hacienda, Ministerio de Economía y Finanzas Públicas de la República Argentina, various issues.

classic model of highly autonomous actors operating in distinct and separate fields. This is particularly true in relation to the generation of tax resources and the relative importance of national and sub-​national tax revenues where, as Table  10.5 shows, provinces and local governments play only a minor role. Given the macroeconomic stabilization goals usually entrenched in the agreements reached, it is striking that so much emphasis is placed on the provincial tax structure which, in quantitative terms, occupies a decidedly secondary position in the whole revenue system. Turning from the narrow concept of tax autonomy to that of broader ‘budgetary autonomy’—​which includes the expenditure side, fiscal results and public debt—​we also need to refer to significant further restrictions on provincial/​local autonomy imposed by the so-​called ‘fiscal responsibility laws’, which, if not actually coercive in relation to provinces,18 have frequently produced imbalance. In such laws, provisions have tended towards being clearly asymetric,19 with greater insistence on the imposition of financial discipline in provincial jurisdictions, and less consideration given to the need for similar restrictions on the national government. Such regulation of provincial autonomy, in spite of

18 19

Here I adopt John Kincaid’s (2015) suggestive and important notion of the evolutionary tendency towards ‘coercive federalism’, the fiscal dimension of which in the Argentinian case is developed by Alberto Porto (2010 [2004]). For the concept of ‘asymetry’ in federations, see Watts 1995.

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having an important and positive objective, have not prevented instances of financial upheaval in the country as a whole. 4

Conclusion

The notion of a ‘fiscal constitution’ allows us to determine the extent of tax autonomy actually exercised by different levels of government in a federation. Even measured against a broad conception of tax autonomy, such as Kenneth Wheare’s classic view featuring free transfers or untied/​unconditional grants, it is perhaps, despite not meeting the ideal, a ‘second-​best way’ in terms of the operation of a federal system. It legitimizes the ‘right to spend’ (or perhaps to live with the mínimum or to remain uncoerced), but it could involve other limitations, the first of which is the renunciation or abandonment of the authority to determine the structure of important taxes which had been within the scope of sub-​national jurisdiction. These alternative models tend to create a ‘federalism of recipients’ (of revenues generated by ‘donors’) and not one of generators. In Argentina, even taxes reserved to the provincial jurisdiction have become targets of regulation which circumvents and restricts provincial tax autonomy, including through mechanisms of co-​determination that involve carrot-​and-​ stick bargaining, as described above—​frequently offering greater revenue transfers or debt relief in exchange for ever more limited sub-​national taxation capacities. Meanwhile federal spending power (while seldom explicitly coercive) plays an important centralizing role that moves the federal system closer to a principal–​agent model. These restrictions are sometimes entailed by necessary or advisable tax harmonization, along lines also agreed upon in other federations or countries with multi-​level governments. The reader may ask whether Argentinian provinces are playing a bargaining game while also suffering from a ‘Stockholm syndrome’ in which they cede power to federal authorities and agree to restrictions on their tax powers in exchange for debt relief and additional ‘easy money’ from federal transfers. There may be some truth in this, considering the role of co-​determination in the Senate and the usual need of governors for funds, but it pushes federal finances and the federal system further down the path to centralization. Sub-​national tax autonomy in Argentina today, then, does not refer to an autonomy exercised in a pure sense, in terms of the complete separation of tax sources envisaged in the 19th century, but to a qualitatively different one. It has emerged from legally validated mechanisms of negotiation, derived from conceptions frequently developed within the national government, which have

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186 Asensio come to shape, beyond the requirements of reasonable tax and fiscal harmonization, a scheme of ‘regulated autonomy’. Such a landscape has little correspondence with the optimistic view of financial autonomy envisaged for federal countries by Kenneth Wheare. It shows, indeed, an increasing tendency to uniformity and centralization in tax matters in Argentina.

References

Adame Martínez, Francisco David (2011). La imposición sobre la renta de las personas físicas en la Union Europea, in Lasarte Alvarez, J., F. Adame Martínez and Jesús Ramos Prieto (eds), Unión Europea:  Armonización y coordinación fiscal tras el Tratado de Lisboa. Seminario Universidad Pablo de Olavide e Instituto de Altos Estudios Tributarios de la Universidad de Bolonia, Seville. Alberdi, Juan Bautista (1852). Bases y puntos de partida para la organización nacional de la República Argentina. Buenos Aires: Plus Ultra. Asensio, Miguel Angel (2013). Fiscal federalism and federal decisions:  the case of Argentina and Its Evolution in the Last Two Decades, in Francesco Palermo and Elisabeth Alber (eds), Federalism as Decision-​ Making. Changes in Structures, Procedures and Policies. Leiden: Brill-​Nijhoff. Asensio, Miguel Angel (2014). Concurrency of taxing powers in Argentina, in Nico Steytler (ed.), Federalism and Concurrent Powers: Meaning, Making and Managing. Leiden: Brill-​ Nijhoff. Asensio, Miguel Angel (2015). Subnational tax powers in Argentina, Occasional Paper No. 16, Forum of Federations, Ottawa. Asensio, Miguel Angel, Luciano M. Di Gresia and Pablo M. Garat (2016). Aportes para un debate fiscal federal. Buenos Aires: Edicion de Fundación Civilidad. Bird, Richard M. (2011). The federal spending power, in Miguel Angel Asensio and Pablo M. Garat (eds), Federalismo fiscal:  Experiencia nacional y comparada. Asociación Argentina de Derecho Comparado (aadc). Santa Fe: Rubinzal y Culzoni. Bird, Richard M. and Duan-​jie Chen (1998). Federal finance and fiscal federalism: the two worlds of Canadian public finance. Canadian Public Administration 41(1): 51–​74. Bird, Richard M. and François Vaillancourt (1998). Fiscal Federalism in Developing Countries. Cambridge: Cambridge University Press. Blöchliger, Hansjörg and King, David (2006). Subnational tax autonomy, oecd Working Papers, Paris. Blöchliger, Hansjörg and Josette Rabesona (2009). The fiscal autonomy of sub-​central governments: an update, oecd Working Paper on Federalism No. 9, Paris. Due, John F. and Ann F. Friedlaender (1981). Analisis económico de los impuestos y del sector público. Buenos Aires: El Ateneo.

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González Cano, Hugo (1995). Armonización tributaria en el Mercosur. Buenos Aires: citaf-​o ea. González González, Ana Isabel (2016). Armonización fiscal y aproximación de los sistemas fiscales. Cuadernos Jean Monnet sobre integración europea fiscal y económica, Universidad de Oviedo. Keen, Michael (2003). Concurrency of fiscal powers, imf Working Paper, Washington, DC. Kincaid, John (2015). Coercive federalism, in M. Burgess and A. Gagnon (eds), Federalism and Federation. Leiden: Brill-​Nijhoff. King, David (1988). Finanzas de los gobiernos multinivel. Madrid: Instituto de Estudios Fiscales. McLure, Charles (2000). Tax assignment and subnational fiscal autonomy. Bulletin for International Fiscal Documentation 54: 626–​35. Musgrave, Richard A. and Peggy Musgrave (1992). Hacienda Pública: Teórica y Aplicada. Madrid: McGraw-​Hill. ocde (2016). Fiscal Federalism, Annual Report Series in Fiscal Federalism. Paris: oecd Printing Office. Núñez Miñana, Horacio and Alberto Porto (1983). Informe sobre la Distribución de Recursos Fiscales entre la Nación y las Provincias, 3 vols. Buenos Aires:  Consejo Federal de Inversiones. Nuñez Miñana, Horacio (1994). Finanzas Públicas. Buenos Aires: Editorial Macchi. Porto, Alberto (2003). Federalismo fiscal. Buenos Aires: utdt-​Sudamericana. Porto, Alberto (2004). Disparidades regionales y federalism fiscal. La Plata, edulp. Pzeworski, Adam (1999). On the design of states: a principal–​agent perspective, in Luiz Carlos Bresser Pereira and Peter Spink (eds), Reforming the State: Managerial Public Administration in Latin America. Boulder: Lynne Rienner Publishers. Shah, Anwar (2006). Local Government Finance in Developing Countries. Washington, DC: World Bank. Shah, Anwar (ed.) (2007). The Practice of Fiscal Federalism: Comparative Perspectives. Montreal and Kingston: McGill-​Queen’s University Press. Tiebout, Charles (1956). A pure theory of local expenditure. Journal of Political Economy 64(5): 416–​24. Watts, Ronald (1995). Comparing Federal Systems in the 1990s. Kingston: Institute for Intergovernmental Relations, Queen’s University. Wheare, K. (1964). Federal Government. London: Oxford University Press.

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pa rt 4 Real versus Imagined Autonomy: Emerging Federations

∵

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­c hapter 11

Real or Imagined Local Autonomy

Experiences from Local Government in Ethiopia, South Africa and Zimbabwe Tinashe Chigwata, Jaap de Visser and Zemelak Ayele 1

Introduction

Centralized rule has been common in Africa, and almost all African countries implemented, constitutionally or otherwise, programs of centralization from the time they achieved independence from colonial rule. They did so with the declared purposes of modernization, achieving economic development and nation building (Godefroidt, Langer and Meuleman 2016). However, these lofty goals were not achieved; African countries remain characterized by underdevelopment, lack of democratic rule, corruption and ethnic-​based conflicts. Many blame the centralized and extremely bureaucratized government and governance systems and decision-​making processes for worsening, if not causing, these problems (Addisson 1998; Jackson 2002). In the past three or so decades, therefore, there has been a general move in Africa towards decentralization and reducing bureaucracy. This trend is part of a global movement, based on the recognition that central government was too big, inaccessible, remote and inefficient in terms of bringing about development and democratic rule (Sharma 2009). Furthermore, thanks to advances in communication technologies, small subnational political units are now capable of efficiently delivering services and infrastructures that hitherto only national government could manage. Technological advancement, therefore, by diminishing the economic role of national government and, concurrently, enhancing the role that subnational political units play in economic matters, has further encouraged decentralization (Sharma 2009). Moreover, in the 1990s, international financial institutions, such as the World Bank and the International Monetary Fund (imf) put pressure on many African and other developing states to implement Structural Adjustment Programmes, one of the integral parts of which was decentralization, which became a requirement for securing loans from these institutions (World Bank 1999). Many African states have therefore undertaken a restructuring of their territorial and government organizations (Gore 2000). As part of this institutional

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reform, some African countries—​for example, Ethiopia, Sudan, South Sudan—​ have adopted federal-​type arrangements. Others—​such as South Africa and Kenya—​have combined federal and unitary features. Another group of countries—​such as Zimbabwe and Zambia—​with predominately unitary systems introduced some form of multi-​level government arrangements. All of them underscored the importance of allowing local government to enjoy a degree of political, financial and administrative autonomy. Several questions arise. First, what is the level of local autonomy in these countries? Is it real or just imagined? How has such autonomy impacted on the realization of objectives which necessitated state (re)organization? This chapter seeks to answer these questions by taking three African states—​Ethiopia, South Africa and Zimbabwe—​as case-​studies. It provides an overview of each and outlines the political and economic motives that underpinned decentralization. It then describes the local government structure of each country and assesses whether local autonomy in is real or simply imagined both at constitution/​statutory levels and in practice. 2

The Federal Democratic Republic of Ethiopia

Ethiopia is one of the largest and, with over 100 million people, the second most populous country in Africa. With over 80 ethno-​linguistic communities, the country has an extremely diverse population (Central Statistics Agency of Ethiopia 2007). It has one of the lowest levels of urbanization in the world (World Bank 2015), and is among the poorest nations: close to 30 per cent of its population lives under the national poverty line. Having been a monarchy for centuries and under the rule of a military junta for two decades, the country has barely any experience of democratic rule. The lack of democratic governance, the mismanagement of the ethnic diversity of the people and the prevalence of poverty led to decades of civil war, ending in May 1991 when the Ethiopian Peoples’ Revolutionary Democratic Front (eprdf) assumed power. After a four-​year transitional period, the party oversaw the promulgation of the 1995 constitutions which restructured the country on federal basis with a federal government at the centre and nine states as constituent units of the federation.1

1 The states are Afar, Amhara, Benishangul-​Gumuz, Gambella, Hararei, Oromia, Southern Nations and Nationalities (snnp), Somali and Tigray (fdre constitution, Art 47).

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2.1 Decentralization in Ethiopia: Motives and Processes Ethiopia had an extremely centralized system until eprdf assumed power and began a process of decentralization which was implemented in two phases. Having diagnosed the key political predicament facing the country as the mismanagement of its ethnic diversity, eprdf intended the first phase (1991–​5) to address the ‘nationality question’ (Gebre-​Egziabher and Berhanu 2007). The nine states were structured along ethnic lines, designed to allow ethnic communities to enjoy territorial autonomy. Each of the five largest states (Amhara, Oromia, Tigray, Afar and Somali) has a dominant ethnic community and is considered a ‘mother state’ or ‘homeland’ of the ethnic community whose name it bears (Fessha 2010; Fiseha 2007). Nevertheless, all of the regional states are ethnically heterogeneous. Ethnically structured local government was thus used as the other option for accommodating ethnic diversity at substate level. Some 15 ethnically organized local governments were thus established for substate minorities in Amhara, snnp, Gambella and Afar states. The second phase of decentralization was launched in the early 2000s with the aim of ensuring the efficient delivery of basic services so as to reduce poverty in the country (Gebre-​Egziabher and Berhanu 2007). The nine states revised their subnational constitutions with the declared purpose of restructuring their local government and devolving to the latter certain local political and financial powers. 2.2 Local Government Structure in Ethiopia There are two categories of local government in Ethiopia: ethnic and regular local governments (Ayele and Fessha 2012). The ethnic local governments are nationality zone (special zone) and liyu-​woreda (special district). Nationality zones are established as institutions of self-​government for intra-​state ethnic minority communities occupying a territorial area covering two or more districts, while a liyu-​woreda is established for a community inhabiting a single district. The territorial demarcation of a nationality zone or liyu-​woreda follows the territorial settlement structure of the particular ethnic community for which it was established (Ayele and Fessha 2012). A  nationality zone or a liyu woreda is not only an autonomous local unit, it may also secede from its state to become a separate state (see also Ayele 2014). Recently, more than 10 nationality zone councils, the most notable being the Sidama zone, have resolved to secede from the snnp—​f implemented, this would be the end of the snnp as a state. The regular local government is comprised of rural woredas and cities. In principle, a woreda is established in an area inhabited by approximately

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100,000 people.2 There were 600 woredas when the second phase of decentralization began. Now, there are over 800 woredas and over 100 cities; it is unclear what the criteria for the additional 200 or so woredas (Berhanu 2017). Addis Ababa (the capital of the federation and the largest city in the country) and Dire Dawa are autonomous federal cities which are outside the political jurisdiction of any regional state.3 2.3 Local Autonomy in Ethiopia 2.3.1 Local Autonomy at Constitutional/​Statutory Level The 1995 constitution does not explicitly recognize local government as an autonomous third level of government after the federal and state levels. Under the constitution, local government falls within the exclusive competence of the states. However, the constitution makes references, albeit vague and passing, to local government. Article 39(3), which recognizes the right to self-​ government of every ethnic community, implies that ethnic self-​government could be established as the local level and would have some degree of political autonomy. Article 50(4) also suggests the establishment of what is referred to above as a regular local government. Moreover, by linking the establishment of regular local government with the need to ensure democratic participation at the lowest level of government, the constitution implicitly enjoins the state to provide it with some degree of autonomy. The nine sub-​national constitutions recognize the woreda as a local-​level government with the power to autonomously decide on local matters. They provide that each nationality zone, liyu woreda, woreda and city should have a representative council composed of elected representatives and an executive appointed by the local council. The executive council (or cabinet) of a woreda, liyu woreda or nationality zone is composed of a chief administrator and the heads of the various executive organs of that local unit. The chief administrator, who is elected by and from among the members of the woreda, liyu woreda or the nationality zone council, chairs the executive council of the local unit. A mayoral committee, composed of a mayor and heads of the executive units of a city, serves as the highest executive organ of the city. A mayor is elected by and from among members of a city council when a party which controls the majority of the seats nominates a person 2 For instance, Benishangul-​Gumuz regional state has 20 woredas (bgrs Proclamation 86 (2010) Art 9 (1), with a total population of 670,847. The average population of each woreda in this region is, therefore, approximately 33,000 people. 3 Addis Ababa is constitutionally recognized as the capital; Dire Dawa was federalized by an act of parliament.

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for the position from among the members of the city council. In Oromia the regional president appoints mayors (Oromia State Proclamation 116 (2006) Art 2 (6)). The fdre constitution does not allocate functional competences to local government since its division of powers is restricted to the federal and regional states (Arts 51 & 52).The state constitutions are also less than clear regarding local government functions. They simply provide that woredas can plan and implement their own ‘economic development and social services’ without defining the relevant functions (Ayele 2014). The functional competences of cities, including the federal cities, are categorized into ‘state functions’ which include primary education, health care, drinking-​water, and agriculture and municipal functions which include cultural and recreational centres, museums, housing, sewerage, street, street lighting, fire-​fighting, abattoirs, ambulance services, and the like (Ayele 2014, p. 166). Addis Ababa and Dire Dawa may be assumed to have certain competences on matters that are reserved as state functions under Article 52 of the constitution, even though they cannot trace their competences directly from the constitution. This is so because these cities are not within the jurisdiction of a state. Each derives its authority from a charter adopted by parliament.4 Like the regional constitutions, the charters contain general provisions that authorize the cities to formulate policies and design plans for their social and economic matters.5 Woredas do not have constitutionally allocated (including by sub-​national constitutions) revenue-​raising powers, except that they are mandated to collect, on behalf of the states, some state taxes and user fees, such as land-​use fees. The revenue so collected, however, belongs to the states and cannot be considered as woredas’ internal revenue. Some states allow woredas to raise revenue by collecting income taxes from their employees and collecting service fees. In any case, the main source of revenue for woredas is transfers from states, which take the form of unconditional block grants and specific-​purpose grants. Unconditional state transfers cover over 70 per cent of woredas’ expenditure (Ayele 2014; see also Negussie 2006). Cities raise revenue in the form of user fees to fund municipal services. They also receive transfers from the states that they can use for providing state services such as education, water and primary health care. Addis Ababa and Dire Dawa are financially self-​sufficient. 4 Federal Negarit Gazeta of the Federal Democratic Republic Ethiopia: Dire Dawa Government Charter Proclamation No. 416 (2004) & Federal Negarit Gazeta of the Federal Democratic Republic Ethiopia:  Addis Ababa City Government Revised Charter Proclamation No. 361(2003). 5 fdre Proclamation 361 (2003) 11(2) (a & b); fdre Proclamation 416 (2004) Art 9(2).

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For instance, Addis Ababa covers over 90 per cent of its expenditure from internal revenue. 2.3.2 Local Government Autonomy in Practice In practice, local government enjoys barely any autonomy. While members of woreda and city councils are directly elected by the people, local elections are not held as regularly as national and state elections, and may be postponed for various reasons. Addis Ababa was administered for several years by caretaker provisional administrators. Local elections were due to be held throughout the country in May 2018, but political unrest caused their postponement for a year. However, a year later, preparations for local elections were still not under way. In any case, previous local elections—​all elections in Ethiopia for that matter—​have been less than competitive, resulting in eprdf’s or its affiliate parties’ exclusive control of every seat in every woreda and city council. Moreover, eprdf has a centralized and hierarchical structure in which those running the local-​level structure of the party are subordinate to those in charge of the party structure at state and federal level. The subordinate position in the party structure of local authorities mean they can enjoy barely any political autonomy. As Assefa Fiseha argues from field research in Tigray: In terms of party positions, the heads at the zones … and regional state are political seniors compared to the wereda administrator and the mayor. The latter are subject to the influence of senior party figures at the higher level. Decisions made at the local level can also be vetoed or reviewed by zones and the regional state … there is thus a thicker vertical line of accountability of local governments to zones and regional states compared to the weaker/​thinner horizontal accountability to elected councils at local level. Thus the state of decentralization in reality resembles a mix of both decentralization and deconcentration, a setback on the autonomy of local governments. fiseha 2019

In addition, when political exigencies demand, local government are even legislatively deprived of their political autonomy altogether. In the 2005 national elections, the one and only competitive election in the country’s history, the Coalition for Unity and Democracy (cud) defeated the ruling party in many urban areas of Oromia, Amhara and other states. Presumably with a view to preventing any chance of opposition parties controlling any city in Oromia, the Oromia state council reacted by enacting a piece of legislation in which it transferred the power to appoint mayors from city councils to the state

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president and rendered mayors accountable to the state president. The state thus reduced its cities into agents of the state without an iota of political autonomy. Furthermore, the states exercise excessive supervisory power over woredas, extending from vetoing decisions of local authorities to dissolving woreda and city councils. Constitutional and legislative provisions regulating state intervention into local government are often driven by political motives. For instance, the Tigray state constitution had contained no provision for state intervention in woredas. Explaining the political motive for the insertion of intervention clauses in the state constitution, Fiseha writes: Following the tplf party crisis in 2001 … a wereda in the central zone was not happy with the way the party and the government managed the crisis in the party and the process of ‘tehadiso (renewal).’ The wereda considered the act of the regional state as undue interference in its autonomy. The then new regional state governor (Tsegay Berhe) and senior party members visited the wereda in an effort to sort out the issues. Yet the wereda did not concede and this was understood as a misuse of wereda level political autonomy. This was unprecedented in the experience of the party and thus called for a more rigorous system of control and accountability on weredas to the higher level. fiseha 2019

As stated above, the state constitutions also do not clearly define the functional competences of woredas. The states have unfettered discretion over the functional competences that woredas can and cannot exercise. Moreover, under state constitutions and statutes, not only have woredas few internal sources of revenue, but they are not entitled to transfers from the states. They receive only grants, which can be denied for political reasons. Furthermore, there is an enormous imbalance between the expenditure needs and the revenue of woredas, despite the increased amounts transferred to them in the form of block grants. More than 90 per cent of these go to paying the salaries of woreda employees, leaving very little for capital investment in building schools, health-​ care facilities, and the like (Garcia and Rajkumar 2008, p. 36). Following three years of public protest that propelled Abiy Ahmed to the premiership, various institutional reforms are now being implemented with the declared purpose of opening up the political space.6 Different pieces of 6 The public protest began in 2015 in Ginchi (Oromia) when state officials tried to transfer a piece of land for investment. The protest quickly spread to other parts of Oromia and

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legislation have been revised and other are in the process of revision, including anti-​terrorism laws, electoral law and the media law which eprdf reportedly used to silence any dissension in the country (Tsige 2019; Ethiopian News Agency (2019)). The institutional reforms and political negotiations are, however, exclusively focused on the federal and, to a very minor extent, state governments. Neither the ruling party nor the opposition seem concerned about democratizing and empowering local government. This is indeed ironic since in the past three decades, opposition parties have lamented that local authorities were the principal impediments to their electoral success. Not only did local authorities harass and intimidate their members and supporters, but they also blocked their access to the public. Meanwhile, the ruling party has accused local authorities of failing to properly execute federal and state policies with respect to land administration, expansion of health care and education and more and of supplying inflated reports of their achievements in expanding the provision of basic services. The first targets and victims of the angry public protests mentioned above were local government and local authorities. In many areas, the protesters dismantled local institutions and attacked (even killed) or forced local authorities to flee. They did so for two reasons. First, local governments and local authorities were naturally the easiest targets. They were the nearest, in most cases the only, government institutions in most parts of the country. Federal and state governments were too remote for the fuming protesters to attack. Second, the public has witnessed first hand government at the local level going amiss, with entrenched corruption and nepotism and human rights violations. The public expressed its anger and frustration by burning woreda offices and attacking local officials. It is common knowledge that, in many parts of Oromia and Amhara, there is barely any functioning local government structure. However, thus far, empowering local government and enhancing its autonomy are not on the reform agenda. 3

Republic of South Africa

South Africa has an estimated population of over 57.7  million, composed of different races, the majority being black, of different ethnic composition Amhara and the aims of the protesters also evolved to a demand for major political change in the country. The protesters found some sympathizers within the party and eventually Haile Mariam Dessalegn, the former chair of eprdf and prime minister, resigned, to be replaced by Abiy Ahmed.

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(statssa 2019). The country is divided into nine provinces, with nearly all of the ethnic groups having what may be called a ‘home’ province. It is the economic hub of Africa, but faces many challenges, such as unemployment, with the unemployment rate sitting at 27.6 per cent in the first quarter of 2019 (statssa 2019). Unlike most of Africa, South Africa only attained majority rule as late as 1994 under an interim constitution, negotiated between the apartheid government and liberation movements, with the African National Congress (anc) playing a major role, which took the country out of the misery of apartheid rule (de Visser 2009, p. 269). The first democratic parliament of South Africa adopted the final constitution of South Africa in 1996. Providing, inter alia, for an expansive Bill of Rights, a Constitutional Court and a bi-​cameral parliament, it is one of the most progressive and transformative constitutions in the world. The constitution entrenches a multi-​level system of government, which some scholars deem quasi-​federal because of its federal features, even though the constitution does not say so. The anc has dominated the political landscape since 1994, but its electoral support has slowly diminished over the years. 3.1. Decentralization in South Africa: Motives and Processes Under colonialism and apartheid, the black majority in South Africa had been systematically disenfranchised and exploited. At local government level this was no different. The grand apartheid logic included the establishment of separate local authorities for separate racial groups and the denial of a democratic voice for the black majority (Steytler 2005, p.  184). Furthermore, it included the systematic spatial segregation of racial groups. Establishing an inclusive democracy and extending the right to vote to the black majority in local government was thus a critical element of the constitution-​building project in the early 1990s (Steytler 2005, p. 184). At the same time, the entrenchment of local democracy was seen, particularly by the outgoing white nationalists and liberal political forces, as a bulwark against the inevitable dominance of the anc. Both these factors played a major role in shaping local democracy in South Africa. Apartheid local governments delivered grossly uneven local government services and deliberately starved black communities of opportunities and resources (Cameron 2014, S81). Underdevelopment and unequal service delivery were key drivers for the new local government system: municipalities were to be tasked with reversing the apartheid spatial logic and make a meaningful contribution to reducing inequality (Powell 2012, p.  12; Steytler 2005, pp 184,187). The motivation to use local governments to build peace and promote integration was visible in the early stages of the transformation. The first transitional

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local government institutions were mergers of existing (apartheid) institutions and representatives of civic organizations who were tasked to jointly manage transitional local authorities (Powell 2012, p. 12). The second transitional phase still mitigated the majoritarian effects of democracy. For example, it insisted on inclusive executive leadership structures at local level, emphasized consensus-​ seeking and demanded that budgets were adopted with a two-​thirds majority. In a move to appease a powerful and potentially disruptive rural constituency, it also acknowledged the status of traditional authorities by including them as ex officio members of municipal councils. Upon completion of the transition, however, the structures became more majoritarian. In many cases, the inclusive executive leadership structures were replaced by strong executive mayors. Budgets could now be adopted by simple majority and traditional leaders lost their voting powers in the council. Overall, the insistence on inclusion gave way to a ‘winner-​takes-​it-​all’ outlook. 3.2 Local Government Structures Local government is constituted by 257 municipalities whose jurisdictions covers the whole of the country. There are three categories of municipalities: metropolitan (category A), local (category B) and district (category C). Metropolitan municipalities have exclusive municipal executive and legislative authority in their areas of jurisdiction (Constitution of South Africa, section 155(1)(a)). There are currently eight metropolitan municipalities, with Johannesburg the biggest both wealth-​and population-​wise. Local municipalities, which total 205, share municipal executive and legislative authority in their respective areas with the district municipalities (44 in total) under whose jurisdiction they fall (Constitution of South Africa, section 155(1)(b)). The division of roles and responsibilities between local and district municipalities in practice is problematic, partly because it is not clear (Steytler 2005, pp. 192–​3). While there is no dispute that local municipalities are the interface with communities and perform community services, the role of district municipalities remains contested (de Visser 2009, p. 273). 3.3 Local Autonomy at Constitutional or Statutory Level Local government is recognized in the constitution as the third and lowest sphere of government, the other senior spheres being the national and the nine provincial governments. These three spheres of government are distinctive, interdependent and interrelated (Constitution of South Africa, section 40(1)). Unlike in many countries with multi-​level forms of government, the institution of local government in South Africa has the highest form of protection through the constitution. The protection extends to individual municipalities,

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which may not be arbitrarily abolished or merged. The same level of safeguards applies to the boundaries of these municipalities, which may not be arbitrarily altered. Local government has representation in the second chamber of parliament, the National Council of Provinces (ncop), and the Finance and Fiscal Commission (ffc).7 The constitution widens opportunities for the protection of local autonomy by requiring that national and provincial legislation that affects the institutions and functions of local government may not be enacted without the consultation of organized local government (Constitution of South Africa, section 154(2)). The legislative and executive authority of each municipality are vested in its council (Constitution of South Africa, section 151(2)). Half of the members of the council in metropolitan and local municipal councils are elected under a ward-​based majoritarian system, the other half under a system of proportional representation.8 District councils are constituted by some members (40 per cent) elected under a system of proportional representation, while others (60 per cent) are nominated by local councils in the relevant district area. This electoral system enables political parties to determine who becomes a councillor, entailing the accountability of local leaders to ‘political leadership rather than to the community’ (Cameron 2014, S88). A council may delegate executive decision-​making authority to an executive mayor or an executive committee chaired by a mayor. Both the executive mayor and executive committee are elected by the council from its membership. While the executive committee must be representative of the entire composition of the council, this requirement does not apply to a mayoral committee which assists the executive mayor. The executive mayor can simply handpick any councillors to constitute this ‘cabinet’. In rural areas, traditional leaders are only ex officio members of the council, but they may not constitute more than 20 per cent of councillors. The reduction of their role to advisory status continues to anger many traditional leaders, who feel that they deserve voting rights (de Visser 2009, p. 273). The council may establish different structures and procedures for the effective functioning of its duties. Municipalities in South Africa have service-​delivery duties, and also a development mandate. Section 151(3) of the constitution states that a ‘[m]‌unicipality has the right to govern, on its own initiative, the local government affairs of its community, subject to national and provincial legislation, as provided 7 The ffc is a constitutional body that advises government on intergovernmental fiscal relations. 8 In councils with less than seven members a system of proportional representation is followed exclusively.

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for in the Constitution’. The national and provincial governments are prohibited from compromising or impeding a municipality’s exercise of this right (Constitution of South Africa, section 151(4)). Each municipality is required to ‘structure and manage its administration and budgeting and planning processes to give priority to the basic needs of the community, and to promote the social and economic development of the community’ (Constitution of South Africa, section 153(a)). Municipalities have an obligation not only to focus on their own development programs, but also to participate in those of the national and provincial governments (Constitution of South Africa, section 153(b)). The constitution equips municipalities with expansive powers and functions to enable them to fulfil their service-​delivery obligations and development mandate. The power of each council to make and implement its own laws and policies detives directly from the constitution (Constitution of South Africa, section 156(2)). The constitution further enumerates 39 functional areas which municipalities have the right to govern, including water and electricity reticulation, land-​use planning, municipal public transport, municipal roads, building regulations, street trading, municipal health and refuse removal. The national and provincial governments may regulate the exercise of these functions (Constitution of South Africa, section 155(7)) and assume a local responsibility if a municipality fails to undertake it effectively (Constitution of South Africa, section 139 (1)). However, national or provincial law ‘could be trumped by a local law if [it] would “compromise or impede” local government’s functioning’ (Steytler 2005, p.  185). Moreover, the exercise of intervention powers is strictly limited and subject to the oversight of intergovernmental bodies such as the ncop. While assigning to local government a variety of functions, the constitution does not give municipalities all the relevant functional areas for delivering major services, particularly in urban settings (Cameron 2014, S82). Housing, which is a national and provincial competence, is a good example. However, the constitution entrenches the principle of subsidiarity by requiring national and provincial governments to assign any of their functions if they can be effectively exercised by a municipality and if that municipality has the capacity to do so (Constitution of South Africa, section 156(4)). Moreover, municipalities are empowered with incidental powers, that is, those powers that are necessary for the effective performance of their functions. An expansive list of functional areas is matched by a variety of revenue streams for municipalities that are protected by the constitution. Municipalities, and only municipalities, can raise revenue by imposing property rates and surcharges on fees for services provided (Constitution of South

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Africa, section 1). National legislation can also permit municipalities to impose other forms of taxes, levies and duties—​excluding income tax, value-​added tax, general sales tax and customs duty. Municipalities can also borrow money to finance their capital and current expenditure priorities (Constitution of South Africa, section 230A(1)). The exercise of these revenue-​raising powers is regulated by national legislation, but not at the expense of local autonomy.9 The equitable division of revenue raised nationally among the three spheres of government is also provided for in the constitution to ensure the financial sustainability of municipalities. The division of revenue occurs through an annual enactment which can only take place after the provincial governments, local government and the ffc have been consulted and the recommendations of the latter considered (Constitution of South Africa, section 214(2)). Importantly, any additional revenue raised by a municipality may not be deducted from its share of revenue raised nationally or any other allocations from the national government (Constitution of South Africa, section 227(2)). This is an encouragement for municipalities to exercise their fiscal powers fully. On the other hand, there is no obligation on the national government to provide financial support to municipalities that fail to fully exercise their fiscal powers or that overspend. Besides the equitable share, municipalities may receive other allocations from the national government which may be conditional or non-​conditional (Constitution of South Africa, section 227(1) (b)). While there are concerns around the distribution of grants to local government, metros and other larger municipalities are largely self-​financing (Cameron 2014, S94). 3.4 Local Autonomy in Practice It has been argued that the ‘legal and constitutional recognition of local government is impressive and propels it to a status that at times equals or surpasses that of provincial government’ (de Visser 2009, p. 268). This is correct, considering that local autonomy is real, perhaps primarily because the constitution has made it so, unlike provincial autonomy. What is as important as the text of the constitution is the willingness of municipalities to assert their constitutional status and the willingness of the courts to protect it. Municipalities are increasingly asserting their autonomy in the political arena, but also in the courts. This has resulted, for example, in a firm jurisprudential trend in the Constitutional Court to disallow any national or provincial interference in the

9 See, for instance, the Local Government:  Municipal Property Rates Act 6 of 2004 and Municipal Fiscal Powers and Functions Act 12 of 2007.

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exercise of original municipal executive powers such as decisions on land-​use management. This does not mean, however, that there are no strong centralizing tendencies. While urban municipalities raise a significant portion of their own revenue, rural municipalities are largely grant-​dependent. In any event, capital investments by local governments are mostly driven by grant funding (or, in some cases, borrowing). Thus, the impressive constitutional entrenchment of local resource-​raising powers is ‘not matched by financial buoyancy in many municipal areas and is under pressure from centralising tendencies’ (de Visser 2009, p. 281). The tight regulation of local government governance and financial management is also considered to have a centralizing effect (Powell 2012, pp. 15, 17). However, party politics has by far the greatest impact. The anc controls the vast majority of municipalities and practises ‘democratic centralism’, a political principle that significantly constrains the discretion of its local politicians. The main opposition, the Democratic Alliance, controls a significant share of municipalities, primarily in the Western Cape and also subjects key decisions of local politicians to central approval. Almost all political parties which have representation in local councils play a significant role in determining who occupies key local positions (Steytler 2005, p. 194). Thus, the constitutional entrenchment of local autonomy ‘co-​exists with party centralisation’ (Cameron 2014, S88). The full realization of local autonomy in practice is also undermined by several other factors that are both within and outside of a municipality’s control. For instance, legislation and policy interventions by national and provincial governments do not always respect the principle of local autonomy. The overlap of functional areas among the three tiers of government complicates the scope for municipalities to fully exercise their autonomy. Skills shortages continue to undermine effective administration, particularly in poor small towns and rural municipalities (Powell 2012, p. 11) (Steytler 2005, p. 194). The discussion cannot be complete without mentioning corruption, in all its manifestations, which continues to hamper effective local administration and service delivery (Cameron 2014, S88; Powell 2012, p. 19). The Impact of Local Autonomy in Realizing Decentralization Objectives Having established that in South Africa local autonomy is real, the critical question is how such autonomy affects local government’s potential to realize the objectives usually associated with multi-​level governance. Has it been successful in responding to the pressures that gave rise to its entrenchment? These questions are answered below. It should be noted that strong constitutional 3.5

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protection for local government does not automatically translate into strong municipalities in practice. In South Africa ‘many municipalities are incapable of asserting their financial and political autonomy for reasons both within and beyond their control’ (de Visser 2009, p. 268). Municipalities remain at the centre of state delivery of public services in South Africa. While significant strides have been made in extending access to basic services to the previously disadvantaged black population, public service delivery is failing to match people’s expectations (Cameron 2014, S83). Both the quality and quantity of public services remain a key concern. Some citizens continue to receive better public services than others; some do not receive any services at all. Service-​delivery protests are perhaps the best indicator of dissatisfaction levels. The fact that such protests have gradually increased over the years and are growing more violent indicates that the constitutional entrenchment of local autonomy has not translated into universal access to quality public services (Powell 2012, p. 22). When it comes to counterbalancing the centre, local autonomy has acted as a brake on central power, perhaps more so than provincial autonomy. A number of significant, centralizing reforms were stalled and ultimately abandoned as a result of local government invoking its autonomy in the political domain. Nevertheless, between 2000 and 2016, centralizing tendencies in finance and politics remained strong. With the anc controlling the vast majority of municipalities, opposition to the central government played itself out mainly within the structures of the ruling party and in the intergovernmental arena. The scene was set for this to change in 2016 when the anc lost majorities in South Africa’s largest cities. However, it has not yet led to a groundswell of opposition. It is fair to say that local government has made a considerable contribution to building peace in South Africa, particularly in the earliest years of the current dispensation (Powell 2012, p.  14). The process of designing the local government system and transitioning it played a key role in holding the nation together. The transitional phase was characterized by peace-​building mechanisms that contributed to sustaining local pacts during those volatile first years of independence. As the systems settled, municipalities gained more powers and became more and more political. Furthermore, as budgets grew and financial discretion increased, the elements of greed and corruption tore away at the integrative potential of municipalities. The greatest faultline in the integrative and peace-​building potential of local government is ever-​widening income disparity (Powell 2012, p. 17). While municipalities cannot be blamed for economic stagnation and widespread unemployment, they carry considerable blame for not using their built environment functions to break the back of apartheid spatial segregation. The

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spatial injustice carried over from apartheid persists; black and white continue to live separate lives, kept apart by apartheid buffer zones, inadequate public transport systems and privatized security. There are other factors which inhibit integration: protests against failing municipalities are strictly along race/​class lines (street protests versus rates withholding and court cases); simmering ethnic tension sometimes spills over into outright ethnic territorial claims and an increase in political killings in local government (Powell 2012, pp. 22–​23). However, the door for local government to continue to contribute to national integration remains open, given that it has some of the necessary instruments to do so. Local government autonomy has been a game-​changer in entrenching multiparty democracy. The combination of an electoral system based on proportional representation and strong local autonomy offered avenues for opposition parties to grow. This opposition grew firstly, and mostly, in the cities, which emerged as strong centres of power on the back of their autonomy. Intergovernmental relations, hitherto mostly conducted in centralized party structures, were increasingly being conducted across party lines. The fact that the intergovernmental (fiscal) system continues to survive (albeit perhaps with limited conviction) is testimony to the deepening of South Africa’s multiparty democracy. There is no doubt that local autonomy played an important role in that. With respect to other indicators, such as voter turnout in local elections, the emergence of local parties and the role of independents, the impact of local autonomy has been muted. Turnout is relatively low, local parties have not emerged as a particularly strong force in local government, nor have independent councillors. 4

The Republic of Zimbabwe

Zimbabwe is a landlocked country in Southern Africa with a population of over 17  million people (ZimStat 2019). The country is divided into 10 provinces, which are subdivided into several administrative districts. The Shona are the dominant ethnic group, followed by the Ndebele and other minority ethnic groups. Zimbabwe achieved independence from Britain in 1980 under the Lancaster House constitution, negotiated by the liberation movements and the British and Rhodesian governments. Since then, the country has been under the rule of the Zimbabwe African National Union–​Patriotic Front (zanu–​p f). Once known as the jewel of Africa, Zimbabwe has experienced deep political and economic struggles which became more pronounced

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after 2000.10 In 2009 a government of national unity (gnu),11 constituted by major political parties,12 managed to stabilize the political and economic environment. The gnu also successfully steered the adoption of a new constitution in 2013,13 which is progressive in many respects. It established a new Constitutional Court at the apex of the judiciary, provides for a wide array of constitutional bodies with a mandate to promote and sustain democracy and requires multi-​level governance. The harmonized elections of 2013 and 2018, held under the new constitutional dispensation, were won by zanu–​p f (though under disputed circumstances). Hence it is no surprise that the electoral victory of zanu–​p f has failed to translate into the popular legitimacy needed to steer political and economic stabilization. A military-​assisted transition in November 2017, otherwise described as a coup d’état or soft coup, culminated in the removal from power of the long-​time ruler, Robert Mugabe. Mugabe’s successor, Emmerson Mnangagwa, also of zanu–​p f, has signalled that his government will implement devolution. There is, however, nothing significant on the ground, outside of his pronouncements, to back up his words (Mapuva and Miti 2019). The nature and objectives of devolution to be implemented are also unclear. 4.1 Decentralization in Zimbabwe: Motives and Processes The adoption of a multi-​level system of government in Zimbabwe, under which sub-​national governments exercise devolved powers, was heavily contested during the constitution review process (2009–​13) (Chigwata 2018, pp. 58–​9). The entrenchment of decentralization was meant to realize a number of goals linked to development, service delivery, democracy, national integration and peace. Zimbabwe had experienced a steady deterioration of public services prior to the introduction of more autonomous local government in the 2013 constitution. From the early 2000s, the state delivery of public services, including by local government, had begun to fail, primarily due to the economic crisis that was being experienced (Muchadenyika 2015, p.  115). For example, local government’s failure to supply safe drinking-​water and proper sanitation 10

For instance, in October 2018 inflation reached more than 16% and continues to grow (ZimStat 2019). 11 The gnu was an outcome of a peace agreement facilitated by the former president of South Africa, Thabo Mbeki. 12 zanu-​p f and the two Movement for Democratic Change political formations. 13 Constitution of Zimbabwe, Amendment No. 20.

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resulted in several cholera and typhoid outbreaks. Local autonomy was thus seen as a vital element in improving local government’s ability to improve the delivery of public services. The centralized system of government, which zanu–​p f inherited from the British settlers and developed after independence, had proved incapable of driving equitable development (Mhlanga 2012). The entrenchment of local autonomy was therefore motivated by the desire to empower people in different parts of the country to champion their own development (Mapuva and Miti 2019, p. 15; Moyo and Ncube 2014, p. 294). There was a need to establish democracy at the local level in order to give back power to the people (Muchadenyika 2015, p. 116; Moyo and Ncube 2014, p. 294). Local autonomy would promote citizen participation, entrench multi-​party democracy and enable vertical accountability. Since the top-​down approach had failed, it was thought that building democracy from below was the ultimate solution to Zimbabwe’s problems. Independent Zimbabwe has generally been peaceful. However, disturbances in the Ndebele-​dominated provinces in the early days of independence were attributed to claims that the Shona-​dominated zanu–​p f government marginalized those provinces and favoured the Shona region (Mhlanga 2012, pp. 207, 209, 218). Other minority ethnic groups, such as the Tonga and Kalanga who generally occupy the border areas of the country, have expressed similar sentiments. Surprisingly, though, some Shona tribes in places such as Manicaland province have also complained of marginalization (Moyo and Ncube 2014, p. 296). Against this background, local government was seen as a means for minority groups to exercise a measure of self-​government (Chigwata 2018, p.  59). The ultimate objective is to promote national integration and peace within the confines of a unitary state (Mapuva and Miti 2019, p. 15). 4.2 Local Government Structure in Zimbabwe Local government in Zimbabwe is constituted by 32 urban and 60 rural local authorities. There is a single category of rural local authorities, but three types of urban local authorities: municipal councils (cities and municipalities), town councils and local boards. The population sizes of cities, municipalities and towns varies considerably, from a couple of thousand to Harare’s more than 1.5 million residents. The jurisdictions of rural local authorities also vary both in physical size and population numbers. What is peculiar to rural areas is that rural local authorities govern alongside the institution of traditional leadership constituted by chiefs, head persons and village heads. While traditional leaders can make certain decisions, rural authorities are the ultimate decision makers. Traditional leaders are, however, the immediate form of local government in these areas, and thus have the most contact with the citizens (Chigwata 2018, p. 19).

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4.3 Local Autonomy in Zimbabwe 4.3.1 The Constitutional Place of Local Government in Zimbabwe While Zimbabwe remains a unitary state, the 2013 constitution required the establishment of a multi-​level form of government (Constitution of Zimbabwe, sections 1 and 5). Local government is recognized as the third and lowest tier of government after the national and provincial governments (Constitution of Zimbabwe, section 5(c)). Thus, the existence of the institution of local government is constitutionally protected; its division into urban and rural local authorities and the establishment of different types of local authorities within the urban–​rural typology are also recognized. Democratic governance is at the centre of the system of local government under Zimbabwe’s new constitution. Both urban and rural local authorities are governed by councils constituted by councillors directly elected by the citizens of that jurisdiction (Constitution of Zimbabwe, section 265(2)). The councillors, who are elected under the first-​past-​the-​post electoral system, are voted into office on the same day as the president, members of parliament and members of provincial governments (Constitution of Zimbabwe, section 277(1)(a)). The direct election of all councillors is a departure from the previous constitutional position, where some councillors were elected while others were appointed by the national government. Cities and municipalities are led by a ceremonial mayor who is elected on the first day the council sits from among its membership. Town councils, local boards and rural local councils are led by a ceremonial chairperson also elected from the membership of the council. The constitution, however, allows mayors and chairpersons of urban local authorities to exercise executive decision-​making powers provided that they are directly elected by citizens in the relevant communities (Constitution of Zimbabwe, section 274(5)). The 2013 constitution requires the devolution of powers and responsibilities to the local government level and empowers every local authority with the right to govern its area and with ‘all’ the necessary powers to do so (Constitution of Zimbabwe, sections 264(1), 276(1)). Furthermore, the provision gives every local authority a certain level of discretion when undertaking this governing role. Section 276(2)(a) envisages local authorities exercising law-​making powers for the effective discharge of their responsibilities. While investing local government with these ‘generic’ powers, the constitution does not set out their functional areas. This is left to the determination of national legislation. Under existing primary local government legislation, local authorities have a variety of functional areas that have significant implications for people’s lives, including water supply, refuse removal, land-​use planning and the provision of sanitation, education, fire-​fighting and health services.

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City councils and municipalities enjoy more discretion in carrying out these functions than town councils, local boards and rural local authorities. The relevant pieces of legislation that assign responsibilities to local authorities are yet to be reformed in line with the 2013 constitution. It is expected, however, that even when this reform process takes place, local government will retain most, if not all, of the functional areas they are currently responsible for. What may change is the level of discretion they are granted over them. The 2013 constitution envisages local authorities exercising some resource-​ raising and spending powers, but the exact nature and extent of these powers is again left to the determination of national legislation. The existing local government legislation empowers local government to raise revenue in various ways. Local authorities can impose property rates, levies, fees and charges; they are allowed to borrow money internally and externally to finance recurrent and capital expenditure; and they can also engage in a diversity of income-​generating projects to mobilize resources needed for service delivery and development. To ensure the financial sustainability of local authorities, the 2013 constitution introduced the new requirement that national revenues in each financial year must be shared equitably among the three tiers of government (Constitution of Zimbabwe, section 298(1)(b)(ii)). The constitution further stipulates that at least 5 per cent of such revenue should be shared equitably between and among provincial and local governments (Constitution of Zimbabwe, section 301(3)). However, as of 2019, no such equitable revenue-​ sharing system was in place. The extent to which the 2013 constitution actually entrenches local autonomy is debatable. It determines clear and enforceable boundaries with respect to local democracy, with respect to the election of local leaders. However, it does not provide in clear terms for any other aspects of autonomy, such as the security of existence of local authorities, their powers, their revenue and their administrative autonomy. These matters are left to parliament. As discussed in detail below, the courts have not yet added their voice to clarify the boundaries of local autonomy. A number of provisions that touch on some aspects of local autonomy have not yet been tested. 4.4 Local Government Autonomy in Practice There is a big difference between the constitutional framework for local autonomy and what is happening in practice. Local autonomy largely remains on paper, with the government putting in little effort to ensure that it is realized in practice. According to Mapuva and Miti (2019, p. 15), ‘events on the ground seem to show lack of political will to implement devolution for fear of losing power to local communities’. They further argue (2019, p. 15) that ‘the major

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reason for lack of political will for implementation of devolution is that the current crop of political leaders does not want to share power’. Their view is supported by Cameron (2014, S82), who contends that ‘[n]‌ational elites often fear losing power at local-​government level’ and tend to undermine local autonomy, especially when opposition political parties control strategic local authorities, such as the capital city. In Zimbabwe, the legislative reforms required to implement devolution or operationalize the constitutional framework on local autonomy have not been enacted more than six years after the adoption of the constitution. This reluctance suggests that the zanu–​p f-​dominated parliaments have had insufficient political will to make local autonomy, and devolution in general, work (Moyo and Ncube 2014, p. 303; Mapuva and Miti 2019, p. 13). This means that some of the broad powers endowed by the constitution have not been given practical effect. The judiciary has not helped the cause. Several court challenges aiming to clarify the autonomy of local governments have not been heard or concluded. In the few cases that have been concluded, the courts do not seem prepared to uphold the elevated status of local government enshrined in the new constitution. The national government has also undermined local autonomy by reversing the process of decentralization (Moyo and Ncube, 2014, p. 230). Not only has it retained key decision-​making powers on local affairs, it has recentralized some of the responsibilities previously undertaken by local government—​for instance, motor vehicle licensing, which had been a reliable revenue stream for (mostly opposition-​controlled) urban local authorities. A major obstacle to achieving local autonomy are the huge economic problems that hinder resource mobilization by the state as a whole (Moyo and Ncube, 2014, p.302). There are insufficient resources to fund the operation of existing structures and establish new structures. For decades in Zimbabwe the national government has not been in a position to provide meaningful support to local authorities. While acknowledging the impact of the underperforming economy, some scholars believe that misplaced or skewed priorities, where significant resources are used in fighting to consolidate power rather than on matters that directly affect public welfare, are a more fundamental explanation (Mapuva and Miti 2019, p. 13.) The Impact of Local Autonomy in Realizing Decentralization Objectives The 2013 constitution promised a better life for ordinary citizens after decades of economic crisis which led to the deterioration of public service delivery. At the least, this means that citizens should be able to access basic public services, irrespective of where they reside. However, more than six years later, little has 4.5

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changed. The cholera outbreak of September 2018 was a good indicator of the poor state of public service delivery, particularly access to potable water and proper sanitation. One of the reasons for this continued failure is that the local autonomy enshrined in the constitution has yet to be realized in practice. Equitable development remains a pipe dream in Zimbabwe. Governmental powers and resources are still centralized in Harare, with the national government determining who gets what and where. Natural resources in various parts of the country are exploited, but most of their proceeds continue to support development at the centre. Even where these proceeds are distributed to the local level, they are usually channelled through centrally controlled structures such as deconcentrated agencies of the national ministries, the army and traditional leaders (Mapuva and Miti 2019, p.  16). Democratically elected local councils are therefore often marginalized, despite having advantages such as better familiarity with local environments. Local autonomy has also yet to achieve its potential for counterbalancing the centre. As we have seen, local governments have not been able to assert their autonomy. And as the constitution is relatively new, the multi-​level system of government has yet to gain traction. In practice, central government continues to treat local government as an easily macro-​managed extension. There is a clear gap between the constitutional intentions and what is happening in practice. However, with the opposition Movement for Democratic Change controlling 28 of the 32 urban local governments, including the two biggest cities of Harare and Bulawayo, there is vertically divided authority—​ ‘which occurs when different political parties control disparate levels of government’ (Cameron 2014, S81). Thus, opportunities for vertical oversight exist, especially if the constitutional provisions that speak to local autonomy were to be taken seriously. The potential of local autonomy to hold the nation together remains untested, since the constitutional framework for local government is yet to be fully implemented. No measure of local self-​government promulgated in the 2013 constitution has been realized to date. It is therefore no surprise that minority groups still complain of marginalization. The question is for how long will these groups be satisfied to pursue non-​violent means of amendment. At what stage will they consider other options, including secession? Mhlanga (2012, p. 210) argues that the ‘continued suppression of [devolution or local autonomy] might create fissures that like in a boiling pot, will lead to an uncontrolled pro-​secessionist eruption in the future’. The constitution requires devolution of governmental powers and resources to hold the nation together—​in other words, to prevent secessions. The non-​implementation of devolution may threaten national integration.

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The effects of local autonomy on democracy are mixed. On the positive side. multi-​party democracy is gaining traction and would have been blossoming, if it were not for elections which are often disputed. In urban areas, the parties in power at the national and local levels are often different, which is good for accountability. We are seeing a diversity of candidates, particularly independence candidates, contesting local elections. On the negative side, holding presidential, parliamentary and local elections simultaneously has not been beneficial for the state of local government and democracy, in general. Councillors are often elected not on their basis of their personal performance or profile, but rather on the basis of their party. As a result, the link between voter and representative tends to be weak (Chigwata 2018, p. 431). We are also seeing fewer and fewer women contesting positions at all levels of government. Meaningful opportunities for citizen participation in between elections at all levels of government remain scarce. Thus the progressive constitution appears to have delivered no significant benefits for direct participatory democracy (Mapuva and Miti 2009, p. 16). 5

Comparative Conclusion

The discussion of the three case-​studies bring to the fore three important points. The need to achieve democratic participation and enhance public service delivery is a common denominator underlying decentralization in the three countries. Ethiopia alone explicitly seeks to use local government for dealing with challenges of ethnic diversity, whereas South Africa and Zimbabwe lack any constitutional levers allowing the territorial management of ethnic diversity at the local level. Second, the case-​studies reveal marked differences in the constitutional place and status of local government and its implications for the autonomy of local government. Local government in Ethiopia has barely any constitutional recognition, except to the extent that it is linked with the right to self-​rule of intra-​state ethnic minorities. In the dual federal system of Ethiopia, local government is an exclusive competence of the states with little constitutional protection. In the absence of explicit constitutional principle requiring the states to provide local government with a degree of political autonomy, the states seem to have chosen to allow a very limited political and financial autonomy to local government. The Zimbabwean constitution leaves matters affecting local autonomy to be legislatively defined. For instance, parliament is authorized to define sources of local government revenue, but as of 2019 had not done so. At the other extreme, the South African constitution not only recognizes

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local government as one the three spheres of government, but specifies both local government competences and sources of revenue. Local government in South Africa hence enjoys both political and financial autonomy. Whenever the autonomy of local government is challenged, the Constitutional Court comes to the rescue. Third, all three countries are characterized by the existence of a dominant political party. In Ethiopia, eprdf controls all levels of government, including every city and municipality. In South Africa, the ‘one-​party dominance across the three spheres of government has enabled the anc to iron out, within party structures, many tensions and disagreements between organs of state’ (de Visser 2009, p. 275). In Zimbabwe, zanu–​p f controls all the rural local authorities, but only 4 of the 32 urban local authorities. Any differences or issues with rural local authorities are ironed out in political rather than government structures. The relationship with urban local authorities is typically confrontational and conflictual, with local government mostly on the losing side.

References

Addisson, T. (1998). Underdevelopment Transition and Reconstruction in Sub-​Saharan Africa. United Nations University World Institute for Development Economics Research: Research for Action 45. Ayele, Zemelak (2014). Local Government in Ethiopia:  Advancing development and Accommodating Ethnic Minorities. Baden-​Baden: Nomos Verlagsgesellschaft. Ayele, Zemelak and Yonatan Fessha (2012). The constitutional status of local government in federal systems: the case of Ethiopia. Africa Today 50(4): 89–​109. Berhanu, Ayenew (2017). The politics of local government creation and boundary demarcation in Ethiopia’s federation:  challenges and implication. PhD thesis, Centre for Federalism and Governance Studies, Addis Ababa University. Cameron, Robert (2014). Vertical decentralisation and urban service delivery in South Africa: does politics matter? Development Policy Review 32(1): 81–​100. Central Statistics Agency of Ethiopia (2007). Statistical Tables for the 2007 Population and Housing Census of Ethiopia, . Chigwata, Tinashe (2018). Provincial and Local Government Reform in Zimbabwe. Cape Town: Juta. De Visser, Jaap (2009). Republic of South Africa, in Nico Steytler (ed.), Local Government and Metropolitan Regions in Federal Systems. Kingston: McGill-​Queen’s University Press. Ethiopian News Agency (2019) Revisions of laws, proclamations to be completed in months: Attorney General Office, 30 Mar.

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Fessha, Yonatan (2010). Ethnic Diversity and Federalism: Constitution Making in South Africa and Ethiopia. Farnham: Ashgate. Fiseha, Assefa (2007). Federalism and the Accommodation of Diversity in Ethiopia:  A Comparative Study. Nijmegen: Wolf Legal Publishers. Fiseha, Assefa (2019). Local level decentralization in Ethiopia:  case study of Tigray regional state. Ethiopian Journal of Federal Studies 5(1): 43–​84. Garcia, M. and A. S. Rajkumar (2008). Achieving Better Service Delivery through Decentralization in Ethiopia. Washington DC: World Bank. Gebre-​Egziabher, Tegene and Kassahun Berhanu (2007). A literature review of decentralization in Ethiopia, in A. Taye and G. E. Tegene (eds), Decentralization in Ethiopia. Addis Ababa: Forum Social Studies, pp. 9–​68. Godefroidt, A., A. Langer and B. Meuleman (2016). Towards Post-​modern Identities in Africa? An Analysis of Citizenship Conceptualizations in Ghana. crpd Working Paper No. 51. Gore, C. (2000). The rise and fall of the Washington consensus as a paradigm for developing countries. World Development 28(5): 789–​804. Jackson, R. (2002). Violent internal conflict and the African state: towards a framework of analysis. Journal of Contemporary African Studies 20(1): 29–​52. Mapuva, Jephias and George P. Miti (2019). Exploring the uncharted territory of devolution in Zimbabwe. Journal of African Studies and Development 11(12): 12–​20. Mhlanga, Brilliant (2012). Devolution—​the ‘ticklish’ subject:  the ‘northern problem’ and the national question in Zimbabwe. Ubuntu 1(1–​2): 206–​231. Moyo, Philani and Ncube Cornelias (2014). Devolution of power in Zimbabwe’s new constitutional order: opportunities and potential constraints Law, Democracy and Development 18: 289–​304. Muchadenyika, Davison (2015). The inevitable:  devolution in Zimbabwe—​ from constitution-​making to future, in J. de Visser, N. Steytler, D. Powell and E. Durojaye (eds), Constitution Building in Africa. Baden-​Baden: Nomos Verlagsgesellschaft. Negussie, Solomon (2006). Fiscal Federalism in the Ethiopian Ethnic-​based Federal System. Nijmegen: Wolf Legal Publishers. Powell, Derek (2012). Imperfect transition: local government reform in South Africa 1994–​2012, in S. Booysen (ed.), Local Elections in South Africa: Parties, People, Politics. Bloemfontein: Sun Press. Sharma, C. H. (2009). Emerging dimensions of decentralization debate in the age of globalization. Indian Journal of Federal Studies 1: 47–​65. statssa (Statistics South Africa) (2019). 2018 Mid-​year Estimate, . Steytler, Nico (2005). Local government in South Africa:  entrenching decentralised government, in N. Steytler (ed.), The Place and Role of Local Government in Federal Systems. Johannesburg: Konrad-​Adenauer-​Stiftung.

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Tsige, Tamiru (2019). Anti-​terror law makes about-​turn. Ethiopian Reporter, 2 Mar. World Bank (1999). World Development Report 1999/​2000:  Entering the 21st Century. Oxford: Oxford University Press. World Bank (2015). Data: Ethiopia, . ZimStat (Zimbabwe National Statistics Agency) (2019). Statistics at a Glance, .

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­c hapter 12

Concluding Remarks Andrew C. Banfield This edited collection started with a simple question: how do modern federations manage interdependence and cooperation? Traditionally, the answer to this question can be found in Riker (1964) or Dahl (1986) or Livingston (1952). Yet, as the chapters in this volume have demonstrated, perhaps the machinations of federalism are more complex than those definitions allow. Classic scholars of federalism thought that its purpose was to secure the autonomy of those member state that joined the federal union. This is certainly true in the cases of Australia, Canada and the USA, whose members were self-​governing. But what of new federations whose purpose is not the marriage of self-​governing states, but rather those with ethnic or linguistic differences? The arguments made in this volume reflect the ongoing discussion about the key drivers of federalism. Indeed, these arguments reflect those seminal debates between Riker (1964, 1987, 1996), Livingston (1952, 1956), Dahl (1986) and Wheare (1963) more than half a century ago. Encouragingly, those debates are as relevant today as when they were written; conversely, despite this overwhelming scholarly attention, we remain with an uneasy tension between strict legalism and sociological approaches to studying federalism. This concluding chapter unfolds in three parts. First, it re-​engages with those classical thinkers about federalism, considering what they thought federations and federalism should be. Second, it engages with the chapters in this volume, highlighting points of similarity and difference with those classical scholars. Finally, it suggests some avenues for future research based on the authors’ contributions. 1

Some Theory

Federalism is an elusive concept. Ronald Watts (1999, pp. 6–​7) distinguishes between three distinct but related terms: ‘federalism’, ‘federal political systems’ and ‘federations’. Federalism, Watts tells us, is a normative term rather than an analytical one. He says that federalism is ‘the advocacy of a multi-​tiered government combining elements of shared and regional self-​rule’ (Watts 1999,

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218 Banfield p. 7). Its essence, he says, is ‘the perpetuation of union and non-​centralization at the same time’ (Watts 1999. p. 7). ‘Federal political systems’ and ‘federation’, by contrast, are ‘descriptive terms applying to a particular form of government’ in which there are ‘two (or more) levels of government’ combining shared-​style and regional self-​rule (Watts 1999, p. 7). Federal political systems can cover a range of non-​unitary systems of government, including quasi federations, federations and confederacies (see also Elazar 1994).Using ‘federal political system’ rather than ‘federation’ allows countries to include some elements of federations, because ‘political leaders and nation-​builders are less bound by considerations of theoretical purity than by the pragmatic search for workable political arrangements’ (Watts 1999, p. 7). This is an important distinction that we will return to when we discuss emerging federations in Africa and South America. Finally, ‘federations’ are a very specific set of countries (Australia, Canada, the USA, and so on), in which neither the federal (or central) nor constituent (regional) units of government are constitutionally subordinate to one another. Put another way, each level of government is ‘empowered to deal directly with their citizens in the exercise of legislative, executive, and taxing powers and each is directly elected by those citizens’ (Watts 1999, p. 7). This narrower definition of ‘federation’ rather than ‘federal political system’ is widely used by federal scholars; when the contributors’ chapters are discussed below, we will see that this causes a number of analytical problems, including the reliance on overly formal legal models. Likewise, when scholars turn their attention to second-​and third-​generation federal systems, they find instances where there is no clear delineation of powers, presenting further problems. This reliance on the narrow definition of ‘federation’, rather than ‘federal political system’, can be traced back to the early scholars of federal theory: Riker, Dahl, Livingston and Wheare. The classic debate can be divided into two main schools of thought: strict legalism (Riker and Dahl) and sociological approaches (Livingston). The strict legalism approach favours clear delineation of constitutional realms; K. C. Wheare (1963) tells us that federal systems require a division of power, a written constitution and the coordination of supremacy. Riker tells us that central and component governments both enjoy authority in some sphere of decision making. Livingston (1952) and Burgess (2012) tell us that there is more to federalism than simply the rules of the game and who happens to interpret them. Writing in 1952, Livingston says that the nature of society and the divisions within it are equally important when thinking about federalism. He wrote that society is a necessary and sufficient condition for a federal society. Before Elazar (1987)

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wrote of a spectrum of federal societies, Livingston told us that there is no idealized type of federation and that federations exist on a spectrum from strong (like the USA) to weak (like the Federal Republic of Yugoslavia). Riker countered Livingston, arguing that his conception of a federal society goes too far in removing the federal components of the constitution. He says that federal societies begin and end with a ‘bargain’ between the players and that those elites are of critical importance. It is they who aggregate and articulate the political interests of society. Moreover, he reminds us that judges, as the arbiters of the bargains negotiated, are at the centre of federal societies and Livingston goes too far in removing those critical elites. Taken together Riker, Wheare and Livingston lay the foundation for the scholarly debate around federalism for the half-​century that followed. Indeed, the authors in this volume continue to push and pull those early discussions in new and meaningful ways. I now turn to these contributions, examining them through the lens of the early scholars of federalism. 2

Chapter Summaries

The authors in this collection highlight the complexity of modern federations from a variety of approaches. The classic studies of federalism are once again addressed in new and useful ways. The book is divided into three main sections:  federal theory, institutions and actors, and, finally, two challenges to the notion of autonomy in advanced and developing federations. It is to those discussions that I now turn in light of this strict legalism versus societal federalism frame. Arthur Benz (Chapter  2) tells us that the purpose of federalism is not to preserve autonomy, but rather it is about managing interdependence, where contrasting values need to be balanced against the common good. He argues that ‘autonomy means the ability of a community, organization or government to decide their own affairs without the intervention of another level of government’. Moreover, federalism cannot be seen as a feature of a federation; rather, federalism invites governments to operate in a coordinated manner. Here we can see that he channels the spirit of Michael Burgess (2012 p. 16), reminding us that federalism and federation provide a set of principles to be aggregated and identified as ‘federal theory’. Importantly, Benz reminds us that federalism is about organizing the complexity of societies, harkening back to Livingston’s federal definition. Troy Smith (Chapter  3) takes aim at the heart of Rikerian theory, claiming that Riker’s theory is too Hobbesian in nature: it undervalues federalism’s

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220 Banfield benefits and overstates its costs. He further tells us that the notion of federalism as ‘power-​seeking’ units pitted against one another is too narrow and pessimistic. Indeed, he challenges Riker’s assumption that the race to the bottom is based on power and greed. Moreover, he reminds us that races to the bottoms are exceedingly rare, and that interjurisdictional competition leads to positive results and greater choice. Smith tells us that a better way to think about federalism is one based on human nature, using a bottom-​up complex adaptive system model that challenges the assumption that order must be imposed from above, arranged and continually maintained. Again, we see in this way elements of Burgess (2012) and Livingston (1952) coming through in Smith’s new vision of the federal dynamic, where federalism supports ‘freedom, self-​government, individual responsibility divided sovereignty and a limited but strong national government’. Erika Arban (Chapter 4) shows us that many modern federations do not fit that classical definition of federalism. She demonstrates that precise definitions are difficult because of ‘quasi federations’ and regionalism. She reminds us that too many US scholars of federalism tend to regard sovereignty and autonomy as synonymous. Her contribution illuminates interesting distinctions between conceptual and practical understandings of federalism and sovereignty. In Chapter  5, Félix Mathieu and Alain-​G. Gagnon use their Quebec case-​ study to show us that ‘federal spirit’ promotes autonomy in these spheres of jurisdiction. Again, we see the spirit of Livingston (1952) filter through their chapter when they discuss ‘autonomy’ in multinational federations. The Canada–​Quebec discussion in this chapter reveals another side of the autonomy debate, namely that, beyond constitutional words, ‘autonomy’ is negotiated between competing visions of society. Interestingly, we also see Rikerian lines of argument when dealing with the importance of elites and the renegotiation of their bargain through the use of constitutional change. Anthony Sayers (Chapter  6) takes a step back from the Canada–​Quebec debate and pushes us to think about Canada as a whole. Specifically, he asks us to reconsider the Canadian party system and how it affects the distribution of power through the use of executive federalism. He embraces Riker’s view that states are in competition with each other and with the federal government, showing us that there is value in this Hobbesian approach employed by Riker. Moreover, Riker’s reliance on elite bargaining is highlighted in the Canadian example. Sayers shows us that Canada succeeds because of the loose rules of intergovernmental relations which allow states the leeway to either go along with the federal decision or to resist—​at least publicly.

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Alan Fenna, John Phillimore and Vijaya Ramamurthy (Chapter  8) ask a reflexive research question: how is it that the provinces in Canada have maintained policy autonomy whereas states in Australia have increasingly cooperated, or capitulated, to the Commonwealth’s policy preference? Using health policy as their case-​study, they demonstrate that in Australia there is a ‘cooperative’ ethos of joint decision making. This stands in stark contrast to Sayers’s findings that the Canadian provinces are happy to carve out their own policy space. Fenna et  al. claim that a major challenge in modern federations is a ‘nationally unified and locally controlled’ health system, which is why during the 20th century Australia has shifted models from autonomy to collaboration. Christian Leuprecht and Mario Kölling (Chapter 9) highlight another difficulty for modern federations:  public security in the age of terrorism. They emphasize that security is highly dependent on horizontal cooperation and that all advanced democracies have prioritized security over the division of powers in a federation. Like Fenna et al. (Chapter 8) and Mathieu and Gagnon (Chapter 5), they conclude that a federal political culture (that is, the federal spirit) is a precondition for security management. Isi Unikowski (Chapter 7) focuses on an underrepresented issue in federalism studies: the role of the public service. He explains that it is the frontline actors, the public servants, who have to navigate the intersection of public administration and federalism on a day-​to-​day basis. He shows us that federalism is more than simply the constitutional, legal and political structures; rather, it is the freedom of actors in the system to maintain policy autonomy that allows the federal spirit to be found. Many of the authors in this collection focus on ‘first-​generation’ federal systems: Australia, Canada, the USA, among others. A critical question, however, emerges in those chapters which examine second-​or third-​generation federations, particularly those in Africa. Tinashe Chigwata, Jaap de Visser and Zemelak Ayele (Chapter 11) demonstrate that much of our understanding of how federations emerge comes from Riker’s theory. They show us that technological advances, like modern telecommunications, have made smaller sub-​national units capable of delivering services. Indeed, in much of Africa, international organizations’ financial assistance packages have been a key driver of decentralization, resulting in African nations adopting federal-​like arrangements. In practice these federal-​like arrangements have been unbalanced and unlikely to achieve success. As in those federations that came before them, many local governments have been subsumed constitutionally by the exclusive competence of the states. This is compounded by the minimal revenue-​ raising capacity of local government. This problem of fiscal autonomy is also

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222 Banfield highlighted in Miguel Angel Asensio’s chapter on Argentina, in which he tests Wheare’s (1963) claim that the ‘states must have sufficient revenues to enable them to act independently’. These chapters show that the echoes of Riker, Wheare and Livingston still resound through modern federal scholarship. Indeed, the questions posed by those classic scholars are still debated, engaged with and reformulated today. Taken together, the chapters in this volume and those classic conceptions point the way forward for federal research. 3

Future Research

The chapters in this volume highlight the complexity and nuance that is modern federalism scholarship. Each author takes a relatively simple concept—​ shared power and the role of autonomy—​and shows that the answers are far from simple. These contributions point the way forward for federalism research and there are three main lessons: conceptual clarity, broader inclusion of actors and institutions when examining federal systems, and reimagining autonomy for the 21st century. A theme that emerges from all the chapters is the quest for a clear definition of modern federalism. Just like those early writers—​Riker, Wheare and Livingston—​scholars today still struggle for conceptual clarity between ‘strict legalism’ and more sociological or ‘federal spirit’ approaches. I want to return to the useful distinction proposed by Watts (1999) as the way forward in thinking about ‘federal political systems’. Recall that Watts tells us that federation is a subset of ‘federal political systems’; by using the more expansive definition, we can capture much of what concerns those who examine second-​and third-​ generation federal systems. If this more expansive definition of federalism were to be adopted, it also answers some of the concerns expressed by Riker in his reply to Livingston: namely, the elite actors and the bargain they create and manage still matter, albeit with looser rules of the game. A second lesson that emerges from the chapters is the idea that the classic idea of ‘elites’ as understood by Riker may be restricting our understanding of federal political systems. As Unikowski points out, it is the front-​line managers—​that is, the public servants—​in a federal system who run the day-​ to-​day operation of federal agreements. They are also at the front line of negotiating with their counterparts in other regions. Broadening the definition of elites and their role in federal political systems would also begin to capture those ngo s which helped shape third-​generation federations in Africa and South America.

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Finally, more work needs to be undertaken on the question of autonomy. Again, Watts’s definition of ‘federal political system’ would allow a fuller understanding of what contemporary autonomy looks like. As Tracy Fenwick notes (Chapter 1), ‘the world is characterized by increasing interconnectedness and interdependence’. Scholars need to continue to push the boundaries of what that interconnectedness looks like, especially in the face of modern, non-​ geographical policy issues, like security, health and globalization. 4

Conclusion

It is said that constitutional scholar J. A. Corry advised ‘a neat and tidy mind is crippling when it comes to studying federalism’ (quoted in Bakvis, Baier and Brown 2009, p.  246). The chapters in this book demonstrate why:  the complexity and nuance in federal political systems make the study of federalism a daunting task. However, this very complexity and nuance in federal political systems are critical for a deeper understanding of how modern federal political systems operate. More importantly, they are what allows federal system to adapt to changes well beyond what was envisioned by those early federalism scholars. It is precisely this adaptability that will encourage new and existing states to engage in discussions about how to manage interdependence and cooperation in the 21st century. As Fenwick points out in her introduction to this volume, we cannot assume that federal negotiations occur in a zero-​sum Rikerian game.

References

Bakvis, H., G. Baier and D. Brown (2009). Contested Federalism: Certainty and Ambiguity in the Canadian Federation. Toronto: Oxford University Press. Burgess, M. (2012). In Search of the Federal Spirit:  New Theoretical and Empirical Perspectives in Comparative Federalism. Oxford: Oxford University Press. Dahl, R. A. (1986). Democracy, Liberty and Equality. Oslo: Universitetsforlaget. Elazar, D.J. (1987). Exploring Federalism. Tuscaloosa: University of Alabama Press. Livingston, W. S. (1952). A note on the nature of federalism. Political Science Quarterly 67: 81–​95. Livingston, W. S. (1956). Federalism and Constitutional Change. London: Oxford University Press. Riker, W. H. (1964). Federalism: Origin, Operation, Significance. Boston: Little, Brown & Co. Riker, W. H. (1987). The lessons of 1787. Public Choice 55(1): 5–​34.

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224 Banfield Riker, W. H. (1996). European federalism: the lessons of past experience, in J. Hesse and V. Wright (eds), Federalizing Europe: The Costs, Benefits and Preconditions of Federal Political Systems. Oxford: Oxford University Press, pp. 9–​24. Watts, R. L. (1999). Comparing Federal Systems, 2nd edn. Kingston:  McGill-​Queens University Press. Wheare, K. C. (1963). Federal Government. Oxford: Oxford University Press.

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Index Page references in bold type indicate a more in-​depth treatment of the subject. 9/​11 161, 164, 169 Abbott, Tony vii–​xi, xiv, 112 accountability 7, 11–​12, 15 Acemoglu, Daron 36 act (Australian Capital Territory) 148 Act Respecting the Exercise of the Fundamental Rights and Prerogatives of the Quebec People and the Quebec State (2000) 80 Addis Ababa 194, 194n3, 195–​196 Addisson, Tony 191 Afar (Ethiopia) 192n1, 193 Africa 9, 218, 221 centralization/​decentralization 7, 191, 221 institutional reform 191–​192, 197–​198 see also Ethiopia; South Africa; Zimbabwe African National Congress (anc) 167, 199, 204, 205, 214 Ahmed, Abiy 197 aihw (Australian Institute of Health and Welfare) 145 Alberdi, Juan Bautista 174n4 Alberta 97, 98, 104, 107 see also prairie provinces (Canada) Althusius, Johannes 17, 41, 54–​55 Althusser, Louis 159 Ambrosini, Gaspare 49 Amhara (Ethiopia) 192n1, 193, 196, 198, 198n6 anc (African National Congress) 167, 199, 204, 205, 214 Anderson, Janet 143, 144, 145 Anderson, William 114 anthropology  models in political science 27–​29 new anthropology 27, 29–​33, 31n5, 41, 220 anzsog (Australia and New Zealand School of Government) 146n1 apartheid regime (South Africa) 162, 199

Aportes del Tesoro Nacional a las Provincias (emergency fund, Argentina) 178 Appelbaum, Yoni 39 Arban, Erika 6, 220 Argentina  co-​determination 183, 185 constitution/​constitutional reform 172–​173, 172n2 economic crisis (2001-​2) 181 federal spending power 173, 185 fiscal federalism 172, 173, 178–​186 regulated autonomy 183–​184, 186 revenue-​sharing/​distribution system 178, 179, 181 sub-​national/​provincial tax autonomy 7, 172, 173, 177tab., 179, 182, 183, 184, 185–​186 system of federal finances 172 taxes/​tax reform 182tab. Gross Income Tax (iib) 178, 179, 180–​181, 180tab., 182–​183, 182–​183n14, 182tab. Property Tax (ii) 180, 180tab. Retail Sales Tax 180–​181 Stamp Tax (is) 178, 179, 180tab., 181, 183n14 Tax on Bank Debits and Credits 182 tax burden 184tab. Value Added Tax 178n9, 179 tax regulations/​laws/​fiscal pacts 172, 179, 185 Federal Agreement for Production and Growth 180–​181, 180tab. fiscal consensus 182–​183, 182tab. fiscal responsibility laws 184–​185 Law 23.548 179 Transitory Law for the Distribution of National Resources (1988) 3, 178–​179 Aristotle 30, 33n10, 41 Asensio, Miguel Angel 7, 172, 175n5, 222 asymmetric approaches 81, 149, 159, 164–​165, 166–​167, 169–​170, 184

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226 Index Atlantic Canada, federal Liberal support in 91, 99–​100, 100fig., 102, 105, 106fig. Attorneys General Conference (Mexico) 168 Australia 120n6, 217, 218 Canada vs. 8, 139–​140, 221 constitution ix, 56 cooperative federalism viii, 141, 143, 146, 153 education/​schools xii–​xiii, 8, 119, 138, 141, 153 environment 117 federal reform/​dynamics vii–​xv, 113–​114, 129, 130, 144 Green Paper on Reform of Federation xi, xii White Paper on Reform of Federation process vii, viii, x–​xiii, xiv, 112 grant funding ix, 125, 125n7, 141–​142, 144 health care federalism 137, 138, 139–​140, 142, 148, 152–​153, 221 health care system 140–​144 centralization/​decentralization 138, 139, 145–​152 funding and policy making 118, 137, 141–​142, 144–​145, 152 health insurance 139, 141 intergovernmental cooperation/​ relations 143, 146, 148–​152, 153, 221 reform of 143–​146 see also Local Hospital Networks income tax division ix, xiii, 141 intergovernmental cooperation/​ relations 8, 21, 112, 117–​118, 121, 143, 145–​146, 148–​152, 153, 221 intergovernmental management 112–​114, 115–​130 discursive styles of public servants/​ officials 122–​128, 129 ‘ideational layer’ of 114, 119–​128 ‘institutional layer’ of 114, 116–​119 origins of federalism viii–​ix power distribution/​division ix–​x state hospitals,  decentralization of system governance 146–​152 funding of 140, 144–​145, 152 taxation/​tax reform ix, 141 vetoes/​veto rights 21

Australian Capital Territory (act) 148 Australian Commission on Safety and Quality in Health Care 145 Australian Constitutional Values Survey (2014) 112 Australia and New Zealand School of Government (anzsog) 146n1 Australian Institute of Health and Welfare (aihw) 145 Austria-​Hungary 49 authoritarianism 7, 163 authority, independence vs. 90–​91, 94–​95 autonomy  definition 8–​9, 52, 53 democracy and 15–​17 in federal vs. regional systems 47, 51–​52 identification with federalism 4, 5, 14–​15, 219 interdependence vs. 4, 6, 12–​13, 19, 20, 219 relevance in 21st century context 3–​4 sovereignty vs. 6, 53, 56–​57, 58, 220 see also local autonomy; self-​rule/​self-​ government; tax autonomy Ayele, Zemelak 193, 195, 221 B & B Commission (Royal Commission on Bilingualism and Biculturalism, Canada) 73 Baier, Gerald 89, 223 Baird, Mike x Bakvis, Herman 89, 93, 223 balance of power see power distribution/​ division Baldwin, John R. 88 Balfour Report (Canada, 1926) 88n2, 105 Banfield, Andrew C. 93 Banting, Keith 139, 140 bargaining power see power distribution/​ division Barnett, Chris 36 Bartley, Tim 30, 37 Barton, Elsa 149 Basque Country 163 Baum, Fran 149 Bayley 159 Beaud, Olivier 56, 57 Bednar, Jenna 4, 11

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Index Beer, Samuel 20 Behnke, Nathalie 22 Béland, D. 119 Belgium 51 Benes, Bedrich 34 Benishangul-​Gumuz (Ethiopia) 192n1, 194n2 Bennett, Christine C. 145 Benz, Arthur 4, 6, 7, 8–​9, 19, 21, 22, 114, 219 Berhanu, Kassahun 193 Berhe, Tsegay 197 bicameralism 16, 21, 179 Bicchieri, Cristina 35 Biggs, Amanda 145 Bin, Roberto 47, 49, 51 Bird, Richard M. 175, 176 Bismark, Marie M. 149 Bittner, Amanda 92 Bittner, Egon 159 Black’s Law Dictionary 52–​53 ‘blank-​slate’ philosophers/​ philosophy 28–​29, 32 Blöchliger, Hansjörg 177tab. Bloc Québécois (bq) 81, 103 bna (British North America) Act 88n1, 89n4, 105 Bodin, Jean 53–​54, 55, 64 Boessenkool, Ken 140 Bogaards, Matthijs 96 Bolleyer, Nicole 6, 14, 22 Borriello, Arthur 115n2 Botterill, Linda 115 bottom-​up models/​movements 6, 35, 40, 41 Boucek, Françoise 96 Bourassa, Robert 76 Bourgault, Jacques 74 Bourns, Andrew 139 Bowles, Samuel 35 Boxall, Anne-​Marie 145 Boychuk, Gerard W. 139 Boyd, Robert 35 bq (Bloc Québécois) 81, 103 Brazil  constitutional and legal framework 162, 163 public security 159 centralization of 163, 165 intergovernmental relations 167–​168 principal security challenges 161

227 Breen, Michael G. 7 Breton, Albert 13 British Columbia  federal Liberal support in 91, 98, 102, 102fig., 104, 105, 106, 106fig. governing-​party seats as percentage of total seats 108fig. legislature 106, 107 British North America (bna) Act 88n1, 89n4, 105 Brodeur, Jean-​Paul 159 Brooks, Arthur C. 31 Brooks, David 35, 39 Broschek, J. 114, 119 Brown, A.J. 113 Brown, Douglas 89, 223 Brown, Lynsey 149 Brown, Mark 88 Bryner, Gary 41 Buckmaster, Luke 145 Bulawayo (Zimbabwe) 212 Bundesrat (Germany) 20 bureaucracy 191 political vs. bureaucratic dimensions of federalism 112, 119–​120 role in federal systems 8, 112 see also public servants Burelle, André 69 Burgess, Michael 5, 9, 11, 53, 69–​73, 83, 84, 85, 114, 119, 158, 218, 219 see also federal spirit Burridge, Letitia 149 Buzan, Barry 160 Bywood, Petra 149 Cameron, Robert 199, 201, 202, 203, 204, 205, 211, 212 Canada 50, 88, 217, 218, 220, 221 Australia vs. 8, 139–​140, 221 constitution 51, 56, 77, 79, 88–​89 constitutional reform/​ amendments 73, 75, 77, 78, 80, 81, 84, 88–​89, 89n4, 101, 103, 105, 108 electoral system/​elections 92, 93, 96 regional electoral support for federal government 91, 95, 96, 98–​106, 99fig., 100fig., 101fig., 102fig., 103fig., 104fig., 106fig., 109

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228 Index Canada (cont.) executive federalism 89–​90, 94–​95, 96, 105, 108–​109, 220 federal spirit 69, 73, 74–​75, 78, 79, 82–​85 French-​speaking minorities 74, 82, 83 health care/​health-​care federalism 139–​140, 221 indigenous peoples 76, 81, 83 intergovernmental cooperation/​ relations 92, 93, 96, 99, 103, 107, 109, 168 intergovernmental management 113, 115 laboratory federalism 140 legislature/​legislative dominance 5, 51, 92, 93, 94–​95, 95, 96, 98, 106–​108, 109 nationalism 74, 77 nationalization 96 partisan competition/​ dynamics 90, 95, 98 party system 90, 92–​93, 94, 96, 220 party system dynamics/​intra-​party linkages 95–​98, 97tab., 109 power distribution/​division 90–​91, 92–​94, 220 bargaining independence vs. bargaining authority 90–​91, 94–​95 federal bargaining 106–​108 power/​authority/​independence of first ministers/​party leaders 90–​96, 99, 109 public security 158, 159 decentralization 164, 166 intergovernmental relations 168 principal security challenges 161 role of state institutions 160–​161 referendums 73, 74–​75, 76, 82, 83, 84, 105 taxation, retail sales tax 172n1, 180–​181 unicameralism 90 veto rights 75, 76, 78, 92, 93 see also Quebec; Quebec-​Canada relations Canada Health Act (1984) 139 Canadian Elections Database 91, 98 Cappocia, Giovanni 116 Caramani, Daniele 95, 96 Caron, Jean-​François 80 Carré de Malberg, Raymond 54 Carter, David J. 149 Carty, R. Kenneth 93, 95, 95–​96, 98, 100

Catalonia (Spain) 163 Central Intelligence Agency (cia) 164 centralization 39, 71 Africa 191, 221 Brazil 163, 165 Canada 69 health care 138, 139, 147, 165 India 162, 165, 167 public security measures 161, 162–​164, 165, 166, 167, 169 South Africa 204, 205 Zimbabwe 208 Centre for Federal Studies (Kent University) 70 Centres locaux de services communautairs (clsc, Quebec) 140 Champagne, François 140 Charest, Jean 80 Charlottetown Accord (Canada, 1992)75 76–​77, 81 Charter of Rights and Freedoms (Canada) 89n4 Chen, Duan-​jie 175 Chigwata, Tinashe 207, 208, 213, 221 Cho, Chung-​Lae 114 Chrétien, Jean 77, 78, 101 Christensen, Clayton 36 cia (Central Intelligence Agency) 164 cities, autonomy (Ethiopia) 194, 194–​195, 196, 196–​197 civil servants see public servants Clarity Act (Canada, 2000) 77, 79–​80, 84 classic federations, regional vs. 47, 48–​52, 63–​64 clsc s (Centres locaux de services communautaires, Quebec) 140 coag (Council of Australian Governments) viii, x, xiii, 112, 116, 125, 138, 142, 144, 145, 149 coag Reform Council viii, 126 Coalition Avenir Québec 97 coalitions/​coalition agreements 19–​20, 21, 93 Coalition for Unity and Democracy (cud, Ethiopia) 196 co-​determination 174, 183, 185 Colander, David 34, 35, 36, 37, 38, 40, 41 Cold War 36

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Index Collins, Alan 158 colonialism 162, 191, 199 committees 22 communication technology 191, 221 competition  intergovernmental/​ interjurisdictional 30, 30n4, 37, 41 for power 6, 28, 29, 36–​37 for taxes 29 complex order/​science of complexity 33, 34, 35, 36, 37, 38, 41 compound republic see United States Conference of Interior Ministers (Germany) 168 Conlan, Timothy J. 19, 20, 113 consensus democracy 21 Conservative Party of Canada (cpc) 97, 97tab., 99fig., 100n14 consociation, federalism as 17 constituent units 12 definition 4 federal loyalty 71 power of 8, 9, 13, 33, 71, 90, 138, 158, 159 constitution-​making powers 49, 51 sovereignty and autonomy 5, 10–​11, 56, 57, 162, 163, 164 federal vs. regional systems 47, 50, 51–​52, 61, 63, 64 Constitution Act (Canada, 1982) 75, 77 constitutional courts 48 Italy 47, 50, 56, 58–​64 South Africa 203, 214 Zimbabwe 207 constitutionally protected autonomy (Italy) 58–​63 constitutional reform/​amendment 21, 48 Argentina 172 Canada 73, 75, 77, 78, 80, 81, 82, 84, 88–​89, 89n4, 101, 103, 105, 108 Italy 50, 60, 62 constitutions/​constitutional rules 21 Argentina 172–​173, 172n2 Australia ix, 56 Belgium 51 Brazil 162, 163 Canada 51, 56, 77, 79, 80, 82, 88–​89 Ethiopia 194–​195, 197, 213 federal states 48–​49, 51

229 fiscal 172, 173, 176, 185 fiscal constitutions, see also Argentina frameworks for public security 162–​164, 169 Germany 56 India 162 Italy 49, 50, 51, 57–​58, 60, 61–​63 Mexico 162, 163 operating vs. constitutional rule 35n12 South Africa 162, 199, 200–​204, 205, 206, 213–​214 Spain 49 Switzerland 56 United States 40, 47, 49, 55–​56, 64 Zimbabwe 207, 209–​210, 211–​212, 213 conventional/​prudential rules, moral vs. 34–​35, 35n12 cooperative federalism (Australia) viii, 141, 143, 146, 153 Coppinger, Raymond P. 34 Corbett, Stan 139 Corcaci, Andreas 19 Corporations Act (Australia, 2001) 145 corruption 7, 191, 198, 204, 205 Corry, James A. 223 Council of Australian Governments see coag coupling/​decoupling of democracy and intergovernmental relations 19–​21, 23 covenants 49, 51 see also constitutions/​constitutional rules cpc (Conservative Party of Canada) 97, 97tab., 99fig., 100n14 Crespy, Amandine 115n2 crime 8, 159, 161, 163, 165 see also public security Cross, William P. 92, 93 cud (Coalition for Unity and Democracy, Ethiopia) 196 Cyr, Hugo 52 Dahl, Robert x, 3, 40n18, 217, 218 Dardanelli, Paoli 140 Deakin, Alfred x decentralization 7–​8 Africa 7, 191, 221 Ethiopia 193, 194, 196 South Africa 165, 199–​200, 204–​206 Zimbabwe 207–​208, 211–​213

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230 Index decentralization (cont.) Canada 69, 95, 164, 166 health care (Australia) 138, 139, 145–​152 public security 163–​164, 165, 166, 169–​170 Spain 163 decision making, co-​determination 174, 183, 185 decoupling see coupling/​decoupling of democracy and intergovernmental relations Delsol, Chantel 31 democracy  autonomy and 15–​17 federalism vs./​and 7, 11–​12, 16–​17, 18–​19, 70, 72, 84, 85 intergovernmental politics/​relations and 18, 19–​23 see also federal democracy Democratic Alliance (South Africa) 204 democratic centralism (South Africa) 204 Deneen, Patrick J. 32, 36, 39 Denis, Jean-​Louis 147 Department of Correctional Services (South Africa) 167 Derthick, Martha 27 descriptive representation, responsive vs. 16 Dessalegn, Haile Mariam 198n6 De Ville, Ferdi 115 Diefenbaker, John 103, 104 Di Gresia, Luciano 172 DiIulio, John D. 115 Dillon, Karen 36 Dire Dawa (Ethiopia) 194, 194n3, 195 discursive institutionalism 114–​115, 122, 130 discursive styles of public servants/​ officials 122–​128, 129 diversity 36–​37 divided sovereignty  Germany 56 Italy 60 Switzerland 56 United States 47, 54, 55–​57 Dixon, Tim 32 Dogbe, Tony 36 Doser, Jan W. 19 Duckett, Stephen 137, 140, 142 Due, John F. 175 Dugdale, Paul 149 Dyck, Rand 97

Early, John F. 36 Eberstadt, Nicholas 36 Eccleston, Richard 143 economic development 14, 138, 191, 195, 202 economic theory of federalism 13, 14 education  Australia xiii, 8, 119, 138, 141, 153 Ethiopia 195, 198 local social-​cultural autonomy and 138 public security and 165 Elazar, Daniel J. 3, 11, 42, 54, 160, 218 electoral systems/​elections  Canada 91, 92, 93, 95, 96, 98–​106, 109 Ethiopia 196 South Africa 201, 206 Zimbabwe 207, 209, 213 elites/​elite interests vii, 28, 32, 33, 35, 36, 37, 39, 41, 159, 167, 211, 219, 220, 222 emergence (concept) 33–​36 emerging federations 6, 7 see also Argentina; Brazil; Ethiopia; Mexico; South Africa; Zimbabwe environmental policy 14, 117 eprdf (Ethiopian People’s Revolutionary Democratic Front) 192, 193, 196, 198, 198n6, 214 Erikson, Erik 31, 31n6 Escobedo, Ramón 34 Ethiopia 7, 192 constitution (1995)/​sub-​national constitutions 194–​195, 197, 213 decentralization 193, 194, 196 education 195, 198 elections/​electoral system 196 ethnic local governments 213 nationality zones vs. liyu-​woreda (special districts) 193, 194 institutional reform 197–​198 local autonomy 194–​198 at constitutional/​statutory level 194–​196 in practice 196–​198 poverty/​poverty reduction 192, 193 public protest 197–​198 regular local governments, cities vs. rural woredas 193–​194, 194–​197 revenue collection 195–​196, 197 secession 193 vetoes/​veto rights 196, 197

Tracy B. Fenwick and Andrew C. Banfield - 978-90-04-44675-5

Index Ethiopian People’s Revolutionary Democratic Front (eprdf) 192, 193, 196, 198, 198n6, 214 ethnic communities/​ethnically structured local governments 7, 193, 194, 199, 213, 217 Europe 54, 56 public security 161 European Union 115, 115n2 tax harmonization 176, 176tab. executive federalism (Canada) 89–​90, 94–​95, 96, 105, 108–​109, 220 expenditure assignment 173, 173–​174, 176n6 n. 6–​7 external sovereignty 54 Falcon, Giandomenico 47, 49, 51 Federal Agreement for Production and Growth (Argentina) 180–​181, 180tab. federal comity, federal loyalty vs. 71 federal courts 5 federal democracy 5, 11 autonomy and 15–​17 definition x, 3 interdependence and 13–​15, 17–​18 federal dynamics 113–​114 ‘ideational layer’ 114, 119–​128 ‘institutional layer’ 114, 119–​128 Federalism: Origin, Operation, Significance (William Riker, 1964) 4, 7, 11, 27, 29, 30, 33, 36, 37, 217 federalism  autonomy and 4, 5, 14–​15, 219 definition/​term/​concept 217, 219, 220, 222 democracy vs./​and 7, 11–​12, 16–​17, 18–​19, 70, 72, 84, 85 see also federal democracy future research 222 goals 7, 12, 17 interdependence and 13–​15, 17–​18 old/​standard vs. new/​alternative concepts/​models 4–​5, 6–​7, 17, 27, 28, 29, 30, 33, 36–​37, 38, 39–​40, 41, 217 origins and operations 4, 17, 27–​29 see also human nature significance/​relevance 3, 36–​41 sovereignty vs. 56

231 see also fiscal federalism; health-​care federalism; human nature; multinational federalism; quasi-​federalism Federalist Paper 17 (Alexander Hamilton) 159 federal loyalty, federal comity vs. 71 federal political systems 222, 223 definition/​term 217, 218, 223 see also federal states/​systems federal reform/​change  Australia vii–​xv, 112, 113–​114, 129, 130, 144 lessons to be learned xiii–​xiv federal spirit 70–​73, 222 Canada 69, 73, 74–​75, 78, 79, 82–​85 core dimensions/​conditions 69, 71–​72 definition 70, 71 federal states/​systems  classic vs. regional 47, 48–​52, 63–​64 classification 6 definition 48 federal system as discursive space 128–​129 origins 51 regional vs. 47, 49–​52, 63–​64 role of judiciary/​legislative power in 5, 20, 48, 50–​51, 174, 219 unitary vs. 29–​30, 48, 49, 51–​52, 56, 158 see also federal political systems; federations; quasi-​federalism federated entities see constituent units federations 222 definition/​term 217, 218 see also federal states/​systems Fehr, Ernst 35 Fenna, Alan 8, 17, 116, 138, 140, 141, 142, 143, 144, 221 Fenwick, Tracy 223 Fessha, Yonathan 193 ffc (Finance and Fiscal Commission, South Africa) 201, 201n7, 203 Fiddick, Laurance 35 Fierlbeck, Katherine 140 Figueiredo, Rui J.P. de 5 Filipov, Mikhail 4, 11 Finance and Fiscal Commission (ffc, South Africa) 201, 201n7, 203 financial autonomy 48, 50, 186, 213, 214 first-​generation federal systems see Australia; Canada; United States

Tracy B. Fenwick and Andrew C. Banfield - 978-90-04-44675-5

232 Index first ministers (Canada), power/​authority/​ independence of 90–​96, 99, 109 fiscal autonomy see tax autonomy fiscal constitutions 172, 173, 176, 185 see also Argentina fiscal federalism 13, 14, 117, 175 Argentina 172, 173, 178–​186 Canada 172n1 United States 172n1 fiscal pacts (Argentina) 172, 179, 180–​181, 180tab. fiscal unions 176, 185 Fiseha, Assefa 193, 196, 197 Florestano, Patricia S. 113 Foucault, Michel 28 France 53, 56 freedom 27, 32, 36, 37 definition 37 free trade 14 Friedlaender, Ann F. 175 Friedrich, Carl J. 11, 114 Future of Australian Federalism Survey (2015) 113 Gadiel, David 149 Gagnon, Alain-​G. 5, 70, 74, 75, 77, 78, 82, 83, 220, 221 Gambella (Ethiopia) 193 Game of Thrones vii, xiv Garat, Pablo M. 172 Garcia, Marito 197 Garsten, Bryan 38, 39n15 Gebre-​Egziabher, Tegene 193 Germany 20, 21, 120n6 constitution 56 divided sovereignty 56 public security 158, 159, 164 centralization/​ decentralization 163, 166 intergovernmental relations 168 principal security challenges 161 Gibson, Gordon 78, 95 Gierke, Otto von 55 Gillard, Julia 152 Gillespie, James 147 Ginchi (Oromia, 197n6 Gintis, Herbert 35 gnu (government of national unity) see Zimbabwe

Godefroidt, Amélie 191 Governing the Commons (Elinor Ostrom) 34 Graefe, Peter 139 Gramm, Phil 36 grants/​grant funding 204 tied/​conditional ix, 125, 125n7, 141–​142, 144, 197, 203 untied/​unconditional 125, 185, 195, 203 Gray, Gwendolyn 140, 141 Great Britain x, 162, 206 greed 6, 10, 30, 205, 220 Green Paper on Reform of Federation (Australia) xi, xii Greer, Scott L. 137 Gregg, Samuel 43 Grundgesetz (Basic Law, Germany) 56 Guénette, Dave 83 Haardt, David 140 Haidt, Jonathan 29, 30 Hall, Jane 145 Ham, Chris 149 Hamilton, Alexander, Federalist Paper 17 159 happiness, pursuit of 31–​32, 41 Harare 208, 212 Harley, Kirsten 149 Harper, Stephen 84, 100n14 Hartman, Christopher 34 Harwood, Jeffrey 113, 115 Hataley, Todd 158, 162 Hawkins, Stephen 32, 39 Hay, Colin 128, 130 Hayek, Friedrich A. 35 Hays, Sharon 122 health, public security and 161, 165 health-​care federalism 138–​140 Australia 137, 139–​140, 146, 148, 152–​153, 221 Canada 139–​140 intergovernmental cooperation 143, 145–​146, 148–​152, 153 health care/​health-​care systems 8, 139 Australia 140–​144, 221 Canada 139–​140, 221 centralization/​decentralization 138, 139, 145–​152, 165 funding 118, 137, 140, 142, 144–​145 reform 143–​146, 146–​152 health insurance (Australia) 139, 141

Tracy B. Fenwick and Andrew C. Banfield - 978-90-04-44675-5

Index Health Services (Western Australia) see Local Hospital Networks Hendrie, Delia 143 Hepworth, Julie 149 heterogeneous federations 158 centralization/​decentralization 162–​163 public security 162, 169 see also Canada Himmelfarb, Gertrude 31 Hirschman, Albert O. 38 historical institutionalism 116, 116n4 Hobbes, Thomas 28, 29, 39n15 n. 15–​16, 53–​ 54, 55, 64, 219, 220 Hollander, Robyn 21, 113 Holland, John 43 homogenous federations 158 centralization/​decentralization 163–​164 public security 162, 169 see also Germany Hood, Christopher 120, 120n6 Hooghe, Liesbet 35 Hospital and Health Services (Queensland) see Local Hospital Networks hospitals/​hospital treatment, funding (Australia) 140, 142, 144–​145, 152 Hueglin, Thomas O. 11, 17, 55 human nature 28–​29 federalism and 6, 27–​28, 220 new understanding of/​new anthropology 27, 29–​33, 31n5, 41, 220 Hume, David 31, 41 Hurley, James Ross 88n2, 89, 92n7 Iacovino, Raffaele 74, 78 icc see Italian Constitutional Court imf (International Monetary Fund) 191 independence, authority vs. 90–​91, 94–​95 Independent Hospital Pricing Authority (Australia) 145 India  constitutional and legal framework 162 intergovernmental relations 167 public security 159, 164–​165, 167 centralization 162, 165, 167 principal security challenges 161 Indian Union 162 indigenous peoples (Canada) 76, 81, 83 individualism 28, 32, 32n7

233 In Search of the Federal Spirit (Michael Burgess) 70–​73 institutionalism  discursive 114–​115, 122, 130 historical 116, 116n4 neo-​ 114 institutional reform (Africa) 191–​192, 197–​198 interconnectedness 223 interdependence 217, 223 autonomy vs. 4, 6, 12–​13, 19, 20, 219 federalism and 13–​15, 17–​18 Intergovernmental Agreement on Federal Financial Relations (Australia) xiii, 144 Intergovernmental Agreement on the Reform of Commonwealth-​State Financial Relations (Australia) 144 intergovernmental cooperation/​relations/​ politics 8, 14 Australia 8, 21, 112, 117–​118, 121, 143, 145–​146, 148–​152, 153, 221 Brazil 167–​168 Canada 92, 93, 96, 99, 103, 107, 109, 168 democracy and 8, 19–​23 Germany 168 health care 143, 145–​146, 148–​152, 153 India 167 intergovernmental management vs./​ and 112, 112n1, 117 Mexico 167, 168 politicization of intergovernmental relations 167–​168 public security 164, 167–​168, 170, 221 South Africa 167–​168 Spain 167, 168 Switzerland 164, 168 intergovernmental coordination 13, 17–​19 intergovernmental councils 22 intergovernmental management 130 Australia 112–​114, 115–​130 Canada 113, 115 discursive styles of public servants/​ officials 122–​128, 129 ‘ideational layer’ 114, 119–​128 ‘institutional layer’ 114, 116–​119 intergovernmental relations vs./​and 112, 112n1, 117 political vs. bureaucratic dimensions 112, 119–​120

Tracy B. Fenwick and Andrew C. Banfield - 978-90-04-44675-5

234 Index intergovernmental management (cont.) role of individual agency 116–​118 formal rules 118 mandates 118–​119 policy-​specific strategies 119 trust in public servants/​officials 121–​122 United States 113 internal sovereignty 54 International Association of Centers for Federal Studies (Australia) xv International Association of Federal Studies, 2018 Conference 6 International Monetary Fund (imf) 191 international sovereignty 54 Inwood, Gregory J. 113 Italian Constituent Assembly 49 Italian Constitutional Court (icc) 47, 50 on sovereignty and autonomy 47, 58–​64 Italy  constitution 49, 50, 51, 56, 57–​58, 60, 61–​63 constitutionally protected autonomy 6, 47, 58–​64 limits to regional powers 58–​59, 61, 62–​63, 64 constitutional reform/​ amendment 50, 60, 62 financial and fiscal autonomy 50 local interests/​local autonomy 50, 57–​58, 64 referendums 50, 60 regional councils vs. national parliament 61–​63, 64 regionalism 50, 57–​58 role of judiciary/​legislative power see Italian Constitutional Court State-​Region Conference 50 ‘Unity and Indivisibility of the State’ principle 59–​60, 62, 64 Jabko, Nicolas 117 Jackson, Gregory 114 Jackson, Richard 191 Javanparast, Sara 149 jcpc (Judicial Committee of the Privy Council, Great Britain) 88, 88n1 Jefferson, Thomas 31

Johannesburg 200 Johns, Carolyn M. 113 Johnston, Richard 101 Jones, Mark 96 Juan-​Torres, Miriam 32 Judicial Committee of the Privy Council (jcpc, Great Britain) 88, 88n1 judiciary  role in federal systems 5, 20, 48, 50–​51, 174, 219 see also constitutional courts; supreme courts Kalanga (minority ethnic group, Zimbabwe) 208 Karcher, Sebastian. 114 Kashmir 162 Kass, Leon R. 38 Kasurak, Peter 166 Kasuya, Yuko 96 Katterl, Rachel 149 Keen, Michael 176n5 Kekes, John 31, 32 Kelemen, R. Daniel 116 Kennedy, Justice Anthony McLeod 55–​56 Kenya 192 Kessler, Martin 36 Kincaid, John 18, 30, 37, 140, 160, 184n18 King, David 173n3, 177tab. Kölling, Mario 158, 162, 169, 221 Kollmann, Ken 95 Koop, Royce 92, 98 Kössler, Karl 53, 54, 55, 56 Kupers, Roland 34, 35, 36, 37, 38, 40, 41 laboratory federalism (Canada) 140 Labor Party (Australia) 141, 144 Lachapelle, Guy 75 Laforest, Guy 80, 84–​85 Lago, Ignacio 96 Lamarche, Paul A. 140 Lancaster House constitution 206 Lane, Ruth 32, 32n7, 34, 35, 39 Langer, Arnim 191 Langlois, Simon 77, 80 Latin America see South America Laurendeau, André 73 Laurier, Wilfrid 101, 105

Tracy B. Fenwick and Andrew C. Banfield - 978-90-04-44675-5

Index Lazar, Harvey 88 Lecours, André 119 legislature (Canada) 5, 51, 92, 93, 94–​95, 95, 96, 98, 106–​108, 109 Lehmbruch, Gerhard 20 Lenihan, Donald G. 69 Leuprecht, Christian 158, 162, 166, 169, 221 Lévesque, René 83, 103 Leviathan (Thomas Hobbes) 28, 53 lhn s see Local Hospital Networks liberal democracy 162 Liberal Party of Canada (lpc) 75, 77, 78, 80, 81, 82, 84, 96, 97, 97tab. election results 98–​106, 99fig., 100fig., 101fig., 102fig., 103fig., 104fig., 106fig. Liguria (Italy) 62–​63 linguistic autonomy 163 linguistic diversity/​minorities 57, 72, 88, 164, 165, 167, 192, 217 French-​speaking minorities (Canada) 74, 82, 83 Livingston, William S. 27, 217, 218–​219, 219, 222 liyu-​woreda (special districts, Ethiopia) 193, 194 local autonomy  Ethiopia 194–​198 Italy 50, 57–​58, 64 local control 40 South Africa 200–​206 Zimbabwe 208–​213 local government structures  Ethiopia 193–​194 South Africa 200 Zimbabwe 208 Local Health Districts and Speciality Networks (New South Wales) see Local Hospital Networks Local Hospital Networks (lhn s, Australia) 146, 147 cooperation with Medicare Locals/​ Primary Health Networks 146, 148–​152 barriers 149 local influence 149–​150, 150tab., 151fig. profile/​standing 150 quality of relationship 150–​152, 152tab.

235 decentralization of state hospital system governance 146–​152 objectives and responsibilities of boards 147–​148 research project/​survey on 146–​152 Locke, John 28, 30 Lodge, Martin 120, 120n6 London Morning Post x Loughlin, John 54 Lowi, Theodore J. 32, 39 Lowndes, Vivien 115 lpc (Liberal Party of Canada) 75, 77, 78, 80, 81, 82, 84, 96, 97, 97tab. election results 98–​106, 99fig., 100fig., 101fig., 102fig., 103fig., 104fig., 106fig. McArdle, Megan 35 Macdonald, Christine R. 143 McGregor, Janyce 82 MacIntyre, Alasdair 39 McLure, Charles 176 McRoberts, Kenneth 73, 78 Madison, James 27n1, 40n18, 41 Mainwaring, Scott 96 Maioni, Antonia 139 Maiz, Ramon 70 Manent, Pierre 32, 38, 39n15 Mangiameli, Stelio 49 Manicaland (Zimbabwe) 208 Manitoba (Canada) 107 Mapuva, Jephias 207, 208, 210–​211, 211, 212 Marando, Vincent L. 113 Marche (Italy) 63 Marchildon, Gregory P. 139 Marcuse, Herbert 28 market economies 31, 34 Marks, Gary 35 Martin, George vii Marx, Karl 28, 39n15 Masset, Edoardo 36 Mathieu, Félix 5, 83, 220, 221 Maynard, Jean-​Pierre 88 Meadows, Donella H. 38 Medibank (Australia) 141 Medical Benefits Scheme (Australia) 142 Medicare (Australia) 139, 140, 141, 146 Medicare (Canada) 139, 140

Tracy B. Fenwick and Andrew C. Banfield - 978-90-04-44675-5

236 Index Medicare Locals/​Primary Health Networks (ml s/​p hn s, Australia) 145–​146, 148 cooperation with Local Hospital Networks 146, 148–​152 barriers 149 local influence 149–​150, 150tab., 151fig. profile/​standing 150 quality of relationship 150–​152, 152tab. Meech Lake Accord (Canada, 1987-​ 1990) 75–​76, 77, 81, 84, 92n7 Mehra, Ajay K. 159 Meuleman, Bart 191 Mexico  authoritarianism 163 constitutional and legal framework 162, 163 public security 159, 165 centralization/​ decentralization 163, 165 intergovernmental relations 167, 168 principal security challenges 161 Mhlanga, Brilliant 208, 212 Milbank, John 32, 34, 39 Minister of Public Security Council (Mexico) 168 Minogue, Kenneth 39 minorities 167, 170 empowerment 3, 40, 213 protection 72, 73, 83, 85 minority governments 20, 21 Mitchell, Daniel J. 36 Miti, George P. 207, 208, 210–​211, 211, 212 ml s/​p hn s see Medicare Locals/​Primary Health Networks Mnangagwa, Emmerson 207 Moenius, Johannes 96 Moll, Henrike 29 Monderman, Hans 35, 41 Montero, Jose 96 Moore, Alfred 39, 40 moral rules, conventional/​prudential vs. 34–​35, 35n12 moral sense/​values 28, 29, 30–​31, 32, 32–​33n8 Morçöl, Göktuğ 34, 34n11, 35, 40 Movement for Democratic Change (Zimbabwe) 212

Moyo, Philani 208, 211 Muchadenyika, Davison 207, 208 Mueller, Sean 22 Mugabe, Robert 207 Mulroney, Brian 75, 84 multinational federalism 13, 69, 83, 85 see also Canada multi-​party democracy 208, 213 Municipal Public Security Conference (Mexico) 168 Muro, Cristina 34 Musgrave, Peggy 175 Musgrave, Richard A. 175 Myanmar 7 National Council of Provinces (ncop, South Africa) 201, 202 National Healthcare Agreement (nha, Australia) 144 National Health Funding Body (Australia) 145 National Health and Hospital Network Agreement (nhha, Australia) 145 National Health and Hospitals Reform Commission (nhhrc, Australia) 144 National Health Reform Agreement (nhra, Australia) 145, 146, 152, 153 decentralization of state hospital system governance under 146–​152 nationalism (Canada) 74, 77 nationality zones (Ethiopia) 193, 194 nationalization (Canada) 96 National Prosecuting Authority (South Africa) 167 National Public Security Council (Mexico) 168 National Security Agency (nsa) 164 Navarre (Spain) 163 ncop (National Council of Provinces, South Africa) 201, 202 Ncube, Cornelias 208, 211 Ndebele (ethnic group, Zimbabwe) 206, 208 ndp (New Democratic Party, Canada) 81, 97, 97tab., 98, 99fig., 103 Negussie, Solomon 195 neo-​institutionalism 114 neoliberalism 8, 36 Nepal 7 Netherlands 162

Tracy B. Fenwick and Andrew C. Banfield - 978-90-04-44675-5

Index New Brunswick (Canada) 107 New Democratic Party (ndp, Canada) 81, 97, 97tab., 98, 99fig., 103 Newfoundland and Labrador (Canada) 100n14, 107 New South Wales (Australia) x, 146, 147n2, 148 decentralization and intergovernmental cooperation in health care 150tab., 152tab. nga (National Healthcare Agreement, Australia) 144 ngo s 222 nhha (National Health and Hospital Network Agreement, Australia) 145 nhhrc (National Health and Hospitals Reform Commission, Australia) 144, 145 nhra see National Health Reform Agreement Nicholson, Caroline 149 Non-​Governmental Organizations (ngo s) 222 non-​parliamentary federations 19 norms and values 37, 38, 40 see also moral sense/​values North-​East India 162 Northern Territory (nt, Australia) 148 Nova Scotia (Canada) 99, 107 nsa (National Security Agency) 164 nt (Northern Territory, Australia) 148 Núñez Miñana, Horacio 172 Oates, Wallace E. 30, 37 officials see public servants/​officials Ojomo, Efosa 36 Oliver, Peter 64 Olson, Mancur 138 Ontario  federal Liberal support in 91, 100–​101, 101fig., 102, 105, 106fig. legislature 107 open federalism (Canada) 80, 84 operating rules, constitutional vs. 35n12 Orbie, Jan 115 order  complex order/​science of complexity 33, 34, 35, 36, 37, 38, 41 nature of 29

237 spontaneous order 33–​35, 36 see also top-​down control/​uniformity/​ order Ordeshook, Peter C. 4, 11 O’Reilly, Patricia L. 113 organized crime 8, 159, 161, 163, 165 see also public security Oromia (Ethiopia) 192n1, 193, 195, 196–​197, 197–​198n6, 198 Ostrom, Elinor 34, 35n12, 39, 40, 42, 115 Ottawa 69, 74, 77, 77–​78, 82, 102 see also Quebec-​Canada relations Pabst, Adrian 32, 34, 39 Page, Scott E. 37 Painter, Martin 18, 138 Palermo, Francesco 53, 54, 55, 56 Palley, Howard A. 140 Pally, Marcia 34, 39 Paris, Roland 36 Parizeau, Jacques 77, 83 Parkes, Sir Henry viii–​ix, xi parliamentary democracy 19–​20, 21 Parti Québécois (pq) 74, 77, 83, 103 partisans  discursive styles of 123–​124 partisan competition/​dynamics (Canada) 90, 95, 98 party leaders (Canada) power/​authority/​ independence 90–​96, 99, 109 party politics, polarization 20, 21 Patapan, Haig 21, 113 Patel, Dev 36 Patriation of Constitution (Canada, 1982) 73, 75, 78, 81, 84, 89, 89n4, 101, 103, 105, 108 pcp (Progressive Conservatives Party, Canada) 75, 80, 97 Peace of Westphalia (1648) 54 peripheral units see constituent units Peterson, Paul E. 138 Petrich, Mark 143 Pharmaceutical Benefits Scheme (Australia) 143 Phillimore, John 113, 115, 116, 143, 146n1, 221 phn s see Medicare Locals/​Primary Health Networks Pineault, Raynald 140 Pinker, Steven 28, 29, 30

Tracy B. Fenwick and Andrew C. Banfield - 978-90-04-44675-5

238 Index Pitkin, Hannah 16 Plato 28 Plomin, Robert 29 Podger, Andrew 143 Poirier, Johanne 18, 160 polarization of party politics 20, 21 police services/​forces 159–​160 South Africa 165, 167 policing, high vs. low policing for public security 159 Policy on Québec’s Affirmation and Canadian Relations (Quebec government, 2017) 69, 81–​82, 83 political science, anthropology models in 27–​29 Politica Methodice Digesta (Johnannes Althusius) 54–​55 populism 4 Porto, Alberto 172, 184n18 Portugal 162 Posner, Paul L. 113 Posse Comitatus Act (US, 1878) 164 poverty/​poverty reduction 36 Ethiopia 192, 193 Powell, Derek 199, 200, 204, 205 power  acquisition of/​competition for 6, 28, 29, 33, 39, 220 of norms 38 power distribution/​division 6–​7, 8, 11, 13, 14, 15, 16, 17, 47 Australia ix–​x Canada 90–​96, 220 Italy 58–​59, 61, 62–​63, 64 legislative power 5, 20, 48, 50, 50–​51, 174, 219 public security matters 159–​161, 162, 169, 221 United States 20 Zimbabwe 210–​211, 212 pq (Parti Québécois) 74, 77, 83, 103 prairie provinces (Canada)  Alberta 97, 98, 104, 107 federal Liberal support in 99, 102, 104, 104fig., 105, 106fig. Pratchett, Lawrence 115 Primary Health Networks (Australia) see Medicare Locals/​Primary Health Networks

Prince Edward Island (Canada) 107 Prisons Conference (Mexico) 168 Progressive Conservatives Party (pcp, Canada) 75, 80, 97 Progressive Party of Canada 101, 104 provincial tax autonomy (Argentina) 172, 173, 179, 182, 183, 184, 185–​186 prudential/​conventional rules, moral vs. 34–​35, 35n12 Pruysers, Scott 92, 93, 96 public hospitals  decentralization of state hospital system governance (Australia) 146–​152 funding 140, 144–​145, 152 public security 8, 221 Brazil 159, 161, 163, 165, 167–​168 Canada 158, 159, 160–​161, 161, 164, 166, 168 centralization/​decentralization 161, 162–​ 164, 165, 166, 167, 169–​170 constitutional and legal frameworks 162–​164, 169 federations vs. unitary states 58, 159–​161, 169 Germany 158, 159, 161, 163, 164, 166, 168 high vs. low policing 159 India 159, 161, 162, 164–​165, 167 intergovernmental relations 164, 167–​ 168, 170, 221 Mexico 159, 161, 165, 167, 168 power distribution/​division 159–​161, 162, 169, 221 preventive vs. repressive provision of 159 principal challenges 161 prioritization 160 protection against violence vs. security through education/​social development 161, 165 security agencies/​institutions 160–​161 shared rule vs. self-​rule 160, 161, 166 South Africa 159, 161, 162–​163, 164–​165, 165, 167, 168 Spain 159, 161, 163, 165, 167, 168 Switzerland 159, 161, 163–​164, 164, 167, 168 symetric/​asymetric approaches 164–​165, 166–​167, 169–​170 United States 159, 160–​161, 161, 164, 166, 168, 168–​169 public servants/​officials  discursive styles of 122–​123, 129

Tracy B. Fenwick and Andrew C. Banfield - 978-90-04-44675-5

Index agreement makers 125–​126 knowledge workers 127–​128 networkers 124–​125 partisans 123–​124 policy drivers 126–​127 processors 126 role in intergovernmental management 116–​128, 221, 222 trust in 121–​122 public services 14, 18 Punjab 162 Putnam, Robert D. 21 quasi-​federalism 6, 47, 64, 73, 88, 218, 220 see also Canada; Quebec-​Canada relations Quebec 74, 97, 98, 98n13, 105 federal Liberal support in 91, 100, 101, 102, 103–​104, 103fig., 105, 106, 106fig., 107fig. health-​care federalism 140 legislature 106–​107 Quebec-​Canada relations 5, 70, 77, 107, 220 centralization/​decentralization 69 evolution of negotiations on autonomy and self-​determination 73–​82 Act Respecting the Exercise of the Fundamental Rights and Prerogatives of the Quebec People and the Quebec State (2000) 80 Charlottetown Accord (1992) 75, 76–​77, 81 Clarity Act (2000) 77, 79–​80, 84 Meech Lake Accord (1987-​1990) 75–​76, 77, 81, 84, 92n7 Patriation of Constitution (1982) 73, 75, 78, 81, 84, 89, 89n4, 101, 103, 105, 108 Policy on Québec’s Affirmation and Canadian Relations (2017) 69, 81–​82, 83 Reference re. Secession of Quebec (1998)/​right to secede 72–​73, 78–​79, 80, 82, 83, 84, 85, 105 Sovereignty-​Association Referendum (1980) 73, 74–​75, 82, 83, 84 Sovereignty-​Partnership Referendum (1995) 77, 78, 82, 83 (lack of) federal spirit/​containment politics 69, 73, 74–​75, 78, 79, 82–​85 open federalism 80, 84 veto rights 75, 76, 78 Quebec National Assembly 74, 80, 84

239 Queensland (Australia) 146, 148 decentralization and intergovernmental cooperation in health care 150tab., 152tab. Quiet Revolution (Quebec) 105 Rabesona, Josette 177tab. ‘race-​to-​the-​bottom’ hypothesis 6, 29–​33 racism 37–​38, 161 Radelet, Steven 36 Rajkumar, Andrew S. 197 Ramamurthy, Vijaya L. 143, 146n1, 149, 221 Reagan, Ronald 8 Reference re. Secession of Quebec (1998) 72–​73, 78–​79, 80, 83, 84, 85 referendums  Canada 73, 74–​75, 76, 77, 78, 82, 83, 84, 105 Italy 50, 60 Switzerland 21 reform see federal reform/​change Reformed Protestantism 17 Reform of the Federation White Paper (Australia) vii, viii, x–​xiii, xiv, 112 regionalism 49, 51, 57, 220 regional states/​systems 6, 49 autonomy and sovereignty 47 classic federations vs. 47, 48–​52, 63–​64 origins 51 role of judiciary/​legislative power 50–​51 unitary vs. 49, 51 see also Italy; Spain regulated autonomy (Argentina) 183–​184, 186 Renan, Ernest 70 responsive representation, descriptive vs. 16 revenue collection/​sharing  Argentina 178, 179, 181 Ethiopia 195–​196, 197 Zimbabwe 210 see also taxation revenues 174 see also taxes Rhodesia see Zimbabwe Ridley, Matt 29, 30, 39, 39n17, 40 Riedl, Jasmin 158 Riker, William 3, 6, 90, 94, 109, 217, 218, 219–​220, 221, 222 Federalism: Origin, Operation, Significance (1964) 4, 7, 11, 27, 29, 30, 33, 36, 37, 217

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240 Index Robertson, Gordon 69 Robinson, James A. 36 Robinson, Suzanne 143, 149, 152 Romanticism 32, 39n16 Rousseau, Jean-​Jacques 28, 30, 32, 39n15 Rowell-​Sirous Commission (Royal Commission on Dominion-​Provincial Relations, Canada) 89n3 Royal Commission on Bilingualism and Biculturalism (B & B Commission, Canada) 73 Royal Commission on Dominion-​Provincial Relations (Rowell-​Sirois Commission, Canada) 89n3 Roy, Sutirtha 36 Rudd, Kevin viii, 144, 152 Ruggiu, Ilenia 49 Sachs, Jonathan 32, 39 St. Laurent, Louis Stephen 101, 102 Sammut, Jeremy 149 Sandefur, Justin 36 Sardinia 60–​61 Saskatchewan (Canada) 107, 140 Saskatchewan Party (Canada) 97 Saunders, Carla 149 Saunders, Cheryl 18, 160 Savoie, Donald D. 93 Sayers, Anthony M. 8, 91, 92, 93, 95, 98, 220 Schakel, Arjan 95 Scharpf, Fritz W. 15, 18, 21 Schelling, Thomas C. 31, 34 Schmidt, Vivian A. 114, 115, 122 Schneiberg, Marc 30, 37 scholars/​scholarship 4 Anglo-​American tradition 52, 55 early federalism scholars 223 see also Dahl, Robert; Livingston, William S.; Riker, William; Wheare, Kenneth C. future research 222 old vs. new concepts/​models of federalism 4–​5, 6–​7, 17, 27, 28, 29, 30, 33, 36–​37, 38, 39–​40, 41, 217 Schön, Donald A. 130 Schütze, Robert 56 science of complexity see complex order/​ science of complexity

Scott, Frank R. 89 Scottish philosophers/​philosophy 30–​31 Scotton, Richard B. 143 secession 6 Ethiopia 193 Zimbabwe 212 see also Quebec-​Canada relations security see public security self-​determination see autonomy; Quebec-​ Canada relations self-​interest 31n5, 37, 39 self-​rule/​self-​government 3, 7, 40–​41, 48, 218 public security 160, 161, 166 see also autonomy self-​sustaining federations 4 Senate/​senates 48, 50, 174 Shah, Anwar 173 Shakespeare, William vii shared public spaces/​’shared space’ intersections 35, 35n13, 41 shared rule 3, 13, 48, 218 public security 160, 161, 166 Sharma, Chanchal H. 191 Sharman, Campbell 19 Sheingate, Adam 117 Sheptycki, James 160 Shleifer, Andrei 36 Shona (ethnic group, Zimbabwe) 206, 208 Short, Stephanie D. 149 Shvetsova, Olga 4, 11 Sicily 61 Siegfried, André 92 Simeon, Richard 88, 89, 93 single-​member plurality (smp) elections (Canada) 93, 96 Les Six Livres de la République (Jean Bodin) 53 Smiley, Donald V. 88 Smith, Adam 31, 31n5, 34, 41 Smith, Rodney 113 Smith, Troy E. 6–​7, 30, 37, 219–​220 smp (single-​member plurality) elections (Canada) 93, 96 snnp (Southern Nations, Nationalities, and Peoples’ Region, Ethiopia) 193 social democracy 162 social development, public security and 161, 165

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Index social science, standard model of 28, 30, 31, 33, 35, 36–​37, 38–​39 Somali (Ethiopia) 192n1, 193 Sonnicksen, Jared 19 South Africa 198–​199 apartheid regime 162, 199 centralization/​decentralization 165, 199–​200, 204–​206 combined federalism/​unitarianism 192 constitutional and legal framework 162, 199, 200–​204, 205, 206, 213–​214 democracy in 199, 204, 206 elections/​electoral system 201, 206 ethnic communities/​provinces 199 grant funding 203, 204 income disparity 206 integration 205–​206 local autonomy 7 at constitutional/​statutory level 200–​203 factors undermining 204 impact on decentralization objectives 204–​206 in practice 203–​204 local government structures,  district municipalities/​ councils 200, 201 integrative and peace-​building potential 199–​200, 205–​206 legislative/​executive authority of municipalities 201, 203 local municipalities/​councils 200 metropolitan municipalities/​ councils 200, 201 public service delivery by municipalities 201–​202, 205 transition of 199–​200, 205 urban vs. rural municipalities 204 provincial autonomy 203, 205 public security 159, 164–​165 centralization 162–​163, 165 intergovernmental relations 167, 168 principal security challenges 161 revenue collection 202–​203, 204 South African Police Service 165, 167 South America 7, 218 see also Argentina; Brazil; Mexico South Australia xi

241 Southern Nations, Nationalities, and Peoples’ Region (snnp, Ethiopia) 192n1, 193 South Sudan 191 sovereign authority see self-​rule/​ self-​government sovereignty  Anglo-​American vs. Continental European/​Roman Law tradition 55 autonomy vs. 6, 53, 56–​57, 58, 220 of constituent units in federal vs. regional systems 47, 50, 51–​52, 61, 63, 64 definition/​term 52–​53, 54 divided 47, 54, 55–​57 external 54 federalism vs. 56 internal 54 international 54 origins 53–​55 to create unified society 28 Sovereignty-​Association Referendum (Canada, 1980) 73, 74–​75, 82, 83, 84 Sovereignty-​Partnership Referendum (Canada, 1995) 77, 78, 82, 83 Soviet Union 49 Spain 6, 51, 56, 172n2 authoritarianism 163 constitution 49 decentralization 163 public security 159, 165 intergovernmental relations 167, 168 principal security challenges 161 Spanish Civil War (1936-​1939) 49 Spector, Lee 34 spending power, federal 173, 174–​175, 185 spontaneous order 33–​35, 36 Sproule-​Jones, Mark 93 Sri Lanka 7 state hospitals see public hospitals State Region Conference (Italy) 50 Stepan, Alfred 4, 7, 12 Stewart, David K. 95, 98 Steytler, Nico 199, 200, 202, 204 Strauss, Leo 37 Structural Adjustment Programmes (Africa) 191 Studdert, David M. 149 Suarez-​Cao, Julieta 95 Subramanian, Arvind 36

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242 Index Sudan 191 Supreme Court of Canada 5, 51, 88n1 Reference re. Secession of Quebec (1998) 72–​73, 78–​79, 80, 83, 84, 85 supreme courts 5, 48, 51, 174 Swenden, Wilfried 95 Switzerland 12, 21, 49, 167 constitution 56 divided sovereignty 56 intergovernmental cooperation 164 public security 159, 164, 167 centralization/​decentralization  163–​164, 166, 167 intergovernmental relations 164, 168 principal security challenges 161 referendums 21 Tasmania 146, 148 Tassé, Roger 69 tax assignment 173, 175tab. taxation  competition for taxes in federal states 29 decentralized 14 see also fiscal federalism; revenue collection/​sharing tax autonomy 48, 185, 221–​222 Argentina 7, 172, 173, 179, 182, 183, 184, 185–​186 Italy 50 levels of 176–​178, 177tab. taxes  corporate tax 175, 175tab. excise tax 175tab., 176, 180tab. income tax 175, 175tab. Argentina 178, 179, 180–​181, 180tab., 182–​183, 182–​183n14, 182tab. Australia ix, xiii, 141 local tax 175tab. national tax 175tab. property tax 175, 175tab. Argentina 180, 180tab. regional tax 175tab. sales tax 175, 175tab. Argentina 180–​181 stamp tax (Argentina) 178, 179, 180tab., 181, 183n14 Value Added Tax (Argentina) 178n9, 179 tax harmonization 176, 176n7, 176n8, 185

Tax Reform White Paper (Australia) ix technological developments 191, 221 teleology (concept, Aristotle) 33n10 Telford, Hamish 88 Tenterfield address (Sir Henry Parkes) viii–​ix, xi terrorism 8, 158, 221 see also public security Tetlock, Philip E. 35, 36 Thelen, Kathleen 114 third-​generation federations 222 see also Africa; South America Thirty Years’ War (1618-​1648) 54 Thompson, Frank J. 22 Thompson, Jeremy 146 Thorlakson, Lori 6, 14, 16, 95 Tiebout, Charles M. 13, 175 Tigray (Ethiopia) 192n1, 193, 196, 197 Tigray People’s Liberation Front (tplf, Ethiopia) 197 Timmins, Nicholas 149 Tocqueville, Alexis de 40, 41 Tomasello, Michael 29 Tonga (minority ethnic group, Zimbabwe) 208 top-​down control/​uniformity/​order 7, 28, 29, 39, 41 federalism vs. 30, 33 spontaneous and complex order vs. 34, 35, 36 see also ’race-​to-​the-​bottom’ hypothesis tplf (Tigray People’s Liberation Front, Ethiopia) 197 ‘tragedy-​of-​the-​commons’ events 39 Transitory Law for the Distribution of National Resources (Argentina, 1988) 3, 178, 179 Trans-​Mountain Pipeline (Canada) 98 Treisman, Daniel 11 tribalism 29, 32, 40 Troper, Michel 53, 54 Trudeau, Justin 81, 82 Trudeau, Pierre E. 73, 74, 78, 84, 102, 103, 104, 105 trust 40–​41, 121–​122 Tsige, Tamiru 198 Tudge, Alan xii Turnbull, Malcolm xii–​xiii Tuschman, Avi 29, 30

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243

Index unicameralism (Canada) 90 Unikowski, Isi 8, 221, 222 unitary states/​systems 47, 174n4 federal vs. 29–​30, 48, 49, 51–​52, 56 regional vs. 49, 51 security 158 see also Zimbabwe United Conservative Party (Canada) 97 United States 12, 17, 27n1, 37–​38, 51, 61, 166, 181, 217, 218, 219 constitution (1787) 40, 47, 49, 55–​56, 64 Declaration of Independence 31, 40 divided sovereignty 47, 54, 55–​57 fiscal federalism 172n1 intergovernmental management 113 nationalization 96 power distribution 20, 21 public security 159 centralization/​ decentralization of 164 intergovernmental relations 168, 168–​169 principal security challenges 161 role of state institutions  160–​161 role of judiciary 20 spontaneous order 34 waivers 22 universal public health care (Australia) 139, 141 upper chambers 48, 50 US Commission on Intergovernmental Relations 114 Vaillancourt, François 176 Vampa, Davide 96 Vanderbilt, Tom 35 Varhol, Richard 149 Vatter, Adrian 19, 21 Veneto 60 Vermeule, Adrian 34 Veronesi, Gianluca 149 vetoes/​veto rights  Australia 21 Canada 75, 76, 78, 92, 93 Ethiopia 196, 197 Vetterli, R. 41 Victoria (Australia) x, xii, 140, 146, 148

decentralization and intergovernmental cooperation in health care 150tab., 152tab. Vipond, Robert C. 88 Visser, Jaap de 199, 200, 201, 203, 204, 205, 214, 221 Wæver, Ole 160 waivers 22 Walter, Simon J. 149 Wanna, John 144 war on poverty (United States) 36 Watts, Ronald L. 11, 52, 88, 89, 158, 217–​218, 222, 223 Weimar Republic 49 Weingast, Barry R. 5 welfare states 138 Western Australia 145, 146, 147n2 decentralization and intergovernmental cooperation in health care 150tab., 152tab. Western Cape 204 Westminster-​style parliaments (Canada) 90, 92, 93, 120 Westphalia, Peace of (1648) 54 Wetherall, Jay xi Wheare, Kenneth C. 6, 48, 73, 88, 174, 175, 185, 186, 217, 218, 219, 222 Wheatley, Margaret J. 38 White Paper on Reform of Federation process (Australia) vii, viii, x–​xiii, xiv, 112 Whitlam, Gough 141 Wilde, Jaap de 160 Williams, Danny 100n14 Wilson, James Q. 29, 30 Wincott, Daniel 130 Wong, Kenneth K. 22 woredas (districts, Ethiopia) 193–​194, 194, 195, 196, 197, 198 World Bank 36, 191 Wright, Deil S. 114 Yeatman, Anna 113 Yudkin, Daniel 32 Yugoslavia, Federal Republic of 219 Zambia 192 zanu-​p f (Zimbabwe African National Union-​ Patriotic Front) 206, 207, 208, 211, 214

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244 Index Zimbabwe 7, 206–​207 centralization/​decentralization 207–​208, 211–​213 constitution 207, 209–​210, 211–​212, 213 electoral system/​elections 207, 209, 213 government of national unity (gnu) 207 legislative reform 211 local autonomy 208 at constitutional level 209–​210 impact on realizing decentralization objectives 211–​213 in practice 210–​211

local government structure 207, 208, 209 rural vs. urban local authorities 208, 209, 210 multi-​party democracy 212 power distribution 210–​211, 212 public services 207–​208, 211–​212 revenue collection 210 role of judiciary 211 secession 212 unitarianism 192, 208, 209 Zimbabwe African National Union-​Patriotic Front (zanu-​p f) 206, 207, 208, 211, 214

Tracy B. Fenwick and Andrew C. Banfield - 978-90-04-44675-5