Dynamic Federalism; A New Theory for Cohesion and Regional Autonomy

305 Pages·2021·3.921 MB·English

by  Patricia Popelier

Dynamic Federalism
This book offers a new theory of federalism.
The work critically discusses traditional federal theories and builds on the-
ories that focus on the dynamics of federalism. It offers a definition of feder-
alism and federal organizations that encompasses both new and old types of
multi-tiered system. Unlike traditional federal theory, it is well-suited to research
both multinational and mononational systems. It also takes into account the
complexity of these systems, with bodies of governance at the local, regional,
national, and supranational level.
The book is divided into three parts: the first part outlines the contours of
dynamic federalism, based on a critical overview of traditional federal theory;
the second part develops comprehensive indexes to measure the autonomy and
cohesion of multi-tiered systems; and the third part concentrates on the dynam-
ics of federal organizations, with a special focus on institutional hubs for change.
Dynamic Federalism will be an essential resource for legal, social, economic,
and political scholars interested in federalism, regionalism, and de/centralization.
Patricia Popelier is full professor at the law faculty of the University of Antwerp,
director of the research group of government and law, and copromoter of the
interdisciplinary Centre of Excellence GOVTRUST. She is also senior research
fellow at the University of Kent, Centre for Federal Studies. She is the vice pres-
ident of the International Association of Legislation (IAL) and president of the
Flemish Interuniversity Center of Legislation (ICW), convenor of the standing
research group on subnational constitutions in federal and quasi-federal systems
of the International Association of Constitutional Law, and member of the scien-
tific committee of EURAC – Institute for Comparative Federalism (Bolzano); of
the scientific committee of the Sofia Legal Science Network (SLSN); and of the
scientific committee of the Ossevatorio AIR (Rome).
Comparative Constitutional Change
Comparative Constitutional Change has developed into a distinct field of constitu-
tional law. It encompasses the study of constitutions through the way they change
and covers a wide scope of topics and methodologies. Books in this series include
work on developments in the functions of the constitution, the organization of
powers, and the protection of rights, as well as research that focuses on formal
amendment rules and the relation between constituent and constituted power. The
series includes comparative approaches along with books that focus on single juris-
dictions, and brings together research monographs and edited collections which
allow the expression of different schools of thought. While the focus is primarily
on law, where relevant the series may also include political science, historical, philo-
sophical, and empirical approaches that explore constitutional change.
Series Editors: Xenophon Contiades is Professor of Public Law,
Panteion University, Athens, Greece and Managing Director,
Centre for European Constitutional Law, Athens, Greece.
Thomas Fleiner is Emeritus Professor of Law at the University of Fribourg,
Switzerland. He teaches and researches in the areas of Federalism, Rule of
Law, Multicultural State; Comparative Administrative and Constitutional Law;
Political Theory and Philosophy; Swiss Constitutional and Administrative Law;
and Legislative Drafting. He has published widely in these and related areas.
Alkmene Fotiadou is Research Associate at the Centre for European
Constitutional Law, Athens.
Richard Albert is Professor of Law at the University of Texas at Austin.
Also in the series:
Icelandic Constitutional Reform
People, Processes, Politics
Edited by Ágúst Þór Árnason and Catherine Dupré
Dynamic Federalism
A new theory for cohesion and regional autonomy
Patricia Popelier
For more information about this series, please visit:
www.routledge.com/Comparative-Constitutional-Change/book-series/
COMPCONST
Dynamic Federalism
A New Theory for Cohesion and
Regional Autonomy
Patricia Popelier
First published 2021
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
52 Vanderbilt Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group,
an informa business
© 2021 Patricia Popelier
The right of Patricia Popelier to be identified as author of this work
has been asserted by her in accordance with sections 77 and 78 of the
Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or
reproduced or utilised in any form or by any electronic, mechanical,
or other means, now known or hereafter invented, including
photocopying and recording, or in any information storage or
retrieval system, without permission in writing from the publishers.
Trademark notice: Product or corporate names may be trademarks
or registered trademarks, and are used only for identification and
explanation without intent to infringe.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
Names: Popelier, P., author.
Title: Dynamic federalism: a new theory for cohesion and regional
autonomy/Patricia Popelier.
Description: Milton Park, Abingdon, Oxon; New York, NY: Routledge,
2021. | Series: Comparative constitutional change | Includes
bibliographical references and index.
Identifiers: LCCN 2020043719 (print) | LCCN 2020043720 (ebook) |
ISBN 9780367652821 (hardback) | ISBN 9781003128762 (ebook)
Subjects: LCSH: Federal government. | Decentralization in government—
Law and legislation. | Central-local government relations.
Classification: LCC K3185 .P67 2021 (print) | LCC K3185 (ebook) |
DDC 321.02—dc23
LC record available at https://lccn.loc.gov/2020043719
LC ebook record available at https://lccn.loc.gov/2020043720
ISBN: 978-0-367-65282-1 (hbk)
ISBN: 978-1-003-12876-2 (ebk)
Typeset in Galliard
by KnowledgeWorks Global Ltd.
Contents
List of illustrations ix
Preface xi
Acknowledgement xii
Introduction 1
PART I
Theoretical framework 7
1 What is federalism? In search of building blocks
for a new federal theory 9
1.1 The importance of defining federations 10
1.1.1 Why a pragmatic approach to the definition of
federal systems is insufficient 10
1.1.2 Why definitions matter 12
1.2 Defining federations: the problems of traditional
approaches 15
1.2.1 Hamilton, or a narrow approach to defining
federations 15
1.2.1.1 The Hamiltonian tradition 15
1.2.1.2 What is wrong with the Hamiltonian
approach? 20
1.2.2 Elazar, or a broad approach to defining
federalism 32
1.2.2.1 The Elazarian approach 32
1.2.2.2 What is wrong with the Elazarian
approach? 34
1.3 The value of federalism 38
1.4 Conclusion: building blocks for a renewed federal
theory 43
vi Contents
2 Dynamic federalism: ‘federalism as a process’ revisited 46
2.1 Friedrich on federalism as a process 46
2.2 Contours of a theory of dynamic federalism 50
2.2.1 Multi-tiered systems in search of a proper balance 50
2.2.1.1 A constitutionally defined concept 53
2.2.1.2 An essentially contested concept 55
2.2.2 A categorization of forms of state 57
2.2.3 The development of indicators 60
2.2.3.1 Aubert: an inventory of institutional
arrangements 61
2.2.3.2 Baldi, Requejo: unitary/federalism
and de/centralisation axes 62
2.2.3.3 Hooghe et al.: the Regional Authority
Index 65
2.2.3.4 Ivanyna & Shah: the World Bank’s Fiscal
Decentralization Index 66
2.2.3.5 Sahadžicʹ: measuring constitutional
asymmetry 68
2.2.3.6 Conclusion 69
2.3 The theory of dynamic federalism put to the test 70
2.3.1 The specificity test 70
2.3.2 The universality test 71
2.3.3 The flexibility test 71
2.4 Conclusion: setting the scene 72
PART II
Measuring cohesion and autonomy 75
3 Preliminary notes: representation, and the Belgian case study 77
3.1 Which interests are voiced? 78
3.2 The Belgian case 83
3.2.1 Context 83
3.2.2 Results 84
4 Status 87
4.1 Constitutional self-definition 87
4.2 The constitutional level 94
4.2.1 The central level: constitutional reform 98
4.2.2 The subnational level: constitutional autonomy 102
4.3 The legislative level 107
4.4 The executive level 113
Contents vii
4.5 The international and supranational levels 117
4.5.1 International treaties 117
4.5.1.1 Treaties concluded by the central
authorities 118
4.5.1.2 Treaties concluded by the subnational
authorities 121
4.5.2 Multilevel governance systems: The European Union 123
4.5.2.1 EU treaties 124
4.5.2.2 The Council of Ministers 127
4.6 Organization of courts 131
5 Powers 136
5.1 The scope of powers 136
5.2 Allocation techniques 142
5.2.1 Basic allocation techniques 142
5.2.1.1 Exclusive vs shared powers 143
5.2.1.2 Legislative vs administrative functions 146
5.2.2 Constraining allocation principles 151
5.3 Federalism dispute resolution 161
5.3.1 Political mechanisms 162
5.3.2 Judicial mechanisms 166
6 Fiscal arrangements 171
6.1 Fiscal equalization and other cohesive arrangements 174
6.2 Revenues and spending powers 179
6.2.1 Subnational taxes 182
6.2.2 Borrowing powers 184
6.2.3 Shared Tax Revenues 185
6.2.4 Spending powers: conditional grants 186
6.2.5 Spending powers: (E) fiscal discipline rules 188
PART III
Measuring change 191
7 Contours for a theory of change 193
7.1 Measuring federal dynamics 194
7.2 Processes of change 197
7.2.1 Sources 198
7.2.2 Catalysts 202
7.2.3 Strategies 203
7.2.4 Actors 205
viii Contents
7.3 Why institutions matter in processes of change 207
7.3.1 Institutional change as a result of informal change 207
7.3.2 Impact of institutional change on noninstitutional
developments 208
7.3.3 Institutional actors 210
7.4 Conclusion 211
8 Institutional hubs for change 214
8.1 Constitutional amendments 214
8.2 De-constitutionalization 219
8.2.1 Ordinary laws 220
8.2.2 Special majority laws 221
8.2.3 Intergovernmental agreements 222
8.3 Allocation techniques 224
8.4 Adjudicating federalism conflicts 226
8.4.1 Judicial adjudicators 227
8.4.1.1 Legal-structural factors 231
8.4.1.2 Attitudinal preferences 235
8.4.1.3 Strategic considerations 238
8.4.1.4 Conclusion 239
8.4.2 Nonjudicial adjudication of federalism conflicts 239
8.5 Global governance 241
8.5.1 International treaties 242
8.5.2 Conferral of powers 243
8.5.3 International courts 246
8.6 Conclusion 249
Conclusion: findings and way forward 252
Appendix: The Belgian showcase 257
Bibliography 269
Index 289
Illustrations
Figure
2.1 Forms of state 58
Box
3.1 Rules of thumb: central and subnational representation 81
Indexes
1.1 Cohesion index – self-definition 90
1.2 Autonomy index – self-definition 91
2.1 Cohesion index – constitutional reform 99
2.2 Autonomy index – constitutional reform 100
3.1 Cohesion index – subnational autonomy 102
3.2 Autonomy index – subnational autonomy 104
4.1 Cohesion index – the legislative level 109
4.2 Autonomy index – the legislative level 111
5.1 Cohesion index – the executive level 114
5.2 Autonomy index – the executive level 116
6.1 Cohesion index – international treaties concluded
by the central authorities 118
6.2 Autonomy index – international treaties concluded
by the central authorities 120
7.1 Cohesion index – subnational international agreements 121
7.2 Autonomy index – subnational international agreements 122
8.1 Cohesion index – EU treaties 125
8.2 Autonomy index – EU treaties 126
9.1 Cohesion index – council of ministers 128
9.2 Autonomy index – council of ministers 129
10.1 Cohesion index – organization of courts 132
10.2 Autonomy index – organization of courts 134