Francesco Palermo and Karl Kössler
Comparative Federalism: Constitutional Arrangements and Case Law
Professor Francesco Palermo and Dr Karl Kössler tell us about their book Comparative Federalism: Constitutional Arrangements and Case Law.
Tell us a little bit about the book
The main aim of the book is to fill a lacuna specifically in the area of federal studies but also more generally in comparative constitutional law. Most works on comparative federalism are political science oriented, and often neglect the case law of courts, which is tremendously important for shaping federal systems in practice. Legal analyses, on the other hand, are rarely comparative, and even when they are, they do not usually look at policies and how these are managed in multi-layered systems.
The book has the ambition to look at federalism from a comparative constitutional law perspective while also placing a strong emphasis on how federal systems work in practice. This is reflected in its focus on two elements that are normally missing in the literature: the analysis of policies and case law. First, it explores from a comparative point of view how government levels exercise their powers and interact in several highly topical policy areas like social welfare, environmental protection or migrant integration. Second, the book incorporates case law discussions in highlighted sections, focusing on seminal judgments from federal systems worldwide and thus demonstrating the practical impact of constitutional jurisprudence on policymakers and citizens alike.
What inspired you to take up this project?
When we established, in 2004, the Institute for Comparative Federalism at Eurac Research, in Bolzano/Bozen (Italy), we immediately realized that our approach to federal studies was to some extent not orthodox. From the beginning we took a broad view with regard to definition, and considered it essential to look at federalism as an instrument to solve different constitutional problems. We noticed that such an approach was missing in the field of comparative federalism, that was dominated by approaches that followed from the quite different perspectives of political theory and comparative politics. This is the gap that we wanted to fill with our book.
Whose work was influential on you throughout the course of the project?
Even if we aimed to contribute to comparative federal studies something new and decidedly different from the prevailing literature with its focus on political theory and/or comparative politics, some of this literature of course had significant impact on our thinking. Thus, the classical publications by Ronald Watts, Michael Burgess, as well as Thomas Hueglin and Alan Fenna certainly provided important impulses. In view of our approach mentioned before, several constitutional lawyers in the field of federal studies, like Cheryl Saunders and Nico Steytler, have naturally been even more influential, both through writing and discussion at many conferences. Importantly, it was our ambition, given our European, multilingual background, to not focus exclusively on English-language literature. That is why the book also references other important publications, for example, in German, Spanish and Italian. Finally, we should certainly acknowledge that we were not only influenced by the work of academics. At our institute, we are involved in a lot of capacity-building and consultancy projects regarding federal reform projects, most of them aimed at conflict resolution in Europe and, increasingly, in Asian and African countries. The constant exchange with policy-makers in these projects probably also explains our afore-mentioned focus on how federal system work in practice.
What challenges did you face in writing the book?
The main challenge was the lack of a deadline, as the book was not related to a specific project in terms of funding or due dates. This is actually how at least part of research should be, but in fact we are all driven by externally imposed deadlines, by third-party funds, by priorities that are not necessarily ours. That’s the way academic life is. But the beauty of research is also some degree of self-determination in what you decide to deal with. In turn, it took longer than we expected to write the book because other deadlines came in and trumped the original plan. Only when we signed the contract with the publisher the right push came. On the other hand, the longer process was also positive, as in the meantime we grew into the subject. Had the book been published five years earlier, it would have been different and perhaps less rich.
What do you hope to see as the book’s contribution to academic discourse and to constitutional or public law more broadly?
The book intends to cast light on the importance of federalism in comparative constitutional law. Theoretical analyses on federalism are predominantly carried out by political scientists. Legal studies focus mostly on individual cases and are often lacking a comparative perspective. Our main aim with this book is to highlight the key importance of federal studies in comparative constitutional law, both from the theoretical and from the practical point of view.
As we indicate in our book, federal studies have enormous potential in the years to come, provided that federal scholars look at the right things. The contemporary world is getting increasingly complex, and federalism is an institutional matrix for dealing with complexity. It is essentially a tool for managing pluralism. Of course, the study of federalism needs to be updated. At present, the traditional areas of federal studies are relatively well explored: think for instance of federal second chambers or of the participation of subnational units in the constitutional amendment process. What is more worthy exploration now, and what can be much better analysed through the lenses of federalism, are the challenges arising from contemporary complexity. For example, federalism helps with looking properly at societal rather than just institutional participation: deliberative and participatory democracy tend to reproduce several dynamics already developed long ago with regard to institutional participation. Other crucial but underexplored areas are policies: the division of power is much less a theoretical than a practical question, as most power is shared rather than neatly separated. Scholars in federalism have a comparative advantage in looking at how intergovernmental cooperation works as federalism is primarily about the interplay of different tiers of government.
When it comes to follow-up research, there are, in particular, four main areas that we are exploring, based on the methodology developed in this book. The first is participation. If federalism is the constitutional tool par excellence to accommodate claims for institutional pluralism, its methodology is extremely helpful for managing contemporary claims for more societal participation, emerging in all pluralistic societies. The second area is the study of policies and in particular of how complex areas are dealt with in different legal systems. Examples can range from financial relations to environmental protection, from education to immigration and migrant integration. These are all areas which require cooperation rather than separation and demand sophisticated tools to deal with diversity. The third area is local government, which is usually neglected in classical federal studies focused on the national-subnational dualism: but in order to understand how powers are vertically shared it is essential to explore the role of municipalities, especially of large cities. The fourth issue that can be better dealt with using the approach developed in the book is the accommodation of ethno-national diversity. The main driver for federal reforms over at least the last three decades has been ethno-national claims. However, the accommodation of such demands by means of territorial autonomy is too often “reluctantly granted and ungratefully received”, as Yoram Dinstein put it. The question is thus how to better employ the federal machinery to combine unity and diversity, especially but not exclusively in societies faced with ethno-national claims.