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TERRITORIAL ORGANISATION OF POWER
overview
rationales and classifications
federalism (confederation and federal states)
key aspects of German and US federalism
regionalism
comparative constitutional law - Dani 27
key aspects of Italian, Spanish and UK regionalism
the unitary state
decentralisation in France
rationales:
- for what purposes is political power distributed?
- democratic self-government and experimentation (laboratories of democracy, to get an ideal result out of different results)
- checks and balances (e.g. Frankfurt Document and the imposition of federalism to decentralise power)
- accommodation of cultural and ethnic diversities
- economic competitiveness
- increased political capacity (distribution of power between entities that maintain their own identity, e.g. federal States)
the problem of classifications:
questionable classifications based on the form and intensity of territorial distribution (questionable since they tend to generalise way too much where they shouldn't e.g. federal state is
more autonomous than a regional state, not always correct there is always something that doesn't fit the definition)
historical origins:
- a. federalism as aggregation of sovereign units (coming-together)
- b. regionalism as territorial re-articulation of political power for accommodating diversities and enhancing economic competitiveness (holding-together)
Austria and Belgium are some of the exceptions
federalism as "self rule plus shared rule" (Daniel J. Elazar) (a certain degree of constitutional autonomy and a certain degree of participation so joint exercise of certain powers)
federalism:
- sovereignty as the defining attribute of the modern state when it is:
- a. original (self-standing, not derived by any other entity)
- b. legally exclusive (see comprehensiveness, Unit 2) no other authority can govern it
- c. absolute (superiorem non recognoscens) no power above it
confederation as federalism under international law (an aggregation of confederated units which all remain sovereign,
sovereignty is retained by the states)federal state as federalism under constitutional law (federated units confersovereignty to the federation, sovereignty is conferred to the center)confederations:unions of independent states conferring the exercise of enumerated powers to ashared government, it is seen as desirable to exercise some functions jointlycomparative constitutional law - Dani 28distinctive elements: unanimity vote- ruled by international treaty each
- members retain their sovereignty: confederation entrusted member has
- with derived powers; right to withdraw (each independent state has the right to withdraw, just another part of in an
- sovereignty) explicit
- institutional architecture including a Council (institution way
- representing the governance of the confederated entities, consensus
- the main decision making body, does not operate permanently decision
- but only at certain moments - periodical - between those is taken
- periods of time continuity must be maintained) and
a if no oneCommission (a body of high officials - typically diplomates opposes it- who should maintain and secure policy continuity in theperiods of time when the Council isn't in session) (thelabels can vary)
d. fundamental decisions are adopted by the Council on thebasis of unanimity vote (because it maintains sovereigntyand the will of the members) (however there is problem withunanimity: a decision is taken unanimously, after a periodof time everyone has changed their mind except one, theonly thing that is protected is the status quo)
e. no direct effect of decisions (a decision is taken, itbinds all sovereign states but just as international law,so it needs to be implemented to have effect on theindividuals within the legal orders of the states)
f. financially dependent on transferred funds from the States(the Confederation cannot raise money to operate, itdepends entirely from resources transferred from differentstates)
Europe is an example of a type of confederation (many
aspectsare the same but there are some exceptions: e.g. with Van Gendin Loos Europe gave individuals the power to invoke Europeanlaw in cases)examples and the question of instability (not seen as a stable system, theyeither collapse or are upgraded into federal states e.g. Serbia and Montenegrohad a confederation which lasted 3 years and the US who quickly upgraded itselfinto a federal state) (but Switzerland has been a stable confederation from 1291to 1848 and the European Union too)federal state, the federal constitution:the federal federal big-bangconstitution as a sovereign states transferring sovereignty to aresult of a "federal federal government, the building of a federal statebig-bang" as a coming together, when the federal constitutionenters into forcecomparative constitutional law - Dani 29federal government: historically derived, legally original powers (from anhistorical perspective the power is derived, in the moment it looks like thepower is original)theSupremacy of the federal constitution (supreme law of the land, the law which trumps every other law):
-
Constitutional limits on states' constitutions (homogeneity clauses which provide a set of values which pervade a federation) (see articles 28 Grundgesetz and IV (4) US Constitution on the requirements on the respecting on certain aspects: Länder and States can do what they want within the limits of the law)
-
Supremacy clause (the law of the state trumps) (see art.31 GG and IV US constitution)
-
Federal control and enforcement of federal obligations (important to have instruments to coerce the state and secure the enforcement of federal obligations) (e.g. Little Rock Nine in Arkansas, the governor disregarded a federal obligation so Eisenhower sent the Army (101 airborne) to enforce the obligation) (this is something the Europe cannot do)
-
Federal intervention in case of internal or external emergency (sovereign power can be exercised in case of emergency)
Federal state:
self-rule The federal constitution exclusively lists enumerated powers when a specific power is entirely assigned to the federation or the federal state, unless authorities decide to delegate the power to the state (and, sometimes, retained powers of federated units). If in a constitution we find just a list of powers delegated to the federation, but the federated entities can legislate in the gaps left without authorization but cannot infringe federal law (e.g. art.72 GG), the residual powers go to the federated entities, otherwise, they go to the federation. Exclusive, concurring, or shared powers that aren't listed in the constitution and are assigned by default depending on the competences or powers (so states enjoy power only in specific circumstances) are secured by federal courts (to settle disputes between federal entities and central government).government - emphasis on self-government evident in dual federalism: strict separation of powers, competition between member units is fostered (historically related to liberal and democratic constitutions, in the US until the New Deal dual federalism was the prevailing constitutional arrangement)emphasis on shared rule evident in cooperative federalism: competence overlapand coordination through participation(the key functioning element of thissystem is not the division of power and competences but a political bodyenhancing the participation of units) (historically related to social stateconstitutions) federal policies are meant to
compensate for differences between the units, homogeneity is the broad goal here
e.g. Germany (Federalism)
federal nature of the Republic stated in articles 20 (1) and 79 (3) Grundgesetz
federalism as safeguard of a liberal and democratic legal order (the german empire of 1871 had federal structure and so did the Weimar Constitution, just the DDR and the nazi regime didn't have it)
self-rule guarantees
- constitutional autonomy of Länder within art. 28 GG (constituted power)
- distribution of legislative power (art. 70-74 GG, powers not of the federal (explicitly written) go the Länder)
- legislative practice: expansion of federal powers based on enabling clauses (judicial review is not very intrusive or stringent)
- residual powers only on local self-government, police and cultural and education matters (only to the Länder, the rest in one way or another go to the Federation, the fact is that the emphasis is on the participation so shared rule)
- executive federalism and
Bundestreue (trust in the federation, when they carry out federal policies) (art.83, 84 and 87 GG) (the federation creates policies but those are carried out at state level, not by federal entities but through administrative structure established by the Länder, only in comparative constitutional law - Dani 31 specific situations the implementation is at federal level, with federal agencies but the decision requires the consent of the Bundesland, representing the governance of the Länder, so a unilateral decision is not allowed) the structure looks like the Länder have way too little power and self-government, self government by the Länder takes place to a remarkable extent with the participation of the federation, but the Länder have their own constitution and legislative power, they have their own parliament and government, they have their own judiciary, they have their own administration, they have their own police, they have their own education system, they have their own cultural policy, they have their own media policy, they have their own economic policy, they have their own environmental policy, they have their own social policy, they have their own health policy, they have their own transport policy, they have their own agriculture policy, they have their own tourism policy, they have their own sports policy, they have their own youth policy, they have their own family policy, they have their own integration policy, they have their own migration policy, they have their own justice policy, they have their own police policy, they have their own disaster management policy, they have their own energy policy, they have their own housing policy, they have their own urban development policy, they have their own regional planning policy, they have their own nature conservation policy, they have their own water management policy, they have their own waste management policy, they have their own consumer protection policy, they have their own data protection policy, they have their own animal welfare policy, they have their own hunting policy, they have their own forestry policy, they have their own mining policy, they have their own building policy, they have their own fire protection policy, they have their own civil protection policy, they have their own disaster protection policy, they have their own public order policy, they have their own public safety policy, they have their own public health policy, they have their own public welfare policy, they have their own public transport policy, they have their own public education policy, they have their own public culture policy, they have their own public media policy, they have their own public economic policy, they have their own public environmental policy, they have their own public social policy, they have their own public health policy, they have their own public transport policy, they have their own public agriculture policy, they have their own public tourism policy, they have their own public sports policy, they have their own public youth policy, they have their own public family policy, they have their own public integration policy, they have their own public migration policy, they have their own public justice policy, they have their own public police policy, they have their own public disaster management policy, they have their own public energy policy, they have their own public housing policy, they have their own public urban development policy, they have their own public regional planning policy, they have their own public nature conservation policy, they have their own public water management policy, they have their own public waste management policy, they have their own public consumer protection policy, they have their own public data protection policy, they have their own public animal welfare policy, they have their own public hunting policy, they have their own public forestry policy, they have their own public mining policy, they have their own public building policy, they have their own public fire protection policy, they have their own public civil protection policy, they have their own public disaster protection policy, they have their own public order policy, they have their own public safety policy, they have their own public health policy, they have their own public welfare policy, they have their own public transport policy, they have their own public education policy, they have their own public culture policy, they have their own public media policy, they have their own public economic policy, they have their own public environmental policy, they have their own public social policy, they have their own public health policy, they have their own public transport policy, they have their own public agriculture policy, they have their own public tourism policy, they have their own public sports policy, they have their own public youth policy, they have their own public family policy, they have their own public integration policy, they have their own public migration policy, they have their own public justice policy, they have their own public police policy, they have their own public disaster management policy, they have their own public energy policy, they have their own public housing policy, they have their own public urban development policy, they have their own public regional planning policy, they have their own public nature conservation policy, they have their own public water management policy, they have their own public waste management policy, they have their own public consumer protection policy, they have their own public data protection policy, they have their own public animal welfare policy, they have their own public hunting policy, they have their own public forestry policy, they have their own public mining policy, they have their own public building policy, they have their own public fire protection policy, they have their own public civil protection policy, they have their own public disaster protection policy, they have their own public order policy, they have their own public safety policy, they have their own public health policy, they have their own public welfare policy, they have their own public transport policy, they have their own public education policy, they have their own public culture policy, they have their own public media policy, they have their own public economic policy, they have their own public environmental policy, they have their own public social policy, they have their own public health policy, they have their own public transport policy, they have their own public agriculture policy, they have their own public tourism policy, they have their own public sports policy, they have their own public youth policy, they have their own public family policy, they have their own public integration policy, they have their own public migration policy, they have their own public justice policy, they have their own public police policy, they have their own public disaster management policy, they have their own public energy policy, they have their own public housing policy, they have their own public urban development policy, they have their own public regional planning policy, they have their own public nature conservation policy, they have their own public water management policy, they have their own public waste management policy, they have their own public consumer protection policy, they have their own public data protection policy, they have their own public animal welfare policy, they have their own public hunting policy, they have their own public forestry policy, they have their own public mining policy, they have their own public building policy, they have their own public fire protection policy, they have their own public civil protection policy, they have their own public disaster protection policy, they have their own public order policy, they have their own public safety policy, they have their own public health policy, they have their own public welfare policy, they have their own public transport policy, they have their own public education policy, they have their own public culture policy, they have their own public media policy, they have their own public economic policy, they have their own public environmental policy, they have their own public social policy, they have their own public health policy, they have their own public transport policy, they have their own public agriculture policy, they have their own public tourism policy, they have their own public sports policy, they have their own public youth policy, they have their own public family policy, they have their own public integration policy, they have their own public migration policy, they have their own public justice policy, they have their own public police policy, they have their own public disaster management policy, they have their own public energy policy, they have their own public housing policy, they have their own public urban development policy, they have their own public regional planning policy, they have their own public nature conservation policy, they have their own public water management policy, they have their own public waste management policy, they have their own public consumer protection policy, they have their own public data protection policy, they have their own public animal welfare policy, they have their own public hunting policy, they have their own public forestry policy, they have their own public mining policy, they have their own public building policy, they have their own public fire protection policy, they have their own public civil protection policy, they have their own public disaster protection policy, they have their own public order policy, they have their own public safety policy, they have their own public health policy, they have their own public welfare policy, they have their own public transport policy, they have their own public education policy, they have their own public culture policy, they have their own public media policy, they have their own public economic policy, they have their own public environmental policy, they have their own public social policy, they have their own public health policy, they have their own public transport policy, they have their own public agriculture policy, they have their own public tourism policy, they have their own public sports policy, they have their own public youth policy, they have their own public family policy, they have their own public integration policy, they have their own public migration policy, they have their own public justice policy, they have their own public police policy, they have their own public disaster management policy, they have their own public energy policy, they have their own public housing policy, they have their own public urban development policy, they have their own public regional planning policy, they have their own public nature conservation policy, they have their own public water management policy, they have their own public waste management policy, they have their own public consumer protection policy, they have their own public data protection policy, they have their own public animal welfare policy, they have their own public hunting policy, they have their own public forestry policy, they have their own public mining policy, they have their own public building policy, they have their own public fire protection policy, they have their own public civil protection policy, they have their own public disaster protection policy, they have their own public order policy, they have their own public safety policy, they have their own public health policy, they have their own public welfare policy, they have their own public transport policy, they have their own public education policy, they have their own public culture policy, they have their own public media policy, they have their own public economic policy, they have their own public environmental policy, they have their own public social policy, they have their own public health policy, they have their own public transport policy, they have their own public agriculture policy, they have their own public tourism policy, they have their own public sports policy, they have their own public youth policy, they have their own public family policy, they have their own public integration policy, they have their own public migration policy, they have their own public justice policy, they have their own public police policy, they have their own public disaster management policy, they have their own public energy policy, they have their own public housing policy, they have their own public urban development policy, they have their own public regional planning policy, they have their own public nature conservation policy, they have their own public water management policy, they have their own public waste management policy, they have their own public consumer protection 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migration policy, they have their own public justice policy, they have their own public police policy, they have their own public disaster management policy, they have their own public energy policy, they have their own public housing policy, they have their own public urban development policy, they have their own public regional planning policy, they have their own public nature conservation policy, they have their own public water management policy, they have their own public waste management policy, they have their own public consumer protection policy, they have their own public data protection policy, they have their own public animal welfare policy, they have their own public hunting policy, they have their own public forestry policy, they have their own public mining policy, they have their own public building policy, they have their own public fire protection policy, they have their own public civil protection policy, they have their own public disaster protection policy, they have their own public order policy, they have their own public safety policy, they have their own public health policy, they have their own public welfare policy, they have their own public transport policy, they have their own public education policy, they have their own public culture policy, they have their own public media policy, they have their own public economic policy, they have their own public environmental policy, they have their own public social policy, they have their own public health policy, they have their own public transport policy, they have their own public agriculture policy, they have their own public tourism policy, they have their own public sports policy, they have their own public youth policy, they have their own public family policy, they have their own public integration policy, they have their own public migration policy, they have their own public justice policy, they have their own public police policy, they have their own public disaster management 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welfare policy, they have their own public transport policy, they have their own public education policy, they have their own public culture policy, they have their own public media policy, they have their own public economic policy, they have their own public environmental policy, they have their own public social policy, they have their own public health policy, they have their own public transport policy, they have their own public agriculture policy, they have their own public tourism policy, they have their own public sports policy, they have their own public youth policy, they have their own public family policy, they have their own public integration policy, they have their own public migration policy, they have their own public justice policy, they have their own public police policy, they have their own public disaster management policy, they have their own public energy policy, they have their own public housing policy, they have their own public urban development policy, they have their own public regional planning policy, they have their own public nature conservation policy, they have their own public water management policy, they have their own public waste management policy, they have their own public consumer protection policy, they have their own public data protection policy, they have their own public animal welfare policy, they have their own public hunting policy, they have their own public forestry policy, they have their own public mining policy, they have their own public building policy, they have their own public fire protection policy, they have their own public civil protection policy, they have their own public disaster protection policy, they have their own public order policy, they have their own public safety policy, they have their own public health policy, they have their own public welfare policy, they have their own public transport policy, they have their own public education policy, they have their own public culture policy, they have their own public media policy, they have their own public economic policy, they have their own public environmental policy, they have their own public social policy, they have their own public health policy, they have their own public transport policy, they have their own public agriculture policy, they have their own public tourism policy, they have their own public sports policy, they have their own public youth policy, they have their own public family policy, they have their own public integration policy, they have their own public migration policy, they have their own public justice policy, they have their own public police policy, they have their own public disaster management policy, they have their own public energy policy, they have their own public housing policy, they have their own public urban development policy, they have their own public regional planning policy, they have their own public nature conservation policy, they have their own public water management policy, they have their own public waste management policy, they have their own public consumer protection policy, they have their own public data protection policy, they have their own public animal welfare policy, they have their own public hunting policy, they have their own public forestry policy, they have their own public mining policy, they have their own public building policy, they have their own public fire protection policy, they have their own public civil protection policy, they have their own public disaster protection policy, they have their own public order policy, they have their own public safety policy, they have their own public health policy, they have their own public welfare policy, they have their own public transport policy, they have their own public education policy, they have their own public culture policy, they have their own public media policy, they have their own public economic policy, they have their own public environmental policy, they have their own public social policy, they have their own public health policy, they have their own public transport policy, they have their own public agriculture policy, they have their own public tourism policy, they have their own public sports policy, they have their own public youth policy, they have their own public family policy, they have their own public integration policy, they have their own public migration policy, they have their own public justice policy, they have their own public police policy, they have their own public disaster management policy, they have their own public energy policy, they have their own public housing policy, they have their own public urban development policy, they have their own public regional planning policy, they have their own public nature conservation policy, they have their own public water management policy, they have their own public waste management policy, they have their own public consumer protection policy, they have their own public data protection policy, they have their own public animal welfare policy, they have their own public hunting policy, they have their own public forestry policy, they have their own public mining policy, they have their own public building policy, they have their own public fire protection policy, they have their own public civil protection policy, they have their own public disaster protection policy, they have their own public order policy, they have their own public safety policy, they have their own public health policy, they have their own public welfare policy, they have their own public transport policy, they have their own public education policy, they have their own public culture policy, they have their own public media policy, they have their own public economic policy, they have their own public environmental policy, they have their own public social policy, they have their own public health policy, they have their own public transport policy, they have their own public agriculture policy, they have their own public tourism policy, they have their own public sports policy, they have their own public youth policy, they have their own public family policy, they have their own public integration policy, they have their own public migration policy, they have their own public justice policy, they have their own public police policy, they have their own public disaster management policy, they have their own public energy policy, they have their own public housing policy, they have their own public urban development policy, they have their own public regional planning policy, they have their own public nature conservation policy, they have their own public water management policy, they have their own public waste management policy, they have their own public consumer protection policy, they have their own public data protection policy, they have their own public animal welfare policy, they have their own public hunting policy, they have their own public forestry policy, they have their own public mining policy, they have their own public building policy, they have their own public fire protection policy, they have their own public civil protection policy, they have their own public disaster protection policy, they have their own public order policy, they have their own public safety policy, they have their own public health policy, they have their own public welfare policy, they have their own public transport policy, they have their own public education policy, they have their own public culture policy, they have their own public media policy, they have their own public economic policy, they have their own public environmental policy, they have their own public social policy, they have their own public health policy, they have their own public transport policy, they have their own public agriculture policy, they have their own public tourism policy, they have their own public sports policy, they have their own public youth policy, they have their own public family policy, they have their own public integration policy, they have their own public migration policy, they have their own public justice policy, they have their own public police policy, they have their own public disaster management policy, they have their own public energy policy, they have their own public housing policy, they have their own public urban development policy, they have their own public regional planning policy, they have their own public nature conservation policy, they have their own public water management policy, they have their own public waste management policy, they have their own public consumer protection policy, they have their own public data protection policy, they have their own public animal welfare policy, they have their own public hunting policy, they have their own public forestry policy, they have their own public mining policy, they have their own public building policy, they have their own public fire protection policy, they have their own public civil protection policy, they have their own public disaster protection policy, they have their own public order policy, they have their own public safety policy, they have their own public health policy, they have their own public welfare policy, they have their own public transport policy, they have their own public education policy, they have their own public culture policy, they have their own public media policy, they have their own public economic policy, they have their own public environmental policy, they have their own public social policy, they have their own public health policy, they have their own public transport policy, they have their own public agriculture policy, they have their own public tourism policy, they have their own public sports policy, they have their own public youth policy, they have their own public family policy, they have their own public integration policy, they have their own public migration policy, they have their own public justice policy, they have their own public police policy, they have their own public disaster management policy, they have their own public energy policy, they have their own public housing policy, they have their own public urban development policy, they have their own public regional planning policy, they have their own public nature conservation policy, they have their own public water management policy, they have their own public waste management policy, they have their own public consumer protection policy, they have their own public data protection policy, they have their own public animal welfare policy, they have their own public hunting policy, they have their own public forestry policy, they have their own public mining policy, they have their own public building policy, they have their own public fire protection policy, they have their own public civil protection policy, they have their own public disaster protection policy, they have their own public order policy, they have their own public safety policy, they have their own public health policy, they have their own public welfare policy, they have their own public transport policy, they have their own public education policy, they have their own public culture policy, they have their own public media policy, they have their own public economic policy, they have their own public environmental policy, they have their own public social policy, they have their own public health policy, they have their own public transport policy, they have their own public agriculture policy, they have their own public tourism policy, they have their own public sports policy, they have their own public youth policy, they have their own public family policy, they have their own public integration policy, they have their own public migration policy, they have their own public justice policy, they have their own public police policy, they have their own public disaster management policy, they have their own 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