Federalism is largely associated with the functioning of the United States of America (hereinafter also referred to as the U.S.A.). This is related to the fact that it was the U.S.A. that principally dealt with the issues of confederation and federation in the process of its formation. To this day, the issues of federalism are conceived of in connection with the US federalism, although it is also used by other countries for their state-law arrangements. There are various models of federalism in the world[1] through which the states take advantage of its benefits in the area of financial and foreign policy, or its possible implications in preventing war conflicts.
In the area of constitutional law, federalism represents an essential substance in the theory of the state system. Especially for countries that use the federal state system, it is a fundamental domain for the functioning of the state throughout its constitutional and political system. In the historical context, the question of the state system has resonated in the theory of the state for a long time. The choice of state structure is fully in the hands of the state and includes the possibility of changing this choice in the course of functioning of the state. It is not a rule that federalism is born simultaneously with the emergence of new states; transformations of already existing unitary states are also known. It is also not a rule that the federal state is only a domain of states with large territories. This is evidenced by, e.g., Belgium or Bosnia and Herzegovina. As a rule, however, the federal establishment is used more by states that merge into a comprehensive state unit, the so-called composite state. This is how federations may come into being nowadays as well. A striking difference between the federation and confederation is that, taken from several aspects, the latter is a looser grouping. Especially in connection with the fact that in the confederation the participating states retain their sovereignty. They are usually combined for a specific purpose of specially reserved matters, e.g., the matter of joint defense, or protection against aggression, or in order to secure peace inside the confederation.
What then are the reasons for the emergence of federations? For the most part, they are diverse, just like the individual states are. The reasons for federations to emerge can generally be specified as follows:
historical,
political,
expansionary and power-imposing.
Many of the federal states are based on historical traditions (e.g., Germany, Austria). They follow on a long-term effort to unify and consolidate originally fragmented territories. When creating a state, they do not even consider anything other than a federal arrangement. E.g., in the preamble of the Basic Law (Constitution) that was created in 1947, the Federal Republic of Germany defined the connection with those parts of Germany that, at the time, constituted the occupation zone of the German Democratic Republic (GDR). This fact thus contributed to the transfer of the Basic Law validity after the unification of Germany in 1990. However, the aforementioned historical reason cannot be applied in absolute terms, e.g., despite similar historical context, Italy maintains the position of a unitary state, albeit with a special regional structure. On the other hand, geographic reasons also play a positive role in the context of the emergence of federalism (e.g., Switzerland or Austria).
Political reasons for federation formation may be of an equally varying nature. For example, in the case of the creation of the U.S.A., the driving force behind federation formation was the new countries' need to grow together in an effort to compete with the European powers and break away from the influence of England. In that case, federation was created through a merger of already existing, originally independent states. However, political reasons may also lead to the formation of a federation by changing the law of the already existing, originally unitary state (e.g., Czechoslovak Federation of 1968). Political reasons go hand in hand with the issues of nationality, but the main reasons are economic, the need for economic cooperation, increased international competition, market expansion, etc., which were significantly present, for example, in the creation of the U.S.A., Canada, or Australia. Similarly, foreign policy reasons, such as the need for joint defense against external threats, are the driving force behind the creation of the federation (e.g., in the U.S.A., Canada, Australia, but also in the USSR).
Expansionary and power-related reasons were perceptible, for example, at the time of the formation of the former Union of Soviet Socialist Republics (USSR). The danger of those reasons lies in the fact that they can also materialize in the form of an annexation. If we look at the former socialist federal states, such as the Union of Soviet Socialist Republics, the Socialist Federal Republic of Yugoslavia (SFRY) and the Czechoslovak Socialist Federal Republic (CSFR), the reason for their creation was to address national issues, based on the principles of proletarian or socialist internationalism. The issues of nationality are a frequent reason for the creation of a federation (former socialist federations, Pakistan, Canada, Switzerland, Belgium), but they are rarely a separate reason, many times intertwined with political or power-related or religious reasons (e.g., division of India into Muslim and Hindu parts). For the most part, the struggle of national groups poses an opportunity for political elites in both the emergence, but also the disintegration of a composite state.
When creating a federation, states need to answer several questions, last but not least of them being what they want to achieve with the creation of a federation – a composite state. This is because the creation of the federation involves interference with statehood based on the will of the entities involved. It is a voluntary limitation of state sovereignty, which is a clear and defining sign of federalism and distinguishes it from unitary states. Thus, federalism counts on a dual, divided sovereignty, where the original bearer of state sovereignty – the state - voluntarily surrenders part of its sovereignty and transfers it to a newly emerging (or even existing) whole. The basic feature in this transfer is voluntariness. If the question of voluntariness is compromised, there is a strong assumption that this may later lead to disintegration of such federation. Even with the best intentions in mind at the moment of federation creation, it is not possible to assess with complete certainty whether the will of the states will not change over time (and it may, if for nothing else, for purely objective reasons) and the state will try to terminate its functioning within the federation. For this purpose, the right of secession was established as an option to secede from the federation without affecting its continuation, albeit in the absence of the seceding state. It is therefore clear that the reasons for creation of the federation also play a significant role in its functioning.
The second important factor affecting the functioning of federalism is the extent to which sovereignty is transferred. The transfer or division of sovereignty is certain to take place, this is the essence of federalism. It is also clear that the scope of the transfer of sovereignty is defined in the treaty establishing federalism, which determines the degree of centralization or decentralization of federalism. The legal status is thus specified at the initial stage of the emergence of federalism, but in the course of its development a de facto regrouping of sovereignty may occur, as typical examples are, e.g., the U.S.A. The US Constitution of 1787 conceived decentralized federalism, i.e., federalism, where the member states of the federation had a more prominent position. This is related to the historical reasons for the creation of the U.S.A. and the fears of the then so-called "anti-federalists". The essence of creating federalism in the U.S.A. was the fact that the federal government derived its power directly from the citizens rather than from the member states, as explicitly mentioned in the Constitution.[2] Across the historical context, there is a visible factual dispute in the U.S.A., more or less marked by the historical effort of some member states to significantly reduce the power of the federation. Over time, this dispute (also one of the causes for the civil war in the U.S.A., among other things) moved in the opposite direction, namely in favor of strengthening the powers of the federation. To this day, this line has been preferred by the US Supreme Court in its ruling practice.[3]
Another essential criterion is the satisfaction of member states during their existence under federalism. This criterion cannot be objectively defined, but it is subject to several factors increasing either satisfaction or dissatisfaction. One of them is equal position of all states participating in the federation, regardless of their size (which is manifested, for example, by parity representation in the Federal Congress of Parliament). Equal distribution of the seats of certain federal bodies across the member states (e.g., the Federal Constitutional Court, the Federal Reserve, the Supreme Audit Office, etc.) is a no less important satisfaction criterion. Likewise, strict adherence to division of competences and efforts to resolve any conflicts of competence in favor of the member states increase satisfaction of the federation member states. Satisfaction factors are also in the hands of the political elites of the member states and in how they present federalism in their respective member state. However, satisfaction with the federation also increases or decreases with specific activity of federal authorities and the issuance of relevant legal acts.
So what is the significance of federalism? And which countries might find using it suitable? A universal answer does not seem to exist. The idea of merging into new units, or state formations, resonates even in the twenty-first century, when almost all traditional values, including the area of state law, find themselves caught in the upheaval of changes.
It is certain that federalism is a multi-level governance of the state that requires compromises, mostly on both sides. In terms of preference for state arrangement, it is very important to examine the extent of the transfer of sovereignty and the specific benefits associated therewith. Last but not least, the state should also consider the fact that building its multi-level governance is not only more costly (it requires duplication in establishing and operation of the highest state bodies, duplicate law, judicial, riot and defense components, etc.). The creation of federation creates a new state, which constitutes a single entity in terms of international law. It must be perceived that from the point of view of international law, the federation thus appears as one and united state. It is up to every representative of the state considering the introduction of a federal state to come to terms with all of the above.
[1] In total we can trace 22 democratic states with a federal state system.
[2] Preamble to the US Constitution – “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
[3] Constitution of the U.S.A.: How federalism emerged and what it is, actually? - Institute of Law and Legal Science (ustavprava.cz).
References
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Burgess, M. (2012) Search of the federal spirit: New theoretical and empirical perspectives in comparative federalism. Oxford: Oxford University Press. ISBN 978-01-9960-623-8.
Constitution of the United States of America
https://www.govinfo.gov/content/pkg/GPO-CONAN-2017/pdf/GPO-CONAN-2017-9-1.pdf.
Filip, J., Svatoň, J., Zimek, J. (2006) Základy státovědy. Brno: Masarykova univerzita. ISBN 978-80-210-4057.
Hodža, M. (2008) Federácia v strednej Európe a iné štúdie. Bratislava: Kalligram. ISBN 80-7149-168-3.
Marušiak, J., Sládek, K., Zelenák, P. (2008) Integračné a dezintegračné procesy v strednej Európe v 20. storočí. Bratislava: Veda, Ústav politických vied SAV a Centrum pre Európsku politiku. ISBN 978-80-224-1000-7.
Škutová, D.,Prando, P. (2013) Slovenský federalizmus versus taliansky federalizmus. Banská Bystrica: Belianum. ISBN 978-80-557-0674-0.
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