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A JOURNEY THROUGH THE HISTORY OF FEDERALISM

Is Multilevel Governance a Form of Federalism?

Frdric Lpine

Centre international de formation europenne | L'Europe en Formation

2012/1 - n363

pages 21 62

ISSN 0014-2808

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Lpine Frdric, A Journey through the History of Federalism Is Multilevel Governance a Form of Federalism?,

L'Europe en Formation, 2012/1 n363, p. 21-62. DOI : 10.3917/eufor.363.0021

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LEurope en formation n 363 Printemps 2012 - Spring 2012

A Journey through the History of FederalismIs Multilevel Governance a Form of Federalism?

Frdric Lpine

Chief editor of LEurope en formation, lecturer of Federalism and Governance at the Centre

international de formation europenne.

Te general thematic of this issue of LEurope en formation is about the rel-evance of federalism in the twenty-rst century. Indeed, there is nowadays, arevival in federalist studies. Beyond the classic tradition of comparative studies,this discursive revival addresses mostly the nature of the federal phenomenon,trying to dene new meanings, or to organise the phenomenon into a coherentframework.

Tat revival may be traced from the beginning of the 1990s. It has its originsin many reasons, that coincide with the fall of the Berlin Wall and the collapse ofthe Soviet system. Although all the reasons are not all directly linked to that seriesof events, the implosion of the communist world and of the bipolar orderandits specic ways to control conictsopened politics to new congurations, fea-turing at the same time integration and devolution and a process of globalisa-tionand the weakening of the modern stateas well as the emergence of newvalues.1

Tese new congurations can be followed through the development of con-temporary integrative and differentiative political processes: a growing decentrali-sation in industrialised states; the development of new international organisationscoordinating or integrating nation-statesthe most prominent case being theEuropean Union; the use of federal instruments to manage domestic conictsor, more broadly, to accommodate multinational states; and last but not least, theattempts to solve the current nancial crisis with supranational tools.

1. Ronald L. Watts, Comparing Federal Systems, Tird Edition, Tird Edition ed. (Montreal & Kingston:McGill-Queens University Press, 2008). 1-7. Dimitrios Karmis and Wayne Norman, Te Revival of Federal-ism in Normative Political theory, in Teories of Federalism: A Reader, ed. Dimitrios Karmis and Wayne Nor-man (New York: Palgrave Macmillan, 2005), 2-5. Daniel J. Elazar, From Statism o Federalism: A ParadigmShift, Publius: Te Journal of Federalism25, no. 2 Spring (1995).

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Frdric Lpine22


Eventually, this renewed interest in federalism may be traced trough recentpublications, from the beginning of the 2000s. Besides numerous scientic arti-cles on the issue, some important monographs or edited books have been pub-lished. Tey can be classied in three types. Te rst type considers surveys of

comparative federalism, and emphasises theoretical developments on the study offederal states.2A second type is composed of collections of articles attempting toencompass the diversity of the federalist phenomenon, through original papersor selected classical passages.3Eventually, a third category clusters monographsespecially devoted to new developments of federalism.4Whatever is the speci-city of each approach, all these works aim at studying federalism in a renewedperspective.

However, they seem more to address the polymorphous nature of federal-

ism than setting out a renewed conceptual framework, and raise more questionsthan they give answers. Tey record the contemporary division of federal studiesin several branches: normative and analytical, domestic and international, com-parative, regional integration, scal federalism, multinational federalism, conictmanagement, regulatory federalism In other words, they reect the diffi cultyto organise a general federalist conceptual framework from systematic studies offederalist theories and practices.

Terefore, a general question addressed by Rufus Davisand still unan-

swered by this authorcan be raised again: How do we capture all this teemingand changing variety in any generality that would serve federal theory, let alone any

theory at all? 5

Te aim of this article is to come up with an attempt to nd a way to a generalcoherence of federalism, a prolegomena to further research on the specicity offederalism in political thoughts.

2. Watts, Comparing Federal Systems, Tird Edition. Tomas Hueglin and Alan Fenna, Comparative Federalism: ASystematic Enquiry(Peterborough, Ontario: Broadview Press, 2006).A Global Dialogue on Federalism, a collec-tion of seven edited books on the federal comparative studies of states, published by the Forum of federations,IACFS, and McGill-Queens University Press.

3. Jean-Franois Gaudreault-DesBiens and Fabien Glinas, eds., Te States and Moods of Federalism: Governance,Identity and Methodology - Le fdralisme dans tous ses tats : gouvernance, identit et mthodologie(Cowansville(Quebec): ditions Yvon Blais [co-published by Bruylant], 2005). Dimitrios Karmis and Wayne Norman, eds.,Teories of Federalism: A Reader(New York: Palgrave Macmillan, 2005). Ann Ward and Lee Ward, eds., Te Ash-

gate Research Companion to Federalism, Ashgate Research Companion (Farnham (Surrey): Ashgate PublishingLimited, 2009). John Kincaid, ed. Federalism, 4 vols., Sage Library of Political science (London & TousandOaks (Ca): Sage Publications, 2011).

4. Michael Burgess, Comparative Federalism, Teory and Practice(London and New York: Routledge, 2006).Olivier Beaud, Torie de la Fdration, Lviathan (Paris: Presses universitaire de France, 2007). And we have torefer as well to the pioneer and most inuential book of that approach, although much older: Daniel J. Elazar,Exploring Federalism(uscaloosa (AL): Te University of Alabama Press, 1987).

5. S. Rufus Davis, Te Federal Principle: A Journey Trough ime in Quest of Meaning(Berkeley & Los Angeles(Ca): University of California Press, 1978). 155.


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A Journey through the History of Federalism 23


Requisites and axioms

In the search for this general coherence, there is a need to dene a methodcomposed of requisites and axioms.

At rst, that research is concerned primarily with the discursive approachesof federalism: thoughts and theories that lead to an intellectual formalisation ofthe federalist practices and values, that is to say an abstract representation of it.

As this article considers itself as a contribution to the evolution of politicalthoughts in the eld of federalism, it aims at paving the way to include the his-tory of federalist thoughts in a conceptual framework and a theory at a suffi cientlyabstract level to cross-cut differences in terminology. At the same time, that theory shall

be sensible enough to grasp semantic history.6

Te reasoning should include an historical dimension, and encompass alldiscourses which, in the history of thoughts, have been related to federalism,either by its semantics or by the type of content. Tus, the prolegomena researchshould determine how discourses on federalism have inuenced each other. Wewould call it the genealogy of federalism, as the tracing of lineages between thesethoughts, ending up with the building of a discrete family tree in the path of itsevolution.

In the scope of this article, we will concentrate only on the Western political

thoughts, as signicative linkages can be made between political Western schoolsof thoughts through history, and we will take English and American studies as themain axis, as there can be attested a continuity in the succession of approaches.

By schools of thoughts, we mean the key approaches considering federalismas an object of studies. It includes the main acknowledged authors on the the-matic, as well as scholars connected to each other in a common way to deal withpolitical issues, within scientic disciplines or programmes of research. Temeaning paradigm can be used as well. In its more general perception, the para-digm refers to the basic postulates and concepts that frame a specic method ofresearch. It constitutes a pre-analytical approach, a system composed of primarypropositions, from which are derived secondary propositions, third propositions and so

on; the derivation being done according to logical and variable processes: deduction,

dialectics, analogy, subsumption, etc.7

In the framework of this research, we will rather consider schools of thoughtsin a sociological way, as groups of thinkers or scholars who share the same way totake into account an object of studies and are connected to each other. Marks andHooghe refer to it as islands, as considering that the density of communication

6. Gorm Harste, Societys War. Te evolution of a self-referential military system., in Observing InternationalRelations. Niklas Luhmann and World Politics., ed. Mathias Albert and Lena Hilkermeier, Te New InternationalRelations Series(Abingdon, Oxon: Routledge, 2004), 158.

7. Daniel-Louis Seiler, La mthode comparative en science politique(Paris: Dalloz, Armand Colin, 2004). 48.


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Frdric Lpine24


within each of [these groups of scholars] is much higher than that among them.8In the same spirit, Tomas Kuhn had considered that a paradigm has to be foundat rst through the existence of a specic scientic community: the denitionof paradigms and scientic communities are intrinsically circular. A paradigm iswhat the members of a scientic community share, and, conversely, a scientic com-munity consists of men who share a paradigm.9Tis sociological denition leavesopened the possibility to consider that some schools may share common elementsto the same approach, consciously or unconsciously, although they do not com-municate much with each other, as it will be shown in the article.

Eventually, any formal approach is rooted in the time and place of its elabora-tion, and it is true as well for this article. Tus, the quest for that general coher-ence must be relevant for the contemporary context, as it is made hic et nunc.

In a second part, in order to begin the reasoning, some axioms are required asa starting point.

Te rst axiom states that federalism can be considered as a specic object ofpolitical studies. Te study will be focusing on federalism as a political phenom-enon taking into account the organisation of polities. Terefore, it is about publicaffairs and the distribution of power and authority. On the other hand, federalstructure is often used to shape organisations of civil society, such as trade unionsand grass root movements. In many cases, they can be considered as expressions

of the federal phenomenon. However, as regard to the extent of this article, theywill be taken into account only if they are to contribute, in the perception ofsome authors, to the organisation of the public sphere.

Te second axiom considers that federalism can be studied as a sphere of itsown. Te research tries to grasp the historical discursive evolution of the federal-ist idea through its basic acknowledged features and its semantics. Terefore, itallows observation, comparison and linkages between schools of thoughts thatusually ignore each other. We argue that in creating a discrete genealogy of the

school of thoughts, we can focus on the development and the process of differentia-tionof the federalist eld.

Very often, federalism is embodied in the classical elds of studieslegal,political (domestic and international), economic, sociological or culturalandis considered at best as a subeld of studies, or as a single item of a typology de-veloped within each eld. Te rst case can be illustrated by federal comparativestudies, which consider federal statesand the European Union since recentlyto compare them from a political or a legal approach. Te second one appears,

8. Lisbeth Hooghe and Gary Marks, Unravelling the Central State, but How? ypes of Multi-level Govern-ance,American Political Science Review97, no. 2 (2003): 234.

9. Tomas S. Kuhn, Te Structure of Scientic Revolutions, Tird edition ed. (Chicago & London: Te Universityof Chicago Press, 1996). 176.


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for instance, when the federal state is considered as a specic case of the state ingeneral. At the opposite, this article postulates that the federalist ideaoftencalled the federalist principlecan be studied by itself, cross-cutting the differ-ent classical elds of studies of the society.

Federalist or federal?

Before going further on, a point of terminology has to be claried, about theadjective to use as regards to the substantive federalism. Despite the fact that thesuffi x of the substantive in -ism could have limited the use of the word to somenormative approaches, the word federalism has been generally accepted for allkinds of presentation of the phenomenon, being descriptive, analytical or norma-tive. However, this acceptance has not been extended to the adjective, and thechoice between federalist and federal brings back the importance of the suffi x-ist. In this research, the adjective federalist has been chosen, because the suf-x might reect more the reference to discursive approaches, including thoughtsand ideas, and integrate the normative dimension, which is usually not the caseof federal, which relates more to a descriptive approach. It has to be said thatthis choice is purely arbitrary, in order to keep a formal coherence to the writing.It deliberately does not take into account the possible evolution of the semanticsof federal and federalist, that have to be left for latter studies.

Te article starts by addressing the question of the diffi culty to dene federal-ism. After that, it presents the evolution of the history of the federalist thoughtin three chapters. Te rst one takes into account the thoughts previous to theAmerican experience, or developed out of its inuence. Te second chapterconsiders the consequences of the American experience on federalist thoughts.Eventually, the last chapter is devoted to the latest developments of the federalistthoughts, in the age of the weakening of the modern state.

HE QUES FOR HE MEANING

aking preferably recent denitions of federalism, in order to take into con-sideration the last evolutions of the eld, we get to consider federalism of a typeof organisation between different levels of communities.

In its most general sense, federalism is an arrangement in which two or more self-governing communities share the same political space.10

Tus, federalism is a eld of studies diffi cult to dene, as regards to its poly-morphism. As it appears at this stage, it seems that federalism embraces all forms

10. Karmis and Norman, Te Revival of Federalism in Normative Political theory, 3.


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Frdric Lpine26


of political organisations that do not t within the centralised state. It focuses onthe diffusion of power, rather than on its centralisation.

Ronald Watts, inspired by a classical denition of Daniel Elazar, proposesanother general denition of federalism, more precise, as:

A broad category of political systems in which [] there are two (or more) levelsof government, combining elements of shared-rule (collaborative partnership) througha common government and regional self-rule (constituent unit autonomy) for the gov-ernment of constituent units.11

Tus, Watts includes an overarching common government, reducing the per-ception of federalism to a closed polity, as a modern state, in order to conceptu-alise federalism for comparative state studies.

Although that denition may seem more operational that the former one, itmay reduce federalism to one of its components. Te denition of Elazar himselfsimply considers federalism as a combination of self-rule and shared rule,12whichopens the federalist perspective to broader combinations. It may be illustrated byone of the last books edited by Elazar, Federal Systems of the World: A Handbookof Federal, Confederal and Autonomy Arrangements.13In this survey of federal ar-rangements, Elazar encompasses all the political combinations that he does con-sider relevant to self-rule and shared rule, cross-cutting the distinction between

domestic and international. Tus, he takes in his survey, besides classical federalstates, a broad spectrum of political arrangements, from China, as can be seenthere some decentralisation, to the monetary union between France and Monaco.In such an extreme extent of cases, one can address the nature of federalism,and even if there is one. Tis example assesses the diffi culty to dene federalism,moreover whether it is to identify an operational concept.

Actually, the federalist idea seems diffi cult to conceptualise, as it is not an ob-ject clearly identied. A federalist arrangement is very often a complex political

construct, as the result of an attempt to nd a solution between antagonist con-cepts, such as unity vs. diversity, independence vs. dependency, coordinationvs. subordination...

Tis opened dialectic of antinomies had been formulated by Pierre-JosephProudhon on the basic distinction of liberty vs. authority.14In the same meth-odological perspective, Denis de Rougemont wrote one century latter:

11. Watts, Comparing Federal Systems, Tird Edition: 8.

12. Elazar, Exploring Federalism: 12.13. Daniel J. Elazar, ed. Federal Systems of the World: A Handbook of Federal, Confederal and Autonomy Arrange-ments, 2nd Edition ed. (Harlow, Essex: Longman Current Affairs, 1994).Elazar, Federal Systems of the World: AHandbook of Federal, Confederal and Autonomy Arrangements.

14. Bernard Voyenne, Le Fdralisme de P.J. Proudhon, vol. 2, Histoire de lide fdraliste (Paris-Nice: PressesdEurope, 1973). 57-71.


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I suggest to call federalist problem any situation where two antinomic humanrealities, but equally valid and vital, confront each other, in such way that the solu-tion could not be found in the reduction of one of the terms, nor in the subordinationof one to the other, but only in a creation which encompass, satisfy and transcend therequirements of both.15

Terefore, it appears that the federalist idea can refer to numerous idiosyn-cratic and pragmatic attempts to solve a politicalor even societalproblem.Moreover, in the history of political thoughts, it led to the creation of manyschool of thoughts referring themselves to federalism, and considering a diversityof theories not related to each other. Moreover a specic understanding of fed-eralism has emerged in each country with a legal or political federalist tradition.

Terefore, it seems diffi cult to choose an elaborate operational concept with-out taking the risk of loosing a large part of the federal experience. o state againDenis de Rougemont,

Federalism, like all great ideas, is very simple, but not easy to dene in a ew words ora concise ormula. Tat is because it is organic rather than rational, and dialectic ratherthan simply logical. It eludes the geometrical categories o vulgar rationalism, but cor-responds well enough to the ways o thought introduced by relativist science.16

Or Kenneth Wheare, at the same time:

[] this denition of the federal principle is not accepted as valid by all studentson the subject. Some authorities nd the essence of federalism in some different prin-ciples.17

Eventually, taking more recent observations:

Any attempt to conne such a complex and dynamic concept as federalism to a

single authoritative denition is deeply problematic.18

Tere is as yet no fully edged theory of federalism.19

In this context of polymorphous and multicellular nature of federalism, canbe addressed the possibility to use properly the federalist idea in political sciences.Four positions can be considered.

15. Denis de Rougemont, Lettre aux Europens(Paris: Albin Michel, 1976). 118.

16. Denis de Rougemont, Lattitude fdraliste (paper presented at the Rapport du premier congrs annuel delUnion europenne des Fdralistes Montreux, aot 1947, Genve, 1947), 10.

17. Kenneth Wheare, Federal Government, Fourth edition ed. (New York: Oxford University Press, 1964). 11.

18. Ann Ward and Lee Ward, Introduction to the volume, in Te Ashgate Research Companion to Federalism,ed. Ann Ward and Lee Ward (Farnham (Surrey): Ashgate Publishing Limited, 2009), 1.

19. Burgess, Comparative Federalism, Teory and Practice: 3.


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Frdric Lpine28


Terstposition is that federalism cannot be considered as an autonomouspolitical concept. It is rather a pragmatic attempt to reconcile theories with thereality.

As Rufus Davis states, the only common feature to all individuals theorising

federalism is the general idea that, in life, not all is black and white, that politicaltheory never squares with reality20

[As] we pick at the ederal idea we become clearly aware that we are exposing not onsingle idea but a whole intricate and varied network o interrelated ideas and concepts o contract, o partnership, o equity, o trusts, o soereignty, o constitution, o state, ointernational law. And as we pick at these in turn we nd that each o these concepts is in

act a multicellular constellation, a molecular compound o its own ideas and concepts.21

Eventually, for Davis, there is no use to continue to compress multicellularand idiosyncraticand we would add pragmaticexperiences into one theory.

A secondposition is to reduce deliberately the scope of federalism in order todene an operational concept.

One exemplary case may be taken from Ronald Watts, in Comparing federalsystems.22Te author denes federalism as a normative idea advocating multi-tiered government combining shared-rule and self-rule.23However, he empha-sises the denition of one specic category, that he calls federation.

Within the broad genus o ederal political systems, ederations represent a par-ticular species in which neither the ederal nor the constituent units are constitutionally

subordinate to the other, i.e., each has soereign powers derived fom the constitutionrather than fom another level o goernment, each is empowered to deal directly withits citizens in the exercise o its legislative, executive and taxing powers, and each is di-rectly elected by its citizens.24

[] Tis book ocuses primarily on analysing the design and operation o these as aorm o goernment which at the beginning o the twenty-rst century is proing to beso widespread.25

Tus, although Ronald Watts acknowledges the pluralistic approach to feder-alism, considering in particular the distinction between normative and descrip-tive dimensions, he focuses mainly on one specic form of organisation, whereamong others: (a) powers are derived from the constitution, and (b) each level isdirectly elected by its citizens.

20. Davis, Te Federal Principle: 156.


22. Watts, Comparing Federal Systems, Tird Edition.





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It has to bee said that the distinction between federalism and federation hadbeen implicit for a very long time in federalist literature, it is only in 1982 thatPreston Kings, in Federalism and Federation, established explicitly a conceptualdistinction between both.26

A thirdposition takes into account the fact that federalism covers all politicalbodies in between the unitary state and the constellation of independent states.Any kind of cooperation between political units that does not lead to the con-stitution of a new single centralised state can be considered as a federal arrange-ment. Tat could be derived from a literal reading of the last broad denition offederalism given by Daniel Elazar. As it has been said later by Murray Forsyth:with suffi cient effort, [federalism]can be detected almost everywhere.27However,this position hardly leads to an operational formalisation of the eld.

Eventually, afourthposition would be to consider that, whatever the diffi cul-ties, federalism, in its diversity and exibility, may constitute a proper eld ofstudies. Although clustering many theories, or being by its very nature a cloakof many colors,28federalism deserves a specic attention because all theories andconcepts are linked by a common core of matrix combination of values, theoriesand practices, that one can call an idea, a principle, or a phenomenon.29

Tis latest position has been chosen as the basic assumption of this article,considering that there is an way to go beyond epistemological obstacle to the

unication of the eld, through a discursive approach. It claims that, despite thenumerous political perceptions of federalism in various geographical areas, andthe different methodological approaches from discipline to discipline, there is away to nd a unity in the federalist thoughtsat least in their evolutionin-cluding political thoughts clearly labelled as federal or federalist, and other onesthat follow the same principle.

ORIGINS OF FEDERALISM

In order to dene the scope of the federalist phenomenon, there is a need togo through the evolution of the history of federalist thoughts, and to take into ac-count what could be their main sources and their most important developments.

Many authors consider that the history of federalism starts with the Americanexperience, as it created the rst stable federal republic, which was used as a arche-type model for federalist studies, as well as a reference for further federal states.

26. Burgess, Comparative Federalism, Teory and Practice: 47.

27. Cited by Burgess, Comparative Federalism, Teory and Practice: 47.28. Ward and Ward, Introduction to the volume, 1.

29. Bruno Tret, Du principe fdral une typologie des fdrations : quelques propositions, in Te Statesand Moods of Federalism : Governance, Identity and Methodology - Le fdralisme dans tous ses tats : gouvernance,identit et mthodologie, ed. Jean-Franois Gaudreault-DesBiens and Fabien Glinas (Cowansville (Quebec):ditions Yvon Blais [co-published by Bruylant], 2005), 100.


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Frdric Lpine30


In the attempt to encompass federalism in its historical developments,though, it has to be taken into account that the intellectual dimension of theAmerican federalism had been shaped by earlier thinkings. Moreover, other fed-eralist thoughts have been developed in the eighteenth and nineteenth centuries,

without being linked to the American federalism.Te aim of this section is to present these specic thoughts, as well as the early

evolution of the federalist semantics.

Montesquieu

Montesquieu is considered as the starting point of this enquiry through fed-eralism, as he was the rst to introduce the idea and semantics of federalism in

modern political thinkings. Tus, Montesquieu presented in Te Spirit of Laws30

(1748) the rst attempt to conceptualise federalism in the modern political era.In politics, modernity can be dened as the development of the modern state.

From the French and English experiments as well as from the thoughts of theEnlightenmentwith Bodin, Hobbes and Rousseau as prominent authorspo-litical modernity refers to the building of the modern state after feudalism, uni-ed in terms of territory, population and administrative apparatus, under theoverarching concept of sovereignty. It is in this context that Montesquieu writes

Te Spirit of Laws, in order to present a systematic study of the different forms ofgovernments and regimes, as well as to promote political liberalism, on the modelof the English parliamentarism. His approach is clearly descriptive and norma-tive, and not yet analytical.

Considering three political regimes, republic, monarchy and despotism, Mon-tesquieu develops in the case of republics the fact that they have to be small, inorder to maintain themselves. Growing too much, they would be destroyed fromthe inside by corruption. Tus, large states could be maintained only through a

monarchic regime, and the largest through despotism. In this perspective, he de-velops the idea of federative republics, as unions of republics through a contractthat would allow them to be large and strong enough to resist to monarchies. Atthe same time, the mutual control of the republics of the union on each otherensures that all would keep the same regime.

A specicity of Montesquieu is his excellent knowledge of classic history,mostly Greek and Roman governments of the Antiquity, from where he takeshis most striking examples. Although the Ancient Greek did not know the world

federalism and its derivatives, Montesquieu labels the idiosyncratic unions ofGreek city-states as federative. He was the rst to refer to federalism for historicalexamples that did not use such semantic, and then gave a systematic meaning to

30. Montesquieu, De LEsprit des lois, 2 vols., vol. 1 (Paris: GF Flammarion, 1979 [1748]).


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it, as a union of polities. Montesquieu is the rst to use federalism-related terms,such as federative republic and confederation in a way of scientic generalisa-tion, that will be used afterwards by many authors, in order to refer to that phe-nomenon. It is notably the case of Daniel Elazar, who sees seeds of federalism in

in the Hebrew term brit, meaning covenant and referring to true peace.31Amongmay other references, on could consider a form of proto-federalism in the Britishempire, as it as been noticed by Michael Burgess.32

In Te Spirit of Laws, the part devoted to federalism is very limited, as it is themain subject of only the three rst chapters of Book IX. However, Te Spirit ofLaws, as well as its historic references, had an important legacy. Firstly because itgave a theoretical content to the word. Moreover, it took an important place infurther debates on federalism in modern times: Te debates about the American

constitution (1776-1989) will take into account the history of Greek city-statesexperiments; furthermore, Montesquieu will be largely quoted in the FederalistPapers;33and eventually, until the end of the nineteenth century, the reference tothe Greek city-states will continue to play an important role for the understand-ing of federalism, notably with the book of Freeman History of Federal Govern-ment in Greece and Italy.34

Terefore, Te Spirit of Lawsconstitutes an interesting ground of departurefrom a theoretical approach as well as from a genealogical approach.

However, the semantics of federalism have an history of their own, that startlong before the works of Montesquieu. Moreover, other important federalistthinkers have emerged in modern history, from the sixteenth to the nineteenthcentury, who cannot be directly linked to Montesquieus genealogy. Tese are go-ing to be presented now.

Te history of federalist semantics

A rst semantical attempt to dene federalism can be made through etymol-ogy. Federalism comes from a late Latin word,foedus, meaning treaty, compactor contract. Foeduscomes itself from an older Latin word,des, meaning trust.

Foedushas been used from the Ancient Roman Republic and Empire; whenit was referring mostly to treaties with populations in other parts of the Italianpeninsula at the times of the Republic; and with barbarians not romanised, liv-

31. Elazar, Exploring Federalism: 5.32. Burgess, Comparative Federalism, Teory and Practice: 51.

33. Te most important references are in the Federalist No. 9, No. 43 and no. 47.

34. Edward A. Freeman, History of Federal Government in Greece and Italy, ed. J.B. Bury, Second Edition ed.(London: Macmillan & Co., 1893). Freeman was expecting to carry on with a second volume on the federalhistory of Germany, but he did not live long enough to reach his goal.


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Frdric Lpine32


ing at the Marches at the time of the Empire, in order to protect the limesof thisever-growing political body.

Foedushas been present as well in the Middle Ages, meaning a treaty of alli-ance between political entities, and referring mostly to peace treaties. St Isidore

of Seville, in the sixth century, was mentioning foedera pacis for peace treaties.Martinus Garatus Laudensis wrote in the fteenth century a syllabus on ractatusde confederatione, pace et conventionobus principum.35As it can be seen, the lin-guistic switch had been made fromfoedusto confederatio, as well as the distinctionbetweenfeodus(alliance) andpax(treaty) within the respublica christiana.36

And the adjective feudal itself, as it was created afterwards to refer to someparts of the Medieval period, might nd its origins as well on foedus, and its setof oaths.

It is therefore not surprising that the confoederatio has been commonly usedto refer to alliances. Te most striking example is from now of course the creationof the Confederatio Helvetica(or Switzerland, from earlier than 1291), when therehas been a need to translate Eidgenossenschaft(or oath fellowship) in latin. Butit was also the case for numerous leagues of the Middle Ages, among them theGermanic Holy Roman Empire.

A specic attention must be drawn to this last case, as it created a long tradi-tion of studies of federalism in the Germanic cultural world, followed for instance

by Puffendorf, von Gierke or Jelinek. A decisive moment might be seen in thistradition at the times of the Westphalian treaties. As presented by Ronald Asch,the Westphalian treaties did not have the same meaning for Germany and for therest of Europe. While Westphalia is considered as the beginning of internationalrelations in Europe, shaping it into divided sovereign and independent states, itis not been the case for Germany (or Central Europe, as it appeared at the time).As Asch points out:37

In Western Europe mere noblemen and princes [] lost the ability to take partin international European politics; the sovereign states which enjoyed both full iusfoederis and ius belli et paciswere the sole actors left on the European state. Not so,however, in Central Europe, where the Westphalian Peace gave the German territorial

princes a status not altogether dissimilar from that of the sovereign rulers, in spite of thefact that in theory at least, they remained the Emperors liegemen and subjects.

35. See Karl-Heinz Ziegler, Te Inuence of medieval Rioman law on Peace reaties, in Peace reaties andInternational Law in European History: From the Late Middle Ages to World War One, ed. Randall Lesaffer (Cam-bridge: Cambridge University Press, 2004).

36. Ziegler, Te Inuence of medieval Rioman law on Peace reaties, 147. Randall Lesaffer, Peace reatiesfrom Lodi to Westphalia, in Peace reaties and International Law in European History: From the Late Middle Agesto World War One, ed. Randall Lesaffer (Cambridge: Cambridge University Press, 2004).

37. Ronald G. Asch, Te ius foederis re-examined: the Peace of Wesphalia and the Consitution of the HolyRoman Empire, in Peace reaties and International Law in European History: From the Late Middle Ages to WorldWar One,ed. Randall Lesaffer (Cambridge: Cambridge University Press, 2004).


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And Asch concludes:

[]Lawyers and political theorists in the Holy Roman Empire continued to use

ideas and categories of thought in the latter seventeenth century which had largelybecome obsolete in Western Europe, where the idea of undivided sovereignty as articu-lated rst by Bodin and latter by Hobbes became much more inuential. o the extentthat political discussions in the Empire were rooted in older traditions of thought, itremained a political system sui generis, that was separated from the modern states ofWestern Europe by a widening gulf.

Tis conclusion explains why Germany kept on maintaining a very specicapproach of federalismhowever quite closed to the contemporary international

political sciencewith the exception of the elements brought to the Americanpolitical science by Carl Friedrich (see below), and of the principle of subsidiarity,brought into the European integration approach.

Other founding thinkers

Tis brief presentation of the wordfoedusin the Middle Ages helps to explainthe problematic of the genealogy of the federalist idea. Although Montesquieucan be considered a the rst to promote the idea of federalism in modern politics,

it cannot be seen as the origin of all federalist thoughts in modern history. Treeapproaches of federalism, acknowledged as such by federalist scholars, take theirorigin in the early modern and modern political history, without direct link toMontesquieu. Tese three approaches have been developed by Johannes Althu-sius, Immanuel Kant and Pierre-Joseph Proudhon.

Althusius

It is in the context of the Germanic tradition described above that JohannesAlthusius (1557-1638) brought a specic model of organisation of society formhis book Politica Methodice Digesta, in 1603. Althusius was a Calvinist politicalpractitioner in the city of Emden in Germany, at the border with Te Nether-lands).

In Politica, he proposes a new organisation of society, in accordance with theProtestant revolts against Catholicism, and in the necessity to reform the organi-sation of society while the old Germanic system of the Holy Roman Empire wascollapsing during the Tirty Years War.38

38. Tis section on Althusius was mostly inspired by Tomas O. Hueglin, Early Modern Concepts for a LateModern World: Althusius on Community and Federalism(Waterloo (Ontario): Wilfried Laurier University Press,1999)., Hueglin and Fenna, Comparative Federalism: A Systematic Enquiry. and Tomas O. Hueglin, Lefdralisme dAlthusius dans un monde post-westphalien, LEurope en formation, no. 312 (1999).


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Frdric Lpine34


Althusius proposed a bottom-up organisation of society, that he called conso-ciation, in tiers including families and guilds, cities and provinces and a universalcommonwealth, with indirect representation at the higher levels. Te consocia-tions, as organic bodies, should be working on a self-governing base, and the

whole system should allow people to live together, resolving conicts throughconsensus.

Te idea of self-governing consociations, as well as the rule of consensusamong them, were going against the development of the modern centralised statethat had already started in Western Europe. Clearly, Althusius was against Bo-dins approach of absolute sovereignty, and he declared that there was no rightfor someone to govern on a perpetual and supreme basis, nor above the laws.39Terefore, he would rather be considered as a potential alternative to the latter.

Although his book was very popular at the time, it has been latter censoredand totally forgotten, until it was rediscovered by von Gierke by the end of thenineteenth century. Terefore, it is very diffi cult to integrate him in an interna-tional genealogy of federalism, before it was brought to the united States by CarlFriedrich in 1938. Still, it is worthy to mention it as some have considered itsconsociation as the rst modern theory of federalism.40

Althusius has its own approach of consociational society, based in his specicpolitical and religious thoughts, in a specic context of war, and earlier than the

classical federalist thinkers. As such, he did not use the federalist terminology andcould hardly be related to it.

Nevertheless, once he was brought back in the main streams of political sci-ence in the twentieth century, he had some legacy through Carl Friedrich, andthe consociational pluralistic democratic theory of Arend Lijphart, who took thename of his theory from Althusius.41

Te position of Tomas Hueglin is also that the Althusian concepts could beuseful to study federalism nowadays. In a globalised world where the sovereign

state is hollowing out, the early modern concepts of Althusius might nd a newinterest in the late modern world. Such assessment follows the line of this article,that in a world featuring at the same time fragmentation and integration, andparticularism and universalism, new concepts should be developed for the politi-cal organisation and new forms of democracy.

39. Hueglin and Fenna, Comparative Federalism: A Systematic Enquiry: 90.

40. Hueglin and Fenna, Comparative Federalism: A Systematic Enquiry: 90.

41. For instance, Arendt Lijphart, Patterns of Democracy: Government Forms and Performance in Tirty-Six Coun-tries(New Haven: Yale University Press, 1999).


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Kant

Still in the Germanic world, but later, and with every different perspective,philosopher Immanuel Kant developed his own approach of a federation of free

states. In his Perpetual Peace: A Philosophical Sketch, Kant aims at establishinga state of peace.42Considering that wars are made mostly by authoritarian sov-ereigns, at the expense of the people, his approach is grounded on the respect oflaws, as it is created by republics constitutions, and as it does implement freedomfor citizens and equality among them, which are embodied in the idea of justice.As the state of nature leads to wars, legislation, or civil constitution, must be im-posed and respected in order to achieve that aim.

In the rst section of his essay, Kant presents six rules to be respected among

states in order to prevent war, focusing mostly on preventing the domination ofsome states by other, and enforcing disarmament. Moreover, he is reluctant totreaties, as they can contain provisions for future wars.

In section II, more interesting from our concern, Kant establishes the threedenitive articles for perpetual peace.

Te rst article states that Te civil constitution of every state should be republi-can: for Kant, republics are more pacic than other forms of states, as they haveto ask for the consent of their citizens through the means of the separation of the

executive and the legislative. Still, these republics might not be confused withdemocracies, that Kant present as a form of despotism in a philosophical classicGreek tradition.

In the second article, Te law of nations shall be founded on a federation of freestates. As long as the state of nature is ruling the relations between states, Kantadvocates the republicssharing the same civil lawshould unite within a fed-eration, that could be extended further on, for a durable peace through interna-tional law. He insists on the fact that the association should be afoedus pacicumrather than a pactum pacis, as the former is the only one able create an organiclegal organisation able to end all wars forever.

In his last article, Kant advocates the creation of a world citizenship, limited tothe universal hospitality, where legal freedom and equality would spread amongthe whole human kind, and would reenforce the perpetual peace.

In Kants approach, peace is a moral imperative, and it has to be build throughdomestic and international laws.

At this stage, the federalist nature of Kants project should be addressed. Kantis dealing mostly with peace, international law and rights of the citizens, but notwith the structure of the state. Moreover, his reference to the federation seems tobe closer to the classical use of the terms in the Medieval law (foedus pacicum)

42. Immanuel Kant, Perpetual Peace: A Philosophical Sketch, (1795), http://www.constitution.org/kant/perpeace.htm.


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Frdric Lpine36


that to the unions promoted by Montesquieu or the American experiment. Even-tually, the authors he is referring to, are more related theJus gentiumthan to theinternal organisation of the state.

On the other hand, some elements are common to the federalist approach.

First is the idea of a contract between entities (republics) respecting each other.Second, by preferring thefoedusto thepactus, Kant seems to refer to more organicform of organisation than a simple treaty that could be denounced. Eventually,Kant acknowledges implicitly, through the limitation of world citizenship, thatthe implementation of peace through a large state goes against the diversity of thepeople, and that a federation is the only way to regulate peace.

Kant deals mostly with the moral imperative, and not with a form of organi-sation that he does not describe precisely. In fact, the idea of Kant might have

been an attempt to relaunch a form of christiana respublicafrom the Middle Ages.However, he shows the path to a enforcement of a public international law thatmight be considered as a form of confederation.

Proudhon

Te work of Pierre-Joseph Proudhon (1809-1865) presents a specic positionin this section, as Proudhon has been writing his federalist theory by the middleof the nineteenth century, long after the rst development of the modern politi-cal ideas. However, it appears that it cannot fall within the federalist genealogyof Montesquieu.

Living in France, and mostly in Paris, Proudhon knew about Montesquieu,and was contemporary of ocqueville, both being opposed the Constituent As-sembly of 1848. However, Proudhon does not take into account Montesquieusthoughts, nor his reference the Greek city-states. Neither he talks about Kant orocqueville.43It may seem surprising that Proudhon does not make any mentionof these authors when developing his own approach of federalism. For Dimitrios

Karmis, the reason might be found in a pretension to innovation of Proudhon,an attitude rejecting the works of his predecessors to emphasise the importanceof its own.44

We do not follow that assumption, and do consider the proper originality ofProudhons federalism.

First of all, Proudhon cannot follow the works of Montesquieu and oc-queville, as, in his nineteenth century socialist perception, he opposes the po-

43. Dimitrios Karmis, Pourquoi lire Proudhon aujourdhui? Le fdralisme et le d de la solidarit dans lessocits divises, Politique et Socits21, no. 1 (2002): 46.

44. Karmis, Pourquoi lire Proudhon aujourdhui? Le fdralisme et le d de la solidarit dans les socitsdivises, 46.Tis assumption of Karmis follows the suggestion of Pierre Larousse, author of the Grand dictionnaire universeldu xixesicle.


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litical and the social approaches, considering that the political approach leadsto despotismeven under the name of liberalismand the social approach toliberty. Terefore, there would be no reason for him to study them, as the modernstate appears as a tool for political alienation.

Moreover, the federalist semantic appears lately in Proudhons works, and isused to name a complex theory developed under the names of anarchism andmutualism. Tus, the federative principle appears as the achievement of an orig-inal work, rather the evolution of ideas that were actually independent.

According to Pierre Ansart, Proudhons thoughts can be divided in two peri-ods. A period of criticism of the society, featuring a deep socialist criticism of thesociety of his time, using mostly the semantics of anarchism, and a period moremature and moderate, from 1850-60 until his death, developing a federalist lexi-

cal choice.45In the rst period, Proudhon analyse the economic property and the capital

(Property is theft!), as the opposition of social classes and the State. He goes tothe conclusion that the State protects the private property and the capital againstthe working class, and leads to despotism. In this anarchist period, Proudhonfocuses mostly on economic structures, and considers the political ones as de-pendant of the former.

In the second period, Proudhon is seeking to nd out ways of organising a

society of liberty. In this new gradual approach, he takes into account other ele-ments that the ones directly linked to the economic structures. In the complexityof the Proudhonian thought, based on the dynamics of antinomies, very evolu-tive, sometimes contradictory, nurtured by passions and intuitions, it is diffi cultto draw a line between the periods. One can consider that it starts by the end ofthe 1840s, and nds its accomplishment in the 1960s, with the clear introduc-tion of the federalist semantics.

One of the elements that drive the evolution of Proudhon is his interest for

international politics, stimulated by the European events around 1848. He de-duces from them the necessity to introduce a specic eld of politics aside fromthe economic one, considering the dichotomy of war and peace and the principleof nationalities.

Tis will introduce a perception of federalism. Proudhon must have beenaware of the general idea of the federation as a political regime. However, it ismostly through Switzerland and the events of the Sonderbund that he takes itinto consideration. Proudhon was aware of the Swiss Confederation and its fed-

45. Pierre Ansart, Proudhon : Anarchisme ou Fdralisme ?, Les cahiers Psychologie politique, no. 16, jan-vier (2010), http://lodel.irevues.inist.fr/cahierspsychologiepolitique/index.php?id=1412, (Last accessed on08/04/2012).Te following lines are taken mostly of this recent article where Ansartrenowned specialist of Proudhonad-dresses the use of the federalist terminology in Proudhons writings.


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Frdric Lpine38


eral terminology: he had spent the rst thirty years of is life in the neighbouringFrench region of Jura, and he makes reference to it in writings from 1847.

Eventually, and may be mostly, it is in the use of federalist semantics in and af-ter the French revolution that he nds his inspiration and intuitions. Te federa-

tion refers to the association of French cities to present Registers of grievances tothe king just before the revolution, which will end up symbolically with the Ftede la fdration in 1790. It refers also to the position of the Girondins against theJacobins. On the other hand, federated referred also to some military troops ofthe Emperor. According to Ansart, this contradictory approach might have ledProudhon to refrain using the federalist semantics before the 1860s.46

Proudhon kept from this period a general sense of federation as a fraternisa-tion, the natural collective movement of unity, a spontaneous harmony of inter-

ests that would appear necessarily to replace despotism.47Tus, the federativeprincipletakes his roots from a Proudhonian intuition of a social tendency, andcannot be located in a federalist genealogy taking its roots in Montesquieu. Andthe consideration of Karmis seeing the Proudhonian federalism as a mixture ofProudhonian imagination, the new type of federalism (federation) and the oldtype of federalism (confederation)48appears as a contemporary analysis that doesnot take into account the genesis of the Proudhonian idea.

With this federative principle, 49Proudhon presents a normative theory of

the social organisation of liberty. Te Industrial agricultural federation would beorganised bottom-up through synallagmatic and commutative contracts in whichcontracting parties always keep a part of sovereignty and action greater that the onethey give up.50Proudhon uses federation to oppose it to the top-dow approach ofthe Jacobine organisation of the French State, and to promote the individual andcollective freedom. As such, Proudhon follows the general approach of federal-ism at the time, as a way to protect the individual and collective rights againstthe potential oppression of the sovereign state. However, in this new framework,

Proudhon contemplate a new vision of the state, saying that it could be releasedfrom its despotic feature once it is not centralised anymore, but subordinated tothe confederated governments.

A presentation of the legacy of Proudhon would be out of the scope of this ar-ticle. However, it can be said that it strongly inuenced the anarchist movement,

46. Ansart, Proudhon : Anarchisme ou Fdralisme ?.

47. Ansart, Proudhon : Anarchisme ou Fdralisme ?.

48. Karmis, Pourquoi lire Proudhon aujourdhui? Le federalisme et le de de la solidarite dans les societesdivisees, 49.

49. Mostly developed in La Guerre et la Paix, recherches sur le principe et la constitution du droit des gens (1861)and Du principe fdratif et de la ncessit de reconstituer le parti de la rvolution (1863).

50. Karmis, Pourquoi lire Proudhon aujourdhui? Le fdralisme et le d de la solidarit dans les socitsdivises, 47.


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as well the early organisation of trade unions in France. His work played also animportant role in the creation of the Spanish federal republic in 1873. Eventually,it inuenced the federalist perception of some parts of the Federalist Europeanactivism after World War II, namely the personalist and integral federalism of

Alexandre Marc and Denis de Rougemont.

Provisional Conclusion

Te development of the federalist idea before the American revolution, or inparallel to it, in the eighteenth and nineteenth has been signicant. However, thisset of thoughts is so plural that it seems diffi cult to nd out a common groundto it.

It follows diverse idiosyncratic and pragmatic experiences of unions of poli-ties, that can be seen from the Antique world, and have not called themselvesfederal, or called themselves federal following a semantic developed in the MiddleAges.

It is only in modern times, after the beginning of the conceptualisation of thefederative republic by Montesquieu, that the development of federalist thoughtsreally began, with Kant, with Proudhon, and with the Federalist Papers, as it willbe shown in the next section.

Although these early federalist thoughts are very different in their nature, theyshare a common feature: a bottom-up organisation of political entities based ona cooperative contract. Moreover, all these federalist thoughts share elements of acommon normative approach, as they are all seeking freedom and justice for thecitizens. In different ways, they are all opposed to the centralisation of power andauthority developed with the modern state, either to denounce the reasons of thestate or to balance it with a higher autority.

HE DEVELOPMEN OF HE FEDERALIS IDEA IN HE MODERN ERA

Te American experiment and the Federalist Papers

Te most important achievement of federalism in the modern era has cer-tainly been the innovative constitutional model developed by the American con-stitution of 1787. Its founding fathers were men nurtured by the philosophy ofthe Enlightenment, as well as by political experiences of the past and of theirtimes. Eventually, the rst American experience of the Articles of Confederation,

written in 1777 and implemented form 1781, paved the way to the writing ofthe Constitution.

It is only after the Constitution that the elements of the debate were formal-ised into articles gathered into on book, Te Federalist, or the Federalist Papers, in


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Frdric Lpine40


1788, written under the common pen name Publius, by Alexander Hamilton,James Madison and John Jay. Tis collection of papers, written at rst to inu-ence the vote of New York State in favour of the ratication and to prepare to fu-ture interpretations of the Constitution, notably through the rst amendments.

Considering the interest of the argumentation presented, it became quickly atheoretical reference to the Constitution and shaped further theoretical develop-ments to what can be referred to as the American federalism.

A strong literature has already been written on the American constitutionalexperience and on the Federalist Papers. Such article does not want to make an-other survey of it, but to insist on the major theoretical developments broughtfor further federalist studies.

An interpretation of the Federalist Paperssuggests that the most striking in-

novations are not about federalism: Te Founding Fathers of the Constitution,and mostly the two main authors of Te FederalistHamilton and Madison,would have been mostly concerned by the creation of the rst modern Repub-lic, considering as dominant features democracy and liberal thoughts. Somehow,they would have tried to achieve the democratic liberal project included into Brit-ish parliamentarism, but impossible to complete in London, due to aristocraticstructural lockings.

Such interpretation seems valid, as a comparative approach of the three revo-

lutionsEnglish, American and Frenchcould be done without taking intoaccount thoroughly the question of federalism. Terefore, it might be said thatmodern federalism appeared by accident, as the American republic was built ina political environment structured by an idiosyncratic federal-related practice.51

However, from a federalist approach, it appears that the federalist thoughtswere highly modied by this new American perception, as they were deeplylinked to the new denitions of the American republic and democracy. Moreover,the achievement of the American political project and the growing importance

of the United States in world politics led it to become a reference. Tus, this newperception of federalism framed the most important part of modern federalistthoughts.

Te rst major change, from our concern, is taken from Te Federalist No.15, where Hamilton writes, while criticising leagues of states,

If we still will adhere to the design of a national government, or, which is the samething, of a superintending power, under the direction of a common council, we mustresolve to incorporate into our plan those ingredients which may be considered as form-

ing the characteristic difference between a league and a government; we must extend

51. For more developments on the antecedents of American federalism, see Burgess, Comparative Federalism,Teory and Practice: 51-54.


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the authority of the Union to the persons of the citizens, --the only proper objects ofgovernment.

In such way, Hamilton advocates the Union to be a state by itself, and not

only a league of states. Tus he starts to frame the federation as a modern sover-eign state. Tere will be resistance to such conception in the Union itself, mostlyillustrated by the controversy on nullication developed by John Calhoun. Tedebate about nullication and the secession of the Southern American statesended dramatically with the Civil War (1861-1865), reinforcing the role of thefederal government. It is interesting to notice that the clear distinction betweenfederation and confederation appears in the English -speaking literature at theend of the nineteenth century, once solved that controversy.

Another element of the federalist debate that could be added to this brief pres-entation has been presented by Madison in Te FederalistNo. 51.

In a single republic, all the power surrendered by the people is submitted to theadministration of a single government; and the usurpations are guarded against by adivision of the government into distinct and separate departments. In the compoundrepublic of America, the power surrendered by the people is rst divided between twodistinct governments, and then the portion allotted to each subdivided among distinctand separate departments. Hence a double security arises to the rights of the people.Te different governments will control each other, at the same time that each will be

controlled by itself.

Tis argument, already touched by Montesquieu, shows the importance offederalism in the mechanisms of checks and balance of the American constitu-tion, and the reinforcement of the democracy in an anti-Hobbesian and anti-Rousseauist perspective.

Eventually, Stein synthetize the aim of the Federalist Papers in the followingway:

[] to create an institutional device designed to divide sovereignty and preventthe concentration of authority and power in a single decision-making locus. Its chiefobjective was to promote political pluralism and maximize liberty.52

Many other thinkers have been writing after the Federalist papers about theAmerican federal systemalthough it was not still clearly labelled this way.Among them are ocquevillein a sociologic approach of the American society53and on conclusions for a French liberal system, Bryce and Dicey. However, as

52. Michael Stein and Lisa urkewitsch, Te Concept of Multi-level Governance in Studies of Federalism,in2008 International Political Science Association (IPSA) International Conference; International Political Science:New Teoretical and Regional Perspectives(Concordia University, Montral, Qubec, Canada2008), 4.

53. Alexis de ocqueville, De la dmocratie en Amrique, 2 vols., vol. 1 (Paris: GF-Flammarion, 1981 [1835]).


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Frdric Lpine42


regards to the theory of federalism, there a lot of renements but not substantialchange. Tey all kept in the same methodology, descriptive and normative. Wehave to wait for the middle of twentieth century to nd out a new theoreticalapproach.

Te analytical approach

An important shift in the American federalist approach takes place by themiddle of the twentieth century, when the normative approach (democratic andliberal) is gradually replaced by an analytical approach, aimed at systematic em-pirical studies. Tat approach aimed at dening a conceptual approach of fed-eralism, in order to use it as a basis for systematic comparative federalism. Te

founder of the approach is Kenneth Wheare, in 1946,54

who developed a legalinstitutional concept of federalism.55He is followed by other scholars, that RufusDavis calls the twentieth-centry doctors or the inspectors of federal systems,56andit leads to a growing corpus of theoretical federal studies, apparently coherent,but plural in the types of approach.

In the presentation of the analytical scholars of federalism, which are mostlyidentied in the English-speakingmostly Americanworld, Rufus Davis iden-ties four different approaches, identied with some founding scholars: Kenneth

Wheare for Federalism [as] a matter of degree, William Livingston for Fed-eralism as a quality of society, Carl Friedrich for Federalism as a process, andDaniel Elazar for Federalism as sharing. 57Eventually, we would add RichardMusgrave and Wallace Oates for scal federalism.

In the scope of this article, the works of Carl Friedrich are of a particular inter-est, as their approach crosscut the distinction between domestic and internationalelds.

Carl Friedrich: Federalism as a process

Te work of the German-American lawyer and political scientist Carl Frie-drich (1901-1984) has gone through forty years and, as rightly noticed by Davis,has been mostly about renement and restatements in numerous sources.58 As

54. Wheare, Federal Government.

55. Michael B. Stein, Changing concepts of federalism since World War II: Anglo-American and continentalEuropean traditions, (Berlin: XVIth World Congress of the International Political Science Association, 1994),2.

56. Davis, Te Federal Principle: 155,163.

57. Davis, Te Federal Principle: 155-203.



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federalism is concerned, the core of his thought can be found in his major bookon the subject: rends of Federalism in Teory and Practice, published in 1968.59

Te main originality of Friedrich in American political sciences to considerfederalism as aprocess, more than as a design. rying to broaden the theoretical

scope of federalism, he seizes it as a process of federalizing, as dynamicsratherthan a pattern, a structure or a design.

Federalism is also and perhaps primarily the process of federalizing a political com-munity, that is to say, the process by which a number of separate political communitiesenter into arrangements for working out solutions [] on joint problems, and con-versely, also the process by which a unitary political community becomes differentiatedinto a federally organized whole. Federal relations are uctuating relations in the verynature of things.60

In this approach, Friedrich gets out of the constitutional theory, dominant inthese times, and takes into account the dynamics of changes in political organisa-tions through the lens of federalism. He applies it to the United States, and aswell to the Holly Roman Empire, the colonial organisations, and any kind of alli-ance and decentralisation. Terefore, he crosses over the traditional constitutionalborder of sovereignty, considering domestic and international political dynamicsas phenomenons of the same nature.

We do consider that the work of Friedrich holds a specic place in the studiesof federalism in the history of federalist thoughts. Firstly because his theory ofdynamics of federalism brings into the American studies of federalism conceptsand theories developed in Europe before World War II. Secondly because he isthe rst one to leave opened a connection between political phenomenons of thedomestic eld and of the international eld.

Firstly, Friedrich, born in Germany and speaking uently German and French,has been able to consider and rene federalist theories coming from the old con-

tinent. Te hypothesis of the author of this articlehypothesis that has yet to beconrmedis that Friedrich has been a bridge between the German and Frenchfederalist traditions before World War II and the American political science.

From the German tradition, he brought in 1932 into the American politicalscience the work of Althusius, rediscovered by historian Otto von Gierke in Ger-many by the end of the nineteenth century.61

59. Carl J. Friedrich, rends of Federalism in Teory and Practice(New York: Frederick A. preaeger, Publishers,1968).

60. Carl J. Friedrich, Te Teory of Federalism as a Process, in rends of Federalism in Teory and Practice(New York: Frederick A. preaeger, Publishers, 1968), 7.

61. See i.e. Otto von Gierke, Political Teories of the Middle Ages, trans. Frederic William Maitland (Cambridge:Cambridge University Press, 1900).


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Frdric Lpine44


More important in our concern, he brought also parts of the legal studies tra-ditions from Germany and France. Tus, he had been inuenced by the Germantradition of Gierke and Georg Jellinek, and their attempt to comprehend the le-gal organisation of German States, from the Holy Roman Empire and the West-

phalian reaties. As well, the studies of Lon Duguit, Louis Le Fur and GeorgesScelle in France inuenced his approach. Among others, Proudhon was an im-portant inuence for French legal scholars. In both cases, the debates were on thesovereignty of the State, on monism and dualism in international law, and on thespecic place of political federalism, attaching a specic importance to historicaland sociological dimension. A specic attention might be brought to GeorgesScelle: his idealistic approach of law based on an integral monism addressingsovereignty; his perception of the federal phenomenon lying beyond and outside

the State; his conception of a federalism by segregation, going against the clas-sical approach of federalism by integration; all these concepts paved the way ofFriedrich federalist approach.62

A second important dimension of Friedrich thoughts in federalism is that heis the rst to consider openly the necessity to remove the concept of sovereigntyto understand federalism. He considers his dynamic approach as the beginning ofthe end of the traditional juristic notions, preoccupied with problems of sovereignty, of

the distribution of competencies, and of the structure of the institutions.63

No sovereign can exist in federal system; autonomy and sovereignty exclude eachother in such a political order [] No one has the last word. Te idea of a compactis inherent in federalism, and the constituent power, which makes the compact, takesthe place of the sovereign.64

However, although Friedrich was a very active scholar in his times, he didnot leave a specic school of thoughts after him. Some could consider that thereason was that his concept of federalizing process was not enough dened and

too subjective, and therefore unable to reach a high degree of specic theoreticalrenements. For instance, it is diffi cult to dene how far a specic policy can beconsidered as an element of the process of changes.65It may be the reason whyWilliam Riker discredited rends of Federalism in Teory and Practice.66 Moreseriously, Davis argues that the process leaves unanswered the question of the

62. Hubert Tierry, Te Tought of Georges Scelle, European Journal of International Law1, no. 1 (1990).Georges Scelle,Manuel lmentaire de droit international public(Paris: Domat-Montchrestien, 1943).

63. Friedrich, Te Teory of Federalism as a Process.64. Friedrich, rends of Federalism in Teory and Practice: 6, 8.


66. Since Friedrichs book consists of snippets of papers written for various other publications, mostly governmentallysponsored reports, we can ignore his book as a survey of conventional ideas. William Riker, Six Books in Search ofa Subject or Does Federalism Exist and Does It Matter?, Comparative Politics2, no. 1 (1969): 137.


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pattern of theses associations, as the process leaves opened the form a federalorganisation should have.67

Some of these criticisms are to be taken very seriously. For instance, the toogeneral approach of Friedrich does not leave the place for detailed explanatory

renements, but is it the role of macroscopic approach to include all mesoscopicor microscopic developments?

Our position would be that Friedrichs demonstration came too early, in theframework of a scientic community focusing mostly on the patterns of federal-ism, in a world where the distinction between domestic and international eldswas not yet challenged.

aking into account the main federalists thoughts developed in Europe beforeWorld War II, Carl Friedrich paved the way for new developments of federalism

into the European integration, and for new developments of federalism in thecontext of globalisation.

Daniel Elazar

Daniel Elazar (1934-1999) is one of the major author on federalism of the endof the twentieth century. Interested in normative as well as in analytical federal-ism, his thoughts evolved from the fties to the nineties. Elazar was rst knownfor his denition of the federalism as a covenant, as a public and moral contract:

A morally informed agreement or pact between people or parties having an inde-pendent and suffi ciently equal status, based upon voluntary consent, and established bymutual oaths or promises witnessed by the relevant higher authority.68

However, he developed also a larger vision of federalism based on a non-cen-tric model, from the American experience, as it is presented in the next section. Itled him to a very extensive vision of federalism as self-rule and shared rule, even-

tually cross-cutting the distinction between domestic and international elds.Considered as self-rule and shared rule, federalism [] involves some kind ofcontractual linkage of a presumably permanent character that (1) provides for power

sharing, (2) cuts around the issue of sovereignty, and (3) supplements but does not seek

to replace or diminish prior organic ties where they exist.69

In the same way, Elazar perceived that the evolution of the idea of the sov-ereign state of political interactions of the post-modern epoch, and the interestto go beyond that idea. Tese elements will be extensively developed in the nextsection.


68. Daniel Elazar Te political Teory of Covenant, Publius, 10:4, 1980.

69. Elazar, Exploring Federal

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