Book Review: ‘Comparative Federalism: Constitutional Arrangements and Case Law’ by Francesco Palermo and Karl Kössler (Hart Publishing, 2017)

On 22nd January a roundtable discussion will be held at Scuola Superiore Sant’Anna in Pisa to launch Francesco Palermo’s and Karl Kössler’s recently published book ‘Comparative Federalism: Constitutional Arrangements and Case Law’ (Hart Publishing, 2017). The panel will be chaired by the ConstPol working group’s adviser Professor Gábor Halmai and will feature Timothy Jacob-Owens, one of our current coordinators. Timothy sets out his views on the book in the review below.

Book Review: Comparative Federalism: Constitutional Arrangements and Case Law by Francesco Palermo and Karl Kössler (Hart Publishing, 2017)

by Timothy Jacob-Owens, European University Institute

Comparative Federalism is the product of an approximately ten-year collaboration between Francesco Palermo and Karl Kössler. The authors’ stated aim is to provide a practice-orientated guide to the ‘federal toolkit’, i.e. the systems, institutions, and instruments which have been developed around the world to facilitate self-rule and shared rule, aimed at lawyers and non-lawyers alike. Their approach is functional rather than formalistic, with the notion of ‘federalism’ understood in very broad terms. Examples are thus drawn from a rich variety of states, though predominantly Western, including both ‘classical’ federations, such as the United States (US) and Germany, and countries which have not traditionally been considered ‘federal’, either by scholars or by the countries themselves, such as the United Kingdom (UK). This inclusive approach is refreshing and serves to broaden the book’s appeal.

Comparative Federalism is divided into three main sections: ‘Foundations’, ‘Self-Rule and Shared Rule’, and ‘Powers and Policies: Between Autonomy and Homogeneity’. The first section sets out the theoretical and historical background to present-day federal arrangements. The chapter on ‘Concepts’ provides a fairly brief but helpful outline of two relevant theoretical traditions, one Anglo-American and the other Continental European. There follows a rather longer discussion of the notion of ‘regionalism’, with a particular focus on regionalism within the European Union (EU). This is perhaps more detailed than is strictly necessary and may be partly symptomatic of the Eurocentrism that also emerges elsewhere in the book. The chapter on ‘Manifestations’ provides a useful typology of federal arrangements from confederations to devolution, while the ‘History’ chapter covers the historical development of federalism from Ancient Greece and Israel to the modern archetypes of the US, Switzerland, and Germany. The final chapter on ‘Debates’ explores theoretical discussions concerning the divisibility of sovereignty, with considerable space devoted to federalism and divided sovereignty in the EU. The chapter also presents engaging and timely discussions of federalism in an age of pluralism and in relation to diverse societies, including the legal status of minorities and the role of federal arrangements in participatory democracy. This discussion could perhaps have been enriched even further by reference to the concept of non-territorial autonomy, particularly given the authors’ previous work on this topic.[1]

The second section, ‘Self-Rule and Shared Rule’, examines how constitutional frameworks and mechanisms provide for ‘a certain degree of shared rule through common institutions and powers at the national level, as well as for a certain degree of self-rule by regulating the scope of subnational units’ jurisdiction and powers’ (p. 125). The entire section is supported by thorough case-law analysis. Unsurprisingly, the authors draw heavily on examples from the US and Germany, but also include a range of cases from elsewhere in the world. One of the main themes running throughout the section is that there appear to be more or less as many variations on a given mechanism or institution as there are federal systems. As the illuminating examples demonstrate, the precise nature of the solution chosen is highly contextual and generally depends on the historical and socio-political circumstances of the national or subnational entity concerned.

The first chapter in this section deals with the autonomy of subnational entities, i.e. ‘the degree of their self-rule’ (p. 125), focusing on four key areas, namely constitutional autonomy, legislative powers, administrative powers, and judicial powers. The second chapter explores the participation of subnational entities at the national level through institutions, such as second chambers within the legislature, and through procedures, the ‘most significant’ among which are constitutional amendment procedures (p. 178). In the third chapter, the authors examine financial relations between different levels of government, including revenue and spending powers, which, in their view, are ‘decisive as to whether legislative and administrative autonomy’ can be realised in practice (p. 201). The fourth chapter focuses on the prevention and resolution of intergovernmental conflict through intergovernmental relations, ex ante scrutiny of subnational law, and through constitutional adjudication.

Perhaps the most interesting chapter in this section is the final one on local government, which provides a timely discussion of the part played by local authorities within federal systems. As the authors observe, federal systems have traditionally been conceived in dualist (national vs. subnational) terms, with no clearly defined role for local government. However, ‘this seems to have changed’ in more recent years (p. 281), raising the question of whether it can now be considered a ‘genuine third level’ (p. 314). The authors point to the constitutional recognition of local government in states such as Brazil and South Africa as offering evidence of a strengthened role, but ultimately conclude that it plays ‘at best a junior role in a system of “two and a half partners”’ (p. 315).

The third and final section of the book is devoted to the scope and content of subnational entities’ autonomy in the context of five highly topical policy areas, namely fundamental rights, social welfare and healthcare, environmental protection, immigration and migrant integration, and external relations. This section is the book’s most innovative. The five policy areas are considered in separate chapters, each of which contains a comparative analysis of five countries. The countries selected are different for each policy area, though most reappear several times, with the US and Canada featuring particularly prominently. The authors explain that the case selection was guided by a desire to compare ‘model countries’ within each policy area, rather than select a predetermined group of countries to compare across all areas (p. 5). A common thread running throughout this section is the tension between variation arising from the autonomy of individual subnational entities and a need (or at least desire) for equity through homogeneity at the national level.

In the chapter on fundamental rights, the authors observe that subnational constitutional ‘space’ for rights entrenchment is typically restricted by the national level (p. 341). This restriction of subnational autonomy is achieved through national constitutional provisions, such as general supremacy clauses, through an obligation to obtain approval for a subnational constitution from a national institution, and/or through restrictive interpretation of subnational rights by a national apex court. The analysis indicates that subnational entities make varied use of their remaining constitutional autonomy, often linked to their particular historical and/or socio-political circumstances. For example, Catalonia and Quebec have utilised their ‘constitutional space’ to create their own bill of rights, which is ‘regarded as a symbol of identity and of a nation-building process’ (p. 344).

The importance of financial relations is highlighted in the chapter on social welfare and healthcare. The comparative analysis indicates that taxation and spending is typically dealt with at national level, while infrastructure provision and implementation of services generally falls within the competence of subnational entities. However, clear delimitation of competences is particularly difficult in this policy field and the authors identify a general trend towards ‘cooperative federalism’ (p. 376). This shift towards ‘cooperative federalism’ is also apparent in the area of environmental protection, a policy field that is arguably more ‘transversal in character’ than any other (p. 400) and in which multi-level governance plays a key role.

In the chapter on immigration and migrant integration, Palermo and Kössler observe that the former typically falls exclusively within the competence of national governments, while subnational entities generally play a crucial role in relation to the latter, given their powers in the key fields of employment, education, housing, and healthcare. Subnational entities are also often responsible for specific migrant integration measures, such as language and orientation programmes. The authors note that subnational efforts are more active in more culturally distinct jurisdictions, such as Quebec, and it would have been interesting if they had explored more deeply the cultural aspects of migrant integration, for example as regards language and identity.

The chapter on external relations focuses on the distribution of external powers, the maintenance of external relations, and the creation and implementation of international law. The analysis reveals that external relations by subnational entities are ‘widely recognised’ (p. 443) and are maintained for the purposes of, inter alia, environmental protection, economic interests, and cultural exchange. While the implementation of international law in federal countries relies on subnational cooperation, the role of subnational entities in the creation of international law is essentially restricted to participation in the exercise of national treaty-making power, rather than their own ius contrahendi.

In the book’s concluding chapter, Palermo and Kössler contend that while ‘there is no general recipe for the right mix between self-rule and shared rule’, the required federal ‘tools’ are ‘in the box’; what remains is to explore and understand their implementation within increasingly diverse societies (pp. 448-9). The authors conclude by proposing a forward-looking research agenda focusing on ‘the four “Ps”’, namely (1) the management of pluralism in all its forms, (2) procedures, inter alia, for decision-making and the inclusion of non-governmental actors, (3) participation and participatory decision-making beyond institutional participation, and (4) policies, in particular their implementation on the basis of legal norms and their interpretation by courts.

Overall, Comparative Federalism is a comprehensive and insightful reference work on the practical implementation of the ‘federal toolkit’, supported and enriched by informed historical and theoretical framing. The book is generally accessible, well laid out, and clearly written, with few serious grammatical or stylistic insecurities and only very occasional typographical errors. The book will appeal to a wide readership, most obviously those working on federalism and power-sharing arrangements from the perspectives of, inter alia, constitutional law and political science, as well as those interested in such topical issues as participatory democracy and multi-level governance.

[1] Cf. e.g. Karl Kössler, ‘Conclusions: Autonomy Beyond the Illusion of Ethno-culturally Homogeneous Territory’, in Tove H. Malloy & Francesco Palermo (eds) Minority Accommodation through Territorial and Non-Territorial Autonomy (OUP 2015), 245-272.