Introduction

Belgrade Faculty of Political ScienceMaster Course on

Compound Government

Prof. Thomas FleinerGuest Professor

November 1 to November 152011

Issues:

1 Democracy Political Parties

2 Rule of Law

3 Human Rights

4 Minority Rights, Right of Self-Deter- mination

5 Autonomy: Legal, Economy, Political

6. Participation

7. Competition with federation otherFederal Units

Problems:

Balance Shared Rule Self RuleCentralization - DecentralizationInterconnections: Federation – Fe-Deral Units cooperation betweenFederal UnitsFiscal Federalism and economicAutonomy, factual and legal autono-my, equalizationInternational cooperation

Legitimacy: Federation – Federal Units

Rule of Law

Complexity

Notions:

Federalism

Compound Government

Sovereignty

Lectures:

Distribution of Powers

Power - Sharing

Fiscal Federalism

Minority Rights

Decon-centrationadministra-tive Decision OrderRevoca-tion

Decentrali-SationLegislationAutonomyResponsi-BilityFinance

FederationConstitu-TionConstitu-tion ma-kingLegitimacy

Confede-RationTreatyLegitimacyInternatio-nal court

FederalismUnitary state - Confederation

Decentralization

Variations between federations

• Degrees of diversity• State of the pre-federal state(s)• Legal system

– Legal philosophy– Doctrine

• History• Other?

Institutional building blocks: overview

• A division of powers• Two (+) spheres of government• A division of resources• Constituent representation in central

institutions• (some) constituent autonomy with own

institutions• Prescribed common standards in relation to, for

example, governance, rights, economic union• Entrenched Constitution, effectively enforced

Two spheres of government

• Representing the people, grouped in different ways, allowing the emergence of different majorities & minorities

• How many units?– Not too many, not too few…

• Borders. – How are they drawn & changed?– According to what criteria?

• Symmetry or asymmetry

Division of powers• What powers?

– Potentially, legislative, executive, judicial

• How?– Horizontal/vertical/mixed– Exclusive/concurrent/shared– Provision for co-operation?

• Who gets what?• NB:implications of the answers to these

questions for the institutional structure of all governments

Division of resources• This includes taxation, other revenues,

loan funds, grants• Mechanism likely to be influenced by

the approach to the division of powers– Horizontal/vertical– Exclusive/concurrent

• Fiscal Equalisation– Bases– Process– Constitutional mandate?

Challenges

Each federation has a set of interlocking institutions with a structural logic of their own, through which the values of both federalism and constitutional government are metThe operation of these institutions may be affected by the wider contextBoth logic and context need to be appre-ciated to understand another system (and to borrow from it)

Some Examples of Prototypes

United StatesPresidential

System2nd chamberCompetitiveFederalismGoal of FJudiciary

GermanyParliamentary

System2nd chamber

ExecutiveFederalismGoal of FJudiciary

SwitzerlandDirectorial

System2nd chamber

ExecutiveFederalismGoal of FJudiciary

Some examples of adaption

AustraliaAmerican

System withParliamentaryGovernment

And one Common Law

SwitzerlandAmerican

SenateFrench legal

SystemDirect

Democracy

EuropeanUnion

GermanSecond ChamberDirectorial

System

Concluding Remarks

Comparing political systems requires a clear notion of the point of Reference

This point can be one of the two governmentalsystems

Tertium comparationis: Principles of GoodGovernance e.g. accountability, legitimacy,Transparancy, corruption

Democracy

Of the people – by the people – for the people

Why D

em

ocr

acy

?Liberty- Self-Determination

Finding the Truth

Rational Conflict Management

Efficiency Majority

Participation - Legitimacy

Accountability

Limit Governmental Power

Democracy, Legitimacyand: …...

Efficiency

FragmentedNations

Transition

Globalization

Equality

Liberty

Rule of Law

Tyranny of theMajority

Transparency

Typ

es

of

Dem

ocr

acy

Procedural Substantial

Direct Represen-tative

Semi-direct

Winnertakes all

Consociacional Democracy

Party SystemElectoral SystemSeparation of PowersInformation and MediaAccountabilityParticipationCapacity to deliverEffective administration

Democracy:Of the peopleBy the peopleFor the people

DecentralizationLocal GovernanceMinoritiesFiscal GovernanceCollective RightsMinimize CorruptionCooperation

Problems ofDemocracy

LobbiesPrinciple

Of Oligarchie

Corruption Public InterestEconomy

ExclusionForeigners Minorities

Volonté Générale v.Volonté de Tous

Media

RepresentativeDemocracy

Representation Constituency

Pluralism of Parties

The whole peopleVolonté Générale

Higher being

Volonté de TousInterests

Electoral System

People

55%

Parliament

Executive

Ele

ctio

ns

45%

Parties inGovernment

Semi-directDemocracy

Parliament

Parties

Economy

People:Elects and

decides

Executive

Admini-stration

VolontéGénérale?

Separation of Powers

Division of Labour

Separation of Powers

Checks and Balances

New ChallengesMediaTerrorismGlobalizationMigration

Limits of Sovereignty Bonhams CaseIndependence of JudiciaryImpartiality of JudgesProfessionalism of Judicial SystemAccess to JusticeFairness of procedureAdversary – inquisitory procedureJury - TrialRight to defenseTimeMediator - Ombudsperson

Rule of LawThat men are ruled by law an not by men

Justice must be seen to be done

Constitutional CatalogueRestrictionEmergencyReference to international lawFairness in ProcedureSubstantive due ProcessConstitutional – Administrative review(access to justice)

Human RightsGolden Rule: Just as you want

others to do for you, do the same for them;no discrimination

Human DignityExpressionInformationReligionPropertyAssemblyInformationFour freedomsEconomic andSocial Rights: Educa-tion, health, labor, housing

Main Problems ofConstitutions

Judicial Independence and access to justice

Vagueness - implementation

Consistency

Decentralization

Transparency

Corruption

Accountability

Human Rights – restrictions - emergency

Constitutional Amendments and Revision

Constitutional review

Referendum

Conclusions

Criteria

Input - output

Minorities

Tra

nsp

are

ncy

Acco

unta

-bility

ParticipationCapacity to Learn

Legi

timac

y

Rule of Law

Efficiency

Minimalis

e Hum

an

Failu

res