Federalism: A Normative Theory and its Practical Relevance

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Federalism: A Normative Theory and its Practical Relevance Kyle Scott New York, London : Continuum ( 2011 ), 216 p ., ISBN 9781441177148

Whatever the famous three things that make a good book – Scott’s latest on federalism has them all. For one, there is unity in the idea that federalism “is our last, best hope” (p. 195). Federalism is good because it does good, provided a three-step “alarm bell” is put in place for the protection of minorities: Nullification, Veto, Secession (“NVS”). Then there is balance between innovation and familiarity. Deliberation, direct democracy and civic community have become ever less contested concepts in political science. But systematically paraded by a theory of justice, liberty and human “telos” they shine in bright new light. Finally, while in “beginning a theory of federalism” (chapter one) the emphasis lies on theory more than on federalism, one rarely feels lost in the diversity of time, thought, space and context. Enlightened by Aristotle, Plato, Althusius, Tocqueville, Montesquieu, Locke and Calhoun we learn how federalism could solve conflicts in Sri Lanka, Israel and Iraq. Unity, balance and diversity make for a good book. Not by chance are these also federal concepts.

It is a thin, but elegant book. The following six chapters build on the first. After the “beginning”, federalism is “saved from relativism” in a provocative attack on modern atomism. If unity means imposed homogeneity, it also means unnatural paralysis (chapter two). Then follows a justification of what federalism is not. Specifically the US court-system is an only inadequate protector of federalism because it deliberately conflates “sovereignty” with state authority (chapter three). Chapters four to six discuss nullification, veto and secession, respectively. The final chapter on “exiting the echo chamber” confronts isolation and polarisation with community and moderation (p. 182), showing how federalism enhances the latter two. But after so much has been said, even more is left for the reader to elaborate upon, be it theoretically or practically.

Precisely this practice is what Scott succeeds the least in reconciling with his brilliant account of how federalism, by breaking up the nation-state into small-scale societies and thereby “revitalizing civil society” (p. 176), promotes compromise, humility, moderation and justice. An example: the procedure proposed by “a constitutional inclusion of secession” (p. 139) starts off with “town hall meetings […] called either by the people or a representative in the state legislature” (p. 164). (The US serve throughout the book as experimental template: “state” here means region, province, canton.) These meetings are “exploratory”, but “unanimity is required” to move ahead (ibid.). The second step is a referendum, the third “approval” by the state legislature (p. 165). Forth, the citizenry has to “certify the vote” by simple majority (p. 166). In the event that the people vote against secession in this final referendum, the state legislature can “override the voice of the people with a three-fourths vote in favour of secession” (ibid.). The result is not deadlock, for Scott, but rather “a repeat of steps two and three indefinitely” (ibid.). And after all that, the people “still have the choice between exit, voice and loyalty in their new country” (ibid.). This seems like a very protracted and complicated procedure. What is normatively desirable – moderation, accountability, balance – may simply not be practicable. Deliberation attempts backfire into frustration at inaction.

The three “case studies” remain similarly attached to the theoretical body, rather than forming a constitutive element. This should however not deter from the core of Scott’s theory on federalism, which deserves to be met on its own terms. The theory builds on deliberation, community and scale. Deliberative democracy “forces citizens to come to a reasoned agreement” and is itself “inherently natural” (p. 35), because social interaction, of which deliberation is a category, is human. The problem deliberation theorists have had in the past was its workability. But “federalism should be seen as, and can be become, a method by which deliberative settings can be created because federalism localizes decision-making” (p. 39). A discussion of Althusius makes clear where modernity has got it all wrong: individualism and communalism are not antithetical, but complementary. For Scott: “the individual owes its humanity to the community, but owes it to itself to maintain that community since an individual must be in a community to be human. […] And because of their shared nature, individuals owe it to each individual, not just themselves, to aid in the creation and preservation of community” (p. 7). This triple obligation weaves community into deliberation. Both are facilitated by, and give meaning to, scale, the marble block in Scott’s theory of federalism.

Scale, at first sight, means little more than territorial extension: area. But from the very beginning the term is normatively charged: “The proper scale of the constituent parts [of a federation] is determined by human nature so as to create an environment conducive to the pursuit of the higher good” (p. 1). Scale has a meaning, a function, an end – the creation of public space for deliberation and the maintenance of collective identity. In Althusian terms: to foster “communication” and permit “association”, respectively. The finality of scale is creatively buttressed by Aristotle’s conception of friendship, based on “consistent contact”, “close physical proximity” and the “recognition of another’s desires and needs relative to one’s own in order to create a policy which does not sacrifice one for the other” (pp. 20–21). Combining Aristotle with Althusius prepares the ground for Tocqueville: “communal institutions are for liberty what primary schools are for science” (cit. on p. 28). A “theory of federalism” so construed will “rectify tensions between ancient virtue and liberal values” (p. 39).

For the Swiss reader, there is much confirmation, some repetition and a small confusion. The repetition lies with using the Swiss referendum as a model for institutionalising nullification in the fourfold hope of citizen deliberation, political system legitimacy, minority protection and overall depolarisation (pp. 101–3, also p. 120 and p. 171). The experience with peculiarly recalcitrant cantons, in matters of female enfranchisement for example, is omitted. Confirmation lies with qualifying the referendum as democratic both on substantivist and proceduralist accounts (p. 113), the mentioned small-scale societies (p. 51) and of course the value of federalism itself. Confusion arises through the – typically Anglo-American? – antithesis of “government” and “people”, as when the effect of Calhoun’s “negative power on government” is explained: “[W]hen the costs of using one’s veto to force inaction are higher than consenting to policy in order to allow action, a group or interest will choose to consent or withhold its veto. Government action is therefore limited to those things that are absolutely necessary. Therefore, if there are things that people want done, but are not necessary, they must do so through means other than the government” (p. 176). In this conception, “government” can only refer to central government. The very purpose of scale within federalism is that people at several levels have their own government: local, regional, cantonal, provincial etc. Even Scott admits that “[i]t is necessary to go local if one wants to get the positive attributes of federalism” (p. 114). Moreover, if the scale is “proper” enough, citizens themselves can act on a honorary/part-time basis, drawing us even closer to Rousseau’s identity of rulers and ruled (p. 121). The fact that in Swiss municipalities this tendency is decreasing, as at the same time a reason and a consequence of communal mergers, should serve as admonition.

On the other hand, if governments can err, so do “the people”, and surely some framework (rule of law, ius cogens etc.) must be respected. The “direct” in direct democracy is not always democratic, nor always compatible with federalism. But the beauty of federalism is precisely that in order to maintain unity, diversity (of identity or opinion) is promoted; and to maintain diversity, some unity (of protection or democracy) must exist. The unity of Scott’s book is that in arguing for federalism, humility and community are promoted as intrinsic human values; its diversity, three peaceful safeguard clauses (NVS) in the event of disunity. The book’s balance, however, will be even more fully achieved when some of its stimulating normative recommendations find their way into the brutal realities of war-torn societies.

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