The idea of federalism is an ancient one and scholars trace it back to the earlier periods of ancient Israel, the Roman Empire, the age of Reformation, the early modern republics and to the modern federalists (Elazar, 1987: 4, 18-153; King, 1964: 8-10; and Watts, 1996: 2). Here, we are not concerned with the history of ancient federations which were different from the modern ones. They (the ancient federations) were loose confederations for trade and commerce, and defence purposes only. However, the ancient idea of a federation played an important role in transforming the world states into federations. The ancient federations were confederal in arrangement; they lacked the strength or ability to get things done
(Ricker (1964: 9 and Bhattacharyya, 2010: 11).14 For instance, the American confederation before 1787 could be described as:
[I]t may make and conclude treaties, but it can only recommend the observance of them …. It may appoint ambassadors, but cannot even defray the expenses of their tables. It may make war, and declare what numbers of troops are necessary, but it cannot raise a single soldier. It can declare everything, but can do nothing (Baker, 1891: 11-12).
It was these shortcomings which led the states towards a more adequate and effective arrangement for their polities. In this regard, the creation of the American federation in 1787 under the Philadelphia convention is regarded as the first modern federation, and from there the idea gained popularity (Watts, 2008: 2, 2007: 3-5, 1996: 3; and Elazar, 1987: 6-11).
The term federalism is derived from the Latin word foedus, which means covenant, alliance or agreement and contract amongst individuals or collectivists/collectivities, with the aim of promoting common interests of covenant parties (Karmis and Norman, 2005: 5-6; Elazar, 1987: 5; and Riker, cited in Goodin et al, 2007: 612-617). The common interests of covenant parties may be of various kinds. For instance, in the case of the US, these common interests may be to defend their country from possible external military threats or and to secure greater economic benefits, while in the post-colonial federations such as India and Pakistan, they may be to keep the unity of a disparate population. In fact, the federations of India and Pakistan are the products of anti- colonial nationalism. The states which they formed after independence were almost always fragile and hence the political elite were anxious about the stability of the state. This anxious nationalism often led to privileging of stability and unity over diversity in federalism in such states.
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Theoretically and politically, federalism (or a federation) emerges when two or more than two sovereign or independent entities sign a contract to work together for larger common interests. One should not confuse federalism or federation with other similar but different forms of organizations such as confederation, association, unions, federacies, associated states, condominiums, and leagues, because in a federation it is the federal/central government which possesses the ultimate sovereign powers (Watts, 2001; Elazar, 1987; and Dikshit, 1971). As McKeever et al (1991) mention, federalism is a political concept and a system of government under which various regions come together and establish a federation wherein the covenant parties remain bound by an agreement and constitutionally the sovereignty is divided between the federal government and the constituent units. Under federalism, it is the federal/central government which possess the ultimate sovereign powers, at least in external affairs, because sovereignty itself is indivisible, non-transferable and inalienable as per the theories of international relations. As Hans J. Morgenthau states, “sovereignty over the same territory cannot reside simultaneously in two different authorities, that is, sovereignty is indivisible” (Morgenthau, 1948: 350). Therefore, it can be said that to divide sovereignty is to destroy it altogether because it is not possible to have two sovereign bodies within one and the same state, and if otherwise, then it would simply mean dissolving the state into many parts. For that reason, the indivisibility, inalienability, and non-transferability of sovereignty is one of the necessary conditions of the unity of the state, whether it is federal or unitary (Bartelson, 2011). By sovereignty, in the framework of a federation, I mean the constitutionally delegated powers assigned to each level of government for the purposes of legislation, execution, administration and taxation only.
Before going into further details, it is pertinent to differentiate between the three terms i.e., federalism, federation and federal political system, because a study of the relevant literature on federalism indicates that these terms carry different meanings for different scholars.
According to Freeman (1893) federalism and federation are mechanisms of compromise between two political but opposing forces or two extremes i.e., small states and single great state. Wheare, in his classical work The Federal
Government, states that “by federal principle I mean the method of dividing
powers so that the general and the regional government are each, within a sphere, co-ordinate and independent” (Wheare, 1946: 10). Wheare’s Federal Government looks at federalism from a legalistic perspective essentially based a comparison of the federal constitutions and governments of USA, Canada, Switzerland, and Australia. This legalism in his work has been criticised by later scholars and researchers such as Livingston (1952), Riker (1964) and others. Livingston, in his article ‘A Note on the Nature of Federalism’ (1952: 83-84), is very critical and opines:
The essential nature of federalism is to be sought for, not in shapings of legal and constitutional terminology but in the forces - economic, social, political, cultural - that have made the outward forms of federalism necessary….The success of federalism lies not in the institutional or constitutional structures but in the society itself. Federal government is a device by which the federal qualities of the society are articulated and protected.
Thus, besides the constitutional legalities and structures of federalism, the principles and practices adopted by governments are also important elements in the operation of any federation. Furthermore, Watts states that ‘federalism’ is a normative term while ‘federal political systems’ and ‘federations’ are descriptive ones; federalism refers to the advocacy of a multi-tiered government characterized by the elements of shared-rule as well as regional self-rule, while federal political
systems and federations are terms applying to a particular and specific form of political organization (Watts, 2008: 8-11 & 1996: 6-7). In essence, federalism is a form of government and mechanism that aims at achieving both unity and diversity by accommodating and promoting distinct identities within a larger political union on some fixed constitutional basis (ibid, 2008 & 1992 and King, 1982).
Federalism and federation, like most of the concepts in the realm of social sciences, are contested and debatable. One reason for such contestation and debate of these terms is that there is no single ideal form of federalism around the world and every federal state follows a different model. There are states which are federal but have different types of governmental set-ups and structures that can be presidential (the USA), parliamentary (India, Canada, and Australia), and a hybrid of the two (Germany, Austria, Switzerland and so on). The following definitions will make clear what is meant by federalism or federation in this chapter.
According to Elazar (1987: 7), “[a] federation is a polity compounded of strong constituent entities and a strong general government, each possessing powers delegated to it by the people and empowered to deal directly with the citizenry in exercise of those powers.” Riker defines federation as a “set of constituent governments [that] acknowledge that a federal government has authority over all their territory and people for those functions covering the whole territory, while they retain for themselves those functions related just to their own territories” (Riker, 2007: 11). For Dikshit (1971: 98), “federation is born when a number of usually separate or autonomous political units (or units with some pretentions to autonomy) mutually agree to merge to create a state with a single sovereign central government, but retain for themselves some degree of regional autonomy.”
According to Watts, a foremost expert on federalism, federation is basically a scheme of voluntary self-rule and shared rule (Watts, 1998: 117-137).
There are a few fundamental differences in the above-mentioned definitions of the term and its scope. Elazar’s definition does not mention the bases of the formation of the federal structure on the one hand, and on the other hand, he expects two strong entities to be recognized as one entity. For instance, he talks of ‘strong constituent units’ and ‘strong general government’ as if it is possible to have two powerful forces within one system of governance without there being any contradiction between the two. He also does not say how such a concept of central government emerges in the first place. As we see in the other definitions, the writers acknowledge the importance of ‘mutual agreement’ and need of living within one central government in a federal setting. However, despite the many differences of opinion regarding these terms and concepts of federation, federalism or federal political system, most of the theorists agree on it being a system of government under which there exists a mechanism of power sharing between levels of government within a single sovereign state. In such a mechanism, there are at least two tiers of government i.e., federal/central government and the governments at each constituent region(s) level. Generally, in such an arrangement, each constituent region retains its separate identity, regional autonomy is guaranteed constitutionally to each constituent unit, neither level of government subordinates to the other, the people directly electe the government both at federal/central level and at constituent region(s) level, and the jurisdictions are defined by a supreme law of the land (the constitution), not by another level of government (see Galligan in He et al, 2007).
In short, the state which emerges after such a covenant or a contract is called a federation or federal state and the system functioning within such a state is called
a federal political system, while federalism per se is a broader term which is in use for a combination of these terms. Therefore, federalism, federation, and federal political system mean a system of government in which there exists a double set of government, federal/central and regional governments. Under federalism, each level has the powers to legislate, administer, and levy taxes on the citizens in those areas which are entrusted to them by the constitution. In federalism and federation, there is a clear demarcation of constitutional powers between the two levels of government where neither can override the powers of the other. Structurally, there is no single ideal system of federation, but each has its own way to run and accommodate the diversity within the framework of federation (Kymlicka in He et al, 2007; and Watts, 2005). If federalism results when two or more than two previously independent entities merge together to form a single whole through a covenant or bargain amongst the previously independent entities, then what is the nature of the federal covenant or bargain. The next section explores this question.