On the Problem of the Concept of Federalism
I. The problem of the concept of federalism in “The Federalist”
The process of formation and development of the idea of federalism comprises a long period. At the same time, the process of federalism development was not the identical to the development of the “concept” of federalism. In spite of the fact that the theoretical opinion always tried to clarify the content of the concept of federalism, it never had a claim on forming the concept of federalism.
There were different attitudes towards the concept of federalism. Federalism not always awoke positive associations. “Federalism” even today often has the “taste” of a reactionary, inefficient, archaic concept having distinguished content in everyday relations as well as in scientific discussions.
Among the political and legal researches dedicated to the concept of federalism, “The Federalist Papers” published by Hamilton, Madison and Jay are of special importance.
Sharp ideological discussions around the model of future territorial arrangement became the cause for publishing “The Federalist”. The authors of “The Federalist” thought that the cycle of papers would positively incline the citizens of New York towards the published constitution project. “The Federalist” had the role of authentic commentaries of the constitution. It should also be considered as the basic document of the republican political thought of new time.
All three authors of “The Federalist” were the active politicians who always conducted rather efficient work in the political space. After Hamilton, Madison and Jay completed the mission of promotion of reorganizing the USA confederative union into federative state, each of them returned to the political practice. Hamilton became the Minister of Finances of the USA in 1789 when Washington was the President, Madison became the IV President of the USA in 1809, Jay was the Head of the Supreme Court of the USA since 1789. The ideological bases of “The Federalist”, together with the authors’ political experience were determined by the European traditions of thought: Hellenism, Renaissance, English Constitutionalism and Puritanism. It can be said that “The Federalist” is an excellent synthesis of theory and practice, of the thought of old and new worlds. “The Federalist” can also be considered as the Bible of American federalism.
“The Federalist” comprises 85 papers published by Alexander Hamilton, James Madison and John Jay in the newspapers “Daily Advertiser”, “Independent Journal”, and “New York Facet” from October of 1787 to May of 1788. Out of these 85 papers 51 belong to Hamilton, Madison is the author of 14 papers and Jay is the author of 5 papers. The author of the rest of 15 papers is considered to be either Hamilton or Madison. All 85 papers were published in New York in 1788 under the title “The Federalist”
. The authors of “The Federalist” signed with the Latin pseudonym as “Publius”.
Despite the fact that the Federalist Papers were published as a series of newspaper articles and were written in relation to the concrete case by three different authors, “The Federalist” is strictly systematic political treatise. The authors accomplished the argumentation of the idea of federalism step by step, following the strict logic of the scientific thought. In the first 14 papers of “The Federalist” is vividly presented the danger of break-up of the American Confederation. In the papers 15-22 is shown that the existing model of confederation is not able to avoid the danger of the expected collapse of the weak, fragile union of the United States. In the following papers – 22-36 the authors substantiate the necessity of a central power as the only guarantee of retaining the union. Only after this starts the commentary on the next new constitution in which the republican character of the constitution project is fully presented. The whole system of “The Federalist” is built so to persuade readers in the only wise way out from the existing situation – the union will be retained only with the help of the federal organization of the state authority and at the same time on the basis of the republican principles.
Very important problems are solved by the constitution, namely, how it is possible to establish a political order acceptable to society on the basis of reasonable discussion and people’s free choice (The Federalist No. 1). Acceptance of the constitution is presented by the authors of “The Federalist” as a historical precedent. Federal republic should have been established for the first time in the USA political history. The authors think that the importance of reorganizing the confederative union of 13 States into the federal union is preconditioned not only by the geographic location of the States and the acknowledgement of the cultural unity, but proceeded from the interests of the foreign security of the States. Only the union based on the federal principles can ensure the power of the country in foreign relations and the peaceful solution of the internal conflicts existing in the country. National unity is also of vital importance for establishing the competitive authority. The authors of “The Federalist” think that all the above mentioned aims should necessarily be realized on the basis of the idea of freedom. A federal republic can form a kind of balance between the idea of freedom and the aims of security which comprises the broad territorial unification. In the free system we meet the variety of anthropologically conditioned interests and particular aspirations naturally related to the existence of different interests. Neutralization of the particularism preventing the international welfare requires, on the one hand, encouragement of the pluralism on the territory of a federal republic, but, on the other hand, the same pluralism should be federal with the help of the representative system (paper 14). Only thus can be formed the internal balance of the opposite forces as the precondition of the realization of public sovereignty.
In order to achieve the above mentioned goals, it is necessary to retain the union, what a confederative structure is not able to do. Depravity of the confederation system is conditioned by the situation when separate States have maintained the sovereignty and the confederation executes its competences only towards States as a collective body, but not towards citizens of a State (paper 15). Realization of the majority of decisions made by the confederation becomes impossible namely because of the influence of egotism of separate States. Total eradication of the centrifugal tendencies will be impossible also in case of non-existence of strong central authority. Separate sub-systems will always try “to run away” from the center, as a result of what we’ll get anarchy or tyranny. The authors of “The Federalist” think that the vague distribution of competences and insufficient democratic legitimacy of the authority prevented the future existence of the existing confederative union. In the following papers of “The Federalist” it is substantiated that only the system of federal management can improve the weaknesses of the old confederative union.
Confederation is diseased with particularism and only the federal authority knows its “therapy”. Supremacy of the federal government is especially necessary for those problems which concern the vital nerves of the nation. Security and fiscal policy can only be in the government of federation. Self-preservation of a whole cannot depend only on good will of its constituents. That’s why the federal legislative authority has to accept the laws necessary for the realization of the problems belonging to the administration of the federal government (paper 33). The fact that the federal law has to be the supreme law of the country does not imply the existence of the federal authority having absolute, unrestricted power. A new union should be based on the system of the federal republic where authorities between the federation and the subject being in its structure will be distinctly marked off. The authors of “The Federalist” partially admitted also the existence of the competitive legislation. Alteration of the decisions opposite to people’s will is possible by re-electing deputies. The balance system of the government based on the mechanisms of mutual balancing and mutual restraint establishes the major guarantees for preventing the misuse of authorities.
The next part of “The Federalist” comprises the commentaries of the constitution where republicanism is presented as the base of bases of the new federal system. The major thesis of the republicanism is the unrestricted character of public sovereignty and the discreteness of the representative system, i.e. the fact when the terms of the authority of the mentioned system is always determine din time and is restricted by the exact accomplishment of the competences established by the law. The federative character of the republic is conditioned by the rule pf accepting the main law and forming the Senate. The rules of the presidential elections, distribution of competences and of making amendments in the constitution include federal and national elements (paper 39). The government of the central authority is given only the competences necessary for retaining the national unity. Montesquieu’s doctrine about the power distribution, which also was the basis of the American constitution, forms the theoretical axis of “The Federalist” (papers 47-51). The concentration of the authority imposes the defense of the principle of freedom to danger. Realization of freedom can take place only with the help of the mechanism of power distribution. At the same time, control and cooperation require us to confine to legislative, executive and court authorities. It is necessary to have the mechanism of inner control, republican “rivalry”: “we must confront ambition to ambition”. Personal prosperity and official interest should coincide with each other. The object of constant criticism – particularism – should be the common concern (paper 51). The above mentioned conception developed by the authors of “The Federalist” is based on Hobbs’ opinion about a state (anthropological pessimism) and the opinion developed by the thinkers of the Renaissance period when self-interest dominating in the natural condition is not overcome, but when it is placed in certain channels (by the social agreement). The mentioned consideration by the authors of “The Federalist” finds its institutional expression in the self-restraint and balancing system of authorities. The Parliament of the republic is divided onto two Chambers: one of them is established by the whole federation and the second Chamber – by separate States united in the union. In the presidential system of government the President has strong authorities (among them is relation with the legislative authority). At the same time, the Head of the state is able to accomplish the realization of the significant part of the presidential authorities only together with one of the Chambers of the legislative authority – the Senate. The independent court body watches the constitutionality of the normative acts and separate decisions. Besides, the President, the members of the Parliament, the Senators and the federal judges have different terms of occupying their positions. The rule of their appointment on positions is also different. This whole system of state structures generates opposite forces. Though, these forces are “doomed” to collaborate. The authors of “The Federalist” consider pluralism to be one of the most effective models in supporting the minorities. It blocks the majority which, on its turn, is the obstacle for the country’s prosperity. Each author of “The Federalist” analyses each type of governing authorities: the legislative authority is discussed in the papers 53-66, the executive authority – in the papers 67-77, and the court authority – in the papers 78-83. Each type of governing authority has its individual role according to its function. Legislative authority is characterized by rationality and reasonableness (because of the pluralistic approach to the issues). Executive authority is rather energetic and active owing to the fact that one person is responsible for the execution of decisions. Justice is the characteristic feature of the court authority because a judge cannot be resigned and independence, fairness and neutrality of the court are guaranteed. The constitution is the scale of the activities of all political forces existing in the state. In the basic law is regulated the political order which, on its turn, assures protection of freedom and property. Constitution is the guarantee of the nation’s existence (paper 85).
Americans considered “The Federalist” as well as the constitution as the document determining the nation’s self-consciousness. Judges of the Supreme Court of the USA used it to substantiate verdicts.
II. The levels of the concept of federalism
Heterogeneous attitude towards federalism is conditioned by the fact that the concept of federalism can be based on different preconditions and methodologies. For instance, anarchistic socialism as well as catholic social studies considers federalism as its “own” political principle. Among various ideological trends, the so called “conservative” and “liberal” trends can be differentiated for the most general form.
The conservative trend considers that the main role of federalism is the defense of political independence and individuality of subjects. According to the conservative trend, federalism is the state-legal form of the realization of the subsidiary principle base on the Christian-social studies.
The liberal trend is based on the consideration that the consecutive democracy requires the state and social decentralization when instead of the power hierarchy there exists the collaboration based on the cooperative relations of (social) groups. Ideological principles are met in the anarchic-syndicalistic models of society in integral-federative as well as Marxist-communist views according to which the state compulsion in perspective should have been replaced by social self-government. In the real practice, such model of government was partially realized in Yugoslavia; but as a theoretical constitution it is more popular among French, Italian, and Spanish federalists.
“Igeologization” of federalism is risky to some extent, as there is a danger that in this case federal variety can be liquidated and the federal system can be transformed into the organizational form of political totalitarianism as it happened to the Soviet federalism. The modifications similar to the federal idea can be avoided only with the help of effective institutions of consecutive democratization and liberalization of social life, political pluralism.
While forming the concept of federalism, the requirement of rationality of the concept should necessarily be taken into consideration. The concept of federalism should be so general and universal that:
· International mutual understanding should become possible among “Federalists”;
· It should comprise all important theoretical varieties and versions of federalism;
· It should be possible to “reduce” all different political and ideological varieties of federal thought to such general concept of federalism.
Three major factors were singled out from numerous attempts of forming the concept of federalism:
1. The institutional-functional concept admits that federalism is a form of a political organization where the accomplishment of state functions is allocated among the whole state and its regional constituent members in such a way that each of these levels can make the final decision in relation with the corresponding function.
2. According to the constitutional-legal concept, the political system is federative when the essential structural elements of the state (legislation, executive authority and justice) are met in the state as well as in its constituent subjects and their existence is protected constitutionally and legally.
3. The social-philological concept defines federalism in a broad social and philosophical context and is not confined to the juridical analysis of the state-legal form.
The possibility of the different interpretation of the concept of federalism is greatly determined by the fact that the genuine federalism is always based on the dualism of federation and its subjects. Federalism is such a structural principle of the political system when more or less independent political unities are united into the bigger whole. Federalism is a collective concept which denotes different forms of the organizational unity of more or less independent members. Federalism also denotes that the process which finally ends in such unification or vice versa, it ends in distribution of the whole.
The political will in the federative state is formed in the union consisting of several groups. The groups united in the federal union have the function of forming the general national political will as well as the definite autonomy. If the pluralistic system similar to society is based on the territorial principle, this system is federal.
Federalism, coming from the specificity of its function, is formed only in case of the existence of opposite forces. The federal political system always considers the unity of centrifugal and centripetal forces, the integration of common and different, the co-existence of a conflict and consensus. From this point of view, federalism is a social-philosophical conception the content of which is not confined to only the form of the territorial arrangement of the state.
Taking into consideration the above mentioned statements, the following different levels of the interpretation of federalism are singled out in modern literature:
1. Federalism can be understood as a philosophical principle. In this case federalism is presented in the face of the world outlook. According to the social-philosophical interpretation, federalism is the model similar to the idea of subsidiary and partnership which is based on the broad autonomy of relatively small groups and the decentralized territorial unities. The philosophical theories of federalism are tightly connected to Christianity. Some authors, while researching the origins of social-philosophical federalism, come to the conclusion that the model of federal formation of society comes from the Christian studies.
2. Federalism can be considered as the international principle. The studies considering federalism as “foedus”, as the union have especially great tradition. It is directed to protecting and maintaining freedom. Such understanding of federalism originates from the starting period of forming this concept. Federalism, as the international principle, became especially relevant on the background of the integration processes in the modern world.
3. From the constitutional-legal standpoint, the political system is federal in that case if the essential structural elements of the state (legislative, executive and court authorities) are consolidated and protected constitutionally on the federal level as well as on the level of the subject of federation. Federalism can be understood as the major principle of the territorial division of the particular state. The state organized in such a way consists of such territorial units which with the juridical content essentially differ from the administrative-territorial units of the decentralized unitary state (though, the essence of this difference is still the subject of acute scientific discussion). According to the certain opinion, social life generally has a federal character. It is mentioned in the literature that the consideration of federalism in pure state-legal meaning significantly impoverishes the content of the concept of federalism.
4. In the institutional-functional aspect federalism is such a form of political organization when the state functions are re-distributed among the subjects of the federation and the united state. Each of these levels (within the scope of its competence) is authorized to make decisions independently. Federalism, as the functional-organizational principle, is one of the means of effectiveness of the democratic state and the institutional assurance of democracy. With the help of the vertical power distribution, federalism establishes the additional mechanism of the defense of individual freedom; strengthens the stability of the united state; on the federal level gives the oppositional parties the opportunity of coming in the authority of the subjects of federation; forms additional guarantees for citizens to participate in politics, etc. In modern empiric political researches discussing the problems of the federative state, special emphasis is made on the above mentioned function of federalism and less attention is paid to such “traditional” role of federalism as defending the statehood of the subjects of federalism.
5. Federalism can be understood as a structural principle. Federalism is not a static concept which only describes legally given, fixed situation. Federalism, as a structural principle, depicts a dynamic movement between unity and diversity, between constantly renewable and changeable integration and disintegration. From this point of view federalism implies not really existing order, but dynamic striving for such order which often does not coincide with the actual federal order. The concept of federalism which is formed from the total of numerous forms of its expression denotes: a) The principle of establishing states, state partnership, society and economy. This principle strives for the unification of people and communities based on the consensual-allied vertical line. b) The order corresponding to these strivings. Coming from such attitude towards the concept of federalism, we have to admit that the principle of the federal order is more significant than the order itself. The substratum of any federal order is namely its motive forces. At the same time, not every federal striving ends in forming a federal model as establishing the federal order doe not mean that the basic principles of federalism have already been exhausted. Just the opposite, already realized federal order required dynamic improvement and reformation of the federal whole. Thus, the federal principle is independent from the existing as well as desirable order. From this point of view, federalism is a context-related principle rather than regulation-related one.
6. According to the sociological aspect, ethnically, religiously, economically and historically differentiated and territorially divided society is federal (independently from the form of the political organization of this society). The sociological interpretation of federalism is less related to the state-legal moment as in the center of sociological interest is society and not a state. Society, as the body consisting of individuals and social groups, is federally arranged “from downward to upward”. Such a pluralistic structure is characteristic not only of a state, but other social institutions. According to the sociological aspect, the concept of federalism is more empirically oriented and, as it has already been mentioned, is less interested in the normative aspects of the territorial organization of the state.
III. Anthropological principles of federalism
All regulated forms of human coexistence are based on the idea of federalism. The elements of the “union” having the fundamental significance for federalism are met in different spheres of human existence. In the sphere of personal life it comprises family relations. In the social sphere it is revealed in the legal form of the federative state, but in the federal theology it comprises the relation between a man and God.
Such all-comprising character of the federal union is determined by the anthropological legislation of federalism. A man can be developed only in relation to other people only in the conditions of solidarity and partnership. Federalism, in ontological and theological sense, is related to the relations among people.
A man, because of his anthropological nature, strives for unification and union in order to accomplish his individual and collective strivings in regulated relations. Federalism and the subsequent possible pluralism of individual orientation facilitate the individual and religious orientation. Federal order finds support in political and legal consciousness of citizens owing to the fact that in it are depicted the forms and mechanisms of cooperation typical to men’s private relations. According to the psychological understanding, the federal state organization corresponds to such constitution of a man’s consciousness which is based on the mutual union, compromised actions and mutual trust. The principle of federalism tries to overcome a man’s pressure in groups, people, and state and defeat a man’s individuality. At the same time it should be integrated with the relations with other people.
Men strive to unify, live in communities, defend different values and keep these values in order. It should be mentioned that the centralized state with its political-legal and organizational forms regulate all the above mentioned rather than federative one. The elements of centralism are found in the federal systems of administration. Namely the mentioned requirement of order and security (which should be taken into consideration in the conditions of political and economic crisis) legitimates the tendencies of centralism in federalism.
Populations of federative and centralized states have different mentality. In the centralized state, political mentality is determined by the passive orientation of the subjects participating in the political process when their behavior is essentially determined by ten respect of political authority. In the federative state, political mentality is determined by the active participation in the political process.
There is a mutual relation between the political mentality and the federal arrangement of the state. Political mentality can be significantly changed by the influence of the form of the territorial organization of the state.
An image of a “federal” person is determined by pessimistic as well as optimistic anthropology. Any kind of extremity is strange for federalism. Neither pessimistic nor optimistic anthropology is acceptable to it. Despotism is served by those who seek worse sides in a man (than he is in reality) and those who accept a man to be “better” (than he is in reality).
The idea of federalism is based on “medium” between pessimistic and optimistic anthropologies. The thesis of the pessimistic anthropology – a man and the world are bad and imperfect – conditions such pessimistic existence when the development of events is controlled by destiny. Or vise versa, such approach develops preliminarily programmed activity when a free but morally weak person becomes subordinate to compulsory total order calculated in details. The pessimistic anthropology excludes any non-governmental sphere of a person’s activities. It is easy to understand as it is possible to stop “a degraded person” only by defending the rules ensuring the comprehensive compulsory order. “Passiveness”, characteristic of pessimistic anthropology, paves the fertile way for despotism; and the direct result of the above mentioned “activity” is a totalitarian state.
The federal philosophy also does not share an idealized image of a man formed by the optimistic anthropology. The thesis developed by the optimistic anthropology that the world is “wonderful” and a man is absolutely and unconditionally good, “perfect” creature is a bit dangerous statement. If the pessimistic anthropology makes the idea of state absolute (when freedom of each person is restrained and destroyed by the state), the optimistic anthropology gives a person “superfluous” freedom what endangers the state to face anarchy.
The federal anthropology is optimistic rather than pessimistic. At the same time, federalism philosophy is based not on the utopian, extremely optimistic, but “relatively” optimistic anthropology. The federal anthropology frames the idea of a man’s “infinite” freedom developed by the optimistic anthropology. The federal anthropology states that though a man is not absolutely perfect, he is a principally “good” creature. Only a “good”, developed person can strive for “humanization of the state” as the final purpose of the federal order. Such a person stares at “a reasonable order”. Moderately optimistic anthropology does not glorify a man’s mind, but it believes in strength of a person’s mind. A man’s mind is able to compensate every social and political institute and become even stronger together with these institutes.
From the standpoint of the federal anthropology, i.e. “moderately optimistic” anthropology, a man is not bad, a man is not good, he is “good and bad” at the same time. A person is not ideal. He lives in constant opposition between reality and ideal. A person’s behavior is fair and unfair at the same time, reasonable and unreasonable. The essence of a person is determined by the fact that he is God’s image and at the same time a sinner. The federal philosophy makes emphasis namely on such a person: unlike the extreme optimism or extreme pessimism. The unilateral understanding is strange for the philosophy of federalism. It does not accept either pessimistic or optimistic pole.