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9. Юркова С. О. Гапон А. В. Конституційний процес Українив умовах євро інтеграції……………….…………………………………………..…20710. Галенко І.В. Створення соціальної мережіНаціональної спілки письменників України на базі RSS – технології…………209Federalism as a solution for multicultural societies’ problems in Europe? Some aspects of modern development Dr. Florentina HARBO Norsk Institutt for Strategiske Studier (Norwegian Institute for Strategic Studies) Researcher in international law, strategy and analysis Youngstorget 5, N-0181, Oslo, Norway tel. (0047) 22 39 60 74, fax.: (0047) 22 39 60 71 e-mail: [email protected] www.noriss.no private: Voll Terrasse 10, N-1358, Jar (by Oslo), Norway tel. (0047) 67 14 05 61, mobile: (0047) 97 60 56 29 e-mail: [email protected] Abstract This paper deals with the question whether a federal structure would be an appropriate institutional and constitutional solution to the challenges of multicultural societies in Europe. Europe faces fragmentation, which is a threat for many multiethnic and multilingual societies. Some countries have maintained their state form by resorting to federalism. Federalism may not be the deus ex machina able to contribute to the solutions of all the problems, but there are aspects of federalism, which can be important for taking into consideration while finding solutions. Why such states as Great Britain, Spain, Romania, Moldova, etc. are not able to accommodate multicultural societies? We could go even further and ask whether federalism could help to build democracy in Iraq? Is there any lesson to be taken from federalism? There are at least two reasons why federalism matters, when doing research on multicultural societies in Europe: a federal polity has the aim in insuring unity in multicultural, multiethnic and multilingual societies, and it functions according to a vertical and horizontal separation of powers. This paper has the aim of emphasising the importance of two perspectives: that federalism is not an abstract idea unrelated to reality, but rather a practical way of being for political systems, and that a federal polity is an empirical way of solving problems by bringing together unity and diversity. This matter will subsequently be discussed in extenso. Introduction The last decades, we have experienced a huge and deep transformation of the institutions of governance, of society and even of ideologies and culture in Europe. There happened rapid economic changes (like Baltic states), as well as intense and sometimes violent political and social tensions (like Transnistria, Abhasia, etc.). It is revolutionary. There were many revolutions until then and each of them has led to massive replacement of one political and economical order to another, either by outright substitution or through the modernisation of existing structures and institutions. Is there a close relationship between democracy, state of law and welfare in that period? Changes in the mental maps of social actors and in the institutions that regulate and enable the political, economic and social processes are required. For many years now, one can observe struggles in Europe to develop political reconciliation strategies and institutions in order to bring to dialogue the enemies from yesterday. The main goal is to integrate Europe and to (re)define its minorities. There are many examples, such as the Jewish-Polish reconciliation, the memory of conflicts in ex-Yugoslavia, etc. The European Commission even invented the idea of “Truth and reconciliation for Bosnia – Herzegovina”, which has never been implemented. The search for the “truth” between the international language and the local moral categories did not bring any results. There is a Convention for the protection of minorities in Latvia. Romania has its problems with the Hungarians. The adherence of Romania to the EU is a new challenge of the minority problem solution in the Republic of Moldova. After the independence of the Republic of Moldova in 1991, struggles of secession appeared in the so-called Transnistrian Moldovan Republic. Later, autonomous demands emerged among other ethnic groups, such as the Gagauz. For more than a decade now, Moldova is facing the problem of fragmentation. Great Britain is known for the “devolution” process, but it is not god enough, Scotland struggles all the time to go out. Although there is a decentralisation process in Spain, two principal unassimilated peripheries, Catalonia and the Basque region, do not accept the state. The treatment of the past happens at different levels: new laws are made, historical commissions are founded, monuments are built, etc. These initiatives are conceived either on the national level or come from the European Union. Besides the European Union, both, the Council of Europe and the OSCE try to create norms for reconciliation at the regional level in Europe. On the one hand, the discussion about the topic of reconciliation by different actors is the result of the will to reconstruct the broken societal loyalty, on the other hand, the political instrumentation of the past in the context of party politics power struggle is very much expanded. There is a socio genesis of reconciliation strategies, which considers the interaction of actors and experiences of reconciliation models. The process of reconciliation can have different forms from inter-personal to the societal level. Only a pluridisciplinary approach could bring light in the darkness of this subject. Our traditional understanding of what a society is, comes from the idea that the world is divided into societies that have their own culture, which can be found on a specific territory with borders and which are regulated by a state. Outside those borders, one is in another society (Kjeldstadli, 2007: 3). This concept was developed among the classical European sociologists in the XIXth century and the beginning of the XXth century, as a response to the fact that the world was changing from peasant society to the industrial capitalism. One of the classics, Georg Simmel asked: “Wie ist Gesellschaft möglich?” (Simmel, 1908, Kapitel I: 21-31) – How is society possible? As Kant asked: “Wie ist Natur möglich?” – How is nature possible? Until now, this concept was great, but to what kind of society belongs a Hungarian living in Romania, but being interested in what is happening in Hungary and has Hungarian contacts all over the world? Even though there are only 2-3% of the people who live outside the states they have been born, those phenomena, which exist transnationaly, become more and more visible. It is about a transnational consciousness. The German historically oriented sociologist, Norbert Elias, wrote before the World War II about the concept “Interdependenzketten” (interdependence chains or networks) (Elias: 1939/1969/1980). If there are many networks, many relations among people, there is also a society among them. The territory in itself cannot define the society’s borders. This way “Society is possible”, to answer Georg Simmel question. In 1963, Carl Schmitt spoke about the end of the statehood era (Schmitt, 1963:10). Today there is even a farewell literature to the state. Can the unitary state, as a model of political unity, as the monopolist of sovereignty still regulate a post-modern, individualised and independent society? Is it the case? Can the fall of the Berlin Wall and of the USSR be called “creative destructions” (a term credited today to Schumpeter (1942/1975), but which in fact was very much influenced by the idea of “creative destruction” of Friedrich Nietzsche (1883-1885/2005) in the late XIXth century Zeitgeist already, in Also sprach Zarathustra) in the socio-political and economic frameworks? Part I. A theoretical study of federalism ”C’est pour unir les avantages divers qui résultent de la grandeur et de la petitesse des nations, que le système fédéral a été créé”1. Many commentators treat “federalism” as if the term had a universal and undisputed meaning. As comparativist social scientists know, however, “federalism” as a political ideology has been interpreted in many diverse ways historically, and between nations and social groups. At least two concepts repeatedly used in this paper have to be defined here: “federalism” and “federal polity”. The term “federal” comes from the Latin word foederatus, which means “bound by covenant” deriving from foedus (like the Hebrew term brit, Elazar, 1987: 5) that means “covenant” or “alliance” and fides – trust. This political thought is based on horizontal and vertical relations of a contractual type. In the protestant world, there is something called “federal theology” that had an implication on political sciences. To show the alliance between God and people, there is the word Bund used in Germany. In Great Britain and in the United States, it is “covenant”. In France, a catholic country, it is the “contrat solennel du Dieu avec le people” (in: Harbo, 2005). The definitions of federalism vary, but the core idea of federalism is in the division of powers, as the constitution provides, between at least two or more levels of government. These two or more levels are separated, but coordinated - the government of the whole, which is the federal level and the government of the parts, which is the federal units’ level: states, Länder, provinces, cantons. These are defined on a territorial basis, where each pillar of government exercises a sovereign power in certain areas. A federal polity is based on institutionalised self-rule and shared-rule and guarantees unity in diversity. Scholars on federalism use in English terms interchangeably such as federation and federal state, without making a difference between them. The difference is very evident in German between Bundesstaat and Föderation, where Bundesstaat means federal state, and Föderation means federal polity. This difference appears also in French between état fédéral (federal state) and fédération (federal polity). Federalism is a complex institutional device. It has been unsuccessfully applied in some cases and retained in others. Each case has its own characteristics, and processes are finely-tuned regularly to keep pace with a changing environment. 21 out of 193 sovereign states of the world are federal states, which rule 40% of the world’s population and encompass about 480 constituent or federated entities (Watts, 1999: 4)2. In the 21st century, nation-states are under attack by the forces of globalisation. Growing complexity overwhelms the capabilities of individual nation-states. The institutional capacity of the nation-state to cope with problems such as ethnic, linguistic and religious diversities is being questioned. In this context, a type of federal solution could be an answer to the challenges of multicultural and multilingual societies. A federal polity is an answer to those states, which are small or big and want to join the union in order to be stronger, but at the same time are afraid to lose their national sovereignty and identity. The existence of federalism was put into question almost four decades ago, primarily by William Riker (1969: 135-145) and Vincent Ostrom (1973: 197-232), when they asked whether federalism existed and whether it mattered. Today, when federal principles are applied in so many federal polities, it is quite clear that federalism exists and will continue to matter, the question is only how to apply it better. Daniel Elazar spoke even about a “worldwide federalist revolution” (Elazar, 1991). And, then, federalism should not be regarded “… as a remnant from the past or as an obsolescent form of governance in danger of being eroded by the forces of capitalism, as Laski and others believed a half-century ago” (Bakvis/Chandler, 1987: 3). The history of the federal idea is an Anglo-Saxon as well as a continental one. Federalism has its roots in the remote past and has a long philosophical history. Its precursors can be found even in Ancient Greece and in the medieval European political thinking. Federalism is a Greek invention, as the centralist bureaucratic society was the work of the Roman Empire (Cardis, 1964: 16). The federation of Greek city-states of the VIIth century B.C. was based on a community of languages. In the middle Ages, federations were built between cities in Italy and, then, in the XIIIth century they appear in Switzerland. The first documented federal system was developed among the ancient Israelite tribes some 3200 years ago. The expression “covenant” was present at that time in Israel, where people rebelled against the Pharaonic model (Elazar, 1987: 4). In the same period there were confederations of the Bedouin tribes and native confederacies in North America. The Roman Republic had asymmetrical arrangements, where Rome became the federate power and the weaker cities were attached to it as federal partners (Watts, 1999: 2). However, federalism, as it is understood today, is an “artifact of modernity” (Michelmann/Soldatos, 1994: 16). Johannes Althusius was the first to formulate the theoretical foundations of a differentiated society in the early XVIIth century. The first definitions of federalism go back to the Politica Methodice Digesta (1603/1965), which was the first writing on explicitly federal theory. Althusius conceived politics between polities with less than clear boundaries. This was accepted as the first theory of federalism (Friedrich, 1968b). Althusius has made the bridge between the religious covenant and political federalism, but his thought was fundamentally covenantal. There is a certain academic consensus on the following principles of federalism: autonomy, subsidiarity, cooperation, participation, checks and balances and “self-rule” and “shared-rule”3: Autonomy is realised through a juridical process of auto-affirmation, auto-definition, auto-determination, auto-organisation and auto-governance. Every level of government has the right to organise itself and to govern in its area of competency. The federal units do not exist, because the federal level tolerates them, but because their existence and their autonomy are protected by the constitution (Lapidoth, 1996). Carl Friedrich points out that one can speak of federalism only if a set of political groupings coexist and interact as autonomous entities, united in a common order with an autonomy of its own (Friedrich, 1968a). It is constitutional autonomy that matters, rather than the particular division of powers between central and regional governments (Burgess, 1986: 18). Subsidiarity - the exercise of autonomy can provoke conflicts between the different levels of government. Who should solve these conflicts? Subsidiarity is more a principle of prescriptive nature than descriptive. It means the distribution of powers according to needs and demands. Competencies are attributed to the level of decision-making closest to the problem to be solved. Héraud proposed a supplementary notion to subsidiarity - exacte adéquation or the adequate distribution of powers (Héraud, 1982), which means that each unit has to receive juridical powers and financial resources that would allow it to solve its own problems. Cooperation – even in a federal system that respects local autonomies, there may be conflicts when the competencies overlap. Federalism can solve these conflicts according to the cooperation principle, when all the levels agree on their legitimate actions. There is vertical cooperation between the federal level and the federal units, and horizontal cooperation between the federal units themselves. Participation – the federal units are generally very close to the people. At the same time, the citizens have more access to participation in political processes. The groups that feel excluded or disadvantaged at one political level can participate at another. The direct participation is when the organs of the federal units take decisions regarding the federal level. The participation is indirect when the federal level has its own institutions, but these institutions represent the emanation of federal units. The principle of participation is crucial in a federal polity. If there is no participation, the federal polity will be transformed into a confederation. Checks and balances – federalism tries to avoid the concentration of power at one level of the federal polity. This principle supposes the cooperation between the legislature, the executive and the judiciary – horizontal checks and balances; and between the federal level and the federal units’ – vertical checks and balances. The power of the federal level is limited in order to respect the autonomy of the federal units, and the power of the federal units is limited as well, respecting the common interests at the federal level. The two levels of government are limited by the necessity to respect the constitution.4 A federal polity is based on unity and diversity, which are formally recognised by the combination of “self-rule” and “shared-rule” in a written and supreme constitution. The “self-rule” and “shared-rule” are combined in at least two orders of government or governance, each acting directly upon its citizens, in which the constituent units enjoy significant autonomy in matters of local concern, but have voluntarily agreed to pool their sovereignty in matters of common concern. Part II. An empirical study of federalism The following is an analysis of certain states, which have been confronted with the challenges of multiculturalism and have adopted federalism. Some were successful, others not so much. There are lessons to be learnt. Germany is a type of cooperative federalism based on shared sovereignty5. It is one of the most influential member states of the EU, primarily as far as the idea of federalism is concerned. The German type is interesting because of the manner in which the relationships between the federal and state governments interlock and because of the way in which the unique Bundesrat serves as a key institution in these interdependent processes. However, it is a rather homogeneous society with uniform legal conditions, compared to other states. United States of America – the first modern federal state, the result of a failed confederal form. It is a type of dual federalism with divided sovereignty, based on two independent levels of decision-making. It is the most enduring federal state in the world. It is an important reference point in any comparative study of federal states. The USA system has multiple levels of access for competing points of view in the Congress, executive branch and individual states. The decentralised character of the USA system encourages diverse points of view and allows experts with different ideas to create networks within certain areas. Switzerland – is a type of federalism where multilingual and multicultural diversity is accommodated. It is a heterogeneous federal state based on multiple demoi. Switzerland practices the dual type of federalism, moving in the last years towards a more cooperative type. The peculiarity of Switzerland is direct democracy. The referenda role is of significant importance for Switzerland. Canada – it is an example of how federalism was adopted in order to accommodate and reconcile territorial diversity within a fundamentally multilingual and multicultural (territorial) society. It was the first federal state that combined federal and parliamentary systems. Canada integrates a system of parliamentary responsible government, in which the executive and the legislature are fused. Canada is also an example of ineffective problem-solving (i.e. the Quebec question). There are, thus, also lessons to be taken from this unsuccessful experience. Conclusions Federalism is a complex phenomenon, which cannot be explained in a monist way. The federal system can be thought of as a large and complex “jigsaw puzzle” (Gibbins in: Bacvis/Chandler, 1987: 15), which gives various possibilities of application. A federal polity is based theoretically on federal institutions issued from a federal constitution. Federalism provides the prerequisites to act in situations where central unitary states fail. Accordingly, federalisation appears today as a politico-legal phenomenon and a legal-normative problem-solving mechanism that can act flexibly for new forms of politico-legal communities (cf. Krawietz, 1997: 337). Federalism deals with the question of how to create an appropriate political order for societies that are characterized by opposing integrative and disintegrative political forces within a particular geographical space: “Federalism is expected to organize balanced arrangements of a complex cluster of centripetal and centrifugal forces, using ‘territorial pluralism’ as an additional element to organize a polity” (Preuss, 1996: 221, cf. Preuss, 1999). It is commonplace to say that federalism is per se a balanced system, having key elements necessary for coping with the challenges of multicultural societies in Europe. Federalism gives all the scenarios to solve problems, but one cannot guarantee that applying it, it will suddenly solve all the problems. The successful federal polities are those that have a political culture that is either federalist in orientation or open to the absorption of federal principles. The absence of a federal political culture makes the maintenance of federal arrangements very problematic. Concluding, have the countries, mentioned in the introduction, Romania, Moldova, Spain, Great Britain, etc. applying federalism, any chance to be successful? Yes, understanding the definitions of federalism and applying all the principles, mentioned above, but in the absence of a federal political culture, a federal polity may be very problematic. The case of Iraq shows it quite clearly. Even if Iraq has a federal constitution now, it lacks a substantial federal political culture and this is the explanation of the actual political situation. 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