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Switzerland Federalism, Democracy and individual Freedoms in a multicultural Country

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Prof. Thomas Fleiner*/ Prof. Dr. Lidija R. Basta Fleiner Theories and Praxis on Peace, Federalism, and Human Rights First Week: Federal Institutions – PowerPoint PPT presentation

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Title: Switzerland Federalism, Democracy and individual Freedoms in a multicultural Country


1
Prof. Thomas Fleiner/ Prof. Dr. Lidija R.
Basta Fleiner Theories and Praxis on Peace,
Federalism, and Human Rights First Week
Federal Institutions Principles and Designs.
Effects upon Peace within State
First Class Main Institutional Concepts of
Federal Systems of Governance
Thomas Fleiner
2
Basic Elements of Federalism
Constitution
Shared Rule
Self Rule
3
Pairs of values
  • Famously, federalism balances and enables
    competing values to be secured
  • Legitimacy and efficiency
  • Self-rule and shared rule
  • Unity and diversity
  • Uniformity and difference
  • Solidarity and self-reliance
  • Co-operation and competition
  • Complexity and Transparency
  • One challenge in designing a federal system is to
    capture each of these in a suitable way

4
Other constitutional values
  • Federalism must be combined with other
    constitutional values, in both spheres of
    government, for its benefits to be fully secured.
    These include
  • Legitimacy
  • Democracy
  • Constitutionalism, including the rule of law
  • Human Rights
  • Effective and accountable government
  • Solidarity Mutual respect a willingness to
    share power appreciation of diversity

5
Importance of institutions and Procedures
  • Importance of specifically federal institutions
    are obvious (eg division of powers)
  • Institutions of government equally important
  • Mechanism through which federalism delivered
  • Mechanism through which other values delivered
  • Institutional design must capture
  • Aspirations for federalism
  • Aspirations for government generally

6
General observations Balance ofShared Rule v.
Self Rule
  • Many of the institutions that we presently use
    were designed for unitary states
  • They need to be fully adapted to the different
    context of federalism
  • Now plenty of experience with this
  • But range of possibilities is not fixed
  • Increasing experimentation in recent years
  • Eg asymmetry, forms of co-operation

7
Comparative FederalismLearning from Each Other
  • Comparative constitutionalism now a very hot
    topic
  • Relevant to
  • Making a Constitution
  • Using a Constitution (in particular,
    interpretation by courts)
  • International Cooperation
  • Problems of Method
  • Particularly for institutional comparison?

8
Variations between federations Dilemma of
Legitimacy v. Efficiency
  • Degrees of diversity
  • State of the pre-federal state(s)
  • Legal system
  • Legal philosophy
  • Doctrine
  • History and Cultural Tradition
  • Other? Religion / Language, Geography, Size

9
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

10
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

11
Division of powers
  • What powers?
  • Potentially, legislative, executive, judicial
  • How?
  • Horizontal/vertical/mixed
  • Exclusive/concurrent/shared
  • Provision for co-operation?
  • Who gets what?
  • NBimplications of the answers to these questions
    for the institutional structure of all
    governments

12
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?

13
Common standards
  • Many federations prescribe certain common
    standards, applicable to both spheres of
    government, in the Constitution itself. Typically
    these apply to
  • Governance (democracy, accountability,
    republicanism)
  • Human rights
  • Economic union (mobility of people, economic
    activity)

14
Constitution of the federal state
  • The Constitution should
  • Be made by a suitable process
  • Create the central constituent governments
  • Provide the institutional framework
  • Provide the federal framework
  • Provide the means for its own alteration

15
Protection enforcement
  • A mixture of rigid and flexible
  • Federal quality of amendment procedure
  • Effectively enforced
  • Usually, general or specialist constitutional
    court
  • Other options? Switzerland (sui generis). USA?
  • NB techniques for conflict avoidance
    Switzerland,
  • Some internal flexibility eg through co-operation

16
Constitution Constituent Power
Decentralization
Centralization
Legitimacy Treaty, Agreement, Constitution?
How? Procedure
Step by Step
International Community
Inclusive
Reconciliation
Who?
Exclusive
Who decides?
Units - Borders?
17
Constitution Constituent Power
Eternity Clause?
Shared Rule
Revision and Amendment
Partial General Revision
Referendum
Federal Units
Who?
Parliament
Special Council
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