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Federalism, Secession & Devolution: From Classical to Post-Conflict Federalism


Sujit Choudhry


New York University School of Law

Nathan Hume


University of Toronto - Faculty of Law

2010

RESEARCH HANDBOOK ON COMPARATIVE CONSTITUTIONAL LAW, Tom Ginsburg, Rosalind Dixon, eds., 2010

Abstract:     
Federalism has long been a topic of study for comparative constitutional law. However, the scholarly literature on federalism is in a process of transition. For most of the twentieth century, the study of federalism was oriented around a standard set of cases in the developed world: Australia, Canada, Switzerland and the United States of America. These cases provided the raw material for certain fundamental questions: What is federalism? Why should federations be adopted? What role is there for courts? For the most part, these questions appear to have been answered, often with the aid of comparative analysis. To be sure, important debates persist. For example, scholars disagree over the relative priority to be given to the different goals served by federalism and how those goals should shape the allocation of jurisdiction. In the area of environmental policy, for example, new opportunities for democratic self-government and policy experimentation argue for greater regional authority but also generate inter-jurisdictional externalities, which argue against it. This debate relies on an implicit understanding of its terms and range, and participants in such discussions of federalism often draw on the same standard set of jurisdictions as illustrations of models to be followed and dangers to be avoided.

Recent developments in the practice of constitutional design have challenged this consensus. Many states in the developing world, such as Ethiopia, Iraq, Nigeria and Sudan, have adopted federal solutions to manage ethnic conflict, often as part of a broader package of post-conflict constitutional reforms. In these federations, internal boundaries are drawn to ensure that territorially concentrated national minorities constitute regional majorities. The difference between the standard and emerging cases is not just geographic. Rather, the very mission of federalism is different. Its principal goals are not to combat majority tyranny or to provide incentives to states to adopt policies that match their citizens' preferences, but rather to avoid civil war or secession. Federalism promotes not public accountability or state efficiency but rather peace and territorial integrity. It is this concern for violence and territory, inspired by contemporary problems, that sets post-conflict federalism apart from consociationalism, a canonical approach to ethnic divisions and democracy. Post-conflict federalism also pursues different goals than classical federalism and thus provides an opportunity to revisit the basic assumptions underlying the field.

Advocacy of federalism as a tool for managing ethnic conflict continues to grow, with respect to a diverse set of cases that spans the globe from South and East Asia to Eastern Europe. However, its purported benefits have been challenged by those who argue that federalism exacerbates, instead of mitigates, ethnic conflict. This academic debate about the merits of post-conflict federalism has reached an impasse, largely as a consequence of methodology. Proponents and opponents of drawing boundaries to empower national minorities point to different cases of federal success and failure. But recent scholarship in comparative politics that combines large-n quantitative analysis with small-n qualitative case studies promises a way forward. It shows how we might test these competing claims about the ability of federalism to control ethnic conflict across a variety of cases and begin to identify the factors that explain when post-conflict federalism succeeds and when it does not.

Number of Pages in PDF File: 66

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Date posted: June 12, 2010 ; Last revised: July 29, 2010

Suggested Citation

Choudhry, Sujit and Hume, Nathan, Federalism, Secession & Devolution: From Classical to Post-Conflict Federalism (2010). RESEARCH HANDBOOK ON COMPARATIVE CONSTITUTIONAL LAW, Tom Ginsburg, Rosalind Dixon, eds., 2010 . Available at SSRN: http://ssrn.com/abstract=1623682

Contact Information

Sujit Choudhry (Contact Author)
New York University School of Law ( email )
40 Washington Square South
425
New York, NY 10012-1099
United States
212-998-6009 (Phone)
Nathan Hume
University of Toronto - Faculty of Law ( email )
78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada
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