An essentially contested concept

Federal theorists often stress the importance of safeguards: once the federal arrangement is made, it must be protected. This is because the elements that Bednar calls the ‘authority boundaries’ arc continuously contested. This puts an emphasis on obstacles to constitutional changes, and safeguards for the status quo. As discussed in the previous chapter, this is why constitutional entrenchment and judicial review regularly pop up in the list of institutional requirements. Safeguards, however, can take various forms: judicial review is one, intergovernmental conciliation procedures is another. Preferably, they are combined, as each instrument has its own timeline and flaws. For example, courts are slow and can only behave in a reactive way.

At the same time, many forces push for changes to the power relations that are defined in the constitution. These forces can be both political and judicial, which means that the safeguards of the status quo can also act as drivers for change. Gardner concludes that constitutions cannot, “through careful engineering, be made to stabilize themselves at their initial design specifications”. Bednar takes this to be an essential feature of federalism: “All of the pushing and pulling, and the variety of interpreters, mean that the boundaries are always being questioned” - which is precisely what leads us to a theory of federal dynamics.

This observation casts the value of proper balance as an essentially contested concept. In a dynamic concept of federalism, constitutions arc not meant to ‘stabilize themselves at their initial specifications’. Instead, the concept of stability in itself is a dynamic notion that requires a constant rethinking of power balances and needs room for flexibility and adaptation. Constitutions are therefore conceived as providers of instruments that can recalibrate power relations when new developments put important values at risk. These values might include efficient government, the survival of the state, or group identity. This means that contesting constitutional power relations is inherent to federal arrangements. Such instruments arc necessary to address the instability that results when the

5 6 Theoretical fra me work

division of powers and resources in an MTS is no longer accepted as legitimate by political actors at the different levels.^[1] The capacity to respond to change, then, is regarded as an important factor for the survival of MTSs. Flexibility is essential to respond to the exigencies of the moment, particularly in multinational states where the organization of diversity through federal arrangements is simultaneously the device for stability and the seed for instability. This is also the case when subgroups are not territorially defined: scholars argue that forms of dynamic or ‘living’ consociationalism are more successful, with their power-sharing arrangements that guarantee adaptability and cooperation. Contestation creates dynamics, which means that MTSs continuously move in opposite directions. As a consequence, a theory of dynamic federalism does not distinguish, as in traditional federalism theory, between ‘mature’ and ‘emergent’ federations. It does not regard federations as systems where a stable balance has been established, and other MTSs as systems that “are still in the process of establishing their equilibrium”.

Friedrich’s idea of federalism as a process led scholars to search for variables that push a system toward centralization or decentralization. Mostly they identified social, economic, and political forces. By contrast, not much light has been shed on institutional instruments as drivers for change. Simeon observed that constitutions are both dependent and independent variables. For example, variations in space and time are the result of historical, cultural, and political forces; but at the same time, constitutional provisions influence the conduct of political actors, and therefore, cause their own processes of constitutional change. The author’s focus was on the constitution as a dependent variable,

but his observation that constitutions are both dependent and independent variable is maintained in the theory of dynamic federalism. Such a theory must therefore examine the instruments that are established as ‘hubs’ for changes in power relations.

Federal theory, then, shares with constitutional theory an interest in the mechanisms of constitutional change. Constitutional change refers to transformations through the “perpetual interaction of formal and informal mechanisms”, which includes legal and extra-legal instruments. Dynamic federalism, however, is not only interested in identifying the factors of change. It also seeks to find out whether, and how, dynamics can be changed. For this reason, it is also interested in ‘measuring’ power relations, so that the centralization grade of MTSs can be compared across countries and across time.

This justifies the legal-institutional approach this book takes. In the first place, the constitutional setting outlines the default position, against which changes produced by legal and extra-legal instruments can be measured. Secondly, extra-legal forces often use institutional instruments and procedures to produce change, which could be hindered by institutional safeguards. Third, institutional instruments and procedures can be subjected to constitutional engineering, whereas we have less control over extra-legal forces. This does not mean that dynamic federalism is essentially a legal theory. Instead, the mutual influence of legal and nonlcgal factors is an important part of the theory’s research agenda. This book will certainly take notice of insights from other disciplines. However, consistent with my field of expertise, the book will concentrate on the legal framework: the institutional set-up, and the institutional hubs for change. Interdisciplinary research is essential to complete the theory and is the next analytical step.

• [1] For this definition of stability see Nathalie Behnke and Arthur Benz, ‘The Politics of Constitutional Change between Reform and Evolution’ (2009) 39 Publius: The Journal of Federalism 215. 2 Michael Burgess and G Alan Tarr, ‘Introduction: Sub-national Constitutionalism and Constitutional Development’, in Michael Burgess and G Alan Tarr, Constitutional Dynamics in Federal Systems: Sub-national Perspectives (Montreal & Kingston, McGill-Queen’s University Press 2012) 3. 3 Nico Steytler and Johann Mettler, ‘Federalism and Peacemaking: A South African Case Study’, (2001) Publius: The Journal ofFederalism^)?. See also Andre Lecours, ‘Federalism and nationalism’, in Kincaid (n 20) 143-144. 4 On the debate of whether ethnic federalism is a device for success or failure, see Sujit Choudry and Nathan Hume, ‘Federalism, Devolution and Secession: From Classical to Post-conflict Federalism’, in Tom Ginsburg and Rosalind Dixon (eds), Comparative Constitutional Law (Edward Elgar 2011) 356-357, 364-372 and Palermo and Kossler (n 58)97-101. 5 See Feargal Cochrane, Neophytos Loizides and Thibaud Bodson, Mediating Power-Sharing (Routledge 2018) 5 and 47-48. 6 Roland L Watts, Comparing Federal Systems (Queen’s University 2008, 3rd ed.) 25. 7 Birch (n 12) 15-33 for one, criticized the focus on social forces and drew the attention to political factors: 15-33. 8 Richard Simeon, ‘Constitutional Design and Change in Federal Systems: Issues and Questions’, (2009) 39 Publius: The Journal of Federalism 242.