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联邦主义理论与实务研究

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发表于 11/12/2013 21:26:00 | 显示全部楼层 |阅读模式
本帖最后由 郭国汀 于 11/13/2013 01:07 编辑

All large Countries (except China) and many ethno-linguistic diversitysocieties are federation; there are 33 countries nearly 40 percent of worldpopulation lives within polities that are formally federal; another 30 percentlive in politics that apply federal arrangement in some way. Even traditionalunitary countries such as Italy, Spain, and UK also adopt some principles offederalism. My argument is that the federal systems are much better able toprotect minority rights. To support my argument, I will from variousperspectives to demonstrate my thesis, before conclude, I will discuss some thebasic conception of the reason, origin, meaning and definition, principles, andcauses of federalism respectively.

Federalism originates from the Latin word ‘foedus’i.e. compact or covenant. Thefederal idea has its roots in the Bible,which is the compact between God and the Israelites. Historically,the term represented a political compact between groups which had come togetherin an association.[1]16 century German thinker JohannesAlthusius, centered on the notion of shared sovereignty in a contractualunion, between the constituent political entities.[2] Thus, Federal ideas,concepts and principles have existed from time immemorial, but it is theAmerican federal experience that transformed and understanding of theseestablished ideas, concepts, and principles. [3] Many forefather came toAmerican, some came with the love of adventure, others in the hope of securingwealth. The largest by desire to escape the annoyances under the tyrannicalrules; they sought freedom and liberty of action, for the privilege of self-governing they willingly endured privation ina wilderness. [4]Thephilosophical foundations of American federalism, the common wealth legacy offailed English republican revolution of the 17 century, in the writings ofJames Harrington, the works of Machiavelli, John Locke, Algernon Sydney, JohnMilton, David Hume, Rousseau and Charles Montesquieu.[5]


[1] Jan Erk, ExplainingFederealism, London, Routledge. 2009. P.2

[2] Jan Erk, ExplainingFederealism, London, Routledge. 2009. p.3

[3] MichaelBurgess, Comparative Federalism Theory and Practice. London, Roultege,2006. p.73

[4] Henny L.West, FederalPower: Its Growth and Necessity,New York, Georgh H. Doran Co. 1918.P.15.

[5] MichaelBurgess, Comparative Federalism Theory and Practice. London, Roultege,2006.  p.67


 楼主| 发表于 11/12/2013 21:34:05 | 显示全部楼层
In 1650, in rugged New England a democratic form of government had been instituted. Mutual defense common enemies, the Indians, Dutch and French, deal with each colony; and handle criminal whorun over cross board, led to the confederation of the New England colonists in 1643. [1] In 1690, the New England, with New York, Virginia, and Maryland, made an effort to combine, butnot successful. (West 2006 .19) WilliamPenn, shrewd and farsighted, should be designated as the father of federalism, his plan of combinationdrawn up in 1690 was a very advance one. Set up the principle of union, theassembly, and delegates.(West 2006.20) RobertLivingston in 1701 suggested combining the colonies into three distinctgovernment; while in 1721, the Earl ofStair proposed a union of all colonies and West Indies, with local self-governmentguaranteed to each.In 1754, Benjamin,Franklin evolved a plan with a tremendous stride forward, although wasrejected; in this plan he suggested set up a grand council of the colonies;with proportional to population, which lay and levy general duties, imposts andtaxes. (West 2006.21) English governmentanother danger threatened, not only laid undue burdens on the colonies, but haddone so in a manner calculated to arouse bitter resentment, citizens ofcolonies had been derived trial by jury and had been transported to England fortrial was repugnant to every sense of justice and fair play[2].


[1] Henny L.West, FederalPower: Its Growth and Necessity,New York, Georgh H. Doran Co. 1918.P.16-17

[2] Henny L.West, FederalPower: Its Growth and Necessity,New York, Georgh H. Doran Co. 1918. P.23


 楼主| 发表于 11/12/2013 21:40:01 | 显示全部楼层
TheArticle of Confederation has no power to taxes. In 1787convention, a conference called to consider the relations between Maryland and Virginia growing out ofthe extension of navigation in the upper Potomac. Money as a secondaryconsideration for the gathering at Annapolis was it suggested that thedelegates should take up the task of amending the Article. (West. 27) The greatmass more afraid of anarchy than centralization and anarchy was staring then inthe face.(West.28) Although in 13 century Swiss has been being a confederation,whichlacked a strong political center, USA is the first stronger federal union,federal constitution combining the compact theory of federalism with theRepublican principle of democratic legitimacy 1787, then German unification, andAustrian with federal arrangements to keep multinational empire together.[1]


[1] Jan Erk, ExplainingFederealism, London, Routledge. 2009. p.3


 楼主| 发表于 11/12/2013 21:46:29 | 显示全部楼层
Confederation often reference to various arrangements among sovereign states,that full short of establishing a new state or a central government withmeaningful power and authority;for example,  the  newEngland confederation(1643-1648).In 1778, thirteen colonies formed a militaryalliance  with rudimentary commoninstitution. Federalist Party represents the mercantile and financial interestswho want a strong central government and subordinate states. The first CanadianPrime Minister John A. MacDonaldused a definition in 1861 when he stated that “thetrue principle of a confederation means a system in which all powers notspecifically assigned to the provinces were given to the central government”.After that, in 1847 Switzerland, 1867 Northern Germany, 1901 Australia, 1922Austria,1924 USSR, 1946 Yugoslavia,1948 Malaya, 1953 Rhodesia and Nysalaw, 1958West Indies, 1961 Cameroun, Argentina, Brazil, Mexico, Venezuela, 1968Czechoslovakia, all establish federal government; thecomponent states do not retain any meaningful degree of autonomy. Indianthe Supreme Court declined flatly that India was adecentralized unitary state rather than a federal one. Nigeria issimilar as India. Almost all large Countries (except China) , or diversity inethno-linguistic societies are federation; There are Thirty-three countriesnearly 40 percent of world population lives within polities that are formallyfederal; another 30 percent live in politics that apply federal arrangement insome way.
 楼主| 发表于 11/12/2013 21:50:22 | 显示全部楼层
Motions for federalunion: in some cases the political factors might outweigh the socio-economicfactors, while in other respects the reverse might be the case; [1] A complex amalgam ofsocial-economic, historical and political variables were also present at thecreation.[2] Language is an ethnicmaker, a common language is essential in order to establish the exchanges whichconstitute a democratic order. Language forms a distinct public space creatingan ‘us’ or ‘insider’ community in which political deliberations take place. Incultural policy areas where ethno-linguistic divisions strongly influence anddelimit political choices. [3]Federal institutions havenot ensured their continuity by providing rule bound setting to politicalactors. [4]
If the ‘nation’ is smaller than the unit defined bythe political institutions, there will be devolutionary pressures on theunitary institutions, and in federation designed without a formal recognitionof the federal society, public policy will bypass the constitution and functionasymmetrically based on the constituent ethnolinguistic communities. On the other hand, when the ‘nation’ is biggerthan the unit marked off by political institutions, the tendency will betowards centralization.[5]


[1] MichaelBurgess, Comparative Federalism Theory and Practice. London, Roultege,2006. P.81.

[2] MichaelBurgess, Comparative Federalism Theory and Practice. London, Roultege,2006. p.101

[3] Jan Erk, ExplainingFederealism, London, Routledge. 2009. p.9

[4] Jan Erk, ExplainingFederealism, London, Routledge. 2009. p.5

[5] Jan Erk, ExplainingFederealism, London, Routledge. 2009. p.10


 楼主| 发表于 11/12/2013 21:54:13 | 显示全部楼层
本帖最后由 郭国汀 于 11/12/2013 23:34 编辑



All fine cases show evidence of institutions changing to conform to the societalstructure rather than the other way around. Politicalscience starts with the state and examines how it affects society, whilepolitical sociology starts with society andexamines how it affect the state; Former study political structure, latterstudy social structure. Options available to political actors were influencedby the ethno linguistic composition of thesociety. [1] Most debates everfederalism are only lightly camouflageddebate to the content of public policyrather than the issue of jurisdictional control,most people have little interests in abstract debates that argue which level ofgovernment should be responsible for a given task. What most people care aboutis getting the policy they want. [2] According to structural Marxism, the source ofpolitics lies in the Social economic structure.This structure determines the workings of political system and pressurespolitical institutions to reflect the underlying social economic factors. [3] The pressure towardcongruence, both the centralist and the decentralist, variants, are hostpronounced in cultural policy area of education andmedia, where ethno linguistic factorfind their first expression. [4] in the USA the Federalismcreates the competition between the national government and the states, betweenthe states and among 83000 local governments, which including: states,counties, townships, municipalities, towns, special districts, and schooldistricts. Nearly a million people hole some kind of public office.


[1] Jan Erk, ExplainingFederealism, London, Routledge. 2009. p.88

[2] Jan Erk, ExplainingFederealism, London, Routledge. 2009. p.90

[3] Jan Erk, ExplainingFederealism, London, Routledge. 2009. p.9

[4] Jan Erk, ExplainingFederealism, London, Routledge. 2009.  p.10


 楼主| 发表于 11/12/2013 23:35:23 | 显示全部楼层
The national government dealexclusively with its enumerated powers in Article I. sec. 8, principallynational defense, international affairs, money and credit, and foreign andinterstate commerce, and the states deal with the most important domesticissues, including education, welfare, health, and criminal justice.“ the powersdelegated by constitution to the federal government are few and defined; whileremain in the state governments are numerous and indefinite. The former will beexercised principally on external objects, as war, peace, negotiation, andforeign commerce; while powers reserved to states will extend to all objectswhich concern the lives, liberties, and properties of the people, and internalorder, improvement , prosperity of the state.” (Federalist No. 45) it is throughvertical and horizontal division of powers to balance and challenge the state powers,to protect individual’s rights.
 楼主| 发表于 11/12/2013 23:40:48 | 显示全部楼层
Federalism based upon many assumptions: policymakers are motivated to make decision on the best maximum societal benefits andminimum costs; they are rational, farsighted, public spirited, and comprehensivein their judgement; They are not distracted by elections, party competition,interest groups pressures, bureaucratic lobbying, or narrow self-interests,assume officials all want to do what is right.[1] All government revenuesderive from personal income, not only personal income tax, but sales and excisetaxes, property taxes, user charges, lottery revenues,  as well Corporate income taxes, severancetaxes, nonpersonal levies also come from personal income.It allowed for thepossibility of federal –state rivalry, shared nation-state responsibilities,the normative bias was toward cooperation rather than competition, and thecooperation expected of states and communities was in achieving goalsdetermined by the national government. Rivalry orcompetition from states and local governments were viewed as parochialbackward, or worse.[2] Just as the market placerequires rules-protection of properties rights, enforcement of contracts,recognized rules of exchange; and a stable monetary system,-so alsointergovernmental competition requires rules.[3]Therefore, the Competitionfederalism is an abstraction or representation of a government system.


[1] Thomas R.Dye, AmericanFederalism Competition Among Government, Toronto, Lexington Books.1990, p.22

[2] Thomas R.Dye, AmericanFederalism Competition Among Government, Toronto, Lexington Books.1990, p.7

[3] Thomas R.Dye, AmericanFederalism Competition Among Government, Toronto, Lexington Books.1990, p.26


 楼主| 发表于 11/12/2013 23:57:55 | 显示全部楼层
本帖最后由 郭国汀 于 11/13/2013 01:42 编辑



The definition of federalism
Federal almost any possible definition presents problems. According to theOxford English Dictionary, federal means “of orpertaining to a covenant, compact or treaty”, “ the nature of that form ofgovernment in which two or more states constitutes a political unity whileremaining more or less independent with regard their internal affairs,”a form of decentralized government.
Dicey’s remarks that federalism as produced weak and ineffective government, conservatism,and legalism.[1] Montesquieu’s  views greatly influenced the creators of theAmerican Constitution, notice of Separation of Powers[2],He argue that a federal republic was a means ofcombining the freedom possible in a small state with the security againstexternal threats that was only possible in a large one. Thus, thefederalism combines the economic advantages of large size with thepossibilities for self-government that exist in a small political community.
British political historian Harold Laski argued that federalism produced weak governments, which in turnincapable of dealing with the big problem of industrialization and massdemocracy of 20 century.[3] Britishpolitical scientist Michael Burgessafter making an extensive study of federalism and federation , argues that“federal theory... At best, there is partial theory base upon rigorousconceptional analysis and the pursuit of terminological precision. At worst there is crass empiricism rooted in the failure todevelop accepts and define the key terms”.[4] Heclaims that federalism deals simultaneously with fundamentalmoral questions as well as with amoralmatter of fact issues. A survey ofcontemporary scholarship on the topic concludes that “ the theory of federalismhas fallen into despair” (Beam, Conlan1983, Dye,1990, .3) the most devotedfederalism scholar, political scientist DanielElazar laments that “not only has the constitutional theory of federalismbeen replaced by a half-backed theory of decentralization, but it is a vulgarand at times, vicious theory as well.( Elazar1980, .84-85,86; Dye 1990, .4) Inthe mid twenty century, practice as well as academic theories of Americanfederalism moved from dualism to a dynamic concept, political scientist Morton Grodzins, emphasized thecomplexity of  federalism is mixedinseparable. Political scientist LutherGulick claimed in the great depression years, that “ the American  state is finished. ” and Harold Laski , remarked “ the obsolescence of federalism”. [5]
Modern federalism was born inAmerican. In 1789, outraged by JohnAdams alien and the sedition laws, Madisonturned against his own invention when he authored the Virginia Resolutions,arguing for the states right to secede from the new union. [6]In19 century, the relationship between the nation and states was that of dualfederalism, stipulating a discrete division of power and responsibility betweenthem.[7]Supreme court decisions that prohibited national Government incursions intodomestic policy remains on the grounds that such actions would invade statesovereignty.[8]Priorto 1945, federation was treated with benign contempt as an incomplete nationalgovernment or a transitional model of political organization.[9]AfterWorld War II, federalism has come to be accepted as a potential way to managediverse societies and a way to combat remote, undemocratic and ineffectivecentral governments.
The British political scientist K.C.Wheare definesfederalism as a form of governance where the ordersof government are coordinate and independent;[10] Daniel Elazar defines federalism as “ the mode of political organization that unites smaller polities within apolitical system by distributing power among general and constituentgovernments in a manner designed to protect the existence and authority of bothnational and sub-national political system enabling all to share in the overall system decision-makingand executing process.[11]Political scientist Paul E.Petersondefines federalism as “a system of government in which powers are dividedbetween higher and lower levels of government in such a way that both levelshave a significant amount of separate and autonomous responsibility for thesocial and economic welfare of those living within their respectivejurisdictions.[12]ADorion defined federal as a realconfederation as “giving the largest powers to thelocal governments and merely a delegated authority to the general government”.[13]The most frequently used definitions, such as K.C. Wheare, Daniel Elazar, WH.Riker,Geoffrey Sawer, emphasize institutional andlegal criteria: two levers of government,each independent of the other; a written constitution specifying thejurisdiction of each; judicial review of legislation as a means of maintainingthe jurisdictional boundaries the requirement that each level of governmenthave a direct relationship with the people; political scientist tend tointerpret these criteria rather broadly, while lawyers are most inclined to excludedoubtful cases. Begin in the 1950s to explore alternative approaches to itsdefinite .United Kingdom, should be considered tohave some federal characteristics. RufusDavid went a step further, questioning whetherany “federal principle” could really be developed  distinguish federal from non-federal states;Carl Frieddrich defined federalism not as a static situation but as a process, bywhich a number of separate political communities were gradually integrated.[14]William Rick’s famous observation that federalism does not exist; and no generalization can bemade about it (1975);  Daniel Elazar, a prominent scholar offederalism in the article of “Exploring Federalism” put in “federalism is a key resource in meeting challenges ofstability and peace in a culturally diverse world”. However, Richard Sinceon say “ that federal structure cannot be the only answer orsolution to managing culture diversity, but that other elements are equallyimportant and condition the success of federalism to generate peace andstability: civil society, party system, charter of Rights and otherinstitutions features such as system of government.”
French thinker PierreJoseph Proudhon’s Du Principe Federatif, is the earliest of sociologicalfederalism. He observed the social and economicdiversity as the reason for adopting federal political institutions. William Livingston argued that the essence of federalism lies not in the institutionalor constitutional structure but in the society itself;[15] he abandoned institutional criteriaalmost entirely and developed the concept of a “ deferral society”, hedefined as any society in which economic,religions, racial, or historical diversities are territorially grouped. A unitary state in which political practices andconventions protected such diversities,
MichaelStein believed that factorssuch as religion, geography, and economics reinforced the territorially basedethno-linguistic differences, but the ethno-linguistic patterns is fundamental.K.C.Wheare claims that “federal government,a system of Government embody predominantly a division of powers betweengeneral and regional authorities, each in its own sphere, coordinate with theothers and independent of them; the central and regional government must haveexclusive control in some areas of activity,[16] he lists the conditions leading to federal union as fellow:The need for common defence, desire for independence fromforeign powers, desire to gain economic benefits, some previous politicalassociation, similar political institutions, geographical closeness, similarsocial conditions and the existence of political elites interested inunification. [17]
Economist Wallace Qatesin FiscalFederalism, wrote that federalism existedin any state where the public sector was decentralized, so that somedecisions about taxing and spending were made by subdivision in response to demandsoriginating within themselves. Johnson defined that “national government refers to what iscommonly called the federal government. Intergovernmental policy refers to lawspolicies, or administrative arrangements that alter the relationship between thenational Government and the states. Federalism will be reserved to mean theconstitutional relationship between the national Government and the states.[18]
Three essential criteria for adefinition of federalism:Should not be unduly restrictive;Should serve todistinguish a federal state both from a unitary state and from looser forms ofassociation such as confederation;Should emphasize the political expects offederalism. Federalism be defined as a politicalsystem in which most or all of the structural elements of the state (executive,legislative, bureaucratic judiciary, army or police, and machinery for levyingtaxation) are duplicated at two levels, with both sets of structures exercisingeffective control over the same territory and populating, neither level couldimpose its will on the other .(Garth 8) The provinces or states are not sovereignentities, and central government does not possess full and complete sovereigntyeither, since it lacks the power to abolish the other level ofgovernment.






[1] A.V.Dicey, Introduction to the Study of the Law ofthe Constitution, 10th ed(London, Macmillan 1961 p.138-80.

[2] Montesquieu, De le Sprit des Lois, (Paris,Garnier, 1973) I . p.141-44.

[3] Jan Erk, ExplainingFederealism, London, Routledge. 2009. p.3 in 1939 an article “TheObsolescence of federalism”.

[4] MichaelBurgess, Comparative Federalism Theory and Practice. London, Roultege,2006. P.1. ( professor of federal studies at the university of Kent)

[5] KimberleyS.Johnson, Governing The American State: Congress and The New Federalism,1877-1929. Princeton & Oxford Princeton university press. 2007.P.15

[6] KimberleyS.Johnson, Governing The American State: Congress and The New Federalism,1877-1929. Princeton & Oxford Princeton university press. 2007.P.13 quote Richard P.Nathan, Updating Theories of American Federalism, editedin Intergovernmental Management for the 21 Century. Washington D.C. BrookingsInstitution Press. 2008. P.13.

[7] KimberleyS.Johnson, Governing The American State: Congress and The New Federalism,1877-1929. Princeton & Oxford Princeton university press. 2007.P.14

[8] KimberleyS.Johnson, Governing The American State: Congress and The New Federalism,1877-1929. Princeton & Oxford Princeton university press. 2007.P.14

[9] Jan Erk, ExplainingFederealism, London, Routledge. 2009. p.3 see Ronald Watts 1994.

[10] K.C.Wheare, FederalGovernment, London: Oxford University Press. 1946. P.3.

[11] Elazar, DanielJ. TheAmerican Partnership: Intergovernment Cooperation in 19 Century USA.Chicago: University of Chicago Press. 1966, p.2. see Dye 1990.

[12] Peterson, PaulE., CityLimits. Chicago: University of Chicago Press. 1981.P.67

[13] Garth 6).

[14] Garth7)

[15] Jan Erk, ExplainingFederealism, London, Routledge. 2009.  p.4

[16] K.C.Wheare, FederalGovernment 4ed, New York, Oxford university Press. 1964, p. 33

[17] K.C. Wheare, FederalGovernment, 4ed, New York.Oxford University Press. 1964,p.37.

[18] KimberleyS.Johnson, Governing The American State: Congress and The New Federalism,1877-1929. Princeton & Oxford Princeton university press. 2007. P.4


 楼主| 发表于 11/13/2013 00:53:01 | 显示全部楼层
Federalism andfederation
Federalismand federations are about strutting and organizingpolitical power; refer to the territorial divided of powers, which unitis empowered to act in which policy area (education, social service, andenvironment, health care).  Federalism asa principle to fragment political powers and createchecks and balances in the political system, offer a protection againstabsolutism and authoritarianism in two ways: limits power, and make politicalpower that can check and monitor each others action.Federalism is a principle of government thatseeks to reconcile unity and diversity, through exercise of political powersalone multiple autonomous levels. It is the Ideas of combining self-rule andshare rule. Federalism is political systemwhere more levels of government are sovereign within their own specifiedjurisdiction. Federalism attempts to maintain thedelicate balance between the federal government tendency to favourcentralization and the will of the units to preserve and expend their ownpower. Federalism is a liberal idea;territorial self rule cannot exist in any meaningful in an authoritarian regime.The logic of federalism whereby each level of government is sovereign withinits own jurisdiction. In essence, a federal arrangement is partnership, established and regulated by a covenant, whose internal relationships reflect thespecial kind of sharing that must prevail among the partners, base on a mutualrecognition of the integrity of each partner, to foster a special unity[1]. Federal principles are concerned with thecombination of self rule and shared rule. Link different units to pursuit ofcommon ends while maintaining the respective integrities of all parties. Sharedecision making and executive process, maintain respective integrities. Federalismcan reflected more will of people in public policy. A federation is a polity compounded of strong constituent entitiesand a strong general government, each possessing powers delegated to it by thepeople and empowered to deal diversity with the citizenry in the exercise ofthose powers.
K.C.Whearelists the conditions leading to federal union as fellow: The need for common defence, desire for independence from foreign powers, desire to gain economic benefits, some previous politicalassociation, similar political institutions, geographical closeness, similarsocial conditions and the existence of political elites interested inunification. [2]A weak state whose power is divided between two sets of authorities andrestrained by legal restrictions is safer than a strong state and vigorous ,because it is less likely to be oppressive. Dispersed and divided power is lessdangerous than concentrate power, and the cumbersomedecision-making procedures in a federal state make it less likely thatunpredictable eruption of popular sentiment. Even if government tries to beoppressive, other lever, and judiciary, will prevent it from doing too muchharm[3]. BecauseFederalism protect minority and enables culture, linguistic, religious, andideological diversities  to flourish.  


[1]
Daniel Elazar, “ Exploring Federalism”p.261. Reeta C. Tremblay,  Mapping thePolitical Landscape” Thomson Nelson. 2005.

[2]
K.C. Wheare, Federal Government, 4ed(NY.Oxford University Press. 1964)p.37.

[3]
Madison’s No 10. Federalist paper.


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