JUDGE MADE FEDERALISM

Vol. 19 No. 10 (October, 2009) pp.788-790

JUDGE MADE FEDERALISM: THE ROLE OF COURTS IN FEDERAL SYSTEMS, by Beniamino Caravita di Toritto, Jutta Kramer, and Hans-Peter Schneider (eds). Baden Baden, Germany: Nomos Verlagsgesellschaft, 2009. 260pp. Paper. $61.00/€49.00. ISBN: 9783832942229.

Reviewed by Kirk A. Randazzo, Department of Political Science, University of South Carolina.

Email: randazzo [at] mailbox.sc.edu .

Many political issues around the world arise because of the relationship between superior and inferior governmental units in federal systems. Lacking appropriate political solutions, these issues often enter the judicial arena through specific litigation. For many scholars, questions concerning federalism and judicial decision-making are extremely important. Yet, few examinations exist that focus on federalism across multiple institutional environments. Thankfully, Professors di Toritto, Kramer, and Schneider – and their edited volume, JUDGE MADE FEDERALISM: THE ROLE OF COURTS IN FEDERAL SYSTEMS – provides insights taken from several countries.

The book is organized around country-specific chapters, with authors providing details pertaining to important constitutional and federalism questions within the specific jurisdiction of their courts. The countries represented include Italy, South Africa, Spain, Great Britain, Germany, Russia, Australia, Canada, the United States, and Austria. Additionally, a final chapter focuses on questions of federalism as they manifest in common law versus civil law countries. Without discussing each chapter individually, let me comment on a few notable examples to illustrate the types of information provided in JUDGE MADE FEDERALISM.

The book begins with a chapter written by Beniamino Caravita di Toritto on the Italian Constitutional Court and its role in recent constitutional reforms. Professor di Toritto notes the myriad of problems involving questions of federalism since the constitutional reforms of 1999 and 2003. For example, several substantive areas of law are covered by concurrent legislation from the central State and the Regions. The resulting confusion has allowed the Italian Constitutional Court to modify “the relationship between the central State and the Regions, based on the relation [of] fundamental principles” (p.26). These fundamental principles include a) detail legislation; b) a sense of bargaining in the Court’s jurisprudence; and c) more involvement of the Regions in the political decision making procedures of the central State.

Nico Steytler then discusses questions of federalism in the Constitutional Court of South Africa. Here, Professor Steytler notes that in the past ten years, the Court has adjudicated several important federalism questions and has stressed that each question was approached “from a position of judicial neutrality, neither for nor against national or provincial government” (p.27). Rather, Professor Steytler argues that when the Constitutional Court renders decisions, “the pragmatics of good governance [*789] become the overriding concern, namely as it most basic level, the ability to deliver services in terms of the law” (p.40).

In examining the Constitutional Court of Spain, Miguel A. Cabellos Espiérrez makes a distinction between two different types of decisions. The first type seeks to “establish doctrine in relation to the major concepts on which the autonomic system is based” (p.43). These include autonomy, the structural principles of the autonomic system, and the relationship between legal orders. The second type of decision focuses on competences in specific areas. Professor Cabellos Espiérrez also notes the somewhat unique legal system in Spain, where “either the State or an Autonomous Community may challenge the norms, provisions, and resolutions of the other body, and one Autonomous Community may also initiate such challenges in relation to another” (p.44). One additional issue that confronts the Spanish Constitutional Court involves substantial delays with decisions. As Professor Cabellos Espiérrez explains, “as a result of these delays, the resolution of a conflict of jurisdiction frequently arrives when the norm under appeal has already been in effect for many years, and in many cases when the damage done cannot be repaired” (p.61).

In the United Kingdom, devolution to Scotland, Wales, and Northern Ireland came following referenda in 1998. As Robert Hazell explains, while these regions operate under the sovereignty of the Westminster Parliament, there are “different sets of powers and functions” granted to each and “very different constitutional designs of the Scottish Parliament, National Assembly for Wales, and Northern Ireland Assembly” (p.66). Yet, the three regions are supposed to litigate ‘devolution issues’ before the Judicial Committee of the Privy Council as required by legislation. However, “in the first six years of devolution no division of powers cases have been referred to the courts” (p.66). Consequently, as Professor Hazell explains, “in the absence of court judgments, the Law Officers provide opinions which are treated as authoritative” (p.67). One of the primary explanations provided for a lack of litigation involves the “Labor-led administrations in London, Edinburgh, and Cardiff, and that this harmony will break down once there are governments of different political persuasions” (p.77).

Jutta Kramer’s essay focuses on questions of federalism in Germany, and notes that “the federal system is submitted to judicial review not only by the Federal Constitutional Court but also by the sixteen Constitutional Courts of the Länder” (p.89). Consequently, it is not unusual to encounter a wide variation of decisions pertaining to federalism at both levels, which sometimes deviate from each other. Additionally, Professor Kramer notes that “the Länder more often challenge the Federation before the Federal Constitutional Court arguing that that Federation has legislated on matters of their exclusive competence” (p.89). The overall conclusion from Professor Kramer’s examination is that the “German Federal Constitutional Court is neither a real promoter of unitarisation nor of decentralization of competences within the German federal system. It rather tries to interpret the Basic Law as narrow as possible” (p.97). [*790]

Hans-Peter Schneider’s examination of Germany focuses on three principles of judge made federalism – loyalty, solidarity, and subsidiarity. He notes that “the German Basic Law provides for no less than five different procedures which can be used in order to take federal disputes between the Federation and the Länder to courts (p.99). As a result, “this vast range of competencies of the courts in federal matters has caused an enormous bulk of decisions dealing with the relationship between the Federation and the Länder or with the constitutional relations of the Länder amongst themselves” (p.99). According to Professor Schneider, the principle of loyalty dates back to the first German Empire established by Bismarck and requires levels of government to “treat each other with respect, kindness, and favor” (p.100). The principle of solidarity is based on the fundamental structure of Germany as a social state. Finally, the principle of subsidiarity means “that matters should be handled by the smallest or the lowest competent authority, so that a central authority should have only subsidiary functions performing only those tasks which cannot be performed sufficiently and effectively at a more immediate or lower level” (p.103).

While I enjoyed reading each of the country-specific essays provided by the various authors, there is one minor (and I stress minor) criticism I could levy against the entire edited volume – the lack of a single, organizing theme. Without such a theme, the essays seem to reflect a simple collection of country anecdotes related to federalism. The inclusion of a well-articulated theoretical framework or organizing theme could have brought the disparate chapters together in a more cohesive volume. It is possible that such a theme is present in the book’s introduction. However, that introduction is written in German – a language which is foreign to me. This raises an interesting question concerning the editors’ choice to offer an introduction in German. It is not clear why this choice was made, perhaps to broaden the appeal of the book to audiences outside the United States. Unfortunately, it seems that a bilingual volume is more likely to reach a narrow audience (i.e. those who are fluent in both languages) rather than a broad set of readers.

Despite this criticism, I believe this is a well-written book that accomplishes an important goal – to help explain how judges in various institutional environments adjudicate disputes involving questions of federalism. For those scholars interested in this topic, I would recommend this volume.

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