Federalism VS Coexistence

Federalism VS Coexistence? - Thinking Outside of the Box Presented by: Prof. Dr. Cananea Date: 22 March 2024 A First Cut At The Argument - The differentiation of the EU and its law: it is an intriguing topic, especially from the viewpoint of (moderate) pluralism - Differentiation is often regarded from the perspective of what may be called - with a metaphor - the 'ascending scale' view of diversity within a polity; that is, a scale ordered by an increasing order or trend, from the lowest to the highest, without reversing direction - As a first step, I will illustrate both the essence and the elements of strength of the 'ascending scale' view. This will be followed by the analysis of some difficulties with such view The 'Ascending Scale' View Of Diversity Within A Polity - The 'ascending scale' vision of diversity: diversity can be viewed in an increasing manner, that is, ranging from polities which are characterized by homogeneity, such as unitary States, to those that should allow for more diversity, such as federations, and ending with unions of states, such as the EU - Its elements of strength: there is clear argument about what the real world is like and there is a strong normative claim about the EU, which is doomed to be characterized by much diversity - Analytically: • A. Nation states: except for ethnically diverse states without aspirations for mono-ethnicity, such as Spain and the UK, many of the newer European nationstates in the nineteenth century had one crucial defining feature: they strove to be ethnically homogeneous. The rule making system: the power to legislate on many important issues is centralized. France exemplifies this • B. Federations are characterized by a more or less pronounced heterogeneity. This is the case of Spain, the US and, in particular, Canada. They are also characterized by the conferral of legislative powers to both levels of government • C. A fortiori, unions of states are even more heterogeneous than federations. Thus, e.g., under Art. 4 (2) TEU: the EU "shall respect... national identities". Moreover, legislative powers are limited by a strict doctrine of conferral: the Union is based on attributed power The Weaknesses Of The 'Ascending Scale' View Of Diversity - The 'ascending scale' vision is flawed both normatively and empirically. - Normatively, even though these elements of fact were proven, there would not be a normative theory of these three types of polities, in the sense that, if a certain polity is included within one of them, there are inevitably some consequences that follow from this. Thus, it could not be said that, since Belgium or Canada are federations, X follows from this - Empirically: • A. Even within traditionally homogeneous and unitary states, such as France, the second half of the twentieth century has seen the recognition of both ethnic and linguistic minorities, notably in Corse and Bretagne, as well as the creation of territorial bodies entrusted with legislative powers, regions: social groups (languages), cultures and political systems. Their powers are particularly significant, e.g., in Germany • B. Federations are not necessarily the product of ethnic and cultural diversity: this is the case with Canada, but not with Australia. The Weaknesses Of The 'Ascending Scale' View Of Diversity: The EU - A. the EU is characterized by a marked ethnic and linguistic diversity, which must be respected: Art. 22 CFR. However, consider India, where the languages spoken belong to very different language families, the major ones being the Indo-Aryan language (78% of Indians) and the Dravidian languages (spoken by 19.64%) in Southern India. Interestingly, Article 343 of the Constitution affirmed that the official language is Hindi, with official use of English to continue for 15 years from 1947. Later, a constitutional amendment allowed for the continuation of English alongside Hindi in the Indian government indefinitely - B. Moral diversity: while in the US, a federation, there is a great diversity concerning, in particular, life and death; that is, abortion and capital punishment, Guido Calabresi has convincingly argued that if the EU has resisted for so many decades it is precisely because "the value differences are remarkably limited" (Federalism and Moral Disagreement, 101 Minnesota L.R. 1, at 14 (2016). - C. rule-making: consider government procurement. While in the US state and local governments can use no-bid contracts (also known as sole-source contracts, are contracts that are awarded to a single vendor without going through a competitive bidding process), subject to their own procurement regulations, this is prohibited by EU law, - D. Finally, and perhaps more critically from the viewpoint of some member states, upholding democracy, the rule of law and fundamental rights, three of the fundamental values upon which the EU is founded (art. 2 TEU), is a shared responsibility of all Member States and EU institutions. These cannot be regarded, therefore, as 'internal affairs' What's Next? - We have considered both the normative and descriptive adequacy of the 'ascending scale' view. We have found that, whatever its appeal, it does not withstand critical scrutiny - We need, therefore, a more adequate legal theory of modern polities - In the remaining time, I can only mention, without examining them in detail, some elements of a more adequate theory: • 1. Methodologically, the idea that nation states, federations and unions of states are fixed and immutable a priori categories is flawed and must, therefore, be revised • 2. A legal theory that takes for granted the differences between three categories should be revised. The real world is more complex and this should be taken into due account • 3. There are obvious differences between these three types of polities. The degree of difference in this respect should not, however, be exaggerated. This is because even within a supranational organization, the grounds for intervention do exist and have been used • 4. Suffice it to say for the present, that other things being equal, the more serious the threat to common values, the more likely it is that action will be taken on the basis of established legal mechanisms