TYPES OF FEDERALISM

Forthcoming, Max Planck Encyclopedia of Comparative Constitutional Law

Nicholas Aroney
Professor of Constitutional Law, University of Queensland*

A. INTRODUCTION

It is commonplace today to distinguish between ‘federalism’ conceived as a normative

or ideological commitment to the federal principle, ‘federal systems’ as forms of government
in which the federal principle is instantiated, and a wide array of particular kinds of federal
system (King 1982, 19-21; Elazar 1987, 38-64; Watts 2008, 8). Among these specific kinds,
an historically significant distinction has often been drawn between ‘federations’ and
‘confederations’ (Sawer 1969, 8; Lister 1999, 1; Hueglin and Fenna 2015, 19-21; Kincaid
2011, vol. I, 4; Halberstam 2012, 578-83; Føllesdal 2014), and federations are today
frequently distinguished between those that come into being through ‘aggregation’ of a
plurality of states and those that come into being through ‘devolution’ within a single state
(Lenaerts 1990; Stepan 2001, ch 15; Watts 2008, ch 3). It is also common to distinguish
between ‘symmetrical’ federal systems, in which the constituent states are treated equally,
and ‘asymmetrical’ arrangements, in which their constitutional status and powers are
different. Asymmetrical systems can include what Daniel Elazar identified as ‘associated
states’, ‘federacies’ and ‘condominiums’, which involve special asymmetrical arrangements
between small states and former colonial powers (Elazar 1987, 54-58). In addition, there is a
commonplace distinction drawn between ‘coordinate’ or ‘dual’ federalism, predicated on a
division of competences of the federation and the constituent states into distinct ‘spheres’
(Dicey 1924, 134-67, 476-80; Wheare 1963, ch 1), and ‘administrative’ federalism,
predicated on a ‘sharing’ of responsibilities and a ‘cooperative’ approach to government
regulation across federal, state and local levels government (Hueglin and Fenna 2015, 61-3).
Many of these distinctions between types of systems rest on an array of controversial
ideas about the nature of the ‘state’ and the deeply contested concept of ‘sovereignty’ (Davis
1978, ch 3; Friedrich 1968, 8; Laski 1968, 267-8). In ‘multinational’ federations, which

*
Thanks are due to Professor Alan Fenna for commenting on an earlier draft.

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consist of distinct national peoples identified with particular territories within a federal state,
the location and nature of sovereignty is an especially contested matter (Tierney 2008). To
identify the various kinds of federal system in a manner that is both empirically warranted
and conceptually coherent necessitates a critical engagement with these complex and elusive
ideas.

B. HISTORICAL CONTEXT

1. Early Federal Ideas

Some historical context is necessary. The term ‘federal’ is derived from a Latin root,
foedus, generally translated ‘treaty’, ‘pact’ or ‘covenant’, and which in Roman Law referred
to a treaty formed between Rome and one or more allied states (Berger 1991, 474). In
medieval Europe, the term was applied to a wide variety of treaty-based relationships
between all manner of political entities at the scale of cities, provinces, kingdoms and even
empires. As late as the seventeenth century, Hugo Grotius used the term federa to designate
such treaties (Grotius 1646, 263 [ii.vi.i]) and John Locke could refer to the ‘federative’ power
of the commonwealth as the ‘power of war and peace, leagues and alliances, and all the
transactions, with all persons and communities without the commonwealth’ (Locke 1689
[§146]). A related term, confederatio, was sometimes used to designate the league or
association formed by such agreements, such as that established by the cantons of Uri,
Schwyz and Unterwalden in the late thirteenth century, which formed the core of the modern
federation of Switzerland (Forsyth 1981, ch 2; Lister 1999, ch 4). While grounded in a kind
of agreement among independent political communities, a confederation could give rise to
close relationships among those communities, described as a kind of oath-bound fellowship.
Even today, the Swiss federation is officially called Confoederatio Helvetica in Latin,
Confédération Suisse in French and Schweizerische Eidgenossenschaft (‘oath-fellowship’) in
German.
Another important source of federal ideas in late medieval and early modern Europe
were the covenants of the Bible, especially as understood by the ‘federal’ or ‘covenant’
theology of the Reformation (Elazar 1995-1998; Elazar & Kincaid 2000; McCoy & Baker
1991; Ostrom 1991, ch 3). While medieval thinkers such as Thomas Aquinas, John of Paris
and Nicolas of Cues adapted Aristotelian political thought to the vast plurality of secular and
religious institutions of late medieval society (Aroney 2007), in the early seventeenth century
the idea that human societies might be constituted through a succession of covenants or pacts

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among households, villages, towns, cities and provinces especially took hold among Calvinist
political philosophers such as Johannes Althusius (Althusius 1610; Gierke 1939; Hueglin
1999; Riley 1976). These ideas were highly influential in colonial America, where the
foundations of local religious and political communities, and relations between such
communities, were conceived in terms of the ‘covenant’ idea (Hyneman & Lutz 1983; Lutz
1998; Schechter 1990; Witte 2007, ch 5). The Constitution of the United States of America
(1788), widely regarded as establishing the first ‘modern’ federation, was in some respects an
innovative adaptation of these ideas of ‘treaty’, ‘covenant’ and ‘compact’ to the
circumstances of the American colonies, albeit in connection with several other important
political and constitutional ideas (Bailyn 1967, 32; Wood 1969, 114-8).

2. Contemporary Federalism

The potential reach of the federal idea is thus very wide. It can refer to forms of human
relationship conventionally thought to belong to very different domains: social and political,
religious and secular, and personal and territorial (→ ‘federalism, political philosophy of’).
Within the disciplines of political science and law, however, the term ‘federal’ is generally
understood in a restricted sense to refer to a particular form of state organisation defined
primarily in political, secular and territorial terms (see Schmitt 2008, Pt IV). This is largely
due to the rise of the Westphalian system of nation-states from the seventeenth century and
the attribution of sovereignty to such states as a matter of both international and domestic law
(Cassese 2005, 48). Considered externally such sovereignty entailed the jurisdictional
independence of each state from all others, while considered internally it entailed the
supremacy of the governing institutions of the state over all persons and groups within its
territorial jurisdiction (Bodin 1606, 1.8; Hobbes 1651, 2.18, 2.20, 2.26). In such a framework,
federalism came to be understood less as a matter of ‘oath-bound’ fellowship and more as a
particular expression of state sovereignty.
This certainly seems to have been the case when, in the late eighteenth century, the
political leaders of the thirteen American states were negotiating the terms of a ‘foederal’
union, first under the Articles of Confederation of 1781 and later under the Constitution of
1788. At the time, the federal idea continued to draw sustenance from its social, religious and
personal connotations, but the constitutional debate was conducted in largely juridical and
political terms. Federations were conceived, in essence, to be founded upon agreements
between sovereign states. As James Madison put it, a true federation comes into being
through the ‘unanimous assent of the several states that are parties to it’, each state being

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considered ‘a sovereign body, independent of all others, and only bound by its own voluntary
act’ (Madison 1788, 243-4). Moreover, according to Madison, a genuinely federal
arrangement between states will preserve the fundamental principle of their sovereign
equality. While the states may agree to assemble together to formulate common policies for
the conduct of their internal and external affairs, each state will ordinarily insist on being
equally represented in the federal council or assembly, will preserve to itself an essential role
in the implementation of federal policies, and will retain an individual veto over any
proposed change to the federal arrangement (Madison 1788, 244-6).
The Articles of Confederation adhered to this idea of a federal union as a ‘compact
between states’. However, the Constitution drafted at the convention held at Philadelphia in
1787 proposed a subtly different arrangement, which Oliver Ellsworth called ‘partly federal;
partly national’ (Farrand 1911, I:468; Diamond 1961; Ostrom 1987). As Madison later
explained, a purely ‘national’ constitution, if ‘republican’ in form, would (a) derive its
authority from ‘the people’ of the nation as a whole, (b) establish governing institutions that
were representative of the people, and (c) be amendable by the people (Madison 1788, 243-
6). Madison argued that the proposed Constitution was entirely ‘federal’ in its foundation
because it only bound those states that freely ratified it, but it was partly federal, partly
national in several other respects, including the design of federal legislature, which was to
consist of two chambers, one in which the states would be equally represented, the other in
which representation would be proportionate to the population of each state. Further, the
executive power of the federation was to be vested in a President chosen by an electoral
college which combined both principles of representation, and the constitution could be
amendable by three-quarters of states upon the initiative of two-thirds within the federal
legislature, breaking with the rule of unanimity that existed under the Articles of
Confederation (Madison 1788, 244-6).
The American Constitution thus marked a partial break with the received idea of a
‘confederation’ as exemplified in the Swiss Confoederatio (c 1291-1848), the Hanseatic
League (C13-17), the Iroquois Confederacy (C15-18), the United Provinces of the
Netherlands (1581-1795) and the New England Confederation (1643–1684). From the
standpoint of the late seventeenth century, each of these confederations was conceived,
somewhat anachronistically, as predicated upon the sovereign equality of the constituent
political communities. The United States Constitution seemed to depart from these principles,
at least to the extent that it combined ‘national’ and ‘federal’ principles into a new political
synthesis. In the next century, Switzerland, and later Australia, would follow a similar
trajectory, substituting earlier ‘confederal’ arrangements (the Swiss Pact of 1815 and the
Federal Council of Australasia of 1885) for modern ‘federal’ ones (the Swiss Constitution of
1848 and the Australian Constitution of 1901). Over a similar timeframe, Germany went
through transitions that were even more complex and far-reaching, as the structures and
relationships of the old Holy Roman Empire (962-1806), were successively replaced by the
Confederation of the Rhine (1806), the German Bund (1815), the North German
Confederation (1866), the German Empire (1871), the Weimar Republic (1919) and the Third
Reich (1933) and the modern Federal Republic (1949).

C. CLASSIFICATORY CRITERIA

1. Federation and Confederation

The new form of federal union exemplified by countries such as the United States,
Switzerland, Australia and Germany made it necessary to develop a new terminology to
designate the new political form that Ellsworth and Madison had somewhat awkwardly called
‘partly national, partly federal’. Three new categories were devised. In English the terms
most frequently used were ‘confederation’, ‘federation’ and ‘unitary state’, while in German
the corresponding terms were Staatenbund, Bundesstaat and Staat. The distinction between
these three forms of government has dominated political and legal categorisations ever since.
However, the exact nature of the difference between them has been a matter of controversy.
On one view, the most important question is to identify the location of sovereignty.
According to this approach, the conceptually most basic category is that of the ‘state’
simpliciter and the defining feature of the state is its possession of sovereignty. As such, the
ordinary condition of a state is to be a ‘unitary’ political community, predicated on a single
locus of sovereignty, internally and externally. On this view, what distinguishes a federation
from a confederation is that in the former, sovereignty is vested in the state itself (conceived
as a singular ‘federal-state’ or Bundesstaat), while in a confederation, sovereignty remains
vested in each of the several constituent states (conceived as a plural ‘confederation of states’
or Staatenbund). On this view, a federation is a special kind of state, in which governing
powers are divided between levels of government, but in which sovereignty is concentrated in
a unitary locus of constituent power (Jellinek 1882; Burgess 1890).
The first part of the difficulty with this approach concerns the essentially contested
nature of the concept of sovereignty. Although the idea is widely invoked, it is subject to deep
disagreement about its definition, attributes and coherence (Sarooshi 2004). Secondly, even if
a workable definition of sovereignty applicable to unitary states might be devised, it is not
clear that the idea can easily be applied to modern federations. This is because federations
display a variety of institutional features, some of which seem to fit the one-state theory,
others of which make them look more like a plurality of states. Thus, the constitutions of the
United States, Switzerland and Australia, for example, each came into being when a plurality
of states agreed to establish a federal system of government among themselves (Aroney
2009; Aubert 1967; Berger 1987). This involved the creation of what James Bryce called a
‘commonwealth of commonwealths’, by which he meant ‘a state which, while one, is
nevertheless composed of other states even more essential to its existence than it is to theirs’
(Bryce 1889, I:12-15, 332). It is this simultaneous unity-in-plurality—or plurality-in-unity—
that makes it impossible to say, decisively, whether sovereignty is vested in the ‘composite
state’ or the ‘constituent states’ of modern federations. In virtually all federal constitutions,
especially those that come into being through an aggregation of states, some such
combination of unity and plurality is expressed in (a) the establishment of a federal
legislature consisting of two chambers, one of which is representative of the plurality of
constituent states, the other of which is representative of the one composite state, (b) the
constitutionally entrenched distribution of legislative, executive and judicial powers between
the constituent states and the composite state, such that there is a direct relationship between
individual citizens and the institutions of both sets of governments, and (c) provision that the
constitution itself can only be altered through a process that depends on the agency of both
the constituent states and the federation as a whole (→ ‘federalism, representation of states’,
‘federalism, delegated powers’).

2. Aggregation and Devolution

When viewed in this way, the difference between federations and confederations is
more subtle and complex than merely a matter of identifying the location of sovereignty. If
we take federal systems that come into being through the aggregation of previously separate
states as a class, so-called confederations and federations have this feature in common: they
are both founded upon an agreement or what Riker (1964) called a ‘bargain’ among
constituent states. This agreement may be negotiated and ratified by executive heads of
government, representative legislative bodies, specially elected conventions or popular
referendums, but the phenomenon of state-by-state ratification is a characteristic of them all.
The constitutional process by which devolutionary federations come into being is, at a
certain level of analysis, fundamentally different from the process by which aggregative
systems are formed. In Belgium, Spain and the United Kingdom, for example, the formal
process of federalisation or devolution occurred through the exercise of powers and
procedures provided for by the national constitution of each country, whether a written
constitution in the case of Belgium and Spain, or an unwritten one in the case of the United
Kingdom. In all three cases, the concentrated powers of government of a formerly unitary
state have been distributed among component political units. However, it is important not to
exaggerate the distinction between aggregation and devolution. In Belgium, Spain and the
United Kingdom, while federalisation occurred in accordance with the constitutional law of
the nation-state as a whole, the real political initiative came from nascent sub-state political
communities (Aroney 2014; Colino 2009; Deschouwer 2005). Moreover, these embryonic
component states corresponded, in each case, to very old regional communal and national
identities, such as Catalonia and the Basque country in Spain, the Walloon and Flemish
communities in Belgium, and Scotland, Northern Ireland and Wales in the United Kingdom.
As such, while such systems are properly defined as devolutionary because, as a matter of
formal constitutional law, they involve the transfer of governing powers from a formerly
unitary state to newly recognised regional political institutions, as a matter of political reality,
federalisation occurred as the result of negotiations between the original unitary state and
emergent leaders of the nascent sub-state political communities. There is thus a real sense in
which the fundamental character of federalism remains the existence of a foedus or ‘compact’
(Davis 1978, 215-16; Beaud 2009), even when the formal constitutional foundations of a
federal system are devolutionary.
The distinction between formal constitutional law and substantive politics makes it
possible to identify an additional, middle category of federal system that comes about through
processes that involve elements of both aggregation and devolution. Several federations
formed in former European colonies have this characteristic. Canada and Australia can be
offered as illustrations (Aroney 2015). On the aggregative side, both federal systems came
about through a negotiated union of pre-existing, self-governing colonies. However, while the
colonies were self-governing, they still remained subject, as a matter of formal and
constitutional law, to the authority of the British Parliament. It was therefore necessary for
their federal constitutions to be enacted into law by statutes passed by the Parliament at
Westminster. Moreover, in the case of Canada, the constituent provinces of Ontario and
Québec were, prior to the establishment of the modern Canadian federation in 1867,
consolidated into a single colony. Accordingly, the formation of the Canadian federation
involved the dis-aggregation of the old colony of Canada into the two new provinces of
English-speaking Ontario and French-speaking Québec, as well as their federal aggregation
with the distinct and pre-existing maritime provinces of Nova Scotia and New Brunswick.
Indeed, the relative size and bargaining power of Ontario and Québec compared to the two
maritime provinces gave rise to asymmetrical structures within the new federation,
exemplified by the provision that while Ontario and Québec were equally represented in the
federal Senate, Nova Scotia and New Brunswick received only half that representation
(British North America Act 1867, s 22). Moreover, the position of Québec as a Francophone
province gave rise to special provisions in the federal constitution to enable all of the
provinces, but especially Québec, to preserve their distinct cultural and communal identities.
By contrast, the Australian colonies, all of which were predominantly British in cultural
composition, regarded themselves as constitutive equals when negotiating the terms of the
federal constitution, and this gave rise to a federal system in which the constituent states were
treated symmetrically. Federations created out of former European colonies, such as
Argentina, Brazil, Mexico and Venezuela in Latin America, and Nigeria and Ethiopia in
Africa, as well as the federal systems established in Germany and Austria under Allied
supervision following the Second World War, also display ‘mixed’ characteristics of both
aggregation and devolution: of bottom-up pressure to devolve power, and top-down control
over the form that the federalised state will take.

3. Symmetry and Asymmetry

The distinction between symmetrical and asymmetrical federations is an important one

(→’federalism, symmetric’, ‘federalism, asymmetric’). Indeed, as the cases discussed so far
suggest, there seems to be a relationship between formally devolutionary elements in the
construction of a federation and asymmetries in the treatment of the constituent political
units, and vice versa in the case of aggregative federations. This is because aggregation tends
to presuppose constitutive equality among the states, and when negotiating the terms of a
federal constitution, the constituent states, no matter what their size, population or economic
or military power, tend to insist on being treated equally in the negotiations and under the
constitution being negotiated (eg, Australia, Switzerland, United States). These conditions are
less likely to apply in devolutionary systems, where formal constitutive authority is originally
vested in institutions and political processes that belong to the unitary state as a whole. The
substantive pressure to federalise is usually exerted by particular nascent sub-state political
communities that happen emerge, but such emergence is not necessarily uniform. Some sub-
state communities may be more powerful or influential than others, and some may be more
insistent on attaining measures of political autonomy than others. Devolutionary systems tend
therefore to make special arrangements to accommodate these pressures, and these special
arrangements are liable to differ among the constituent political communities. Such special
arrangements may involve differential representation of the constituent units in the federal
legislature (eg, Canada, Germany, India) as well as asymmetrical distribution of powers
among the federation and the constituent units (eg, Malaysia, Russia, Spain, United
Kingdom).

4. Uninational and Multinational

Federal systems may consist of consistent states whose ethnicity, language, culture or
religion tends to be either homogenous or heterogeneous (Stepan 2001, 323-8). If these kinds
of diversity exist in a manner that is spatially or territorially expressed, federalism can enable
peoples of diverse nationality or cultural identity to exercise self-government while sharing a
common overarching federal government. The Swiss federal system, for example, grew in
size over several centuries through the gradual aggregation of new constituent cantons which
differed considerably in religion (Catholic and Protestant) and language (initially German,
but later French, Italian and Romansch) , enabling the distinct cultural identities of the people
of each canton to be preserved within an evolving federal system of government (Fleiner and
Hertig 2010). Belgium, Spain and the United Kingdom consist of a plurality of substate
national peoples formerly governed under unitary systems of government but which have
successfully agitated for devolution of substantial powers of self-government (Delmartino,
Dumont and Van Drooghenbroeck 2010; Moreno and Colino 2010). In this way, binational or
multinational federations may have their genesis in processes that are predominantly
aggregative or devolutionary, or, as in the case of Canada, come into being through a mixture
of both formative processes (Gagnon and Simeon 2010). Formally federal constitutional
arrangements may also be used as a means by which national peoples are coercively forced
into a political relationship with a more powerful state, as occurred in the Union of Soviet
Socialist Republics and arguably influences the nature and style of Russian federalism today
(Busygina and Heinemann-Grüder 2010). In these ways, multinational federalism can be
relatively aggregative, devolutionary or coercive in nature and origin (Stepan 2001, 320-23).
Federal systems, may also be predominantly uninational, however, as in Austria and Germany
(Bendel and Sturm 2010), and their multiculturalism may be expressed in a manner that tends
not to be correlated to territory, as in Australia, Brazil, and the United States (Aroney 2010;
De Castro and Rodrigues 2010; Kincaid 2010). Diversity, and its spatial or territorial
expression, is usually a matter of degree, however, so that even in the territorially most
homogenous federations, important cultural, political and economic differences between
constituent states can still exist (eg Aroney, Prasser and Taylor 2012).

5. Coordination and Cooperation

The representation of the constituent states and the distribution of powers within a
federation can be organised in a manner that tends to treat the federal and state governments
as ‘coordinate’ institutions intended to operate in distinct spheres or as ‘cooperative’
institutions that share responsibility for the determination and implementation of government
policy. Models of coordinate or ‘dual’ federalism thus conceive the federation and the states
as each exercising legislative, executive and judicial powers in a largely autonomous manner
in separate fields, whereas cooperative or ‘administrative’ federalism conceives them as
performing different governmental functions within shared fields of operation: the federal
institutions enacting the relevant legislation and the state institutions administering that
legislation. Thus in the United States, on one hand, both the federation and the states have
their own distinct legislative, executive and judicial institutions which continue to enact,
administer and enforce their own distinct bodies of law. In Germany, on the other hand,
despite recent changes to the distribution of legislative powers (Gunlicks 2012), the Länder
governments share in the enactment of federal legislation by being directly represented in the
second chamber of the federal legislature (the Bundesrat) and they play the leading role in the
implementation and administration of those laws (Gunlicks 2003). Although most federations
display significant degrees of overlap in responsibilities in practice (Grodzins and Elazar
1974), this distinction between coordinate and cooperative federalism helps to explain
important features of the Australian, American and Canadian federal systems on one hand and
Austrian, German and Swiss federalism on the other. However, the extent to which these
divergent principles of coordination and cooperation are embedded in the constitutional law
and political operation of these countries varies considerably from one federal system to
another. For example, whether the system of government within a federation is presidential
(eg, Brazil, Mexico, United States) or parliamentary (eg, Australia, Canada, India, Germany)
influences the way in which intergovernmental relations are organised and operate in practice
(Hueglin and Fenna 2015, 242-3).
D. SYSTEMIC CHARACTERISTICS

1. Location of Constituent Authority

Distinguishing different types of federal system is thus a complex matter. Each federal
system is a unique product of the distinct constitutional, political, cultural and economic
conditions under which it came into being and has developed over time. Some clarity can be
achieved by focusing on the location of formal constituent or constitutive authority
underlying a federal system, whether aggregative or devolutionary. But the distinction
between aggregation and devolution does not give rise to watertight categories, even when
the analysis is restricted to formal legal powers and processes. This is because constituent
authority can be distributed in many different ways, and effective political power shapes the
way in which formal legal authority is exercised in practice. Federal constitutions are a
consequence of formative processes shaped by formal legal authority and substantive
political power. They are as diverse in their specific features and their practical working as
they are in the formative conditions that give rise to them. Classification of federal systems is
thus complicated, not only by their diversity, but also by the fact that the distinctions
discussed so far (viz, federation and confederation, aggregation and devolution, symmetry
and asymmetry, coordination and cooperation), while broadly informative, do not capture the
exact empirical characteristics of any particular federal system. Just as Ellsworth and
Madison found themselves having to classify the United States Constitution as ‘partly
federal, partly national’, there is a real sense in which, today, we may need to classify certain
federal systems as ‘partly aggregative, partly devolutionary’, or ‘partly symmetrical, partly
asymmetrical’, and so on. The mixed character of federal systems is not only empirical but
also theoretical. For, as noted earlier, the distinction between federation and confederation is
not necessarily a sharp one because it rests on a determination (on the part of at least some
scholars) to insist that sovereignty is located in either the federal-state or the constituent
states, when the empirical features of federal constitutions belie any simple allocation of
sovereignty to one set of institutions or another.
Still, the distinctions are useful to the extent that they help to identify the systemic
effect of constitutive processes on the structure of constituted power in federal systems,
particularly expressed in the representative institutions of the federation, the distribution of
legislative, executive and judicial power, and the prescribed means by which the constitution
can be amended (Aroney 2006; Saunders & Le Roy 2006). The federal constitution of India,
for example, was enacted by a Constituent Assembly which asserted the authority to draft and
enact a constitution for and in the name of the people of India conceived as a unitary whole
(Sen 2011). While the Indian Constitution makes provision for a federal system in which self-
governing powers are constitutionally granted to the constituent states, there are many
features of the Indian Constitution that favour centralised power, including the capacity of the
central government to amalgamate or divide the existing states and to take over their
administration during proclaimed states of emergency (Bhattacharya 1992; Majeed 2005).
The Constitution of the United States is very different in this respect. Although the United
States Constitution, like the Indian Constitution, appeals to ‘We the People’ as the source
from which the authority to enact the Constitution derives, the negotiations in the Convention
at Philadelphia and the ratification process depended upon the consent of each constituent
state (Madison 1788, 243-4). The result was a constitution that entrenches the identity and
powers of the states, even though in practice the federal system has become more centralised
over time (Kincaid 2012). The American federal system is fundamentally aggregative, while
the Indian federal system displays significant characteristics of devolution (even though prior
to the union an important number of the constituent states did have a kind of political
existence as various kinds of provinces and as princely states).

2. Continuum of Federal Systems

By examining closely the configuration and location of constitutive authority upon

which a federal or federal-like political system is founded, particular systems can be placed
on a continuum from the most ‘purely’ aggregative to the most ‘purely’ devolutionary. Such
an approach has the benefit of including not only aggregative and devolutionary
‘federations’, but also ‘confederations’ and looser treaty-based associations between
independent nation-states. At the aggregative end of the spectrum are treaty-based
international arrangements formed in accordance with the international law principle of the
sovereign equality of states (Charter of the United Nations (1945), Art 2(1)). International
alliances such as the North Atlantic Treaty Organization and international organisations such
as the United Nations are examples. Treaty-based associations can also develop into highly
integrated political organisations, such as the European Union. Although the sovereignty and
equality of the member states is a fundamental principle of the founding treaties of the
European Union, the law binding the states together has been so ‘constitutionalised’ (Weiler
1991) that the European Union can sensibly be classified as a kind of confederation or
federal-like system (Elazar 2001; Wallace 1982). Alongside the European Union lie
federations such as the United States and Switzerland, both of which are profoundly
aggregative in origin, but which appeal to the ‘people’ of the constituent states or cantons for
their legitimacy, and which manifest even greater degrees of political integration than the
European Union. At the devolutionary end of the spectrum, on the other hand, are formerly
unitary political systems that have undergone varying degrees of decentralisation, devolution
or federalisation. The constitutional systems of countries such as the Netherlands, the United
Kingdom, Spain and Belgium are located, more or less, at this end of the spectrum,
depending on the extent to which their systems involve degrees of administrative
decentralisation, legislative devolution or constitutionally-entrenched federalisation.
Between the two poles lie numerous intermediate federal systems, in which there are
elements of both aggregation and devolution. Many federations formed out of former British
colonies fall into this category. From the point of view of formal British-Imperial law, each of
these federations came into being as a result of enactments of the British Parliament, but from
the point of view of the local populations and their political leaders, the initiative and
legitimacy of the federation derived from local sources. As between Australia, Canada and
India, for example, the foundations of the Australian federation displays the strongest
aggregative characteristics while those of India are the most devolutionary, with Canada
falling somewhere in between. In each case, the representative institutions, distribution of
power and prescribed means of constitutional amendment tends to reflect the location and
configuration of the effective constitutive power on which the federation was founded.
Whether a federal system is in its foundations more or less aggregative or devolutionary
makes a significant difference, even though the later trajectory of the system may be in the
direction of increasing centralisation or decentralisation as a matter of political practice and
constitutional interpretation.

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Nicholas Aroney, 'Australia' in Luis Moreno and César Colino (eds), Diversity and Unity in Federal Countries
(Montreal: McGill-Queens University Press, 2010) 17

Nicholas Aroney, ‘Devolutionary Federalism within a Westminster-Derived Context’ in Aileen McHarg et al

(eds), The Scottish Independence Referendum: Constitutional and Political Implications (Oxford
University Press, 2015)
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