Free 2.1 Masters Level Law Essay - Federal Polity Essay

Free 2.1 Law Essay: (Masters Level)

What do you understand by federalism? To what extent can the EU accurately be described as a federal polity?

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Federalism is classically defined as a system of government in which the distribution of power is governed by a constitution and the two elements, the centralised authority and the constituent units, are interdependent and independently sovereign. Their interaction is outlined and governed by the constitution. The centralised authority is usually referred to as the federation or the federal authority and each individual constituent unit as states, provinces or constituencies (Kelemen, 2004). The following essay will explore in greater the depths the qualities of federalism and whether the European Union can be described as a federal polity based on its organisational structure.

Various theories on federalism, operating to define federalism, exist, one of the most influential being that of Albert Dicey. Dicey states that the formation of a federal state requires two main conditions, the first being that a body of countries must exist which are "so closely connected by locality, history, race or the like, as to be capable of bearing, in the eyes of their inhabitants, an impress of common nationality". The second condition is "the desire for national unity and the determination to maintain the independence of each man's separate state" (Kelemen, 2004).

The European Union (EU) is a union of 25 European countries, referred to as Member States established under the Maastricht Treaty in 1992. Many common aspects of the union existed before that date, but the predecessing decisions and agreements mainly lay out the foundation for the current union relationship (Pinder, 2001). A key to the EU is the administration of a single currency and the establishment of freedom of movement for people, goods and services (Pinder, 2001). However, the EU fails to fall under the classification of a federation according to Dicey's conditions, as there is no common nationality or national unity of the EU on a fundamentally personal and individual level. Each individual country retains its very nationalistic and traditionalist roots only acceding on points of financial and economic policy.

The distribution of power is also an essential feature to the determination of a federation. K.C. Wheare proposed as a test to determine a federation, the centralised government must embody a power which is that of co-ordination between the regional states and can do this co-ordination independently of them (Norman and Karmis, 2005). The members states have transferred considerable power to the central governing bodies of the EU, however, legally, the member states remain the masters of the Treaties meaning that the centralised union government cannot transfer powers onto itself that are not transferred by agreement of the member states themselves. Further, the central government has little, if no power on key national issues such as foreign relations and defence. Finally, the member states have two key options available to them which destroy the concept of the EU being a federation. They can opt-out of policies, such as the UK opting out of the Schengen Immigration policies and they can execute secession, in other words, terminating their membership to the union (Craig and De Burca, 2002).

On the same note, the central government of the EU is far weaker than the central government of most recognised federations, such as the United States as an example. Most literature classifies the EU as a unique form of supra-national alliance or as a confederation rather than as a federation. The EU's central power has responsibility for trade and monetary policy and as much as 60% of legislation in the member states originates in the union institutions however, the member states, as mentioned above retain a large part of the legislative power especially in key areas such as foreign policy, defence, criminal justice and taxation. The most fundamental opposing factor to classifying the EU as a federation remains the member states' status as separate entities which was sovereign and seen as such under international law and posses the de jure right of secession. This might not be de facto, yet, none-the-less the option to withdraw from the union, despite having grave political and international policy consequences is available (Craig and De Burca, 2002).

To further elucidate the distinction of the EU as a non-federation, but rather possibly, as a confederation, it should be noted that the fundamental difference between the two political structures is that a confederation is grounded on a system with a weaker central government. Typically in a confederation the states are considered and remain sovereign with the right of secession (Kelemen, 2004). As set out above, this is the structure being presented in the EU.

However, one key issue in the development of the EU's political and organisational foundation is the proposal and attempted move towards the adoption of a constitution. Under a federation, the central authority's power is derived from a consitution which is deemed supreme over the regional laws. The judiciary utilises the constitution to determine whether acts are valid or void under federal law and therefore the constitution should be written, rigid, yet adaptable, inexpansive and clear.

On 29 October 2004, the heads of the EU government signed the Treaty establishing a Consitution for Europe. This was ratified by various member states yet suffered a severe blow when rejected by the French populace in their referedum by 54.7% and rejected again three days later by the Dutch with 61.6% of voters opposed. This questions the future of the EU but also points out that the feeling of national unity towards the EU is not present as Dicey had suggested to be a condition to the test of federation. Further, independence parties, often favouring withdrawal from the EU, are gaining favour in many of the largest and most influential member states, notably the UK with the UK Independence Party representing an ever more numerous and generally negative stance on the general popularity of the EU.

The European Union is an unprecendented form of polity, yet cannot be accurately described as a federation. The central government will require the consitution's ratification as well as a general strengthening of power and responsibility and through that may be deemed to hold federal power. However, the lack of an EU nationalism may be a hurdle the EU will never jump and so the EU could remain the unique political organism that it is especially with the increased and mercurial membership it faces in the future.

References:

Chhibber, P. and Kollman K. (2004). The Formation of National Party Systems: Federalism and Party Competition in Canada, Great Britain, India and the United States. Princeton University Press, Princeton: USA.

Craig, P. and De Burca, G (2002). EU Law (3rd Edition). Oxford University Press, Oxford: UK.

Kelemen, R.D. (2004) The Rules of Federalism: Institutions and Regulatory Politics in the EU and Beyond. Harvard University Press, Boston: USA.

Norman, W. and Karmis, D. (2005). Theories of Federalism: A Reader. Palgrave Macmillan, London: UK.

Pinder, J. (2001). The European Union: A Very Short Introduction (Very Short Introduction Series). Oxford Paperbacks, Oxford: UK.

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Free 2.1 Law Essay: (Masters Level)

What do you understand by federalism? To what extent can the EU accurately be described as a federal polity?

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