Nr. 8 – Tombeur, August 2012

Tombeur replies to the questions put forward by Klinkers in Paper no. 6, Paragraph B and C. Can we say without doubt that Althusius was the founding father of federalism, or did he combine this concept with confederal thoughts? Furthermore, there is the question as to why the State of Texas left the Federation – together with some other Southern States – which caused the Civil War in 1861. Did these States maybe barter a specific charter that allowed them to leave the Federation whenever they wished to? The answer to this question may be important for the position that the United Kingdom may claim within a European Federation.

European Federalist Papers © Leo Klinkers & Herbert Tombeur, 2012-2013

 

Re: Paper no. 6, Paragraph B

Let’s go back to the 17th century in order to answer your question as to whether Johannes Althusius invented federalism or confederalism. The reason for your question was that Wikipedia characterizes him as a confederalist. This requires a detailed answer.

Althusius’ original work ‘Politica methodice digesta’ was written in Latin. To make things easier there is an English translation from 1964, with introductions by the pre-eminent American expert in federalism Carl Friedrich and translator Frederick S. Carney. I shall use those introductions to reply to your question on Althusius’ political statements. In addition, I will deal with Burgess’ discussion about Althusius’ social political theory, as quoted before from his paper ‘Federalism and Federations in Western Europe’.

In his foreword of the translation of Althusius’ work, Carl Friedrich writes:

“What Althusius undertook to do was to interpret all political life in terms of the ‘pactum’, the bond of contractual union. Beginning with the family as such a natural and co-organic entity, he suggested that on successive levels of political community those who live together in order and harmony and whom he called 'symbiotes' are united by a pact, expressed or implied, to share things in pursuit of common interests and utility. The village was for him a federal union of families, as was the guild; the town a union of guilds; the province a union of towns and villages; the kingdom or state a union of such provinces; and the empire a union of such states and free cities. In a sense, this was a concept which transformed into a cooperative constitutional order the feudal hierarchy of successive levels of lord and vassal as mirrored in the medieval writings already alluded to. In his introduction Professor Carney develops in greater detail how this theory is worked out. The key to this concept of federalism is that on all levels the union is composed of the units of the preceding lower level. Thus, when we arrive at the top, the members of a state are neither individual persons nor families, but are politically organized collectivities, namely, the provinces and cities. This construction contrasts sharply with the later American concept of a federal union composed not only of states, but of individual citizens as well. This does not mean, as the Federalist argued against the Confederation, that the union is less closely knit, but rather that the ‘pactum foederis’ or ‘Bund’ (bond of union) is conceived in less purposive and individualistic terms; it is merely the outward form, the institutionalized framework of an existential communal reality. This reality consists in the sharing of values, interests, and beliefs — to use modern terminology for Althusius' ‘communicatio mutua rerum, operarum et juris’ — i.e., it is existential community. As such, it transcends the willful determination of the participants; it comes into being as part of their very nature, and merely needs to be recognized and consciously organized in the pactum or bond of union which makes it explicit. The federal principle is explicitly applied also to the growth of a territorial dominion, and here the distinction between the federal and the confederal union, as it has been called in modern parlance, is explicitly developed. However, the distinction is more sensibly put by Althusius as a confederation which is either full (plena) or not-full (non-plena). These terms bring out much better the relative character of the difference. As Althusius develops it, the distinction between the full (Carney suggests: complete) and the not-full (Carney suggests: partial) confederation resembles that later made between the ‘Bundesstaat’ and ‘Staatenbund’, between the federal and confederal union, because it turns upon whether the confederates retain their sovereign rights, their ‘jura majestatis’, or not. What matters more is that through this notion of an extension of government by consensual federation the basic solution to ever-widening political cooperation is indicated.”

In other words, Althusius did not use the word ‘Federation’ as such but the terms ‘full (plena) confederation’, which nowadays we call a ‘Federation’ and ‘incomplete (non-plena) confederation’, which we now plainly call a ‘confederation’. According to Althusius, the differentiation lies in whether sovereign rights (‘jura majestatis’) are retained by the people. This may not lead to the conclusion that Althusius does not accept a sharing of sovereignty in both political models. However, the question remains in which location we can find this sovereignty. This is made clear in the translator’s introduction of Althusius’ work.

In his introduction translator Frederick Carney explains Althusius’ theory about sovereignty as follows:

“… Althusius divides the public association into particular and universal. The particular, in turn, is divided into the city and the province, and the universal is identified as the commonwealth (‘res-publica’), or realm (‘regnum’). The particular association does not possess sovereignty, while the universal does. It should be noted, however, that the city of Venice, because it possesses sovereignty, has the status of a commonwealth. Furthermore, while a city is composed of families and collegia, the province is formed of various kinds of local community ranging from the rural hamlet to the metropolis, and the commonwealth is constituted of provinces and such cities as have the rights and responsibilities of provinces in the assemblies of the realm. (…) The commonwealth, as previously noted, differs from the city and province in that it alone possesses sovereignty. This is to say, only the commonwealth recognizes no human person or association as superior to itself. But where in the commonwealth does this sovereignty reside? Jean Bodin, to whom Althusius was highly indebted for so many of the characteristics of his political system, attributed it to the ruler. Althusius disagrees. His position, which follows consistently upon the principles he has already elaborated in smaller associations, is that sovereignty is the symbiotic life of the commonwealth taking form in the ‘jus regni’, or in the fundamental right or law of the realm. Since the commonwealth is composed not of individual persons but of cities and provinces, it is to them when joined together in communicating things, services, and right that sovereignty belongs. Therefore, it resides in the organized body of the commonwealth, which is to say in the symbiotic processes thereof. This organized body is also known to Althusius as the people.”

From this text it is clear that Althusius recognizes sovereign rights and rights of social relationships and political institutions other than Republics and monarchies, for instance those of the city-state of Venice. To be honest, one should also take into account these subtleties from Althusius. Firstly, he uses the term ‘sovereignty’ in a more narrow sense: relating to the sovereignty of a Republic or a Monarchy because those governing systems do not recognize a higher power. Furthermore, his point of view is that sovereignty is located in the cooperation by public associations of citizens, for instance guilds, cities and provinces. In other words, sovereignty is exercised jointly, thus it is shared, which is a typical aspect of federalism. This opinion does not characterize Althusius as a classical or modern federalist, because – for instance – he does not propose to allow individual citizens to participate in this sovereignty, as Friedrich explained above. This would mean – when we look at it from a modern institutional viewpoint – that a federal organization would only have an organized representation by the Member States and not by the people. If this would apply to modern Federations, Germany would have the ‘Bundesrat’ (representation by the Länder, the German Member States), but without the ‘Bundestag’ (representation by the people). Or, for the United States, it would mean the existence of only the Senate and not of the House of Representatives. Nevertheless, Althusius claims that sovereignty is with the people, but only in an organized way of decision-making. That is why – in my opinion – Althusius may be seen as a pre-federalist.

Michael Burgess states in the context of Althusius’ social-political theory something similar after having mentioned that the tradition of pluralism in continental Europe goes back four centuries, which is three centuries further than the British tradition. First, he notices that government at the time was a reflection of society’s diversity, expressing itself in the creation of free associations. I quote: “Political authority should be organised in a manner which accurately reflects the natural diversity of society. This social differentiation springs from freely formed bodies and associations of citizens which do not owe their existence to the state.”

Furthermore, he emphasizes: “It is widely acknowledged to have begun with the ideas of Althusius who first formulated the theoretical foundations of a differentiated society in the early 17th century.” Burgess explains that Altusius’ ideas should be understood in the context of medieval opinion regarding organic structures, based on the natural law that people are free to organize themselves in associations, both religious and secular, that form the foundation of the State. Now, the author reaches the core of the matter by stating: “These associations … which antedated the modern state and owed nothing to if for their existence.” And: “Althusius accordingly identified the family, the association, the commune, the province, and the state as a kind of rising hierarchical nexus of complex social institutions which together created the state, were incorporated within it and effectively intervened between it and the individual. Small wonder, then, that Althusius has been variously regarded as a medieval corporatist, an early pluralist and a primitive federalist. (…) The idea that the various communes, guilds, corporations and other associations were independent of the state was thus already deeply rooted in the continental European tradition of political thought …”.

 

If one reads this text by Burgess carefully, it can be assumed that Althusius proposed federalism as a natural process for creating a State, without using the actual word. Why? Because he regarded those free associations, whether or not they were representing a public interest, as the component parts of State building. In other words, he saw them as constitutive elements. Althusius positioned associations equally side by side, but also united them as a group within the State. This is nothing other than federalism. Thus no confederalism, for the aforementioned reasons, of which the essence is: several centers of power operating apart from each other and next to each other, while also forming one governing whole exercising power itself. Each governing body is doing so within certain boundaries. Althusius is a federalist ‘avant la lettre’. Thus Wikipedia is either wrong or at least lacks nuance. It proves also some carelessness, by using ‘confederal state’ – a contradiction in terminis.

Indeed, the label ‘federalism’ or ‘confederalism’ is irrelevant when looking at the Covenant of States or other organizations. It is the content of the Covenant that matters, just as is the case with other contracts of a private or public nature, treaties for instance. The content of the Covenant, or whatever name the act carries – for instance a constitution, charter or treaty – must present, in order to be a Federation in formal terms, obligations which can only be changed by the mutual consent of all partners involved. To compare this with obligations within the realm of private law: they are created by the mutual consent of all partners, but can be annulled unilaterally. A marriage contract, for instance, can be compared with a confederation but not with a Federation, because a Federation cannot unilaterally be annulled. Thus, one should not look at the label of a State to recognize whether one is dealing with a Federation. Instead, one has to investigate the content matter of the binding act. A well-known example of the fact that the label does not mean a thing, because it does not reflect the legal status of the State, is Switzerland. This country still calls itself a ‘confederation’ (the ‘Confederatio Helvetica’), although it has become a real Federation since 1848, following a short civil war (the ‘Sonderbundkrieg’).

Re Paper no. 6, Paragraph C

Now the matter of Texas and a handful of other States which unilaterally left the American Federation. The question was: would it be possible to assume that Texas had received – before entering the Federation in 1845 – a special charter, including the right to decide by itself if it may one day leave the Federation. You think that an answer is important with respect to the position of the United Kingdom if it was invited to join a European Federation.

With respect to this matter I can make the following observations. In order to enter a Federation each State or organization is subject to the same conditions: all federated members possess the same powers under the same conditions. In relation to each other they have the same sovereignty. No member is allowed to leave a classical Federation unilaterally. This rule is applied, for instance, in Canada where the province of Québec does not have the right to leave the Canadian Federation and also does not receive a specific statute that differs from the legal status of the other provinces. A federal organization does not allow the departure of one member without the consent of all other component parts, because leaving would alter the obligations of the other governing bodies and their respective relationships, also on the federal level. It requires consensus by all bodies for this to be possible. Making differences in the legal status of member States is also not allowed because that would damage the equality of sovereignty. This is the case in the European Federations of Germany, Austria and Switzerland. Spain is not a Federation, due to the fact that each region has a different statute, fixed in bilateral contracts with the central government in Madrid. Spain is a regionalized State, as is the case in Italy.

Are the United States of America an exception to this classical model of a Federation?

No, the US are considered to be the first, classical Federation. You have told before that the federal Constitution came into force in 1789. At that moment the US became a Federation who performed constitutionally external actions as one State. I leave again aside that a federal model is not interested in the question where the gravity of the power should lie; whether with the whole or with the component parts; that is a matter of concrete application in whatever Federation.

The States that created the Federation in 1789 were joined, in later years, by twenty one other States, including Texas. At the moment that this State left the Federation, together with about ten other Southern States, they did this illegally: they committed secession on their own account, though the Constitution did not allow that. President Buchanan was afraid to fight this secession. He left that battle to his successor, Abraham Lincoln, who was prepared to fight this violation of the Constitution with guns. This has led in 1861 to the Civil War, mentioning aside that Lincoln not before 1863 forbade the slavery. Only after a laborious victory in 1865 the Northern States could save the Union. From that moment on everybody understood not only that unilaterally leaving the Federation was in breach of the Constitution, but also would be answered with a battle.

The tensions between those who choose for a strong central power and those who were fighting that idea, played also a role. They existed already during the writing of the Federalist Papers at the end of the 18th century. It has led between 1825 and 1856 to the creation of two new political parties. The federal power became steadily more important, but kept being modest until the ‘New Deal’ of President Franklin Delano Roosevelt in 1933. Nevertheless, this fault line has never disappeared. It still exists between the Democrats that favor more power for the federal government and the Republicans who fight this and want to give the power back to the Member States.

Whether Texas had bartered – upon entering the Federation in 1845 – the right to leave the Federation unilaterally, is not mentioned in the literature that I have consulted. But there may be another explanation, namely the concept of ‘nullifying’. Verhagen’s book ‘All Presidents’, that you have mentioned before, indicates a certain type of behavior in the Southern States around 1830, namely to arbitrarily adopt the right to reduce federal laws that were not to their liking to nil. This was called ‘nullifying’. What they themselves considered to be unconstitutional, suppressing or unjust, was declared by them as not applicable. From a legal point of view this nullifying had zero significance. But in practice, with respect to the behavior towards the Constitution, it did indeed have significance. The Southern States had joined the Federation under the guarantee of the preservation of slavery. When Abraham Lincoln won the elections they interpreted this as a sign that slavery would be abolished, a matter that they wanted to ‘nullify’ immediately by leaving the Federation in a demonstrative manner, contrary to the Constitution, and by establishing a Confederation by themselves. This is, in my opinion, the correct interpretation of what happened in those days; a legally incorrect manoeuvre, but nevertheless a political fact.

This lays to rest your question with respect to Texas and other States leaving the Federation. But your question with respect to the United Kingdom remains relevant. If there will be a European Federation, with or without a transfer of the legal aspects of the present European Union, then each country in Europe has to make a choice, including the United Kingdom: joining or not joining the Federation; completely inside or outside. Federalism does not allow partial or conditional memberships. It is all or nothing. Should the obstinate UK wish to leave the Federation after a while, then we have only a political, not a legal, fact to deal with, with all the consequences involved.

The British Euro Parliamentarian Andrew Duff demonstrates in ‘On Governing Europe’ that he understands well the all-or-nothing concept of federalism. Nevertheless, he seems to try to barter an exception to that rule. Speaking of the necessity of Europe’s fiscal-economic federalization he states: “Meanwhile, the coalition government in the UK has decided not to take part in this federal process which it cannot stop even if it wanted to. The pace of European integration is now rapid and its destination much clearer than it has been for many years. As the British government and parliament will not share that destiny, alternative arrangements have to be made for the UK. Pro-Europeans in Britain must not abandon the battlefield. We should work to ensure the ultimate success of Europe’s federal union even if the UK takes another stage or two to get there.”

It is not completely clear what he means by the necessity to make ‘alternative arrangements’ for the UK. But those alternatives can never have the character of a partial or conditioned membership of a European Federation.

The establishment of a European Federation does not prevent, however, intergovernmental cooperation between members and non-members for other policy domains than the domains that are reserved for the Federation. These two organizations together, the new Federation and the old intergovernmental Europe, within which States can participate in several domains of policy-making, I have once called: interfederation.