1 Confederations and Federations

1.1 Contemporary Definitions for Confederations and Federations

 What is a Confederation?

Figure 1 Traditional confederation

The traditional definition of a confederation is a body whose laws are binding only on sovereigns. This means that con­federate legislation has to be transformed into internal legislation in each member state in order to be binding on that state's citizens and court system.

As the preceding figure shows, the paths of control in a confederation are top-down, but if a state fails to carry out confederate instruc­tions, the confedera­tion may take action only against state aut­horities. How­ever, as happened during the Gulf war of 1991, it is common for state authorities to protect them­selves behind a wall of or­dinary people. (The United Nations is in fact a confederation, and the Iraqi authorities were probably legally bound to obey U.N. resolutions. However, legal technicalities turned out to be of minor impor­tance  as the Iraqi leaders  hid and continues to hide behind a shield of  innocent civilians and army personnel.) This makes the people rather than the responsible state leader suffer the consequences of il­legitimate state action. As central decisions do not extend directly to individuals, tradi­tional confedera­tions are inherently unstable. Either they fall apart, with confederate in­struc­tions becoming no more than polite ad­vice, or they evolve into federa­tions.

What is a Federa­tion?

Contrary to tradi­tional con­federa­te legislation,  fede­ral legisla­tion may extend rights and ob­liga­tions directly on in­dividuals in each mem­ber state. See figure below. Obvious­ly it is much easier to coer­ce in­dividuals than it is to coerce state aut­horities that have the full pow­ers of the state at their dis­posal for protec­tion. Thus the central powers tend to be much more impor­tant within a federation than within a con­federa­tion. 

Figure 2 Tradi­tional federation

If state and federal laws con­flict, as they in­variab­ly do eventually, it is the central body's laws and legal system that pre­vails. Central law is superior law, and the paths of control are top-down.

Since federal law prevails with respect to each individual, there is little or no need for the central government to directly instruct state law making bodies.

Contemporary Federations and Confederations

By the traditional definitions all those governmental structures that we normally consider federations, the United States of America, Canada, Australia, Germany and Switzerland end up in the "correct" category. Perhaps surprisingly, the European Com­munity ends up being a federation as well.

There are essentially three forms of Community law: a) Regulations; which auto­matically become law for everyone living in Community countries, b) Decisions; which automatically become law for particular bodies or persons, and c) Directives; which order member states to make laws of their own so as to give effect to community policies (Letwin, page 14). It follows that only through the exclusive use of Directives can the Community be classified a confederation. Whenever the Community issues Regulations or Decisions, it acts as a federation and not a confederation. The essen­tial federal nature of the Community is indepen­dent of the fact that the scope of the Com­munity's powers as they exist today, is limi­ted. The Community has the power to legislate only on certain economic issues, agriculture etc.. But within the Com­munity's limited domain, within that range where it can issue Regulations or Decisions, by the traditio­nal definition, it acts as a federation.

The New Con­federation

This book's defini­tion of a confedera­tion differs some­what from the tradi­tional definition. A federation is defined as a multi­governmental entity where central law is superior law, while a confederation is a multi-governmental entity where local law (state law) is superior law.  This new definition allows confedera­tions to act directly on individual citizens, and thus provide the level of  cohesion now offered only by federa­tions and it thus gives the term con­federa­tion a more meaningful content.

Important features of New Confederate definition

The new definition preserves the fuzzy popular notion that confedera­tions are "looser" structures than federations; more based on co-operation than coercion.

From the local-law-is-superior principle it follows that interaction within a confederation has to rely on voluntary co-operation between the member states, while a federation ultimately relies on coercion.

From the individual citizen's point of view, the traditional and the new definition of a confederation are related. If confederate law can act only on sovereigns and has to be transformed into local law to act on individuals, then from the individual citizen's point of view, state law is superior law.

We also may add that the proposed definition is consistent with the previous analysis as to the federal nature of present govern­mental organizations. The United States of America, Canada, Australia, Germany and Switzerland continue being the federations they are generally acknowledged to be. The Community, too, ends up as a federation rather than a confederation.

It is the force to coerce and compel, rather than propose and persuade that is the distinguishing characteristic between a federation and a con­federation. A confederation relies on bottom-up paths of control while a federation relies on top-down paths of control.

Table I Summary comparison of traditional and reformed confederations

1.2  Three Foundations of the New Confederation

The proposed constitution is built on a confederate structure where state law is superior law, and the individual states retain their sovereignty and independence, including the right to secede.

This structure encourages competition between governmental units and ensures that government continues to obey the wishes of the citizens.

The central government's task is to take care of the common good as defined by the citizens in their collective capacities, ease cooperation, provide the states and the citizens with alternate solutions to their concerns, and provide cohesion and guidance. But if the people of one of the member states reject confederate legislative proposals, it has no power to compel enforcement. Its coercive powers are limited to those powers needed to ensure that individuals in their collective, group or individual capacities, have an opportunity to choose.

The proposed constitution has three fundamental foundations:

• devolved popular sovereignty
• inter- and intra-governmental competition
• just processes for arriving at and enforcing decisions

The first foundation is compound. Devolved popular sove­reign­ty requires an analysis both of devolution, sovereignty and "popular". The second foundation is at least partially dependent on the first, as competition can take place only if there are multiple independent decision makers, which is easiest made possible by devolving some power away from the center. Thirdly decisions based on devolved popular sovereignty and competitive procedur­es are also just processes for arriving at decisions and they ensure that governmental actions conform to the interests of ordinary people.

Of course, in the actual text of the proposed constitution several of these fun­damen­tal ideas may influence the phrasing of any one par­ticular section.

1.3 Two Parts of Constitution

The Constitution itself is divided into two parts;

• Chapters 1 through 4 specify the powers of the three contracting parties; the states, the citizens and the central government (i.e. the Con­federation) in relation to each other.
• Chapters 5 through 10 specify how the confederate govern­ment is to be organized, and put limi­tations on the powers of the different institutions within the confederate government.

The purpose of this division is to allow the confederate govern­ment to organize itself as it pleases and in a way that proves con­venient, but prevent these institutional changes within the central government from encroaching on the sovereignty of the states. For similar reasons there are no references in the first part to institutions in the second part, neither are there references the other way, except that certain actions by the confederate government naturally presuppose a legal basis in Chapter 3.

Chapters 1 through 4 of the Constitution are also superior to Chapters 5 through 10.

1.4   Summary

The proposed constitutional model is built on three fundamen­tal ideas:

• devolved popular sovereignty      
• inter- and intra-governmental competition
• just processes for arriving at and enforcing decisions

The new Confederation has extensive powers to persuade and provide alternate answers, but very limited powers to coerce. Contrary to present federations and confederations the structure is voluntary.

Revised: 2004-07-02

Copyright © 1991-2003 John F. Knutsen

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