In Praise of Principles, or Beyond the Toolbox Approach to Federalism

Abstract

This paper is first and foremost an argument, and almost a polemical one, in favour of a principle-based approach to federalism and about the need to integrate such an approach in the legal theoretical reflection on this particular type of political organization. A corollary argument concerns the current legal theoretical reflection on federalism, which unduly reduces federalism to a merely instrumental function and which obscures the need for a legally-sensitive normative theory of federalism. So this paper’s main thesis is that not only can federalism be envisaged as a constitutional principle, federalism is also constituted of a set of principles, which may provide, in the daily life of a federation, a deontic interval within which constitutional powers can, or should, be exercised. These principles can be derived from the fundamental structural characteristics common to all federations. Moreover, their identification can be inspired by the dynamic that results from the presence of such structural characteristics. As well, these principles refer us back to a federation’s initial goals; those responsible for individuating them assume an obligation of means to act in a manner that can reasonably characterized as fostering those goals, or, to put it negatively, as not unduly undermining the said goals. In this respect, implementing such principles inevitably responds to contextual and historicist logics.