Duhaime's Law Dictionary


Federalism Definition:

A system of government which has created, by written agreement, a central and national government to which it has distributed specified legislative (law-making) powers, called the federal government, and regional or local governments (or sometimes called provinces or states) to which is distributed other, specified legislative powers.

Related Terms: Dictatorship, Communism, Federal Paramountcy, Republic, Constitution

Comes from the Latin word foedus which means a compact or an agreement.

McLean and McMillan define it as a form of government:

"... emphasizing both vertical power-sharing across different levels of governance and, at the same time, the integration of different territorial and socio-economic units, cultural and ethnic groups in one single polity."

A division and distribution of law-making (aka legislative) powers between a central and national government with law-making powers in areas of national scope, and territorial governments, with limited law-making powers in areas of law-making more regional in application.

federalismAlso known as a federal form of government, or a federation, and where the written agreement is called a constitution.
 
In Wheaton's Elements of International Law:

"(T)he federal government created by the act of union is sovereign and supreme within the sphere of the powers granted to it by that act...."

In Constitutional Law of Canada, author Peter Hogg wrote:

"In a federal state, it is common to speak of two ‘levels’ of government.

"The metaphor is apt in that the power of the central authority extends throughout the country, and is in that sense ‘higher’ than the power of each regional authority, which is confined to its region.

"Moreover, in every federation, in the event of inconsistency between a federal law and a provincial or state law, it is the federal or national law which prevails.

"But to speak of the central authority as a ‘higher level’ of government must not carry the implication that the regional authorities are legally subordinate to the center; on the contrary, they are coordinate or equal in status with the center."

Federalism usually comes about by a contract or constitution between the territorial governments to unite and form, in specified areas, a central set of laws, such as to represent all internationally, and in national legislation re criminal and commercial laws.

In Reference re Secession of Quebec:

"In a federal system of government such as ours, political power is shared by two orders of government: the federal government on the one hand, and the provinces on the other. Each is assigned respective spheres of jurisdiction by the Constitution Act, 1867.

"(F)ederalism is a political and legal response to underlying social and political realities.

"The principle of federalism recognizes the diversity of the component parts of Confederation, and the autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction. The federal structure of our country also facilitates democratic participation by distributing power to the government thought to be most suited to achieving the particular societal objective having regard to this diversity. The scheme (is) not to weld the Provinces into one, nor to subordinate Provincial Governments to a central authority, but to establish a central government in which these Provinces should be represented, entrusted with exclusive authority only in affairs in which they had a common interest. Subject to this, each Province was to retain its independence and autonomy....

"(D)inferences between provinces are a rational part of the political reality in the federal process....

"The principle of federalism facilitates the pursuit of collective goals by cultural and linguistic minorities which form the majority within a particular province."

Later, in 2001, the Ontario Court of Appeal added, in Lalonde v Ontario:

"Federalism, the division of legislative power between the Parliament of Canada and the provincial legislatures, reflects a fundamental fact of Canada’s constitutional and political structure.

"Federalism represents the constitutional definition of those aspects of our political life that unite us while preserving appropriate scope to accommodate and to enhance the heterogeneous social, cultural, and economic realities of the diverse and distinctive provincial communities that make up our nation.

"Federalism is … a legal response to the underlying political and cultural realities that existed at Confederation and continue to exist today. Federalism was the political mechanism by which diversity could be reconciled with unity."

Canada, Switzerland, the United States and Australia are examples of federal states; as opposed to unitarian governments: states which have a single level of government throughout their entire territory – a single national law-making authority; generally, smaller nations, such as the United Kingdom and New Zealand.

REFERENCES:

  • Hogg, Peter, Constitutional Law of Canada (Toronto: Thomson-Carswell, 2007) p. 5-2
  • Keith, A. B., Wheaton's Elements of International Law (London: Stevens and Sons, 1929), p.119-120.
  • Lalonde v Ontario, 208 DLR 4th 577 (2001)
  • McLean, I., and McMillan, A., Oxford Concise Dictionary of Politics, (Oxford: Oxford University Press, 2003), p. 194
  • Reference re Secession of Quebec, [1998] 2 SCR 217

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