2023 Fenna-Schnabel What Is Federalism

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What is Federalism? Some Definitional
Clarification
†
Alan Fenna * and Johanna Schnabel
*Curtin University, Australia, a.fenna@curtin.edu.au
†
Freie Universit€at Berlin, Germany, johanna.schnabel@fu-berlin.de
The most prominent conceptualization of federalism is as a political organization combining ‘‘self-

rule’’ with ‘‘shared rule’’. The abstractness that makes this formula so attractive has, however,
opened the door to misinterpretation and, in turn, encouraged misconceptions about the
essential nature of federalism. ‘‘Shared rule’’ has been misinterpreted as meaning participation of
the constituent units in central-government decision-making, or co-determination. This confuses
common aspects of federal design, such as bicameralism, or important elements of federal
practice, such as intergovernmental relations, with the essential or defining features of a federal
system. The analysis here clarifies the meaning of shared rule and confirms that the existence of
two constitutionally guaranteed orders of government, each enjoying a direct relationship with the
people and exercising meaningful powers, is both necessary and sufficient for a political system to
be characterized as a federation.
Federalism scholars have not to this point settled on a consistent, clear, and logical
definition of their subject matter. The picture has become more complicated of
late, with increasing use made of the concept “shared rule,” seen by many as a
defining feature of federalism and generally taken to mean the involvement of
constituent units or, more broadly, regional governments, in central decision-
making. Some scholars even extend “shared rule” to encompass intergovernmental
relations (IGR), specifically intergovernmental meetings. One view—admittedly an
extreme one—is that “to define federalism in abstract terms is not only impossible
but also futile” (Palermo and Kössler 2017, 38; similarly, Filippov, Ordeshook, and
Shvetsova 2004, 5–11).1 It scarcely seems tenable, though, to have a field of study
that cannot define its object of study. Here we show that one can provide a
reasonably clear and defensible definition of federalism (understood as a principle
of state organization), but that to do so it is necessary to appreciate the degree to
which the notion of “shared rule” has been misconstrued.
Such a definition must be capable of clearly distinguishing, on the one hand,
federations from unitary states with forms of devolved governance, and, on the
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other, federations from unions so loosely joined as not to be states at all. This is
complicated by the existence of various forms of devolved governance and forms of
union that exhibit federal characteristics, but is essential to understanding their
limits and potential.
Elazar (1987, 6; 1993, 190) used the term “federalism” in an encompassing way,
referring to what he termed the broad “genus” within which federations are one
“species”. Here we use the terms somewhat differently, with federalism denoting the
general principle of organization and a federation being a political system that is
structured in a way that embodies the federal principle.2 This is not to pretend that
federalism can be reduced to a set of institutional structures, or that it is somehow
“static.”3 Livingston (1952, 84, passim) made an important point when he reminded
us that the working of a federation is determined as much by “society itself” as by the
constitutional framework. Even Wheare (1963, 20), famous for taking a constitutional
approach, was quick to emphasize in a very similar vein “that the practice of the
constitution is more important almost than the law of the constitution”. He was
surely right, though, to add that “It is usually convenient to begin with the law, as a
basis of classification” (Wheare 1963, 20). As Elazar (1987, 34) similarly noted,
“Federalism is based on a particular kind of constitutional framework.”
Societal factors may well determine how a federal system functions and evolves,
and thus are crucial to understanding and explanation. Institutional design and
operation, though, are what tell us whether the system is federal in the first place.
Federal studies are primarily concerned with the functioning of federal systems: their
evolution; their common characteristics; the challenges they face, ranging from the
quotidian to the existential; desirable features to ensure effective and efficient
policymaking; and the potential for managing political conflict. In that regard, some
of the most urgent and interesting developments are in respect of “nascent federal
arrangements” (Kropp and Keil 2022, 4). The latter can undoubtedly play an
important role in accommodating difference and managing conflict.
The key to a valid definition is being able to distinguish features that are
essential from features that are merely common in federal systems, important to
the operation of federalism, or seen as desirable. Such a definition must
accommodate the diversity in federations—spanning, in particular, the “dual” and
“administrative” models (Mueller and Fenna 2022). Many common features of
federal systems may well be of great practical importance but not what makes the
system federal. Finally, there should be both an observational and a deductive basis
for the distinction. The definition put forward in this article is the only one that
meets those criteria. It identifies the autonomy of two orders of government as the
essential, defining, feature of federalism. This encompasses three main require-
ments: a division of powers between, archetypally, a central government and a set
of constituent units; a direct relationship of each government with the people
based on meaningful powers; and constitutional entrenchment. Bicameralism and
What is Federalism? 3

intergovernmental relations are common, perhaps even desirable, features but not
essential characteristics. Bicameralism exists in some form or another in all
democratic federations and may represent an enhancement of federal practice, but
it is not what makes a country federal. Intergovernmental relations are an almost
unavoidable component of federal practice and are often of great importance to
the system’s successful functioning; however, they are also not what makes the
system federal. Misapprehensions in this regard tend to be associated with a
misunderstanding of Daniel Elazar’s notion of “shared rule.” Other features closely
associated with the federal practice, such as judicial review, are also common or
indeed almost universal and important, but likewise not a defining feature.
Definitions through the Ages: Autonomy or Co-determination?

The definitional problem is as old as the study of federalism itself. Well over a
century ago, Edward Freeman (1863, 1) was writing in the first major study of
federal systems that “The exact definition of a Federation in general and of the
particular forms of Federations, has often taxed the ingenuity both of political
philosophers and of international lawyers.” In general, though, clear patterns have
emerged, with definitions falling into two main camps: those requiring only the
existence of two orders of government with some degree of genuine autonomy, and
those for whom there must be a role for constituent units in central-government
decision making (which we will refer to as co-determination).
The Autonomy Definition

For Freeman (1863, 3), federalism had two requisites: there must be member
governments “wholly independent” in regard to local matters, while at the same
time they “all must be in subject to a common power in those matters which
concern the whole body collectively”. This definition prefigured others to come,
most notably Dicey’s (1915, 77) and, following him, Wheare’s (1946, 35):
Federal government exists . . . when the powers of government for a
community are divided substantially according to the principle that there is
a single independent authority for the whole area in respect of some matters and
that there are independent regional authorities for other matters, each set of
authorities being co-ordinate with and not subordinate to the others within its
own prescribed sphere.
While Riker (1975, 105) disparaged Wheare’s definition as “too juristic and too
narrow,” his definition was fundamentally the same:
A constitution is federal if (1) two levels of government rule the same land and
people, (2) each level has at least one area of action in which it is autonomous,

and (3) there is some guarantee . . . of the autonomy of each government in its
own sphere (Riker 1964, 11).
More fully developed, the autonomy definition comprises three elements:
1. The existence of a central government and a set of governments for the constituent
units into which the state is territorially divided. This does not preclude the
existence of other governments within each of the constituent units, perhaps
enjoying constitutional recognition. Nor does it preclude asymmetries in terms of
powers between the constituent units.
2. Each of those governments enjoys a direct relationship with the people, acting upon
and accountable to their citizens. Neither the central government nor the
governments of the constituent unit can be creatures of the other; rather they
must answer to their citizens and act upon their citizens. This assumes federalism
only genuinely occurs in a democratic setting and thus each order is its own
system of representative government. Again, this does not have to be
symmetrical, but each must have some powers and resources. Where the central
government lacks that degree of independence, federalism shades off into
confederalism.4 Where the constituent units lack that degree of independence,
federalism shades off into a unitary-decentralized system. The central government
and the constituent units must each have some exclusive powers (Riker 1975,
101). Those should not be of an entirely trivial nature, that is be in at least one
of the main areas of modern government—defence, foreign, monetary, economic,
cultural, education, health or welfare policy (Dardanelli 2019, 280).5
3. The status and powers of each are constitutionally protected. The general principle
here is that neither order of government can abrogate the status or powers of the
other. The amendment rule must entrench the autonomy of each order by means
of either or both some sort of constituent unit veto or popular ratification
through a referendum.6
In one version or another, this is the definition adopted in a number of more
recent federalism texts (e.g., Bednar 2009, 18–19; Hueglin and Fenna 2015, 17).
The Co-Determination Definition

As against this classic definition, a rather different emphasis emerged. Carl
Friedrich (1968, 77) put forward the idea that “it is the essence” of federalism “that
the component units share as such in the determination of federal policy.” In his
Comparative Federalism: the territorial dimension of politics, Duchacek (1970, 207–
8) followed suit. While many of his “ten yardsticks of federalism,” echoed the
existing definitional approach, point 6 included this new element. “Is the collective
sharing in federal rule making adequately secured by equal representation of
unequal units in a bicameral system?” (Duchacek 1970, 207).

For Duchacek (1970, 273), this was merely one in a catalogue of propositions to
be tested, and, moreover, not one of the more important ones.7 Not so for Rodden
(2004, 491), who declared that “The representation of states in central government
policymaking is part of the essence of federalism.” Tierney (2022, 171) argues in
the same vein that “the engagement of the constituent territories in the
government of the central state” is “the necessary complement to self-government,”
and Inman and Rubinfeld (2020, 11) do likewise. King (1982, 77) and Burgess
went even further: elevating the notion to the defining feature. Burgess (2006, 204)
characterized it as “self-evident” that “every federation must have a second
chamber in the legislature for it to be an authentic federal state.” His was the most
extreme version of the co-determination definition, holding that the “main
purpose” of a federation “is to accommodate the constituent units of a state or a
union of states in the decision making procedure of the central government”
(Burgess 2006, 2).
Less emphatically, Watts (2008, 9) included among his six “generally common
structural characteristics of federations” some “provision for the designated
representation of distinct regional views within the federal policy-making
institutions, usually provided by the particular form of the federal second
chamber.”8 Palermo and Kössler (2017, 164) followed in a similarly ambiguous
fashion: “The participation of subnational units in decision-making at the national
level is one of the most distinctive features of federal systems.” For Gamper (2005,
1299), the co-determination principle represents the “consensus” definition of
federalism. In application, one can see the co-determination requirement being
used, for example, to judge whether Spain is correctly described as a federation. A
number of scholars have argued that Spain is an “incomplete” or “unfulfilled”
federation because the Autonomous Communities do not have effective
representation in central government decision-making (e.g., Colomer 1998; Grau
i Creus 2000; Moreno 2007; Beramendi and Maiz 2004, 136).
This emphasis on co-determination powers represented a major deviation from
the model provided by Freeman, Dicey, Wheare and Riker, holding that to be a
federation, the constituent units must enjoy a degree of co-decision power in
central government law making. The autonomy definition requires that one way or
another their interests are represented in matters of constitutional change, to
protect their self-rule. The co-determination definition requires, though, the
constituent units to have co-decision authority in respect of ordinary law making.
On that basis, Watts’ own country of Canada would not qualify as a federation
since by no stretch of the imagination could its second chamber, the Senate, be
regarded as providing his “designated representation of distinct regional views
within the federal policy-making institutions.” The Canadian Senate is composed
of members appointed by the federal government, traditionally on a patronage
basis, and, being an unelected and unrepresentative body, exercises minimal power.

“The decorative Canadian Senate does not even pretend to perform a serious
federalist function” (Elazar 1987, 184). Despite the nominal nature of its
bicameralism, though, Canada is one country that no one would leave off their list
of federations.9
How are these two incompatible things to be reconciled? While at least
acknowledging the contradiction, Rodden’s (2004, 491) solution muddied the
waters further. For him, it is sufficient that “the federal and provincial
governments are clearly locked into an ongoing process of intergovernmental
contracting that takes place primarily outside of central government institutions.”
In that conception, Canada has co-determination in the form of intergovernmental
relations, and, thus, it is a federation. The co-determination definition, then,
comprises constituent unit participation in central government decision-making
via a second chamber or, alternatively—as a sort of functional equivalent—
intergovernmental relations.
The Language of ‘‘Shared Rule’’

In amongst all this appeared a most elegantly pithy formula. For Elazar (1987, 12),
federalism is “self-rule plus shared rule” (italics in original). Such a felicitous and
conveniently abstract definition could not help but catch on—and catch-on it has.
However, the degree of abstractness has invited misinterpretation.
Confusing Shared Rule with Co-Determination

While the notion of “self-rule” causes little problem, the same cannot be said of
“shared rule.”10 A number of scholars have construed the second part of Elazar’s
couplet as referring to the sharing of decision-making between the central
government and the constituent units, that is, co-determination (e.g., Broschek
2015, 56). Behnke (2018, 36) defines “shared rule” as “substate representation and
co-decision at the federal level.” Likewise, Kropp and Keil (2022, 6) see the shared
rule as integral to the idea of federalism, one that “captures an involvement of
subcentral tiers and entities into central law-making and their participation in
checks and balances.” Mueller (2019, 162) asserts that “‘shared rule’ is one of the
defining aspects of federalism” and that it “allows regional governments to
participate in nationwide decision-making.” Popelier (2021, 33–34) also interprets
shared rule as meaning co-determination, leading her to suggest that the likes of
Wheare, Riker and Dahl provide a distorted image of federalism because they
“stress self-rule and ignore shared rule.” Tierney (2022, 171) likewise classifies
“engagement of the constituent territories in the government of the central state”
as “shared rule,” as do Csehi (2017, 565) and McEwen (2022). Basta Fleiner and
Gaudreault-DesBiens (2012, 149) manage to have shared rule encompass both
bicameralism and the “distributions [sic] of powers.” Those who single out the

absence of co-determination as the reason Spain cannot be considered a federation
also typically justify the criterion by reference to Elazar’s formula (e.g., Colomer
1998, 50).
Resolving the Meaning of Shared Rule

As Mueller (2019, 164) acknowledges, though, co-determination is not what Elazar
meant by the term “shared rule.” Elazar used “shared rule” in a way that denoted
simply the existence of a central government, a government the whole country
shared in—nothing more. Elazar was not referring to sharing in rule, but rather to
the way a central government is in itself an institution of shared rule. Logic admits
of no other interpretation since “self-rule” pertains specifically to the constituent
units thereby making the common or general government by necessary implication
the instrument of “shared rule.” In so far as he makes mention in that book,
Exploring Federalism, of second chamber representation or intergovernmental
relations, it is merely to note that “Noncentralization is strengthened . . . by giving
the constituent polities guaranteed representation in the federal legislature” (Elazar
1987, 173). Co-determination, in other words, is an ancillary rather than necessary
feature and something quite different from shared rule. His “requisites of federal
systems” are limited to the familiar ones from Freeman, Wheare and Riker: a
“Written Constitution”; “Noncentralization”; and an “Areal Division of Power”
(Elazar 1987, 157–66; italics in original). There may well be, in practice, various
forms of decision-making input and interaction between the two orders of
government, but that is not what is meant by shared rule.
Stretching the Application

The term shared rule has also been applied, even more confusedly, to the condition
whereby constituent units enjoy co-determination over their autonomy status itself
(e.g., Shair-Rosenfield 2022). This is stretching the concept well past the breaking
point since some veto power over formal changes to constituent unit autonomy is
an integral feature of what Elazar termed self-rule. For the Regional Authority
Index (RAI), meanwhile, the self-rule/shared rule formula has gone from being a
way to understand federalism to being a framework applicable across all forms of
multilevel government (Hooghe et al. 2016, 23–25). In that framework, shared rule
can manifest itself in five different ways, including intergovernmental relations and
constitutional change even though the latter is, as we have just noted, more
properly regarded as a guarantee of self-rule than a mechanism of shared rule. All
this suggests that in attempting to evade the definitional problem by means of
greater abstraction, Elazar inadvertently sowed the seeds of confusion.

Assessment
Whether confusedly characterized as a shared rule or not, the co-determination
definition lacks either empirical or theoretical support. The main mechanism
supposed to allow for co-determination, bicameralism, is simply too rarely
effective. The secondary mechanism, intergovernmental relations, which some
authors see as a functional equivalent of bicameralism, is universally present but
insufficient. For co-determination to be a defining characteristic of federalism, the
putative mechanisms of co-determination must ensure: (i) that the governments of
the constituent units are represented to give them voice qua constituent units and
(ii) that there is some sort of formal right of co-determination that the central
government cannot ignore a veto power. Neither bicameralism nor IGR fulfill these
requirements across countries universally accepted as being federal.
Bicameralism
As we noted above, the Canadian case presents an obvious problem for the notion
that co-determination is a defining feature of federalism. In principle, one
unambiguously disconfirming case is sufficient to falsify a proposition and the
Canadian case would seem to do that. If Canada is universally considered to be
one of the most robustly federal of all federations and it has no actual mechanism
for co-determination, then co-determination cannot be an essential feature of
federalism.
In practice, one disconfirming case is quite possibly insufficient to falsify a
proposition; reality is typically too messy. However, Canada is merely the most
obvious falsifying example. In few other federations does the second chamber
actually serve as a mechanism for constituent units to exercise co-determination
powers in central government decision-making.11 They may lack sufficient
constitutional authority and, more importantly, are often popularly elected and as
a consequence just another forum for party politics. They may from time to time
provide some representation of regional interests, broadly interpreted, but they do
not act as conduits for constituent unit participation in central government
decision-making. As Sala (2014, 122) points out, this vitiates the argument that the
absence of co-determination is what means Spain is not a federation. Whether
Spain should be regarded as a “federation without adjectives,” to use Sala’s term,
hinges on the degree to which the Autonomous Communities enjoy genuine self-
rule as per the autonomy definition, not on the degree of co-determination.
The exception to the rule is Germany, where, by virtue of its composition as a
chamber of L€ ander executive government delegates, the Bundesrat does serve as a
co-determination mechanism (though often as filtered through the lens of the
party and only in the case of consent laws (Zustimmungsgesetze), which are about
40 percent of federal laws).12 But it is an “extra-ordinary” case (Swenden 2010,

116), “the most federal of upper houses” (Patterson and Mughan 1999, 27). Even
Switzerland’s second chamber—the St€ anderat, or Council of States—fails to
provide constituent-unit representation since it is now popularly elected. Insofar as
Swiss federalism has a co-determination component, which is via Article 45 of the
Constitution setting rules for the participation of the cantons in federal decision-
making, usually occurring in the form of so-called consultations with cantonal
governments (Vernehmlassungen). Co-determination via the second chamber, then,
is not even a common feature of federal systems, let alone a defining one.
Intergovernmental Relations
A more encompassing understanding of what constitutes co-determination was
Rodden’s fallback position to categorize Canada as a federation. In lieu of a
constitutional mechanism in the form of a second chamber representing the
constituent units, Rodden claimed that the extra-constitutional practices of IGR
provide an equivalent mechanism of co-determination. Likewise, Mueller’s (2019,
162) understanding of the shared rule, which he characterizes as part of the
“essence of federalism”, expands to formal and informal constituent-unit influence
over federal-level decisions (and even formal and informal horizontal
cooperation).13
There are two reasons why IGR cannot be considered as fulfilling the
definitional requirement of co-determination. The first is that intergovernmental
relations are not a design element; they are not part of the constitutional
framework of federal systems. Rather, they are part of the politics of federalism. As
Requejo and Sanjaume-Calvert (2022, 2 and passim) have recently stressed, it is
features of “institutional design” (emphasis in original) that one must look to as
federal safeguards.
The second reason is that without being part of the constitutional design, IGR
are too weak a mechanism of co-determination. Intergovernmental relations of one
form or another are certainly endemic if not ubiquitous to federal systems, and
thus constitute a major and important part of federal practice. However, they are
not a form of co-determination because they do not entrench constituent unit
participation in central government decision-making. Intergovernmental relations
represent an exercise of negotiation, bargaining, and information exchange between
governments. Such practices certainly may provide an opportunity to influence
central-government decision -making, but this is not co-determination and the
degree to which even that occurs is highly contingent—dependent on political will,
bargaining power, party politics, and the institutional design of intergovernmental
forums (Schnabel 2020). In some federations, governments coordinate closely, and
the central government is willing to incorporate the interests and preferences, as
well as expertise, of the constituent units in its decision-making. In the Canadian

case that Rodden cites, however—as well as in several other federations—
intergovernmental relations are weakly institutionalized (Simmons 2017) and
dominated by the central government (Schnabel 2020; Adam, Bergeron, and
Bonnard 2015). Unilateral decisions of the central government occur in many
situations even when intergovernmental meetings are arranged. The same applies
to Australia (Phillimore and Fenna 2017). “Collaborative federalism” certainly
occurs from time to time in both countries, involving the “co-determination” of
policy; however, that is co-determination in areas of shared or overlapping
jurisdiction, not of the federal government’s own policy making and such
arrangements have no guarantee of durability (Cameron and Simeon 2002). That
IGR exist in all federations can thus not be a defining feature of federalism because
their mere existence does not ensure co-determination. This is not to deny the
often-crucial role that IGR may play in ensuring the efficacy and efficiency of the
system; in promoting cohesion and territorial equity; and in some cases helping to
safeguard the autonomy of the constituent units. Intergovernmental relations are
an almost indispensable tool of shared governance, but they are not a mechanism of
shared rule.
But Does It Work in Theory?

While the co-determination criterion clearly fails in practice, we also need to know
that it fails in theory. It is notable that very few of those who use the criterion
provide a theoretical justification. A partial exception is Tierney (2022, 171–172),
who argues that the legitimacy of a federal constitutional order requires what we
have called here co-determination (what he calls “associational government”), and
that the constituent units need co-determination as a safeguard of their autonomy.
However, Tierney’s safeguard argument effectively reduces co-determination to
a secondary feature whose rationale is simply its contribution to the maintenance
of federalism’s primary feature, autonomy. Interestingly, Tierney’s notion of
“associational government” as a necessary safeguard of autonomy is at odds with
the experience of the one federation with genuine provision for co-determination.
If anything, the representation of the German L€ ander in the Bundesrat has
smoothed the way for diminution in their autonomy (Swenden 2004, 347;
Schneider 2006, 127; Kaiser and Vogel 2017). Even if co-determination did serve as
a safeguard—as intuition, but not necessarily experience, suggests it should—that
would only make it a desirable feature of federal governance, not a definitional one.
Moreover, it is only because of their autonomy that co-determination of the
constituent units, qua constituent units, has a meaning. The hypertrophied King–
Burgess version, where co-determination takes precedence as the primary defining
feature, falls at this first hurdle since co-determination logically presupposes
autonomy. Without entrenched autonomy, co-determination is an empty principle

because constituent units would be creatures of the central government without
any legitimacy to claim to co-determination or would not represent distinct
interests to be incorporated into central government decision-making. As
Dardanelli (2019, 279) put it, “a system with high autonomy for its regional
units and zero shared rule [viz., co-determination] would still be federal, whereas a
system with zero regional autonomy and high shared rule should not be considered
federal.” Federalism emerges not because previously independent entities or
existing regions want a say in central government decision-making, but because
they want either to retain a degree of genuine self-government within a larger
union or be granted a degree of genuine self-government that they were previously
denied.
Co-determination can be seen as compensation for a diminished range of
individual policy autonomy in administrative federalism, where the constituent
units tend to have fewer responsibilities over which they are assigned full authority
than in dual federations but implement and administer federal legislation (Mueller
and Fenna 2022). Germany’s interlocked federalism whereby the L€ ander exercises
co-determination through the Bundesrat is often seen as exemplifying that trade-off
(Fenna 2020). Such co-determination may be desirable to foster efficient and
effective implementation through input by the governments concerned. However,
whether it is more than that depends on the extent to which constituent unit
discretion in implementation constitutes meaningful autonomy (see below) so that
they represent distinct interests to be incorporated in central government decision-
making, making co-determination a secondary feature.
Another reason why the co-determination criterion fails in theory is that the
existence of two orders of government with constitutionally entrenched existence
and powers means that, in principle, neither needs to be involved in the decision-
making of the other. Federalism is about the right of territorial groups to decide
on (some of) their own affairs without interference from others. Rather than being
assimilated into a broader entity and subject to its decisions, even if they are jointly
made, federalism grants these groups a degree of self-government.
Yet another reason why the co-determination criterion also fails in theory is that
the citizens of the constituent units are simultaneously citizens of the federation as
a whole, which means (assuming it is a democratic polity) that decisions of the
federation incorporate the views of the citizens of the constituent units. As
Madison said in Federalist 46, “The federal and State governments are in fact but
different agents and trustees of the people, constituted with different powers, and
designed for different purposes.” This ensures the legitimacy of the central
government. Hence, a country is federal as long as the central government, in
addition to the constituent units, has meaningful powers; co-determination is not
required to legitimize the use of those powers. Co-determination is not, then, a
necessary component of federalism in principle.

Explaining the Error
There would seem to be at least three reasons behind the persistence of the view
that co-determination is a defining feature of federalism. The first is the elective
affinity between federalism and bicameralism, going right back to the convention
debates re-writing the US Constitution in 1787. Every democratic federation has
some form of bicameralism, and many federal second chambers are constituted in a
way that embodies a federal element, archetypally the granting of equal
constituent-unit representation regardless of population. The U.S. Senate
established the norm of federal bicameralism, but the U.S. Senate was always
more about the separation of powers than it was about federalism (Lee and
Oppenheimer 1999, 24–33; Swift 1996; Wood 1969, 553–562). Were it otherwise,
the Senate would have retained more of the features of what Hamilton rather
tellingly deplored in Federalist 16 as “so odious an engine of government”—the
original Congress. Insofar as the equal representation of unequal jurisdictions gave
the U.S. Senate a federal character, it was in respect of the relationship between
large and small states rather than the states in general vis-a-vis the central
government. The final nail in the coffin was the 17th Amendment, over a century
ago, which “brought an end to any sense in which the senators might have been
viewed as representing state interests” (Dinan 2006, 321). However, the notion of
the U.S. Senate as a house of the states stuck, and it is a relatively small step, even
if an erroneous one, from observing the association between federalism and
bicameralism to the supposition that second-chamber co-determination is an
intrinsic element.
The second reason for the error is that for European scholars, the German
example looms large, and there the second chamber is a mechanism for co-
determination: the Bundesrat is central to the operation of Germany’s system of
integrated federalism. There can indeed be forms of federalism where second
chamber representation—what Hueglin and Fenna (2015) characterize as “council
governance”—plays a central role, and Germany is the major example. However,
that is specific to one mode of federalism.
Thirdly, there is the understandable emphasis on the role of intergovernmental
relations in the practical operation of federal systems and the sense arising
therefrom that a key part of federalism is the arrangements whereby some form of
cooperative governance is negotiated between the two orders of government. It is
worth noting here that although in these arguments IGR is put forward as a
surrogate for effective federal bicameralism, a federation among those with the
most highly developed pattern of intergovernmental relations is Germany—the
only federation to have a truly federal second chamber.
As for the misconception that by “shared rule” Elazar meant co-determination,
the language itself invites such an interpretation; Elazar was not at all precise in his

specification and did not elaborate on the concept. To avoid the confusion that has
resulted, he would have been better off defining federalism as something like “self-
rule and rule-in-common,” but that would not have had quite the same ring to it.
Reprise
It should be clear by now that the one essential feature of federalism is entrenched
autonomy, manifest in the existence of two orders of government with
constitutional status, each enjoying a direct relationship to the people with
meaningful powers, and whose status and powers are constitutionally protected.
Entrenched autonomy embodies the fundamental principle of federalism that
allows a meaningful degree of self-government to different communities within one
overarching political system.
Both orders of government must have powers in one of the key areas of modern
government to be meaningful and must have the resources to be able to use those
powers. It is not co-determination that makes Germany a federation, but rather the
meaningful autonomy over main areas of modern government, notably education,
indisputably a core policy area in today’s knowledge economies, retained by the
L€ander. Meanwhile, Switzerland’s credentials as a federation are not at all in doubt
despite the absence of a second chamber for cantonal co-determination in the
Bundesrat mould. Switzerland is an iconic federation because the cantons retain a
number of significant policy responsibilities; enjoy a high degree of fiscal self-
reliance—and, in addition, enjoy strong autonomy in implementation and
administration. It could be argued that in the absence of exclusive powers,
implementation and administration of federal legislation in administrative
federalism provides sufficient constituent unit autonomy for a country to qualify
as a federation. This presupposes, though, that the constituent units have genuine
discretion in that implementation and administration, and that this discretion is
constitutionally entrenched, thus not dependent on central government definition.
This, and not co-determination, is the actual “federalism test” for countries like
Austria and Spain, where constituent units lack exclusive powers over major policy
areas.14 It is also a relevant test for Kenya, for instance, which, though not formally
a federation, gives the counties entrenched status and powers (Bosire 2019).
Forms and degrees of entrenchment may vary, but they must be sufficient to
prevent a unilateral abrogation of one order’s powers by the other.15 This
protection represents a difference in kind between federal and unitary systems with
decentralization. In some unitary states, there is (a degree of) entrenchment of the
existence and powers of one or several regional governments, precluding unilateral
changes—such as South Tyrol’s Autonomy Statute (Alber 2021). The arrangements
between the central government and those regional governments are of federal
nature, but the whole country is not federal.16

Constitutional entrenchment might take the form of a requirement for consent
to amendments of the Constitution by the constituent unit governments (as in the
United States or Ethiopia); by the people (as in Switzerland or Australia); or by the
constituent units directly represented in the second chamber (as in Germany).
While the principle of constitutional entrenchment is what makes a country
federal, constitutional entrenchment can have a territorial or popular dimension
and it can be stronger or weaker. If the consent of the constituent governments is
required for constitutional amendment, those governments enjoy robust
protection. If entrenchment is via a popular referendum requirement, the status
and powers of each order of government are still protected, but the protection is
by the people instead of representatives of the constituent units whose powers are
being altered. A supermajority requirement provides stronger protection than if the
constitution can be amended by a simple majority (of the people or the constituent
units).
Constitutional entrenchment implies that there is an adjudicative process that
would interpret and guard the constitution. Consequently, there is a close link
between federalism and judicial review. Courts play an influential role in umpiring
the relationship between the orders of government. The existence of one notable
federation, Switzerland, where “the Federal Supreme Court does not exercise
judicial review over federal legislation” (Lienhard et al. 2016, 405) shows that it is
not the institution of judicial review per se that is necessary, but the function it
serves, and alternative means are possible. In the case of Switzerland, the umpiring
function is fulfilled by the country’s system of direct democracy (Rothmayr 2001,
80; Mueller 2020).
Meanwhile, many features we associate with federalism are ancillary features of
federal systems, some so common as to be almost universal, others less so. Those
features emerged as an expression of the division of powers between the federal
government and the constituent units or as a consequence of the complexity of
modern government. Depending on how they are designed and function, they may
represent an enhancement of federal practice. Federal bicameralism, inter-
governmental relations, and judicial review are all contingent albeit pervasive
features. As Livingston (1956, 11) pointed out long ago, some kind of territorial
“representation in the upper house of the central government . . . is quite common
and doubtless convenient, but scarcely essential” to federalism. Bicameralism varies
significantly from federation to federation and its contribution to the maintenance
of the federal system is often minimal or nonexistent. Nevertheless, the
establishment of some form of territorial chamber in all federations seems to be
driven by the idea of constituent unit representation at the federal level (Russell
2001).
Practices and arrangements for intergovernmental relations, meanwhile, are
universal because they are unavoidable. Intergovernmental relations developed as a

way of managing the various interdependencies that exist among governments even
though they enjoy autonomous powers, but intergovernmental relations are not
part of what makes a country federal. In principle, a federal system could operate
without intergovernmental relations, and in practice, we know that these fluctuate
according to the needs of the times and the orientations of the actors. Most
importantly, a system of intergovernmental relations is not a substitute for
institutions of co-determination. There is a clear distinction between co-
determination and intergovernmental relations. The former occurs via constitution-
ally entrenched second chamber representation of constituent-unit governments or
equivalent mechanisms and only really exists in Germany and Switzerland. The
latter occurs via meetings and councils. While co-determination gives the
constituent units a formal role in the adoption of federal legislation, IGR is an
informal, yet important, mechanism of policy coordination and does not provide
co-decision-making powers. The outputs of intergovernmental meetings and
councils are rarely legally binding and can only be politically binding. To have legal
effect, intergovernmental declarations, resolutions, and most intergovernmental
agreements must be implemented through federal or constituent unit legislation.
Some, or even all, of these contingent features of federalism, can be found in
countries that are not formally federal but where subnational governments have
some legislative, administrative, and/or fiscal powers. In those countries, the role of
subnational governments is defined by the central government, however, and
though it might be politically difficult, the central government has the authority to
withdraw these powers, in which case the federal-type features lose their purpose
or raison d’^e tre.
Conclusion
The discussion here has been premised on the view that federalism scholarship
should be able to provide a sound and workable definition of its object of study,
and that such conceptual clarity is required for analytic rigour. Suggestions that
this is out of reach—neither possible nor indeed necessary—rest in significant part
on the view that there are too many competing definitions and little way of
mediating between them. We have shown that this is not the case. The field is
dominated by two main definitions: what we have called the autonomy and the co-
determination ones. For the autonomy definition, a political system is federal if
there are two constitutionally entrenched orders of government each enjoying a
direct relationship with the people and exercising meaningful powers. For the co-
determination definition, there must also be a mechanism whereby the constituent
units participate in central-government decision-making. The co-determination
definition commonly presents itself as the expression of Elazar’s “federalism equals
self-rule plus shared rule” formula.

As this article has shown, the co-determination criterion lacks both empirical
and theoretical foundations. Co-determination is a minor or nonexistent feature of
many actually existing federal systems, and in principle, while co-determination
can be seen as complementary to autonomy, it is not necessary to it. Bicameralism
is one of several features that are associated with, or frequently part of, federal
systems but it is one that rarely provides real co-determination. Requiring that
“lower-tier governments have direct representation in a central government
chamber with veto powers over national legislation,” as Inman and Rubinfeld’s
(2020, 11) definition, for instance, does, would disqualify virtually every federation
in the world—not least of all their own. Intergovernmental relations, meanwhile,
are a much more active and important part of the federal practice but one that
provides avenues for consultation, cooperation and coordination, bargaining and
negotiation, and sometimes constituent unit collective action, but not co-
determination. At best, intergovernmental relations are a form of joint governance.
Their absence would present major problems for the operation of a federal
system—conceivably even breakup—but would not in itself make the system less
federal.
The co-determination definition has drawn strength from a misunderstanding
or misappropriation of Elazar’s formula. “Shared rule” in Elazar’s formula can only
mean the existence of a central government ruling in common for the federation as
a whole—as the autonomy definition holds. Two errors have become prevalent in
the field, and one has compounded the other: the mistake of interpreting “shared
rule” as meaning co-determination, and the mistake of thinking that co-
determination is essential to federalism.
In short, consonant with the classic definitions of Freeman, Dicey, Wheare and
Riker, autonomy is the defining feature of federalism, and for a state to be federal
it must meet the three autonomy criteria above. This is not to deny the
contribution made by federal features or arrangements that may fulfill some of the
autonomy requirements. Many countries have constitutional arrangements with
federal elements—and are sometimes thought of as federations for that reason. But
unless all three autonomy criteria are fulfilled, a country cannot be classified as a
federation. Nor is it to deny the contribution and often great importance of
ancillary institutions and practices in federal countries, but their presence is not
what makes a country federal in the first place.
Notes
1. By “futile”, they presumably mean pointless or unnecessary.
2. As a general concept, “federalism” is purely descriptive in nature. Contrary to what
some have suggested (notably Burgess 2013, 46), federalism cannot be seen as being in
any way a normative concept. One may provide normative arguments in favour of

federalism, but like “presidentialism” or “parliamentarism” the concept itself merely
identifies an organizational form or principle—by contrast, for instance, with the
related concept of subsidiarity, which is indeed an “ought” proposition.
3. Friedrich (1968, 7 and passim) was at pains to emphasize that federalism is also a
“process”—a rather banal point since that was never in doubt and one that applies to
all other aspects of political life. Indeed, as Heraclitus famously observed two-and-a-
half thousand years ago it probably applies to all of life more broadly.
4. The European Union, for instance, is generally seen as not being a federation for this
reason (Elazar 1998; Kincaid 1999; Majone 2006; Moravcsik 2001; Wolinetz 2011).
Auer (2005, 428 and passim) maintained that the EU passed the test—and indeed that
“It can even be said to be more federal than many national federal states, like Canada
or Belgium”—on the grounds that the constituent units “are no longer merely
individual nation states”; there is a “clear division of powers”; and there is an
institution to adjudicate disputes. These are all true, but insufficient. Larsen (2021)
characterizes the EU as a federation by assigning a different meaning to the term.
5. Furthermore, as Forsyth (2007, 162) notes in respect of the EU, the central government
must possess the particular powers that make the system a “state” rather than only a
“union.”
6. “. . .unless the constituent polities have substantial influence over the formal or
informal constitutional amending process, the federal character of the system is open
to question” (Elazar 1987, 173).
7. Though it is not entirely clear whether they are being tested against reality or reality is
being tested against the propositions.
8. Indeed, Watts’ lengthy section on bicameralism (2008, 147–154) makes no claims as to
the co-determining capacity or role of second chambers.
9. Wheare (1963, 19) had expressed ambivalence about Canada, but for entirely unrelated
reasons. For him, the special powers given to the federal government “suggests we
should describe the BNA Act as ‘quasi-federal.’” At the same time, though, he made
clear that this was not an observation about Canadian federalism, but merely about the
provisions of its Constitution.
10. Although self-rule has been re-interpreted by the Regional Authority Index as applying
promiscuously to regional governments regardless of whether their powers are
constitutionally protected or merely delegated (Hooghe et al. 2016, 24 and passim). For
Elazar only the former would qualify.
11. Conversely, second chambers with (some form of) territorial representation also exist
in several unitary states (e.g., France, Poland).
12. India’s second chamber, the Rajya Sabha, is ostensibly a house of the States by virtue
of being almost entirely elected by the State legislatures; however, partisan dynamics
are such that its capacity to act in that way is greatly constrained (Dhavan and Saxena
2006, 175–176).
13. He admits, though—somewhat confusingly—that while the shared rule is a defining
feature of federalism, not all the three types of shared rule he identifies are. Indeed, in
most cases, horizontal cooperation has nothing to do with sharing power but with
sharing resources and information or with harmonizing policy.

14. Ultimate assessment of Austria’s federal character also hinges on the extent to which
exclusive authority of the L€ander over policy sub-sectors such as social housing can be
seen as meaningful autonomy.
15. It is conceivable that there are credible autonomy guarantees other than constitutional
entrenchment.
16. Countries in which the abolition of autonomy is not politically feasible are very close
to federalism—that is to say, they are quasi-federations—but politics hardly provides
the autonomy guarantees that are the essence of federalism. Emergency powers may
allow the central government to, partially or fully, suspend constituent unit autonomy.
As long as it is temporary, the activation of emergency powers does not mean a
country ceases to be a federation.
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The most prominent conceptualization of federalism is as a political organization combining ‘‘self-

Publius:The Journal of Federalism,1^22

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Definitions through the Ages: Autonomy or Co-determination?

The Autonomy Definition

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The Co-Determination Definition

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The Language of ‘‘Shared Rule’’

Confusing Shared Rule with Co-Determination

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Resolving the Meaning of Shared Rule

Stretching the Application

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But Does It Work in Theory?

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