Abstract
How and to what degree do federations produce uniform law within their system? Our comparative empirical study addresses this question comprehensively for the first time by examining legal unification in 20 federal systems around the world. We present the means and methods of legal unification, the degree of legal unification of each system (and of particular areas of the law within each system), and a first attempt to explain the driving forces of legal unity and diversity in federations more generally.
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Notes
- 1.
Some noteworthy exceptions are the studies published in Harmonization of Legislation in Federal Systems (Ingolf Pernice, ed., Baden-Baden: Nomos, 1996); and Harmonization of Legislation in Federal Systems (George Bermann, ed., Baden-Baden: Nomos, 1997). These works, however, do not attempt a comprehensive comparative study of the level of unification within federal systems either.
- 2.
See generally, Daniel Halberstam, “Federalism: Theory, Policy, Law”, in, The Oxford Handbook of Comparative Constitutional Law (M. Rosenfeld and A. Sajo, eds., Oxford: Oxford University Press, 2012).
- 3.
Note that the Kingdom of the Netherlands is a larger unit the Netherlands (in Europe) itself. The Kingdom of the Netherlands consists of a rather centralized European country and a few small islands in the Netherlands Antilles. These islands were former Dutch colonies and are now loosely associated with the mother country through a “Statute”.
- 4.
The Federal District (Distrito Federal), i.e., Mexico City, has, like the District of Columbia in the United States, a somewhat special status as the seat of the federal government.
- 5.
Thus, for purposes of this study, the term federalism is used simply as an analytic tool to determine the inclusion or exclusion of the system as an object of study. Note that we use the generic terms “central” or “federal” to refer to the central level of governance and “component state”, “member state”, “component unit” or “member unit” to refer to the regional governments, be they “Member States” as in the European Union, “Provinces” as in Canada, “States” as in the United States, “Cantons” as in Switzerland, or “Regions” or “Communities” as in Belgium, etc.
- 6.
Nigeria was originally part of this study but we were ultimately unable to locate a competent national reporter.
- 7.
Beyond the three limitations listed below, the study also limits itself to official (state) law. Thus, it does not deal with so-called “non-state” or “private” norms. Such norms are harmonized or unified through very different processes and often to a much greater degree than state law. They would require a study entirely in its own right.
- 8.
We are aware that there are other, more specific, understandings of these terms, as in Canada, for instance, where harmonization has special meaning in connection with so-called “harmonized bijural law,” which takes both common and civil law traditions into account. For purposes of this report, however, we have communicated the understanding of these terms as laid out in the text to all participants as the operative understanding for purposes of this study.
- 9.
Consequently, this study is limited to the unification of law within federal systems. It does not address the question of uniformity across different federations, i.e., on the international level. We do, however, include the European Union in this study as a federal system.
- 10.
For the classic study of this sort, see Formation of Contracts – A Study of the Common Core of Legal Systems (Rudolf Schlesinger, ed., 2 vols., 1968). A more recent, and much broader, enterprise of this nature is the Common Core of European Private Law project (often referred to as the “Trento Project”), see Mauro Bussani and Ugo Mattei (eds.), The Common Core of European Private Law Project (Cambridge: Cambridge University Press, 2004).
- 11.
See, e.g., Daniel Halberstam and Mathias Reimann, “Top-Down or Bottom-Up? A Look at the Unification of Private Law in Federal Systems,” in Roger Brownsword et al. (eds.), The Foundations of European Private Law (Oxford: Hart Publishing, 2011).
- 12.
In some of these countries, special procedures exist for the enforcement of constitutional rights on a broad basis, like the German Verfassungsbeschwerde and the Mexican amparo.
- 13.
In Spain, these norms pertain only to some of the component states, i.e. those that followed a certain fast-track procedure to autonomy.
- 14.
For example, in the United States, the Republican Form of Government Clause has little bite. Argentina’s Article 6 of the Constitution, by contrast, which similarly authorizes the federal government to intervene in the territory of the provinces to guarantee a republican form of government, has had a dramatic effect on component state autonomy. The Argentine central government has used this power repeatedly to, as the Argentine Report puts it, “strong-arm the provinces into complying with federal mandates in any situation it deemed necessary to do so.”
- 15.
They are, however, not necessarily entirely uniform in interpretation and practical application. Different authorities (courts or executive officials) may interpret them differently. In Canada, federal legislation expressly provides that, due to the “bijuralism” of the legal system, federal rules may have to be interpreted differently in the common law contexts on the one hand and in the context of Quebec’s civil law system on the other.
- 16.
In the latter three systems, part of the reason for this more limited unifying role of central legislation is the breadth of concurrent jurisdiction: even if the center legislates, the member units do not necessarily lose their competence to enact parallel, and possibly divergent, norms for their own territories. Of course, where the very point of central legislation is to create uniformity, the member units may lose that right, as in the case of federal preemption in the United States.
- 17.
A Eur-Lex search brought up over 2,000 directives and nearly 30 framework decisions. Many directives, however, are passed as amendments to earlier directives.
- 18.
In some systems, especially those marked by broad concurrent legislative power, central legislation does not strictly speaking require the member units to legislate, but allows, and indeed expects, them to do so. Here, the center enacts broad principles and rules while the member units fill in the details. In this manner, federal framework laws and member unit regulation end up working in tandem on different levels of specificity. Like EC Directives, this ensures uniformity regarding the broad outlines but at the same time allows for regional or local diversity regarding the particulars.
- 19.
Some conflicts may trigger central legislation or regulatory enactments.
- 20.
Based on the information provided in the National Reports as they currently stand, it appears only a minority of federations grant their central courts jurisdiction authoritatively to interpret member unit law.
- 21.
At least in theory, this is supposed to change when the latest judicial reforms enter into force in 2009.
- 22.
In Malaysia, where national courts have the general power to interpret component state law, there is a fierce jurisdictional debate over whether and to what extent national secular courts have the power to interpret sharia law.
- 23.
In Russia, the constitutional or charter courts of the component states (of which there are presently 16) have exclusive competence to resolve disputes concerning the interpretation of regional constitutions (or charters) and compliance of regional laws and regulations with those constitutions (or charters). In all other respects the judiciary in Russia is unitary.
- 24.
These courts may of course follow each other’s jurisprudence but that is not an exercise of central (judicial) power top-down but a matter of voluntary cooperation which will be addressed infra. Sect. 1.2.2.2.
- 25.
Russia and the United States make it impossible to say that common law jurisdictions give their supreme courts power over member state law while civil jurisdictions do not: each does the opposite of what its group membership would require. Still, the line-up suggests that the common and civil law heritages are not unrelated to this allocation of powers. Different notions of judicial power (precedent-creating vel non) may lurk in the background here, and the idea of a “common law” (common, that is, to the whole system) may also play a role. A full exploration of these matters is, however, beyond the scope of this overview.
- 26.
In Malaysia, however, the primary role of such commissions is not to propose any substantial changes, but only to assist in such things as modernization of language.
- 27.
Such bodies and mechanisms exist in Austria with regard to the implementation of EU law; in Brazil where the federal legislature has created various national systems in select areas of law (such as environment and health) aiming at coordination within the federation; in Italy with its “Conference of State-Regions” and “Conference of State-Cities”; in Mexico, where the federal government constantly organizes and sponsors congresses, meetings, and publications to promote the uniformity of law; in Russia where the “State Council” (consisting of the heads of the subjects of the Russian Federation) assists the President in resolving disagreements with member units; in South Africa (in addition to the Law Commission) with the President’s “Co-ordination Committee” which includes the provincial premiers, and several similar institutions; in Spain, where the central government has some “coordination power” over the states; in Switzerland, for example, through the Federal Commission for Coordination in Family Matters (COFF) and the Federal Commission for Coordination for Safety in Labor Matters (CFST); and in the EU where the Commission and Council monitor and work with the member states in search for common policies and strategies, more recently under the label of an “open method of coordination.” In addition to these policy-oriented and coordinative bodies and mechanisms, the Russian central government also employs a more coercive means: the President has “envoys” (plenipotentiaries, “polpredys”) in each of seven “federal district[s],” which are composed of 6–18 component states each. Reporting directly to the President, they protect his constitutional authority in these districts and check member unit law for conformity with (central) constitutional norms. In other words, the central executive keeps watchdogs throughout the system that ensure that nobody strays from the flock.
- 28.
Uniform law making in the United States by and large takes place on the coordinate (i.e., state) level, see infra. Sect. 1.2.2.1; the Administrative Conference of the United States is a federal institution but its goal is the “improvement of federal agency procedures”, not the unification of administrative law on the state level, http://www.acus.gov./about/the-conference/ (last visited August 1, 2011)
- 29.
To be sure, in parliamentary systems so-called “executive” cooperation can take on a distinctly legislative character in light of the close connection between the government and the dominant coalition in the parliament. Nonetheless, for purposes of this report, we set out legislative and executive cooperation separately.
- 30.
In Italy, there is the “Conference of the Regions and the Autonomous Provinces” as well as a Conference of the State and Cities and Other Local Autonomous Entities. Their purpose, however, seems not primarily to be legal unification but rather coordination with respect to dealings with the national government. Similarly, in Belgium, various committees exist reflecting wide-spread cooperation among the federal government and the subunits as well as among the subunits themselves.
- 31.
In Malaysia, there is a unitary judiciary for secular matters only. In matters of sharia, however, there are separate and independent component state courts (without any coordinating high court).
- 32.
In the United States at least, the virtually routine consideration of sister state court judgments has not overcome the diversity of law in most areas. In many instances, it has actually exacerbated the chaos of case law.
- 33.
A unique case is presented by Russia. Here, the chief executives of the component units are now nominated by the federal President (they must then be confirmed by the regional legislatures), and they can also work in the federal civil service. They can thus contribute to legal unification on the subunit level as parts of the “unified system of executive power”. Yet, since they are largely on the tether of the central executive, the top-down element is so strong here that this process cannot count as truly coordinate.
- 34.
In Spain, the federal constitution provides for “collaboration conventions” and “cooperation agreements” among the member units but few such conventions or agreements have ever been concluded in a multilateral fashion; as a result, that mechanism has played little or no role in the unification of law. In the United States, there are interstate compacts or various sorts, but they have, again, normally not concerned legal uniformity.
- 35.
This is the case, for example, in Austria with its meetings of the chief executives of the member states (called, by a wonderfully long German word, Landeshauptmännerkonferenz); in Canada in the meetings of the provincial premiers; in Italy with its variety of standing regional conferences; in Mexico with its National Conference of Governors; and in the United States with its National Governors Association.
- 36.
Thus their impact is addressed supra Sect. 1.2.2.1. Given their often considerable independence, one could plausibly consider them non-state actors, and many National Reports address them in this mode. In that case, non-state actors must be said to have a significant influence on legal unification in a considerable number of federal systems.
- 37.
To be sure, the lines are blurry here. Sometimes, privately created industry and other standards are sanctioned or even ratified by states and can thus take on an official character.
- 38.
This, of course, presumes a certain quality level of scholarly research and literature which may not exist everywhere. The National Report on Argentina, for example, laments serious deficits in this regard.
- 39.
Hein Kötz, Axel Flessner, and Tony Weir, European Contract Law v. 1 (Oxford: Oxford University Press, 1998), German original: Hein Kötz, Europäisches Vertragsrecht I (Tubingen: Mohr, 1996). See also Christian von Bar, The Common European Law of Torts (2 vols., Oxford: Oxford University Press, 1998–2000) (German original: Gemeineuropäisches Deliktsrecht, 2 Bde., München 1996–1998); Thomas Kadner Graziano, Europäisches Vertragsrecht (Basel: Helbing Lichtenhahn, 2008); Peter Schlechtriem, Restitution und Bereicherungsausgleich in Europa. Eine rechtsvergleichende Darstellung (Tubingen: Mohr, 2001).
- 40.
See, e.g., Walter van Gerven et al., Torts (Oxford: Hart, 1999).
- 41.
See Alexandra Braun, Guidici e Accademia nell’esperienza inglese. Storia di un dialogo (Mulino: Bologna 2006).
- 42.
See, e.g., Dan Dobbs, The Law of Torts (St. Paul: West Group, 2001), Allan Farnsworth, Farnsworth on Contracts (3 vols., New York: Aspen Publishers, 2008); James J. White and Robert Summers, Uniform Commercial Code (4 vols., 5th ed., St. Paul: West Group, 2002).
- 43.
In the United States, this statement must be handled with caution. There is, in some contexts, a truly national bar for which the statement is true. There is, however, also a more local bar which is often intensely tied to state or even municipal law; this local bar may actually be a force working against national unification because it often has an interest in keeping law local and idiosyncratic.
- 44.
This is true even where legal education is organized by the member units, as in Germany or Switzerland, and, with regard to both public and private universities.
- 45.
In both Belgium and Canada, the respective language barriers play a role in this. It also limits the mobility of students in Switzerland between the German and French speaking parts.
- 46.
This is not the case in Australia, however, where the teaching of subjects that are controlled by state law (e.g. criminal law) will focus on the law of the state within which the law school is situated.
- 47.
In the United States, the degree to which this is true depends on the rank of the law school in the overall hierarchy. Elite law schools pay next to no attention to the law of the state in which they sit. As one descends the prestige ladder, passing the (state) bar exam is more important (as well as more problematic) so that teaching state law plays a greater role. Also, in Louisiana, legal education has to focus more than elsewhere on state law due to specific nature of its codified private law system.
- 48.
Some systems also require, or at least offer, continuous legal education (CLE), especially for members of the bar. These programs may also have a national focus but they can just as well deal with member state law, as is often the case in the United States.
- 49.
Most of the respective systems either generally allow nationwide practice, as in Belgium, Italy or Switzerland, or at least have fairly generous rules about mutual recognition of bar exams and memberships, as in Australia and Canada.
- 50.
In Malaysia, for example, lawyers admitted to practice in the peninsula cannot easily practice in the East Malaysian states of Sabah and Sarawak.
- 51.
Also, US states’ bar examinations now contain a “multistate” part, which covers areas of law that are uniform throughout the country. While candidates also have to take the state-specific part, in some states, passing the multistate section (or passing with a specified high score) can mean that the state-specific part will not be graded. This often leads candidates to concentrate particularly on the multistate section, i.e., uniform law.
- 52.
As a result, many American lawyers are admitted to the practice of law in more than one member state while such multiple admissions are still a rarity in Europe.
- 53.
These barriers are often daunting, of course, within the European Union but they also play a significant role in Belgium (except for the mix of lawyers practicing in Brussels) and Canada and, although in a much more attenuated fashion, in Switzerland and (despite the lack of a language barrier) the United Kingdom, i.e., between England and Scotland.
- 54.
The national organization of lawyers, the American Bar Association (ABA), also provides a platform for a nationwide discussion of legal issues among lawyers and often takes positions on law reform in its monthly publication, the American Bar Association Journal (ABAJ).
- 55.
This is contested with regard to the member states’ Constitutions only.
- 56.
All but the European Union, which is not a state in the international sense and thus cannot be a UN member, and Malaysia are members of the International Covenant on Civil and Political Rights (ICCRR); 16 of our 20 systems considered here are members of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and 17 are members of the International Covenant on the Elimination of all Forms of Discrimination against Women (CEDAW).
- 57.
In addition, they are all subject to customary international law, of course.
- 58.
For example, in systems were procedural law is the domain of the member states, the center can still unify aspects of civil procedure by ratifying the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters (1965). When the United States ratified the Convention in 1976, it became “the supreme law of the land” (US Const. Art. 6 § 2), binding federal and state courts and litigants alike.
- 59.
An important unifying effect is also created by the wide (and voluntary) use of INCOTERMS (International Commercial Terms) in international sales transactions.
- 60.
In fact, such a split can even occur without concomitant unification benefit, namely where the subject covered by a treaty is already unified under federal law. For example, service of process in many European Union members states is governed by different sets of rules depending on whether such service is purely domestic (federal law), transboundary within the EU (Regulation on the Service of Process 2001) or international beyond it (Hague Service Convention).
- 61.
Even the European Union became a member in 2007 after the organization’s statute had been specifically amended for that purpose.
- 62.
Of course, one may respond that the challenge of legal unification in federal systems really begins where central government power ends, and where one must therefore resort to other means. In that case, the sum total of the national reports suggest that none of these other means is obviously superior to any other and that the best strategy will combine them as far as possible.
- 63.
Even on such a scale, gauging the respective degrees of uniformity demands rather broad generalizations.
- 64.
See Appendix 1.
- 65.
There are, of course, prominent exceptions, such as the European Union. The Spanish Constitution should be noted in this regard as well, as it is open-ended in the sense that it not only unifies, but also invites diversity. Indeed, the potential for diversity in the Spanish Constitution has not (yet) been exhausted.
- 66.
This idea of local autonomy as a means to enhance efficiency by encouraging sorting among (potential) residents of local jurisdictions has been championed since Charles M. Tiebout’s classic article “A Pure Theory of Local Expenditures Export,” 64 The Journal of Political Economy 416 (1956).
- 67.
Leaving aside the Kingdom of the Netherlands for the reasons explained above.
- 68.
Given the small number of observations and the difficulties that inhere in the underlying data, we are hesitant to pursue multivariate regression analysis at this point lest our explorations be given an improper air of scientific accuracy.
- 69.
In the following description we attend to the basic distribution of competences, not the more fine-grained interpretation of these power-allocating norms.
- 70.
This study did not consider the law pertaining to defense or nationality. With the exception of the European Union, the central government of every single federation in our study enjoys broad powers over these areas. As these areas of governance do not correspond to any substantive area of legal unification that we asked about in our survey, the general allocation of these particular powers to the center does not help predict the legal unification we have studied here.
- 71.
The importance of some regulatory power over the market as a core characteristic of federations is indeed driven home by the Dutch exception. Here, where the center lacks power over the market, the center has no powers other than those in the realm of defense, international affairs, and nationality.
- 72.
This is true for India as well. With regard to education, disagreements over the center’s regulatory powers led first to education being removed completely from the State to the Union List, and then to being transferred to its current location in the Concurrent List while leaving only certain regulatory powers over higher education on the Union List.
- 73.
We are tempted to suggest that the strength of the central government’s jurisdiction over education in federations is in large measure due to the degree of cultural diversity coupled with the distribution of financial resources. Thus, the strong central powers over education in Malaysia and Mexico may well be in large part a product of the existence of extreme poverty and a concomitant need for concerted action to lift the education level among the general population as well as of the absence of local resources on the part of the component states to do so on their own. This might also explain the general concurrent power over education in India and South Africa, and the joint power over education in Brazil or the power over the organization of education in Argentina. More systematic study would be needed, however, to confirm this intuition.
- 74.
Australia gives the central government legislative jurisdiction over marriage and divorce, and the UK’s arrangement with Scotland leaves products liability with the central government. Canada stands out for having a different power allocation for general private law, on the one hand, and substantive criminal law, on the other. It reserves most private law (“property and civil rights”) to the provinces while delegating marriage and divorce as well as substantive criminal law to the center.
- 75.
According to the National Report, Malaysia assigns “civil and criminal law and procedure and the administration of justice” to the federal government. We do not currently read this as assigning power over administrative procedure to the central government.
- 76.
The scoring is explained in further detail in Appendix 1.
- 77.
We should emphasize that the empirically significant fact is the general regularity of the correlation between the legislative centralization score and the unification score across federations, not the correspondence of absolute scores for a particular federation taken in isolation. Although the measurement of legislative power and legal unification both use the same scale, the resulting score on each is an indication only of the relative achievement of any given federation with regard to either legislative power or legal unification. Thus, the absolute score that a federation receives on one measure need not correspond to the absolute score it receives on the other.
- 78.
Mikhail Filippov, Peter C. Ordeshook, and Olga Shvetsova, Designing Federalism: A Theory of Self-Sustainable Federal Institutions (New York: Cambridge University Press, 2004).
- 79.
George Tsebelis, Veto Players: How Political Institutions Work (Princeton: Princeton University Press, 2002).
- 80.
South Africa is mixed civil/common law system, and Malaysia, with its colonial common law heritage now is sui generis due to the heavy, and increasing, influence of Islamic law. Another slight imperfection in the picture is the fact that some of the common law systems contain civil law elements, i.e., Canada (with Quebec), the United States (with Louisiana), and arguably even the United Kingdom (with Scotland as a mixed jurisdiction).
- 81.
See Mirjan Damaska, “The Common Law/Civil Law Divide: Residual Truth of a Misleading Distinction,” 49 Sup. Ct. L. Rev. (Canada) 3 (2010).
- 82.
See Mirjan Damaska, The Faces of Justice and State Authority (New Haven: Yale University Press, 1986).
- 83.
Robert A. Mikos, “The Populist Safeguards of Federalism,” 68 Ohio St. L. J. 1669 (2007).
- 84.
This does not necessarily mean that federations with social cleavages are generally less centralized or exhibit less legal uniformity than those without social cleavages. But it suggests that whatever potential for decentralization lies within a federation’s constitutional architecture will be guarded more carefully in systems with lumpy social cleavages than in those without such a federal society. In systems without social cleavages or where social cleavages are randomly dispersed through the federation, we would expect system-wide left-right politics to take over and dilute the federation’s structural potential for decentralization.
- 85.
In Germany, one would probably look to the unification under Bismarck in 1871 but could also argue for the adoption of the Grundgesetz in 1949. In Russia, one could go back to the early days of the Soviet Union (1922) or look at the current constitution (1993). In the United Kingdom, one could go back as far as the Act of Union with Scotland (1707) or consider only the devolution project of the last 20 years.
- 86.
Another, although special, case in point is Venezuela, where federalism has by and large been suffocated over the last decade by an authoritarian regime.
- 87.
See Halberstam, supra note 2.
- 88.
It took Switzerland more than 60 years to unify its private law (1848–1907/1911) and until the present, i.e., about 160 years to unify its civil and criminal procedure
- 89.
The only exception is the extremely loose federation of the Kingdom of the Netherlands, which is atypical in almost all regards and should therefore not distract from the conclusion in the text. The National Report for the United States describes US-American law as “not uniform…[but] largely harmonized”, meaning that while there are “numerous inconsistencies in the law”, they are mostly “matters of detail only” (which can, however, “be extremely important in individual cases”). We consider this evaluation consistent with our general conclusion.
- 90.
See, e.g., Malcolm M. Feeley and Edward Rubin, Federalism: Political Identity and Tragic Compromise (Ann Arbor: University of Michigan Press, 2008); Malcolm M. Feeley and Edward Rubin, “Federalism: Some Notes on a National Neurosis,” 41 UCLA L. Rev. 903 (1994).
- 91.
Cf. Kenneth Benoit and Michael Laver, “Estimating Party Policy Positions: Comparing Expert Surveys and Hand-Coded Content Analysis,” 26 Elect. Stud. 90–107 (2007).
- 92.
This practice was developed to correct for instances when respondents use the ordinal response categories in questions in different ways, which may bias the validity of analyses based on the resulting data can be biased. Anchoring vignettes is a survey design technique intended to correct for these problems. See Gary King, Christopher J. L. Murray, Joshua A. Salomon, and Ajay Tandon, “Enhancing the Validity and Cross-Cultural Comparability of Measurement in Survey Research,” 97 Am. Polit. Sci. Rev. 567–583 (2003).
- 93.
For four systems (Germany, Italy, Spain, United Kingdom) we wound up with two intersystemically reliable scores in addition to the score of the national reporter. For two systems (Canada and Argentina) we wound up with four intersystemically reliable scores in addition to the score of the national reporter.
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Appendices
Appendices
1.1 Appendix 1: Methods
1.1.1 Collecting Data About Degrees of Uniformity
We began by asking each national reporter to rate 47 areas of the law in their country on a scale of uniformity from 1 to 7 by filling out a “scorecard”. We encouraged each expert to consult others within his or her system to the extent the national reporter did not feel comfortable answering all the questions on his or her own. The national reporter’s score is therefore merely one expert’s (or a small coordinated group’s) subjective judgments of the level of uniformity within that particular system. And yet, one strength of expert estimates is that they allow us to capture what country specialists have in mind when they talk and write about legal unification in the literature.Footnote 91
This left us with two reliability concerns. The first was a straightforward concern about the reliability of our national reporter’s view of his or her system as compared to what another (independent) expert’s view of that same system might have been. We sought to address this problem by obtaining at least one additional score for each system from another expert whom we judged to be as qualified as the national reporter to assess the level of unification in his or her system across the spectrum of fields listed on the scorecard. If the second expert answered fewer than 75 % of the questions asked (or gave a “0” for more than 25 % of the answers), we eliminated him or her and engaged a third (and, if necessary, fourth) expert. This ensured that the “surviving” experts were as broadly confident about their perception of unification across all areas of the law within their own system as was the primary national reporter.
The second was a concern about comparability across systems, i.e., about intercoder reliability between the national reporters from different systems. This latter concern was that one national reporter’s view of what constitutes uniformity (as a general matter) might be biased as compared to the views of a national reporter from a different system. Because this latter concern about intercoder reliability related specifically to the reliability of reporters across systems, we termed this the problem of intersystemic coding reliability.
We addressed this second concern by also giving the additional experts a separate set of eight control questions designed to identify a systematic bias in rating uniformity more generally. Each of these control questions presents a hypothetical scenario of laws in a hypothetical federation with regard to a particular area of the law and asks the coder to rate the level of uniformity for the hypothetical federation within that given area of law.Footnote 92 Each of these questions sought to elicit an answer that would reveal a different kind of bias. For example, in one scenario we present a federation in which all but one of twelve constituent jurisdictions have the same law. In another question, we present a federation in which every constituent jurisdiction has a speed limit, but the speed limits vary between 55 and 65 mph. The point with each of these questions was not to look for right or wrong answers, but simply to ensure intercoder reliability in the sense of checking that each coder took roughly the same general approach to coding uniformity and disuniformity when presented with the same scenario.
We disqualified experts whose average score on the control questions was more than one standard deviation from the average score that all the other additional experts gave to the control questions. This ensured that the surviving experts were what we termed “intersystemically reliable,” because they had shown generally to rate uniformity in a manner roughly similar to the other experts. This helped us increase the reliability of comparing unification scores across different systems. Again, where we eliminated one expert as unreliable, we turned to a third and in some cases even a fourth. For logistical reasons of solicitation and timing, we occasionally wound up with more than one intersystemically reliable “second opinion” for a given system.Footnote 93
In calculating a particular system’s unification score for an individual area of the law, for sub-scores across several areas of the law, and for the overall average unification score across all areas of the law, we then took the average of the national reporter’s and additional (surviving) experts’ scores.
1.1.2 Legislative Centralization Index
The two principal authors of this study separately evaluated legislative centralization by taking into account (1) the breadth and number of areas assigned to the center under the text of the constitution, (2) the practical importance of the various fields (e.g., weighing “commercial law” more heavily than “water rights”), (3) where we had sufficient information, how grants of federal legislative power have been interpreted (e.g., the broad interpretation of the commerce clause under the U.S. Constitution), and 4) whether residual legislative power is assigned to the center or the member units. Each of us arrived at a composite score indicating, for each federation, the concentration of powers at the central level of government on a scale ranging from 1 (lowest) to 7 (highest). When we compared our individual scores, we found that we agreed in the overwhelming majority of cases. Where we did not, our disagreement was small (one point or less), and we arrived at an agreement or compromise after some discussion.
We did not consider how broadly, forcefully, or successfully the respective legislative powers at the central or member state level have been or are exercised. We also ignored both the broader institutional architecture and the social or political context in which the allocation of primary legislative jurisdiction was embedded. The legislative centralization index is therefore intended as an index solely of the formal allocation of legislative jurisdiction in any given federation.
1.2 Appendix 2: National Reporter Questionnaire and Scorecard
Uniform Law and Its Impact on National Laws
Limits and Possibilities
Intermediary Congress of the International
Academy of Comparative Law
Mexico City, 13–15 November 2008
Questionnaire
on
Unification of Laws in Federal Systems
General Reporters
Daniel Halberstam
Mathias Reimann
1.2.1 Introduction
This study investigates the unification of laws in federal systems. We seek to ascertain the level of legal unification within each system, to understand the institutional, social, and legal background against which legal unification occurs, and to explore the means by which unification is achieved and by which diversity is sustained in each federal system.
The questionnaire consists of six parts. Part I invites you to write a brief overview of the federal system, in particular as it pertains to the issue of unification. Parts II–IV provide a series of broad questions about the distribution of power, means of unification, and institutional and social background. Most of the questions in Parts II–IV are divided into specific sub-questions. Please answer all sub-questions to the extent they are applicable. Part V is a “unification scorecard,” which will ask you to score the level of uniformity and indicate the various causes and sources of uniformity and diversity in several specific areas of law. In Part VI, we ask for a brief essay reflecting your general assessment, conclusion, and/or prognosis on legal unification in the federal system on which you are reporting.
While some of the questions in Parts II–IV may be answered in a simple yes/no format, others invite reporters to respond in narrative fashion, to emphasize the points important in their own legal system. Your answers to these questions should provide, whenever possible, a historical and evolutionary perspective. Where appropriate, they should point out whether and how norms, facts, or circumstances have changed over time in a significant manner. They should also indicate future trends if such trends are sufficiently discernible.
Given that some of the questions may overlap with others, you should feel free to make cross-references where appropriate, as long as your answers cover all the points raised in the specific question to which you are responding. Where there are no meaningful answers in a given system please say so and briefly explain why. Of course, each reporter may wish to add information of particular significance in his or her federal system not covered by the questionnaire.
Throughout the questionnaire, we use the term “unification” (of law). The reports (both national and general) should encompass “harmonization” of law as well. For purposes of this questionnaire, we view unification and harmonization as different points on a spectrum of “likeness.” In other words, we are interested not only in “sameness” of law throughout a federation but also in “similarity.”
Finally, we use the phrases “central” government and “component” state or government to refer to the various levels of government in a federal system. To the extent that the constitution recognizes and protects other political subdivisions (e.g. language communities, regional communities, municipalities, or counties), please explain and please include these in your discussion of component powers whenever applicable. Note that in the unification scorecard (Part V), we specifically break out municipal (and other sub-component state) legislation as one potential factor causing diversity.
1.2.2 Overview
Please provide a very brief historical overview of the federal system and its development. You might do this in as little as 250 words and no more than 500 words (i.e., about ½–1 single-spaced page). Please highlight those factors that you deem most relevant in your system to the relation between central and component state power and the degree of uniformity of law.
1.2.3 The Federal Distribution and Exercise of Lawmaking Power
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1.
Which areas of law are subject to the (legislative) jurisdiction of the central authority?
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(a)
Which areas of (legislative) jurisdiction do constitutional text and doctrine formally allocate to the central government?
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(b)
Which of these powers are concurrent and which are exclusive?
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(c)
Briefly name the most important/most frequently used constitutionally specified sources authorizing central government regulation (e.g., in the United States, the commerce clause)?
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(d)
Briefly describe the most important areas of central government regulation in practice-based terms (e.g., labor law, consumer protection law, environmental law, civil procedure)?
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(a)
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2.
Which areas of law remain within the (legislative) jurisdiction of the component states?
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(a)
What areas of (legislative) jurisdiction do constitutional text and doctrine allocate to the component states?
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(b)
Which of these are exclusively reserved to the states and which are concurrent powers?
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(c)
Does the exercise of central concurrent power constitutionally prevent the states from exercising their concurrent power?
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(d)
In practice, what are the most important areas of exclusive or predominant component state government regulation (e.g., education, family law, procedure)?
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(e)
In practice, what are the most important areas (if any) in which central and component state regulation coexist?
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(a)
-
3.
Does the constitution allocate residual powers to the central government, the component states, or (in case of specific residual powers) to both?
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4.
What is the constitutional principle according to which conflicts (if any) between central and component state law are resolved (e.g., supremacy of federal law)?
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5.
Do the municipalities – by virtue of the constitution or otherwise – have significant lawmaking power and if so, in what areas?
1.2.4 The Means and Methods of Legal Unification
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1.
To what extent is legal unification or harmonization accomplished by the exercise of central power (top down)?
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(a)
via directly applicable constitutional norms? (e.g., the equal protection clause in the US requires specific features of family law; due process limits in personam jurisdiction)
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(b)
via central legislation (or executive or administrative rules)?
-
(i)
creating directly applicable norms
-
(ii)
mandating that states pass conforming (implementing) legislation (e.g., Rahmengesetze, EC directives)
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(iii)
inducing states to regulate by conditioning the allocation of central money on compliance with central standards
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(iv)
indirectly forcing states to regulate by threatening to take over the field in case of state inaction or state action that does not conform to centrally specified standards
-
(i)
-
(c)
through the judicial creation of uniform norms by central supreme court(s) or central courts of appeal?
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(d)
through other centrally controlled means, such as centrally managed coordination or information exchange among the component states (e.g., Europe’s “Open Method of Coordination”)?
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(a)
-
2.
To what extent is legal unification accomplished through formal or informal voluntary coordination among the component states? (somewhat bottom up, coordinate model)
-
(a)
by component state legislatures, e.g., through uniform or model laws?
-
(b)
by component state judiciaries, e.g., through the state courts’ consideration of legislative or judicial practice of sister states?
-
(c)
by the component state executive branches, e.g., component state governors’ agreements?
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(a)
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3.
To what extent is legal unification accomplished, or promoted, by non-state actors (e.g., in the US: American Law Institute, National Commissions on Uniform State Laws; in Europe: Principles of European Contract Law (Lando Principles, etc.))?
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(a)
through restatements
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(b)
through uniform or model laws
-
(c)
through standards and practices of industry, trade organizations or other or private entities?
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(d)
To what extent do the activities listed in (a)–(c), above, provide input for unification or harmonization by central action (top down) or by the states (coordinate)?
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(a)
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4.
What is the role of legal education and training in the unification of law?
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(a)
Do law schools draw students from throughout the federal system?
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(b)
Does legal education focus on (1) central or system-wide law or (2) component state law?
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(c)
Is testing for bar admission system-wide or by component state?
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(d)
Is the actual admission to the bar for the entire federal system or by component state?
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(e)
Do graduates tend to set up their practice or take jobs anywhere in the federation?
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(f)
Are there particular institutions of (primary, graduate or continuing) legal education and training that play a unifying role (e.g., internships by state court judges at central courts, national academies or training programs)?
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(a)
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5.
To what extent do external factors, such as international law, influence legal unification?
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(a)
Does compliance with international legal obligations play a role?
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(b)
Does international voluntary coordination play a role (e.g., participation in international unification or harmonization projects, UNCITRAL, UNIDROIT, Hague Conference on Private International Law, etc.)?
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(a)
1.2.5 Institutional and Social Background
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1.
The Judicial Branch
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(a)
Is there a court at the central level with the power to police whether central legislation has exceeded the lawmaking powers allocated to the central government?
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(b)
If yes, do(es) the central court(s) regularly and effectively police the respective constitutional limitations? (Please explain and give examples.)
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(c)
Is there a court at the central level with power authoritatively to interpret component state law?
-
(d)
Are there both central and state courts, and if so, are there trial and appellate courts on both levels?
-
(e)
Are there other mechanisms for resolving differences in legal interpretation among central and/or component state courts? If yes, please describe their nature and the extent of their use.
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(a)
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2.
Relations between the Central and Component State Governments
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(a)
Does the central government have the power to force component states to legislate?
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(b)
Who executes central government law? (the central government itself or the component states?) If it depends upon the areas involved, please explain.
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(c)
Are component states or their governments, or other communities, represented at the central level, and if so, what is their role in the central legislative process?
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(d)
How and by whom are component state representatives at the central level elected or appointed?
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(e)
Who has the power to tax (what)? The central government, the component states or both?
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(f)
Are there general principles governing or prohibiting multiple taxation?
-
(g)
Are there constitutional or legislative rules on revenue sharing among the component states or between the federation and the component states?
-
(a)
-
3.
Other Formal or Informal Institutions for Resolving Intergovernmental Conflicts
Are there other institutions (political, administrative, judicial, hybrid or sui generis) to help resolve conflicts between component states or between the central government and component states?
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4.
The Bureaucracy
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(a)
Is the civil service of the central government separate from the civil services of the component states?
-
(b)
If there are separate civil service systems, to what extent is there lateral mobility (or career advancement) between them?
-
(a)
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5.
Social Factors
-
(a)
Are there important racial, ethnic, religious, linguistic or other social cleavages in the federation? If yes, please briefly describe these cleavages.
-
(b)
Are distinct groups evenly or randomly dispersed throughout the federation or are they concentrated in certain regions, territories, states or other political subdivisions? If they are concentrated in certain regions, etc., please explain how this concentration relates to the structure of the federal system.
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(c)
Is there significant asymmetry in natural resources, development, wealth, education or other regards between the component states? If yes, please explain how this relates to the structure of the federal system.
-
(a)
1.2.6 Unification Scorecard
The following unification scorecard asks you to assess the degree of legal uniformity across a host of areas on a very basic scale and to indicate the predominant means/causes of uniformity and diversity.
We have listed various substantive and procedural areas of the law. Please indicate for each area your assessment of the degree of legal uniformity across the federal system. You may wish to consult a practitioner or other expert for fields that lie outside your area of expertise.
Please score the degree of uniformity on a scale of 1–7, whereby:
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1 = no or low degree of uniformity
-
4 = medium degree of uniformity
-
7 = high degree of uniformity
Note that 1 and 7 are not to be considered ideal points never achieved in practice. For example, a score of 1 would be compatible with the existence of some legal similarity, harmonization, or uniformity across a small subset of component states, as long as there is no or only minimal uniformity across the entire federal system. Conversely, a score of 7 would be compatible with a situation in which a single, centrally issued legal rule governs and yet there is some very minimal diversity in the process of adjudication.
Do not use a score of 4 in cases where you do not know and simply cannot ascertain the level of uniformity or in situations where a uniformity score, for whatever reason, is simply not applicable. If you remain unable to determine the level of uniformity for a given area even after consulting with another practitioner or expert or the question is simply inapplicable, please mark down a score of 0.
If, in any given area, we have omitted a significant specialized sub-area that would be scored differently from the general area, please explain and if possible, provide a score for that area in a separate note which you may attach in an appendix. (For example, in the area of torts, we have broken out the sub-field of “products liability;” in the area of criminal law, it might make sense in a particular system to break out “drug offenses”.)
After scoring the degree of uniformity, please check off the applicable box(es) to indicate the principal means by which the degree of uniformity is achieved for that particular area. Please check off more than one box whenever applicable. Please use an X to mark the box.
Please also check off the applicable box(es) indicating the principal sources or reasons for diversity for that particular area.
Finally, we invite you to create a brief appendix with any comments you may have on individual scorecard entries.
Unification Scorecard
Uniformity Diversity
due to
1.2.7 Conclusion
We invite you to write a brief conclusion on the state of unification in your system more generally, e.g., discussing whether the predominant state of the law is full unification, mere harmonization, diversity of law with or without mutual recognition among the component states, and whether there is pressure to change the status quo. We have in mind an essay of between 250 and 500 words.
1.3 Appendix 3: Supplemental Expert Scorecard and Control Questions
1.3.1 Unification Scorecard
The following unification scorecard asks you to assess the degree of legal uniformity across a host of areas on a very basic scale and to indicate the predominant means/causes of uniformity and diversity.
We have listed various substantive and procedural areas of the law. Please indicate for each area your assessment of the degree of legal uniformity across the federal system. You may wish to consult a practitioner or other expert for fields that lie outside your area of expertise.
Please score the degree of uniformity on the following scale of 1–7:
-
1 = no or low degree of uniformity
-
4 = medium degree of uniformity
-
7 = high degree of uniformity
Note that 1 and 7 are not to be considered ideal points never achieved in practice. For example, a score of 1 would be compatible with the existence of some legal similarity, harmonization, or uniformity across a small subset of component states, as long as there is no or only minimal uniformity across the entire federal system. Conversely, a score of 7 would be compatible with a situation in which a single, centrally issued legal rule governs and yet there is some very minimal diversity in the process of adjudication.
Do not use a score of 4 in cases where you do not know and simply cannot ascertain the level of uniformity or in situations where a uniformity score, for whatever reason, is simply not applicable. If you remain unable to determine the level of uniformity for a given area even after consulting with another practitioner or expert or the question is simply inapplicable, please mark down a score of 0.
After completing Part A, please score the 8 generic scenarios in Part B.
Thank you very much for your effort and cooperation!
A. Unification Scorecard for ___________________
B. Generic Scorecard
On this page, we ask you to score 8 hypothetical legal scenarios. Please rate the uniformity of law in each of the following scenarios, using the same scale (1–7) that you used in the previous part. Each of the Federations in the following scenarios has 12 component states.
-
1.
In the Federation of A, family law, including divorce, is a matter of component state law. All component states allow divorce on a no-fault basis (i.e., allowing divorce on demand), and all component states have the same marital property regime. In dividing marital property upon divorce, however, about half the component states penalize a party for marital fault, such as adultery, desertion, or physical violence against the spouse, while the other states do not consider such factors. Please rate the uniformity of divorce law: ____
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2.
In the Federation of B, speed limits are a matter of state law. Four component states set it at 55 mph, four at 60 mph, and four at 65 mph. Please rate the uniformity of speed limits: ____
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3.
In the Federation of C, there is a comprehensive statute (code) governing all aspects of criminal procedure in both the central and component state courts. There are differences in the lower courts’ interpretation of various provisions of this statute, and there is a central supreme court which routinely resolves conflicts arising among the lower courts. Please rate the uniformity of the law of criminal procedure: ____
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4.
In the Federation of D, 11 are common law jurisdictions and thus recognize the institution of a trust while the twelfth is a civil law jurisdiction and does not. In that twelfth component state, there can be no division between legal and equitable title and hence no trust (only a contractual obligation to administer property in another’s interest). Please rate the uniformity of the law of trust: ____
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5.
In the Federation of E, the law of commercial contracts is a matter of component state law and comprehensively codified on the component state level (i.e., each component state has its own statute comprehensively regulating commercial contracts). The text of these statutes is virtually identical. They are authoritatively interpreted by the component state supreme courts, which has created some differences in interpretation (e.g., states supreme courts draw the line between permissible liquidated damage clauses and impermissible penalty clauses differently). Please rate the uniformity of the law of commercial contracts: ___
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6.
In the Federation of F, the law of succession is exclusively a matter of component state law. Six component states recognize wills. The other six do not recognize wills, so that in these states all of a decedent’s property is subject to the rules of intestate succession fixed by law. Please rate the uniformity of the law of wills ___
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7.
In the Federation of G, product liability is exclusively state law. About half of the component states impose strict liability for all defects. The remaining states impose strict liability only for manufacturing defects (defects affecting single items in a production line) but require the showing of negligence for design defects (defects affecting a whole production line) and instruction defects (insufficient warning). Please rate the uniformity of the law of product liability: ____
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8.
In the Federation of H, sales/VAT tax is exclusively a matter of component state law. Six component states impose a sales/VAT tax on all sales. The other six impose a sales/VAT tax only on luxury goods for personal consumption. (The tax rate is the same throughout the federation.) Please rate the uniformity of the law of sales/VAT tax: ____
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Halberstam, D., Reimann, M. (2014). Federalism and Legal Unification: Comparing Methods, Results, and Explanations Across 20 Systems. In: Halberstam, D., Reimann, M. (eds) Federalism and Legal Unification. Ius Gentium: Comparative Perspectives on Law and Justice, vol 28. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-7398-1_1
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