Local Governance in Multi-Layered Systems: A Comparative Legal Study in the Federal-Local Connection (Ius Gentium: Comparative Perspectives on Law and Justice, 108)

The book provides a comprehensive analysis of local government in federations. It fills the gap in current legal research and positions local government in federal studies through the lenses of comparative law, adopting a more nuanced approach to local government. The book considers the shortcomings between the black-letter constitution and its operational rules. Whether (and how) the regime of local government is implemented is more relevant than its formal-but-ineffective recognition. The comparative survey discloses the variety local institutions take in different federal contexts. Divided into three parts, the book comprises chapters investigating local government in systems that, to various degrees, have been examined and classified as federal. Scholars throughout the world have examined the federal-local connection in aggregative federations, (the USA, Canada, Switzerland, Germany, Australia, and Austria), devolutionary ones (Belgium, Bosnia Herzegovina, Italy, Spain, the UK, Argentina, Brazil, Mexico, and the Russian Federation), as well as in federations beyond the West, where federalism-as-a-colonial-legacy has undergone a process of reinvention affecting the federal-local connection (South Africa, Ethiopia, India, Nigeria, Comoros, Democratic Republic of Congo, Nepal, Palau, Federated States of Micronesia; St. Kitts and Nevis; United Arab Emirates; and Pakistan). Acknowledgement Contents Editors and Contributors Comparing and Contrasting Local Government in Federal Systems 1 A Problem of (Col)location 2 Re-locating Local Government in Federal Studies 3 How Many Tiers Are There? The Constitutional Regime of Local Government 3.1 `Local ́ Constitutional Recognition 3.2 The Distribution of Competences over Local Government 3.3 Between Homogeneity and Asymmetry 4 The Regime of Local Government 5 `A Democratic Character ́. The Scope of Local Autonomy 5.1 Territorial Demarcation 5.2 Allocating Functions at the Local Level 6 Local Finance: Beyond the Two-Tier Paradigm(s)? 6.1 `General ́ Spending Power as a Challenge to the Two-Tier Paradigm? 6.2 Fiscal Centralisation as the Sword of Damocles over the Federal Paradigm? 6.3 The Mixed Paradigm as an Additional Category? 7 Concluding Remarks: Few Certainties and Still a Long Way to Go References Part I: The Federal-Local Connection in Mature Federations The US Local Government Organisation: Origins, Development, and Federal Implications 1 Introduction 2 The Development of Local Governments in the US 3 The Basic Features of US Local Governments 3.1 County Governments 3.2 Municipal Governments 3.3 Township Governments 3.4 Special Districts 3.5 School Districts 4 Sources of Funding for Local Governments 5 The Relationships Between State and Local Governments from the Perspective of US Federalism 6 Conclusions References Local Governments in the Canadian Federal System: Institutions, Jurisdiction and Cooperation 1 Introduction 2 The Context of Local Governments in Canada 3 Structure and Institutions of Local Governments 4 Jurisdiction over Local Governments 5 Intergovernmental Relations with the Provincial or Federal Governments 6 Horizontal Cooperation Between Local Governments 7 The Finance of Local Governments 8 Conclusion References Local Governance in the Swiss Federal System. Comparative and Alternative Approaches to the Traditional Paradigm 1 In-Context Overview of the System of Local Government 1.1 Constitutional Steps that Led to the Modern Swiss Federal State Municipalities 1.1.1 Constitution of 1848 1.1.2 Constitutional Revisions of 1874 and 1998 1.2 From Local Associations to Political Municipalities 1.2.1 From Local Associations to Political Municipalities 1.2.2 Swiss Municipalities Between Homogeneity and Heterogeneity 2 Structure and Institutions of Local Governments 2.1 Dual Role of the Municipalities 2.1.1 Political (or Constitutional) Level 2.1.2 Administrative Level 2.2 Other Subdivisions of Municipalities 2.2.1 Communes Bourgeoises 2.2.2 Public Law-Based Communities 3 Jurisdiction over Local Governments 3.1 Political Municipality: A Second Political Body 3.1.1 Principle of Subsidiarity 3.1.2 What It Means in Practice 3.2 Municipal Autonomy in Relation to the Cantons and the Federal Court 3.2.1 Interplay Between Municipalities and Cantons 3.2.2 Protection Before the Federal Court 4 Municipalities and Their Relation to Territorial Demarcation 4.1 How to Adjust Municipalities ́ Boundaries and Their Functional Role 4.1.1 Territorial Changes of Cantons and Municipalities 4.1.2 Discrepancy Between Municipalities and Their Community of Interests 4.2 Amalgamation of Municipalities 4.2.1 Cantonal Incentives for Merging Municipalities 4.2.2 When a Municipality Joins Another Canton 5 Intergovernmental Relations with Local Governments 5.1 Local Governments in Relation with the Federal Level 5.2 Local Governments in Relation with Cantons 6 Horizontal Cooperation 6.1 Incentives to Inter-Municipal Collaboration 6.1.1 Sectors of Collaborations 6.2 Four Types of Inter-Municipal Collaborations 6.2.1 The Regional Conferences and the Entente Communales 6.2.2 The Associations of Municipalities and the Agglomerations 7 Local Finance 7.1 Competition at the Sub-National Level 7.1.1 Tax Competition Between Cantons 7.1.2 Structural Competition Between Municipalities 7.2 Sub-National Solidarity System 7.2.1 National Financial Equalisation Mechanism 7.2.2 Inter-Municipal Financial Equalisation Within the Cantons References Local Governments in Germany Between Growing Challenges and Precarious Budgets 1 In-Context Overview of the System of Local Government 2 In-Context Overview of the German System of Local Government 2.1 Historic Development and the Constitutional Framework Related to Local Level 2.2 The Local Level and Its Functions 2.3 Recent Development Trends 3 Structure and Institutions of Local Government(s) 4 Jurisdiction over Local Governments 5 Territorial Demarcation 6 Intergovernmental (Vertical and Horizontal) Relations 7 Local Finance 8 Conclusions References Local Government in Australia: Constitutionally Subordinate, but Vibrant and Fundamental 1 Overview 2 Structure and Institutions of Local Government 3 Legal Status of Local Government in Australia 4 Territorial Demarcation 4.1 Demarcation Within the State and Territory Jurisdictions 4.2 Regional Territorial Demarcation by the Federal Government 5 Intergovernmental Relations and Intermunicipal Cooperation 5.1 Intergovernmental Relations 5.2 Intermunicipal Cooperation 6 Local Government Finance 7 Conclusion References Local Governance in Austria: Diversity in Homogeneity 1 Introduction: Municipalities as the Third Territorial Level of the Republic 1.1 Historical Evolution 1.1.1 The Establishment of Uniform Municipalities During the Monarchy 1.1.2 District Authorities and the Transition from Monarchy to Republic 1.1.3 The Evolution of Local Governance in the B-VG 1.2 Three Layers of Homogeneity 1.2.1 Relative Socio-Economic Homogeneity 1.2.2 Strong Constitutional Homogeneity: The Exceptional Case of Austria 1.2.3 Functional Homogeneity of Municipalities 2 Institutional Design: Homogeneity with Exceptions and Länder Competence 2.1 The Concept of Municipal Uniformity and Its Exceptions 2.1.1 Vienna: Federal Capital, Land, and Municipality 2.1.2 Towns with Their Own Statutes and Further Asymmetries 2.2 Institutions of Municipalities 2.2.1 Homogeneous Elements: Three Necessary Institutions 2.2.2 Diversified Elements: Significant Scope for Länder Action 3 Material Design: Homogeneity, Two Spheres of Functions, and Double-Track Competence 3.1 Division into Two Spheres of Functions and Necessity of Task Allocation 3.2 Municipal Autonomy in the Autonomous Sphere of Functions 3.2.1 Scope and Characteristics 3.2.2 Legal Protection Before the Constitutional Court 3.3 Functional Federal or Länder Authorities in the Delegated Sphere of Functions 4 Territorial Demarcation: Central Role of the Länder 4.1 Federal Constitutional Framework 4.2 Länder Legislation 5 Collective and Individual Vertical Relations 5.1 Institutionalised Representation of Interests 5.2 Individual Relations with the Federation and the Länder 5.2.1 Parallel Relations According to Competences and Länder Dominance 5.2.2 Supervision and Other Examples 6 Horizontal Cooperation 6.1 Municipal Associations 6.2 Administrative Associations and Further Instruments of Cooperation 7 Local Finance: Elements of a Three-Layered Federalism with Federal Dominance 7.1 Fiscal Constitutional Act 7.2 Fiscal Equalisation Act 7.2.1 A Financial System Negotiated in a Political Three-Partner System 7.2.2 Resulting Revenue Structure 7.3 Consultation Mechanism and Stability Pact: A Legal Three-Partner System 8 Concluding Remarks References Part II: The Federal-Local Connection in Devolutionary Federations The Municipal Regime in Argentina 1 The Four Orders of Government of the Argentine Federation 2 The Status of Local Government in the Federal Constitution: Municipal Autonomy 3 The Municipal Regimes in the Provincial Constitutions 4 Municipal Organic Charters 5 Types of Local Governments 6 Constitutional Violations of Municipal Autonomy References The Municipality in the Mexican Federal System 1 Introduction 2 Theorical Framework: The Mexican Federal System 3 The Mexican Political System and the Local Entities 4 Organic Configuration of the Municipalities 4.1 The Mexican Municipality Within the Competencies System of the Mexican Federalism 4.2 The Sources of Local Financing 5 Mechanisms of Constitutional Control of the Local Governments 5.1 Judicial Control in Mexico 5.2 Federal Constitutional Control 5.3 Constitutional Controversy in the Local Governments 6 Conclusions References Local Governance in Belgium: A Taste of `Institutional Lasagna ́ Belgian Style 1 Introduction 2 A General Overview: Collectivities and Administrations 3 A Regional Organisation, with Some Exceptions 4 Local Authorities 4.1 The Municipality 4.2 The Province 5 The Distribution of Competences Regarding Local Governance 5.1 The Constitutional Principles 5.2 Legislative Implementation 6 The Territorial Delimitation of Local Governments 6.1 The Modification of the Borders of a Municipality 6.2 The Modification of the Borders of a Province 7 Relationships Between Local Governments and Higher Authorities 7.1 Intense Relationships with the Regions and the German-Speaking Community 7.2 Ongoing Relationships with the Federal State and Other Communities 8 Cooperation Between Local Governments 8.1 Cooperation Mechanisms 8.2 Interferences in the Cooperation 9 Finances 10 Conclusions Bibliography A General Overview Local Authorities The Distribution of Competences Regarding Local Governance The Territorial Delimitation of Local Governments Relationships between Local Governments and Higher Authorities Cooperation between Local Governments Finances Local Governance in Brazil: The Unresolved Contradiction Between Claims to Autonomy and Centripetal Trends 1 The Uneven Development of Brazilian Federalism 1.1 The Concurrent Powers on Local Governments 1.2 Local Governance Beyond the Constitutional Law Design 1.3 Brief History of Federalism ́s Evolution: The Rise of the Municipalities 2 Institutional Design of Local Government in Brazil 3 Jurisdiction Over Local Governments 3.1 Municipalities and Constitutional Adjudication of Federal Matters 4 Territorial Demarcation of Municipalities in Brazil 5 Intergovernmental or Vertical Relations with Local Governments and Horizontal Cooperation among Municipalities 5.1 Public Syndicates and Cooperation Agreements 5.2 Metropolitan Regions and Urban Agglomerations 6 Local Finance 6.1 Tax Revenues 6.1.1 Municipal Taxes Strictu Sensu 6.1.2 Municipal Fees 6.1.3 Contribution for Improvement 6.2 Transfers from Federal and State Governments 6.2.1 Mandatory Transfers 6.2.2 Voluntary Transfers 6.3 Credit Operations 7 Conclusive Remarks References The System of Local Government in Italy: A Stress-Test to Traditional Paradigms? 1 A Problem of (Col)location 2 Municipalities in the Constitution 3 Jurisdiction Over Local Entities 3.1 Local Government in the Ordinary Regions: The One-Size-Fits-All Rule 3.2 Local Government in the Special Regions: Six Systems with Wide Discrepancies 4 Vertical and Horizontal Intergovernmental Relations of Local Entities 5 Territorial Reorganisation Policies (Mergers and Intermunicipal Cooperation) 6 Local Finance 7 Conclusions References Local Autonomy in Spain: Between Autonomic Jurisdictions and the Central Level of Government 1 Introduction 2 Jurisdiction Over Local Institutions 2.1 An Historical Approach to the Local Problem 2.2 The Local Regime in the Spanish Constitution of 1978 3 Institutions and Procedures of Intergovernmental Relations with Local Government 4 Concurrent Federal-Subnational Powers and Their De Jure and De Facto Interrelations with the Jurisdiction Over Local Authori... 5 Intermunicipal Cooperation 6 Territorial Demarcation 7 Local Finance 8 Conclusions References Local Government in the United Kingdom 1 Introduction: The United Kingdom 2 The Context of Local Government in the UK 2.1 The Current Legal Context 2.2 The Historical Development of Local Government in the UK 2.3 The International Context 3 Structure and Institutions of Local Government 3.1 England 3.2 Wales 3.3 Scotland 3.4 Northern Ireland 4 Distribution of Functions 4.1 The Levelling Up White Paper 5 Territorial Demarcation 6 Jurisdiction Over Local Government 6.1 Legislatures 6.2 Sources of Local Government Law 6.3 Control by the Courts 6.4 Control by Ombudsmen 6.5 Control by Central Government 7 Intergovernmental Relations Between Local Government and Central Government 8 Horizontal Cooperation Between Local Government Institutions 9 The Finance of Local Government 10 Conclusion References Federalism, Local Government, and Transition to Authoritarianism in Russia 1 Introduction 2 Jurisdiction Over Self-Government 3 Structures and Institutions of Municipalities 4 The `Issue of Local Significance ́ and the Statisation (Ogosudarstvlenie) of Local Self-Government 5 The Finance of Municipalities 6 Supervision of State Power Bodies over Local Self-Government Bodies 7 Intergovernmental Relations and the Constitutionalisation of the Principle of the Unified System of Public Power 8 Conclusion References `Everything is Bridgeable ́ in a Post-Conflict Situation? The Situation of Local Government in Bosnia and Herzegovina 1 Potentional for Change ``from Below ́ ́? Introduction 2 Eternal Transition? 3 One Country, Three Systems: The Organisation of Local Self-Government 4 Main Problems in Local Self-Government 4.1 Some Fundamental Problems 4.2 Sarajevo: Divided Capital, Multi-Level System and Metropolitan Region 4.3 Radical Reforms for Better Economic Development? 5 Mostar: `Everything is BRIDGEable ́? 6 Outlook: Status Quo or Chance for Change `from Below ́? References Part III: Postcolonial Reinventions of the Federal-Local Connection The Federal-Local Connection: The South African Case 1 Introduction 1.1 The Distribution of Competences over Local Government 1.2 The Flaw Between the Black Letter-Law and Its Operational Rule 1.3 The Transformation of the System of Local Government 1.4 Differentiation in the Local Government System 1.5 The Determinants of the Differentiation Beyond the Legal Dimension 2 Structure and Institutions of Local Government(s) 2.1 Types of Local Government 2.2 Territorial Jurisdiction Overlaps 2.3 Institutions of Local Government 3 Jurisdiction over Local Governments 3.1 The Status of Local Government in the Federal Order 3.2 Which Level of Government Is Responsible for Defining the System of Local Government? 3.3 Can Local Government Directly Challenge Legislation Before the Constitutional Adjudicator? 3.4 Competences Which Interfere with the Jurisdiction Over Local Government 4 Territorial Demarcation 4.1 Criteria for Municipal Territorial Demarcation 4.2 Procedural and Substantial Guarantees Applicable to Boundary Demarcation 4.3 The Demarcation Process 4.4 Intergovernmental disputes on boundary determination 5 Intergovernmental (Vertical) Relations with Local Governments 5.1 Intergovernmental Institutions that Represent Local Governments 5.2 Federal-Local Connections 5.3 Supervision of Local Government 6 Horizontal Cooperation 6.1 Forms of Horizontal Cooperation 6.2 Which Level of Government Is in Charge of Defining the Rules of the Game? 7 Local Finance 7.1 Revenue-Raising 7.2 Intergovernmental Grants 7.3 Expenditure Framework 8 Conclusion References Autonomy of Local Government in Ethiopia 1 Introduction 2 Historical Overview of Local Governments in Ethiopia 3 Local Government Under the Federal System of Ethiopia 3.1 Constitutional Status and Types of Local Governments 3.2 Constitutional Divisions of Powers and Responsibilities: Powers and Functions of Local Governments 3.3 Financing Local Governments 4 The Functioning of Local Governments 5 Concluding Remarks References Local Governments, Federalism, and the Governance of Public Health in India 1 Introduction 2 Structure and Institutions of Local Governance in Indian Federalism 3 The Status and Competence of Local Governments 4 Fiscal Federalism and Local Finance 5 Inter-Governmental Relations and the Governance of Public Health 6 Judicial Review of Inter-Governmental Relations and Pandemic Governance 6.1 States & Local Government Institutions 6.2 The Pandemic & Inter-governmental Cooperation 7 Conclusion References Reconceptualising the Federal-Local Connection. Postcolonial Reinventions in Nigeria 1 Introduction 2 Phases of Local Governance in Nigeria 3 Functions and Finance of Local Government in Nigeria 4 Jurisdiction over Local Government in Nigeria 5 Intergovernmental Relations with Local Governments in Nigeria 6 State-Local Government Relations and the Viability of Local Government in Nigeria 7 Conclusion References The Legal Framework of Centre-Local Connections in Malaysia. Beyond the Postcolonial Narrative: Legacy or Reinvention? 1 Introduction 2 An Outline of Malaysian Society and Political System: Waving Between Homogeneity and Pluralism 3 The Constitutional Framework: Sketches on the (Quasi-)Federal Scheme 4 The Functioning System of Local Institutions: The Local Government Act of 1976 5 Conclusion References Revisiting Taxonomies: Local Governance in Quasi-Federal Systems 1 Introduction 2 Local Governance at the Margins of `Mainstream ́ Federal Studies 3 The Constitutional Regime of Local Government 4 Forms, and Functions: Local Governance and Its Operational Rules Beyond the West 5 The Scope of Local Autonomy. Territorial Demarcation, Functions, Finance, and Supervision 6 The Forms of Vertical and Horizontal Cooperation 7 Conclusions References