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Published online by Cambridge University Press: 01 January 2025
Federal systems are often compared based on their history or origins: Riker famously distinguished between ‘coming together’ and ‘holding together’ forms of federalism. Federal systems can also be viewed as serving a variety of potential purposes: they may help promote government closer to the people, greater democratic experimentation, forms of vertical as well as horizontal political accountability, and the accommodation of diversity.
This special issue of the Federal Law Review (‘FLR’), on ‘the theory and practice of federalism in deeply divided societies’, explores those federations that originate from ‘holding together’ rather than ‘coming together’ processes, and that are designed to respond to a range of ethnic, religious, racial and territorial cleavages. There is a growing comparative literature on constitution-making and practice in ‘divided societies’, which includes attention to federalism. But there is still important work to be done understanding when and how federalism succeeds in managing social and political conflict, and promoting peace, stability and democratic resilience, especially in the Asia-Pacific. This volume thus seeks to fill this gap—by encouraging a wide-ranging exploration of these issues and contributing to a global debate on constitutionalism and constitutional design.
1 Riker, William H, Federalism: Origin, Operation, Significance (Little, Brown, 1964)Google Scholar. For discussion see, eg, Breen, Michael G, ‘The Origins of Holding-Together Federalism: Nepal, Myanmar, and Sri Lanka’ (2018) 48 Publius: The Journal of Federalism 26CrossRefGoogle Scholar.
2 See discussion in Dixon, Rosalind, ‘The Functional Constitution: Re-Reading the 2014 High Court Constitutional Term’ (2015) 43 Federal Law Review 455CrossRefGoogle Scholar.
3 See, eg, Anderson, George and Choudhry, Sujit (eds), Territory, Power and Constitutional Transitions (Oxford University Press, forthcoming)Google Scholar.
4 Of course, federalism is also a purported solution to an array of further problems. See above, Section I.
5 See, eg, Madison, James, ‘Federalist No 10’ in Shapiro, Ian (ed), The Federalist Papers, (Yale University Press, 2009) 47–53Google Scholar; Madison, James, ‘Federalist No 47’ in Kramnick, Isaac (ed), The Federalist Papers, (Penguin, 1987) 245–50Google Scholar; Madison, James, ‘Federalist No 48’ in Kramnick, Isaac (ed), The Federalist Papers, (Penguin, 1987) 251–5Google Scholar.
6 On electoral-systemic responses to divisions see Horowitz, Donald L, ‘Electoral Systems: A Primer for Decision Makers’ (2003) 14(4) Journal of Democracy 115CrossRefGoogle Scholar; Reilly, Benjamin, Democracy and Diversity: Political Engineering in the Asia-Pacific (Oxford University Press, 2006)CrossRefGoogle Scholar.
7 Margadant, Ted, ‘Book Review of La formation des départements: la représentation du territoire français à la fin du 18e siècle by Marie-Vic Ozouf-Marignier’ (1991) 63 Journal of Modern History 396CrossRefGoogle Scholar, 397.
8 Ibid.
9 Elites with grand theories could sometimes experiment with them in practice without worrying too much about the consequences, for example, for local-level democracy and minority cultural identities. (Though France pioneered the use of referendums at this stage for some reforms, there was no such popular endorsement of the new départements.)
10 Lijphart, Arend, ‘Constitutional Design for Divided Societies’ (2004) 15(2) Journal of Democracy 96CrossRefGoogle Scholar, 100 (identifying this kind of problem in relation to power-sharing constitutions generally).
11 See Williams at 492.
12 Ibid.
13 Ibid.
14 Ibid.
15 Ibid.
16 Ibid 492–3.
17 Lerner, Hanna, Making Constitutions in Deeply Divided Societies (Cambridge University Press, 2013)Google Scholar.
18 See Harding at 557.
19 Ibid.
20 Ibid 558.
21 See He, Allison-Reumann and Breen at 576 (citations omitted).
22 See Lev at 616.
23 Ibid.
24 Ibid.
25 Ibid (citations omitted).
26 See Schwartz at 631 (citations omitted).
27 Ibid 631–2.
28 Ibid 632.
29 See Jackson at 646.
30 Ibid.
31 Ibid 647.
32 Ibid.
33 See, eg, from the journal's very first volume, Zines, Leslie, ‘Sir Owen Dixon's Theory of Federalism’ (1965) 1 Federal Law Review 221CrossRefGoogle Scholar.
34 See, eg, SirBarwick, Garfield, ‘The Australian Judicial System: The Proposed New Federal Superior Court’ (1964) 1 Federal Law Review 1CrossRefGoogle Scholar.
35 See, eg, Nygh, P E, ‘The Police Powers of the States in the United States and Australia’ (1967) 2 Federal Law Review 183CrossRefGoogle Scholar.
36 See, eg, in Australia, the mooted First Nations Voice to Parliament: Davis, Megan, ‘The Long Road to Uluru: Walking Together: Truth Before Justice’ (2018) 60 Griffith REVIEW 13Google Scholar.