Federalism and courts intersect in two important ways. The first concerns court adjudication of constitutional disputes about the structure and composition of federal and state institutions of government and the distributions of power between them. The second concerns the design of court systems within federations, with particular emphasis on their organizational features and allocated jurisdictions at federal and state levels. This chapter reviews the ways in which courts understand the constitutional presuppositions of particular federations, and how those presuppositions shape court interpretations of the governing institutions and distributions of power within federations. The chapter shows how such interpretations bear on the degree of centralization and decentralization within federations and how they can either safeguard or undermine the integrity of each federal system of government. Methodological issues associated with the comparative study of courts in federations are also discussed, and key questions for further inquiry are identified.
Nicholas Aroney’s chapter addresses the relationship between natural law and federalism. Natural law theories have sometimes been seen as harbouring a bias towards centralised and unitary conceptions of legal order, but Aroney contends that this view misunderstands the tradition. Natural law theory, he argues, has consistently supported the independent existence of a multiplicity of political communities and jurisdictions, bound by agreements or understandings with one another. Aroney then asks what kind of account of human nature and human sociality would be necessary to ground the legitimacy of this federalist outlook. He argues that human relationships and social ordering are initially local and particular, but harbour inherent aspirations to more distant and universal community bonds. In this sense, social relations both are fundamentally covenantal in origin, reflecting bonds and obligations, and federal in structure and orientation. Actual federal arrangements often reflect messy and perhaps unstable compromises between the social, economic and political interests of different groups and communities. On a deeper level, however, federal arrangements have a normative basis in the fundamental character and orientation of human social relationships.
Nicholas Aroney and Campbell Sharman
Australian politics is organised in profoundly territorial terms. The fundamental reason for this is the essential role played by the constituent states within the Australian federal system. Historically, the states predated the federation and were the presupposition of its very existence. At the time of federation, they offered the essential and unavoidable political infrastructure upon which the entire federal edifice depended, and continues to depend. The constitution entrenched their role and, despite important tendencies towards centralisation, the Australian states cannot be easily abolished or sidelined. Australia’s party system reflects and reinforces the existence of a politics which is both national and regional in its dimensions. Moreover, and underlying diversity between Australia’s states, regions, cities and towns, underscores the need for the kind of policy diversity and policy responsiveness that the Australian federal system makes possible.