On Democracy (VI): the Great Law of Peace. About Federal Conflict Resolution

For: THE MESSENGER, Georgian Daily Newspaper in English

Federalism and democracy belong together. Of course, there are federal states that are not democratically ruled at all. Such governments deviate from the “original” philosophy and political theory of federalism. Federalism is neither an invention of the modern world nor of the West. At a time when Europe was confronted with absolute monarchies, heavy bureaucratic states, and armed violence all over the continent a significant development took place on the territory of Northern America. It was, however, neither Jefferson, Franklin, nor other fathers of the United States of America who brought the idea over the Atlantic. As a matter of fact indigenous Indians – the Iroquois – established a tribal federation or league as early as in the 16th century in the central and eastern region which today hosts the state of New York. The federation of five Iroquoian tribes was based on a carefully prepared constitution with the elements of peace, righteousness, justice, and power. The main aim was to stop for all time the shedding of human blood by violence and of establishing lasting peace. The Iroquois “Great Law of Peace” upheld freedom of expression in political and religious matters, and it forbade the unauthorized entry of homes. It provided for political participation by women and the relatively equitable distribution of wealth. Oppression and class stratification was not part of the Indian political vision. In fact, social cohesion was provided by consensus instead of by governmental apparatus and control by an exclusive majority (or minority) in power. May be the famous Federalist Papers, a series of 85 letters to the American public (1787 – 88) would never have been written by John Jay, James Madison and Alexander Hamilton without the great and living example of the Iroquois federation.
(see: J.N.B. Hewitt, Bureau of American Ethnology, around 1916, Iroquois Source Book, Vol. 1, 1985, In: Barbara Walker, Editor, Uniting People and Nations. Reading in World Federalism, World Federalist Movement & World Federalist Association, Washington DC, Amsterdam, New York, 1993, p 17.)

Main federal principles and ideals

Federalism, from the Latin foedus, genitive foederis, which means pact, contract, treaty, agreement, alliance, and so on “is an agreement by which one or more heads of family, one or more towns, one ore more groups of towns or states, assume reciprocal and equal commitments to perform one or more specific tasks, the responsibility for which rests exclusively within the officers of the federation.” (Pierre Joseph Proudhon, The Principle of Federation, 1863). A federal system is the contrary to a hierarchical order or administrative and executive centralization which characterizes many states, be them democratic empires, constitutional monarchies, or unitary republics. According to Proudhon its basic and essential law is this: in a federation, the powers of central authority are specialized and limited and diminished in number, in directness, and in what I may call intensity. Theoretically speaking in a federal system, the functions of government are divided in such a way that “the relationship between the legislature which has authority over the whole territory and those legislatures which have authority over parts of the territory is not the relationship of superior to subordinates (…) but is the relationship of co-ordinate partners in the government process (…) Federal government means therefore a division of functions between co-ordinate authorities, authorities which are in no way subordinate one to another either in the extent or in the exercise of their allotted functions.” (Kenneth C. Wheare, Studies in Federal Planning of the Lothian Foundation Press, Selection 44. In: Walker, p. 3)

Federalism is both political theory and an ideal. It is concerned with controlling, using, and sharing power. Federalism deals with the reality of power in a particular government. It is defining where, how, and by whom such power shall be exercised. Therefore, in conjunction with democracy and democratic rules it protects the people from the excesses of the rulers. Federalism therefore requires a constitution owned by the people, the division of powers and a democratic attitude in the citizens to make it work smoothly. A federal system has two dimensions: the vertical dimension with the system of government, the distribution of powers among the different layers, the sharing of responsibilities and resources; and the horizontal dimension with its geographical features addressing population issues, cultural variety, territorial and resource issues. Federalism is neither more complicated than any other system nor is it an easy option for governance. However it has major strengths. A federal government is set up to do two opposite things: to prevent the state from falling apart and to prevent it from being dominated by the centre. Accordingly a federation looks both ways: towards the centre to establish cohesion among the federal units and towards the periphery for providing more freedom to and inside the units. A federation always tends to bear dynamic tensions; it is therefore not static but rather stable. “Federalism may be seen as the quintessence of democracy, for it always seeks to divide sovereignty and return it to the people unless there are compelling reasons that the people accept for leaving power in the hands of the governors.” (John Roberts, List of Works on World Federalism, published by Association of World Federalism, U.K. 1990. In: Walker, pp. 5). One could also say a number of autonomous political units (sub-units, cantons, states) mutually agree to form a federal state with a single sovereign central government, while retaining for themselves some degree of constitutionally guaranteed regional autonomy. Federalism is, therefore, essentially a compact. Like other compacts, it has a written constitution that cannot be unilaterally altered.

A further aspect is that conflicts and problems are solved at the level they emerge. The conflict researcher Hanna Newcomb stressed the issue of subsidiarity which is quite famous both in the discussion in the European Union as well as in Switzerland. According to her the guiding principle of centralisation – decentralisation is called subsidiarity, which states that “problems should be solved at the lowest level consistent with efficient performance of the task”, or, alternatively, that “problems should be solved at the lowest level possible at which there are no significant external effects.” (Hanna Newcomb, Canadian World Federalist, September 1989)

Democratic constitution making through social inclusion and ethnic integration

In many pluralistic societies and modern states the integration of different identity groups through proportional power-sharing is one crucial dimension of post conflict peace building. Generally speaking, many analysts come to the conclusion that pure majoritarian democracy is ill-suited to divided societies with ethnic, caste, or regional tensions; they argue that specific arrangem¬ents which encourage power-sharing seem to be a more promising way to manage identity groups’ conflicts. In majoritarian democracy identity groups may fear a permanent exclusion from power, and will equate democracy not with freedom, inclusion, or participa¬tion, but with structured dominance of adversarial majority. Power-sharing, on the other hand, will ideally include in government all major identity groups, and assure them influence in policy on sensitive issues of legitimate concern to them, such as language use and educa¬tion.

In terms of constitutionally granted conflict transformation we may distinguish between two fundamental approaches to power-sharing: the group building approach and the integrative approach. The group-building approach views identity groups (usually ethnically homog¬enous political actors) as the basic building blocks of a common society, and therefore works first to secure the cooperation of ethnic group leaders. For several reasons, the group-building approach to power-sharing can be criticized. First, it is dangerous because of its assumption that ethnic elites can effectively regulate conflict in divided societies; second, it brings with it a real danger of reinforcing and entrenching ethnicity in the political system; and third, it can be fundamentally anti-democratic if and when ethno-politically motivated alliances fight any kind of political opposition within a federal unit dominated by one group.

The integrative approach is characterized first of all by its declared purpose of promoting social integration across group boundaries in order to overcome the ethnic and further identity based divisions of a society. Political parties are therefore encouraged, for example, to form coalitions across ethnic lines before standing for elections. Other characteristics of this approach are non-ethnic federalism that aims to diffuse accumulation of power, prom¬o¬tion of intra-ethnic competition, electoral benefits as inducements for inter-ethnic cooperation and policies designed to encourage alternative social alignments across ethnic or religious boundaries.

There is, in the end, no single model for power-sharing democracy that is guaranteed to secure stability and peace. Different kinds of society require different types of institutional design. So, in many pluralistic societies and post-conflict states, the political stakeholders should explore the whole range of power-sharing options, piecing them together in a way that best fits the conditions of conflict man¬age¬ment and peace building. In any case, for power-sharing democracy to work there must be a sufficiently strong core of moderates – including both political elites and the broader civil society – that seeks pragmatic coexistence and integration in a multi-ethnic society.

Unity in diversity and vice versa

A second aspect of peace building in a pluralistic society is the devolution of power through territorial divisions of power. Since many conflicts center on the competition of ethnically or otherwise divided elites for state control, adjustments to the structure of the state can help to de-escalate such conflicts. Federalism, decentralization and the introduction of local and regional autonomy are all appropriate ways to devolve power. Federalism is an arrangement under which as a rule power is devolved equally to all regions, and in which each region maintains an identical relationship to the central government (with the exception of asym¬metric federalism of course). Federal autonomy is characterized by local self-rule on the one hand and federal shared rule on the other. There is local administration with some degree of independence granted by the federal constitution in areas that do not question the status of the state and national security as a whole.

The question is whether the territorial units also coincide with communal / ethnic boundaries. The integrative rather underlines the interdependency and equality of citizens and groups and therefore promotes territorial boundaries between federal units that take care of history, ethnic variety, access to (natural) resources, and socio-geographical aspects. A concept of federalism that is based on ethnicity or nationality (as Stalin’s concept was) may be a recipe for conflict and disaster.

Conflict transformation in a federal constitution

In terms of conflict resolution the constitution of a federal state has to be much more sensit¬ive on the relationships of layers and institutions than the constitution of a unitary state:
• Federations should constitutionally guarantee the cooperation and independent self-det¬er¬mina-tion of territorial groups in the framework of a pluralistic structure which functions from the bottom up.
• The members of a federation should have the maximum amount of autonomy in the greatest variety of sectors. Furthermore, federalism should provide the greatest pos¬sible scope for the side by side existence of differing social values.
• In federations the distribution of (concurrent) powers among the three or four layers of the system is in itself a mechanism of conflict resolution. In case of dispute the constitutional court serves as a dispute settlement mechanism both horizontally (among the federal units) as well as vertically (between a federal unit and the federal government).

In pluralistic societies clear and unambiguous provisions about local self and federal shared rule, about the distribution of power and about fundamental political, social, and human rights help to mitigate the conflict potential in the society – however a sound implementations of the provisions in terms of rule of law, accountability, and ending impunity for inter-communal violence are all preconditions for a peaceful settlement of disputes.

Beyond this, the polity in a democratic federal state is constituted by constant negotiations, consensus building, and facilitation of acceptable solutions for all concerned parties. A high degree of interdependence is being seen as an asset, poor interdependence as a risk. Therefore, the promotion of sustainable inter-community relations is of particular interest of the federal state: A multitude of relationships and a dense network of negotiations enhance efficient and effective conflict resolution. Modern constitutions may directly and indirectly favor a viable “societal democracy” through extensive catalogues of political, social, and human rights.

Institution building, state restructuring, reform of the political system including the political par¬ties are important elements of peace building; necessary but not suffic¬ient in order to stabilize the democratic order and make peace durable. Beyond this, a federal constitution has to provide conflict resolution mechanisms at all levels of the state as well as for all (active) groups of a heterogeneous, fragmented, and pluralistic society. At the same time, a lesson learnt from post conflict contexts is: content and process do matter. The question of how to get to a (new) federal constitution through which mechanisms and based on what type of participation and consultation is as important as the formulation of principles and provisions.

*Guenther Baechler, Ambassador of Switzerland in Tbilisi, holds a PhD in political science and is a visiting professor at the Institute for European Studies at the University of Basel.