Comparative Federalism and the Role of the Judiciary

Daniel Halberstam

in The Oxford Handbook of Law and Politics

Published in print August 2008 | ISBN: 9780199208425
Published online September 2009 | | DOI:

Series: Oxford Handbooks of Political Science

 Comparative Federalism and the Role of the Judiciary

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The distinctive feature of federalism is to locate the central and constituent governments' respective claims of organizational autonomy and jurisdictional authority within a set of privileged legal norms that are beyond the arena of daily politics. For the most part, the debate about the role of the judiciary as federal umpire has taken place within two separate disciplinary compartments: comparative politics and law. Building on recent efforts to bring these two disciplines closer, this article provides a fresh look at three common criticisms of granting the central judiciary power to protect federalism. It argues that political safeguards of federalism are insufficient, that concerns about judicial bias are overstated, and that the particular limitations on the judiciary's ability to implement the principles of substantive subsidiarity, instrumental subsidiarity, and integration should inform judicial doctrine more systematically than they currently do.

Keywords: federalism; comparative politics; law; central judiciary; judicial bias; subsidiarity; integration

Article.  10190 words. 

Subjects: Politics ; Comparative Politics ; Politics and Law

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