Aroney, Nicholas --- "Althusius at the Antipodes: The Politica and Australian Federalism" [2004] UQLRS 1; (2004) Jurisprudenz, Politische Theorie und Politische Theologie",

Last Updated: 12 December 2008

THE UNIVERSITY OF QUEENSLAND

LEGAL RESEARCH SERIES

ALTHUSIUS AT THE ANTIPODES:
THE POLITICA AND AUSTRALIAN FEDERALISM

International and Interdisciplinary Symposium on the Occasion of the
400th Anniversary of the Politica of Johannes Althusius
‘Law, Politics, and Religion’
June 11 - 14, 2003
Herborn, Germany

Published in Frederick Carney, Heinz Schilling and Dieter Wyduckel (eds), Jurisprudenz, Politische Theorie und Politische Theologie (Duncker & Humblot, Berlin, 2004)

Nicholas Aroney[*]

My soul is an antipode, and treads opposite to the present world.[1]

Introduction

Australian federalism has often been seen as little more than a political compromise, devised by pragmatic and relatively unsophisticated politicians who did little more than represent the special economic and political interests of the colonies they represented.[2] It is sometimes said that if there was a guiding political philosophy that lay behind the construction of the Australian federal Constitution, it was not so much republican or classically federalist along the lines of the American framing, but rather utilitarian and British in orientation.[3] On this view, the Constitution is readily understood to be nothing more than a statute of the British Parliament, enacted for the efficient government of the one of Queen’s dominions.[4]

How accurate is this traditional view of Australian federalism? It is definitely an exaggeration to suggest that the framers of the Australian Constitution were altogether intellectually unsophisticated. Like most deliberative bodies, the federal conventions at which the Constitution was drafted in the 1890s were composed of many types of politician, some pragmatic and calculating, others more idealistic and theoretically erudite. For example, the Annotated Constitution of the Australian Commonwealth, published in 1901 by two of the framers, John Quick and Robert Garran, was a very able work of scholarship, extending to more than 1000 pages.[5]

It is of course a truism to say that the ideas about federalism to which the framers of the Australian Constitution subscribed were those of the late nineteenth century English-speaking world. Necessarily, their ideas were shaped by current political events and by the prevailing legal and political philosophies of the time. A large number of historians, political scientists and lawyers of the day had commented on the American, Canadian, Swiss and German federal systems, and had advanced their own views about the nature of federalism. And the key writers for the Australians were all ‘Oxford dons’ – James Bryce, Albert Dicey and Edward Freeman – whose theories of federalism were emphatically British and Victorian.[6]

What room did this corpus give to the more covenantal, federalist and republican perspectives that lay behind the American founding, for example? And was there any room here for Johannes Althusius? While I will deliberately postpone addressing the former question, the short answer to the latter is that as far as the Australians were concerned, the name of Johannes Althusius was completely unknown. It is true that the Politica had been famously ‘recovered’ by Otto von Gierke in 1880,[7] a whole decade before Australians first seriously began discussing a federation of the Australian colonies. But it was not until the early 1900s that British writers such as Frederic Maitland and James Bryce drew attention to Gierke’s monograph on Althusius.[8] The Australian Constitution had already come into being well before Althusius gained a substantial Anglophone audience.[9]

What conceivable influence or relevance, then, could Althusius have in respect of Australian federalism? There are two basic possibilities. The first concerns the question of an indirect and admittedly tenuous influence that might be identified through a careful analysis of the federal ideas and practices which the framers of the Australian Constitution inherited and adapted to their own purposes. The second is the possibility that Althusius’s political insights might have a relevance beyond the immediate context in which he wrote – that they might somehow have an application to a fledgling political community literally on the other side of the world, and separated from his own era by four hundred years of intellectual, social and economic transformation.

In this paper I investigate these two possibilities. They require me, first, to address the making and the meaning of the Australian federal constitution in the context of the specific ideas about federalism then circulating in the English speaking world. Focusing on the federal ideas inherited by the Australians provides the basis for an investigation into the first question, the possibility of an indirect intellectual influence. Discussing the making of the Australian constitution, in particular the institutional setting and the debate that ensued, then enables me to address the second question, the possibility of an enduring Althusian insight, applicable even in the Antipodes.

Australian federation

The Federal Commonwealth of Australia came into being on 1 January 1901 by proclamation of Queen Victoria, issued pursuant to section 3 of the Commonwealth of Australia Constitution Act 1900 (UK). In legal terms, therefore, the Australian federation was the creature of a British statute, enacted under the Imperial authority of the Parliament of the United Kingdom. However, as the preamble to the Constitution Act makes clear, the federation was based on the ‘agreement’ of the ‘people’ of the several Australian colonies to ‘unite in one indissoluble Federal Commonwealth’.[10] Federation was in this respect an Australian initiative, predicated on the consent of the independently self-governing colonies then inhabiting the Australian continent.

The movement towards federation began at least as early as 1890, when delegates of the six Australian colonies (as well as New Zealand) met to discuss a ‘union of the colonies, under one legislative and executive government, on principles just to the several colonies’.[11] At this conference the delegates recommended that a further convention be convened to ‘consider and report upon an adequate scheme for a Federal Constitution’.[12] This recommendation was in fact adopted by the colonies, and in 1891 a federal convention was held in Sydney, followed in 1897-8 by a second convention held successively in Adelaide, Sydney and Melbourne.[13] The latter convention produced a draft Constitution Bill which was submitted to referenda held in each of the six Australian colonies. Upon approval by the voters, the Bill was then formally enacted into law by the British Parliament, with (mostly) only minor changes.[14]

In constructing the Federal Constitution, the colonies were concerned to maintain the rights of local self-government they had exercised since the 1850s.[15] Sir Samuel Griffith, Premier of Queensland and later Chief Justice of the High Court of Australia, expressed the view of many when he observed that the Australian colonies, having been ‘accustomed for so long to self-government,’ had ‘become practically almost sovereign states, a great deal more sovereign states, though not in name, than the separate states of America.’[16] This assumption meant that any union of the Australian colonies would have to be based on an agreement or compact and that, as Griffith later affirmed, the states must –

continue as autonomous bodies, surrendering only so much of their powers as is necessary to the establishment of a general government to do for them collectively what they cannot do individually for themselves, and which they cannot do as a collective body for themselves.[17]

Only a negotiated arrangement, fundamentally along federal lines, would suffice to integrate the separate colonies. The process of negotiating the terms of federation through inter-colonial conventions provided ample opportunity for the discussions that would be necessary.[18] In these discussions the colonial delegates evidently gave expression to the particular political and economic interests which they represented. But they were also influenced by a body of literature and theoretical reflection on questions of federalism that was richer and more learned than has been generally appreciated.[19]

In the late nineteenth century, ‘federation’ was widely considered to be the best means by which separate peoples inhabiting extended territories could be united by a lasting political bond. Montesquieu in the previous century and Tocqueville in the early nineteenth had said that confederations combined the strengths of small, independent republics with the strengths of large, consolidated empires – while avoiding their respective weaknesses.[20] Many leading scholars in the second half of the century studied federalism closely; some of them wrote about it in glowing terms.[21] Despite the challenge to federalism posed by the American Civil War, distinguished American commentators in the second half of the nineteenth century continued to think that federalism was the correct choice for their own country.[22] The federal ideal remained sufficiently attractive for the Canadians in 1867 to look to federalism as a way of resolving the tensions that existed between English and French-speaking populations.[23] Given that the several Australian colonies inhabited a vast continent similar to the North Americans, they also looked to federal models when considering how a ‘nation for a continent’ might be established.

Federal models

In the minds of the Australians, the leading federal models were the United States, Canada, Switzerland and the German Empire.[24] Canada was particularly relevant to the Australians because it was also a member of the British Empire, and its federal constitution was formally a statute of the British Parliament. The Canadian model suggested a way in which the Westminster system of parliamentary responsible government could be amalgamated with federalism. Although the Australians felt that the Canadian model resolved the tension too much in favour of a powerful lower house within a system of responsible government, the British North America Act 1867 provided a very useful drafting precedent.

By comparison, the constitution of the German Empire was perceived to be less useful to the Australians than the other models, in part because they felt that it was not a recipe for stability, but also because, to be frank, they simply did not know a great deal about the German example. Certainly, they thought that the German constitution was too decentralised in comparison with their preferred models, the United States and Switzerland.[25]

The American model was at the time widely considered to be the paradigm of federal systems and the Australians were aware that the very ancient Swiss confederation had been reformed along American lines midway through the nineteenth century. The Australians adopted from these two systems the bicameral scheme of a House of Representatives or National House accompanied by a powerful Senate or States House.[26] They likewise adopted a distribution of legislative competencies in which limited, specific powers were conferred on the federal legislature, with those powers not delegated being retained by the constituent states or cantons.[27] The Australians also adopted from the Swiss example a method of constitutional amendment which required the consent of a majority of voters in the federation as a whole, as well as of a majority of voters in a majority cantons (or states).[28]

What considerations led the Australians to follow the examples of the United States and Switzerland so assiduously? Part of the answer lies in the determination of the Australians to construct what they understood to be a modern ‘federation’ (or Bundesstaat), as distinct from what was called a ‘confederation’ (or Staatenbund). In the scholarly literature of the time it was generally agreed that a technical distinction could be drawn between the two systems, although the basis of the distinction was disputed. In simple terms, some definitional systems – such as those propounded by Georg Jellinek, John Austin and John Burgess – looked to see whether ‘sovereignty’ inhered in either the constituent states (a confederation) or in the federal political society as a whole (a federation).[29] Other approaches – such as those advanced by Johann Bluntschli, Edward Freeman and James Bryce – focused attention, rather, on the question whether federal laws were executed directly against individual citizens (a federation) or only through the intermediation of the constituent states (a confederation).[30]

The technical distinction was a significant one because by the end of the nineteenth century it was generally thought that federation had supplanted confederation as a system of government. Thus the American Articles of Confederation of 1781 had been superseded by the Constitution of 1789, and the Swiss Federal Pact of 1815 had been replaced by the Constitution of 1848. Similarly, the broadly ‘confederal’ or ‘compactualist’ interpretations of the American Constitution advanced by the Southern Confederacy during the American Civil War were thought to have been overcome by the more ‘nationalist’ interpretations proposed by Unionists. The Australians certainly wished to create a federation and not merely a confederation, whatever these terms might technically mean.

Nevertheless, Australian ‘nationalists’ did not have it all their way. Those among the Australians who were most nationalistically inclined tended to favour the approach which distinguished between federation and confederation on the basis of the location of ‘sovereignty’. They wished to construct a constitution under which sovereignty would inhere in the federation as a whole and its governing institutions. They looked, therefore, to the theory of federalism propounded, for example, by John Burgess (who had in turn drawn heavily on Georg Jellinek). The difficulty the nationalists faced, however, was the political reality that each of the Australian colonies was an independent, self-governing polity and that federation could in practice only be achieved with the consent of each colony.

When several originally independent states form themselves into a federation, their federating agreement is of foundational importance to the system that is created. But this idea of a federating compact contradicts the idea that in a federation (as distinct from a confederation) sovereignty inheres in, or derives from, the federation as a whole.[31] For this reason, John Burgess had to insist that the federating compact becomes juristically irrelevant once a federation comes into existence. He maintained this position by arguing that at the foundation of all genuine federations, even integrative ones, is an implicit revolution or legal discontinuity whereby the pre-existing ‘sovereignty’ of the constituent states comes to an end and ‘sovereignty’ henceforth is located in the federation is a whole. Very noticeably, on this view, continuing ‘expressions’ of the constitutive character of the states – such as special representation in the federal legislature or executive government, or a special role in the amendment of the federal constitution – have to be dismissed merely as ‘relics of confederation’.[32]

Such a vision of federalism is not particularly Althusian, if by this we mean a polity in which federating covenants lie at the foundation of political society – a matter about which I will have more to say shortly. Closer to Althusius’s vision is the alternative approach to federalism, expounded by Bluntschli, Bryce and Freeman, in which the technical distinction between federation and confederation turns simply on whether federal laws are executed directly against individuals. On such an approach, questions of ‘sovereignty’ are not determinative, and a federating covenant can be acknowledged to lie at the foundation of federations and confederations alike. Continuing expressions of the constitutive character of the states within a federation – such as in its representative structures or amendment processes – do not therefore have to be dismissed as relics of confederation, but can legitimately be incorporated into a federal constitution which has its origin in a federating compact.

Federal ideas

Lying at the heart of the argument between the two conceptions of federalism represented by John Burgess and James Bryce are differences in the way in which political societies are conceived. On one side of the argument is the view that political societies are or should be unitary in character, with a single locus of sovereignty. On the other side, however, is the view that political societies are or should be constructed out of a diversity of social groups, with multiple loci of authority. The former approach is one that has been particularly associated with the emergence of the modern nation-state and with near-contemporaries of Johannes Althusius, such as Jean Bodin and Thomas Hobbes.

Thomas Hobbes, like Althusius, wrote of a ‘covenant’ or ‘social contract’ lying at the foundation of political society, but Hobbes’s compact was a single agreement, entered into by individuals, who commit themselves to an absolute subjection to a common power: ‘one Man or one Assembly of men, that may reduce all their Wills, by plurality of voices, unto one Will.’[33] For Hobbes, this ‘Leviathan’ or ‘Mortall God’[34] is ‘called Soveraigne, and said to have Soveraigne Power’.[35] The sovereign may be one man (monarchy), more than one man (aristocracy), or all men (democracy).[36] In a democracy, the singularity of the will of the sovereign is guaranteed through strictly majoritarian rule.[37] And under the unitary authority of the sovereign, all other groups are absolutely subject,[38] just as all minor covenants are absolutely inferior to the social contract.[39] There may be within a political society various towns, provinces, universities, colleges or churches, each with their distinct laws and customs, but they are all ultimately subject to the superior will of the sovereign.[40] Leagues or covenants among subjects are in fact dangerous, and therefore unlawful.[41] Accordingly, ‘things that weaken or tend to the dissolution of a commonwealth’ include the opinion that the sovereign is subject to civil law and that the sovereign is divided.[42] Among them also is ‘the immoderate greatness of a Town’ or a ‘great number of corporations; which are as it were many lesser Commonwealths in the bowels of a greater, like wormes in the entrayles of a naturall man.’[43]

Hobbes was of course an extreme case, but a unitary conception of political society is to be discerned also in John Locke. For although Locke’s scheme very clearly allowed a diversity of associations and institutions to operate freely within a political society, these associations were expressions simply of the autonomous rights of individuals, for it was on the foundation of a social contract between atomized individuals that the political society was based.[44] Clearly, Locke envisaged the possibility of a league, and even a confederation, created by the exercise of the ‘federative power’ of the commonwealth.[45] Locke’s theory was also consistent with a form of political decentralisation through the exercise of the community’s primordial power to decide what ‘form’ of government ‘they think good.’[46] Indeed, Locke explicitly considered the case of subordinate communities such as cities,[47] and discussed the status of the subordinate magistrate.[48] However, as his discussion of these possibilities makes clear, Locke considered that true political society is unitary in its essential nature, with the legislative power in each society being supreme over all subordinate institutions, and expressing its will by majority vote. [49]

On this view, the only genuine expression of ‘federalism’ is a kind of confederation in which individual political societies agree to cooperate, but always retain their unique status as ‘sovereign’ nation-states – unless the further step is taken of consolidating those states into one, unitary political society, upon which their sovereign status is necessarily abolished. In other words, there is a strict dichotomy between unitary state and confederation. In a modern context, the question then becomes whether ‘federations’ such as the United States or Switzerland are to be classified either as unitary states or confederations.[50] There is no middle ground as far as the ‘nature of the State’ is concerned. Thus federations which are in essence unitary states may still possess ‘federal’ systems of government, such as a ‘division’ of what Albert Dicey called ‘the ordinary powers of sovereignty’ between federal and state governments. But on this view – and this was the view of Albert Dicey, and many others who have followed him – a federation essentially consists in the division of powers.[51] Characteristics of actual living federations, such as the special representation of the states in the federal legislature and a special role for the states in the formal amendment of the federal constitution, are at best merely accidents, and at worst, relics of confederation.

Now what needs to be said here is that in the drafting of the Australian Constitution – as with the making of the American Constitution – it was the question of federal representation which was in fact the most hotly debated issue. In Australia, those who favoured a more nationalistic constitution looked to accounts of political society and theories of federalism which made the division of powers the sine qua non of federation. They turned, therefore, to the theories of Jellinek, Burgess and Dicey.[52] Those, however, who wished to construct a constitution which reflected the constitutive character of the states, looked to broader definitions of federalism and federation, such as those propounded by Bluntschli, Freeman and Bryce.[53] Empirically and historically oriented, Freeman and Bryce adopted inclusive approaches which sought to account for the full range of features exhibited by federal systems such as the United States and Switzerland, including federal representation and federal amendment. In so doing, they presupposed an approach to the formation of political societies which was not constrained by the strictures of classical liberal political philosophy as it had been expressed, for example, by Hobbes and Locke.

Althusian influences, Althusian insights

I have said that English readers of the late nineteenth century – including the Australians – were not generally aware of the political theory of Johannes Althusius. But at this point it becomes clear that Althusius gave expression to an approach to political philosophy which better explains – normatively and descriptively – the full range of empirical characteristics of actual federations, such as United States, Switzerland and Australia.[54] James Bryce, whose American Commonwealth was the singly most influential book read by the framers of the Australian Constitution, and Edward Freeman, whose History of Federal Government came a close second, did not develop abstract political theories that would account for these systems. Their concern, as I have said, was with history and empirical detail. It is relevant to note, therefore, that Bryce was highly critical of all attempts to account for federalism in terms of the idea of ‘sovereignty’.[55] Both Bryce and Freeman pointed to the foundation of the American and Swiss federations in a kind of federative pact and the impact of those negotiations on the actual institutions adopted thereunder, including the provisions for federal representation and federal amendment.

In particular, Bryce drew the attention of the Australians to the ‘covenantal’ colonial roots of American federalism, which Professor John Witte and others have analysed.[56] In early American covenantalism we find expression of a profoundly ‘consocial’ approach to political society.[57] The Australians, by constructing their federation on similar grounds and in adopting similar institutions, were (unwitting) inheritors of the same general outlook. For an overwhelming majority of the framers of the Australian Constitution emphatically opted for a federation which followed Bluntschli, Bryce and Freeman, rather than Jellinek, Burgess and Dicey.

Althusius’s relevance to Australian federalism is thus of two kinds. The first is due to his important place in the intellectual history of federalism and the albeit diffuse and indirect influence of the ideas which he propounded on nineteenth century theories of federalism.[58] The second has to do with the relevance of his insights to our understanding of Australian federalism. To demonstrate this latter point, it is necessary to conclude by touching on a number of the fundamental features of Althusius’s scheme and comparing it with the Australian Constitution.

As is well-known, the starting point of the Politica Methodice Digesta was the general proposition that:

Politics is the art of associating men for the purpose of establishing, cultivating, and conserving social life among them. Whence it is called ‘symbiotics’. The subject matter of politics is therefore association (consociatio), in which the symbiotes (symbiotici) pledge themselves each to the other, by explicit or tacit agreement, to mutual communication of whatever is useful and necessary for the harmonious exercise of social life.[59]

For Althusius, this proposition applies to all kinds of ‘consociation’,[60] including, in the order in which he addresses them: family, corporation, city, province and commonwealth. Each of these is either ‘private’ or ‘public’, and each is concerned with ‘politics’ or ‘symbiotics’. Associations are formed by ‘the bond of an associating and uniting agreement’ among the ‘symbiotes’, the symbiotes in each case being the smaller associations of which each larger consociation is composed. Thus the ‘simple and private association’ (of which the family and collegium are species) is initiated by ‘a special covenant’ (pactum) among ‘individual men’.[61] In turn, the ‘public’ association (a town, city, province or commonwealth) is derived from the ‘primary’ associations, for ‘without this primary association others are able neither to arise nor to endure.’[62] Hence the various collegia are customarily distributed into the three estates (clergy, nobility and people),[63] and it is through the three estates that ‘the people of a provincial city, realm, or polity’, consent to and ultimately control its affairs.

Families, vocational associations, communes and provinces are, therefore, necessary and constitutive links between the individual and the commonwealth.[64] As such:

human society develops from private to public association by the definite steps and progressions of small societies. The public association exists when many private associations are linked together for the purpose of establishing an inclusive political order. It can be called a community, an associated body, or the pre-eminent political association.[65]

Accordingly, a local community (a village, town or city) is a kind of public association ‘composed of many families and collegia living in the same place’ – it is not composed simply of ‘the individual members of private associations.’[66] Likewise, the province consists of its orders and estates, or the larger collegia,[67] and the universal association arises when ‘many cities and provinces obligate themselves to hold, organize, use, and defend ... the right of the realm.’[68] Indeed, the universal association is:

an imperium, realm, commonwealth, and people united in one body by the agreement of many symbiotic associations and particular bodies, and brought together under one right. For families, cities and provinces existed by nature prior to realms, and gave birth to them.[69]

The members of the commonwealth therefore are ‘not ... individuals, families and collegia, but cities, provinces and regions agreeing among themselves on a single body constituted by mutual union and communication.’[70]

The bond of the commonwealth is ‘consensus’, ‘trust’, a ‘tacit or expressed promise’ among these members.[71] The commonwealth is therefore – as the late Professor Daniel Elazar put it – more of a ‘matrix’ than a hierarchy; a consociatio consociationum or a ‘commonwealth of commonwealths’,[72] in which every smaller society is a true and original community, with its own communal life and sphere of rights.[73] As such, ‘every constituting body is prior and superior to what is constituted by it.’[74] As Sobei Mogi observed:

there is a natural law structure of society in which families, vocational associations, communes and provinces all exist as necessary and organic members intermediate between the individuals and the state and in which the wider union is consolidated from the corporative unities of the narrower unions and thereby obtains its members. These narrower unions as real and organic communities create by themselves a distinct common life and a legal sphere of their own, and at the same time give up to the larger union so much as it needs in order to fulfil its specific purposes.[75]

Thus political society rests on a covenant between its constitutive members. These members are not simply individuals, but include towns, cities and provinces. When members such as these agree to form a larger political community, the terms of that agreement include both a reservation of a certain degree of autonomy over internal affairs and the grant of particular powers to the wider community. The terms of such agreements also involve the special representation of the constituent members in the governing institutions of the wider community and, because the whole scheme rests on their consent, the members retain a special capacity to influence decisions concerning changes to the entire arrangement.[76]

Covenant is therefore the foundation of all forms of association for Althusius. In particular, the universal community is created by a covenant or federal pact between the constituent communities; and the supreme magistrate is likewise instituted ‘by covenant or constitution’.[77] Althusius uses the terms constitution and covenant interchangeably, for the lex fundamentalis ‘is nothing other than certain covenants by which many cities and provinces come together and agree to establish ... one and the same commonwealth.’[78] For him, convenantalism is constitutionalism, and vice versa.[79]

When put in abstract terms like these, Althusius’s scheme appears to account for each of the four major empirical features of federations such as the United States, Switzerland and Australia. Each federation rests, in the first place, on a federating agreement between the peoples of the constituent states. Secondly, each federal constitution confers specific and limited powers of the governing institutions of the federation as a whole, with the balance being reserved to the states. Thirdly, the constituent states have special rights to representation in the federal legislature. And fourthly, the states also have special rights in respect of the amendment of the constitution.

Theories of federalism which rest on the allocation of absolute ‘sovereignty’ either to the ‘federation as a whole’ or to ‘the states’ – such as those of Jellinek, Burgess and Austin – are not able to account for features such as these.[80] And a majority of the framers of the Australian Constitution adopted such a scheme, precisely because they rejected Jellinek’s, and adopted Bluntschli’s, theory of federalism, a choice reinforced by the fact that, practically speaking, federation would necessarily require the consent of the Australian colonies. The fact that the Australian Constitution was created through the agreement of the people of the Australian states had a very significant impact on the substantive provisions contained in the Constitution, most particularly those just noted.[81]

Of course, Althusius was separated from Australia by some three hundred years of intellectual and institutional transformation. For the Australians, federalism was conceived principally in terms of federal-state union, and not in terms of local towns and cities, [82] much less in terms of ‘private institutions’ such as families and corporations. Moreover, in Australia a direct constitutive and political role was given to individuals, conceived as citizens of the nation as a whole, in the election of members of the House of Representatives and in the amendment of the Constitution. By contrast, the constitutive role of corporate groups in Althusius’s theory suggests that, to use modern terms, the scheme is more ‘confederal’ than ‘federal’ in orientation.[83] However, the modern, liberal and utilitarian elements in Australian federalism did not have their full sway – the more Althusian, ‘confederal’ features of the scheme have also remained. It is probably most accurate, therefore, to characterise the Australian Constitution as combining both approaches.

Nevertheless, the identity between federating covenant and constitution remains one of the most conspicuous features of contemporary federations such as the United States, Switzerland and Australia, and it is a feature which is best understood in the light of Althusius’s insights into the foundations of political society. In 1603, Althusius proposed a consociatio consociationum, a ‘consociation of consociations’, as a normative political theory based the real conditions of social life of his time.[84] Almost three hundred years later, James Bryce described the American system in remarkably similar terms: ‘a Commonwealth of commonwealths’, he said, ‘a Republic of republics, a State which, while one, is nevertheless composed of other States even more essential to its existence than it is to theirs’.[85]

It was this conception of federalism that the Australians drew on when constructing their own federation a few years later.[86] As Sir William Harrison Moore put it soon after the Australian Constitution came into being: the Australian colonists had created a ‘Commonwealth of commonwealths’ –

founded on the assumed continuance of [the existing political] communities in the distribution of powers between the Commonwealth and the States, in the organisation of the Commonwealth Government, and in the machinery for the alteration of the Constitution.[87]

Or, as Frederic Maitland observed from the other side of the world: the Australians had indeed created ‘a body politic’ constructed out of smaller, pre-existing ‘bodies politic’. Truly, he said, a ‘federal commonwealth’.[88]

In this way, I suggest, Althusius definitely has a place in the Antipodes.

---

[*] Reader in Law, The University of Queensland.
[1] Anthonie Stafford, Staffords Niobe: or His age of teares (London: Humfrey Lownes, 1611).
[2] Eg, Leslie Crisp, Australian National Government (5th ed, Melbourne: Longman Chesire, 1967), ch 1; Manning Clark, A History of Australia, Vol 5: The people make laws 1888-1915 (Melbourne: Melbourne University Press, 1962-1987).
[3] Hugh Collins, ‘Political Ideology in Australia: The Distinctiveness of a Benthamite Society’ in S Graubard (ed), Australia: The Daedalus Symposium (Sydney: Angus & Robertson, 1985).
[4] See Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129, discussed in David Meale, ‘The History of the Federal Idea in Australian Constitutional Jurisprudence: A Reappraisal’ (1992) 8 Australian Journal of Law and Society 25 and Nicholas Aroney, ‘The Ghost in the Machine: Exorcising Engineers’ in John Stone (ed), Upholding the Australian Constitution, Volume 14, Samuel Griffith Society, Sydney, 2002.
[5] John Quick and Robert Garran, Annotated Constitution of the Australian Commonwealth (Angus & Robertson, Sydney, 1901).
[6] For more detail, see Nicholas Aroney, ‘A Commonwealth of commonwealths: Late nineteenth century conceptions of federalism and their impact on Australian federation, 1890-1901’ (2002) 23(3) The Journal of Legal History 253.
[7] Johannes Althusius und die Entwicklung der naturrechtlichen Staatstheorien (Breslau, 1880).
[8] Frederic Maitland called it a work ‘which should be well known to all students of political theory’: ‘Translator’s Introduction’, Otto von Gierke, Political Theories of the Middle Age (Oxford: Oxford University Press, 1901), xxvi, n 1. Gierke’s Die publicistischen Lehren des Mittelalters originally appeared in the third volume of his monumental Das deutsche Genossenschaftsrecht, 4 vols (Berlin: Weidmann, 1868-1913). See also James Bryce, Studies in History and Jurisprudence, 2 vols (Oxford: Clarendon Press, 1901), II:84–5.
[9] Important works which have publicised Althusius among English readers include Carl Friedrich, ‘Introduction’ to the Harvard Classics Edition of Politica methodice digesta (Cambridge: Harvard University Press, 1932; reprinted New York: Arno Press, 1979); Bernard Freyd (trans), The Development of Political Theory (London: Allen & Unwin, 1939); Frederick Carney (trans), The Politics of Johannes Althusius (London: Eyre & Spottiswoode, 1965).
[10] The Preamble recites as follows: ‘Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established ...’.
[11] Official Record of the Proceedings and Debates of the Australasian Federation Conference, (Melbourne: Government Printer, 1890), x.
[12] Ibid, 261.
[13] See the Official Report of the National Australasian Convention Debates, republished in five volumes together with a supplementary volume edited by Gregory Craven, entitled The Convention Debates 1891-1898: Commentaries, Indices and Guide (Sydney: Legal Books, 1986).
[14] See Quick and Garran, Annotated Constitution, 228-50; BK de Garis, ‘The Colonial Office and the Commonwealth Constitution Bill’ in AW Martin (ed), Essays in Australian Federation (Melbourne University Press, Melbourne, 1969), 118-21.
[15] See RD Lumb, Constitutions of the Australian States (Sydney: Butterworths, 1992), chs 1–2, 4.
[16] Australasian Federation Conference (1890) 10.
[17] Convention Debates, Sydney (1891), 31–2; cf Samuel Griffith, Notes on Australian Federation: Its Nature and Probable Effects (Brisbane: Edmund Gregory, Government Printer, 1896), 6–7, 10.
[18] See JA La Nauze, The Making of the Australian Constitution (Melbourne University Press, Carlton, 1974). Indeed, the several Enabling Acts passed by the colonial legislatures establishing the federal conventions stipulated that the Constitution must be federal in form.
[19] The fullest bibliography is in Leslie Crisp, Federation Fathers, edited by J Hart (Melbourne University Press, Melbourne, 1990), 400-435. Authors consulted by the Australians included Georg Jellinek, Johann Bluntschli and Charles Borgeaud on the European continent, John Stuart Mill, John Austin, Henry Sidgwick, Goldwin Smith, James Bryce, Edward Freeman and Albert Dicey in the United Kingdom, John Bourinot and Augustus Lefroy in Canada, and James Madison, Alexander Hamilton, Thomas Jefferson, John Calhoun, Thomas Cooley, James Kent, Woodrow Wilson, Westel Willoughby, Joseph Story and John Burgess in the United States.
[20] Baron de Montesquieu, The Spirit of the Laws, translated by Thomas Nugent (1750, rep. New York: Hafner, 1949), I:IX:1, pp 183–4; Alexis de Tocqueville, Democracy in America, translated by Henri Reeve (1835–1840, abridgment rep. London: Oxford University Press, 1946), I:VIII:103–109.
[21] Edward Freeman, History of Federal Government in Greece and Italy (2nd ed, London: Macmillan, 1893), 1–3, 7–8, wrote of ‘the absolute perfection of the Federal ideal’ and observed that ‘the full ideal of Federal Government ... in its highest and most elaborate development, is the most finished and the most artificial production of political ingenuity.’
[22] Eg, Joseph Story, Commentaries on the Constitution of the United States with a Preliminary Review of the Constitutional History of the Colonies and States before the Adoption of the Constitution (5th ed, Boston: Little, Brown and Co, 1891), ch XLV.
[23] British North America Act 1867 (UK). On the state of Canada midway through the nineteenth century, see L P Lucas (ed), Lord Durham’s Report, 3 vols (Oxford: Clarendon Press, 1912).
[24] Consideration was also given to the ‘leagues’ of the ancient Greek city-states, the Roman Empire in classical times, the Holy Roman Empire and the German Empire as at 1871.
[25] See, eg, RC Baker, The Executive in a Federation (CE Bristow, Government Printer, Adelaide, 1897), 5-8.
[26] See Australian Constitution, s 7 (‘The Senate shall be composed of senators for each State, directly chosen by the people of the State’), s 24 (‘The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth’), s 53 (‘Except as provided in this section, the Senate shall have equal power with the House of Representatives’).
[27] Australian Constitution, ss 51, 52, 106-109. Section 106 provides: ‘The Constitution of each State of the Commonwealth shall ... continue as at the establishment of the Commonwealth ... until altered in accordance with the Constitution of the State.’
[28] Australian Constitution, s 128. It is of significance that, like Article V of the US Constitution, s 128 provides that the representation of a State in the federal legislature cannot be altered without the consent of that State.
[29] Georg Jellinek, Allgemeine Staatslehre (Hermann Gentner Verlag, 1960); John Burgess, Political Science and Comparative Constitutional Law (Boston: Ginn & Company, 1890), I:51-5, 57-8, 72-6, 79-80, 88, 101; II:4-9, 184.
[30] Johann Bluntschli, The Theory of the State, translated by DG Ritchie, PE Matheson and R Lodge (Oxford: Clarendon Press, 1885), 252-3; Freeman, Federal Government, 8-13, 69, 77-8; James Bryce, The American Commonwealth (2nd ed, London Macmillan, 1889), I:13-15.
[31] See Carl Friedrich, Trends of Federalism in Theory and Practice (London: Pall Mall Press, 1968), 8.
[32] It is thus argued by some, even today, that federal constitutions can be amended pursuant to the original, revolutionary authority of the people of the federation as a whole, bypassing the formal mechanisms for constitutional amendment which recognize a special role for the states or the peoples of the states. See Akhil Amar, ‘The Consent of the Governed: Constitutional Amendment outside Article V’ (1994) 94 Columbia Law Review 457; Bruce Ackerman, We the People: Foundations (Cambridge, MA: Belknap Press, 1991). However, compare Henry Monaghan, ‘We the People[s], Original Understanding, and Constitutional Amendment’ (1996) 96 Columbia Law Review 121.
[33] Thomas Hobbes, Leviathan, edited by R Tuck (Cambridge University Press, Cambridge, 1991), II:17.
[34] Hobbes, Leviathan, II:17.
[35] Hobbes, Leviathan, II:17.
[36] Hobbes, Leviathan, II:19.
[37] Hobbes, Leviathan, II:18; cf Hobbes, De Cive, VI:2, discussed in Thomas Hueglin, Early Modern Concepts for a Late Modern World (Waterloo: Wilfrid Laurier University Press, 1999), 50.
[38] Hobbes, Leviathan, II:20.
[39] Hobbes, Leviathan, II:18.
[40] Hobbes, Leviathan, II:20.
[41] Hobbes, Leviathan, II:20.
[42] Hobbes, Leviathan, II:1. Conversely, relations between separate sovereigns are a kind of state of nature, regularized only by treaties between sovereign states.
[43] Hobbes, Leviathan, II:XIX. For a discussion of the role of associations within Hobbes’s thought, see DB Robertson, ‘Hobbes’s Theory of Associations in the Seventeenth-Century Milieu’ in Voluntary Association: A Study of Groups in Free Societies (Richmond, VA: John Knox Press, 1966).
[44] John Locke, Two Treatises of Government, edited by P Laslett (Cambridge: Cambridge University Press, 1992), §4.
[45] Locke, Two Treatises, §145.
[46] Locke, Two Treatises, §132. Thus Locke distinguished between the formation and dissolution of society and the formation and dissolution of the government: §221.
[47] Locke, Two Treatises, §133.
[48] Eg, Locke, Two Treatises, §210.
[49] Locke, Two Treatises, §96, §134.
[50] See Martin Diamond ‘The Federalist’s View of Federalism’ in GSC Benson, et al (eds), Essays in Federalism (Claremont: Institute for Studies in Federalism, 1961).
[51] Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (5th ed, Macmillan, London, 1897), 130-55; Kenneth Wheare, Federal Government (4th ed, New York: Oxford University Press, 1967), 1-3, 10-14.
[52] Principally among the Australians, Isaac Isaacs and Henry Bournes Higgins.
[53] For example, Samuel Griffith, Andrew Inglis Clark and Richard Baker.
[54] In saying this, I do not claim that we find within Althusius a ‘theory of the modern federal state’, but refer, as explained below, to the diffuse influence of the general ideas to which he adhered and to the insights which they provide.
[55] Bryce, History and Jurisprudence, II, 105.
[56] John Witte Jnr, ‘Blest be the Ties that Bind: Covenant and Community in Puritan Thought’ (1987) 36 Emory Law Journal 579; ‘How to Govern a City on a Hill: The Early Puritan Contribution to American Constitutionalism’ (1990) 39 Emory Law Journal 41; Donald Lutz (ed), Colonial Origins of the American Constitution: A Documentary History (Indianapolis: Liberty Fund, 1998); Stephen Schechter (ed), Roots of the Republic: American Founding Documents Interpreted (Madison: Madison House, 1990).
[57] Space does not permit a discussion of the role of the ideas of ‘covenant’ and ‘consociation’ in colonial American thinking, noting the countervailing role of the Blackstonian conception of sovereignty and the supposed impossibility of an imperium in imperio. Notably, however, debate at Philadelphia in 1787 between those who shared the latter views came to a impasse until the colonial constitution of Connecticut was advanced as a model of American federalism by John Dickinson. In addition to the sources cited above, see Forrest McDonald, States’ Rights and the Union: Imperium in Imperio, 1776-1876 (University Press of Kansas, 2000); M Farrand (ed), The Records of the Federal Convention of 1787 (2nd ed, 1987), I:42, 87, 201, 242, 468-9 and Michael Zuckert, ‘Federalism and the Founding: Toward a Reinterpretation of the Constitutional Convention’ (1986) 48 Review of Politics 166.
[58] Otto von Gierke referred to Althusius’s ‘epochal’ role in the development of the modern ‘federal state’ conception: The Development of Political Theory, 267; see also 16-19, 102, 266. Carl Friedrich considered that Althusius anticipated and influenced the future development of federalism: ‘Introduction’, xix. See also J Figgis, Studies of Political Thought from Gerson to Grotius 1414-1625 (Cambridge: Cambridge University Press, 1923), 181; Hueglin, Early Modern Concepts, ch 12.
[59] I use here the translation by Frederick Carney, Politica: An Abridged Translation of Politics Methodically Set Forth and Illustrated with Sacred and Profane Examples (Indianapolis: Liberty Fund, 1995), I:1-2, 17. On the proposition’s importance, see JW Gough, The Social Contract: A Critical Study of its Development (New York: Harper and Brothers, 1957), 78; Gierke, Development of Political Theory, 71, 102; Friedrich, ‘Introduction’, lxvii; Carney, ‘Translator’s Introduction’, Abridged Translation, xiii-xv; Daniel Elazar, Covenant and Commonwealth: From Christian Separation through the Protestant Reformation – The Covenant Tradition in Politics, Volume 2 (New Brunswick: Transaction Publishers, 1996), 315.
[60] I will use the terms ‘consociation’ and ‘association’ interchangeably, although the former is probably the better term. See Hueglin, Early Modern Concepts, ch 7.
[61] Politica, II:2-5; see also IV:1-5, 8, 12, 17, 22. Despite its grounding in nature and necessity, even the family is initiated by covenant; the collegium, a ‘spontaneous and merely voluntary society’, is emphatically formed by covenanted agreement (pacta conventum) and common consent.
[62] Politica, II:2. The city is thus grounded in ‘the common consent and covenant of each and all’: Politica, VI:7.
[63] Politica, IV: 30.
[64] Politica, I:6, II:2-5, IV:1-5, 7-8, 12, 17, 22, V:8, 10, VIII:2, IX:1-5.
[65] Politica, V:1.
[66] Politica, V:8, 10.
[67] Politica, VIII:2, 40.
[68] Politica, IX:1.
[69] Politica, IX:3.
[70] Politica, IX:5.
[71] Politica, IX:7.
[72] See Daniel Elazar, Exploring Federalism (Tuscaloosa: University of Alabama Press, Alabama, 1991), ch 1; Thomas Hueglin, ‘Johannes Althusius: Medieval Constitutionalist or Modern Federalist?’ (1979) 9(4) Publius: The Journal of Federalism 9, 28.
[73] Politica, VI:16, 41-45, 52, VII:1-2; VIII:3, 40, 53-4; IX:7.
[74] Politica, XVIII:8.
[75] Sobei Mogi, The Problem of Federalism: A Study in the History of Political Theory (London: Allen & Unwin, 1931), I:29-30.
[76] See Hueglin, Early Modern Concepts, 3, 63, 65.
[77] Politica, XIX:23
[78] Politica, XIX:49.
[79] Althusius certainly did not discard the concept of majestas or sovereignty altogether: IX:20-21. But unlike Bodin and Hobbes, he ascribed it to the ‘the total people associated in one symbiotic body from many smaller associations’, the ‘entire associated body of the realm’, in the ‘consent and concord of the associated bodies’: 1614 Preface, IX:18-19. The constitutive status of the provinces and cities, and their reserved sphere of rights thus presented ‘an insuperable barrier’ of fundamental law to the exercise of any authority within the commonwealth: Gierke, Development of Political Theory, 266; see Politica, IX: 3-4, 7, 13, 15-24, XVIII:69, 85, 105, XIX:7-8, 49, XXXVIII:7, 53, 71-73, 76, 110-114.
[80] Thomas Hueglin points out that Jellinek objected to the idea that a federation could be based on the consent of cities and provinces because this would ‘obscure the nexus between individual will and the existence of the state’: Jellinek, Allgemeine Staatslehre (Berlin: Härting, 1900), 183, discussed in Hueglin, Early Modern Concepts, 22, noting Gierke’s reply in the 1902 edition of Johannes Althusius.
[81] See Nicholas Aroney, The Federal Commonwealth of Australia: A study in the formation of its constitution (unpublished PhD thesis, Monash University, 2001).
[82] Although, even here ‘locality’ retained an importance role: the Australian House of Representatives was conceived not only as a ‘national’ house but as a House in which ‘local’ communities would be represented. See Nicholas Aroney, ‘Federal Representation and the Framers of the Australian Constitution’ in Gabriel Moens (ed), Constitutional and International Law Perspectives: Achievements and Challenges, St Lucia: University of Queensland Press, 2000.
[83] Gierke, Development of Political Theory, 266; compare Riley (1976), 34-6. However, there are ‘federal’ elements in Althusius’s scheme as well. For example, cities and commonwealths have direct legislative and executive power over individual citizens (Politica, I:29-30, V:22-23, 50, 61-62, IX:38, 41, XVII:27, XIX:39, 49; cf Gierke, Development of Political Theory, 287-8, n 43). Representation is essentially corporate in nature, but there are elements of individual representation (Politica, V:9, 27, XVIII:3, 59). Also, voting is by majority unless the matter falls ‘outside the corporate fellowship’, or pertains to each member considered ‘one by one’, in which case, decisions must be approved unanimously (Politica, IV:18-20, V:62-64, VIII:28, 68-70, XVII:58, XVIII:61-62, XXXIII:14, 18).
[84] Hueglin, Early Modern Concepts, 72.
[85] See Bryce, American Commonwealth, I:12-15, 332.
[86] See Nicholas Aroney, ‘Imagining a Federal Commonwealth: Australian conceptions of federalism, 1890-1901’ [2002] FedLawRw 10; (2002) 30(2) Federal Law Review 265.
[87] William Harrison Moore, The Constitution of the Commonwealth of Australia (2nd ed, Melbourne: Maxwell, 1910; reprinted Legal Books, Sydney, 1997), 67-8.
[88] Frederic Maitland, ‘The Crown as Corporation’ (1901) 17 Law Quarterly Review, 131, 144.