Structural and Textural Dimensions of Territorial State Organisation

Three dimensions of territorial state configuration:

1- Territorial structure2- Territorial texture3- Vertical diffusion

1- Territorial structure : the most aggregate, stable and formal specific institutional framework, within which vertical allocation of state authority occurs.

Wilfried Swenden: kinds of structures: federal, regionalised, and unitary decentralised states.

In contrast to the federal case, regions in a regionalised state are subordinate to the central government. (Swenden)

Spain is a regionalised state, which in fact is not so, as Spanish regions are not subordinate to the central government.

Swenden attempts to avoid the unitary–federal divide but unable to describe the territorial structure of ‘eclectic’ cases (the Spanish one).

2- Territorial texture: the basic set of authoritative, institutional, organisational, material and relational attributes that make up a system of self-reproducing statehood at the subnational scale.

Swenden: in a unitary decentralised state regions are even weaker than regions in a regionalised state, as they have ‘fewer legislative, administrative and/or fiscal powers’ .

A correlation between a specific structure (i.e. unitary) and the quality of the subnational entities belonging to it.

However, in a unitary state, decentralised or not, there is no legislative power given to the subnational realm.

Swenden fails to clarify whether ‘administrative power’ includes rulemaking authority, or whether legislative’ implies secondary and tertiary rulemaking.

The confusion occurs between lawmaking (which corresponds to primary legislation) and rulemaking (the generic concept that encompasses other kinds of rulemaking).

It is wrong to equate subnational French assemblies with subnational Italian or Spanish assemblies.

He considered all of them ‘legislatures,’ because all three are elected, whereas only the latter two can be considered lawmaking bodies.

3- Territorial diffusion of authority: concrete and effective degree of legitimate formal state authority allotment in the fields of policy-making, administration and finance to subnational state units in specific areas of public provision.

Diffusion illustrates how polities, which share a common territorial structure, may have a varying degree of effective vertical authority allocation.

it is meaningful to distinguish centralised from decentralised federal states.

measuring regional authority largely refers to vertical authority diffusion.

The common description of a territorial structure is given through the conventional unitary versus federal divide.

this dichotomy is increasingly unable to cope with the territorial structural development around the world.

So, one peculiar variant of rulemaking authority, namely lawmaking authority, as the key explaining factor for territorial structures.

Which lawmaking power?

Question is whether lawmaking power has been granted to the subnational realm or not

For a rule to be a law there has to be an explicit recognition of its nature by the entire legal order of the country, especially by the courts.

This recognition presupposes an equal power of both national and subnational laws in structural terms, which means that the same kind of control over them has to prevail according to a common constitution

Laws have to be superior to rules of administrative nature. That lawmaking power is so essential for territorial state configuration was shown in the UK’s asymmetrical devolution process where Scotland was granted lawmaking authority in a different scope than the devolution given to Wales, not to speak of England, which did not benefit from devolution at all.

How is the lawmaking factor sufficient forchallenging the misleading unitary–federal divide? Since the Spanish constitutional reform

of 1978, it should have become clear that the conventional unitary–federal separation was incapable of explaining new emerging territorial structures.

No agreement how to structurally characterise Spain, thus one finds definitions of all kinds: ‘autonomic’ , ‘regional’, ‘quasi federal’ or ‘federal’.

The term ‘unitary’, apart from leading to an underestimation of state subnational complexity in the so-called unitary state, has been confused with the idea of ‘unified nation states’ or has been taken as a synonym for solidarity and national integrity.

The opposite term, federal, seems t contradict the unity of the state

The simple and the composite mode of state

Instead of the unitary–federal distinction, the dichotomy of simple versus composite in function as to whether the monopoly over lawmaking authority remains at the national level (simple), or has been broken down in favour of the subnational units (composite).

With the term simple confusion with values like national integrity can be avoided, whereas the term composite reveals the federal as only one possibility when the monopoly of lawmaking authority has been broken.

1- the concept of the simple mode of state does not imply that the whole production of rules, whatever their hierarchy, is retained at the national level.

It means that a specific kind of rule production, namely lawmaking authority, is exclusively issued by the national level, without excluding subnational variations through administrative statutes.

The concept of simplicity presupposes a variable degree of territorial complexity even in unitary state.

2- even if the national level would tailor its legislation to regional peculiarities, no breaking of the monopoly would be achieved. the virtues of national sensitivity in policy-making would not alter

the fact that it is a national body that legislates. In theory, it is possible that truly devolved legislation becomes

less differentiated than the former national legislation, although lawmaking authority has been decentralised.

According to the new concepts, belonging to the composite mode does not necessarily mean to be federal, thus the Spanish case rekindles the question of how to characterise other non-federal alternatives within a composite mode of state.

Moreover, if we say that neither the UK nor France belong to the composite mode of state, this does not mean that both share all structural features.

Factors of subnational statehood as an expression of territorial texture

Understanding the polity at the subnational level a correlation between territorial

structure and texture, namely the content of the attributes that make up subnational statehood.

six factors can appropriately substantiate subnational statehood, the rulemaking factor being the most relevant among them.

The rulemaking factor

By analysing the quality of subnational statehood, the kind of rulemaking authority is important.

When rulemaking takes the form of lawmaking, the composite mode of state emerge and the subnational statehood acquires a special quality in terms of the scope of policy-making

As in French case, the rulemaking dimension also remains relevant in the simple mode of state, despite not assuming the shape of lawmaking authority.

The multi-factorial content of territorial texture announces that subnational statehood cannot be reduced to the factor of rulemaking.

The modality of selection of subnational authorities

the modality of selection of subnational authorities, and not the rulemaking factor, has attracted more attention for assessing state decentralisation.

However, already Max Weber (2005, p. 36) showed that autonomy was related not to the ability of self-election of subnational authorities, but to self-rulemaking. He thought that entities, in spite of having chosen their authorities, could remain heteronomous (non-autonomous).

the factor of authority selection expresses a specific degree of territorialisation of state authority, because, beyond the enhanced democratic legitimacy it produces, it clarifies whether the decision of who is to govern, is to be taken at the place where the governed live.

Moreover, the more subnational authorities enjoy this quality the greater the degree of authority territorialisation.

Organisational complexity at the subnational level

subnational statehood needs a system of territorialised state functions that includes, beyond the typical political ones, those with an independent or technical character in order to close the circuit of institutional reproduction at that level

The shielding against interference of an upper territorial level

the relationship between control of legality and control of appropriateness of decisions.

For assessing the quality of subnational statehood, we have to confirm whether actions of subnational entities are shielded against a control on the grounds of appropriateness

In these shielded fields a reversal of subnational decisions can occur only if there is a legal reason for doing so.

If the Lander are acting in the name of the national level, then both a control of legality and the control of appropriateness of decisions by the national level holds . In the case that Lander execute national laws as if these tasks were pertaining to the federated entities, then only a control of legality holds.

The banning of the control of appropriateness of decisions upon some tasks seems to expand the field of tasks deemed to pertain to the subnational entities

A general purpose domain of territorial own subnational tasks

a critical mass of material own tasks should be present in order to speak of subnational statehood, even if some own tasks in this sense could be upscale to a higher level, because of managerial weaknesses in the corresponding subnational entity that was supposed to address them.

To possess a domain of own tasks is one issue, but the capability to execute them is another, and that depends largely on the financial framework of the territorial subnational entity.

Fiscal sufficiency and own source revenues

financing as far as it covers all expenditures of the entity and, second, a fiscal core within the general financing that is derived from own revenues.

Likewise, as in the case with the theory of a domain of own tasks, there are own revenues in a broad and in a narrow sense. The former includes transfers, provided no strings are attached, whereas the latter is based on income originating from own source taxes, user charges or the like.

Such a distinction was very common in the analysis of fiscal decentralisation and is now increasingly entrenched in legal rules.

decentralised territorial unit will be qualitatively weaker, no matter how steadily its general income rises, if a simultaneous decrease of its own resources occurs.