Federal Systems, Covenantal Theory and Common Property

Abstract

"Liberal political theorists and practitioners of modern democracy have occasionally observed that a liberal individualist conception of rights unduly limits the set of governing relations to a two-level system, with individuals at one level and the state at another. The extent of the problem caused by this limited vision is apparent when liberal democracies are faced with the challenges of common pool resource issues. The observations Alexis de Tocqueville in the last century and Vincent Ostrom's at the close of the present age, show that liberalism in itself docs little to remove the conceptual fetters of a theory of sovereignty that assumes that a single, absolute center of political authority must rule individuals. Tocqueville also reveals liberal theory's dangerous division of life into public and private -- a division that limits our conception of political activity to the realm of government alone and fails to recognize the importance of an authentic private sphere to the development of a vital public life. In terms of contemporary policy making and analysis, this limitation prevents us from identifying an alternative to dichotomous choices between private property and state ownership, ignoring the multiplicity of voluntary, self-organizing, and self-governing activities that address common pool resource problems.

"Perhaps it is not surprising that liberalism fails to conceptualize institutional possibilities beyond this limited depiction The early thinkers in this genre, Hobbes and Locke, each - though in different ways - tell us how individuals construct authority that ever-after rules them. What should surprise us is that while 17th Century liberals wrote of abstract individuals, actual people were establishing a different, although related form of government in North America. This form of self-government and self-organization was based in a covenanting tradition that provides the foundation of American federalism. Reclaiming early documents pertaining to this covenantal period, political historian Donald Lutz helps us recognize how federalism differs from liberalism and offers an alternative to individualism.

"Although federalism is usually understood as an instrument that promotes the particular aims of liberalism, it is based on a method that, unlike liberalism, neither focuses solely on abstract right-and-duty-bearing individuals, nor abstract individuals from the inevitable collective problems that they face. Rather it accounts for communities formed by persons who, thereafter, are never wholly autonomous from them. Government may promote or diminish the chance for some types of relationships, but governments, even federal governments, are structures that support antecedent communities. In this conceptual scheme, analysts must account for individuals and communities in order to understand the various institutional frameworks that address common property problems.

"In this essay I will draw on the observations of Alexis de Tocqueville, the historical work of Donald Lutz, and Vincent Ostrom's interpretation of American federalism to discuss the covenental basis of federal systems and their potential for dealing with common pool resource problems. In addition to the America experiment in self-government, scholars who understand federalism as a reflection of a covenental theory, may also draw on the prior example of Swiss federalism. Analysts might also learn from traditional and contemporary means for recognizing groups with distinct ways of life in nation slates - such examples range from Native peoples with sovereignty embedded in the constitutional systems of Canada and the United States, to the 'Travelers' in Ireland to the Sami of Norway.

"My emphasis in this essay will be on the United States, although my intention is to draw out larger principles, identifying federal instruments and the covenanting theory that they represent, and in so doing, find an alternative to the dichotomies of liberal theory which limit our political analysis."