I. INTRODUCTION
The migration of constitutional ideas, principles and rules from one country to the next is a topic of current interest, on both a practical and theoretical level.Footnote 1 The movement of legal concepts would appear to be the most straightforward when two countries are somehow institutionally or culturally related, as in the transmission of legal norms from European imperial powers to the colonial settlements (as distinct from the native inhabitants) of North and South America, Africa, Asia and Australasia, or the transplantation of legal principles from one related legal system to another.Footnote 2 Yet, given that the migration of constitutional ideas even among closely related legal systems tends to produce hybrids,Footnote 3 when legal ideas are transplanted into a more radically different legal context one would expect very significant divergences between parent stock and offspring. Some scholars emphasize these differences to the point of incomparability,Footnote 4 whereas others emphasize the universalism of certain fundamental constitutional principles.Footnote 5 Between these two extremes, methodologies vary considerably.Footnote 6 In this context, care clearly needs to be taken to understand the constitutional rules and principles of each legal system within their specific cultural contexts, and case-studies need to be carefully chosen to enable us to tease out the similarities and the differences in a manner that is not haphazard or misdirected.Footnote 7
One such movement of constitutional ideas, little remarked, concerns the influence of mid to late 19th century German state-theory upon the design of Australia's federal constitution, enacted into law in 1900.Footnote 8 The transmission to Australian shores of ideas represented by the tradition of the German Allgemeine Staatslehre is especially worth noting, however, because of the significant differences between the two countries at that time. One was located in the middle of Europe, surrounded by often hostile powers, and embedded in a long and tumultuous history. The other was a colony established in a land that was perceived to be terra nullius—an entire continent the native inhabitants of which appeared (to European eyes) to pose no significant barriers to settlement, cultivation and civilisation. Moreover, despite earlier roots in a common pan-European pastFootnote 9 and a common Western, predominantly Protestant, cultural heritage,Footnote 10 the Continental civil law tradition to which the German legal system belonged and the English common law which the Australians inherited had long since diverged in fundamental ways.Footnote 11
Any yet, there were latent similarities. The German states, formerly constituent elements of the Holy Roman Empire, had long taken a very different path to the consolidated nation-states of France, Spain and the United Kingdom.Footnote 12 Although the unification of the German states in 1871 occurred under the auspices of Prussian economic and military might and the political machinations of Bismarck, the constitution of the German Empire was nonetheless in the form of a treaty, agreed to by the constituent states.Footnote 13 Likewise, the Australian colonies, though they shared a common allegiance to the British Crown and were legally subject to the Imperial Parliament at Westminster, believed themselves to be mutually independent, self-governing political communities possessing the right to determine for themselves whether and, if so, on what terms they would enter into a federal union.Footnote 14
The reception of German political and constitutional ideas by the Australians of the late 19th century is a striking illustration of the transmissibility of constitutional ideas across two legal cultures generally thought to be of very different provenance. To be sure, the transmission of these ideas was mediated by the translations and interpretations of British and American scholars, and in that act of mediation the German terminology and conceptual framework was recast in terms more familiar to their Anglophone readers.Footnote 15 Moreover, the Australians adapted these German ideas to their own ends and circumstances, sometimes very selectively drawing what they wanted from their German, British and American sources, rendering the transmission of German Staatslehre to Australia a very instructive example of the reception and modification of legal and political ideas in new contexts and for new purposes.
Two very important figures in mid to late 19th and early 20th century German legal scholarship, Johann Caspar Bluntschli (1808–1881) and Georg Jellinek (1851–1911), wrote treatises about constitutional law and political theory that influenced the Australians very deeply. The better educated and intellectually influential among the Australians were familiar with Jellinek and Bluntschli—they read about their ideas through various Anglo-American translations and interpretations, and they debated the implications of their theories for the design of the Australian federal system.Footnote 16 In particular, two English-language scholars, Edward Freeman (1823–1892) and John W Burgess (1844–1931), relied heavily on Bluntschli and Jellinek in formulating their theories of federalism, and the Australians who read Burgess and Freeman drew on them to defend their own conceptions of the kind of federal commonwealth that they thought Australia should become.Footnote 17 Indeed, Bluntschli and Freeman on the one hand, and Jellinek and Burgess on the other, were taken by the Australians to embody the two basic, contending theories of the nature of federalism that lay at the heart of the debate about the structure and the design of the Australian Constitution.
This article seeks to explain the influence of German state-theory on the design of the Australian Constitution, especially in its federal aspects. The substantive discussion proceeds in three stages. Part II surveys the approaches to state-theory advanced respectively by Bluntschli and Jellinek, with particular emphasis on their accounts of the Bundesstaat (‘federation’) and the Staatenbund (‘confederation’), focussing especially on what they considered to be the distinguishing features of the two kinds of constitutional arrangement. Part III then turns to the interpretations of late 19th-century theories of the state advanced by Freeman and Burgess, again with particular emphasis on their accounts of federations and confederations and of the distinction between the two forms of government. Part IV of the article concludes by sketching the way in which the Australians appropriated these ideas, constructing their own accounts of the nature of a genuinely ‘federal’ government on the basis of the state-of-the-art scholarly literature then circulating in the English-speaking world. While the Australians were generally limited in their capacity to read in languages other than English, it will be shown that many of the underlying ideas used by the Australians had their genesis in the German Staatslehre of the late 19th century, particularly in the writings of Bluntschli and Jellinek. These ideas did not determine the outcome of the Australian debate, but they did shape it in fundamental ways. Indeed, while Jellinek's theory came later and was perhaps more sophisticated than Bluntschli's, it was less well adapted to the conditions in which the Australians debated the terms of their own federation, and was less in tune with the consensus of opinion among the Australians. For this reason, it was Bluntschli's and not Jellinek's theory of the federal-state that would have the decisive influence upon the terms and structure of the Australian Constitution.
II. 19TH CENTURY GERMAN STAATSLEHRE
German state-theory in the 19th century was confronted with unique problems of national identity and state-formation. The diverse assortment of large and small principalities, ecclesiastical territories and free cities which made up the Holy Roman Empire had long presented remarkably complex questions of conceptualization and classification.Footnote 18 Jean Bodin (1529/30–1596), applying his famous theory of sovereignty to the problem, concluded that the Empire was in terms of Aristotle's categories an aristocracy, not a monarchy, because sovereignty effectively rested with the electors, princes and representatives of the free cities.Footnote 19 Johannes Althusius (1563–1638), writing from the more consensualist perspective of his characteristic ‘consociationalism’,Footnote 20 thought that sovereignty was somehow ‘shared’ between the Emperor and the estates of the Empire (Reichsstände).Footnote 21 Ludolph Hugo (1630–1704), somewhat differently again, conceived sovereignty as being elaborately ‘divided’ among the different jurisdictions.Footnote 22 In 1667, Samuel Pufendorf prominently disagreed with them all, describing the Empire as neither a monarchy, an aristocracy, nor a mixed system of government, but rather as a monstrous irregularity.Footnote 23 Responding to this, however, Leibniz just as importantly asserted a relatively modern-looking theory of limited and distributed sovereignty, captured in the idea of the ‘territorial supremacy’ (superioritas territorialis or Landeshoheit) of the constituent states, as distinct from the absolute conception of sovereignty promoted by Bodin and Hobbes.Footnote 24
Until its formal dissolution in 1806, the Empire remained a complex patchwork of multi-layered jurisdictions which continued to present profound questions of analysis and categorisation.Footnote 25 The far-reaching consolidations that occurred under Napoleon transformed Germany into a relatively smaller collection of large and medium-sized territorial states, first combined together in the Confederation of the Rhine in 1806 and, following the Congress of Vienna of 1815, in a loose confederacy of 39 formally independent states known as the Deutsche Bund.Footnote 26 This confederation remained intact, except for a brief dissolution connected with the uprisings of 1848, until the Austro-Prussian War of 1866.Footnote 27 The subsequent establishment of the Northern German Confederation in 1866 and the German Empire in 1871 continued to present difficult problems of classification comparable to those presented by the Holy Roman Empire, but differently configured. Unlike its predecessor, the German Empire of 1871 rested explicitly on a treaty between a far smaller number of relatively large, formally independent constituent states, shaped nonetheless in its formation and structural content by the overbearing influence of the Kingdom of Prussia.Footnote 28
As Michael Stolleis has argued, two of the most pressing issues posed by the Empire of 1871 concerned the question whether the resulting structure of government was to be understood as a federal-state or as a union of states, together with the related question whether sovereignty was located in the empire or in the constituent states.Footnote 29 These two questions, among many others, were addressed by both Johann Bluntschli and Georg Jellinek, and their answers to these questions were discussed by British and American writers only to be later taken up by the framers of the Australian Constitution. For the Australians, designing a federal system in the absence of a long-standing set of institutional practices and expectations of the kind represented by the German experience, three things would be particularly relevant. First, what was the institutional design of the German Empire of 1871? Second, what conceptual system was appropriate to the classification and explication of such a system of government? Third, what normative principles of institutional design should be inferred from the German Empire as a constitutional model and from its classification as a particular kind of system of government? The Australians looked to Bluntschli and Jellinek, among several others, for answers to questions such as these.
A. Johann Bluntschli
Born in Zurich in 1808, Johann Bluntschli began his studies in that city, later studied in Berlin and soon thereafter in Bonn, where he took the degree Doctor Juris in 1829. Returning to Zurich in 1830, he became embroiled in disputes over liberal reforms in some of the Protestant cantons (associated with the second French Revolution of the same year), and was elected to the Great Council of the Canton of Zurich as a champion of the moderate conservative party, opposing himself to both the Radicals of the Left and the Ultramontane Roman Catholics on the Right. Over the course of the next two decades events in Switzerland culminated in a brief civil war between liberal Protestant and Catholic cantons and the conservative Catholic cantons of the Sonderbund. Following the defeat of the Sonderbund in 1847, Bluntschli moved back to Germany, taking up an appointment as Professor of Constitutional Law in Munich in 1848, and later moving to Heidelberg in 1861, where he once more actively participated in politics, this time in his new home Länder of Baden (now part of the State of Baden-Württemberg), and where he stayed until his death in 1881.
During his illustrious career Bluntschli wrote several highly influential treatises in public, private and international law. Of most influence on the Australians were three works on public law and constitutional history: Allgemeines Staatsrecht (1851–1852), Geschichte des schweizerischen Bundesrechtes (1875) and Lehre vom modernen Staat (1875–1876), itself consisting of three volumes under the titles Allgemeine Staatslehre, Allgemeines Staatsrecht and Politiks.Footnote 30 In particular, the Allgemeine Staatslehre was translated by three Oxford scholars, Ritchie, Matheson and Lodge, and published by Clarendon Press in 1885 as The Theory of the State.Footnote 31 This translation of Bluntschli's Allgemeine Staatslehre was read and used by several of the framers of the Australian Constitution—most prominent among them being Samuel Griffith, Richard Baker and Robert Garran. In addition, his Geschichte des schweizerischen Bundesrechtes was used by the Oxford historian, Edward Freeman, who was himself cited frequently by several highly influential Australians.Footnote 32 As will be seen, what was of particular importance for Bluntschli's British and Australian readers was his account of the nature of the federal-state or Bundesstaat and the difference between it and a confederation or Staatenbund. In contrast to the accounts of Jellinek, Burgess and others, Bluntschli presented a theory of federalism in which the idea of sovereignty did not have a decisive role in determining the distinct nature of confederations and federal-states.
Bluntschli defined a state as large body of persons (wider than a mere tribe of families), connected to a particular territory, conscious of its own unity as a nation (Volk) and in possession of sovereignty (Souveränität).Footnote 33 Thus, like Jellinek and Burgess after him, and typical of 19th century theories of the state generally, Bluntschli related the existence of a state to the underlying people or nation of that state. Specifically, he understood states to arise when distinct peoples, possessing a common language, culture and history, form themselves into separate nations (Völker) possessing political unity and legal personality.Footnote 34 In this, Bluntschli contrasted his position to that of Rousseau, who grounded the state upon the collective body of citizens, whether consisting of one or several distinct nations.Footnote 35 However, this did not mean for Bluntschli that ‘people’, ‘nation’ and ‘State’ were necessarily coterminous. While the unity of the state was one of its essential features, early on in his Theory of the State Bluntschli recognized without qualification that a State could be composed of several constituent states.Footnote 36 While distinct peoples often form themselves into their own separate states, a single people might, for various reasons, separate into several distinct states, or alternatively several peoples might be united into one state.Footnote 37 In the latter case, Bluntschli observed three possible tendencies over time: first, the several peoples may be assimilated into one people; second, the several peoples may separate from one another to form distinct states; or, third, the combination of several peoples in one state may be maintained through time, either by raw military force or else through a federal union of self-governing republics, as in his native Switzerland.Footnote 38 Bluntschli thus saw it as quite legitimate for a state to be composed of more than one nation, and that the ideal form in which such an arrangement could be preserved was through some kind of federal arrangement. Indeed, for Bluntschli, the highest ideal of the state was to be determined, not by reference to people-hood or nationality, but rather in terms of a common humanity and a universal human nature, on the basis of which the peoples of the world might one day (he hoped) be combined into a higher unity in the form of a world state.Footnote 39 Yet at the same time Bluntschli recognized the right of each people to form itself into a self-governing nation-state, reflective, he said, of ‘the diversity of gifts with which nations and peoples are endowed by God’.Footnote 40
Within this context Bluntschli considered federal arrangements, not as more or less static systems of government in which functions are definitively divided between federal and state organs of government, but principally in terms of their origin or formation, understood in the context of a broad discussion of the formation of states generally.Footnote 41 According to Bluntschli a state may historically come into being in three fundamentally different ways: first, as the political expression of a particular people where no state or states already exist; second, as an emanation of a particular people in a context that is dependent upon an existing state or states; and, third, as arising through the action of an existing state external to the people of the newly created state.Footnote 42 Bluntschli held that the original emergence of a State out of a pre-existing people does not, as a matter of history, come about as the result of the consent of all of the individuals composing the society, but rather as a result of the people of a particular place becoming conscious of their identity as a nation and resolving to form themselves into a state as an exercise of the common will of the nation as a whole.Footnote 43
The second way in which states can come into being (ie, as an emanation of a particular people in a context that is dependent upon an existing state or states) was in turn distinguished by Bluntschli into two classes: those which involve the integration of several states into one State and those which involve the disintegration of one state into several. The former of these, the union of several states into one, typically occurs, he said, when several states wish to join together for the purpose of common defence or to attain a sense of national identity. As Bluntschli explained, such unions of states come into being on the basis of a contract between states, resulting in what he called a Bund. Such arrangements, he further explained, could in turn be distinguished into two basic kinds, which he respectively called Staatenbund (confederation) and Bundesstaat (federal-state). Bluntschli conceived both categories of Bund as ‘composite’ political bodies. The basic difference between the two was that a federal-state exists where the sense of national unity is relatively greater and the fundamental law of the system is conceived more as a form of constitutional law than as a contract between states. In this context, what was of utmost importance for the Australians who read or made use of Bluntschli's ideas was that when identifying the distinct characteristics of federations and confederations Bluntschli classified them as both belonging to a more general kind of federative arrangement which he called a Bund—a federative arrangement founded upon a kind of contract between constituent states.Footnote 44 Not only confederations, therefore, but also federal-states, belonged to the genus Bund; both categories of political system were thus defined and conceived in contractual terms.
The precise nature of the distinction between federations and confederations was of course the critical question, and Bluntschli's treatment of the issue was complex. As noted, Bluntschli suggested that although a confederation (Staatenbund) is based upon a contract or treaty between the constituent states, a federal-state (Bundesstaat) is somehow to be conceived as the expression of a common nation and a common state, founded upon a written constitution.Footnote 45 However, Bluntschli classified even the federal-state as something initially formed by contract (Bund) and he described the transition from confederation to federal-state as occurring, historically, when a subjective feeling of unity becomes stronger than the countervailing feeling for diversity.Footnote 46 And in this connection, most importantly, Bluntschli—unlike Jellinek after him—made no mention of the location of sovereignty; at most Bluntschli conceived the constitution of a federal-state to be derived from the singular will of a common nation and common state.Footnote 47 Rather, the key institutional difference between confederation and federal-state lay in the nature and reach of the centralized organs of government within the Bund. According to Bluntschli, a confederation lacks a centralized state apparatus. The administration of a confederation is left either to one of the constituent states as the presiding state or to an assembly of delegates of all the states, whereas a federal-state has independently organized federal organs of government which (it would seem) operate directly upon individuals.Footnote 48 Thus, Bluntschli presented the federal-state, although like a confederation arising historically on the basis of a Bund or covenant between states, as nonetheless somehow grounded conceptually upon a constitution and distinguished from a confederation on account of the nature and reach of its centralized organs of government.
Indeed, later expanding upon the institutional differences between a federal-state and a confederation, Bluntschli observed that except for very limited and usually external purposes a confederation has no legal personality and lacks any governmental organs of its own. By contrast, he said, in a federal-state both the collective state (Gesamtstaat) and the particular states (Einzelstaaten) each have a complete set of organs of government which operate independently of each other and as effectively as if each were simple states. There is also a kind of joint citizenship, Bluntschli added, in the sense that both the federation and the particular states possess an organic unity and identity, so that we can speak of Americans, and yet of Pennsylvanians and Virginians, and of the Swiss nation as well as of the Bernese and Genevese. In turn, Bluntschli explained, the existence of two kinds of states within the same territory is made possible through a precise demarcation of the powers of each and by keeping the governments and representative bodies of the two as separate and independent as possible.Footnote 49
It was only after all this that Bluntschli turned in his book to a detailed analysis of the nature of sovereignty.Footnote 50 For Bluntschli, sovereignty (Souveränität) was indeed an essential principle of the state, inhering not in the people or the nation (Volk), but in the state itself, conceived in its legal personality.Footnote 51 Bluntschli defined sovereignty in its ‘positive side’ as the complete and sole power of the state over its territory to enforce its laws and execute its decrees over all persons, land and things within its jurisdiction, as well as in its ‘negative side’ as the right to exclude every other state and external power from interference within its territory.Footnote 52 However, he was emphatic that sovereignty must not be conceived of as a kind of absolute power, for in its external aspect it is always subject to international law and in its internal aspect it is limited by its own nature and by the rights of its members.Footnote 53 Thus, while he added (almost in passing) that sovereignty must be unitary in nature (for a division of sovereignty ‘paralyses and dissolves’ a stateFootnote 54) he nonetheless affirmed that not every subjection of a state destroys its sovereignty, for in composite states such as confederations and federations the particular states, though in certain respects subordinate to the whole, yet retain a relative sovereignty, ‘limited in extent but not in content’.Footnote 55
Bluntschli's account of the nature of sovereignty and its relationship to his account of federal-states and confederations was thus capable of alternative interpretations. His insistence on the essential sovereignty of the state could lead to the conclusion that a federal-state is distinguished from a confederation because it is based on a constitution that derives its authority from the people of the nation as a whole and not from a contract between the constituent states. However, Bluntschli did not assert that the distinction between the two forms of state-system lay in the location of sovereignty (in either the federation or the states) and he wrote as if the key institutional difference lay in whether a Bund had at its disposal a full and independent set of governing institutions operating directly on the individual citizens of the federation as a whole.
No matter how he is best interpreted, what is clear is that the Australians who read Bluntschli understood him to be saying that federations and confederations both arise through a kind of federative covenant, and are therefore classified as kinds of Bund, and that the critical difference between a federation and a confederation is that in the former the central government directly executes federal laws against individuals, whereas in a confederation centralized decisions can only be executed by the governing organs of the states. Such an account of the distinction between the two preserved the idea that a federation, though in some sense based on a constitution, is nonetheless best conceived of as a kind of federative arrangement founded upon its constituent states, and not as a system of government owing its existence to the putatively sovereign people of the nation as a whole. This left it fully open for Bluntschli's Australian readers to conclude that it was by no means essential that a federal constitution give effect to the sovereignty of the people of the nation in its representative institutions and amendment clauses. Indeed, several highly influential Australians argued that it was entirely appropriate for the proposed Australian Parliament, following the American and Swiss examples, to be partly representative of the peoples of the constituent states and partly representative of the people of the nation as a whole, as well as for the constituent states to have a distinct voice in deliberations concerning any proposed amendments to the constitution.
B. Georg Jellinek
Georg Jellinek was born in 1851 in Leipzig but in 1855 moved to Vienna, where he grew up. He subsequently earned doctorates in philosophy at Leipzig in 1872 and in law at Vienna in 1874, and went on to hold appointments at the Universities of Vienna (1879–1889), Basel (1890–1891) and Heidelberg (1891–1911), the latter as Professor of International Law.Footnote 56 In 1882 he published his early Die Lehre von den Staatenverbindungen and in 1895 his well-known The Declaration of the Rights of Man and the Citizen was published.Footnote 57 His most ambitious work, Allgemeine Staatslehre, was first published in 1900, went through several editions, and was profoundly influential.Footnote 58 This latter work, despite its importance, was published too late to be of any influence on the framers of the Australian Constitution. Rather it was his Die Lehre von den Staatenverbindungen that had an important, though indirect, influence on several of the Australians. The influence was indirect because Jellinek's work was not translated into English. However, another key influence on the Australians, the American political scientist and constitutional lawyer, John W Burgess, was influenced very substantially by Jellinek and was the key route through which Jellinek's ideas would migrate to Australian shores. Burgess was in turn a key influence on a small but significant minority of Australians, such as Isaac Isaacs, Henry Bournes Higgins, Robert Garran and John Quick. In particular it was Jellinek's (and Burgess's) theory of the nature of the sovereign state, and of the distinction between a federation and a confederation, that was decisively influential in this respect.
In Jellinek's Die Lehre von den Staatenverbindungen we encounter an approach to state-theory that is significantly different from Bluntschli's, especially in Jellinek's emphasis on the idea of sovereignty as an essential characteristic of a state.Footnote 59 It is true that Bluntschli likewise affirmed this, but Jellinek put sovereignty at the forefront of his account and worked out its implications in great detail. A state arises historically, he said, when a particular people, conscious of their organic unity, establish themselves as a collective juridical personality, with fully constituted organs of government which are recognized by the people as giving effect to the will of the nation. For Jellinek, the sovereignty of a state involves a relationship of domination by the state over all individuals and groups within its territorial jurisdiction, as well as a condition of independence from the will of any other state. Each state, on this view, is in principle equally free and independent in the possession and exercise of its sovereignty. However, Jellinek's conception of sovereignty did not entail an absolute plenitude of power in terms of the old Roman definition, summum imperium, summa potestas. Sovereignty, for Jellinek, was ‘the quality of the state by virtue of which it can only be legally bound by its own will.’Footnote 60 Thus, constitutional limits on the power of the organs of a state, as well as binding juridical relationships between states, could certainly exist, but they had to originate in an exercise of sovereign will by the state or states concerned.
According to Jellinek, the internal organization and external relationships of a state could take many forms, and these forms could be classified into many kinds. Jellinek distinguished fundamentally between what he called ‘non-organized’ and ‘organized’ connections between states (Staatenverbindungen), as well between relations that were merely historical-political in character and those that were legal or juridical.Footnote 61 Relations among states that were primarily historical and political included for him cases of ‘subject’ territories or colonies, the historical incorporation or annexation of states into a single state and situations where the personal holder of sovereignty happened to be common to more than one state.Footnote 62 Among ‘non-organized’ relations between states, Jellinek also distinguished various kinds of treaty relationship involving administrations of territories, alliances and protectorates, as well as what he called Staatenstaat, the loose kind of confederation exemplified in the structure of the Holy Roman Empire.Footnote 63 All of these kinds of connections between states lacked, however, a common organ created by, or expressive of, the union between the states. Arrangements in which such an organ did exist Jellinek classified separately into four separate sub-categories, which he respectively called administrative unions (Internationale Verwaltungsvereine), confederations (Staatenbund), real unions (Realunion) and federal-states (Bundesstaat).Footnote 64 As with Bluntschli's ideas, it was Jellinek's distinction between federation and confederation that would prove decisively significant for his British, American and Australian readers.
For Jellinek—unlike Bluntschli—the key difference between a confederation and a federal-state lay in the location of sovereignty. According to Jellinek, a confederation is formed when several independent states agree by treaty to form a permanent set of central institutions calculated to secure certain political objectives, such as a degree of uniformity of laws and administration or for mutual protection and defence, but in which each constituent state retains its sovereignty. The central institutions of government of a confederation may be organized in diverse ways and various decision-making rules may be adopted, he said, but what is essential to the existence of a confederation is its formation by a treaty between sovereign states, and the maintenance of that sovereignty under the confederation, with the consequence that each state retains the right to exercise its own judgment about the scope of the powers of the central organs of government and a capacity to deem central laws and acts of administration null and void, and if necessary to secede at will from the confederation as a whole.Footnote 65
In contrast to confederation, Jellinek taught that a federal-state is itself constituted as a sovereign state which happens to be organized on the basis of a permanent distribution of powers between central and regional organs of government. Importantly, on his view, it is the federal-state and not the constituent states that possesses sovereignty. Even though a federal-state may have come into being through a process that involved several previously independent states agreeing to the formation of a federal union, the legal foundation of such an arrangement was not conceived by Jellinek to be a treaty between several states exercising their sovereign powers. Rather, the essential foundation of the federal-state was the existence of a newly-formed constitution which comes into being, just like the constitution of a unitary state, when a particular people become conscious of their organic unity as a nation and form themselves into a collective juridical personality, with a set of fully constituted organs of government that are recognized by the people as giving effect to the will of the nation. On such a conception, a federal-state derives its existence from a single nation (Volk), and the powers distributed to the national and state governments derive from this act of national self-constitution. The original states may continue to be called ‘states’, but by definition they remain non-sovereign states, public-legal corporations to which powers of legislation and administration are permanently conferred under the constitution.Footnote 66
On Jellinek's account a confederation typically involves a central governing assembly which is in reality a congress of envoys from the constituent states, equally represented, voting on instructions and reserving to themselves the sole power to enforce or execute laws of the confederation. The compact between states upon which a confederation is founded also typically requires, according to Jellinek, that the terms of the compact can only be altered by unanimous vote. Moreover, and importantly, Jellinek denied the possibility of an intermediate form between confederations and federal-states as he conceived them, such as a system in which sovereignty is somehow either ‘divided’ or ‘shared’ between the federation and the states, as promoted for example in the theory of Georg Waitz.Footnote 67 For the same reason, Jellinek also rejected the interpretation of the United States Constitution advanced by Max von Seydel and John C Calhoun, which according to Jellinek presented the United States as a kind of confederation, with sovereignty reserved to the states, but in which the federal government directly executed federal law against individuals, rather than having to rely upon the states to execute the law.Footnote 68 For Jellinek, such an interpretation was both illogical (because inconsistent with the principle that sovereignty must rest either in the whole or in the parts) and had been overtaken by historical events (namely the outcome of the American civil war, in which the military force of the Union overcame the secessionist states, eliminating their claimed rights to nullify federal laws and secede from the federation). Rather, for Jellinek, the United States was constituted as a fully formed federal-state, the essential characteristic of which was a unitary locus of sovereign power vested in the nation as a whole, together with a constitutional division of powers between the federal and state organs of government. Such a system may, he conceded, be formed out of a union of previously independent states (as in the United States), but it might also be formed by the decentralization of a previously unitary State (as in the then proposed Austrian federation). Because a federal-state is formed by the nation and not by the states, it was to be expected that such a system of government would involve a direct relationship between the federal-state and the people, secured through the proportional representation of citizens in the federal legislature and the execution of federal laws directly against individuals. But, according to Jellinek, there was no such necessity that the states in a federal-state be represented as such in the national legislature or have a direct say in the amendment of the constitution. It was only because a sovereign state has the capacity to bind itself by an act of its own will that Jellinek considered the terms of a federal constitution to be fixed and binding on the federal-state itself, guaranteeing to the constituent states the distribution of powers and other institutional structures and decision-making processes laid down in the constitution.
Unlike Bluntschli, therefore, Jellinek insisted that there is a radical difference between federations and confederations, based on the location of sovereignty in each kind of political system. For those Australians who wished to see a relatively nationalistic system of government established by the Australian Constitution, Jellinek offered an account which gave them reason to think that a true federation, in contrast to a confederation, will be conceptually grounded upon the sovereignty of the people of the entire nation. From this premise, those of strongly nationalistic temper argued that both houses of the federal legislature should be representative, not of the people of the states, but of the people of the Australian nation as a whole. Drawing, as will be seen, on Burgess's application of Jellinek's theory to the American experience, they argued that federal-states are distinguished from unitary states solely by the existence of a constitutional division of competencies between the central and regional governments, enforced by the courts. The ‘compromise’ reached at Philadelphia in 1787, in which the American states were represented in proportion to population in the House of Representatives while being equally represented in the Senate, was seen by Jellinek, Burgess and their followers to be fundamentally inconsistent with the basic idea of a federal-state. However, proponents of the Jellinek-Burgess view had to contend with the fact that, as Bluntschli had emphasized and others like Edward Freeman and James Bryce would repeat, federations, just like confederations, typically arise through a kind of federative covenant or Bund, and this historical origin of the system, both as a matter of juristic logic and political negotiation, would be taken to imply the need for both the peoples of the constituent states and the people of the federal-state as a whole to be separately represented in the federal legislature, as well as have a distinct say in any proposed amendment of the federal constitution.
III. NINETEENTH CENTURY ANGLOPHONE INTERPRETATIONS
Through the latter half of the 19th century there was a significant cross-fertilization of American and German constitutional ideas. The American Revolution in particular was a source of fascination for German writers.Footnote 69The Federalist and James Madison's Notes on Ancient and Modern Confederacies had discussed the Holy Roman Empire (relying, in part, on the observations of Montesquieu)Footnote 70 and The Federalist was in turn widely read on the European continent, although initially only in French translation.Footnote 71 Robert von Mohl published an appreciative compendium of American constitutional law in 1824.Footnote 72 Alexis de Tocqueville's De la démocratie en Amerique (1835, 1840) also did much to publicize the American model and enlarge its influence upon German and Swiss federal developments.Footnote 73 In 1854, Leopold von Ranke declared the American Revolution to ‘exceed in importance all earlier revolutions’ and to constitute ‘a complete turnover in principle’.Footnote 74 Ignaz Troxler influentially proposed that the Swiss federal system be revised along American lines,Footnote 75 an argument that influenced the shape of the revised Swiss Constitution of 1848. The failed German Constitution of 1849 as well as the successful Constitution of 1871 was to an extent also influenced by the American example.Footnote 76 Importantly, Georg Waitz in 1862 proposed a theory of the federal-state that drew heavily on Alexander Hamilton and Tocqueville,Footnote 77 while in 1873 Max von Seydel proposed an interpretation which followed that of John C Calhoun.Footnote 78 In light of the importance thus ascribed to American political history and American ideas, Bluntschli and Jellinek found it necessary and important to incorporate the United States Constitution within their theories. However, the German Staatslehre tradition represented by Bluntschli, Jellinek and other German scholars, was also itself remarkably well received in the United States, especially through the course of the second half of the 19th century.
A. John W Burgess
The reception of German Staatslehre in the United States was fostered by several leading political scientists and constitutional lawyers who had emigrated from or else studied in GermanyFootnote 79 and was further abetted, it seems, by certain underlying correspondences between German and American ideas about the fundamental nature of the ‘state’.Footnote 80 Francis Lieber, a Prussian émigré of nationalist and republican convictions, was perhaps the most prominent of the immigrant scholars,Footnote 81 but it was his disciple, John W Burgess, who had the greater influence on the Australians of the late 19th century. Although born in Tennessee in 1844, Burgess's loyalties were to the North, and he served in the Union army during the Civil War. Graduating in history at Amherst College in 1867, he then studied under several leading German scholars at the Universities of Göttingen, Leipzig and Berlin, bringing their ideas back to the United States upon his appointment as Professor of History, Political Science and International Law at Columbia University in 1876, a position which he held until his retirement in 1912.Footnote 82 Burgess's most important book, Political Science and Comparative Constitutional Law (1890),Footnote 83 was deeply influenced by Jellinek's theory of the nature of the state. Burgess's book in turn had a significant impact in its time, not only in the United States, but also in Australia, where it influenced several very prominent framers of the Australian Constitution, such as Isaac Isaacs, HB Higgins, John Quick and Robert Garran.Footnote 84 Although none of the Australians seems to have had direct access to Jellinek's writings, Burgess thus functioned as a very important conduit of Jellinek's ideas.Footnote 85
At the foundation of Burgess's political philosophy was the idea of the ‘nation’, which he defined as a ‘population of an ethnic unity, inhabiting a territory of a geographic unity’. The nation-state is ‘the strongest and most perfect form of modern political organisation’, he wrote. Within the context of modern international law, it embodies a balance between the despotism of ‘universal empire’ and the antagonisms of diverse communities. Internally, he argued, it strikes an appropriate balance between central and local government. Virtually every question concerning alternative systems of government, thought Burgess, springs out of the relations of ethnicity, geography and statehood. A coincidence of ethnicity and geography indicates that a simple consolidated state is appropriate; federalism is usually indicated where there is ethnic variety.Footnote 86
Repeating arguments of Bodin, Hobbes and Hegel, Burgess maintained that the state is an all-comprehensive, exclusive and sovereign organization. It embraces ‘all persons, natural or legal, and all associations of persons’. It does not recognize any ‘imperium in imperio’, for it possesses ‘original, absolute, unlimited, universal power’ over all individuals and associations within its territory. In its highest form, he said, the democratic state is ‘the people in political organization’, the ‘citizens in sovereign organization’, democratically embodied in ‘the sovereignty of the majority’. The state creates its government through a constitution, but—in this respect departing from Jellinek—Burgess said that the State is not itself subject to its constitution, for the State is necessarily sovereign in essence and unitary in form. Accordingly, for Burgess, a state may ‘constitute two or more governments’, but there cannot be two organizations of the state within the same territory. Here, following Jellinek's reasoning, Burgess thought that a confederation is in essence a union of sovereign states created by treaty, whereas a federation is a ‘dual system of government under a common sovereignty’. A federation may previously have been ‘divided into several independent states’ which now agree to form a kind of unified state. But, again following Jellinek, he held that the process by which federations come into being—as distinct from confederations—inevitably involves a revolutionary transfer of sovereignty from the many states to a single unitary state. Consequently, while the new sovereign state may allow a residue of powers to remain with the old governments, it will necessarily retain the sovereign capacity to make further alterations in that distribution of power.Footnote 87
Sovereignty was thus as central to Burgess's theory of federalism as it had been for Jellinek.Footnote 88 In particular, his conception of the necessarily sovereign state controlled the way in which he defined and understood the relationships between the formation of federal constitutions, the governing institutions adopted thereunder and their subsequent amendment. According to Burgess, these referred respectively to ‘the revolutionary organization of the state back of the constitution’, ‘the government created in the constitution’ and ‘the organization of the state within the constitution’. Drawing a distinction between the constitutional law of a state and the ‘historical and revolutionary forces’ that are meant to underlie its formation, Burgess held that the formal amending process adopted in a federal constitution can always be bypassed by an appeal to the ‘revolutionary organization of the state’. However, given his dogmatic insistence on a revolutionary transformation from a multiplicity of sovereigns to a unitary sovereignty—and not as Bund as Bluntschli had suggested—Burgess had some difficulty explaining several typical features of actual federal-states which others, like John C Calhoun and Max von Seydel, had identified.Footnote 89
For Burgess the American Constitution had been formed through a revolutionary repudiation of the Articles of Confederation achieved by the entire people of the United States, organized in the Philadelphia Convention. Burgess argued that this gave effect to the political principle that ‘the undoubted majority of the political people of any natural political unity possess the sovereign constituting power, and may … act for the whole people’. However, Burgess could not, as a consequence, explain the governmental structures or amending processes provided for by the American Constitution. Under the Constitution, the Senate is composed of an equal number of senators for each American state; the amending formula requires the initiative to be taken by two-thirds of both houses or the legislatures of two-thirds of the states, as well as ratification by conventions or the legislatures of three-fourths of the states, and it prevents amendments to the representation of the states in the Senate without their individual consent. In the face of these institutional details, Burgess had to concede that ‘we become confused … as to whether the sovereignty is in the United States or in the commonwealths [ie, the several states]’. The premise of an undivided, unitary sovereignty brought about this dilemma; the conclusion that the people as a whole were sovereign was more dogmatic than scientific. Glaring anomalies, such as the Senate and the amending formula, had therefore to be dismissed as ‘relic[s] of confederatism’, and undemocratic ‘error[s]’.Footnote 90 Nor could Burgess's national principle account for the fact that separate ratifying conventions were held in each of the constituent states.Footnote 91 Features such as these made no sense because Burgess, like Jellinek, radically rejected the idea of the federal-state as a kind of Bund, as Bluntschli had put it. But the anomalies for his theory were there, and Burgess was forced to fall back on the argument that, although the United States Constitution appeared to derive its legitimating force from the ratifying conventions held in the several American states, the national interpretation that it rested ultimately upon the people of the nation as a whole was vindicated by the military imposition of Reconstruction amendments after the Civil War.Footnote 92
As a proponent of the Unionist interpretation of the United States Constitution, Burgess was cited by those Australians who wished to see a strongly centralized federal government established in their country. More explicitly than even Jellinek before him, Burgess advanced a highly centralized and nationalistic account of the American federal system which was used by several of the Australians to support the idea that sovereignty ought to be vested in the people of Australia as a whole and that the design of the Constitution ought to reflect that idea. However, these views were met by those who, drawing upon Bluntschli, Freeman and others, pointed out that a federation of the Australian colonies would have to secure the support of each of the constituent colonies, and that the peoples and representatives of those colonies (now states) would legitimately expect to be represented within the decision-making institutions of the federal government.
B. Edward Freeman
Edward Freeman, who held the Regius Chair of Modern History at Oxford University between 1884 and 1892, profoundly shaped late 19th century conceptions of federalism.Footnote 93 His History of Federal Government in Greece and Italy, first published in 1863, with a second edition in 1893,Footnote 94 has been called the ‘classic 19th century exposition’ of ancient Greek and Roman ‘federalism’.Footnote 95 As an historian situated firmly within the British empirical tradition, Freeman adopted an approach to the conceptualization of federalism that was significantly more pragmatic and historical than that of Burgess and others influenced by German Staatslehre. However, Freeman was also a enthusiast for the comparative method,Footnote 96 and drew occasionally upon German scholarship, in particular Bluntschli's Geschichte des schweizerischen Bundesrechtes. Although the Australians of the late 19th century had direct access to Bluntschli's thought through the English translation of his Allgemeines Staatsrecht, Freeman offered an additional and important conduit for the dissemination of Bluntschli's ideas. Freeman in turn had a profound influence on a significant number of the framers of the Australian Constitution, including Andrew Inglis Clark, Thomas Just, John Cockburn, John Quick and Edmund Barton.Footnote 97
Freeman's working definition of ‘federal government’, like Bluntschli's category of the Bund, was considerably broader than the definitions of Jellinek and Burgess.Footnote 98 For Freeman, federalism is a ‘compromise between two opposite political systems’ or ‘two widely distant extremes’; it is a ‘union of component members’, more than an alliance, less than a consolidated state. In its ‘perfect form’, said Freeman, the component ‘members’ will be ‘wholly independent’ or ‘sovereign’ in the ‘sphere’ which concerns them alone, but ‘subject to a common power in those matters which concern the whole body of members collectively’. And ‘this complete division of sovereignty [is] essential’, Freeman said, ‘to the absolute perfection of the Federal ideal.’Footnote 99 Further, importantly, Freeman considered that a federal system, if it was ‘to be of any value’, must arise out of the union of independent states, rather than the division of a united territory.Footnote 100 Thus, while Freeman accepted that a ‘federal government’ will involve a ‘division of powers’ between the federation and the states, the idea that a genuinely federal system comes into being through an agreement among constituent states remained central to his account.
Citing Bluntschli on this point, Freeman accordingly subcategorized the different kinds of federal system in terms of their treatment of federal executive power, rather than in terms of the location of sovereignty.Footnote 101 In a ‘system of confederated states’, he explained, the ‘federal power’ represents and applies only to the governments of the member states, whereas in a ‘composite state’ or ‘supreme federal government’, the government of the federation both represents and acts directly upon individual citizens. According to Freeman, the United States under the Articles of Confederation had been a system of confederated states (Staatenbund); under the Constitution, it became a composite state (Bundesstaat); yet under both it possessed a ‘real federal government’.Footnote 102 Freeman's definition of ‘federal government’, like Bluntschli's theory of the Bund, thus did not exclude ‘confederation’—unlike the more extreme nationalist interpretations expounded by Jellinek and Burgess.Footnote 103
Freeman's historical research on the nature and development of the federal idea was highly influential in Australia for several reasons. First, he reinforced a belief in the ‘federal ideal’.Footnote 104 He described federal government as ‘a delicate and artificial structure’ and ‘a late growth of a very high state of political culture’, and his influential expression of this ‘ideal’ stimulated the Australian captivation with the notion of an ideal federal government, which they thought exemplified in the United States and Switzerland. Under Freeman's influence, the Australian framers were concerned to construct a constitution in which an appropriate ‘balance’ between central and state power was achieved, avoiding the ‘less perfect’ embodiment of that ideal in Canada, Germany and the Netherlands.
Second, federalism was for Freeman a way in which the modern imperative of national statehood could be reconciled with the ancient ideal of local self-government.Footnote 105 Freeman's ideals were the city-states of Ancient Greece and the Free Cities of the Holy Roman Empire. Indeed, in true Whiggish style he found living relics of these institutions in the Landesgemeinden of Uri and Appenzel in Switzerland, the parish vestries of the English shires and the town governments of New England.Footnote 106 Freeman's nostalgia for small-scale participatory democracy, combined nonetheless with his recognition of the ‘necessities’ of the modern nation-state,Footnote 107 reinforced in his Antipodean readers a determination to create a federal system that would allow the people of each Australian colony to continue to participate in their own self-government, while enabling the Australian people as a whole to govern themselves on a continental scale without having to rely upon the intervention of the British colonial office.
Third, Freeman drew the attention of his readers to many diverse examples of federalism, as well as to older understandings of the idea. Freeman's wider genus of ‘federal government’ included ‘confederal’ arrangements, such as the ancient Achaean League, the more recent United Provinces of the Dutch Republic, the United States Articles of Confederation and the secessionist Confederate States of America, as well as the strictly ‘federal’ arrangements represented by the American and Swiss Constitutions.Footnote 108 By thus expanding the genus (‘federal government’) and identifying two separate species (‘confederation’ and ‘federation’), he like Bluntschli underscored the continuities between federation and confederation, continuities which make it much easier to think of a federation or Bundesstaat as something which, like a confederation or Staatenbund, comes about through an agreement among states, rather than through a revolutionary assertion of national sovereignty, as Jellinek and Burgess had argued.
IV. AUSTRALIAN APPROPRIATIONS
To what extent did German federal ideas have an influence in Australia? What use did the Australians make of the theories of federalism advanced by Jellinek and Burgess on one hand and Bluntschli and Freeman on the other? To which specific issues of constitutional design were their theories especially relevant and, in respect of each issue, which view tended to prevail?
As a model federal system, the German Imperial Constitution of 1871 was only marginally influential in Australia, clearly surpassed, it was generally thought, by the constitutions of the United States, Switzerland and, to a lesser extent, Canada.Footnote 109 Richard Baker seemed to express the views of most of the Australians when he observed in 1897 that the ‘true line of federation’ involves an ‘equilibrium’ between ‘centralisation and decentralisation’, which was maintained in the United States and Switzerland, but had been distorted by a ‘strong national force’ in Canada and by a ‘strong local force’ in Germany.Footnote 110 At the same time, the Australians were conscious that Prussia had dominated the German Imperial Constitution and a majority of them wished to maintain the principle, contrary to the German example, of the equality of each of the constituent states.Footnote 111 The only clear example of a specific textual influence of the German Constitution in Australia was the inclusion, against the American and Canadian precedents, of a federal power over ‘invalid and old-age pensions’.Footnote 112
The influence of German federal theory was much more significant. In particular, the theories of Jellinek and Burgess were of exceptional importance for two liberal democrats from Victoria, Isaac Isaacs and Henry Bournes Higgins.Footnote 113 Higgins, for example, believed that in every political society there must be a particular institution or body in which ‘ultimate sovereignty’ is located, and that in Australia sovereignty in its ‘practical’ expression ought to be located in the Australian people.Footnote 114 Adopting a similar view, and citing Burgess to this effect, Isaacs argued that the Australian Constitution ought to be conceived as emanating from the people of Australia as a whole, and the only respect in which the Constitution should be ‘federal’ is that it ought to provide for a division of powers or competencies between the federal and state governments.Footnote 115 Accordingly, Higgins and Isaacs argued, the people of the nation, lying behind the Constitution, should be fully represented in the national institutions of government, and if there were to be two houses of the federal legislature, both ought to be representative of the people of the nation as a whole.Footnote 116 Alternatively, if it had to be conceded that the Senate was to be somehow representative of the states,Footnote 117 then the powers of the Senate should be strictly limited so as to enable the House of Representatives, representative of the entire nation, to have a final determinative say in case of any disagreement between the houses.Footnote 118 Relatedly, Isaacs and Higgins vigorously advocated the adoption of a system of parliamentary responsible government along traditional Westminster lines because it would make the House of Representatives the chamber in which governments would be formed; and in order to ensure that this was the case, they argued that the power of the Senate over financial bills ought be highly restricted if not eliminated altogether.Footnote 119 Finally, and again citing Burgess to this effect, they thought that any procedure for the future amendment of the Constitution ought to place final determinative control in the hands of the people of the nation as a whole, whether directly by a national plebiscite, or indirectly through a national convention or a special procedure within the national Parliament.Footnote 120
This picture of what the Australian Commonwealth might become was contradicted, however, by two simple facts. The first was that, contrary to the theory advanced by Jellinek and Burgess, the Australian Constitution was being formed through a process in which each of the constituent colony-states entered the federation negotiations as an equal, each sending its own delegates to the federal conventionsFootnote 121 and in which the Constitution was finally approved by the voters of each colony, such that no colony was forced to enter the federation without its consent. This fact of inter-colonial negotiation and agreement belied the abstract theory that the federation be conceived as emanating from the people of the nation as a whole.Footnote 122 It was true that the federal agreement was not simply negotiated by the executive governments of each colony and was therefore in this respect unlike an ordinary international treaty. However, the initiative towards federation still had to be taken by the executive governments of each colony, and those governments and their respective legislatures agreed to a federating process which involved the elements just mentioned.Footnote 123
The second important fact was that among those who drafted the Australian Constitution very few wanted to create a nationalistic federal system along the lines advanced by Isaacs and Higgins, sustained as it was by the theories of Jellinek, Burgess and others.Footnote 124 By far the majority of the Australians saw themselves either as representing the interests of their respective colonies or, in more principled terms, as advocating the view that it was appropriate that the federation be based on the consent of the people of the several colonies and that the drafting of the Constitution should properly take into account the rights and interests of both the separate peoples of each constituent Australian state, as well as the rights and interests of the people of the entire federation which they hoped might come into being as a result of their labours.Footnote 125 On this view, the objective was to create a ‘federal commonwealth’Footnote 126 or, to use the phrase coined by James Bryce, a ‘commonwealth of commonwealths’,Footnote 127 by which they meant a commonwealth originally constructed out of commonwealths, as well as a commonwealth composed of several constituent commonwealths in an ongoing sense. On this view, following Bluntschli and Freeman, the distance between a federation and confederation was not so great, and it followed that the structure of the federal system of government should reflect the kinds of features that federations and confederations have in common.
Thus adapting the American and Swiss examples to their own purposes, a majority of the Australians believed that the peoples of the states should be equally represented in the Senate, that the people of the entire nation should be represented in the House of Representatives and that the two houses should possess virtually equal powers.Footnote 128 For them, the difference between a federation and a confederation lay in the nature and scope of the centralized institutions of government in each system. Virtually all of the framers wished to create a ‘federal government’ in what they understood to be the fullest sense of the word.Footnote 129 Citing Bluntschli and Freeman on this point, highly influential figures such as Samuel Griffith and Richard Baker considered that this was one in which the central organs of government, though in part composed of representatives of the constituent states, would have independent powers of legislation, administration and adjudication directly applied to the population without needing to rely on the states to enforce federal law and policy.Footnote 130 Moreover, because they did not understand the federation to be grounded upon the people of the nation as a whole, the Australians agreed upon a amendment procedure in which a majority of voters in the nation as well as a majority of voters in a majority of states would have to agree to any proposed constitutional alteration. Inspired by the American and Swiss examples, they even provided that the boundaries of each state, as well as its representation within the federal parliament, could not be altered without the consent of the people of that state.Footnote 131
In these respects, fundamental to the Constitution, the vast majority of the Australian framers settled upon the creation of a ‘federal commonwealth’ very much in the image in which Bluntschli, Freeman and others (such as James Bryce) had envisaged it. The only major sticking point concerned the composition of the executive government and, in particular, the precise shape that would be given to the system of parliamentary responsible government provided for in the Constitution. As noted, parliamentary responsible government very substantially depends on the powers over financial bills formally possessed by the two houses of the parliament, as the control over government finance is the constitutional foundation of parliamentary control over the executive. In this respect, since a majority of the framers expressed the desire to see a system of parliamentary responsible government develop at a federal level, they decided, after long debate, to give the House of Representatives sole control over the initiation and amendment of financial bills—that is, control over the formation of government policies and priorities as reflected in the annual budget. But they deliberately reserved to the Senate the power to refuse to pass financial bills, meaning the power to bring a government to its knees.Footnote 132
In these ways, the framers of the Australian Constitution devised a federal structure of government reflecting a theory of the federal-state that can ultimately be traced to the views of Johann Bluntschli and Edward Freeman, as distinct from those of Georg Jellinek and John W Burgess. On the Bluntschli-Freeman theory, both confederations and federations come into being through processes which resemble an agreement between (the peoples of) independent states. The difference between a Staatenbund and a Bundesstaat lies not in the location of sovereignty, but only in the precise scope of the executive and legislative powers conferred upon the federal organs of government. Relying upon and advocating such a conception of a genuinely ‘federal government’, the framers of the Australian Constitution drafted a document which provided for a ‘commonwealth of commonwealths’, conceived especially in terms of its formative processes, representative institutions, configurations of power and amendment procedures.Footnote 133
V. CONCLUSION
As noted at the outset, the reception of German state-theory by the Australians of the late 19th century is a striking illustration of the transmissibility of constitutional ideas across two legal cultures generally thought to be of very different provenance. Certainly, the context in which the ideas of Bluntschli and Jellinek were developed was very different to that of the Australian colonies, and so the transplantation of these ideas produced hybrids. However, when examined closely, the basic principles and values at work in both contexts were discernibly similar and remain capable therefore of meaningful comparison. Institutionally, both the Imperial German Constitution and the Australian Constitution were in formal terms negotiated and agreed to by the representatives of several constituent states. Despite the important differences involved, both systems of government possessed the kinds of characteristics that made them liable to be understood in ‘federal’ terms. But here, the theories of Bluntschli and Freeman, although less complex and perhaps less sophisticated than those of Jellinek and Burgess, were more capable of being adapted to Australian circumstances. This was because the Australian federation came into being through processes that were ‘federal’ in the original sense of the word,Footnote 134 and thus derived from a freely-negotiated agreement between constituent states. The Commonwealth of Australia accordingly emerged as a federation, not in the sense of Jellinek's Bundesstaat or Burgess's nationalist conception of the federal-state, but as a Bundesstaat in Bluntschli's sense, a kind of Bund or covenant between states. Bluntschli's conception was in this respect more flexible and more applicable to the circumstances of the Australian colonies in the late 19th century, as well as more in tune with the ambitions and convictions of a majority of the Australian framers.
The transmission of constitutional ideas from Germany to Australia thus depended significantly upon their adaptability and appropriateness to the circumstances of their new home. While the divergent aspirations for Australian federalism exemplified by Isaacs and Higgins on the one hand and Griffith and Baker on the other would still have existed without the Germans and their British and American interpreters, German Staatslehre contributed an additional rigour to the underlying conceptions of federalism that divided the two groups. For the Australian framers as a whole, the formation of the federation was an act of both idealistic political imagining and pragmatic political negotiation, and German state-theory contributed significantly to the conceptual world in which this occurred. The theory was adapted by the Australians to their own purposes, but in the process of adaptation it shaped their debates and deliberations in important ways. It provided ammunition for their arguments and reinforced their preconceived ideas, but it also influenced the way they thought about the issues. German state-theory proved itself adaptable because the conditions in which it had developed and the issues to which it was directed were comparable to those in Australia. But among the German theories on offer the approaches of Bluntschli and Freeman were more in tune with the views of a majority of the Australians and more in line with the conditions under which the Australian Constitution came into being, and so it was these theories that had the more decisive influence. The Australian adaptation of German state-theory thus illustrates the dynamic way in which legal and political ideas can migrate from one jurisdiction and context to another. This transmission demonstrates not only the possibility of comparative constitutional law, but also its limitations. It suggests that comparative law is neither a matter simply of abstract universality, nor of exclusive particularity, but of somehow both at the same time.
