1
IXth World Congress of the IACL
Oslo, Norway, 16-20 June 2014
Workshop No 15. The mutations and transformation of separation of powers: the constitutional
organization
Zvonimir Lauc 1
Republic of Croatia
The vertical separation of powers
I.
Introduction
Why did I choose to address this topic at this conference?
Not every generation of constitution makers has the privilege to actually create constitutional
documents and thus to contribute to constitutional engineering. After the 1989 fall of the Berlin
Wall, our generation (particularly in Central and South Europe) has received this opportunity.
Practical and theoretical aspects of Constitutional Law in the world, and Europe in particular,
especially transition countries, are in a significant correlation with crucial changes. We live in times of
significant changes. Some call it the “Information Age” (Alvin Toffler), some the “Digital Age”
(Nicholas Negroponte), some the “Global Age” (Kenichi Ohmae), or the “Age of Paradox” (Charles
Exibition), while the titles “Knowledge Age” or “Learning organization” (Senge) are used more and
more frequently. One could say that we live in a networked society, which requires a rethinking and
redefining of the history, the present and the future.
Thus the changes may be classified as: (i) the process of globalization; (ii) the processes of
differentiation and integration; (iii) the process of transition. (Lauc 2011)
The most important problem in the world is lack of development. Long time ago the main question
was how to find optimal correlation between efficiency (economic growth and development) and
democracy (protection of human rights; rule of law). Focus is on specific constitution framing of the
social state and its constitutive elements in "normal" periods and in periods of crisis. That is very
important, especially in Copernican "transition" of post-communist countries. One must admit that at
the time of transition, all of us justifiably had too high expectations and aspirations, but the new
circumstances proved that it was the story of expectations unmet.
We are witnessing of the disintegration of integral states into independent parts, as well as of
integrating the parts into a new whole. We are interested in high-quality separation of powers
(horizontal and vertical), which is a condition sine qua non a democratic constitutional democracy
and the rule of law. As participants in these processes of disintegration (e.g. the disintegration of
Yugoslavia) and integration (Republic of Croatia as a member of the NATO and the EU), we are
searching for answers about multilevel government, which has its origin in the principle of
subsidiarity, and this design known as constitutional engineering (Sartori) should serve as "checks
and balances" to the centralization and globalization in general. Particular attention will be focused
to the vertical separation of power through the second degree of territorial organization,
recognizably known as region and regionalization.
1
Zvonimir Lauc is professor of Constitutional law on the JJosip Juraj Strossmayer University Faculty of Law Osijek.
2
It is this current state of the on-going world crisis and the search for a new world order that requires
- beyond any doubt - finding answers to some new /old constitutional issues. This is because all
crucial changes have an epilogue in the specific constitutional arrangements.
We have been interested in a quality social development, the entire box set, and the constitutions, as
providing a stable and just social order through the protection of social rights, and the need for
economic growth, especially in times of economic crisis, in the context of a democratic political
system and ecologically clean environment. It is, therefore, important to have a complete reflection,
particularly on following relations: capitalism vs. democracy; liberal capitalism vs. corporate
capitalism; representative democracy vs. participatory/deliberative democracy, as well as
globalization vs. localization (decentralization); efficiency vs. democracy, autopoietic vs. alopoietic
access, and relations: morality - legitimacy – legality (Here, by „vs.“ it is not meant exclusion but
correlation).
All of this requires the involvement of many - economists, politicians, and especially
constitutionalists. 2
II.
Strategy of social development
Some answers can be found in the EU document Communication from the Commission, EUROPE
2020 - A strategy for smart, sustainable and inclusive growth: "We need a strategy to help us come
out stronger from the crisis and turn the EU into a smart, sustainable and inclusive economy
delivering high levels of employment, productivity and social cohesion". Today Europe in its
constitutional engineering seeks the communion whose goal is to be the closest community for the
people of Europe, and whose intention is to promote economic and social progress with a balanced
and sustainable development. Within such a disposition a constituens is a “citizen” of Europe, which
means individuals sharing the common values, developing the feeling of belonging to mutual social
and cultural milieu. In other words, the imperative is the opening of the process of providing for the
European level of living (in resolving problems, in the area of work, culture, tolerance) up to the
individual demands for more qualitative life of the new information age. Subjects are citizens,
families, institutions on economic, social and the political levels. A precondition of all of this is the
finding of qualitative rules of the game (good governance). Those rules should ensure the
realization of as wide as possible individual and common liberties, of co-deciding and of social justice
for all. An ideal goal would be ensuring the equal opportunity for everyone to realize his desires and
to become a free creative being in accord with his abilities, affinities, skills and motives, to be able to
contribute to the happiness of his own and of his people, of the community in general.
Multiculturalism is a normal condition of the world. Real homogenization is an exception. On one
hand we are witnesses of the search for the bigger and bigger integrations (economic and political),
where individual parts keep joining up, while on the other simultaneously the differentiation is a
reality, in which entities disintegrate into composite parts. 3 Differentiation and integration
particularly refer to administrative-territorial aspect about multi-level governance, with growing use
of the principle of subsidiarity, but also of other principles such as proportionality, solidarity,
equalization and similar ones. Every integration raises a question of form, like whether strong
subjectivities will remain over the parts entering the unity, or the unity will present the main entity,
with its parts becoming more peripheral. The most important question here, one might say, is: where
does the differentiation end and how to execute the integration?
2
Natural and engineering sciences with impact factor are universal and global. Social sciences, which deal with issues of national character,
have just a strong impact in locally.
3
The actuality of differentiation and integration is almost daily. For example referendums in the Republic of Venice, Veneto; Crimea,
Russia; Spain and the Basque Country; Scotland and the United Kingdom, etc.
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Final transition is immanent to every society. It is especially accented when there is a Copernican
twist of the regimes (economic, political, social and legal), which is the case with post socialist
environments. At that one should be cautioned about blunt negation of the past, which leads to
another extreme. There is too little of negating the negations. Constant interdependence of the
“old” and the “new” (this is not a positive/negative notion indicator) is present, which should be
realized as the law of the “negation of the negation” (Hegel), that is as a “replacement of the
replacement” (Forester). In other words, a system must have at its disposition encoded differences
between “yes” and “no”, and it is desirable that it is always possible to “negate again” the constant
collateral circumstances, to constantly include the negations within itself (Luhmann 2004). Juridical
code of legal and illegal is a transformation of moral and legal into a “yes” and immoral and illegal
into a “no”. All of the post-socialist countries encounter more or less the same dilemmas, with
similar contaminations, and with identical aspirations. So we are witnesses and participants in the
obtaining of normative and real solutions suffering from “child diseases”. Laws were brought under
the principle “the will of all” (volonté de tu), not “the general will“(volonté general) (Rousseau). In
other words, the law must rest on morality. In that way morality is not above the law, it enters the
law, but does not get dissolved in it.
After the symbolic fall of the Berlin Wall (1989), the collapse of the constitutional choice ideology and
reality (West-East) remained the only option: ideology - liberal capitalism with its constitutional
institutional design - where human rights and fundamental freedoms are "inalienable", and it is the
legitimate authority which should guarantee their realization on the principle of separation of
powers known as "checks and balances." It is, therefore, not surprising that the constitutions of postcommunist countries choose identical constitutional design, abandoning the semantic constitutions
while drafting constitutions that are of the nominal range realization, in the hope that those nominal
constitutions will "win" the attribution of normative (Loewenstein). The crucial appearance of postcommunist time is the contamination with the so-called inaugural effect, 4 and the negation of
everything that came before, without the negation of negation (renegation). Today - twenty five
years after - the circumstances have significantly changed (clausula rebus sic stantibus) in terms of
corporate capitalism ("wild capitalism"), dominated by an oligarchy of illegitimate operators, where
democracy is completely ignored. We believe that this is a consequence of neglecting the necessity
of mutual cooperation and control of all relevant state entities the society (constitutional theory
and practice).
Answers to the recession, debt crisis, unemployment, or everything else produced by corporate
capitalism, can only be found in the theory and practice of constitutionalism. In other words, it is
necessary to redefine the constitutional concepts such as the idea of personal liberty and inalienable
rights, the idea of separation of powers, rule of law, legitimate and legal authority - recognized as a
good rule of the premises to stop the wild capitalism.
Thus, the social development must be approached in the holistic manner, taking into account
maximization of efficiency and maximization of democracy. We consider as highly desirable to affirm
the self-organization theory and the theory of autopoiesis, which are compatible with the new
constitutionalism.
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The biggest contamination which happened on behalf of that regime can bring us under the inaugural effect, which means that everything
is being done “from the top” (top-down?) i.e. from the state, political party or the leader… That approach and ambience bring a lack of an
ability to believe in the human being as individual, because it is „the collective“ that dominates, and individual emotions, motivation,
intellectual and esthetical capacities are repressed. In other words, one should be loyal, quiet, without any aspiration to be different, and so
on; he should be a conformist and use that strategy for keeping his position. This is diametrically different from liberal capitalistic theory and
praxis. Finally, this is the problem of present time in the countries that could be qualified as a part of transition corpus, so called postcommunist countries.
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Therefore, we are searching for the “constitution maker’s” visions – which is the final goal (the
teleological aspect), but we are also searching for the missions – for the how. Which constitutional
engineering is offered as the optimal one? Optimum is a measure, i.e. equilibrium (Hegel), and that
signifies both acumen and aptitude to wholesomely project the social development on the basis of
the constitutional choice.
In the end, according to our opinion, final solution to the current situation is in finding out a
synergistic equilibrium between efficiency and democracy!
In the Capitalism - the most important thing is financial capital, followed by physical and social, then
by intellectual and the moral capital. My plea is just opposite: the order should be reverse!
III.
About the state
The most widespread definition of the state is reduced to its area, population and the organized
state power. Man as a member of the human race since time immemorial tied to territory, land, soil.
Territorial government relies on the ancestral organized society, first in ancient cities, and later in
the states of the old civilizations, especially in the valleys of large river basins. Later the affirmation of
territorial secular statehood continued to the creation of nation-states. The most common conflicts
happened because of the territory, including our most recent history, which was marked with similar
events. Finally, the Europe’s state borders are the result of a large-scale conflict (wars) and peace
conferences, in which state borders were still tailored based on the relationship the winner / the
defeated. Present and future "tailoring" of Europe has a chance to correct this historical injustice.
One possible idea is to gather around the region and regionalization of Europe, as a not radical
establishment of new borders that would overcome existing barriers to the free flow of people,
ideas, goods, services, capital, etc. This does not mean losing the identity of individuals and their
associations, but rather their mutual affirmation in the winner-and- winner-relation. So today we will
be increasingly talking about the separation of powers.
Population is the common denominator for people who live in the same area. The most important is
the historical transformation of the population status of the disenfranchised subjects to the citizens
as subjects with their freedoms, rights, duties and responsibilities. In the political theory there is a
clear distinction between governors and the governed. The real question is the relationship between
the individual and the state.
The state is considered as a sort of organization, indicating that it is a collection of people who
achieve certain goals and establish certain mutual relations in their work and life in general by
applying certain methods of operation. The next step refers to the notion of the state as an organized
system. This approach examines the emergence of self-organization, especially in the so-called
reflective systems in which the crucial role belongs to human consciousness, to the assumptions of
autopoiesis, that is to assume that certain systems, based on the information, can make effect by
their component parts to produce these parts and the whole system (Luhmann 2004). The latest
knowledge looks at the organization as a biological structure undergoing the laws of evolution.
However, the government certainly belongs to the most complex organizational structures.
State as an institution is such a social structure in which people perceive the behaviour of
participants in the institutional scenario as normatively required. In this way, uncertainty is
significantly reduced, which entails a significant dose of predictable behaviour. The aim of the
institution in general, and then specifically of the state, is to create stability, predictability and
security. The question is: HOW?
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Regulation by norms is inherent in the state, where regulations guarantee probability of coercion
(physical or psychological). History has produced a series of solutions that reduce the monopoly,
which limits the force. This relates to the separation of powers, the introduction of Representative
assembly as the supreme decision-making body of the state, strengthening the government in the
lower /narrower territorial communities. There is also the emergence of political parties, diverse
institutions in the public sector, various agencies, the NGOs, etc. In addition, there is the protection
of fundamental human rights and freedoms. Conditions have been created for supranational
associations to relativize the absolute supremacy of the state in its area, which is particularly
observable in Europe today. Today we are witnessing of polycentric and decentralized regulation.
IV.
The man in focus
The fundamental problem of political system is to find acceptance for exercising the governing
authority that runs counter to the interests or preferences of the governed (Luhmann 1969)
The goal of every democratic community is the realization of as large as possible individual and
common freedom, of co-deciding and of social justice for all. In that regard the goal is securing the
equal opportunities for everyone to realize one’s desires in accord with one’s abilities, affinities, skills
and motives, and to become a free creative being, capable of creating one’s own happiness and the
happiness of the people, that is of the community in general. Therefore it is no wonder that the
dignity of a person is an origin of constitutional solutions. It includes person’s abilities to become
aware of himself/herself through the power of his/her spirit and, within one’s own responsibility, to
freely and responsibly shape both himself herself and the environment he or she lives in. We define
personal freedom as freedom to feel, freedom to think, freedom to speak and write and freedom to
act.
The general hypothesis for understanding of human development is that a free and creative person
thinks as s/he feels, communicates as s/he thinks, and does as s/he says. Crucial is transformation
of feeling in thinking, thinking in communication, and communication in deeds.
This can be argued by the constitutional credo, where it is defined who is the primus and who are
derivatives. So the goal and the purpose of every human development is THE MAN (citizen) with his
inalienable rights and freedoms, whereas the elected government has a mission to promote and
preserve them (Declaration of Independence 1776). The entire history can be reduced to the
conquest of freedom: the first individual was free, then some of them were free and then there was
a chance for everyone to be free (Hegel). The necessity of institutional design has produced many
universal models, which are still in practice, but always depending on specific circumstances.
V.
The principle of separation of powers
The point of the principle of the separation of powers is not an organizational or functional
separation of the three basic branches of government that should, as it is often misinterpreted,
function independently of each other. Such separation is not only imposed to be implemented, it is
very deliberate and also has a disastrous effect on the unity of the legal system and the efficiency of
government. Contrary to such ideas, the objective of applying the separation of powers is to
organizationally enable the existence of mutual checks and balances between the holders of the
highest functions. Along with a horizontal dimension, whereby the relations between the legislative,
the executive and the judicial branches are constituted, the separation of powers also has its vertical
dimension in the relations between central government and the local government, based on the
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constitutional separation of powers pursuant to the principle of constitutionally guaranteed right to
local self-government. (Smerdel 2010) Understood the separation of government is, in the
framework of a democratic political system , the most efficient in practice democratic governments
approved , a means of preventing concentration and personalization of power . All types and forms
of government must cooperate with each other, they must co-decide and be mutually checked.
The most important thing is overcomes devise and practice at the local level of social organization. It
is widely known that the national territory is divided into narrower territorial units. The relationship
between higher / lower and wider / narrower territorial units is regulated by the constitution and the
law. There are three types of such relationships :
• Dispersion (de-concentration) is a system in which the local (territorial) ) authorities transferred a
certain set of powers , which are carried out in accordance with the instructions and under the full
control of the central government. This organization emphasizes the high degree of supremacy of the
central government, and lack of independence and dependence of local authorities.
• Decentralization is a relationship in which the local (local) authority is transferred to a specific
scope of work, in accordance with the constitution and the law, where they are free of obligation of
compliance and the right to supervision, compliance with which belongs to the central government.
Supervision is limited to the control of legality of local (local) authorities, and not the correctness of
the decision in the framework of entrusted tasks.
• Local government. The most important thing is to define the terms so we can understand what the
specific term implies. The concept of local self-government should be distinguished from the concept
of local government (French: administration locale, Italian - admministrazione locale , German kommunale Verwaltung , Spanish - administracion communal ) .
VI.
Principle of subsidiarity
For localization, the most important is the principle of subsidiarity. Briefly, this principle has been
characterized as “a great evil and injustice disturbance of right order, when higher and higher
community appropriates itself functions which can be successfully carried out, and by the smaller
communities." Talking about social issues, encyclical says: "As history abundantly proves, it is true
that, because of changed circumstances, many things that have made small associations in former
times now could not be made , except by large. (Encyclical of Pope Pius XI. Anno Quadragesimo
1931)
Each level of decision making has its reason d' etre. So you need to decide on the places, by their
nature, where they will be most effective and democratic decisions to make. Subsidiarity is the key to
the well-being of citizens. It serves the assessment of the role of local and regional authorities in the
field of economic development and ways of disposal and use of resources in order to ensure
economic development. It is time to overcome unemployment, as well as the problems concerning
energy, security and immigration. The principle of subsidiarity should be followed in self -affirming
and practicing the principle of solidarity and the principle of cooperation.
Each community must take into account the legitimacy and legality of the same. Legitimacy is trust
that they give each other in the name and for the account of their performing certain tasks. It is a
kind of contract between the proxy and plenipotentiary. Legality means that every activity should be
carried out in accordance with the constitution and the law, both in material (the content) and
formal (formative) terms.
Three component parts that make up the whole of this principle are:
(i) The individual is the centre of social organization. On the basis of this principle the right to
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individual freedom is strongly expressed and the obligation of the society is not to limit it, but to
support it. Therefore, it is wrong to deprive the individual and the wider community of what he, as a
private person taking or trying to accomplish is able to successfully perform;
(ii) Lesser communities (and thus closer to the individual) have the advantage of performing tasks
that can be more successfully carried out in relation to the higher-level units;
(iii) Every social interventions by higher levels of government should be directed to help an
individual or a lower level community in performing their tasks.
Vertical division of power is possible only if the true decentralization flows simultaneously with
devolution. Decentralization can be based on two alternative theoretical models, each expressing
different philosophies of state building:
1. According to classical conservative ideology of the 19th century, it is a top-down approach that
looks at local and regional level of governance as derived from the central government , which enjoy
autonomy they were awarded by the state with the purpose of representation and the
implementation of the state interests at the local level.
2. A liberal theory of management approach is based on a bottom-up philosophy by which
government originally belongs to the local and regional community and all levels of government are
derived from them.
How to build a modern state: ba top –down model or bottom-up model
The World Bank has begun focusing more attention on decentralization relying on the research and
to this end it has formed the World Bank Decentralization Thematic Team. In this process, then the
"hold in" and other world organizations - UNDP, FAO and others. They have established a
"knowledge network " within which they exchange research results , but by means of the Internet
thy made it available to all interested theoreticians and practitioners . Developed and advisory and
"advisory" (policy advice ) activity directed toward countries that are seeking support from the
world's most important financial institutions . It provides financial and technical assistance to these
countries taking part in the study and analysis of these issues and to build a suitable model. So the
World Bank has begun to support and often to recommend decentralization as a development
model. Numerous annual reports as World Development Report contain these orientations. Today,
the World Bank, and other international institutions have their own research teams facing
decentralization.
Multi-level government (MLG)
VII.
Europe and the whole world are faced with the necessity of reforming the institutions with the aim
of acceleration and better decision-making process, their greater efficiency and democracy. This can
be reduced to create a government (at all levels) that willbe better (more efficient and democratic)
that will work more but cost less, that will take care of a balanced budget.
A good example of this is the EU. Looking at the establishment of the Coal and Steel Community,
then the European Economic Community and the European Union, one can analyze the choice of
institutional arrangements which take into account the efficiency and democratic system. It was
always some kind of networking on the "Network Europe". In other words, it can always serve as a
reflection ofmultilevel governance, with all levels of governance shaping, proposing, implementing
and monitoring policy together (Prodi). Networking is considered as one of essential conditions for
greater democracy, transparency, coherency and efficiency in decision-making and implementation.
The evolution of the EU has been dependent upon intergovernmental action, as individual states
have become unable or unwilling to perform their traditional regulatory and distributional roles and
have transferred them upward to supranational institutions. This is reflected in the expansion of EU
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competences and the blurring of national and EU policy domains (Schmitter 1996). At the same time,
in accordance with the principle of subsidiarity, there has been growing pressure from below to
decentralization of power from the center to the regional and local level. So the structural funds
were certainly crucial in stimulating local authorities engagement. A key objective of the structural
funds has been to mobilise domestic private and public sector partners, who might not otherwise
work together, to contribute to the accumulation of social capital and the creation of networks in
lagging regions.
The current debate about EU governance places particular emphasis on networks and partnerships.
Governments are seeking to balance of central control with decentralised approaches, which tap into
individual and community resources and create the conditions for policy in nation.
Improving the interconnections between tiers of government is a matter of growing significance for
the EU, and networking and the development of regional and sub-regional partnerships is
increasingly perceived as vital in the formulation and implementation of territorial development
strategies (CPRM 2001).
It might be anticipated, therefore, that one of the consequences of local authority engagement in EU
policy would be their involvement in vertical networks, extending to other government tiers and the
European institutions, and in horizontal networks, including local and regional partners. Many EU
regions have become involved in inter-regional, national and cross-border or multilateral
partnerships within the framework of voluntary agreements or EU programmes. Differences in
capacity and attitudes to Europe among local authorities within different regions were also apparent.
Devolution and decentralisation represent a fundamental change in constitutional arrangements in
every country. To varying degrees the creation of new national and regional institutions opens up
new opportunities for more direct engagement in the European agenda and for advancing the
standing of countries (nations and regions) in the EU.
The participation of Subnational government (SNG) in EU affairs is another important issue in the EU
policy. The significance of these trends is that they provided a broad and solid intra-state basis for
SNG mobilisation in EU policy making (Jeffrey 2000). One of the key outcomes has been the creation
of new forms of regional and local networks, which provide a firm foundation upon which the new
devolved national and regional institutions can develop their responses to European policies. SNG
was becoming more prominent in the decision-making and implementation processes of EU politics.
MLG thus was interpreted as an outcome of the simultaneous processes of European integration and
regionalisation, both of which led to a diffusion of powers away from the nation state (Houghe
1996).Open method of Coordination, voluntary accords and the "new approach directives", as
delegation to regulatory networks and agencies and "multi-level and polycentric governance"
(Schmitter 2003) can be perceived as products of gradual and incremental institutional formation at
the EU level and as an attempt to inject a dose of flexibility into an otherwise cumbersome policy
process.
'Type 1' – form of MLG builds upon 'general-purpose' jurisdiction (governments) at different levels,
and is mostly interested in the interaction between these levels and the sharing of competences
between them. Type 1 MLG thus is attached to a state-centric concept of politics. MLG is the 'Europe
of the Regions' . This concept implies that the EU can and should be compared to the other federal
systems. Regions would be seen as another constitutional or quasi-constitutional layer in multi-level
governance, and the question would arise how competences are best distributed across the different
territorial layers.
Regional and local government would act as a third layer in EU policy-making.
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'Type 2' is characterised by task-specific (instead of general purpose) jurisdiction, intersecting
memberships and a flexible design that is responsive to temporary need. They consists of special –
purpose jurisdiction that tailor membership, rules of operation, and functions to a particular policy
jurisdiction, which in turn leads to the idea that such jurisdiction may very well span several
(territorially or otherwise defined) levels. (Houhge and Marks, 2003). This type approach would see
multi-level governance in the EU as related to the wider problems of governance at the domestic and
the global levels (Jorgensen/Rasamond 2001). It would allow to compare decision-making and
implementation networks across different policy fields (e.g. in regional, environment, culture,
tourism, and urban policy) or to compare governance in the EU with task specific governance
arrangements at the global or subnational levels.
MLG is defined as "an arrangement for making binding decisions that engages a multiplicity of
political independent but otherwise interdependent actors – private and public – at different levels
of territorial aggregation in more or less continuous negotiation/deliberation/implementation, but
does not assign exclusive policy competence to any of these levels or assert a stable hierarchy of
political authority" (Scmitter 2003).
The concept of region (or more generally of "territorial level of aggregation") would then refer to any
territorial arena within which interaction among a variety of actors can take place, and in which the
experience of territorial interdependence and geographical proximity provide important motivating
factors for working together and for engaging with the outside world (such as networks that have
been formed at other territorial levels).
In normative discourses, the focus is on the vertical relationship between governors and the
governed.
The involvement of SNG in decision-making for sustainable development is especially important,
firstly because of their role in the implementation of sustainable development policy and secondly
because of their proximity to citizens and other stakeholders (Berger and Pohorryles 2004).
So the propositions on governance are:
1. Governance refers to a set of institutions and actors that are drawn not only from but also beyond
the government.
2. Governance identifies the blurring of boundaries and responsibilities for tackling social and
economic issue.
3. It identifies the power dependence involved in the relationships between institutions involved in
collective action,
4. Governance is about autonomous self-governing networks of action.
5. Governance recognizes the capacity to get thing done which does not rest on the power of
government to command or use its authority. It is government as able to use new tools and
techniques to seer and guide. (Stoker 1998)
MLG is a system of supranational, national, regional, and local governments which are enmeshed in
territorially overarching policy networks (Marks 1993). The vertical dimension concerns the 'multilevel' component of the definition and refers to the 'increased interdependence of governments
operating at different territorial levels', while the 'governance' component (horizontal dimension)
focuses on the 'growing interdependence between governments and non-governmental actors at
various territorial levels’ (Bache and Flinders 2005). MLG led to reallocation of authority; it
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diminished the dominant role of the state, and led to a loss of grip and control of the state on policy
and decision-making.
This specific issues have their origin in fundamental question: which kind of influential factors took
part in shaping the system of territorial governance? Initially it should be noted how this system is
formed depending on the physical and other characteristics of each country (the size of the area, the
number and density of population and settlement, geographical form, historical tradition, political
demands and other features). The reasons for establishing a certain level of local government should
be derived from its purposes, its objectives referring to its function (competences and
responsibilities), which significantly affect the determination of its legal status.
The causes of gradation between the central and local governments in most modern countries are:
- To increase the area on which government activities are performed;
- The intensify government activities.
In modern countries, one degree local self-government is rarely applied ( Austria , Finland , Greece ,
Switzerland ) , and local self-government of European countries usually face a two-stage model (
England , France , Italy , Germany , Sweden , etc. ).
Regularities in the formation of certain territorial level of government originate in the practical
needs that affect the process of analysis in the vertical government system whereby the number of
degrees within a single administrative system is increased so that units at the same level generally
perform the same tasksTypical example of vertical parsing is the creation of new types of territorial
units within a single system of state government: introduction of provincial, regional, district, county
and other territorial authorities as intermediate steps between central and local government.
This relates to the:
- provincies/departements (okruzi):
county (county in the UK and Ireland, megye in Hungary, županije in Croatia), department or
prefecture (départements in France, Nomoi in Greece, judet in Romania, Qark in Albania), province
(Provincias in Spain, Provincia in Italy, maakunat in Finland, apskritis in Lithuania, Lan in Sweden,
powiat in Poland, oblasta in Bulgaria);
- districts (kotari):
district (district in Austria and Switzerland, Kreise in Germany, arrondissement in Belgium and
France, distrito in Portugal, okres in the Czech Republic and Slovakia).
Criteria for distinguishing intermediate territorial units in terms of self-governing status are:
- Whether the unit belongs to the system of territorial government, or is merely a form of
dispersion conduct of the state government and its local-regional relations;
- Whether the unit belongs to the system of local or regional governments with specific position in
the administrative system of the state;
- Whether the unit has an initial position or represents an intermediate level of government.
We point out that the self-governing unit is based on four elements that distinguish it from
dispersion units:
1. It is a legal entity ( legal personality) which, as a rule, is not the case with dispersion entities ;
2. Members of its bodies are elected (e.g. councilors , members of the executive bodies ), whereas
11
the members of dispersion bodies are appointed/ root is positioned);
3. It has a certain degree of autonomy in decision-making in exercising of its jurisdiction;,
4. State control over the self-governing unit is limited to the review of constitutionality and legality,
while the review oversight over dispersion entity includes the review of opportunity.
State government units that perform a territorial unit commonly designated as district (Austrian and
Swiss Bezirk, distrito in Portuguese and okres in The Czech Republic and Slovakia ). Often state
government bodies perform a territorial unit ( as transferred or delegated jurisdiction) . Most
commonly at the level of self-governing, territorial units constitute state offices with general or
special competence to perform these tasks. This raises the question of their mutual relations. There
are not many examples that two units of various self-governing status occur at the same level. An
example of this is the Swedish län as a unit which engages in the state administration, and landsting
as territorial government unit almost concurrently formed in the same area.
The local self-government
VIII.
The local self-government shares the faith of the historical development of the country, but in turn it
affects the development of the society. We have already mentioned the relationship between the
"bottom" and the "top". As for its historical development , the quest for institutional response could
be reduced to two distinct needs: "the political need to create a counterweight to the monopoly of
organized physical force in society, which is a monopoly in the hands of central government
authorities , and the administration need to create a special organization that will serve to regular
meeting of specific local needs, whether it be the needs arising from the existence of local
settlements , or the activities which are by their nature caused by the proximity of the user." ( Pusic
1989). There is a substantial number of other circumstances that had or could have an impact, such
as traditions, local versus central defensive interests, the need for self-organization, etc.
It could be said that the local government develops and completes the idea of separation of powers
in the horizontal conception (legislative, executive, judicial authorities) on the one hand, and the
technique of control of the state apparatus on the other, all in a vertical relation of higher / lower
and wider / narrower territorial units (from local, through regional, to national and supranational
levels), and for which a democratic atmosphere is the necessary. The principle of separation of
powers includes forms of co-decision, cooperation and mutual checks of all kinds and their
government.We believe that there is no quality of separation of powers in the horizontal sense, if a
constitutionally guaranteed right to local self-government is not provided for at the same time. .
Historically, it is not possible for local self-governments, particularly in Europe, to assimilate the
uniform models. The use of the regulatory and policy tools should be strengthened at lower levels of
government. But identifying the "optimal level" for that purpose may require a deep analysis of
which level is better place to solve problems that affect citizens and businesses - “Bottom- up”
solutions can provide valuable insights into this process.
The area, the size of the area covered by individual local governments is very important, because it
influence their effectiveness and democracy. We are witnessing a trend of reducing the number of
local units in Europe, except France. Thus, the average European municipalities count 1000-2000
inhabitants and have an average area of 10 to 20 km2. When establishing local governments,
following factors must be taken into account: their capacity development management (human
resources , equipment , commercial- financial self-sufficiency ), the spatial ambience of tradition, of
finding the optimal shape that will be able to express optimally the needs and interests, and to
12
implement and control them. Perhaps this is the most acceptably expressed by the phrase “To
reflect democracy through the local self-government”. De Tocqueville : " The strength of free nations
lies in the local institutions. . They are for freedom what elementary school is for science . Without
their existence a nation can have a free government, but not the spirit of freedom. " (Tocqueville)
Local government is a key element in the political system of European liberal democracy. The
simplest and generally acceptable definition of local government is that it is the level closest to the
citizen with the role and importance of presenting a local standpoint. It is in this issue thet the
tradition comesforward, as a positive history of each nation and state, but at the same time as its
universalization primarily expressed through shared values of quality of life. To increase the quality
of life has become justified preoccupation of modern society. Here, apart from economic efficiency
(profitability,) at the same time the democratic political life and the concern how to preserve the
environment have been taken into account. There are terms that have been very often exploited in
recent times: "sustainable development ", "responsible investment" (Responsible Investing ) ,
"ethical investment " , etc. Otherwise, we should as fast as possible redefine our attitudes, social
values and aspirations, particularly in terms of the new designing of social institutions and decisionmaking in the ambient of so-called ecological deficit .
The local government is searching for the answers, to ensure harmony between citizens as
individuals and institutions, but also between local communities and the state. It should be finding
solutions to these questions, which can be reduced to:
• participation of citizens in political decision-making, either directly or through their elected
representatives,
• performing (essential) part of public affairs,
• deciding on the needs and interests of local (and general) interest,
• enlargement of supervisory powers higher bodies,
• extent of financial autonomy of local government units,
• multi-level shaping of the political-administrative structure,
• and others.
Of course it is always self - organizing characteristic of the lowest administrative - territorial
communities - local government. At this level, the most important exams are taken in an attempt to
achieve a better life. Answers, among others, should be sought in the European Charter of Local Self Government, primarily in its principles.
In designing a system of state government area, its division into narrower territorial units occupies an
important place. Even the smallest European countries (such as Luxembourg) are divided into
narrower territorial units that are at lower level compared to the state. But before this, any
constitution maker /legislator will put in relation to this a similar set of fundamental questions:
- How much and what level of territorial government should be established?
- Which of them would be given a legal status?
- How many and what size unit to form on individual level?
- How to allocate jurisdiction between the state and territorial units, respectively between territorial
units, and what sorts of mutual relations should be established?
IX.
Region and regionalization
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Nowadays there are many different forms of multiple graded rules, which is to impose both between
local and national communities. Their common denominator is the middle level government which
xists only in the countries which have apart from national and local levels, established at least one
level of territorial governance. Middle level government always has administrative features.
Subnational, regional or sub-regional levels that are above a municipal level should always be located
within a particular territorial unit. Regardless of the status of self-governing units, almost all
countries (except for the smallest) establish intermediate level of government, but it has a selfgoverning nature somewhere, and sometimes it represents the only rational form of state
government. Will this administrative- territorial units of profit and self-governing have a status
depends on the extent and characteristics of political relations, traditions, degree of democratization,
and other factors.
Constant territorial organization of each urban unit (rural or urban village - a village, city) as the
local community where the legal systems seeks of all countries provide the basic features of selfgoverning local level. It is sturdy element of territorial organization. This stability is not specific to
another level, especially when it is the result of political will, not an expression of the characteristics
with which the inhabitants of the area can be identified. That is why the second level is more variable
and more subject to political will and territorial changes.
Featured are two types of local units. Monotype structure of local government expresses
normative commitment by which all local government units have the same legal status, and
represent one single type of local government - of course, no need to warn that it is a unit of the
same degree (the lowest or the basic unit). They have not only the same legal status but also in
principle the same scope of work. According to the central administration in the same legal position
within a system with two levels of local government, they are placed in the same position in relation
to the higher level unit that is included in the composition unit of a higher degree.
The more type structure of the legal system implies the legal status of different units of the same
degree depending on their characteristics (distinguishing urban and rural units, etc.). So there are at
least two types of local government at the same level.
Theory and practice created few models of the relationship of the state and local governance:
1. Concepts that are based on the state and its goals and interests. The local government is seen
primarily as an instrument of the central government. These concepts occur in countries with
relatively longer-lasting tradition of centralism (as in France ) , which havetheir support in the classic
state and administrative doctrine in (Continental) Europe , which emphasizes the undoubted primacy
of the central government;
2. Concepts that the dilemma between state or local interests resolved the model of political
decentralization, ie , the delegation of a portion of state jurisdiction to a territorial unit . Advantages
of this concept are prevention of concentration of political power, the localization of political
conflicts, the participation of citizens in governance and improving the quality of services due to
pressure close to local needs and requirements. This relative independence of the local system
ensures the election of local political bodies (the political legitimacy is independent of the central
power), legal personality of the local system (providing for legal and business affairs) and relative
financial autonomy (specific sources of revenue). This concept has its strongholds in recent processes
matched with the process of European integration;
3. Concepts that emphasize the primacy of local interests and local actions. The political organization
of local units is seen as an alternative political system emanate state (representative example of this
concept is the Marxist theory of the commune).
In the relevant literature there are many definitions of regions.
14
The definition of regions as given by the Council of Europe’s Reference Framework for Regional
Democracy 5 on the one hand, considers regional authorities as "territorial authorities between the
central government and local authorities. This does not necessarily imply a hierarchical relationship
between regional and local authorities" and, on the other hand, establishes that: "where regional
authorities exist, the principle of regional self-government shall be recognised in domestic legislation
and/or by the constitution, as appropriate".Itefines regional self-government as "the legal
competence and the ability of regional authorities, within the limits of the constitution and the law,
to regulate and manage a share of public affairs under their own responsibility, in the interests of the
regional population and in accordance with the principle of subsidiarity".
Regionalisation "denotes the (empirical) process that leads to patterns of co-operation, integration,
complementarity and convergence within a particular cross-national geographical space" (UNU-CRIS
2007).
Region is "territorially based subsystem of the international system".
"It takes different forms in different places and refers to a variety of spatial levels. Moreover, in
most states, the region is a contested area, both territorially and functionally. Spatially, it exists
somewhere between the national and the local and is the scene for intervention by actors from all
levels, national, local, regional and now supranational. Functionally, it is a space in which different
types of agency interact and, since it is often weakly institutionalised itself, a terrain for competition
among them" (Krating 1997).
"An area where a system of governance exist and which is the largest and first level of political
subdivision within an individual state, represented by the UN , but which is above the municipal
level." (Tauras 2007).
Decision-making for sustainable development has to be a coordinative, integrative and participative
(multi-level and multi-actor) process.
How can a "high quality regulation" at all levels of government be achieved?
The regions and the European Union
The European Union shall recognise the regions of its Member States and associations of a regional
nature as active participants in its policies. It shall have a body of regional composition which shall
participate in decision-making on issues having a regional dimension. Its members shall be proposed
by the regions. 2. The regions may make representations to the institutions of the European Union.
Such representations may be established jointly by several regions. The European Union and the
Member States where they are located shall recognise their proper status.
The regions, within the scope of their powers, or where their interests may be affected, should
participate in the determination of the positions taken by their states in the Community institutions. .
Where an issue is the exclusive responsibility of the region or has a particular bearing on its interests,
the state shall not be able to deviate from the position adopted by the region, save where domestic
legislation requires this in the interests of unity. The state shall be required to justify any deviation
from the region's position. On such issues, the region shall also be entitled to take part in the
decision-making process of European institutions and shall in particular have the right to have its
representation within the national delegation.
5
Council of Europe Reference for Regional Democracy, Council of Europe (2007)
https://wcd.coe.int/ViewDoc.jsp?id=1532237&Site=&BackColorInternet=B9BDEE&BackColorIntranet=FFCD4F&BackColorLogge
d=FFC679
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The regions shall implement Community legislation within their sphere of competence. 6. The
regions shall manage assistance from the Community Funds for matters within their powers. For this
purpose, the regions shall liaise with the European Union without the intermediation of the state.
The regions may enter into agreements designed to improve the implementation of Community
policies. The courts shall supervise the implementation of Community legislation by the regions. The
state and the regions shall keep one another informed of the measures they adopt in the
implementation of Community legislation and programmes.
The regions shall have the right to bring proceedings before the European Court of Justice where
measures taken by the Community institutions affect their powers or interests.
The legislation on elections to the European Parliament shall refer to regional constituencies in states
which have decentralised political or administrative structures. Arrangements must be made for
contact between the European Parliament and regional parliaments in their capacity as institutions
which directly represent the will of the citizen.
The Assembly of European Regions (AER), in adopting the Declaration of the regions on their
participation in the governance of globalisation (2007), which is inherently political in character,
aims to promote and strengthen regionalism in Europe. The Declaration also illustrates the fact that
the region is the best form of organisation for resolving regional problems in an appropriate and
independent manner. The states of Europe shall undertake to pursue as far as possible the
devolution of powers to the regions and to transfer the financial resources necessary for their
exercise, amending international legislation as necessary.
The document entitled White Paper 2001 is very important for our topic because it encompasses
the discussion on multi-level governance and Principles of good governance. Looking for new forms
(procedures) this document conatains the decision that the Union must renew the Community
method by following a less top-down approach and complementing its policy tools more effectively
with non-legislative instruments. In other words, it affirms also and the "bottom" approach.
The White Paper is important as "soft law" because it stresses the importance of the principle of
subsidiarity, according to which all decision in a system of governance must at the same time be
efficient, and closet to the citizens, i.e. they must be made at the lowest possible level.
This Paper sees public regional and local actors in principle on par with other social partners.
Therefore, it is argued to have established a more systematic dialogue with representatives of
regional and local governments through national and European associations at an early stage in
shaping policy. This change requires concerted action by all the European institutions, the present
and future member states, regional and local authorities, and civil society. This Paper (The White
Paper) is primarily addressed to them. The goal is to open up policy-making to make it more inclusive
and accountable. A better use of powers should connect the EU more closely to its citizens and lead
to more effective policies.
Five principles underpinning good governance and the changes proposed in this Paper are: openness,
participation, accountability, effectiveness and coherence. The application of these five principles
reinforces those of proportionality and subsidiarity. Each principle is important for establishing more
democratic governance. In other words, the accent is on the democratic rule aimed at reducing
/eliminating the democratic deficit. They underpin democracy and the rule of law in the member
states, but they apply to all levels of government – global, European, national, regional and the local.
Policies and actions must be coherent and easily understood. Regional and local authorities are
increasingly involved in EU policies. The expansion of the Union’s activities over the last fifteen years
has brought it closer to regions, cities and localities, which are now responsible for implementing it.
Important are the EU policies - from agriculture and structural funding to environmental standards.
16
The stronger involvement of regional and local authorities in the Union’s policies also reflects both
their growing responsibilities in some member states and a stronger engagement of people and grass
root organisations in local democracy.
The expansion of the Union’s activities over the last fifteen years has brought it closer to regions,
cities and localities, which are now responsible for implementing. Yet the way in which the Union
currently works does not allow for adequate interaction in a multi-level partnership; a partnership in
which national governments involve their regions and cities fully in European policy-making. Regions
and cities often feel that, in spite of their increased responsibility for implementing EU policies, their
role as an elected and representative channel interacting with the public on EU policy is not
exploited.
Focusing on involvement in policy shaping is significant, too. At EU level, the Commission should
ensure that regional and local knowledge and conditions are taken into account when developing
policy proposals. For this purpose, it should organise a systematic dialogue with European and
national associations of regional and local government, while respecting national constitutional and
administrative arrangements. The Commission welcomes on-going efforts to increase cooperation
between those associations and the Committee of the Regions.
The Committee of the Regions should play a more proactive role in examining policy, for example
through the preparation of exploratory reports of Commission proposals. It should organise the
exchange of best practices on how local and regional authorities are involved in the preparatory
phase of European decision-making at national level.
It prepares reviews on the local and regional impact of certain directives, and reports to the
Commission on the possibilities for more flexible means of application. The place and role of the
Committee of the Regions has been strengthened especially with the entry into force of the Lisbon
Treaty.
The new positioning of the Member States is examined in terms of how to improve the involvement
of local and regional actors in EU policy-making, and how to promote the use of contractual
arrangements with their regions and localities. Paper calls for a systematic dialogue with European
and national associations of regional and local government.
In the context of the above considerations (irrespective of geographical criteria),territorial
administrative units appear that can be described as:
1. macro - regions ( with the status of the state unit of the federal state) :
lands (Land in Germany and Austria) , regions or communities (regions in Belgium ) ;
2. regions or provinces :
Autonomous Communities ( Comunidades Autónomas in Spain ) , city-states ( Regierungsbezirke in
Germany ) , regions ( régions in France , regions in Italy , regioner in Denmark , PERIPHERIE in Greece
) , provinces ( Province of the Netherlands, near the Czech Republic and Slovakia ) , cantons (canton
in Switzerland ) , duchy ( Silesian Poland ) , areas ( voblast in Belarus and Ukraine) ;
3. departments :
county ( county in the UK and Ireland ) , counties ( megye in Hungary counties in Croatia ) ,
department or prefecture ( départements in France , Nomoi in Greece , judet in Romania , Qarku in
Albania ) , province ( Provincias in Spain , in the Province of Italy , maakunat in Finland , apskritis in
Lithuania , Lan in Sweden , powiat in Poland , the area in Bulgaria);
4. districts :
district (district in Austria and Switzerland , Kreise in Germany , arrondissement in Belgium and
France , distrito in Portugal , okres in the Czech Republic and Slovakia).
X.
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The Republic of Croatia - General situation in terms of the sub-national organisation of the country's
territory
Problems of regions and regionalization in Croatia have always been in the forefront when it has
been thought about the reform of territorial organization. Of course, all herein is inevitable in
designing local and regional government. All Croatia’s governments in their programs have had hints
about the necessity of decentralization, including regionalization. However, no one has
demonstrated sufficient political will, courage and knowledge to do it.
Croatia ratified in twice manner the European Charter on Local Self-government. For the first time
Croatia ratified the Charter with effect from 1997. It used then the facility offered by the Art 12 to
accept only a minimum range of substantive articles and, therefore, omitted adherence to a number
of important obligations, and secondly it ratified in 2008 without any reservation. So, the Charter
provisions becoe as an integral part of domestic legal system with the supra-legislative legal force.
The Constitution (the consolidated version published in the Official Gazette No. 85/2010) describes
Croatia as a “unitary and indivisible democratic and social state.” Although the state is unitary, the
Constitution declares (Art. 4) that “government shall be organised on the principle of separation of
powers into the legislative, executive and judicial branches, but limited by the right to local and
regional self-government" and then (Art 133) that “citizens shall be guaranteed the right to local and
regional self-government”. Citizens' right to local and regional self-government is equalised with all
other human rights aand fundamental freedoms, and therefore its protection is gauaranteed by
filling constituional complain at the Constitution Court.
The municipalities and towns are the units of local self-government (municipalities; cities) and the
counties (županije) shall be units of regional self-government (Art 134). The responsibilities of both
tiers of self-government are stipulated at the same time with a helpful generality of provision and
with quite a high degree of particularity. The counties are responsible “to carry out the affairs of
regional significance, and in particular the affairs related to education, health service, area and urban
planning, economic development, traffic and traffic infrastructure and the development of networks
of educational, health, social and cultural institutions”(Art. 135). It is also stated that “affairs of local
and regional jurisdictions shall be regulated by law”. In the allocation of affairs priority shall be given
to the bodies which are closest to the citizen, and that “in the determination of the local and regional
self-government jurisdiction, the scope and nature of affairs and the requirements of efficiency and
economy shall be taken into account”.
Other constitutional provisions protect the right of units of local and regional self-government to
regulate autonomously by their statutes their internal organisation (Art 136) and declare that, in
performing their functions, units are autonomous and are subject to review by governmental bodies
only in respect of constitutionality and legality (Art 137).
According to its legal status, a county is a regional self-government unit. The self-government affairs
are administered by the County Assembly, Prefect and administrative bodies of the county, whereas
the state administration affairs are conducted by State office. As the symbols of their status, counties
have their own coats of arms and flags and confer public honours.
At the regional level, there are 20 counties to which may be added the City of Zagreb which
operates as a combination of a municipality and a county. Among counties, there are significant
18
differences and disparities in their population (inhabitants) number – 1: 8,6; in space – 1:7,3; in
population density – 1:16; in the number of villages, in economic activities etc.
Croatian counties were established by applying the functional nodal regionalization principles relied
on the gravitational force of the urban center. Implementation of such rule led to politically
pragmatic created administrative grouping and merging neighbourly municipalities in an
administrative-territorial unit ("top down").
Analysis of the regulatory system of counties indicates an interesting conclusion: as a unit of mixed
character the county has a strongly emphasized co-ordinating function, but, according to imposed
regulations, the county has a weak position in regional government structure. The regulations are
based on the premise that the counties are independent in deciding the affairs of their governmental
scope in accordance with the Croatian Constitution and the law. The county is a broader unit, but
not a higher unit in a hierarchical sense. However, the county has retained the right to be in charge
of documents with programming and planning character, in cases when explicitly provided by law. By
this function the county can coordinate activities in the preparation and adoption of similar
documents by municipalities and cities and establish the network of institutions in social affairs.
In Croatia, counties are too small and too weak in terms of political and fiscal power to create and
implement an independent regional policy. But county as a regional unit is suitable to face the
challenges of playing an important role in decentralized decentralized territorial organization of
Croatia.
Croatia is fairly centralized country with uneven economic and social development. Centralisation is
followed by the metropolization. In other words, Croatia has failed to implement a true
decentralization with devolution , what led to uneven development of regions, inappropriate
formation of self-government, insufficient capacity of local and regional self-government units for
efficient performance of essential public affairs, etc. With less than 11 % of the share of local and
regional authorities in the public finances, Croatia is at the bottom among the European countries.
The fiscal capacity of local and regional government is very uneven in terms of available money, but
also in terms of the structure of incomes and expenditures in the budgets. This is the most evident
from the under-capacity of local/regional self-government in providing public services at necessary
quality level. Thus, neither are the principles of good governance applied nor is a good practice being
affirmed.
Croatia is the country with two tiers of (local and regional) self-government.
The counties are second level of self-government, and can be considered as regional level units.
XI.
Relevant theories
Our starting point is Roussean's general will, Montesquo's separation of powers, Mill's democracy
representatives, Aristotel's research "The Truthful, the Good, the Beautiful", Habermas' and
Luhmann's research, through the Forester's theory of self-organizing, to the modern theory of
autopoiesis (Zeleny, Teubner, Luhmann, etc.). Theorethical premises are realization of the
autopoietic organization to the lowest extent (unity, cognitive openness, normative clousure, in
which the local and regional self-government are conditio sine qua non of sustainable economic,
19
political and cultural development. The true local and regional self-government in the autopoietic
concept has the crucial place and role on this path. Furthermore, we proceed from the hypothesis
that the alopoietic institutions have dominated in the past development, and that there was neither
conception nor place for the autopoietic institutions. In other words, in today's information
society, which is horizontally netted, the autopoietic system should be dominant, where one starts
from the self-organization, the conception (the system theory) of which is holistic and which is
based on a cause-teleological interpretation. In such an atmosphere there is a higher chance for the
constitutional engineering, when we can choose the best (the theory of choice), with an adequate
evaluation of the components and the whole.
We believe that new challenges can not be overcome without an adequate theory of selforganization and the theory of autopoiesis (selfproduction). As technology is a convert from idea to
product, the same happens with the autopoietic technology. This technology allows us to retrieve
the positive, and to eliminate the negative, or at least to reduce them to a minimum. In doing so,
leaning on natural principles, one whole is at the same time a part of the whole, bounded by a
membrane, which ensures an entity as a unity, with a sufficient openness to cognitive but also to
normative closure. Doing so does not endanger the identity and subjectivity parts and units, where
each of them has its own autonomy, but at the same time and in the proper wiring of the
atmosphere. The self-organized system of each participant was also the manager of the system. The
emphasis is on self-reference, in competition with himself. It should start from ourselves, first you
should defineyourself.
This is an inevitable rethinking of the issue of sovereignty and modern integration. This process
should dialectically overcome European values and national interests, reconcile national sentiment
and transnational imperative. Certainly, it is necessary to redefine the classic sovereignty as the
exclusive category (the highest authority in an independent state and outward). Modern sovereignty
is strengthening (of morality, legality, legitimacy) in itself. In all forms of integration (from the family
to the state) the new entity is formed from parts that knowingly waive a portion of its sovereignty,
to built ultimately better exercised sovereignty. It should be borne in mind that it is necessary to
leave the hierarchical type of organization and develop networking integrations that arise from
interest, but also represent the value when it comes to the fore application of the criteria of
efficiency, solidarity, transparency, subsidiarity (the adjusted principle of necessity and
proportionality).
In other words, the necessity of state and national approaches should be corrected by building
society with universal access, where all subjects (citizens, families, businesses, local government
units, regional units, the central government, supra-national associations) provide for their identity
and develop in interaction with their environment. The above is only compatible with information
technology, networking of all who can, will and know.
Problem of region and regionalization has increasing relevance and importance, because it is
precisely this level to articulate the needs and interests at the local level, to depreciate local egoism
("frogs view "), while amortizing national centralism (" bird's eye") and ensuring synergy
development. Because of that for us regions are optimal communities.
From author's point of view, autopoiesis and self-organization are the bridge between causality
and finality, necessity and freedom, nature and man. Without it we are forced to live in less
efficient and less democratic organizations. High efficiency and high democracy with minimal
pollution of nature could be a way to freedom. With deeper understanding of these three goals we
could overcome sustained development, stagflation, and environmental problems, because
knowledge of the purpose should eliminate much entropy.
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The theory of self-organization is formulated by Illya Prigogine and it is based on the paradigm of
non-linearity, irreversibility, and dependence. Prigogine, with his discovery of the behaviour of non
equilibrium and nonlinear system, is predecessor of postmodern age. Nature is rarely in equilibrium.
Life is now interpreted as self-organized phenomenon that is far from equilibrium. Modern paradigm
is allopoietic (defined by the outside) and defines the border in artificial nature (buildings, machines,
economic products and political relationship). With postmodern paradigm owing to autopoietic
approach (defined by the inside), we have capabilities to design products and relations that will be in
greater harmony with man and nature.
The sooner we become aware that motivation, knowledge, teamwork, technology and finances are
the most important factors of one’s success or failure, the sooner we will initiate everyone’s
quality development. It is essential to open and guarantee equal chances for each individual and all
regions.
The legal standpoint contemplates the law as a system, as an entity which consists of elements
interconnected into a structure. In that way holistic approach prevails, according to which there is a
certain system in the law.
The standpoint that modern law consists exclusively of national legal systems is mainly abandoned. It
especially comes to expression in acquis communautaire. The relation between the international and
national law is experiencing a Copernican twist. Thus it is a doctrine of European law that the
European law derogates national law. This is exceptio illegalitatis europea, but also a direct effect of
European law creating subjective rights for physical and legal entities which the courts are obliged to
protect. It is favor conventionis.
Today’s law is more and more being created in mutual interlacing, like the networking is a negation
of the negation of morality and custom, which means “bottom up”, where the ideology and
philosophical approach directly, without a sufficient mediation, transfuse into a provision of the
highest rank, and then into a whole of the legal system, which means “top down”. The mutual
dependence of systems is more and more visible, although, in our opinion, not to a sufficient extent,
and that particularly goes for the interaction of law, economy and culture (Heller). An accent is on
the fact that no system is in a position to determine its borders from the outside, nor does it have an
outside influence on reality, so such systems are called “self- referential” (Luhmann) Systems with
ideology approach are being abandoned in legal science in favour of self-organized law. This theory is
founded on biological (Maturna, Varela, Zeleny, Roth, Schwiger and others) and sociological (Hejl,
Luhmann, Teubner, Willke and others) research.
Instead of a Conclusion
XII.
By discussing this topic, our intention was to bring separation of power to the experts' and public
interest, primarily from the vertical aspect, having in mind a rising attention to localization as needed
answer to processes of globalization, differentiation, integration and transition. Bottom up approach
in constitutional design of the state and the society affirms the subsidiarity principle which with
checks and balances represents a step forward into multi-level good governance. Such multi-level
good governance enables regions to be developed as sub-national communities, optimally
reconciling interests of local and national level. At all levels of governance, criteria should be:
maximize economic efficiency, maximize political democracy and minimize contamination of the
environment. This model and criteria for measuring its efficiency help in repressing a local egoism
and a centralization tendency on the national level. At the same time such approach contributes to a
sophisticated networking on all levels, from local governments to regional, national and supra-
21
national governance bodies. Networking capacity is considered as one of the essential conditions for
more democracy, transparency, coherence and efficacy in decision-making processes and processes
of implementation.
A major condition for regionalization is a truly decentralization with devolution, where local selfgovernment becomes a place where majority of people's needs and interests are satisfied, where
immediate involvement of citizens comes to its full realization, where local institutions enjoy its full
legitimacy, where the protection of human rights and basic freedoms are guaranteed in the
ambience of the rule of law.
Europe recognizes and affirms processes of regionalization by providing only a framework, since it is
important to leave a space for specificities of member states. Therefore, the richness of diverse
European traditions should be nurtured and further developed through regions (or, more generally
said „aggregations on territorial level“). This form allows interactions among different stakeholders
where experience of territorial inter-dependence and geographical proximity provide important
motivational factors for collaboration and for working with outside world. By applying this approach,
EU recognizes that regions of its member states and associations of regional nature have the status
of active participants in processes of developing EU policies.
Theoretical constitutional premises are realization of the autopoietic organization to the lowest
extent (unity, cognitive openness, normative closed) in which the local and regional self-governments
are conditio sine qua non of sustainable economic, political and cultural development.
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Annex
National models of regional government
State
Regional units
Regional model
Belgium
3 regions
1 federal state
remark
24
Germany
16 land
1 federal state
Italy
20 regions including 5 with the
specially position
1 state with wide regional
autonomy
Swiss
26 canton
1 federal state
Spain
17 autonomous community with
various positions (asymmetric
regionalization)
2 state with wide regional
autonomy
Great Britain
3 countries and provinces with
different position
2 unitary state with
elements of wide regional
autonomy
Czech Republic
14 regions
3 unitary state
here is no hierarchical relationship
with municipalities
Hungary
19 counties/županija
3 unitary state
also
Poland
16 regions
4 unitary state
also
Denmark
14 district
5unitary state
also
France
26 regions including i
5unitary state
also
4 DOM
Sweden
20 district
5 unitary state
also
Turkey
81 provincials
5unitary state
also
Finland,
19 regions
6unitary state
also
Latvia
26 regions
6unitary state
Bulgaria,
28 regions
Unitary state; regions are
decentralised state structure
Region is not self-government
Estonia
15 region
Unitary state; regions are
decentralised state structure
Region is not self-government
Territorial units in some European countries:
STATE
CON/FEDERAL
UNITY
Austria
länd
German
länd
regierungs,nok (g)
Belgium
communauté
(gemeenschap,
gemeinschaft)ré
gion (gewesten)
Swiss
kanton (canton)
Great Britain
England
North Ireland
Scotch
Wels
REGION
COUNTY
KOTAR (DISTRIKT)
MUNICIP. / TOWN
bezirksverwaltungsb
ehörden (s)
gemeinde +
statuterstädte
kreise (s+g)
-
gemeinde +
kreisfreistädte
-
provincie (province)
arrondissement
gemeente
(commune)
-
-
bezirke (distretto) (s)
gemeinde
England, North
Ireland, Scotland,
Wales
county council
district councils +
metropolitan
district councils +
London boroughs
+ shire unitary
councils
district council
25
unitary authority
council
county + county
borough
Italy
-
regione
province
-
comuni
Spain
-
comunidades
autonomas
provincias
-
municipiós
Portugal
-
regiäo autónoma
(Azores, Madeira)
-
distrito (s)
concelho
France
-
region
département
arrondissement
commune
Nederland
-
provincie
-
-
gemeente
Greece
-
peripheria (d)
nomos
eparchia
dimoi+kinotities
Ireland
-
-
county councils +
city councils
-
borough
corporations +
town councils
Malta
-
-
-
-
local council
Denmark
-
regioner
-
-
kommune
Norway
-
-
fylke
-
kommune
Sweden
-
Skäne, Västra local
councilGotland
län (s) + landsting (g)
-
kommune
Finland
-
Itsehallinnollinen
maakuta (Äland)
lään (g)
-
kaupunki
+ kunta
Estonia
-
-
maakond (s)
-
vald + inn
Latvia
-
-
rajon
-
pagast + lielpisetas
Lithuania
-
-
apskritis (s)
-
savivaldyb
Island
-
-
-
-
kapupstadur +
hrepur
Belarus
-
voblasts
raion
-
Ukraine
-
oblast
raion
-
misto
Avtonomna
Respublika (Krim)
Poland
-
województwo (d+s)
powiat (ziemski +
gradzki)
-
gmina
Czech Republic
-
kraj
-
okres (g)
obec
Slovakia
-
kraj (d)+
samosprávne kraje
(s)
-
okres (g)
obec
Hungary
-
-
megye
-
város + megyei
jogú város
Albania
-
-
qark
rrethe (s+g)
lokalitet
Bulgaria
-
-
oblast (s)
-
obština
Romania
-
-
judet (s+g)
-
comune + oras
Slovenia
-
-
-
-
občina
Source: Eurostat; Council of Europe: Studies in series "Structure and Operation of Local and Regional
Democracy"; CoR studies of devolution i dr.
26
Notes: The table shows only the basic territorial levels (only) administration. Phrases in parentheses indicates
whether the unit belongs to the State Administration (s) or government (with g)
Size medium level territorial units in Europe
STATE
AREA (km2)
Populati
on(in
000)
UNIT
No
Area (km2) average
Albania
28.748
3.563
qark
12
2396
297
rrethe
36
779
99
länd
9
9312
897
bezirke
99
région provincie1
3
10176
3377
952-5866
arrodissement
10
2463
918
240-1629
Austria
Belgium
83.858
30.510
8.185
10.364
population ( 000)
average
276-1600
2-227 (no Wien 1600)
43
Belarus
207.600
10.300
from-to
42-941
voblast
6
34600
1466
horad (Minsk)
118
1759
58
2
1170-1506
raion
Bulgaria
110.910
7.450
oblast
28
3961
266
165-1200
Czech Republic
78.866
10.241
kraj
14
5633
734
306-1275
okres
77
Denmark
43.094
5.432
regioner
5
8620
1095
600-1600
Estonia
45.226
1.333
maakond
15
2895
96
12-535
Finland
337.030
5.223
lääni
6
56172
870
200-2000
France
547.030
60.656
region3
26
24726
2573
723-10661
département3
100
5666
590
73-2532
peripheria
13
10125
789
194-3523
nomos
51
2586
201 (89)4
21-3523
eparchie5
147
Greece
131.940
10.668
Croatia
56.542
4.496
županija
20
Ireland
70.280
4.016
county council
29
2375
99
25-293
Italia
301.230
58.103
regione
20
15063
2905
120-4469
province
107
2815
543
Latvia
64.589
2.290
rajons
26
2461
47
14-145
Lithuania
65.200
3.597
apskritis
10
6520
371
130-895
Hungary
93.030
10.007
megye
19
Nederland
41.526
16.407
provincie
12
34442
1291
233-331
Norway
324.220
4.593
fylke
19
17064
229
77-484
Germany
357.021
82.431
land
16
22311
5096
175-1084 (no förváros i
22 jogyvaros
27
regierungbezirke
Poland
312.685
Portugal
92.391
38.635
10.566
41
8368
2031
Landkreise 51-662
Kreisefreist. 38-1245
kreise
426
813
186
województwo
16
19543
2415
1000-4900
powiat
379
825
102
35-251
2
1553
244
18
4960
548
127-1782
45-747
regione
autonoma
distrito
Romania
237.500
22.330
judet
41
5787
496
Slovakia
48.845
5.431
kraj
8
6106
679
550-777
okres
79
618
69
13-163
comunidades
autonomas
17
29693
2373
65-6227
52
9707
778
94-5182
län
21
21426
2373
58-1726
landsting
20
17122
778
136-1726
kanton
26
1588
288
15-1229
Spain
504.782
40.341
provincias
Sweden
449.964
Swiss
41.290
9.002
7.489
bezirke
Ukraina
603.700
47.425
oblast
3-403
24
rayon
Great Britain
- England
244.820
60.441
130.423
49.068
county council
380-4840
8-1471
34
278-1318
Sorcer: CIA The World Factbook 2005, Statoids, Infoplease i dr.
Council of Europe: Studies in series "Structure and Operation of Local and Regional Democracy", CoR
studies of devolution
Note: In calculating the average for each unit from the basic data for the state off the data for units that are not
displayed (the capital city, cities with the status of the unit, etc.)