Lecture 1.

Municipal law: the comparative approach (2 hrs)

The introductive lecture starts with the basics of the comparative municipal research. Then it deals with the types of the legal families and their relevance to the main municipal systems – Anglo-American and Romano-Germanic.

The second part of the lecture covers the various theories of local self-government. Special attention is paid to the origin and the source of municipal power as it is seen in different countries.

Learning outcome: By the end of the lecture students should be able to generalize a variety of theories about local self-government, to explain the difference between the municipal and the state power.

Key terms of the topic:
comparative municipal research	local government
municipal law	local self-government
municipality	legal systems (families)
Romano-Germanic municipal system	Anglo-American municipal system

Municipal law, or the local government (self-government) law, is a big institute within the constitutional law. Some researchers propose to consider the municipal law a branch of law, but for now it is too much connected to the constitutional law to separate it. The municipal law uses the same methods, as the constitutional law, and regulates the same society relationships – but on the local level.

The term ‘municipal’ comes from the Latin, where ‘munis’ means ‘the heavy thing’ and ‘capio’ means ‘to carry’. Since the times of the Roman Empire it was the great honor and responsibility for a city, town and so own to have the right for self-government.

The term ‘municipal government’ is traditionally used in two meanings. In a narrow meaning, ‘municipal government’ is the local self-government of the incorporated city, town or village. The incorporation gives them the special additional rights in self-government and the title ‘municipality’. The Merriam-Webster Dictionary defines ‘municipality’ as ‘a primarily urban political unit having corporate status and usually powers of self-government’.

In a wide meaning ‘municipal government’ means the local self-government in the centre of population. Example: in Ukraine the centers of population are cities, towns and villages, while ‘rayon’ and ‘oblast’ consist of several centers of population.

In English, Ukrainian, Russian and other languages the adjective ‘municipal’ is never used with the noun ‘self-government’.

In English language the terms ‘local government’ and ‘local self-government’ are synonyms. In Ukrainian and Russian language the term ‘local self-government’ is used to define the formation and the functioning of the local councils, mayors, executive bodies of the local councils. The term ‘local government’ is used to define the formation and the functioning of the state bodies on the local level (for example in Ukraine – local state administrations, their heads and so on).

In the contemporary world there are 2 approaches how to define the term ‘municipal law’. The traditional approach defines that the municipal law deals with the legal issues of the territorial communities, local government bodies, the relationships between the local government bodies and the state bodies. The innovative approach sees the municipal law as the law at the national (state) level – because of the processes of globalization and Eurointegration. The traditional approach is the most wide-spread for now, though.

Comparative method is very popular in the legal disciplines. It gives various abilities to the researcher. First of all, comparative approach has the prognostic function. Before the introduction of changes it is usually fruitful to look at the experience of the other countries that already use such legal norms, principles, acts, institutions. Secondly, the comparative method helps the scientists of different countries to communicate with each other, to understand each other better. The comparative method also has the scientific function – the usage of the ideas of the foreign colleagues, of the foreign experience enriches the research essentially. At last, the comparative approach has the practical function as it allows the practitioners to raise the quality of their work due to the comparison of the necessary norms and institutions in order to improve the current situation.

Comparative research various from one branch of law to another. That is why it is vital to know the basic facts about the branch that is researched. The comparative municipal research is within the branch of the constitutional law. The subject of the constitutional law covers 3 main areas of the social relationships: 1) the relationships between the society (civil society) and the state; 2) the basics of the legal status of the natural persons (citizenship, rights, freedoms and duties of the person, guarantees of the rights and freedoms of the person, principles of the state provision of the rights and freedoms of the person); 3) the relationships of the formation and interaction of the public bodies.

The municipal law is considered to be the part of the constitutional law. That is why the municipal law will cover the narrower subject: 1) the relationships between the territorial community and the bodies of the local self-government; 2) the rights, freedoms and duties of the person, that are performed on the local level, the local guarantees of the rights and freedoms of the natural person; 3) the relationships of the formation and interaction between the municipal bodies and / or local state bodies.

The branches of law are separated from each other on the basis of the subject of legal regulation and methods of legal regulation. Being the integral part of the constitutional law, the municipal law uses three main methods: subordination, coordination and reordination.

The method of subordination supposes there are at least two subjects of the legal relationships, and one of the subjects can give another one mandatory orders and instructions. The second subject can’t refuse to implement them – otherwise, the legal liability will be applied. The method of subordination is illustrated on the Picture 1 (courtesy of V.A.Mikhalev). This method is the most popular in the constitutional and municipal law. The example of its usage is when the public authority (the parliament, the local council and so on) issues the legal act.

 

Picture 1. The method of subordination in the constitutional and municipal law.

The second method is the method of coordination. The method of coordination supposes there are at least two subjects of the legal relationships. In the current situation they can’t give mandatory orders and instructions to each other, so in order to solve the situation they have to reach an agreement, to coordinate their activity. The method of coordination is illustrated on the Picture 2 (courtesy of V.A.Mikhalev). This method is used mostly by private law, and rarely by public law. Yet it is the second popular method, when it comes about the constitutional and municipal law. The example of its usage is when the public authorities (the local council of the oblast and the local council of the city, the local council of the oblast and the local state administration and so on) conclude a treaty about their joint actions or about the sharing of the competence, or about the delegation of power or competence.

 

Picture 2. The method of coordination in the constitutional and municipal law.

The method of reordination is very similar to the method of subordination. The method of reordination supposes there are at least two subjects of the legal relationships. As usual, one of the subjects can give another one mandatory orders and instructions. The second subject can’t refuse to implement them – otherwise, the legal liability will be applied. But, in some situations the second subject can give the mandatory orders and instructions to the first one. The method of reordination is illustrated on the Picture 3 (courtesy of V.A.Mikhalev). The example of its usage is the local budget process – when the local council can’t refuse to use in general the draft of the budget provided by the council’s executive body (because this draft is based on the objective economical numbers and basic needs of the local community).

 

Picture 3. The method of reordination in the constitutional and municipal law.

At last, for the effective comparative municipal analysis the students should be familiar with the constitutional basics of the local self-government in Ukraine, and with the current problems in this field. It will allow to use the comparative method and to do the comparative research in the most quick and efficient way. Comparative approach supposes that the researcher finds out the similarities (in the case with this course – the similarities in the local self-government in Ukraine and in the certain foreign country) and the differences.

The differences should be analyzed attentively – it might be possible that the reception of the certain approach, certain act or certain legal norms may help to solve one of the current problems of the local self-government in Ukraine. The similarities also turn the attention – as the foreign legislation isn’t perfect. If the usage of a certain legal norm causes the disadvantages for the local self-government in Ukraine and the same norm is found in the legislation of the other country – such a fact should be studied carefully.

In order to provide an effective result of the comparative municipal research t is also important to be familiar with the contemporary municipal systems. Municipal systems are mostly connected with the legal families.

The authors propose to distinguish up to 15 legal families. Regarding the aims and objectives of the lecture, the attention will be paid only to the two of them, which are the most wide-spread: to the common law family and the civil law family.

The common law legal family originates in 1066, in times of the Norman Conquest of the British Islands. This family uses the decisions in cases by judges as the sources of law, along with the legal acts of the parliament and other state and municipal authorities. But the common law legal family developed through decisions of courts rather than through the acts of the legislative or executive bodies.

As the practitioners (judges) contribute a lot in the development of the common law family, the division of the countries systems’ of law into the branches and the codification isn’t wide-spread. The common law legal family currently in practice in about 30 countries including Ireland, most of the United Kingdom (England and Wales and Northern Ireland), Australia, New Zealand, India (excluding Goa), Pakistan, South Africa, Canada (excluding Quebec), Hong Kong, the United States (excluding Louisiana) and many other places. In addition to these countries, several others have adapted the common law system into a mixed system. For example, Nigeria operates largely on a common law system, but incorporates religious law.

The civil law legal family is based on the codifications by the Italian scholars, which were made in times of Renaissance (XIII century). They used Corpus Juris Civilis issued by the Emperor Justinian ca. AD 529 as a model, though the concept of codification dates back to the Code of Hammurabi in Babylon ca. 1790 BC. The civil law considers legally binding only legislative enactments (rather than judicial precedents, as in common law).

The researchers usually describe the main difference between the common law and civil law system as following: common law draws abstract rules from specific cases, whereas civil law starts with the abstract rules, which judges must then apply to the various cases before them. So the civil law today, in theory, is interpreted rather than developed or made by judges. As the Civil law legal family was introduced by the scientists, the legal system of every civil law country is divided into the branches of law, and branches – into the institutions. The codification within the branch remains very popular. Civil law is the most widespread system of law around the world. It is currently in practice in more than 80 countries including Italy, France, Germany, Spain, Sweden, Finland, Norway, Argentina, Brazil, Cuba, Chad, Burkina Faso, Cote d’Ivoire, Central African Republic, People’s Republic of China, India, and Japan.

The civil law and common law legal families have the connection with the certain municipal systems. The countries that use common law use the Anglo-American municipal system. The countries that use civil law use the Romano-Germanic municipal system.

The main features of the Anglo-American municipal system are:

- there are several organizational forms of the local self-government (for example, three in the USA: ‘council – mayor’, ‘council – manager’ and the commission form):

- there are only municipal bodies on the local level – no state bodies with the wide competence (for example, like the local state administrations in Ukraine);

- that’s why there is no direct everyday supervision on the municipal bodies. Other forms of the state control are used – financial, judicial and so on.

The main features of the Romano-Germanic municipal system are:

- there is a single organizational form of the local self-government (as usual it is the ‘council – mayor’ form):

- there are not only municipal bodies on the local level, but also the state bodies with the wide competence (for example, like the local state administrations in Ukraine);

- there is a direct everyday supervision on the municipal bodies. In addition, the state use other forms of the state control are used – financial, judicial and so on.

The next influential factor in the comparative municipal researches is the state (political) regime. The state (political) regime defines whether or not it will be a local self-government in the country. Sometimes the local self-government will exist officially, but in fact represented by the local state bodies (like in the former Soviet Union, for example). It happens when the state (political) regime is non-democratical. The democracies always support municipal government. They see the municipal government as an additional protection for the civil society and as one more institution that helps to implement the human rights and freedoms on the local level.

So, for an effective comparative municipal research several points are essential: 1) the knowledge of the basics of constitutional law; 2) the knowledge of terminology; 3) the familiarity with the legal families and municipal systems; 4) the awareness with the type of the state (political) regime used in the country.

For an effective comparative municipal research one more thing is essential to know, but difficult to find out from both the legislation and the legal literature. It is an answer to the question “What is the origin of the municipal power?’ or ‘What is the nature of the local self-government?”

There are several answers to these questions, and all of them are reflected in the theories of the nature of local self-government: communal theory, state theory and theory of municipal dualism.

The communal theory originates from the United States of America (the USA). According to this theory, the municipal power originates from the public power of the territorial community. The adepts of the communal theory distinguish two types of the public power – state public power and municipal public power. So the communal theory opposes state interests to the interests of the territorial community, and gives the priority to the interests of the territorial community. In the USA a lot of the researchers state that the power belongs to the territorial communities. If the community can’t solve some kind of problem or decide some kind of question itself, or it is more effective to do it with the other communities – the power is delegated to the local government authorities. If the local government authorities consider more efficient or impossible to solve some kind of problem – they delegate it to the level of the state, and if the state authorities can’t solve – they delegate to the federation. So, there are the people who hold power, and delegate it on the ‘higher’ levels up to the level of federation.

The popularity of this theory is underlined by the polytological movement of 1990^th, called ‘communitarianism’ (from the ‘community’, ‘territorial community’). According to the supporters of the communitarianism, the most important decisions should be taken on the level of the territorial communities by these communities. The supporters of the communitarianism see the state and federal authorities as the ‘evil’ and the municipal authorities – as the only one ‘protection’ from that ‘evil’. They are sure that the ideal administrative decisions should be taken either by the territorial community itself (on the town meeting or referendum) or – if the direct democracy is impossibly to imply – by the municipal authorities and then approved by the referendum.

This idea has the practical implementation on the municipal level in the USA. In towns and townships the most important for the territorial community decisions are taken by the town (township) meeting. In the big cities (for example, in Los Angeles) where it is impossible to do, the most important for the territorial community decisions are approved on the referendum.

The manifestation of communal theory in the USA is the organization of municipal government in the capital city. According to its status, Washington is incorporated city, which geographically isn’t the part of any state. Washington is located in the District of Columbia. This Federal District in 1871 was allocated from the State of Maryland specifically to accommodate the U.S. capital. Since 1878 District’s boundaries coincide with the city of Washington. Congress has the right "to carry in all cases exclusive legislative authority in the district, which was assigned by some states, approved by Congress, and became the seat of government of the United States". The U.S. Constitution puts the capital management issues within the competence of federal authorities. For a long time the territorial community of Washington hadn’t the right to elect municipal authorities. But, referring to the communal theory of local government, in Washington’s residents received the right to participate directly in the formation of municipal bodies, with the one exception. The U.S. Census Bureau classifies municipal government bodies on bodies with general competence and with special competence (special districts and school districts). Municipal bodies with special competence don’t function in Washington.

The benefits of communal theory are:

- it provides the largest amount of rights to the territorial community, when it comes about the local government;

- it increases the possibility of maximal reflection of the views of the territorial community;

- it increases confidence in the authorities and local government officials;

- it provides public authorities and officials of local government with the greatest independence from the central government.

These features of the communal theory give the researches the ground to state: this theory contradicts with the theory of the sovereignty of people as the only one source of power in the state. The authors sometimes mention that the sovereignty of the territorial community and its bodies is dangerous for the state (M. Kornienko), that the use of this theory leads to the municipal egoism (B. Perezhnyak).

These arguments explain why the communal theory was transformed to the communal-state (mixed) theory of local government. The mixed theory of local government first appeared in the USA. The transition from the communal to the mixed theory happened because of the introduction of two rules:

1) the authority of the municipal bodies are defined by the federal and the state bodies (Dillon’s rule);

2) the division of the authorities is performed using the principle of subsidiary (Amendment X to the Constitution of the USA).

Nowadays the communal theory of local government isn’t in use. Surely, it is very idealistic, but sometimes the researchers criticize this theory a lot. It might be more fruitful, though, to use this theory as the high standard the countries are willing to reach – like the theory of the rule of law, for example.

The state theory of local government is based on the fact that the nature of the municipal power is the state one. The supporters of this theory consider that the state has all of the power and can share it with some other bodies, including the municipal bodies. The researchers that use the state theory of local government don’t support the thesis that the public power in the state is divided into the public state power and public municipal power. According to this theory, local government is the form of decentralization of the state power (M. Kornienko). B.Perezhnyak and A.Batanov add that "unlike the central government, local government is performed not by the government officials, but by local authorities elected by the local residents.

The state theory of local government is used by Republic of Cuba, People’s Republic of China, Iraq Republic, Libya (Great Socialist People's Libyan Arab Jamahiriya), Republic Belarus, Republic Uzbekistan, Republic Turkmenistan, Republic Azerbaijan, some others.

O. Fritsky considers that the state theory, with some modifications, is used in Ukraine. But according to the legislation and legal positions of the Constitutional Court of Ukraine, our country uses mixed theory of local government. The evidences can be found in the Law of Ukraine “On Local self-government in Ukraine’, in the decisions of the Constitutional Court of Ukraine on cases ‘On local self-government’, ‘On the administrative-territorial division’, ‘On combining the positions of the member of parliament and the head of the city council’ and “On the special features of exercising the executive power and the local government in the districts of Kyiv’.

The benefits of state theory of local government are:

- the local government can be introduced not only on for the territorial communities (like with the communal theory), but also for the groups of the territorial communities (for example in Ukraine – not only in villages, settlements and cities, but also in districts and oblasts;

- there is practically no tension in the relationships between the local government and the state government.

The biggest drawback of the state theory of local government is that the territorial community has fewer abilities to show their initiative, to take part in the working out of the decisions on the local level.

The third theory of local government is the state-communal theory, or the mixed theory, or the theory of the municipal dualism. The researchers that use this theory claim that the bodies of local self-government are independent from the state when they perform their own functions. But when the municipal bodies perform the state’s functions (they can receive them through the delegation of the powers) they should be considered the state bodies. P.Lubchenko writes that ‘the local government is independent from the state only when it solves purely service and communal problems, and in the political sphere the local government is a state’s agent, that perform the state’s functions’.

The major advantage of the theory of municipal dualism is that it combines the advantages of the communal and state theories of the local government. But it also combines their drawbacks. Besides, M. Kornienko considers the theory of municipal dualism has several more minuses:

- the existence of the local government bodies with the double (state and municipal) nature contradicts with the theory of the integral social systems;

- the existence of the local government bodies with the double (state and municipal) nature contradicts with the theory of separation of powers.

The theory of municipal dualism is used by the biggest part of the countries, including the USA, the United Kingdom of Great Britain and Northern Ireland, Federal Republic of Germany, French Republic, Japan, Estonian Republic, Latvian Republic and Republic of Poland.

These three theories of local government – the communal theory, the state theory and the theory of municipal dualism – reflect the nature of the local government in the country. There is one more group of the theories of local government, which reflects the main function of the local government as it seen in the country.

In every democratic country the municipal government is the additional protection for the civil society and as one more institution that helps to implement the human rights and freedoms on the local level. But also, local government bodies carry other functions. The theories of the functions of local government help to generalize what function considers as the most important one:

- service theory (Molle, Vasiltchikov, Leshkov). According to this theory, the main function of the municipal bodies is to deliver various services to the territorial community;

- theory of municipalities as legal persons (Panejko, Ellinek, Gradovsky). According to this theory, the main function of the municipal bodies is to operate with the profit, like any other for-profit legal person. Thus the municipal bodies should earn the major part of the resources to cover their expenses themselves;

- theory of municipal socialism (Zagryatskov, Kyrchinsky). According to this theory, the main function of the municipal bodies is to contribute into the social welfare of the territorial community;

- organical theory (Spenser, Worms, Blunchli). According to this theory, the main function of the municipal bodies is to be self-sufficient – like the part (organ) of the social organism – and simultaneously to contribute to the society. Some authors within this theory propose to see the territorial community as the organism and the municipal bodies as its organs, that have to ensure the functioning of the territorial community;

- social-class theory (Reisner, Stuchka, Velikhov). According to this theory, the main function of the municipal bodies is to help the state authorities to protect the interests of the ruling class.

In order to make a successful comparative municipal research, several points are essential: 1) the knowledge of the basics of constitutional law; 2) the knowledge of terminology; 3) the familiarity with the legal families and municipal systems; 4) the awareness with the type of the state (political) regime used in the country and 5) the answer to the questions “What is the origin of the municipal power?’ or ‘What is the nature of the local government?”, “What is the main function of the local government?”.

Mandatory reading:

1. The European Urban Charter (1992) (the text is included).

Recommended reading:

1. Constitution of Ukraine.

2. Law of Ukraine of 21.05.1997 On Local Self-Government in Ukraine.

3. Cingranelli D.L. Race, Politics and Elites: Testing Alternative Models of Municipal Service Distribution // American Journal of Political Science, Vol. 25, No. 4 (Nov., 1981), pp. 664-692. Available at: http://www.jstor.org/pss/2110758

4. Comparative law. McGill University, Montreal, Quebec, Canada. Available at: http://www.mcgill.ca/maritimelaw/comparative/

5. Davies B. (1970) Social Needs and Resources in Local Services // Public Administration 48 (2), P.214–216. Available at: http://www.blackwell-synergy.com/doi/abs/10.1111/j.1467-9299.1970.tb00018.x,

6. Gibbs D., Longhurst J., Braithwaite C. Moving Towards Sustainable Development? Integrating Economic Development and the Environment in Local Authorities // Journal of Environmental Planning and Management. - Volume 39. - Issue 3 (September 1996). – P.317 – 332. Available at: http://www.informaworld.com/smpp/content~content=a713676378~db=all

7. Heady F. Public administration: a comparative perspective. - CRC Press, 2001. – 467p. Available at: http://books.google.com/books?id=8wpmwuNVKIUC&printsec=frontcover&hl=ru.

8. Nelson M. (1997) Municipal Government Approaches to Service Delivery: an Analysis from a Transactions Cost Perspective // Economic Inquiry 35 (1), 82–96. Available at: http://www.blackwell-synergy.com/doi/abs/10.1111/j.1465-7295.1997.tb01896.x

9. Ott R. Building Sustainable Communities—A Report from the Field. Available at: http://encarta.msn.com/sidebar_1741587172/Sustainable_Community.html,

10. Rainey M. Municipal Government. Available at: http://www.juntosociety.com/government/municipal.htm

11. Smith, Mark K. (2001) 'Communitarianism and education', the encyclopaedia of informal education. Available at: http://www.infed.org/biblio/communitarianism.htm

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