ECPR JOINT SESSION OF WORKSHOPS

HELSINKI 7-12 MAY, 2007

WORKSHOP 13:

„Exploring New Avenues in Comparative Federalism

Research“

Roland Sturm

From symmetry to asymmetry - Germany‘s New Federalism

Prof. Dr. Roland Sturm

Institut für Politische Wissenschaft

Friedrich- Alexander-Universität Erlangen-Nürnberg

Kochstr. 4

91054 Erlangen

Germany

Tel.: x49-9131 8522370

Fax: x49-9131 8522371

E-Mail: rdsturm@phil.uni-erlangen.de

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1. Understanding the politics of federalism reform in Germany

2006 was the year of the second substantial reform of German post-war

federalism. Almost forty years after the first reform in the late sixties a window

of opportunity for political change had opened again. At first sight the

explanation for the circumstances under which federalism reform in Germany

is possible seems to be simple. In both cases of federalism reform Germany

was governed by a grand coalition which could muster the necessary two-

third majority in both legislative bodies of the country for the revision of the

Basic Law, the German constitution.

This observation refers to the formal preconditions for constitutional change. It

does, however, neither shed light on the direction a specific reform of

federalism takes, nor on the elements needed for finding a stable balance of

interests in the context of social change. In the German case the essence of

this balance is an equilibrium of the widely differing preferences of

government and opposition, of Länder governed by Christiandemocrats or

Socialdemocrats, of poor and rich Länder and of the Länder and federal

government. So political solutions are far from straightforward.

It remains therefore an open question why federalism reform has opted, for

example, for certain new constitutional rules and not for others, and also why

at a specific point in time the window of opportunity for reform opened at all.

The following analysis will address these questions. It will proceed in three

steps. The first step is a theoretical one, which will deal with the problem of

the timing and the range of reforms. The second step will both illustrate

structural and situational elements of reform, namely the new social context

for federalism reform in Germany in the early 21th century and the conditions

under which political compromise was possible. And finally, federalism reform

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itself will be analysed and interpreted as the result of structural and situational

change in German politics and society.

2. Is there no alternative to historical institutionalism?

2.1. Democracy, uniformity, and symmetry: The historical path of Germany‘s

federalism

In German scientific discourse on federalism historical institutionalism is

predominant. Already in the 1970s (Lehmbruch 1976) the argument was

made that the unitary tendencies of German federalism were a direct result of

path dependency, which favoured the dominant role of the centre over

subnational governments and made diversity an obsolete concept.

Diversity in German federalism was historically connected with the role of the

Laender in Imperial Germany (1871-1918). The „dual federalism“ of this

period was characterised (a) by insufficient democracy in states mostly

governed by constitution-based monarchies, (b) by the inability of the federal

government to raise sufficient resources not only for the first World War, but

also for social policies, for example, and (c) by a markedly asymmetric

federalism, because of the dominant role of Prussia on the one hand (Prussia

made up 65% of the German territory and was home to 62% of the German

population.) and because of the large number of small German states (19 of

25) on the other.

In a historical perspective political progress and the advance of democracy

became associated with a revolt against imperial style dual federalism.

Democrats demanded more competences and financial powers for the federal

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government, less diversity and more symmetry of the Länder/ states in size

and influence. The Weimar Republic (1918-1933) was a major step into this

direction. The Weimar Republic can be described as a decentralized unitary

state with certain elements of Land autonomy, but no efficient role in the

national government for the Länder. A finance reform centralized the power of

taxation and left the Länder with almost no sources of income of their own.

The Reich now controlled the Länder administrations and created its own

administrative capacities. Prussia‘s special status in the Second Chamber

(Reichsrat) was reduced, because no state was allowed to have more than

two fifth of the seats there, and in addition half of the Prussian votes had to be

given to the representatives of regions in Prussia. This served as an

additional device to reduce the role of the Prussian government in the

Reichsrat.

The Basic Law of 1949 was the product of a situation in which the Länder

already existed and had to agree to a new federation including the power-

sharing this implied. This in itself made it highly unlikely that the Weimar

arrangements were simply reproduced. But more importantly, the Allied

powers in West Germany insisted on meaningful federalism. Both influences

taken together reversed to some extent the Weimar Republic parameters.

They took decentralization one step further and transformed Weimar style

decentralized unitarism into co-operative federalism. In post-war Germany

dual federalism and diversity were, however, not an option. Symmetry of the

formal rights of the Länder was strictly adhered to. So the new German

federalism after the Second World War started generally speaking much

closer to Weimar than to Imperial Berlin.

What is more important, however, is the fact that the last year Germans had

experienced diversity in federalism was 1914 (And, of course, it was only the

tiny political class of that time who could really claim to have „experienced“

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federalism in form of a quasi-confederation). It would be an exaggeration to

state that this memory had introduced dual federalism into German political

culture and had created a general belief system based on the merits of

diversity and asymmetry. If anything, centralism and the unitary state have

been implanted into German collective consciousness in the course of history

with the experiences of the Weimar Republic and afterwards the Nazi

dictatorship and a communist dictatorship in East Germany. So it does not

come as a surprise that we read already in the early 1960s that Germany had

developed her co-operative federal post-war arrangements into instruments of

a unitary federal state (Hesse 1962). The reasons now given for uniformity

have less to do with the intention to efficiently organize a democratic state

after the end of aristocratic rule, but with the kind of efficiency attributed to

technological change, economies of scale and the growth in interdependency

of social life in general. In other words adaptation to social change meant in

the (West) German political discourse a return to the traditional preferences

for centralized decision-making.

2.2. What does historical institutionalism explain?

Path dependency, the key concept of historical institutionalism, claims that the

development of German federalism is contingent. This means that an

explicable pattern of events exists which relates one point in history to the

other, and that this pattern is able to „lock in“ and therefore to reproduce

conditions which determine the future shape of federalism. A major element of

these conditions is the set of federal institutional arrangements in a wider

sense (including also constitutional and behavioural factors) which have

developed over time. Once locked in, path dependency is irreversible, but in

its concrete manifestations not unchangeable.

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Evolution is to be expected, but the range of possibilities for change is

constrained by the formative period of the federal institutional arrangements

(Peters 1999: 65). These arrangements can only be broken up at certain

critical junctures of historical development. Critical junctures are caused by

ruptures in the history of a country which seriously question the basic

asumptions on which the national political system rests. Nevertheless there

remains the collective memory of the previous path of development and a

strong incentive to return to modes of decision-making embedded in national

political cultures. Evolutionary change is highly unlikely to redirect policies and

the policy-making process. Inertia and the lack of alternative visions are

elements closely connected with the notion of path dependency.

Another basic concept of historical institutionalism is the idea that path

dependency is plausible, because it produces increasing returns (Beyer 2006:

15f.), or in other words it is better suited to reduce the costs of decision-

making. Once a path has been chosen, investments are made which bear fruit

over time and create path loyalty. The implicit assumption here is not that the

chosen path is - in comparison with all alternative paths - always the most

efficient or most suitable one. Still it is the path which makes optimal use of

the sunk costs of previous decisions. With regard to inefficiences one

possibility is therefore definitely excluded, namely that path dependency leads

to a reduction of the level of political gains secured in the past by path loyalty.

Path loyalty creates adaptive expectations for decision-makers. They „feel a

need to ‚pick the right horse‘ because options that fail to win broad

acceptance will have drawbacks later on.“ (Pierson 2000: 490).

These theoretical assumptions of historical institutionalism seem to explain

very well the development of German federalism in the 20th century. Historical

institutionalism illustrates that sequence matters. It structures better than any

ahistorical stochastic model the alternative modes of development for German

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federalism (Howlett/ Rayner 2006: 2). The partial reverse of the trend to

unitary federalism by the introduction of co-operative federalism in West

Germany after the defeat of Nazi-Germany, and the need for a fresh start after

1945 can be explained by extraordinary circumstances which provoked

discontinuity.

The Allied powers were open to all kinds of federalism, including American

style dual federalism, even with a Senate instead of a Bundesrat as second

chamber of Parliament. It were the German politicians who advocated a return

to a version of federalism which to some degree imitated Weimar centralism

by giving most legislative powers to the federal government and most

administrative responsibilities to the Länder. Cooperation based on the

sharing out of policy-making functions, with the federal government in the role

of the agenda setter and the Länder controlling policy implementation, had as

its logical consequence a model of federalism which again assembled the

traditional cornerstones of German federalism: democracy, uniformity and

symmetry.

The first substantial reform of German federalism in the late 1960s was,

measured by these criteria, fully path dependent. It deepened the cooperation

of the federal government and the Länder to a point where it was difficult to

differentiate this cooperation from unitarism, a fact which was reflected in

many political science publications (Abromeit 1992 with a typical title: „The

barely hidden unitary state“.). Not only was the tax system in its major

elements centralized, many of the remaining Land competences became also

integrated into mechanisms of joint policy-making of the Länder and the

federal government. This time the justification for a path dependent reform

was the need for greater efficiency of economic policy-making. Efficiency in

the mid-1960s implied a Keynesian strategy for steering the national economy

(Sturm 2001). Both the instruments needed for effectively steering the

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economy as a whole from the centre and the social values, such as higher

living standards for every citizen and social and job security for everyone

seemed to demand more uniformity in German federalism.

The federalism narrative of the 1960s was enriched and quasi-focused by the

notion of uniformity of living conditions (Einheitlichkeit der

Lebensverhältnisse). This became the adequate term to convey the point-of-

reference German federalism had created for its political justification.

Uniformity as variable decisive for the definition of the corridor of federalism

reform became the yardstick for the adaptation of German federalism to

changed social circumstances. Uniformity became the norm, for diversity

special reasons had to be given. Pockets of diversity, which survived, for

example, in the school systems of the Länder were labelled by reformers of

the 1970s as pre-modern, and criticisized for the extent of „parochialism“ they

still allowed.

The strength of symmetry, another element of the path dependent

development of German federalism, was proven in 1990, the year of German

unification. There was never any doubt that the five new East German Länder

were to be integrated into West Germany‘s Basic Law with the same

constitutional status as the existing West German ones. This excluded also

positive discrimination. Neither were the East Germans given a special veto

power with regard to the radical institutional change they experienced on all

levels of government and society, not even for a transitional period, nor were

special institutions created to give them a voice on the federal level. After all,

one should not forget that unification was the merger of two polities with

different political norms and different expectations of society and the political

system (Sturm 1999: 138) - a fact which is a problem for the German polity till

the present day.

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For the new democracy in the East symmetry on the Land level was seen as

best way of East German interest representation in the new Germany

although the East Germans were in the Bundesrat outnumbered by the West,

however, at the same time overrepresented by size of population. More

disturbing consequences than the symmetry of political institutions had the

symmetry of social institutions (Manow-Borgwardt 1994), such as the health

service or the school system, because symmetry resulted here - from the

point-of-view of East Germans - in a loss of both efficiency and regional

identification.

As this brief overview illustrates the development of German federalism

seems to provide amble evidence for the validity of the basic assumptions of

historical institutionalism. If we try to fathom the predictive qualities of

historical institutionalism, however, it is obvious that this approach has

difficulties to identify the exact circumstances for the timing of reforms. In

addition, it rules out reforms of German federalism that question democracy,

uniformity or symmetry as crucial elements of the German federal order.

When dealing with the 2006 federalism reform scholars writing in the tradition

of historical institutionalism (Benz 2005, Hesse 2005, Scharpf 2005) have

most of the time engaged in policy narratives which ducked these problems.

For explaining the timing of reform they have worked „backwards from

ultimate outcomes to trace causative agents and pivotal moments in the

historical records of what are viewed as inevitable sequences of policy-

making events.“ (Howlett/ Rayner 2006: 8). Employing the hermeneutic

mechanisms of enplotment and narratology ex post descriptions only add,

however, explanatory force to historical institutionalism in an unsystematic

way.

In addition to theoretical inconsistency when explaining the timing of

federalism reform historical institutionalist arguments have a problem with the

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direction reform may take. What makes it so difficult to accomodate the 2006

reforms of German federalism in a narrative that is compatible with historical

institutionalist expectations is that this reform deviates from the principles of

uniformity and symmetry. This has not happened in a spectacular way.

Uniformity was not substituted by diversity, and symmetry not by asymmetry.

But the fact that a new vision for the development of German federalism could

gain ground at all, questions the validity of historical institutionalist

assumptions regarding the path dependency of change in Germany‘s

federalism. Change in the form of „institutional layering“ (Beyer 2006: 34),

such as the creation of common tasks in the late 1960s, can be accomodated

in the historical institutionalist paradigm, because it only adapts institutions

and does not supersede them. A new direction of federalism based on the

revision of the core elements of its legitimacy challenges this paradigm,

however, fundamentally. Why so much change and why now are the central

questions historical institutionalism does not answer.

Another unanswered question is, why does path dependency undermine its

own foundations? Interlocking federalism in Germany, which was the product

of quite obviously path dependent federalism reforms developed almost

immediately after it was installed in the late 1960s dysfunctions, which

reduced federalism gains instead of producing increasing returns as was

theoretically to be expected. And even worse, joint decision-making of the

federal government and the Länder led straight into the so-called joint-

decision trap (Scharpf 1985) which seemed to make it impossible, given the

preferences of the actors involved, to overcome inefficiencies of resource

allocation and decision-making in German federalism. Instead of increasing

returns path dependency produced decreasing ones.

These open theoretical questions lead us to alternative views on the

development of German federalism which may perhaps better reconcile

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contingency and change. The central problem with path dependency is that it

mixes contingency and sequence to understand the trajectories of change in

federalism. This makes this paradigm inflexible and insufficiently susceptible

to fundamental change. Jeffrey Haydu (1998) among others has developed

the idea of a „process sequencing“ model which conceptualizes sequences as

reiterated problem-solving. The central idea behind this concept is that in

contrast to historical institutionalism sequencing is not institution dependent,

but problem dependent. This implies automatically frequent new beginnings

whenever problems to be solved acquire a fundamentally new quality.

Over time instead of path dependency we observe a series of punctuated

equlibria. In contrast to punctuated equilibria in historical institutionalist

models, the occurrence of which can only be sufficiently explained after the

fact, because they refer to a rearrangement of institutional settings (Peters

1999: 68), punctuated equilibria in process-sequencing are to be expected

when a new constellation of social problems begins to dominate the social life

of a society. This interpretation of punctuated equlibrium theory goes not only

beyond historical institutionalism, but also beyond traditional punctuated

equilibrium theory which concentrated on political institutions and boundedly

rational decision-making (True et al. 1999: 97), thereby relying more on the

perspective of decision-makers than on social change per se.

This is not to say that process sequencing in contrast to hsitorical

institutionalism excludes continuities: „ continuities across temporal cases can

be traced in part to enduring problems, while more or less contingent solutions

to those problems are seen as reflecting and regenerating the historical

individuality of each period.“ (Haydu 1998: 354). So the explanation of

continuities is in effect close to assumptions of historical institutionalism. But

continuities refer to problems/ social settings and not to institutions alone. The

„logic of appropriateness“ is not generated by institutions, but by (changing)

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social environments.

3. Problems on the „path“ of Germany‘s federalism

If we change perspective when looking at German federalism before its reform

in 2006, i.e. if we focus on social contexts instead of institutions, we see less

the historical continuity of German federalism with regard to its elements of

symmetry and uniformity, and more the „historical individuality“ of the post-war

German society with its specific social settings. German federalism was

characterized by a fairly high degree of social homogeneity with some poorer

Länder in the North of West Germany and a poorer one in the South

(Bavaria), but all in all, although the North-South divide was prominent in the

economic debate till German unity, a relatively modest disparity of tax income

and welfare levels between the Länder. West Germany did not have the

equivalent of the Italian Mezzogiorno (or of today‘s East Germany).

In addition, (West) Germany‘s economy went through an economic miracle till

almost the first half of the 1970s, and even after the oil shock of 1973/74 it

was plausible both in domestic politics as well as in international comparison

to talk about a „Modell Deutschland“. For federalism this implied that the path

dependent arrangements had a solid economic base. Interconnected policy-

making of the federal government and the Länder was greatly facilitated by

the ability of central government to engage in distributive strategies. Though

the public debt kept growing (West) German governments used the central

budget to oil the machinery of political compromise. As long as all the Länder

profited from cooperative federalism there was no incentive to challenge its

substance.

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A third factor stabilising the path of German federalism was the absence of

international competition which challenged the social market model and the

Länder economies. This changed dramatically in the 1980s because of the

successes of Japan on the world markets, Germany‘s shakier position in the

international economy, and, above all, the Single Market project of the EU.

The liberalization of markets which started in 1993 efficiently reduced the role

of nation-states in the EU and provoked a much greater awareness and the

acceptance of new responsibilities by the Länder for the relative economic

position of their economies in the European market (Sturm 1999a: 87ff.).

German unification has ended the era of relative social, cultural and economic

homogenity in Germany. Germany‘s budget problems now no longer allow a

prominent role of distributive policy-making. Shortages lead inevitable to more

redistribution. Zero-sum games have replaced win-win situations. And with the

new Asian and worldwide challenges in addition to a deepening of the Single

Market, which now works in many countries with the same currency and is

oriented towards greater competitiveness by the Lisbon process, in economic

terms the regions in the European Union (in our case, the German Länder)

are more than ever before in a position in which they have to define political

and economic priorities in their own interest.

What does this mean for federalism reform? It means that the promises of

modernity and economic welfare which provided the underpinnings of path

dependency are a phenomenon of the past. The rule book for the German

polity has been rewritten. This is, however not the kind of rupture historical

institutionalism accepts as decisive factor for a revision of path dependency.

Still, it is the background for the second postwar reform of federalism. New

efforts to reform German federalism did not result from an institutional new

beginning of one kind or other, but from new problems which added up to a

whole new political constellation to which German federalism now had to

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respond. As argued above, a process sequencing model is therefore much

better suited to explain why the federalism reform of 2006 was on the agenda

and was successful than historical institutionalism.

When during the last two decades the social and economic framework of

German federalism was almost completely redefined, a new historical period

started, although elements of institutional continuity, such as the Bundesrat,

for example, could remain unchanged. For a reform of German federalism

policy solutions which reflected the new challenges had long been debated. In

the language of the multiple streams approach (Zahariadis1999). The

„problem stream“ and the „policy stream“ existed, what lacked for a long time

was a successful political entrepreneur who was able to create a window of

opportunity to bring both streams together. Only in this capacity the grand

coalition comes into focus. It did not define reform. Reform was the answer to

the „historical individuality“ of German politics and society which emerged in

the last two decades.

One additional important and influential element which also reflected the new

era in the history of German federalism was the support sentences of the

Federal Constitutional Court gave the idea of diversity both with regard to

Länder constitutional autonomy and with regard to Länder control over their

own resources.1 This greatly faciliated the change in the belief systems of

political elites regarding diversity and asymmetry in German federalism.

Finally it was, however, the grand coalition that acted as political

entrepreneur. And again sequencing helps to explain why it was successful.

In December 2005 a first effort of a joint commission of Bundestag and

1 Sentences of the Federal Constitutional Court concerning financial equalisation policies, uniformity of living conditions, a federal ban on student fees and framework legislation restricting Land responsibilities for university reform.

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Bundesrat had failed. Almost the same political personnel looked into the

reform proposals again after the red-green coalition in Berlin had lost office to

the grand coalition. What had changed was that the sequencing of reform

which was before in the hand of the negotiators representing a variety of

conflicting interests was now taken away from them. The politicians now in

charge had to decide in the broader context of coalition-building and the fixing

of ground rules for a new government programme. Public support of the grand

coalition and party cohesion in the two coalition parties could not be taken for

granted after the bitter electoral fight which had preceded coalition-building. In

other words, the grand coalition needed early successes. Federalism refom

seemed to be a good candidate for demonstrating this kind of success,

because it did not fundamentally divide the coalition partners and could build

on encompassing consultation and a fairly long period of preparation. The

window of opportunity was therefore easy to open, and new answers to new

questions of German federalism could be given.

The „historical individuality“ of the new federal arrangement had to reflect the

changed social, political and economic environment of German federalism. It

was, of course, also a compromise regarding the protection of the interests

and resources of the major actors. The newly established federal equilibrium

reduced the role of the federal government in a number of policy areas and

increased Länder autonomy. For some of the Länder, especially the poorer

ones, which preferred both federal subsidies and the umbrella of the federal

government in the EU to more autonomy, it will be more difficult to fully exploit

the new possibilities than for the richer ones. The latter saw their chance to

become fairly autonomous economic players on the Single Market and even

world-wide. A federalism reform had to reflect not only the new opportunities,

but also the restrictions for reform which were mainly defined by the

endeavours of all interests involved to defend their old political, legal and

financial resources. Especially the poorer Länder saw their relative position

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and influence endangered by more diversity and asymmetry in German

federalism.

From a theoretical point-of-view the most interesting aspect of reform is that it

challenged path dependency by including symmetry and uniformity in the

bargaining process instead of accepting them as irremovable cornerstones for

every reform effort.

4. The new German federalism: less symmetry, less uniformity, more

democracy

Diversity and asymmetry became accepted concepts of federalism reform,

though at the centre of reform remained the pre-conditions for diversity and

asymmetry, namely the separation of the competences of the Länder and the

federal government. Reforms to create these pre-conditions have ended

framework legislation, have reduced joint decision-making of the Länder and

the federal government in the framework of the common tasks and have done

away with the requirement of planning committees with representatives of the

Länder and the federal government for the remaining common tasks.

Decisions in these committees were taken in the past by three quarter

majorities (de facto: unanimous) which strengthened uniformity in the policies

made. In addition a number of competences in the field of concurrent

legislation have been re-allocated either to the federal or to the Land level.

It cannot be said, however, that the idea of a competition between the Länder,

as a consequence of greater Länder autonomy finds broad support among

them. It is, so far, still interpreted by the less well off Länder as a device to

marginalize them even further (Schatz et al. 2000). The acceptance of

diversity was a late acknowledgement of the economic and social diversity of

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the country. Diversity is, above all, the result of German unification and the

geographically imbalanced effects of Germany‘s economic crisis. The

acceptance of (limited) asymmetries in Germany is a first step to come to

grips with the dynamics of a society which is much less homogeneous as the

idea of equality of status for the Länder implies. Diversity and asymmetry

mean greater flexibility and, it is hoped, more democratic responsiveness,

transparency of decision-making and accountability.

The 2006 federalism reform modified the two pillars of federalism which

seemed to be unchangeable in the logic of path dependency, namely

symmetry and uniformity. What did that mean in greater detail?

With regard to asymmetry the right to deviate from federal legislation is

granted for those Länder which choose to do so, though still in a very

restricted way. First of all, the number of competences for which the new rules

apply is very small, and environmental law-making which is at the centre of

the competences affected, was already at the time of the reform no longer a

strictly German responsibility. The EU is an important agenda-setter here and

EU law supersedes national law.

Secondly, whenever a Land decides to deviate from federal law this does not

mean that the role of the federal level in the making of policies in this fields

ends. Land law takes precedence, but whenever the federal government

makes a new law, this will then take precedence over the existing Land law.

Of course, the Land has the right to pass legislation which deviates once

again. Instead of a transfer of power to the Länder the right to deviate is an

exercise in ping-pong legislation which does not fix diversity for ever.

Thirdly the right to deviate from existing federal laws will for most of those

laws only be possible from 2010 (with the exception of the rules for admission

to universities for which this is permitted from 2008). Fourthly path

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dependency still delimits the imagination of decision-makers. Asymmetry is a

novel concept, and so far no instant vote-winner, especially in a society in

which asymmetry is in danger of being mixed up with inequality and injustice.

Still, reform has widened the crack in the façade of de jure symmetry which

had hidden de facto social and economic asymmetries.

The right of a Land to deviate from federal rules for the implementation of

federal laws or federal rules for the establishment of institutions designed to

administrate federal laws was granted in parallel to the above said, but also

because there is now the expectation that the federal government will, as a

rule, accept the autonomy of the Länder when they are implementing federal

law, because this reduces the need for joint legislation and by implication the

veto power of the Länder in the Bundesrat, the „second chamber“ for law-

making.

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Table 1: Asymmetry and diversity in German federalism after 2006

Asymmetry Diversity

Right to deviate from federal laws:

hunting (hunting licences are excluded),

protection of nature and landscape

(general principles and the protection of

species and of the maritime habitat are

excluded), real estate and development

planning, water supplies (some

regulatory powers are excluded), access

to universities and university degrees.

Right to deviate from federal rules for

the implementation of federal laws or

federal rules for the establishment of

institutions designed to administrate

federal laws.

New competences (right to make laws)

for the Länder:

execution of sentences (prisons etc.),

public meetings, nursing homes,

opening hours of shops, pubs and

restaurants, game halls, fairs,

exhibitions, markets, housing (some

aspects), agricultural estates and land

lease, social „noise“ (sport events etc.),

salaries of Land civil servants and Land

judges, universities and the construction

of universities, regulation of print media.

Reduction of uniformity:

(a) end of „framework“ legislation

(directives)

(b) reduction of the number of common

tasks (construction of universities and

university hospitals now a Land

responsibility)

(c) reduction of some of the items of

concurrent legislation

(d) more independence for the Länder

when they implement federal laws

(e) right of the Länder to speak for

Germany in the EU (topics: eduction at

schools, electronic media and culture)

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Diversity is most of all to be expected from the new powers exclusively given

to the Länder, especially of their almost exclusive role in education. In this

field they now also have the constitutionally guaranteed explicit right to speak

for Germany on the EU level. Almost immediately after federalism reform had

been passed a debate in the Länder started on shop opening hours. Over

night Germany produced a wide variety of models. There was suddenly a

public interest in decisions of Land parliaments which surprised most Land

MPs. A similarly heated debate followed on smoking in restaurants. One

reason was that the federal government had overlooked that it was no longer

responsible for the relevant legislation and had drafted a bill for the federal

parliament. A second reason was the strange idea of the Länder that non-

smoking rules for restaurants have to be uniform for all over Germany.

This proves the longevity of belief systems that go with path dependency and

the difficulties of exploiting fully the potentials of diversity. Where diversity has

been welcomed by all Land governments is when financial freedoms are

granted. The Länder are no longer - as was the case before - bound by

federal law for the pay structure of their civil services, or regarding the

introduction of student fees and the running of prisons, for example.

More diversity and more asymmetry are no ends in themselves. In the new

German federalism discourse they are closely connceted with more

democracy. The aim is to raise the profile of Land parliaments by giving them

more and meaningful competences. This should help them to better connect

with the citizens, increase the respect for the work done by Land MPs and

should provoke a greater turnout at Land elections.

5. Punctuated equilibrium theory and the reform of German federalism 2006

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The interpretation of the second major post-war reform of German federalism

given here has tried to demonstrate the inadequacy of historical

institutionalism for the explanation of the timing and the content of this reform.

Especially the central concept of historical institutionalism, path dependency,

proves unable to predict and even to explain ex post the direction the reform

has taken. It is suggested here that a sequencing of events which is seen as

problem dependent instead of institution dependent allows us much better

than historical institutionalism to understand (and predict) paradigm changes

of German federalism. This does not exclude contingency as explanatory

factor, but avoids the lack of sensitivity of path dependency models for

paradigmatic social, cultural and economic change. The result of such change

defines the historical individuality of eras of federalism. They are based on

new federal equilibria and punctuated contingency.

22

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