This post is the first in a 2021 special series, which is a companion to the Gilbert + Tobin Centre of Public Law’s Global Public Law Virtual Book Series. The aim of the virtual book series is to invite leading scholars in public law around the globe to share ideas from a recent book with an Australian audience, and to engage with Australia-based commentators.

BY ERIKA ARBAN

Ran Hirschl’s latest monograph City, State: Constitutionalism and the Megacity represents the first work in comparative constitutional studies that takes very seriously the rise of urbanisation in present times and interrogates the relationship between constitutionalism and urban growth. By resorting to a rich set of staggering empirical data on the impact of urban development in modern society, Hirschl raises several issues and asks many thought-provoking questions that critique the neglect that constitutional theory and practice has until now showed for cities as autonomous units of scholarly inquiry. He also proposes various tools to try to remedy this situation. Among the many lines of inquiry developed in the book, Hirschl looks at the status of cities in national constitutions, the possible reasons behind their neglect in constitutional law, and the justifications that can be advanced to support a constitutional entrenchment – or empowerment – of cities.

In this short contribution, I will try to briefly map the main arguments developed in the book and offer some thoughts on two sets of issues that have emerged from my reading of the book and that may have some relevance for the Australian context.

The book takes as its point of departure the claim that urban agglomeration and the rise of the megacity are among the most significant phenomena of our time. However, until now constitutional studies have neglected this phenomenon, so we need to rethink the relationship between urbanisation and the megacity. To this end, Hirschl first surveys how cities are treated in national constitutions worldwide, concluding that constitutions are mainly silent when it comes to recognising an independent constitutional place for cities to the point that, in federal and unitary states alike, cities are largely subjugated to higher levels of government. Next, he comparatively explores the status of megacities both in “old” (eg Global North) and “new” (eg largely, the Global South) constitutional orders, respectively: from this overview, it appears that innovation in the relationship between constitutional law and cities mainly comes from “new world” constitutions, while “old” constitutions still tend to limit city power.

In surveying the treatment of cities in constitutions worldwide, Hirschl devotes some time to sketching the situation in Australia, concluding that ‘Australia’s constitutional order allows for near-complete state domination of cities and, metropolitan governance more generally’ with Australian states controlling in practice every aspect of local governments (including their existence, roles, powers, activities, financial autonomy, etc.). Metropolises like Melbourne, Sydney and Brisbane are thus ‘at the mercy of state governments, which effectively control a variety of key policy areas including education; health; and policing to planning, land use, infrastructure, and major utilities’. Australia, however, is not unique in underrepresenting cities, as many other federal systems around the world do the same. Next, Hirschl illustrates some attempts made by cities to expand their quasi-constitutional powers through initiatives such as ‘sustainable cities’, ‘solidarity cities’ and city self-emancipation initiatives pursued through international intercity collaboration, city-based human rights charters, or experiments with urban citizenship. The last chapter of the book proposes some interesting arguments supporting a broader constitutional role for cities.

City, State is a path-breaking book for several reasons. First, for its originality: until now the city as an independent actor in constitutional law has never been studied in such thick terms. Of course, there is some literature in the social sciences on cities qua local governments and on metropolitan regions in multilevel systems, but very little thinking has been done in constitutional law examining the city as such. Second, the book is a genuinely comparative work, as it features cases and data spanning across continents, and across the Global North and the Global South. It is a truly global survey of a phenomenon that, in its extremes, affects particularly the Global South, and it takes the lead in incentivising that kind of serious comparative work. Third, the book deserves to be praised because it invites constitutional law scholars to think creatively and look at cities in a fresh and unconventional way. Finally, it identifies many intellectual gaps existing in constitutional theory and practice, and offers several tools to help scholars reflect on the changed role of cities.

While the book raises many themes and sparks several questions, I will now briefly focus on two sets of issues that I found particularly relevant in general terms but also for Australia more specifically: the first is the desirability of constitutional entrenchment of cities, and the second is the definition of cities for purposes of constitutional law.

The desirability of constitutional entrenchment of cities

As noted, a core claim made in the book is that cities remain largely absent from constitutional law debates even though the rise of megacities represents a major challenge in modern governance. Consequently, Hirschl contends, we lack the basic vocabulary and ‘constitutional categories’ to address this reality in constitutional law. Hirschl identifies several reasons for this neglect, from constitutional rigidity to the fact that many states see cities as competitors, thus resisting their empowerment. He also notices the existence of an enduring ‘state-centred vision of the constitutional order’ with the Westphalian state paradigm that continues to dominate constitutional and federalism theory and practice. In this regard, Hirschl also refers to the idea of spatial statism whereby the state continues to hold a strong grip on the governance of the territory and of its boundaries. Constitutional entrenchment of cities (whereby cities are given some constitutional status as subjects of constitutional law, ideally with an accompanying set of legislative and fiscal powers) would thus help overcome this statist outlook.

Next, Hirschl maintains that such constitutional empowerment would be desirable also in light of the fact that the majority of the world’s population now lives in cities. In fact, extensive urbanisation – particularly in the Global South – puts lots of pressure on cities to provide basic services, resources and infrastructure to accommodate urban dwellers. Hirschl further asserts that the lack of constitutional status for cities has a negative impact on democracy, subsidiarity and stakeholding. Finally, granting a constitutional status to cities would also have a symbolic value, in that it would acknowledge their role in and for the community.

All such claims are of course valid and very persuasive. At the same time, however, two counterarguments could be advanced to probe the claims.  First, what I refer to as the Global North/Global South counterargument: as Hirschl also acknowledges in the book, although urban growth is a global trend, megacities of tens of million people are likely to remain – at least for the foreseeable future – a main feature of a certain part of the world, ie developing countries mainly located in Africa and Asia. In smaller countries with a more uniform level of economic development and more limited urban growth – as is the case for many countries in Europe and North America – cities are perhaps faced with less challenging circumstances. In other words, the challenges in governing a city like Mexico City (with 20+ million people) are different than the challenges in governing a city like Geneva, Helsinki or Barcelona, especially in a context like Switzerland or Spain where local governments already enjoy a certain constitutional recognition. The question thus becomes: in more homogeneous contexts, would the constitutional entrenchment of cities still be desirable, or would it unnecessarily complicate governance without bringing any real benefit to city dwellers?

A second possible counterargument to city constitutional empowerment is what I describe as the urban/rural divide: while it is undeniable that cities have their own unique traits (characterised as they are by density, diversity, larger population, connectivity, etc.), rural areas are also discrete spaces with their own features: does this imply that rural areas should also be constitutionally entrenched as separate units?

This last counterargument has particular relevance for Australia. Geographically speaking, Australia is quite unique, in the sense that it is characterised by a very large territory, mostly sparsely (if at all) populated, but at the same time highly urbanised, with about 15 million (of a total of less than 26 million) inhabitants living in the metropolitan areas of five large cities (Sydney, Melbourne, Brisbane, Perth and Adelaide). The urban/rural divide (and the striking differences in population density, another important aspect discussed in the book) thus becomes particularly relevant. At the same time, the fact that in each of the six Australian states most of the population is concentrated in one city (with all that implies in terms of social, economic, and political relevance), the almost total subjugation of the metropolitan area to state governments seems anachronistic, if not implausible.

The definition of cities in constitutional law

If we are persuaded that cities should be constitutionally empowered, which cities should then qualify for such purposes? This leads to my second issue: how can we define a city for the purposes of constitutional law? This is in fact a multi-pronged question, as it invites us to reflect on at least two sub-issues: (i) whether such definition is possible at all, and (ii) to what extent the city overlaps with local governments and municipalities.

In the book, Hirschl chooses not to offer a clear definition of the city as an independent subject of constitutional law. Also, although the rise of megacities is used as a compelling illustration of the growing importance of urbanisation, Hirschl seems to advocate for a greater constitutional role for all cities – larger and smaller, although smaller cities are quite different from megacities.

While Hirschl does not define the city, references to key traits of urban areas are scattered throughout the book: references are made to features like diversity, density, population, connectivity, etc. Although accurate, I think that a definition of cities based on such traits only is too vague and fails to capture the essence of the city as a subject of constitutional law, as these features apply to large and small urban agglomerations alike and are too relative and too contingent on local circumstances. This proves that the city remains an elusive construct that is difficult to chart in absolute terms.

I thus suggest two possible ways to bypass the problem. The first is to look not only at diversity, density or size, but also at the historic, economic and political relevance of cities to justify their constitutional empowerment. The second would be to think of empowering only those cities that are fully autonomous and self-sufficient in all respects.

Finally, my last point: to what extent do cities and local governments overlap? In the book, Hirschl alludes to local governments and municipalities (of which cities are usually part): several constitutions already entrench local governments and grant them some powers, although this level of government is not as powerful and autonomous as first-level subunits (like for instance provinces in Canada, states in US and Australia, Länder in Germany or cantons in Switzerland). I read Hirschl’s book as an invitation to consider cities as distinct orders of government or as political communities autonomous from local governments and municipalities. If this reading is correct, then the next question would be why local governments or municipalities as currently entrenched in certain constitutions are inadequate to address and respond to the challenges faced by cities.

Again, the two aspects just discussed might have a relevance in the Australian context: if we are convinced of the need to constitutionally empower cities, which Australian cities should be entrenched? Only the five largest metropolitan areas or also smaller cities like Hobart and Darwin, or even cities other than state capitals like Newcastle? And would they be entrenched as autonomous units from local governments, which would then remain subjugated to state powers?

In any event, the two main issues raised in this post (the desirability of city entrenchment particularly in light of the Global North/Global South and the urban/rural counterarguments, as well as the definition of the city in constitutional law) also contribute to the debate on the ‘unit’ question which – as Hirschl acutely observes many times in the book – has unfortunately found until now very little space in constitutional debates. In other words, we take it for granted that the traditional sub-units in constitutional law are for example the six states and two territories in Australia (or the ten Canadian provinces, or the fifty US states), but very little discussion exists in constitutional theory and practice about whether these sub-units are ideal in terms of size and population to serve effectively the citizens living therein, and whether the city would be a better unit of government. This is a question that of course needs further debate, but it remains extremely important.

In conclusion, City, State is a book that offers new thinking about constitutionalism and urbanisation, and significantly enriches the conversation in constitutional theory and practice. It also has the potential to have a long-lasting impact in the field of (comparative) constitutional studies, and I hope it will inspire many scholars – in Australia and elsewhere – to take on the challenge and engage with the many important questions sparked by the book.

Author’s note: this blog post builds on previous work published in the International Journal of Constitutional Law, and forthcoming in the American Journal of Comparative Law.

Erika Arban is a Postdoctoral Fellow in the Laureate Program in Comparative Constitutional Law at Melbourne Law School.

Suggested citation: Erika Arban, ‘A critical review of City, State and potential implications for Australian cities’ on AUSPUBLAW (7 May 2021) <https://auspublaw.org/2021/05/a-critical-review-of-city-state-and-potential-implications-for-australian-cities/>