Institutional Arrangements, “Political” Inclusiveness, and the Protection of the Individual: Investigating the Role of Subnational Institutions as Custodians of Social Rights – A Comparative Analysis (Forma di Stato, partecipazione politica e tutela dei singoli: la ridefinizione del ruolo delle istituzioni subnazionali nella tutela dei diritti sociali in prospettiva comparata)

Our proposed research concerns the role that subnational actors play in the protection and implementation of social rights within multilevel legal systems. The trickiest issue in dealing with the topic in question is determining the scope of the research, given that the issues it involves are great in number and heterogeneous in nature. Firstly, the very notion of ‘multilevel legal system’ is as inclusive as it is exclusive, depending on whether one relies on the traditional distinction between unitary and federal states or resorts to more nuanced re-imaginings of those traditional categories, which appear in wide-ranging varieties. Secondly, the role of subnational actors can be investigated from multiple perspectives: We propose to focus on democratically elected political institutions at the so-called ‘intermediate’ or ‘regional’ level of government, in that they represent the institutional crossroads where the ever-present tension between the “static” division of competences traditionally associated with multilevel states and the “dynamic” interplay of hard-law provisions with instruments of a wholly different nature is particularly apparent. Investigating the norms that operate within the scope of inter-institutional relations implies taking a stance on the very concept of ‘law’: Legal literature is overflowing with theorizations and classifications as to what makes it possible for law to be defined as law. We propose to contribute to this debate by attempting a “goal-oriented” definition, focusing on regulatory instruments employed by subnational actors as mediators between political actors at the central level and individuals who come under the protection of the former. We have determined to circumscribe the object of such protection to the category of social rights, which comes with its own set of problems: Not only does every legal system have its own definition – or definitions – of rights that are socially relevant, but one of the underlying core values of social rights in Western liberal democracies, which, incidentally, determine the “geographical” boundaries of our research, is uniformity, that is to say the guarantee that equal protection shall be accorded to individuals irrespective of, among other things, where they live within the territorial confines of the state. However, multilevel states are designed to accommodate and promote diversity and asymmetry, which requires that the egalitarian inspiration behind social rights be somehow reconciled with the degree of autonomy claimed by regional actors in setting their own policy objectives. We propose that intergovernmental relations, and thus the regulatory instruments that are an integral part of institutional interplay, may be the means by which to achieve reconciliation between uniformity and asymmetry. To that effect, we propose to investigate the concept of ‘soft law’ in general, in order to then place it within multilevel frameworks, and then within intergovernmental relations, before arriving at the aforementioned “goal-oriented” conceptualization, in a “Russian egg doll” fashion. Our approach will be of a practical nature: Legal literature shall be given due consideration, but our main focus will be on day-to-day practices and regulatory instruments. In order to somewhat delimit the scope of our research, we will employ specific legal systems as case studies by dividing them into two groups: “Regional” states; “relatively traditional” federal states.