The American Journal of Jurisprudence, Vol. 61, No. 1 (2016), pp. 109–132 doi:10.1093/ajj/auw003 Advance Access published 11 May 2016

Sovereignty, Liberalism and the Intelligibility of Attraction to Subsidiarity

Maria Cahill* Downloaded from https://academic.oup.com/ajj/article/61/1/109/1739878 by guest on 27 September 2021

Abstract: Although our attraction to subsidiarity may often be little more than skin deep, this article proposes that there is a hidden intelligibility to the phenomenon of its gaining increasing attention and prestige. That intelligibility can be discerned through a consideration of the archetype of authority that subsidiarity proposes: embedded authority, which acknowledges the existence of and mandates engagement with groups as groups. This archetype of embedded authority originally acted as a counterweight to the model of disembedded authority proposed by early theories of sovereignty, and in a similar way, subsidiarity’s consistent proposal of embedded authority currently operates as a counterweight to liberalism, with its individualistic emphasis. Against the backdrop of these diverging archetypes of authority, it becomes clearer that subsidiarity cannot be reduced to the status of a charming trinket to embellish liberalism’s public sphere. In fact, coming from an “alien” tradition, subsidiarity offers deep solutions to problems that liberalism itself cannot address.

Keywords: Subsidiarity, Liberalism, Sovereignty, Theories of Authority

What is it that draws us to subsidiarity? Whatever it is, whether a rule, principle, guideline or language,1 it currently enjoys considerable interest and growing

* Lecturer in Law, University College Cork. Email: [email protected] 1 See, e.g., Paul Marquardt, “Subsidiarity and Sovereignty in the European Union,” Fordham International Law Journal 18 (1994): 628; Theodor Schilling, “Subsidiarity as a Rule and a Principle, or: Taking Subsidiarity Seriously,” Harvard Jean Monnet Working Paper 10/95 (1995) (considering subsidiarity as a rule); Nicholas Barber, “The Limited Modesty of Subsidiarity,” European Law Journal 11 (2005): 308; Gra´inne de Bu´rca, “The Principle of Subsidiarity and the Court of Justice as an Institutional Actor,” Journal of Common Market Studies 36 (1998): 217-35; Thomas Horsley, “Subsidiarity and the European Court of Justice: Missing Pieces in the Subsidiarity Jigsaw,” Journal of Common Market Studies 50 (2012): 269; Aurdlian Portuese, “The Principle of Subsidiarity as a Principle of Economic Efficiency,” Columbia Journal of European Law 17 (2011): 234; A. G. Toth, “The Principle of Subsidiarity in the Maastricht Treaty,” Common Market Law Review 29 (1992): 1104 (considering subsidiarity as a principle); Christoph Henkel, “The Allocation of Powers in the European Union: A Closer Look at the Principle of Subsidiarity,” Berkeley Journal of International Law 20 (2002): 366 (considering subsidiarity as a guideline), and Gra´inne de Bu´rca, “Re-appraising Subsidiarity’s Significance after Amsterdam,” Harvard Jean Monnet Working Paper 7/99 (1999) (discussing subsidiarity as a language).

ß The Author 2016. Published by Oxford University Press on behalf of University of Notre Dame. All rights reserved. For Permissions, please email: [email protected]. 110 M. Cahill prestige.2 Perhaps there is no rational basis for this. In Europe, for example, nearly sixty years of constitutional unsettlement have inevitably prompted us to excavate for venerable ideas to bring to light and dust off for re-use; perhaps subsidiarity is just one of a myriad of old things that we have turned to in desperation, but without any real interest in it for its own sake. Still, this article contends that there is intelligibility to our attraction to subsidiarity, whether or not that intelligibility finds resonance in the reality of our conscious sociological response thereto. Just as subsidiarity itself can and should be theorized in order to prevent it degenerating into a dogmatic and unintelligible preference for lower over higher levels,3 so too Downloaded from https://academic.oup.com/ajj/article/61/1/109/1739878 by guest on 27 September 2021 our interest in subsidiarity can be theoretically probed to explore how it acts as a counter weight to one of the prevailing assumptions of our contemporary political philosophy. I do not mean simply that subsidiarity constitutes a backlash against centralization, although it is true, in a sense, that it does,4 and although this may very well be one of the reasons for its growing popularity.5 I mean that subsidiarity offers us a way of governing that can acknowledge the existence of and engage with groups as groups, thereby providing a counterbalance to the individualism which does not easily acknowledge the existence of groups as such, preferring to

2 Subsidiarity’s place in the European Union is well-established in the Preamble and Article 5 of the Treaty on the European Union as well as the Protocol on the Application of the Principles of Subsidiarity and Proportionality. It has recently been introduced into the Preamble of the Convention for the Protection of Human Rights and Fundamental Freedoms by means of Protocol 15. The United Nations Development Programme, 1999 Working Paper on Decentralisation, acknowledges subsidiarity in the context of decentralization. For evidence of aca- demic work discerning increasing support for subsidiarity outside of the European context, see ‘Subsidiarity in Global Governance’ Conference organized by Markus Jachtenfuchs and Nico Krisch at Hertie School of Governance on 19-20th June 2014; Global Perspectives on Subsidiarity, ed. Michelle Evans and Augusto Zimmermann (New York, Springer, 2014); Federalism and Subsidiarity, ed. James E. Fleming and Jacob T. Levy (NOMOS vol. 55) (New York, New York University Press, 2014); Steven Calabresi and Lucy Bickford, “Federalism and Subsidarity: Perspectives from US Constitutional Law,” Northwestern University Faculty Working Papers Paper 215 (2011); Alex Mills, “Federalism in the European Union and the United States: Subsidiarity, Private Law and the Conflict of Laws,” University of Pennsylvania Journal of International Law 32 (2010): 369; Andreas Paulus, “Subsidiarity, Fragmentation and Democracy: Towards the Demise of General International Law?,” in The Shifting Allocation of Authority in International Law: Considering Sovereignty, Supremacy and Subsidiarity, ed. Tomer Broude and Yuval Shany, (Oxford: Hart Publishing, 2008), 193, Robert Vischer, “Subsidiarity as a Principle of Governance: Beyond Devolution,” Indiana Law Review 35 (2001): 103. 3 Maria Cahill, “Theorising Subsidiarity: Towards an Ontology-Sensitive Approach,” International Journal of Constitutional Law (forthcoming). 4 Subsidiarity may well have decentralizing effects but its purpose to afford due recognition to the natural authority of existing groups, and not decentralization for its own sake. Moreover, subsidiarity supposes that the state is the authority of last resort, acting in a subsidiary capacity to those groups. Decentralization and devolution, insofar as they assume that the state can bestow its authority on smaller units of organization and act through them, are in fact the opposite of subsidiarity! See, e.g., Russell Hittinger, “The Coherence of the Four Basic Principles of Catholic Social Doctrine: An Interpretation,” in Pursuing the Common Good: How Solidarity and Subsidiarity Can Work Together, ed. Margaret S. Archer and Paolo Donati, Pontifical Academy of the Social Sciences, Acta, vol. 14 (Vatican City: Pontifical Academy of the Social Sciences, 2008), 95-105, and. Vischer, “Subsidiarity as a Principle of Governance,” 103-107. 5 See, e.g., “From Subsidiarity to Success: The Impact of Decentralisation on Economic Growth,” Study Commissioned by the Assembly of European Regions, May 2009. Sovereignty, Liberalism and the Intelligibility of Attraction to Subsidiarity 111 deal directly with individuals.6 The suggestion is that, attraction to subsidiarity makes sense for its capacity to balance out the dominance of individualism,7 and therefore that, in a climate of political liberalism, it is to be anticipated that subsidiarity’s star should rise. Its origins date back to ancient Greece and Rome, such that when the word “subsidiarity” was coined in the twentieth century it self-consciously describes a historical reality that precedes the neologism by thousands of years.8 Its emergence in Catholic Social Thought was deeply contextualized amidst concerns for the conditions of workers, the primacy of the family, and specific and important func- Downloaded from https://academic.oup.com/ajj/article/61/1/109/1739878 by guest on 27 September 2021 tions that other naturally-occurring groups contribute to the common good, but taken as a whole, it constituted a response to any politico-philosophical ideology (not just socialism) which endorsed the idea of an all-powerful state. Essentially, it positioned itself against the early theories of sovereignty. Specifically, subsidiarity challenged the idea that authority could be disembedded in the way that the original theories of sovereignty had proposed. The archetype of disembedded authority will be depicted in detail; for now, suffice it to say that disembedded authority is au- thority that is, in principle, detached from the society over which it rules. That is not to accuse the holders of authority of being aloof or particularly ill adept at public relations, but to argue that the archetype of authority proposed features character- istics like an abstract creation story, a refusal to engage with intermediate authorities except insofar as they are created by the central authority to carry out micro-mana- ging functions, the inevitable claim to the first priority of obedience from each individual citizen over all competing obligations, and an indifference or invulner- ability to the good of its citizens. In contrast, the model of authority proposed by subsidiarity is one that is embedded, that is, deeply engrained in the society in which it operates. The contours of the embedded model of authority will also be drawn out at length; in a nutshell, they involve an organic creation story, a conscious engagement with naturally-existing intermediate groups in the society and respect

6 See, generally, Individualism: Theories and Methods, ed. Pierre Birnbaum and Jean Leca, (Oxford: Clarendon Press, 1990); Alain Renaut, The Era of the Individual: A Contribution to a History of Subjectivity (Princeton, NJ: Princeton University Press, 1997); Jerrold Siegel, The Idea of the Self: Thought and Experience in Western Europe since the Seventeenth Century (New York: Cambridge University Press, 2005). Compare, Charles Taylor, Sources of the Self: The Making of the Modern Identity (Cambridge, Mass., Harvard University Press, 1992). For an insightful recent article on the interaction between freedom and individualism, see, Alexander Somek, “The Individualisation of Liberty: Europe’s Move from Emancipation to Empowerment,” Transnational Legal Theory 4 (2013): 258. 7 In so doing, it expresses sympathy with the basic tenor of some communitarian critiques of liberalism, for example, Sandel’s response to liberalism’s “antecedently individuated subject,” in which he remarks that “we cannot regard ourselves as independent in this way without great cost to those loyalties and convictions whose moral force consists partly in the fact that living by them is inseparable from understanding ourselves as the particular persons we are—as members of this family or community or nation or people, as bearers of this history, as sons and daughters of that revolution, as citizens of this republic.... To imagine a person incapable of constitutive attachments such as these is not to conceive an ideally free and rational agent, but to imagine a person wholly without character, without moral depth.” Michael Sandel, Liberalism and the Limits of Justice, 2d ed. (Cambridge: Cambridge University Press, 1998), 55, 179. 8 Encyclical Letter of Pope Pius XI on Reconstruction of the Social Order, Quadragesimo Anno (May 15, 1931), para. 79-80. 112 M. Cahill for their internal authority structures, the effort to supplement the primary authority structures of those groups through assistance and coordination, and a deliberate ordering towards the good of the citizens. The contrast between the disembedded and embedded archetypes of authority paves the way for a discussion of liberalism’s vision of authority, in order to discern whether it features more elements of the disembedded or embedded archetypes. Thus, the essential focus of the paper is on authority, though not in the way legal theorists usually engage with that concept. That is, it is concerned neither with theories of legitimacy nor with theories of obligation per se, it does not pay much attention to the distinction between volun- Downloaded from https://academic.oup.com/ajj/article/61/1/109/1739878 by guest on 27 September 2021 tarist and non-voluntarist theories of authority, and, although the contrast between disembedded and embedded archetypes of authority may have implications for these other debates, those implications are not explored here. The focus remains on the contrasting archetypes, and therefore on the unique contribution that subsidiarity offers to our thinking on authority. Parts I and II set up the basic dichotomy between the disembedded and embedded archetypes of authority proposed by sovereignty and subsidiarity, re- spectively. Part 1, on sovereignty, confines itself to considering the work of Bodin and Hobbes, for the purposes of understanding the “pure theory” of sovereignty, although it is acknowledged that contemporary scholars of sovereignty generally take the concept to mean something very different from those original theorists.9 Part 2, on subsidiarity, confines itself to considering scholarship that engages with Catholic social thought from whence subsidiarity emerged for the purposes of uncovering the “pure theory” of subsidiarity, although it must also be acknowl- edged that many scholars who discuss subsidiarity do so without any reference to or else without careful attention to those origins. Part III turns to examine the model of authority proposed by liberalism and confines itself to focus specifically on liberalism as proposed by John Rawls, acknowledging again that there are other liberal theorists, such as Dworkin, Rorty, Habermas, and so on, whose theories differ from Rawls’s in significant ways. The purpose is to see how Rawls’s vision of authority stacks up against those proposed by sovereignty and subsidiarity. If the hypothesis that subsidiarity is attractive precisely because it offers a counterweight to the dominant ideology of the times is correct, then the conjecture must be that the liberal model of authority must not have many features in common with the embedded authority proposed by subsidiarity and may have some features in common with the disembedded archetype proposed by sovereignty. The conclusion is that the enduring attraction of subsidiarity derives from the fact that it provides an antidote to the model of disembedded authority proposed by sovereignty and largely endorsed by liberalism.

9 See, Matej Avbelj, “Theorising Sovereignty and European Integration,” Ratio Juris 27 (2014): 345; State Sovereignty as a Social Construct, ed. Thomas Biersteker and Cynthia Weber (Cambridge: Cambridge University Press, 1996); F. H. Hinsley, Sovereignty,2nd ed., (Cambridge: Cambridge University Press, 1986); Sovereignty in Transition, ed. Neil Walker (Oxford: Hart Publishing, 2003). Interestingly, the desire to create political and philosophical distance from the very uncompromising vision of authority proposed by the original proponents of sovereignty can itself be traced back more than four hundred years: Jon Parkin, Taming the Leviathan: the Reception of the Political and Religious Ideas of Thomas Hobbes in England 1640-1700 (New York: Cambridge University Press, 2007). Sovereignty, Liberalism and the Intelligibility of Attraction to Subsidiarity 113 I.Sovereignty as Disembedded Authority Classically, sovereignty presents a very clear and uncompromising vision of au- thority.10 When Bodin, for example, writes that sovereignty is “absolute and perpetual power of a commonwealth,” he explicates that the first aspect, abso- luteness, entails that “the people or the aristocracy (seigneurs) of a common- wealth can purely and simply give someone absolute and perpetual power to dispose of all possessions, persons, and the entire state at his pleasure, and then toleaveittoanyonehepleases.”11 Bodin strikingly compares this situation to Downloaded from https://academic.oup.com/ajj/article/61/1/109/1739878 by guest on 27 September 2021 that of a proprietor who “can make a pure and simple gift of his goods for no other reason than his generosity.”12 Thegiftmustbeanoutrightone,carrying “no further conditions, being complete and accomplished all at once” because if it were restricted by limitations and conditions it would not properly describe sovereignty.13 Thus established, “the main point of sovereign majesty and abso- lute power consists of giving the law to subjects in general without their con- sent;”14 the sovereign is not subject to the commands of non-sovereigns,15 the laws of his predecessors or even his own laws.16 Hobbes’s sovereign, meanwhile, famously emerges from the necessity to avoid “such a war, as is of every man, against every man,” which is to be achieved by investing enough power in one manthathewillbeabletoinducesufficientfearintheothersthattheywill forego the demands of their passions for the sake of the peace he imposes; he wields “a common power to keep them all in awe.”17 Accordingly, all the mem- bers of the polity must: confer all their power and strength upon one man, or upon one assembly of men, that may reduce all their wills, by plurality of voices, unto one will: ... to appoint one man, or assembly of men, to bear their person ... and therein to submit their wills, every one to his will, and their judgments, to his judgment.18 The sovereign then has absolute power—nothing that he commands his subjects to do could be called injustice19–whilst the subjects have no right to disobey20 and

10 This article is concerned with the theoretical exposition of sovereignty, rather than its histor- ico-political impact or its connection with political theology. For the latter, see, respectively, Thomas Ertman, Birth of the Leviathan: Building States and Regimes in Medieval and Early Modern Europe (New York: Cambridge University Press, 1997); Ernst Kantorowicz, The King’s Two Bodies: A Study in Medieval Political Theology (Princeton, NJ: Princeton University Press, 1998[1957]). 11 Jean Bodin, On Sovereignty: Four chapters from the Six Books of the Commonwealth, ed. Julian Franklin (Cambridge: Cambridge University Press, 1992), 1, 7-8. 12 Ibid., 8. 13 Ibid., 8. 14 Ibid., 23. 15 Ibid., 11. 16 Ibid., 27. 17 Thomas Hobbes, Leviathan, ed. John Gaskin (Oxford: Oxford University Press, 1998), 84. 18 Ibid., 114. 19 Ibid., 141. 20 Ibid., 144. 114 M. Cahill no right of revolt.21 Hobbes describes the emergence of “sovereignty by institu- tion”22 in social contract terms: [It is a] covenant of every man with every man, in such manner, as if every man should say to every man I authorize and give up my right of governing myself, to this man, or to this assembly of men, on this condition, that thou give up thy right to him, and authorize all his actions in like manner.23 Nonetheless, to his mind, there is no principled distinction between this kind of sovereignty, which emerges by this process of institution and the alternative, Downloaded from https://academic.oup.com/ajj/article/61/1/109/1739878 by guest on 27 September 2021 “sovereignty by acquisition,”24 whereby the sovereign comes to power despotic- ally. Indeed, there is no distinction between sovereignty and tyranny since “the name of tyranny signifieth nothing more, nor less, than the name of sovereignty.”25 The first characteristic of sovereignty’s model of authority is that it is unitary. All sovereign power reposes in one person or one institution, and that person or institution has absolute power of command over all subjects. Bodin insists that any attempts to divide or limit sovereignty, whereby power is “tossed up and back between two parties,” are “egregious absurdities and utterly incompatible with absolute sovereignty.”26 If a person holds power subject to restrictions, he is not sovereign,27 and if a person has absolute power for a limited period of time, after which he reverts to being a subject, he was never sovereign.28 Hobbes’s sovereign is established on the basis that each individual in the commonwealth covenants to surrender his will to the primacy of the sovereign’s will. Thus, there are no longer several thousand individuals acting according to their own lights, but rather a multitude of persons who are one in the sovereign Leviathan. Hobbes refers to this intense sense of unity through the image of the whole commonwealth as “one person, of whose acts a great multitude, by mutual covenants one with another, have made themselves every one the author.”29 In both theories, the authority exercised in any one territory emanates from one source: “the single, universal will of the sovereign.”30 For this reason, sovereign authority is mutually intelli-

21 Ibid., 123. 22 Ibid., 144. 23 Ibid., 114. Emphasis in original. 24 Ibid., 132. Hobbes notes that other writers call this “despotical” sovereignty and affirms that “the rights and consequences of...despotical dominion, are the very same with those of a sovereign by institution”. Ibid., 134-135. 25 Ibid., 470. 26 Bodin, On Sovereignty, 27. 27 Ibid., 7-8. 28 Ibid., 1-2. 29 Hobbes, Leviathan, 114. 30 Olaf Asbach, “Sovereignty between Effectiveness and Legitimacy: Dimensions and Actual Relevance of Sovereignty in Bodin, Hobbes and Rousseau,” Eurostudia 2, (2006): 8. “The principle of sovereignty breaks up this utterly intertwined jumble of particular rights interlinked with one’s position in social, corporative or ecclesiastical hierarchies. It does not simply gather up these rights, add them up and lay claim on them...but puts them on a new basis: the single, universal will of the sovereign.” Sovereignty, Liberalism and the Intelligibility of Attraction to Subsidiarity 115 gible between rulers, and the Peace of Westphalia becomes possible: states can be recognized equal in sovereignty because sovereignty is characteristically unitary.31 The second characteristic is that sovereign authority is addressed to individuals and seeks to establish a direct and unmediated connection between the sovereign who commands and the individual who obeys. Bodin supposes that individuals give the sovereign “absolute and perpetual power to dispose of all possessions, persons, and the entire state at his pleasure,”32 thereby by-passing any intermedi- ary institutions of civic society. Hobbes takes a very pejorative view of such in- Downloaded from https://academic.oup.com/ajj/article/61/1/109/1739878 by guest on 27 September 2021 stitutions, holding that it would be “an egregious error” to believe that “civil associations must have arisen out of free and natural communities.”33 In his view, any existing associations, being comprised of individuals, necessarily become the battlefields of perpetual war due to disagreements among those in- dividuals over competition, diffidence and glory.34 It is essential to break the bonds of association in order to establish “a common power to keep them all in awe,”35 such that each individual remains in sufficient fear of the sovereign to prevent him going to war with his neighbor. That is, avoidance of perpetual war is secured precisely by ensuring that the individual’s connection to the sovereign takes priority over his relationships with his neighbors. Indeed, the individual’s connection to the sovereign becomes the basis for his relationship with others, since the words of the covenant that Hobbes puts into the mouths of the subjects are: “I authorize and give up my right of governing myself... on this condition, that thou give up thy right to him, and authorize all his actions in like manner.”36 Hence, the sovereign addresses himself to individuals, and through his unrivalled power to command, establishes direct and unmediated relationships with them. The third characteristic is that sovereign authority is an abstract construction. Although both Bodin and Hobbes describe the establishment of the sovereign as the initiative of the citizenry, there is to be no sociological reality to this initiative. In Bodin’s theory, this is clear because in his explication of the absoluteness of sovereign power, Bodin describes the unconditional and voluntary self-surrender of the people as being “just as a proprietor can make a pure and simple gift of his goods for no other reason than his generosity,”37 which seems implausible enough to be taken only in an abstract sense. For Hobbes, similarly, the centrality of the

31 More recent theories of sovereignty countenance the notion of there being more than one sov- ereignty ruling over a specific territory, and even speak of sharing and dividing sovereignty—a departure from original theories of Bodin and Hobbes. See, e.g., Avbelj, Theorising Sovereignty and European Integration; Samantha Besson, “Sovereignty in Conflict,” European Integration Online Papers 8 (2004): 1-50; Neil Walker, “Late Sovereignty in the European Union,” in Sovereignty in Transition,3. 32 Bodin, On Sovereignty, 7-8. 33 Quentin Skinner, “Hobbes on Persons, Authors and Representatives,” in The Cambridge Companion to Hobbes’s Leviathan, ed. Patricia Springborg (Cambridge: Cambridge University Press, 2007), 162. 34 Hobbes, Leviathan, 83-4. 35 Ibid., 84. 36 Ibid., 114. If any social groups remain after the establishment of the sovereign, they remain only with the acquiescence of and subject to the command of the sovereign. Ibid., 149. 37 Bodin, On Sovereignty,8. 116 M. Cahill covenant is compromised by his treatment of sovereignty by institution and sov- ereignty by acquisition—and indeed sovereignty and tyranny—as equivalents. Moreover, the covenant theory entails, as Skinner explains, that “once the indi- vidual members of the multitude have performed this act of submission, this... has the effect of converting them from a mere throng into one Person.”38 Hobbes’s personified multitude of renounced individuals become the sovereign whose name is Leviathan and whose title, more impressively, is “Mortal God,to which we owe under the Immortal God, our peace and defense.”39 In this way, as Springborg notes, “Hobbes effectively deflated centuries of political theology on Downloaded from https://academic.oup.com/ajj/article/61/1/109/1739878 by guest on 27 September 2021 the organic nature of the body politic,”40 replacing that medieval organicism with his abstract construction. The fourth characteristic of this model of authority is that it is superordinate.As far as Bodin is concerned, sovereignty “is not limited either in power, or in function, or in length of time”, on account of its characteristic absoluteness.41 Although Bodin recognized, as Dunning explains, that “the basis of the state, both in historical and in logical development, is the family,” he nonetheless insisted that in matters of common interest, “a supreme power is essential to the idea of the state,”42 and so it is superordinate even to the authority of the family. In short, the exclusive priority of the sovereign’s authority is such that “the subject owes obedience to his sovereign prince against all others, reserving the majesty of God,”43 except in cases where the sovereign’s “edicts are directly contrary to the law of God.”44 In this sense, Bodin’s theory of sovereignty is, as Shepard notes, “at the crossroads” between pre- and post-Enlightenment visions of the human person’s ability to know truth and God.45 Hobbes, meanwhile, inscribes the title ‘non est potestas super terram quae comparetur ei’ over the head of the illustrated Leviathan on the copperplate cover of his famous book, to emphasise that “the sovereign power...is as great, as possibly men can be imagined to make it.”46 The sovereign has the power of life and death over his subjects, and their liberty is strictly confined to those actions that the sovereign has “praetermitted” in his discretion.47 Hobbes permitted neither a right of disobedience for the sake of a higher law “for in the act of our submission, consisteth both our obligation and our liberty,”48 nor a right of revolt, since within his vision there is no independent

38 Skinner, “Hobbes on Persons, Authors and Representatives,” 163. 39 Hobbes, Leviathan, 114. The title is at least an abstraction, if not a contradiction in terms. 40 Patricia Springborg, “General Introduction,” in Cambridge Companion to Hobbes’s Leviathan,7- 8. 41 Bodin, On Sovereignty,3. 42 William Dunning, “Jean Bodin on Sovereignty” Political Science Quarterly 11(1986): 82-104. 43 Bodin, On Sovereignty, 35. 44 Ibid., 34. 45 Max Shepard, “Sovereignty at the Crossroads: A Study of Bodin” Political Science Quarterly 45 (1930): 580-603. While Bodin believed that the sovereign’s laws should, in keeping with the natural law tradition, “be modelled on the law of God” and that the sovereign could be found “guilty of treason against God” for breaches of divine and natural laws, he nonetheless denied that there was any earthly reality to this remedy and rejected the medieval idea of a right of resistance. Bodin, On Sovereignty, 45, 13, 120. 46 Hobbes, Leviathan, 138. 47 Ibid., 141. 48 Ibid., 144. Sovereignty, Liberalism and the Intelligibility of Attraction to Subsidiarity 117 standard of justice by reference to one could judge the commands of a sovereign and therefore no possible cause for displacing him.49 In Asbach’s words, sover- eignty is envisioned as “the unified, centralized, universal power which stands opposed to all other actors in the social system and is on principle superordinate to them.”50 Emphatically, Hobbes held that “nothing the sovereign representative can do to a subject, on what pretence soever, can properly be called injustice, or injury” on the basis of the sleight of hand that “every subject is author of every act the sovereign doth.”51 The pre-eminent position of the sovereign, in each ac- count, and the superordinateness of his authority derive from the fact that rivals Downloaded from https://academic.oup.com/ajj/article/61/1/109/1739878 by guest on 27 September 2021 have already been vanquished according to the requirements of the first charac- teristic of unitary authority. The fifth characteristic of sovereign authority is that it is impervious to the good. The purpose of sovereignty is the existence of the sovereign and thus sovereign authority is ordered self-referentially. Bodin conveys this very simply when he states that: “the main point of sovereign majesty and absolute power consists of giving the law to subjects in general without their consent.”52 It is a circular proposition, of course, and that is precisely the point: the purpose of the sovereign is simply to be sovereign. One might interject to recall that Bodin’s sovereign is subject to laws of God and that breaches of natural laws constitute “treason against God” which God will punish after death;53 nonetheless sovereign author- ity remains impervious to good in the sense that there are no immanent conse- quences for such a breach; “it is never permissible for a subject to attempt anything against a sovereign prince, no matter how wicked and cruel he may be.”54 Hobbes’s thesis is built on the supposition that the natural freedom and equality of men are what lead to war, whereas the establishment of the sovereign, the power which over-awes them all, is the necessary means to avoid such terrible war. Once Leviathan is established, however there are no independent standards against which to measure the commands of the sovereign; it is precisely in order to decide what is permissible and what is impermissible that the sovereign is estab- lished in the first place. As Asbach concludes: “in the end, sovereignty is nothing else that the ability to enforce the one (sovereign) will, i.e. to indicate and establish what the rules in a society are to be, what is to be in order and what forbidden, what is to be right and wrong.”55 Debates about the content of the powers of the sovereign, or the functions and purposes of his office, are therefore meaningless. The sole purpose is peace or the prevention of war, and the existence of the sovereign is taken to be the guarantee of peace and the prevention of war. Once the sovereign is in place, his existence is his purpose; there is nothing further to be achieved.

49 Ibid., 123. 50 Asbach, “Sovereignty between Effectiveness and Legitimacy,” 8. 51 Hobbes, Leviathan, 141. 52 Bodin, On Sovereignty, 23. 53 Ibid., 13 54 Ibid., 120. “For oh, how many tyrants there would be if it were lawful to kill them! He who taxes too heavily would be a tyrant, as the vulgar understand it; he who gives commands that the people do not like would be a tyrant...How then should good princes be secure in their lives?” 55 Asbach, “Sovereignty between Effectiveness and Legitimacy,” 8. 118 M. Cahill II.Subsidiarity as Embedded Authority Subsidiarity’s etymological roots date back to the old Latin word subsidium, which carries the meaning of “assistance, help, support” and also “a body of troops withheld from action as a reinforcement for the frontline” i.e., “the reserves.”56 The text that introduced the term subsidiarity, the Papal Encyclical Quadragesimo Anno written by Pope Pius XI, employed the term “servato hoc ‘subsidiarii’ officii principio,”57 which although it clearly connected to that existing noun subsidium, implied a further noun subsidiarium, which was a neologism. This neologism was Downloaded from https://academic.oup.com/ajj/article/61/1/109/1739878 by guest on 27 September 2021 derived from the work of Luigi Taparelli D’Azeglio,58 who theorized that, like all sentences, “all societies, other than the most basic ones such as family or simple partnerships, are always composed of other societies, and there exist social rules governing the relations among such nested and overlapping societies.”59 In pro- posing subsidiarium, Quadragesimo Anno considered itself to be re-affirming an existent principle of political philosophy, describing subsidiarity as “that most weighty principle, which cannot be set aside or changed, [but] remains fixed and unshaken in social philosophy.”60 And indeed, subsidiarity’s philosophical roots are about as old as its etymological roots: Aristotle’s Politics describes how a family—“the association established by nature”—gives rise, together with other families, to the village, which in turn gives rise, together with other villages, to the city-state.61 This classical image of the body politic, in which, in Millon-Delsol’s words, these groups are “emboıˆte´s les uns dans les autres,”62 was later endorsed by the patristic and scholastic writers. However, although Aristotle believed that only the city-state (polis) was fully self-sufficient (autarkeia) and therefore it alone could be a political community with self-governing authority,63 Thomas Aquinas affirmed, to the contrary, that households and villages have self-suffi- ciency in certain aspects, and that therefore they too exercise “degrees of self- government.”64 His modified version of the classical image of the body politic— an organicism of unities nested within unities but retaining functional and deci- sional autonomy—held sway during the medieval period.65 In fact, it is precisely

56 Oxford Latin Dictionary, 2d ed. P.G.W. Glare (Oxford: Clarendon Press, 2012), 2038-2039. 57 Quadragesimo Anno, para. 80 [“in observance of the principle of ‘subsidiary’ function”]. 58 Oswald von Nell-Breuning, “The Drafting of Quadragesimo Anno,” in Readings in Moral Theology No. 5: Official Catholic Social Teaching, ed. Charles E. Curran and Richard McCormick (New York: Paulist Press, 1986), 60. 59 Patrick Brennan, “Subsidiarity in the Tradition of Catholic Social Doctrine,” in Global Perspectives on Subsidiarity, ed. Michelle Evans and Augusto Zimmermann (New York: Springer, 2014), 34. 60 Quadragesimo Anno, para. 79. 61 Aristotle, Politics, trans. B. Jowett, (Infomotions, 2001), Book 1, chapter 2. 62 Chantal Millon-Delsol, Le Principe de Subsidiarite´ (Paris: Presses Universitaires de France, 1993) [“nested one inside another”]. 63 Nicholas Aroney, “Subsidiarity in the Writings of Aristotle and Aquinas,” in Global Perspectives, 13. 64 Nicholas Aroney, “Subsidiarity, Federalism and the Best Constitution: Thomas Aquinas on City, Province and Empire,” Law and Philosophy 26 (2007): 221. 65 As von Gierke puts it: “what is genuinely medieval starts from the Whole, but ascribes an intrinsic value to every Partial Whole down to and including the Individual.” Otto von Gierke, Political Theories of the Middle Age, trans. Frederic Maitland (Union, NJ: Lawbook Exchange, 2002), 7. Sovereignty, Liberalism and the Intelligibility of Attraction to Subsidiarity 119 as a counter-proposal to this medieval organicism that sovereignty emerges, and, in turn, it is in reaction to sovereignty that subsidiarity (re)surfaces. With this rich philosophical background in mind, one can better understand the classic formulation of subsidiarity given in Quadragesimo Anno: [I]t is an injustice and at the same time a grave evil and disturbance of right order to assign to a greater and higher association what lesser and subordinate organizations can do. For every social activity ought of its very nature to furnish help to the members of 66

the body social, and never destroy and absorb them. Downloaded from https://academic.oup.com/ajj/article/61/1/109/1739878 by guest on 27 September 2021 More than a political exhortation to decentralization, whereby higher units would exercise their discretion to devolve powers to lower units, this formulation of subsidiarity is proposed as a normative imperative, on the basis that there is a “right order” which must be respected as a matter of justice, that there is a “body social” which must be sustained, and that the “very nature” of social coordination should be to “furnish help.” As stated by Hittinger, the impetus behind the emergence of Catholic social teaching was precisely the need to defend the prop- ositions “that the state does not enjoy a monopoly over group-personhood” and “that societies other than the state not only possess real dignity as rights and duties-bearing unities, but that they also enjoy modes of authority proper to their own society.”67 Without more, it is already clear that the vision of authority being proposed by subsidiarity sharply contrasts with that proposed by sover- eignty. For a start, the state does not have a monopoly on authority; moreover, the state does not even have first place in the authority stakes. Subsidiarity turns our expectations on their head: as a “higher association,” the state has only the subsidiary authority, yielding to the primary authority of the “lesser organisa- tions,” like families, charities, trade unions, town councils, and so on. The first characteristic of subsidiarity’s model of authority is that authority exercised by the state is fundamentally incommensurable with the authority exer- cised within other associations. Unlike sovereignty’s authority archetype, subsidi- arity insists that to sweep up all of those associations into one central unit would be “a grave evil and disturbance of right order.”68 Rather, associations that exist on different levels for diverse purposes must be deliberately maintained in their very difference: their authority cannot be weighed by reference to a common measure or plotted along the same axes; it may not even be mutually intelligible. Although it seems trite to say it, subsidiarity’s central insights are that the authority that subsists within a family is not the same kind of authority as that which subsists within a trade union, a sporting organization, a charity, a state or a federation, and that, in their very incommensurability, all of these authorities are irreplaceably necessary. We err when we discount this aphorism; the error is the effort to produce a new version of the Treaty of Westphalia, in which we assert that the authority of families, football associations and federations is fundamentally the same, and therefore commensurable, the wrong-headedness of which is all too apparent. That is not to say that different kinds of authorities must exist in an

66 Quadragesimo Anno, para. 79. 67 Hittinger, “The Coherence of the Four Basic Principles of Catholic Social Doctrine,” 106. 68 Quadragesimo Anno, para. 79. 120 M. Cahill agonistic or anarchic way, nor to deny that the state can have a coordinating function. But it is to insist, in the language of the encyclical, that it is a disturb- ance of right order to treat them as if they were commensurable and capable of being subsumed within the one unitary structure. The second characteristic is that subsidiarity espouses a model of authority that is addressed to groups, rather than individuals. Describing the function of subsidi- arity as the maintenance of “a graduated order among the various associations,”69 Quadragesimo Anno makes clear that the problem for which subsidiarity is the antidote is the destruction or absorption of groups due to the over-involvement of Downloaded from https://academic.oup.com/ajj/article/61/1/109/1739878 by guest on 27 September 2021 external agents, e.g., the state, in their internal affairs.70 In protecting groups, of course, subsidiarity does not deny the rights of individuals. To the contrary, the principle of subsidiarity is ordered to the protection of human dignity, and spe- cifically honors the natural need and right of human persons to associate.71 Ironically, the state which forbids its citizens to form associations or fails to act according to the requirements of subsidiarity “contradicts the very principle of its own existence, for both they and it exist in virtue of the like principle, namely, the natural tendency of man to dwell in society.”72 Quadragesimo Anno refers in very critical terms to the rise of individualism, and the attendant “near extinction of that rich social life which was once highly developed through associations of various kinds.”73 In direct opposition to sovereignty’s championing of the idea of a direct unmediated connection between each individual and Leviathan, sub- sidiarity propounds that an environment in which “there remains virtually only individuals and the State”74 is deeply regrettable for its denial of the necessary social dimension of human flourishing. Instead, “subsidiarity presupposes that the human person toward whose flourishing the application of the principle is aimed is naturally social,”75 and therefore urges that the state should address itself to groups and uphold their existence precisely out of respect for individuals in their sociality. The third characteristic of subsidiarity’s authority is that it is organic. Rather than establishing itself in abstraction, subsidiarity starts with recogni- tion of the existence of groups that emerge naturally in response to this irreducibly social dimension of human flourishing. Millon-Delsol,76

69 Quadragesimo Anno, para. 80. 70 Ibid., para 79. 71 Hittinger, “The Coherence of the Four Basic Principles of Catholic Social Doctrine,” 77 et seq. Cf. Heinrich Rommen, The State in Catholic Thought: A Treatise in Political Philosophy (New York: Praeger, 1970), 302. Carozza ably demonstrates subsidiarity’s foundation in personalism and com- mensurate capacity to structure human rights adjudication. Paolo Carozza, “Subsidiarity as a Structural Principle of International Human Rights Law” American Journal of International Law 97 (2003): 42-49. 72 Encyclical Letter of Pope Leo XIII on Capital and Labour Rerum Novarum (May 15, 1891), para. 51. 73 Quadragesimo Anno, para. 78. 74 Ibid., para. 78. 75 Carozza, “Subsidiarity as a Structural Principle of International Human Rights Law,” 42. 76 Millon-Delsol, Le Principe de Subsidiarite´, 5-6. “L’ide´e de subsidiarite´ repose sur une anthropologie spe´cifique. Elle s’enracine dans une philosophie de l’homme et de la socie´te´” (The idea of subsidiarity rests on a specific anthropology. It takes root in a philosophy of man and of society). Sovereignty, Liberalism and the Intelligibility of Attraction to Subsidiarity 121

Brennan,77 and Hittinger78 have all articulated this point. The important idea is that “the relative worth of the lower body is not merely a derivative one, but of an original nature, based on the respective common good to be ac- complished,”79 this “lower body” being the primary unit. Subsidiarity is committed to preserving the existence of those naturally-occurring groups, and therefore the archetype of authority that it proposes will conduce towards the same end. The key insight here is that honoring the existence of these groups will entail honoring their internal authority structures. As Hittinger explains, these entities, having “neither the unity of a substance [i.e. natural Downloaded from https://academic.oup.com/ajj/article/61/1/109/1739878 by guest on 27 September 2021 persons], nor the unity merely imposed upon things in the fashion of a legal or mental fiction” are a society only in virtue of their “unity of order,”80 meaning the unity achieved by their internal organization. Since groups rarely successfully function by unanimity,81 it is their internal authority structures that maintain their unity; if those internal authority structures are not re- spected, the group will either be destroyed from within or absorbed from without. Hence it is necessary to respect the capacity of a group to self- govern, and an “injustice” not to.82 In the poetic words of Rerum Novarum, the state should refrain from involvement in the “peculiar concerns and... organization” of these naturally occurring groups, lest they “be killed by the rough grasp of a hand from without;” rather, these groups should be allowed to “move and live by the spirit inspiring them.”83 The conclusion is not that there is no role at all for a subsidiary unit such as the state, but subsidiarity’s claim is that the subsidiarity function it exercises must preserve

77 Brennan, “Subsidiarity in the Tradition of Catholic Social Doctrine,” 36. “[T]he principle of subsidiarity recognizes, and thus honors, the ontological facts about how individuals associate for the performance of unique functions.” Emphasis in original. 78 Hittinger, “The Coherence of the Four Basic Principles of Catholic Social Doctrine,” 112-3. “[S]olidarity and subsidiarity...presuppose the existence of a society”. 79 Franz H. Mueller, “The Principle of Subsidiarity in the Christian Tradition,” The American Catholic Sociological Review 4 (1943): 151. Cf. Thomas Aquinas, De Regno: On Kingship: To the King of Cyprus, trans. Gerald Phelan, ed. Joseph Kenny (Toronto: Pontifical Institute of Medieval Studies, 1949), bk 1, ch 2, para. 14. “There is, to some extent, sufficiency for life in one family of one household, namely, insofar as pertains to the natural acts of nourishing and the begetting of offspring and other things of this kind. Self-sufficiency exists, furthermore, in one street with regard to those things which belong to the trade of one guild. In a city, which is the perfect community, it exists with regard to all the necessities of life. Still more self-sufficiency is found in a province because of the need of fighting together and of mutual help against enemies.” 80 Hittinger, “The Coherence of the Four Basic Principles of Catholic Social Doctrine,” 81. 81 Ibid., 109. “Where there is no right to group authority, common action will depend entirely on spontaneous unanimity. This is hardly possible in a family, much less in an economic corporation, a university faculty, a church, or even a sports team.” 82 Quadragesimo Anno, para. 78. Cf. Hittinger, “The Coherence of the Four Basic Principles of Catholic Social Doctrine,” 108. “Wherever is a society marked by common ends and unity (or harmony) of action there must be authority. Leo’s point is that the state will do an injustice if it allows societies to exist, but denies their capacity for self-government.” Cf. John Finnis, Natural Law and Natural Rights 2nd ed. (Oxford, Oxford University Press, 2011), 169. 83 Rerum Novarum, para. 55. See also Encyclical of Pope John Paul II on the Hundredth Anniversary of Rerum Novarum, Centesimus Annus, (May 1, 1991), para. 48. “[A] community of a higher order should not interfere in the internal life of a community of a lower order, depriving it of the functions which properly belong to it.” 122 M. Cahill and protect, rather than deny and displace, the organic authority of the pri- mary units. The fourth characteristic is that subsidiarity envisages the state’s authority as supplemental. In contrast to the unitary sovereign with his superordinate authority, subsidiarity’s model of authority envisages multiple and incommensurable layers of authority existing in different groups at different levels. When the state, as a subsidiary unit, exercises its authority in respect of these groups, it does so in a supplemental capacity, as an authority of last resort, as it were. Indeed, on sub- sidiarity’s view, the state’s authority is premised upon the authority of the primary Downloaded from https://academic.oup.com/ajj/article/61/1/109/1739878 by guest on 27 September 2021 units. This supplemental exercise of authority underscores that intervention by the subsidiary unit is always the second-best solution, a remedial effort designed to buttress the efforts of the primary unit.84 Importantly, this is also to the ad- vantage of the state, since a “great harm” accrues to the state insofar as it allows itself to be drawn into the activities that should be accomplished by civil society and thereby “overwhelmed and crushed by almost infinite tasks and duties.”85 I have elsewhere suggested that a subsidiary unit, such as the state, should have no right of initiative to intervene but rather should, generally speaking, only respond to “calls for the provision and withdrawal of assistance made by primary units,” aside from exceptional cases “when the authority structures of the primary unit are so weakened or corrupted that they are manifestly incapable of assessing the need for assistance or willfully refuse to seek necessary assistance,” in which case an override mechanism should be used.86 The fifth characteristic is that subsidiarity’s model of authority is one that is ordered to the good. First of all, this means that subsidiarity is not co-extensive with “maximizing the sphere of rational economic self-interest; nor is it directed merely to fostering individual self-realization through a rich and diverse ‘civil society’; nor yet can it be exhausted by application to legislative or democratic processes in the political sphere.”87 Secondly, unlike the sovereign model, subsidiarity’s archetyp- ical authority is not exercised self-referentially in the absence of independent standards of justice. Finally and importantly, it also means that the purpose of subsidiarity is not, as is often thought, the promotion of smaller units just for the sake of having smaller units. “Subsidiarity cannot, therefore, be understood as a principle militating in favor of smallness of scale per se.”88 Against all of these options, subsidiarity exists in order to promote the good of the primary units, which themselves ultimately promote the common good through all of their various intermediate ends and modes.89 Most often, this will mean that the state, as a subsidiary unit, should refrain from interfering with the internal

84 Centesimus Annus, para. 48. “[I]n exceptional circumstances the State can also exercise a substitute function.... Such supplementary interventions, which are justified by urgent reasons touching the common good, must be as brief as possible, so as to avoid removing permanently from society and business systems the gifts of service which are properly theirs [propria munera].” 85 Quadragesimo Anno, para. 78. 86 Cahill, “Theorizing Subsidiarity” (forthcoming) 87 Carozza, “Subsidiarity as a Structural Principle of International Human Rights Law,” 46. 88 Brennan, “Subsidiarity in the Tradition of Catholic Social Doctrine,” 39. Cf. Hittinger, “The Coherence of the Four Basic Principles of Catholic Social Doctrine,” 113. 89 Hittinger, “The Coherence of the Four Basic Principles of Catholic Social Doctrine,” 84. Sovereignty, Liberalism and the Intelligibility of Attraction to Subsidiarity 123 authority of well-functioning primary units in order to allow them to flourish through their own self-government. At other times, this will mean that the state, as a subsidiary unit, should exercise its supplemental authority offering assistance to those primary units which so require, and in a manner which rehabilitates the internal authority structures of those primary units in order to restore their cap- acity to work towards the good for which they exist.90 As Rommen puts it: “The purpose of this intervention [by the state] is the reconstruction of the order, the rehabilitation of the function, not the abolition of the part or the substitution of the state for the lower society.”91 Thus, when the state, following the model of Downloaded from https://academic.oup.com/ajj/article/61/1/109/1739878 by guest on 27 September 2021 authority promoted by subsidiarity, refrains from interfering with the primary units or does intervene to bring assistance, it is always ordered away from itself and towards the good of those primary units, and through them towards the common good “as based in the totality of conditions necessary for a full and flourishing human life.”92

III.Liberalism’s Archetype of Authority Having reaffirmed that subsidiarity is an alternative to sovereignty,93 the question which animates this final section is whether liberalism endorses the archetype of authority envisioned by sovereignty with its disembedded authority which is uni- tary, addressed to individuals, an abstract construction, superordinate and imper- vious to the good, or whether it is closer to the archetype of authority offered by subsidiarity with its embedded authority which is incommensurable, addressed to groups, organic, supplemental and ordered to the good. To arrive at an answer, this section will presently examine the liberal model in light of the five dichoto- mies produced by those five sets of characteristics. The pure theory of sovereignty is no longer en vogue, but the origins, in the work of Bodin and Hobbes, of a system whereby subjects would actively or tacitly consent to the establishment of a particular ruler who would rule over them become, in the work of Locke,94 Rousseau,95 and Kant,96 fully-fledged social contract theories. Rousseau, for example, echoes the terms of Hobbes’s covenant in which the subject is both author of and subject to the laws of the sovereign.97

90 Ibid., 113. “Subsidiarity is nothing other than the principle that, when aid be given, it not remove or destroy the authority or functions (munera) proper to the society being assisted.” 91 Rommen, The State in Catholic Thought, 303. 92 Carozza, “Subsidiarity as a Structural Principle of International Human Rights Law,” 49. 93 Barber, Carozza and de Bu´rca also argue that sovereignty and subsidiarity are opposing concepts, for reasons that are broadly in line with those offered here. See Barber, “The Limited Modesty of Subsidiarity,” 323-4; Carozza, “Subsidiarity as a Structural Principle of International Human Rights Law,” 63-68; de Bu´rca, “Reappraising Subsidiarity’s Significance after Amsterdam.” 94 John Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1960). 95 Jean-Jacques Rousseau, The Social Contract, ed. Maurice Cranston (London, Harmondsworth: Penguin, 1968). 96 Immanuel Kant, “On the Common Saying: That may be Correct in Theory but it is of no Use in Practice,” in Immanuel Kant, Practical Philosophy, ed. Mary Gregor (Cambridge: Cambridge University Press, 1996), 273. 97 Jean-Jacques Rousseau, The Social Contract, Book 1, Chapter 7. 124 M. Cahill

The philosophies of those social contract theorists were, in turn, inherited by modern liberal theorists, including, in particular, John Rawls.98 Tracing this series of testamentary gifts backwards, we could consider Hobbes as the father or foun- der of liberalism,99 without failing to recognise that whilst Hobbes supposed that, in the state of nature, “free and equal people are in a condition of utter wretch- edness and insecurity—not in spite of their liberty and equality, but because of them,”100 liberal theorists make the opposition assumption. They exalt freedom, understood as negative freedom,101 supposing that it is the guarantor of felicity. “New liberalism” or “political liberalism”102 is offered by Rawls in answer to the Downloaded from https://academic.oup.com/ajj/article/61/1/109/1739878 by guest on 27 September 2021 question of “how is it possible for there to exist over time a just and stable society of free and equal citizens, who remain profoundly divided by reasonable religious, philosophical and moral doctrines?”103 In developing his theory, Rawls proposes a “political conception of the per- son,”104 the defining characteristic of which is her liberty, meaning that she chooses her own good,105 she is the source of validity for her own claims and may promote her own good in the public sphere by reference to herself as this source of validity,106 and she adjusts the purposes of her life to maximize her success in the achievement of her chosen good.107 One might even say, although Rawls does not go this far, that in his account it is the individual who is sover- eign.108 Having allowed each to establish her own “good,” that is, her well- worked out and deeply-held religious, philosophical or moral views about the value and meaning of life, he assumes that these “comprehensive doctrines” of the good will conflict, but nonetheless believes all citizens can agree to a “political conception” of justice109 known as “justice as fairness,” and comprising two basic rules:

98 John Rawls, A Theory of Justice, 2nd ed. (Cambridge, MA: Harvard University Press, 1999), 10. “My aim is to present a conception of justice which generalises and carries to a higher level of abstraction the familiar theory of the social contract as found, say, in Locke, Rousseau, and Kant.” 99 See, Lucien Jaume, “Hobbes and the Philosophical Sources of Liberalism,” in Cambridge Companion to Hobbes’ Leviathan, 199. 100 Kinch Hoekstra, “Hobbes on the Natural Condition of Mankind,” in Cambridge Companion to Hobbes’ Leviathan, 122. 101 Isaiah Berlin, “TwoConcepts of Liberty,” in his Four Essays on Liberty (Oxford: Oxford University Press, 1969), 118-72. 102 John Rawls, Political Liberalism (New York, Columbia University Press, 2005). 103 Ibid., 3. 104 Ibid., 29-34. Rawls insists that no metaphysical doctrine of the person is presupposed by his political conception of the person. 105 Rawls, Political Liberalism, 30. 106 Ibid., 32. Although the political conception curtails her capacity to do so to those comprehensive doctrines that fall “within the range permitted by the public conception of justice.” Emphasis added. 107 Ibid., 33. 108 Sandel, for example, understands Rawls’s theory to present “the human subject as a sovereign agent of choice, a creature whose ends are chosen rather than given, who comes by his aims and purposes by acts of will, as opposed, say, to acts of cognition.” Michael Sandel, Liberalism and the Limits of Justice, 22. For an exposition of the sovereign selfhood as the third phase of sovereignty, after the sovereignty of God and state sovereignty, see Jean Bethke Elshtain, Sovereignty: God, State, and Self (New York: Basic Books, 2012). For a critical reflection on sovereign individualism, see Sharon Krause, Freedom beyond Sovereignty: Reconstructing Liberalism Individualism (Chicago: University of Chicago Press, 2015). 109 Rawls, Political Liberalism, 10. Sovereignty, Liberalism and the Intelligibility of Attraction to Subsidiarity 125

[T]he first requires equality in the assignment of basic rights and duties, while the second holds that social and economic inequalities, for example inequalities of wealth and authority, are just only if they result in compensating benefits for everyone, and in particular for the least advantaged members of society.110 The establishment of these rules constitutes the legitimation of the exercise of political power,111 and all the detailed laws and rules must follow from this con- ception, since by means of this social contract “men [have decided] in advance how 112

they are to regulate their claims against one another.” A “well-ordered society,” Downloaded from https://academic.oup.com/ajj/article/61/1/109/1739878 by guest on 27 September 2021 in Rawlsian terms, will be one in which both the citizenry and the main political and social institutions accept and comply with these principles of justice.113 The first dichotomy is between unitary and incommensurable authority. On the one hand, Rawls supposes citizens to be the authors of their own good, viz. their own comprehensive religious, philosophical or moral doctrine; he takes for granted both that they will seek to advance their comprehensive doctrines in the public sphere, and that some societies are established on the basis of a single comprehen- sive doctrine.114 On the other hand, he takes it as “fact” that a society based on a comprehensive doctrine “can be maintained only by the oppressive use of state power,”115 and seeks to avoid this by proposing that our social contract be based on a political conception of justice which is “freestanding” (political, rather than the metaphysical).116 The political conception is to be independent of and neutral between comprehensive views,117 allowing people to fulfil their own moral lives according to the requirements of their comprehensive doctrines while abiding by the requirements of justice as fairness in matters political. So far, it appears that the comprehensive doctrine and the political conception mandate incommensurable authorities, shadowing the incommensurability of authorities present in the sub- sidiarity archetype. Yet, his position is not so straightforward. For a start, as Rawls himself admits, the political conception “is, of course, a moral conception” which has been devised for use by political institutions.118 Secondly, although it is to be presented as “free-standing” and independent of comprehensive doctrines, at the same time Rawls depends on comprehensive doctrines to validate the political conception.119 Thirdly, Rawls trusts to the capacity of the political conception to

110 Rawls, A Theory of Justice, 13. 111 Rawls, Political Liberalism, 137. 112 Rawls, A Theory of Justice, 10. 113 Rawls, Political Liberalism, 35. 114 Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 2001), 37. 115 Rawls, Political Liberalism, 37. 116 Ibid., 40. For greater development of this argument see John Rawls, “Justice as Fairness: Political not Metaphysical,” Philosophy and Public Affairs 14 (1985): 223-51. 117 Rawls, Political Liberalism, 144. Nobody should be forced to abandon her comprehensive doc- trine, but rather to endorse the political conception from the point of view of her comprehensive doctrine. Therefore, disagreement about comprehensive doctrines should, according to Rawls, con- tinue to be “a permanent feature of the public culture of democracy,” having neither been resolved nor eliminated from the public sphere. Ibid., 38; 36. 118 Ibid., 11. 119 Ibid., 12. In reality, the crucial distinction for Rawls is not that between comprehensive doctrines and political conceptions but that between “how a political conception is presented and its being part of, or as derivable within, a comprehensive doctrine.” 126 M. Cahill alter his citizens’ comprehensive doctrines in arriving at a constitutional consen- sus,120 meaning that his comprehensive doctrines are neither as comprehensive nor as deeply held as one might have initially believed.121 Thus, on closer inspection, it becomes apparent that the political conception exercises considerable unseen influ- ence over the comprehensive doctrines of Rawlsian citizens, even if he does not propose a model as monolithic as that of sovereignty. The second dichotomy, between authority addressed to individuals and author- ity addressed to groups, can be treated more simply. Rawls’s theory, from its ex- position of the original position in which the political conception is agreed to its Downloaded from https://academic.oup.com/ajj/article/61/1/109/1739878 by guest on 27 September 2021 discussion of relations between citizens and the general characterization of the society, gives primacy to individuals. One of the conditions of the original pos- ition is that his citizens are “mutually disinterested,” meaning that even when they later discover that they do have “ties of sentiment and affection, and want to advance the interest of others and to see their ends attained,” the presumption of mutual disinterest ensures that the political conception of justice and, derivatively, all the laws of society, are not ordered to the promotion of those natural ties.122 Moreover, the political conception of justice and, through it, all the various rules and regulations that are subsequently established, appear, on Rawls’s account, to comprehensively govern the relations between citizens whose conduct, whether in the public sphere or in the private sphere, is subject to its dictates.123 As far as the characterization of society is concerned, Rawls takes care to distinguish his “well- ordered society” from a community and from an association. It is not a commu- nity because it has no shared comprehensive doctrine; he takes it that commu- nities do.124 It is not an association because it is complete (self-sufficient) and closed (entry and exit are only by birth and death respectively), and because its purposes are not governed by religious, philosophical or moral considerations.125 Provocatively, he contends that “[w]e have no prior identity before being in so- ciety,” and advises that we should think of the principles of justice “as designed to form the social world in which our character and our conception of ourselves as persons, as well as our comprehensive views and their conceptions of the good, are first acquired.”126 This conception of the person as “barren of essential aims and attachments”127 contrasts significantly with the subsidiarity’s imaging of the person as a member of a family, a resident in a village, a worker in a factory, a player in a team, and so on, before identifying them in state-related terms as a citizen or a voter or a taxpayer. Unambiguously, Rawls’s liberal archetype of authority conceives of itself as addressed to individuals in a direct and unmediated

120 Ibid., 163. “[W]hen an overlapping consensus supports the political conception, this conception is not viewed as incompatible with basic religious, philosophical, and moral values.” Ibid., 157. 121 “[A] certain looseness in our comprehensive views, as well as their not being fully comprehensive, may be particularly significant.” Ibid., 159. 122 Rawls, A Theory of Justice, 111. 123 Rawls, Political Liberalism, 108. 124 Ibid., 42. 125 Ibid., 40, 41-42. 126 Ibid., 41. 127 Sandel, Liberalism and the Limits of Justice, 176. Cf. Will Kymlicka, Liberalism, Community and Culture (Oxford: Clarendon Press, 1989). Sovereignty, Liberalism and the Intelligibility of Attraction to Subsidiarity 127 connection, even going so far as to bestow upon those individuals their sense of personhood and to fashion their comprehensive doctrines. The third dichotomy is between an authority with an abstract construction and one with organic foundations. Rawls’s understanding of his own work is that he “generalizes and carries to a higher level of abstraction the familiar theory of the social contract.”128 His theory is more abstract than that of Locke, Rousseau, or Kant (and, for that matter, Bodin or Hobbes) because his idea is not that people hypothetically agree that a certain person, institution, or set of institutions shall have governing power, but that they hypothetically agree on “the principles of Downloaded from https://academic.oup.com/ajj/article/61/1/109/1739878 by guest on 27 September 2021 justice for the basic structure of society.”129 The heuristic device of the original position which he employs is “not of course...an actual historical state of affairs, much less... a primitive condition of culture” but rather, “a purely hypothetical situation”130 that creates an artificial “veil of ignorance.”131 In this original pos- ition, individuals are de-personalized: they do not know anything about their own “natural assets” (intelligence, strength, talents, health, psychological propensities); neither do they know anything about their place in society (family circumstances, social status, wealth, cultural or racial background) nor their comprehensive doc- trines.132 Their society is also de-particularized: individuals in the original pos- ition do not know its economic, political, social or cultural condition.133 Stripped of this knowledge—behind this veil of ignorance—they are nevertheless imbued with every kind of general and theoretical information they could need: principles of economic theory, laws of moral psychology, paradigms of social organization, and so on,134 and they have a “thin theory” of the good.135 Rawls’s assumption that individuals are incorrigibly self-interested and his methodology of artificially neutralizing natural attributes and social advantages through this highly fictiona- lized set of circumstances are the abstract means that he chooses because he believes that they best conduce136 to the political conception that he proposes, that is, justice as fairness. The fourth dichotomy is between superordinate and supplemental authority, on the basis that the model of authority proposed by sovereignty assumed that the political authority held by the sovereign was superordinate over all other forms of authority, whereas the model of authority proposed by subsidiarity held that any authority exercised by the state should be supplemental to the primary authority exercised by the primary units. The starting-point in considering the liberal pos- ition must be the defining characteristic of Rawls’s citizens: their freedom. The fullness of freedom in the Rawlsian sense seems to pertain principally in two circumstances: in the realm of the citizens’ own comprehensive doctrines and under the abstract conditions of the original position. In terms of the latter,

128 Rawls, A Theory of Justice, 10. 129 Ibid., 10. 130 Ibid., 11. 131 Ibid., 118-123. 132 Ibid., 11; 118. 133 Ibid., 118. 134 Ibid., 119. 135 Ibid., 396. 136 Ibid., 11. 128 M. Cahill essentially the freedom is freedom “to decide in advance [i.e., in the original position] how they are to regulate their claims against one another and what is the foundation charter of their society.”137 Once they accept justice as fairness as their political conception, it becomes the touchstone for all of the more detailed regulations that follow. Henceforth, their activity in the public sphere will be “coordinated by orders from a central authority,”138 while their behavior in the private sphere will be “guided by...rules...that they accept and regard as prop- erly regulating their conduct.”139 In terms of the former, the crucial question is whether the political conception can be enforced against a person’s own compre- Downloaded from https://academic.oup.com/ajj/article/61/1/109/1739878 by guest on 27 September 2021 hensive doctrine. Rawls often emphasizes that individuals may retain their com- prehensive doctrines, and yet his discussion of “the formal constraints of the concept of right”140 includes a criterion of finality which requires that individuals should consider the principles of justice “as the final court of appeal in practical reasoning”; he emphasizes that “[t]here are no higher standards to which argu- ments in support of claims can be addressed; reasoning successfully from these principles is conclusive.”141 Accordingly, although Rawls exalts liberty, it seems that both in terms of the regulation of behavior on the basis of the political conception and in terms of the capacity to supplant and displace conflicting comprehensive doctrines, the liberal archetype of authority attains the quality of superordination. The fifth dichotomy is between authority that is impervious to the good and authority that is ordered to the good. Rawls’s motive for establishing authority comes from the need to avoid the occasion that society would become destabilized by religious, philosophical and moral disagreement—it is this fear of disintegra- tive disagreement that provides a very rough analogy for Hobbes’s fear of perpet- ual war. From the beginning, his claim is that the problem of how we establish the terms of our association is “a problem of political justice, not a problem about the highest good,”142 and so our politics should “neither... assert nor deny any particular comprehensive religious, philosophical, or moral view.”143 Duly, the political conception of justice is, as noted, officially freestanding in its impervi- ousness to religious, philosophical or moral views and presented with the modest hope that it will help to “narrow the range of disagreement.”144 However, this original modesty belies his arguments that the political conception bestows iden- tity, personhood and character on its citizens, shapes their comprehensive doc- trines and even loosens them, and, in the case of remaining disagreement, definitively determines disputes. Moreover, the entire Rawlsian project of “polit- ical constructivism,”145 in which politics is officially indifferent to the existence of

137 Ibid., 10. 138 Rawls, Political Liberalism, 108. 139 Ibid. 140 Rawls, A Theory of Justice, 112-118. 141 Ibid., 116. 142 Rawls, Political Liberalism, xxv. 143 Ibid., 150. 144 Ibid., 8. 145 Ibid., 89-129. Sovereignty, Liberalism and the Intelligibility of Attraction to Subsidiarity 129 any transcendent truth or good146 means neither that politics does not engage on moral issues nor that it does not adopt moral positions,147 but only that it does so without any moral, epistemological or philosophical expertise, making moral decisions only for political reasons.148 This imperviousness to the good means that once again liberalism endorses the disembedded rather than the embedded archetype of authority, and so just as the existence of the sovereign is the purpose of sovereignty “[t]he overriding good of liberalism is no more and no less than the continued sustenance of the liberal... order.”149 Downloaded from https://academic.oup.com/ajj/article/61/1/109/1739878 by guest on 27 September 2021

IV.Conclusion The origin of this present inquiry was the hypothesis that contemporary attraction to subsidiarity is intelligible because it provides a counterweight to liberalism’s focus on individualism; to fully understand how this could be so, we must con- sider how different traditions of enquiry may be enhanced by exposure to each other. In his discussion of how a tradition may respond to a crisis by adopting a new concept, MacIntyre notes that “central to a tradition-constituted enquiry at each stage in its development will be its current problematic, that agenda of unsolved problems and unresolved issues,”150 and that, within any tradition, it may happen that progress—that is, progress as assessed by the standards of that tradition—comes to a halt, because the resources of its rationality are incapable of addressing its contemporary problematic.151 The result is “an epistemological crisis” the solution to which the tradition may be able to provide for itself but only through “the invention or discovery of new concepts and the framing of some new type or types of theory” which he argues, following Newman, should meet three strict criteria.152 First, the new concept or theory must provide the solution to the previously intractable problems, solving the epistemological crisis; second, it must be able to explain what it was that was previously lacking in the tradition which made it “sterile or incoherent”; finally, the new concept or theory must deliver both the solution and the explanation of previous deficiency “in a way which exhibits some fundamental continuity” with the beliefs of the tradition of enquiry until now.153 If these three criteria are met, the tradition endures,

146 Ibid., 94, 125-129. 147 “[A] conception of right is a set of principles, general in form and universal in application, that is to be publicly recognised as a final court of appeal for ordering the conflicting claims of moral persons.” Rawls, A Theory of Justice, 117. Emphasis added. 148 Ronald Dworkin, “Objectivity and Truth: You’d Better Believe it” Philosophy and Public Affairs 25 (1996): 87-139. For a related and fascinating discussion of how British imperial domination could exist alongside liberalism, see Uday Singh Mehta, Liberalism and Empire: A Study in Nineteenth- Century British Liberal Thought (Chicago: University of Chicago Press, 1999). 149 Alasdair MacIntyre, Whose Justice? Which Rationality? (London: Duckworth, 1988), 345. 150 MacIntyre, Whose Justice? Which Rationality?, 361. 151 Ibid., 362. 152 Ibid., 362. Cf. John H. Newman, An Essay on the Development of Christian Doctrine (Notre Dame, IN: University of Notre Dame Press, 1989). 153 MacIntyre, Whose Justice? Which Rationality?, 362. 130 M. Cahill stronger for having found within itself the solution to its epistemological crisis. If no solution is found from within the existing tradition of enquiry, then the epistemological crisis will induce the adherents of the tradition in crisis to “en- counter in a new way the claims of some particular rival tradition”—MacIntyre uses the term “alien tradition”—be it a tradition they are confronting for the first time or one with which they have coexisted until now.154 Here also, a solution and an explanation are provided to resolve the epistemological crisis, but they are supplied by the alien tradition, and there is no fundamental continuity with the tradition in crisis. When we perceive an epistemological crisis in our tradition and Downloaded from https://academic.oup.com/ajj/article/61/1/109/1739878 by guest on 27 September 2021 are attracted to a particular solution, MacIntyre’s third criterion distinguishes between solutions that lie dormant in the original tradition and those which have to be adopted from an alien tradition. For the purposes of employing MacIntyre’s paradigm, the epistemological crisis at issue is the crisis of individualism within the liberal tradition, which has emerged because the liberal premise that honoring individual freedom provides the strongest basis for social co-operation has shown itself not to be sound. This crisis manifests itself in the fragmentation of nations and societies, the decrease in the number and significance of certain kinds of civil society groups such as trade unions and religious communities, the increasing over- regulation of others such as charities, companies and sporting organisations and, most tragically, the disintegration of families. The current resources of the lib- eral tradition, as exposed by the close analysis of the archetype of disembedded authority, indicate that liberalism seems not to have the resources to solve the problem; more liberalism will not solve the crisis of individualism. Our attrac- tion to subsidiarity is intelligible and explicable precisely because it seems to posit a solution to this crisis. It can honor the freedom of individuals more fully by recognizing the irreducibly social dimension of human flourishing. It can shore up existing civil society groups and create the conditions for the emer- gence of more of these groups by honoring their internal authority structures. It can add that although we must sometimes tolerate centralisation, efficiency and uniformity irrespective of particular circumstances, we place a higher premium on local initiative, responsiveness and discrimination according to specific needs. It can help defend the position of the state as the authority of last resort in the national context, and provide a framework for co-operation between states at international level. At the most basic level, it can recognize that and demon- strate why the state, the local sports club, the commercial enterprise, and the family are uniquely necessary and irreplaceable in a way that liberalism never could. Most of all, it can halt the fragmentation of liberal societies by reinfor- cing the position of those groups as intermediaries between the state and the individual, affirming that the purpose of facilitating citizens’ living-in-common is important enough that the state cannot achieve it alone. It is precisely in this context that attraction to subsidiarity becomes not only intelligible, but eminently reasonable. If subsidiarity belongs within the liberal

154 Ibid., 364. Sovereignty, Liberalism and the Intelligibility of Attraction to Subsidiarity 131 tradition, it should be capable of delivering both the solution to the epistemolo- gical crisis and the critique of the tradition in a manner that demonstrates a “fundamental continuity” with the liberal tradition itself. The preceding discus- sion of the archetypes of authority proposed by sovereignty, subsidiarity and liberalism makes it possible to address the question of continuity with greater confidence. Whilst it might be said that there is an essential discernible continuity between theories of sovereignty and liberalism in their attachment to the model of disembedded authority, which mirrors a fairly strong concomitant correspondence between the conceptions of the person and the common life proposed by each, the Downloaded from https://academic.oup.com/ajj/article/61/1/109/1739878 by guest on 27 September 2021 same cannot be said of subsidiarity. On the contrary, subsidiarity proposes an archetype of embedded authority that runs counter to disembedded authority in all its vital characteristics. Moreover, that archetype is undergirded by conceptions of the person, of freedom, of justice, of the good and of the common life that also diverge significantly from those of sovereignty and liberalism, albeit that these have been implicitly referenced rather than fully developed here due to space constraints. Even those scattered allusions are sufficient to justify the conclusion that subsidiarity exists within a tradition of enquiry which is disparate from the liberal tradition and “alien” to it. If this is correct, it requires us to critically examine how we respond to our instinctive attraction to subsidiarity, for it implies that subsidiarity cannot be casually considered as a minor addendum that can be incidentally introduced to bring added value to the liberal project. To include subsidiarity as if it were a trinket capable of adding a little social embellishment to liberal individualism is to pluck subsidiarity out of the context of the tradition in which it is capable of being understood, and to reduce it to the status of a label with neither interpret- ive depth nor philosophical consequence. The kind of attention and endorsement subsidiarity receives in this context is not based on deep appreciation of its ontological commitments and accompanied by a commensurate commitment to its rich theoretical bedrock, but rather on a more superficial attraction to its circumambient rhetoric without any intention to allow it to be impactful accord- ing to its own resources. The European example may be interpreted in these terms. Although the Treaty on European Union professes strong commitment to subsidiarity in its preamble, the reductivist definition of the principle given in the text of the Treaty means that it is applied as a test of (economic) efficiency.155 Perversely, then, subsidiarity becomes, an agent of efficiency,156 of

155 In the Preamble of the Treaty on European Union, the Member States pledge to “continue the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as closely as possible to the citizen in accordance with the principle of subsidiarity.” Article 5.3 of the same Treaty provides that: “Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.” 156 Aurdlian Portuese, “The Principle of Subsidiarity as a Principle of Economic Efficiency” Columbia Journal of European Law 17 (2011): 231-62. 132 M. Cahill centralization,157 and of deracination158 whereas, in fact, it is the disembedded archetype of authority that liberalism inherits so eagerly from sovereignty which promotes these objectives, overwhelming the interpretatively indigent “label only” version of subsidiarity in the process. Rightly understood—that is, under- stood within its own tradition—subsidiarity acts as a countervailing force against precisely those propensities. We cannot even say that subsidiarity, in its appreci- ation for groups, offers a complementarity to liberalism’s focus on individuals because the ability to emphasize and improve each other’s merits (which is what is meant by complementarity) presumes an equality of starting positions that is Downloaded from https://academic.oup.com/ajj/article/61/1/109/1739878 by guest on 27 September 2021 not present. In short, requiring subsidiarity to play an ancillary role within the liberal tradition serves both to empty subsidiarity of its content and thereby to remove the reason that our attraction to it is intelligible in the first place. Must we conclude, then, that subsidiarity is destined to be nothing more than an external irritant to liberalism, or that its potential can most fully be realized in the effort to subvert liberalism?159 Could it not perhaps be that the interest in and prestige enjoyed by subsidiarity, bolstered by the intelligibility of its attraction, might conduce to a situation where subsidiarity could begin to make its own unique contribution within the liberal tradition, without being swallowed up by it? MacIntyre supplies a reason for hope. Encountering and learning from an “alien tradition” must involve much more than a superficial awareness of its content, he contends. Adherents to the tradition in crisis will need to come to a deep knowledge of the alien tradition on its own terms, through the practical discipline of learning to speak the language of the alien tradition “as a new and second first language.”160 Only then will they be capable of recognizing that the concepts and theories of the alien tradition provide “a cogent and illuminating explanation—cogent and illuminating, that is, by their own standards—of why their own intellectual tradition had been unable to solve its problems or restore its coherence,”161 thus allowing those concepts and theories to in fact solve the epistemological crisis of their own tradition. To arrive at this happy ending, our superficial and therefore inevitably trivial and ephemeral attraction to sub- sidiarity must be elevated to a level of approbation as refined as its intelligibility merits: we must come to understand the alien tradition from which subsidiarity comes as if from the inside.

157 Gareth Davies, “Subsidiarity as a Method of Policy Centralisation” in The Shifting Allocation of Authority in International Law: Considering Sovereignty, Supremacy and Subsidiarity, ed. Tomer Broude and Yuval Shany, (Oxford: Hart Publishing, 2008), 79-98. See also Gareth Davies, “Subsidiarity: the Wrong Idea, in the Wrong Place, at the Wrong Time,” Common Market Law Review 43 (2006): 77. 158 Neil Walker, “Subsidiarity and the Deracination of Political Community: The EU and Beyond” Edinburgh School of Law Research Paper 2015/31. 159 Robert Vischer, “Subsidiarity and Subversion: Local Power, Legal Norms, and the Liberal State” Journal of Catholic Social Thought 2 (2005): 277. 160 MacIntyre, Whose Justice? Which Rationality?, 364. 161 Ibid.