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Development of Subsidiarity Via Civil and Common Law Jurisprudential Epistemology William Pieratt Ed Mond

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Development of Subsidiarity Via Civil and Common Law Jurisprudential Epistemology William Pieratt Ed Mond Seton Hall University eRepository @ Seton Hall Theses 2007 Development of Subsidiarity via Civil and Common Law Jurisprudential Epistemology William Pieratt eD mond Follow this and additional works at: https://scholarship.shu.edu/theses Part of the Civil Law Commons, Common Law Commons, European Law Commons, and the Religion Law Commons Recommended Citation Pieratt eD mond, William, "Development of Subsidiarity via Civil and Common Law Jurisprudential Epistemology" (2007). Theses. 258. https://scholarship.shu.edu/theses/258 Justifying An Analysis of the Ecclesiological Development of Subsidiarity via Civil and Common Law Jurisprudential Epistemology William Pieratt Demond∗ Seton Hall University The Whitehead School of Diplomacy Masters Thesis – OMEGA Professor Moremen Fall 2007 ∗ I would like to thank my family, friends, and professors for both tolerating and supporting me while I was completing this project. Specifically, I would like to thank Professor Defeis of Seton Hall University School of Law for both her confidence in my abilities and her unyielding willingness to provide me with incomparable opportunities; Professor Baker of Seton Hall University School of Law for his attempts to teach me European Union law; Professor Moremen of Seton Hall University School of Diplomacy for his guidance and direction throughout the drafting process; Father Nicholas Gengaro of Seton Hall University School of Law for his time, compassion, friendship, support, and efforts to educate a non-Catholic; the librarians and security staff at Seton Hall University School of Law for letting me reside in their domain for days at a time; John Heywood from American University's Washington College of Law for helping me locate the Treaty of Maastricht's unofficial travaux; Meagan Hassan for providing limitless logistical and moral support; and my parents, Walter Demond, John Pieratt, and Ann Pieratt; without their various forms of support, I would not have acquired either the education or the drive necessary to complete a project of this magnitude. This paper is dedicated to my grandfather John Arthur Moss for encouraging me throughout my life to attend law school; it was probably the best decision I've ever made. Thank you all for everything. Justifying an Analysis of the Ecclesiological Development of Subsidiarity via Civil and Common Law Jurisprudential Epistemology Abstract This article seeks to justify an examination of subsidiarity's development within Catholicism. Due to the fact that the European Union ["EU"] codified subsidiarity via the Treaty of Maastricht, subsidiarity is now a part of EU law. Although seemingly intended to resolve questions concerning the proper allocation of powers, its codification has generated substantial debate concerning the proper meaning(s) (if any) and/or application(s) of subsidiarity within the EU. Due to the facts that 1) the EU's legal traditions are heavily influenced by both the civil and common law traditions, 2) both of these traditions advocate the use of established jurisprudential methodologies to interpret ambiguities, and 3) subsidiarity can reasonably be classified as ambiguous within EU law, utilizing these methods can foreseeably generate insight into subsidiarity's meaning. Furthermore, an examination of these methods arguably authorizes civil and/or common law jurists to investigate the ecclesiological development of subsidiarity even if the term itself is not deemed ambiguous. A cursory examination of 1) (at least some of) these jurisprudential methodologies, 2) the development of subsidiarity within Catholicism, and 3) the development of subsidiarity within the EU appears to reveal several material similarities and no material dissimilarities. As a consequence, this article concludes that a more detailed examination of subsidiarity's development within Catholicism may potentially resolve pending questions about its application(s) and/or meaning(s) within EU law. William Pieratt Demond 25 April 2008 "For what can be explained, investigated, or demonstrated about the nature of things without the assistance of speech and words which signify things? Or without the ministry of interpretation?"1 1 Johannes Goeddaeus, Commentarius repetitae praelectionis in tit. XVI libri L. Pandectarum de verborum et rerum significatione (1591), quoted by IAN MACLEAN, INTERPRETATION AND MEANING IN THE RENAISSANCE: THE CASE OF LAW 87 (1992). I. INTRODUCTION AND THESIS STATEMENT Although arguably a principle of common sense,2 the principle of subsidiarity appears to be one of the most popularly discussed3 yet ambiguous4 topics within EU 2 Commission of the European Communities, The Principle of Subsidiarity: Communication of the Commission to the Council and the European Parliament at Annex, ¶ 2, SEC(92) 1990 final, Brussels 27 October 1992 (“The subsidiarity principle as applied in the institutional context is based on a simple concept: the powers that a State or a federation of States wields in the common interest are only those which individuals, families, companies, and local or regional authorities cannot exercise in isolation. This commonsense principle therefore dictates that decisions should be taken at the level closest to the ordinary citizen and that action taken by the upper echelons of the body politic should be avoided."). See also id. at 2 (“In practical terms it implies for the Community institutions, and in particular for the Commission, the application of the simple principle of good sense that, in the exercise of its competences, the Community should do only what is best done at this level.”); HELEN J. ALFORD, O.P. AND MICHAEL J. NAUGHTON, MANAGING AS IF FAITH MATTERED: CHRISTIAN SOCIAL PRINCIPLES IN THE MODERN ORGANIZATION 77 (2001) (“The term [subsidiarity]…rests on the commonsense truth that people simply do better at tasks they themselves plan and control.”); ANTONIO ESTELLA, THE EU PRINCIPLE OF SUBSIDIARITY AND ITS CRITIQUE 82 (2002) (“From a theoretical perspective, subsidiarity is so undefined that the concept amounts, at best, to a common sense principle of good government or a political objective.”); and John E. Linnan, C.S.V., Subsidiarity, Collegiality, Catholic Diversity, and Their Relevance to Apostolic Visitations, 49 THE JURIST 399, 421 (1989) (“[W]herever just relationships have existed in society, and wherever individuals and smaller groups have realized an appropriate liberty with respect to higher authority or larger societies, this principle [of subsidiarity], formulated or not, has been operative and at least implicitly recognized in practice, if not in theory.”). 3 A lexis search performed on 19 November 2007 reveals 1,378 law review articles containing the word "subsidiarity," 35 of which contain the term in the title. 4 See, e.g., REPORT OF THE COUNCIL ON THE FUNCTIONING OF THE TREATY ON EUROPEAN UNION 9 (1995) (“Admittedly, first experience shows that the institutions and the Council are occasionally having difficulties in agreeing how it [subsidiarity] is to be evaluated and applied.”); A.G. Toth, A Legal Analysis of Subsidiarity, in LEGAL ISSUES OF THE MAASTRICHT TREATY 37 (O'Keeffe and Twomey eds., 1994) (“It is no exaggeration to say that there are few concepts in the Maastricht Treaty, or indeed in Community law as a whole, which are more elusive than the concept of subsidiarity.”); Jo Steiner, Subsidiarity under the Maastricht Treaty, in LEGAL ISSUES OF THE MAASTRICHT TREATY, supra note 4, at 49, citing Lord Mackenzie-Stuart, contribution to the Proceedings of the Jacques Delors Colloquium, Subsidiarity and the Challenge of Change (1991) at 39 (“Discussion of the principle…reveal [sic] that it is capable of no less than 30 different meanings.”); P.P. Craig and G. de Búrca, General Editors' Preface, in ESTELLA, supra note 2, at v (2002) (“[S]ubsidiarity is a concept that is notoriously fluid and difficult to define, something which promoted many commentators to dismiss its legal relevance at the time of its introduction.”); Nanette A. Neuwahl, A Europe Close to the Citizen? The 'Trinity Concepts' of Subsidiarity, Transparency, and Democracy, in A CITIZENS' EUROPE; IN SEARCH OF A NEW ORDER 39 (Allan Rosas and Esko Antola eds., 1995); George MacDonald Ross, In Defence of Subsidiarity, PHIL. NOW, 1993 (“The Philosophy Glossary defined subsidiarity as 'nobody agrees on what this word means' (p.32), and John Crosthwaite described its meaning as a 'grey area', and 'hand[ed] the question over to the real philosophers' (p.25).”), at http://www.philosophy.leeds.ac.uk/GMR/articles/subsid.html (last visited 2 July 2007); George A. Bermann, Taking Subsidiarity Seriously: Federalism in the European Community and the United States, 94 COLUM. L. REV. 332, 332-333 (1994) (“Subsidiarity has been criticized as 'inelegant…Eurospeak,' 'the epitome of confusion,' and simple 'gobbledegook.'”) (internal citations omitted); and Dennis J. Edwards, Fearing Federalism's Failure: Subsidiarity in the European Union, 44 AM. J. COMP. L. 537, 544 (1996) (“[Subsidiarity has been called] 'an empty shell devoid of concrete substance' and 'totally alien to...the 1 jurisprudence.5 Despite the considerable legal and ecclesiastical scholarship, however, a noteworthy body thereof appears to focus on either 1) examining subsidiarity's Catholic foundations or 2) analyzing the nature of its application within the EU. At least one article has even attempted to separate the term from its Catholic heritage altogether.6 The result is a body of legal scholarship that, in large part, appears to either ignore
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