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Global Perspectives on Subsidiarity IUS GENTIUM COMPARATIVE PERSPECTIVES on LAW and JUSTICE

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Global Perspectives on Subsidiarity IUS GENTIUM COMPARATIVE PERSPECTIVES on LAW and JUSTICE Global Perspectives on Subsidiarity IUS GENTIUM COMPARATIVE PERSPECTIVES ON LAW AND JUSTICE VOLUME 37 Series Editors Mortimer Sellers University of Baltimore James Maxeiner University of Baltimore Board of Editors Myroslava Antonovych, Kyiv-Mohyla Academy Nadia de Araújo, Pontifi cal Catholic University of Rio de Janeiro Jasna Bakšic-Muftic, University of Sarajevo David L. Carey Miller, University of Aberdeen Loussia P. Musse Félix, University of Brasilia Emanuel Gross, University of Haifa James E. Hickey, Jr., Hofstra University Jan Klabbers, University of Helsinki Cláudia Lima Marques, Federal University of Rio Grande do Sul Aniceto Masferrer, University of Valencia Eric Millard, West Paris University Gabriël Moens, Curtin University Raul C. Pangalangan, University of the Philippines Ricardo Leite Pinto, Lusíada University of Lisbon Mizanur Rahman, University of Dhaka Keita Sato, Chuo University Poonam Saxena, University of Delhi Gerry Simpson, London School of Economics Eduard Somers, University of Ghent Xinqiang Sun, Shandong University Tadeusz Tomaszewski, Warsaw University Jaap de Zwaan, Erasmus University Rotterdam For further volumes: http://www.springer.com/series/7888 Michelle Evans • Augusto Zimmermann Editors Global Perspectives on Subsidiarity Editors Michelle Evans Augusto Zimmermann Curtin University Law School Murdoch University School of Law Bentley, Perth Murdoch, Perth Western Australia , Australia Western Australia , Australia ISSN 1534-6781 ISSN 2214-9902 (electronic) ISBN 978-94-017-8809-0 ISBN 978-94-017-8810-6 (eBook) DOI 10.1007/978-94-017-8810-6 Springer Dordrecht Heidelberg New York London Library of Congress Control Number: 2014938485 © Springer Science+Business Media Dordrecht 2014 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifi cally the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfi lms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. Exempted from this legal reservation are brief excerpts in connection with reviews or scholarly analysis or material supplied specifi cally for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. Duplication of this publication or parts thereof is permitted only under the provisions of the Copyright Law of the Publisher’s location, in its current version, and permission for use must always be obtained from Springer. Permissions for use may be obtained through RightsLink at the Copyright Clearance Center. Violations are liable to prosecution under the respective Copyright Law. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specifi c statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. While the advice and information in this book are believed to be true and accurate at the date of publication, neither the authors nor the editors nor the publisher can accept any legal responsibility for any errors or omissions that may be made. The publisher makes no warranty, express or implied, with respect to the material contained herein. Printed on acid-free paper Springer is part of Springer Science+Business Media (www.springer.com) The Editors Michelle Evans (BA, LLB, LLM (Murdoch University), Ph.D. (Curtin University, Chancellor’s Commendation)) is a Senior Lecturer and Director of Teaching at the Curtin Law School at Curtin University, and a Barrister & Solicitor of the Supreme Court of Western Australia. She is an award winning teacher whose teaching areas include Constitutional Law, Administrative Law, Property Law and Law, Society and Justice. She is also well known for her research on internet censorship and sex equality. She was recently awarded a Ph.D. (with a Chancellor’s Commendation for Excellence) from Curtin University in Western Australia for her thesis titled, ‘The Use of the Principle of Subsidiarity in the Reformation of Australia’s Federal System of Government’. Augusto Zimmermann (LLB (PUC-Rio), LLM cum laude (PUC-Rio), Ph.D. (Monash University)) is Senior Lecturer and former Associate Dean (Research) and Director of Postgraduate Studies at the School of Law at Murdoch University. He is also a Commissioner with the Law Reform Commission of Western Australia and Adjunct Professor of Law at Universitas Kristen Maranatha in Indonesia. Dr. Zimmermann is the Founder and President of the Western Australian Legal Theory Association (WALTA) and an editor of The Western Australian Jurist law journal. He is a prolifi c writer and his books include Direito Constitucional Brasileiro (Lumen Juris, 2014, with Fabio Condeixa), Western Legal Theory: History, Concepts and Perspectives (LexisNexis, 2013), Curso de Direito Constitucional (4th edition, Lumen Juris, 2006) and Teoria Geral do Federalismo Democratico (2nd edition, Lumen Juris, 2006). Dr. Zimmermann has been awarded the 2012 Vice Chancellor’s Award for Excellence in Research , and also been awarded two consecutive Murdoch School of Law Dean’s Research Awards , in 2010 and 2011. Dr. Zimmermann has also received the 2013 Law Lecturer of the Year Award . v Contents 1 The Global Relevance of Subsidiarity: An Overview ........................... 1 Michelle Evans and Augusto Zimmermann 2 Subsidiarity in the Writings of Aristotle and Aquinas ......................... 9 Nicholas Aroney 3 Subsidiarity in the Tradition of Catholic Social Doctrine.................... 29 Patrick McKinley Brennan 4 The Relationship Between Sphere Sovereignty and Subsidiarity ....................................................................................... 49 Lael Daniel Weinberger 5 Subsidiarity and Social Pluralism .......................................................... 65 Jonathan Chaplin 6 Subsidiarity, Democracy and Individual Liberty in Brazil ................. 85 Augusto Zimmermann 7 Subsidiarity and the Reform of the Welfare of the Nation State ................................................................................... 107 Rev. Robert A. Sirico 8 Subsidiarity and the German Constitution ........................................... 129 Jürgen Bröhmer 9 Subsidiarity as Judicial and Legislative Review Principles in the European Union .......................................................... 157 Gabriël A. Moens and John Trone vii viii Contents 10 Subsidiarity and Federalism: A Case Study of the Australian Constitution and Its Interpretation .......................... 185 Michelle Evans 11 Subsidiarity and the Global Order ........................................................ 207 Andreas Follesdal Editors’ Conclusion: Future Directions for Subsidiarity ............................. 221 Contributors Prof. Nicholas Aroney TC Beirne School of Law , University of Queensland , Brisbane , Queensland , Australia Prof. Patrick McKinley Brennan School of Law , Villanova University , Villanova , Pennsylvania , United States of America Prof. Jürgen Bröhmer School of Law , Murdoch University , Murdoch, Perth , Western Australia, Australia Prof. Jonathan Chaplin Kirby Laing Institute for Christian Ethics , Cambridge , United Kingdom Dr. Michelle Evans Curtin University Law School , Bentley, Perth , Western Australia, Australia Prof. Andreas Follesdal Faculty of Law , University of Oslo , Oslo , Norway Prof. Gabriël A. Moens Curtin Law School , Curtin University , Bentley, Perth, Western Australia , Australia Rev. Robert A. Sirico Acton Institute for the Study of Religion and Liberty , Grand Rapids , Michigan , United States of America Dr. John Trone Adjunct Professor, School of Law, Murdoch University, Murdoch, Perth , Western Australia, Australia Lael Daniel Weinberger Department of History , University of Chicago , Chicago , Illinois , United States of America Dr. Augusto Zimmermann Murdoch University School of Law , Murdoch, Perth , Western Australia, Australia ix Contributor Biographies Nicholas Aroney is Professor of Constitutional Law at the T.C. Beirne School of Law at The University of Queensland. He is a member of the governing council of the Australian Association of Constitutional Law and was recently awarded an Australian Research Council fellowship to undertake research on comparative federalism. Professor Aroney has initiated and led several international collaborative research projects in constitutional law and legal theory, with particular emphasis on questions relating to the theory and practice of federalism, the design and performance of bicameral parliamentary systems, and freedom of speech. His recent publications include The Constitution of a Federal Commonwealth: The Making and Meaning of the Australian Constitution (Cambridge University Press, 2009), Shari’a in the West (Oxford University Press, 2010) and The Future of Australian Federalism (Cambridge University Press, 2012). Patrick McKinley Brennan holds the John F. Scarpa Chair in Catholic Legal Studies at Villanova University School of Law. Previously, he was Professor of Law and Vice Dean at Arizona State College of Law. He earned a B.A. in philosophy from Yale College, an M.A. in philosophy from the University of Toronto, and a J.D. from the University of California Berkeley, Boalt Hall, where he was elected to the Order of
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