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