Subsidiarity as a Normative Political Concept: Contemporary and Historical Reflections

Subsidiarity is a principle holding that final decision-making authority (viz., the power not to have another entity substitute its own decisions, issue fines, etc.) should presumptively belong to the candidate authority claimant “closest” to the decision or those affected by or subject to that decision.1 Most definitions of subsidiarity include a proviso holding that its constitutive presumption only applies where a unit is capable of addressing the underlying issue.2 When faced with questions concerning who should have the final word on decisions about a given subject (education, healthcare, defense, etc.) or particular issues (whether to permit minority schools, require vaccines, go to war, etc.), in other words, one should presumptively favor the “closest” unit capable of addressing the subject or issue. Subsidiarity so understood has a long historical pedigree. While scholars debate whether earlier arguments favoring the authority of closer decision-making units are continuous with the contemporary concept of subsidiarity—and whether it even makes sense to talk of “closer” units—(at least) analogous concepts appear throughout the history of political thought.3 Key historical figures, like Aristotle, Saint Thomas Aquinas, and Johannes Althusius are often read as supporting analogous principles, if not subsidiarity itself.4 Recent work suggests comparable concepts have appeared across the globe, potentially assuaging concerns that subsidiarity is irremediably tied to Western preconceptions.5 Subsidiarity also plays prominent roles in diverse contemporary legal and political debates. It features or is often invoked in international law, European Union law, and many states' domestic constitutional laws—and features prominently in doctrinal and normative analyses of international, regional, and domestic governance. It is raised in relevant debates to identify the entities that could possess constitutional or devolved authority in states; guide the allocation of authority to those bodies; structure international law; establish boundaries of transnational authority; constitute state boundaries; keep peace; or justify transfers of funds between entities.6 It is thus raised to explain why and when, for example, Germany should be able to make decisions independent of the E.U. and why its länder (known in other countries as states, provinces, cantons, etc.) should be able to make decisions free from central/federal government interference. Depending on the domain in which it applies, subsidiarity can impact everything from who is in a state (if, e.g., Germany should set immigration policy) to health outcomes (if, e.g., Saxony should control health policy). Subsidiarity is not, however, only invoked in constitutional contexts. To wit, it also features in persistent debates about the relationship between the state and other entities that claim authority. It is, for example, raised to determine whether and when state governments at any level (federal, provincial, etc.) can and should pass laws that impact the internal processes of otherwise self-governing professional or religious organizations.7 Despite (or perhaps because of) the wide array of historical and contemporary appeals to subsidiarity, scholars struggle to specify and justify the concept.8 Subsidiarity's constitutive presumption is uncompelling absent clarity on what it entails and why it is justified. The provisional definition that opens this introduction already points to the difficulties of specifying, let alone justifying, subsidiarity. It is, for example, open on questions concerning whether subsidiarity applies to subjects, issues, or specific decisions; how to specify candidate authorities, their claims, and whether they must be close to a decision or close to some community affected by or subject to it; how to understand “closeness”; and whether and how the presumption can be defeated. Scholars then offer diverse accounts of which potential governance units are relevant, when subsidiarity should apply, and when the presumption favoring “closer” (or otherwise primary) units can be defeated.9 Their responses raise still further questions: Does, for example, subsidiarity apply merely to state entities or also to associations? Does it apply to all subjects or issues or some sub-set? Note, for example, that state authority over defense even in federal states most often belongs to a central government. This calls for an account of why subsidiarity does not apply to defense, why the presumption is often defeated in defense settings, or why most states err by allocating authority over defense to the center. A complete theory of subsidiarity should plausibly explain when, why, and to whom its constitutive presumption applies and when that presumption can be defeated. If subsidiarity is to be more than a stipulation or slogan, any such explanation should connect to recognized justificatory values. Scholars also provide diverse accounts of why subsidiarity is desirable, appealing to commitments to democratic concerns with ensuring those “most affected” by decisions most influence them, the value of local knowledge, and the import of local values, for just three examples.10 If, moreover, subsidiarity is going to be philosophically and practically valuable, it should provide compelling guidance in the debates in which it is invoked. And if it is going to make a distinct contribution to moral philosophy, that guidance must not collapse into bare appeals to the underlying values. Subsidiarity should remain distinct from, even if still related to, federalism or democracy. There are many compelling arguments for different conceptions of subsidiarity. Yet which conceptions of subsidiarity can best serve the concept's many intended functions remains unclear. Different justificatory accounts implicate when and how subsidiarity applies and can be defeated. Follesdal's landmark survey demonstrates that each leading justificatory account has distinct views on relevant units, when subsidiarity applies, and when its presumption is defeasible.11 These differences can impact their ability to plausibly fulfill subsidiarity's intended functions. Indeed, it is not even clear that any single conception can serve all functions. One may question whether it makes sense to have one principle apply to international, regional, and domestic authority allocations. And if such a widely applicable principle is desirable, then further questions about its connection to historical antecedents remain. Are, for example, modern secular conceptions of subsidiarity continuous with earlier Catholic ones? If so, can modern appeals to subsidiarity be faulted for either being too heavily based on a nonsecular doctrine or importing religious concepts without their basic foundations?12 Subsidiarity's relative simplicity can, in short, mask complicated questions. Many of those questions can be considered sub-questions of two overarching ones: (1) Can any single principle serve all the roles subsidiarity is asked to play? and (2) If not, what is the most plausible potential role subsidiarity can play in moral ontology and/or real law and politics? Responses should, plausibly, be consonant with the history of the concept of subsidiarity if they are to avoid simply eliminating the concept. If a concept used the name “subsidiarity” but did not include features that have consistently connected with other uses of the term or address issues the prior concept was meant to address, the new concept may be useful while still calling for a different name. Many existing approaches to developing a distinct, extensionally adequate concept of subsidiarity raise further challenges. It is, again, unclear whether any single concept can serve all the functions outlined above. And many will debate how to judge whether any conception of subsidiarity best reflects the concept's intended meaning or whether any single function should be considered the “core” function against which we can judge competing conceptions. Should, for example, subsidiarity be primarily understood as a concept in European Union law, in Catholic social thought, or some other doctrine? Must a conception thereof provide plausible guidance in each doctrine? In any case, can a concept committed to “close” decision-making plausibly guide action therein? One response to these challenges would be to narrow the number of issues to which subsidiarity might apply. Another possible response would be to limit the number of functions it intends to fulfill. Either response presents challenges. One who seeks to limit subsidiarity's scope or function(s) owes an account of why other uses are illicit. If, by contrast, one accepts that there are multiple valid conceptions or functions of subsidiarity, one owes an account of which conceptions are best suited to which intended functions. Attempts to address particular functions can raise still further questions. For example, scholars who agree that subsidiarity is a valuable constitutional concept still debate whether it should be a rival to federalism or a means of structuring federal constitutional orders.13 Other possible responses include abandoning the concept or radically reorienting how it is understood. Some question whether subsidiarity can play any of its intended constitutional roles.14 Subsidiarity purports to be a decentralizing principle favoring control by states over international or regional bodies and provinces/länder over central/federal governments, but it has centralizing tendencies in practice (e.g., Da Silva 2023a). Subsidiarity also plausibly only creates a presumption of local control for bodies that demonstrably address relevant problems. But if few “local” bodies meet that burden, subsidiarity will most often continue to centralize authority.15 Descriptively, in turn, scholarship on municipal authority raises questions about why the principle most often maintains constitutional authority at provincial/länder levels.16 And scholarship on non-constitutional conceptions of subsidiarity suggests that modern legal uses may be at odds with the commitment to pluralism and non-state authority that were the historical impetus for the concept's development.17 These theoretical challenges recently engendered (plausibly healthy) skepticism about the principle of subsidiarity. Prominent recent works in political philosophy declare themselves “against subsidiarity” (Latimer 2018a), call for more ontologically sensitive approaches to the concept that recognize more loci of authority than are traditional in liberal states (e.g., Cahill 2017), and/or argue that it has mere discursive value, rather than directly contributing to our moral ontology (e.g., Allard-Tremblay 2017). Scholars either seek to cease using subsidiarity, change its scope of application, or redevelop it in ways that may be discontinuous with prior conceptions. Yet such scholars likely owe accounts of why their approaches do not result in substantial conceptual losses. Even those who simply seek to reinterpret subsidiarity or use it for distinct functions should explain how their approach differs from mere replacement of earlier concepts—and, in cases of discontinuity, why older approaches can be abandoned. This state of affairs presents a challenge: Subsidiarity is meant to play many roles in contemporary political philosophy and law, yet it is very difficult to specify and justify a distinct conception that is capable of fulfilling those roles. Attempts to address this challenge are arguably made more difficult when one attempts to connect the concept to its historical roles, yet accounts divorced from that history risk discontinuity such that a historical concept is lost and replaced by a new one. Similar challenges arguably apply to other non-natural concepts with multiple competing conceptions and intended functions and long histories. Consider concepts like “dignity” or “rights” (on which we have written previously). Yet subsidiarity scholarship evinces a greater concern with historical propriety than work on similar concepts.18 This raises a further puzzle: Is there a reason why subsidiarity must be treated more historically than other concepts? Or is this historical focus a function of the interests of scholars who work on it? To put it another way, is there a reason that subsidiarity in particular must be understood against its historical backdrop? If so, which other concepts should be treated in a similar fashion and why? Understood in this way, subsidiarity offers a lens through which to examine a host of central issues in political philosophy, from substantive questions concerning the nature and locus of authority (state or otherwise) and the value and meaning of democratic influence or epistemic arguments for decision-making powers to methodological questions concerning how to specify whether a concept is continuous over time and the role (if any) that historical considerations should play in accounts of normative concepts. The articles in this issue not only offer insights into subsidiarity as an ongoing posit in contemporary politics—thereby providing interventions in and guidance for scholarly debates on, for example, how to allocate authority and political debates concerning European Union law—but also into these broader substantive and methodological queries. Erika Arban's “Subsidiarity, Federalism, and Beyond” first contextualizes and clarifies debates about subsidiarity's role in constitutional authority allocation debates. Arban highlights the similarities and differences between federalism and subsidiarity, thereby arguing that they are conceptually connected, but distinct and severable, concepts. Federalism need not entail a commitment to subsidiarity—and subsidiarity can even centralize authority in a manner at odds with many understandings of the purpose of federalism. At the same time, Arban argues, subsidiarity need not apply only within the boundaries of federal states; it can also resolve issues within unitary states and at the international level. It also need not apply only to state authorities; subsidiarity can and does sometimes highlight the role that other entities ought to play in authority allocation decisions. Arban recognizes the difficulty of identifying a single distinct meaning of “subsidiarity” and issues with competing concepts. But Arban does not aim to resolve debates about the true meaning of the concept or whether it has been “deflated” as others claim. Arban instead clarifies different versions of subsidiarity and approaches to its relationship to federalism. While a late comment in Arban's article suggests that European Union law is a “principal focal point” of many discussions of the nature of subsidiarity, other scholars provide reason to question whether the European Union should be considered exemplary.19 Bertjan Wolthuis's contribution to this volume intervenes in the relevant debate by examining the conditions under which subsidiarity may apply and whether they are fulfilled in the European Union. Wolthuis's “Subsidiarity and the Conditions of its Application: The Case of the European Union” does not aim to provide a general argument about when subsidiarity may apply. It instead seeks to identify and interrogate possible approaches to that issue. Wolthuis argues that the question is not as straightforward as many presume and identifies several challenges facing any account of subsidiarity's applicability conditions. Wolthuis then conducts an analysis of the structure of the European Union and the role that subsidiarity is meant to—and actually does(n't)—play therein to examine whether plausible understanding of the applicability conditions can operate in the European Union. Wolthuis a thereby not only where and when subsidiarity may apply but to of the European conception of subsidiarity by that the European approach does not features of other competing applicability conditions. Even in other words, one accepts that subsidiarity can have many the conception used in the European Union does not as an one. Other of subsidiarity do not focus on its use in European Union In for in for example, to the of subsidiarity as a guide for allocating authority within and offers an approach to authority argues that subsidiarity is not alone in to provide guidance on questions. the and and to provide clear and compelling guidance on when particular entities (e.g., provincial, municipal should possess authority over particular subjects (e.g., The are either too thereby to provide compelling or too thereby to offer guidance across different on earlier work in democratic theory and prior work by on subsidiarity (e.g., offers a democratic approach to authority allocation that reflects the that different call for different allocations. argues that authority allocation belong to distinct A must then fulfill two conditions to have a valid authority claim. it must that authority over a subject is for and the has of the subject These conditions need not to those affected by need not call for subsidiarity's constitutive commitment to “local” authority. reflects one possible response to of subsidiarity, an means of allocating authority in of of subsidiarity. One again, instead seek a different role for subsidiarity to Follesdal's “Subsidiarity and this with work for example, Allard-Tremblay subsidiarity's value for only a defense of subsidiarity's discursive argues that subsidiarity can further liberal but only in an the of some of subsidiarity as a principle for allocating authority. argues that it can still guide the use and of authority one has been while that subsidiarity is to of subsidiarity's role in European Union law, analyses of the of of the European Union and the European of to that subsidiarity can more and more for the allocation and use of political but also normative considerations that are or should be decisions. thereby argues that one must approach subsidiarity that they can normative considerations into the open but against the use of subsidiarity to instead relevant values. a seeks to the value of subsidiarity for constitutional issues, to its discursive value, Da Silva a different identifying a distinct role for subsidiarity given accounts of its constitutional Da Silva about the use of subsidiarity to moral Indeed, to more and suggests structuring relevant constitutional the that may justify subsidiarity, like concerns with democratic influence or the value of “local” to to approaches to subsidiarity. than on the concept of subsidiarity, however, Da Silva argues that subsidiarity can play a non-constitutional role in political In “Subsidiarity, and Subsidiarity's to Da Silva argues that the concept subsidiarity historically as a principle for structuring the between entities in an it to address competing by entities complete control over an etc.) and other who distinct of authority and continue to claim such authority Da Silva further argues that subsidiarity can still play a distinct non-constitutional role in political if it is understood as a principle for addressing competing often and authority Da Silva too to that subsidiarity's value is discursive in But also argues that using the same term for constitutional and non-constitutional debates and subsidiarity can only play a distinct role in the non-constitutional In “Subsidiarity in the of still another the of subsidiarity as a principle and arguing that it may be more understood as challenge to the of the how the of the modern and the concept of for that in prior then argues that contemporary to offer to to in a that potentially means of addressing real political that to address the of a into often a and lens that governance over like governance and that address valid by like the Da then suggests that subsidiarity could provide a useful for state authority. 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