Sovereignty, Liberalism and the Intelligibility of Attraction to Subsidiarity (2016) 61(1) American Journal of Jurisprudence 109-132 (original) (raw)
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O'Malley (2008) Subsidiarity's Logic of Law and Society, Journal of Law Philosophy and Culture
Journal of Law, Philosophy and Culture II.1 Spring 2008 (http://clpc.cua.edu/journal/Vol2.pdf), 2008
"Subsidiarity is a social and political principle with deep cultural, philosophical, theological, and legal roots in Western Europe. A constellation of venerable traditions figure in its emergence as an identifiable principle with Pius XI’s Quadragesimo Anno (1931). Pius XI named subsidiarity as one element of a social structure built upon principles of natural law evident to all reasonable people of good will. The encyclical built on a half-century or more of effort to address the social problems of a modern industrial world, and in doing so it made subsidiarity a pillar of modern Catholic social thought. Subsidiarity gained renewed notice from secular theorists in 1992 and its significance increased dramatically through its inclusion as a guiding principle of the treaty that established Europe as a supranational entity. The European Union’s use of subsidiarity has, in the interim, generated a great deal of historical, political, and legal scholarship. Despite Pius XI’s encyclical and the scholarly attention the concept has received in the context of the European Union, however, the concept’s origins remain somewhat mysterious. Subsidiarity has become a do-all principle—a political handyman’s dream responsible for ordering everything in the church, state, markets, and international relations. Nonetheless, the principle’s origins are obscure and its definition remains somewhat open-ended, leaving its application indeterminate. Consensus exists that the German Catholic Church played an important, though not yet entirely understood, role in subsidiarity’s development. The article therefore examines the social thought of Wilhelm von Ketteler, who was the most important church figure of nineteenth century Germany. In particular, it explores the critical role Ketteler played in drawing from secular and specifically legal traditions to formulate a principle ultimately assuming a central place in an innovative ecclesiastical doctrine. Ketteler recognized and fought against the state’s centralizing tendencies that diminished the role of local communities and effectively marginalized the secular significance of the churches. I argue that Ketteler was influenced by the legal logic of German Romantic jurisprudence with its reliance on the “choice-of-law” jurisprudence the ius commune. Nineteenth century Romantic jurists such as Friedrich Karl von Savigny greatly respected the role of law as both a product of, and a protection for, European values and culture. The example of the ius commune is important because it foreshadowed and shaped the intellectual culture from which subsidiarity came. As “choice of law” doctrine, the ius commune was not a fuzzy idea, but rather the bearer of logic for discerning between the authority of norms within more and less local legal forums that was practical and that found support in centuries of legal precedent and commentary. Ketteler had this as a model when he drew upon subsidiary principles to defend the societal institutions and ideals that were threatened by constitutional reform movements accompanying political centralization. Ketteler’s social thought cannot be reduced simply to what he derived from his university education, but that legal study did increase his sensitivity to the integrity of law and to principles of social order being advanced by political, economic, and social movements, grouped under the label “reform.” He articulated his Christian principles in a language that is distinctively legal… By focusing specifically on the mid nineteenth century, I presume two points of reference that cannot be fully established within the context of the present article—regarding the periods both before Ketteler and after him. First, I draw on the recent legal scholarship that has detailed the logic of subsidiarity in many post-Reformation German legal systems. This scholarship demonstrates convincingly that Ketteler’s professors of German law, mostly Protestant, benefited from generations of legal localism that began with Luther and Melanchthon, and was influenced by Althusius (1557-1638). Second, in concentrating on Ketteler himself, the article assumes, but does not seek specifically to demonstrate, his influence on later Catholic figures, such as Pope Leo XIII, whose great social encyclical, Rerum Novarum (1891), is the reference point for Pius XI’s Quadragesimo Anno. In that later work, Pius XI wrote “Catholic principles on the social question have . . . passed little by little into the patrimony of all human society, and We rejoice that the eternal truths which [Leo XIII] of glorious memory proclaimed so impressively have been frequently invoked and defended not only in non-Catholic books and journals but in legislative halls and also courts of justice.” The recent use of subsidiarity as a basic structural principle within the European Union offers an occasion for acknowledging the influence of Catholic social thought on secular thought, but my focus in this article is a religious-secular influence that the fuller history of the term shows is actually mutual. Wilhelm von Ketteler was a lawyer before he was a priest, and he was pivotal in translating secular, legal, and theological principles into the Catholic social vision that influenced Leo XIII. Ketteler’s work fills in a gap of historical understanding and demonstrates that subsidiarity comes full circle when it is incorporated into secular law. By way of simple definition, subsidiarity is the principle that the most local capable authority should rule. This is essentially the sense that is preserved in the European Union’s adoption of subsidiarity and the sense of Ketteler’s idea developed against the backdrop of the fuller constellation of legal and social traditions on which he drew. It should be noted that while Ketteler did not specifically formulate his notion as a “principle” (neither did Pius XI for that matter), he did use the words “subsidiary” and “subsidiary right,” and he used them to identify the concept, essential role in his social thinking that the integrity of embedded local communities together comprise a universal human society. This concept prioritizes the freedoms of individual persons and local communities over more complex social organizations—from the family, to the local village, town, and to successively larger and encompassing communities such as national and international bodies. The subsidiary “right” recognizes the dignity of individual persons and demands that the most local communal level should be granted the greatest latitude possible in exercising authority or power for its own flourishing. He was influenced by Romantic philosophy and he was true to its organic social vision, arguing that respect for responsible freedoms on more local social levels fosters competence for freedom in more universal forums of governance. Ketteler learned from and respected aspects of nineteenth century German liberalism, but he was deeply antagonistic to its attempt to impose universal management principles on German society “from above.” He argued that it was destructive of social flourishing because it does not foster individual and social capacities for the responsible exercise of what are essentially prescribed freedoms. For Ketteler, legitimate social structures are ordered according to the distinctive principles animating each of a concentric set of social spheres, protecting their uniqueness, at each level, as a constitutive social good. Acknowledging that clarity, coherence, and efficiency are all desirable, Ketteler, however, rejected the idea that society, government, or education should be ordered purely according to rationality or efficiency, especially as judged from a centralized point of view. It might also be noted that Ketteler’s critique emerged during the time when the popes were centralizing and rationalizing their church’s governance in ways mirroring the political structures of centralized and often absolutist European nation-states. In this way, the Roman Catholic church’s nineteenth century managing structure was surprisingly “liberal” even as it fought to conserve its historical role in secular society. As a coherent principle of Catholic social thought, subsidiarity might have functioned as an effective self-critique for the church as well. "
Transubstantiation: The Dialectic of Constitutional Authority
The University of Chicago Law Review, 1988
In all nations, among all people, there are structures of dominion and subjection. There are those who occupy the centers of power, and those, far removed from power, whose presence at the periphery defines the limits of the people. There are those who rule, those who acquiesce, those who resist. There are those who know themselves to rule and those who know themselves to be subjected. There are those who have the title to rule and those who rule without title. All are bound. They are bound within sets of institutional structures that direct the exercise of power, and in consequence, resistance to it. 1 They are bound by histories that designate the temporal boundaries of the nation, the moment and the meaning of its founding, models of right governance, tyranny, and rebellion. They are bound within systems of meaning that designate the attributes and accouterments of power. Within our culture it signifies power to occupy the White House-whether or not one is President-to be met with a band playing "Hail to the Chief," to be saluted, to wear certain oddly shaped hats, to sign certain documents, and to be mentioned in others. In other cultures, it signifies power to be mentioned in the Friday prayers, to wear a hat shaped like a nightcap with earflaps, to have one's ring kissed, and to wash the feet of the poor. 2 Each of these significations, claimed or granted, is a title to the possession of power. But power belongs not, in the first instance, to these titled individuals, but to those who found nations, establish institutions, write histories, poems, and scripts, to those who tell and retell the myths of the American nation, to those who designate the signifiers of power and subordination. These individ
In the context of definitional confusion, it might seem recklessly counter-productive to suggest that what we agree on in relation to subsidiarity is perhaps more problematic than what we disagree on. Nonetheless, the purpose of this article is to challenge the uncontroversial starting-point of much subsidiarity analysis: that subsidiarity allocates functions between 'higher' and 'lower levels'. Recent scholarship on subsidiarity in political philosophy expresses a frank concern about a de-contextualized and dogmatic use of those terms and reminds us that subsidiarity is premised on a pre-existing social ontology. In order to recognize subsidiarity's ontological commitments, this paper proposes an ontology-sensitive approach to subsidiarity, and the use of the terms primary units (in place of 'lower levels') and subsidiary units (in place of 'higher levels'). Discussion of how the ontology-sensitive approach works in practice, through the fictional example of the Good Fight Club, reveals four precepts which direct the interaction between primary and subsidiary units. Finally, these four precepts are used as benchmarks against which to appraise the European principle of subsidiarity.
On the Elusive Subject of Sovereignty
SSRN Electronic Journal, 2000
Sovereignty'' confounds, and the fate of the ''subject'' thus appears uncertain. Thus, sovereignty is perpetually rethought by critical philosophers, borders perpetually reconceptualized, and the ''political subject'' perpetually resurrected from abandonment. In this essay, I present a different, decolonial, view of sovereignty as a philosophical invention. I begin by identifying three incommensurable conditions of subject-beingness: the precarious citizen-subject, the abject subject of ''exceptional'' bans, and the trans-territorial subject of ''exemptional'' license. Rather than aberrations, these are co-constitutively regulated and enforced by the invention of sovereignty that constructs the materialities of differentiated subject-beingness within a global biopolitical regime of (b)ordered bodies-within(/out)-territory based on the incommensurable rationalities of license, containments, and bans. The aim of this correction to the philosophy of sovereignty is to further the tasks of denormalizing the coloniality of (b)ordering that has captured, emplaced, and banned imaginations of being(-otherwise). Conversely, a decolonial philosophy normalizes the oppositions to sovereign presents and naturalizes the many witnessed refusals and rejections of the present normalities of violence and dispossession. To deinvent sovereignty is to therefore re-invent philosophy as decolonial praxes.
In this article, I deconstruct the concept of legitimacy (notably in the form elaborated by Max Weber) by emphasising its conceptual complicity with the notion of sovereignty. Through an analysis of Derrida's critique of Austin's theory of performativity, I elaborate another, non-ontological 'concept' of legitimacy, located before and beyond sociological methodology, International Relations theory, and performative ontologies of power. This legitimation-to-come signifies the structural fallibility and pervertibility of the performative, and instantiates the archi-originary force of an unconditional resistance, conditioning both the position and the deconstruction of ontologies of sovereign ipseity (ipsocracy). Pursuing the efforts of Cynthia Weber and Rob Walker, I attempt to sketch the implications of this post-performative legitimacy with respect to the protocols of legitimation of International Relations theory and sociological methodologies, through an analysis of their persistent ontological presuppositions.
Law and sovereignty are equivocal terms with competing definitions. Sovereignty can refer to coercive state power or a human being's right to self-determination. In international law sovereignty usually means legalized state autonomy, but that definition is misleading, as state power relies either on domination or cooperation in order to "feel" like sovereignty. Agamben's analysis of sovereignty as the "nomos of the west" gives us the hard case against saying sovereignty can stand also for human self-determination. But his definitions of law and sovereignty are too narrow to sustain his theory. Constable's meditation on the silence of justice in modern law counters Agamben, and demonstrates why sovereignty, despite its ties to coercive state power, still holds out resources of freedom and selfdetermination that no one can afford to forego.
The Concept of Subsidiarity in a European Context: The End of National Sovereignty?
2008
The concept of subsidiarity is introduced in the context of the European Union by the Maastricht Treaty [1991]. That treaty laid the foundations for the Europe of the future. However, the notion is much older as it is deeply rooted in the Christian-Democratic ideology, notably Roman Catholic religion. It has been applied to the various denominations in The Netherlands, which were institutionalized for years in pillars. The elites at the top of these pillars pursued a politics of accommodation that explains, at least partly, the relative stable political situation. The consequences were important since The Netherlands is a country in which public and private organizations contribute to the realization of the welfare state. Besides, it is also a country in which local government takes an important share in the implementation of public tasks. Ideologically subsidiarity, sovereignty in the private domain and functionally and territorial decentralization found each other. The result was ...