Subsidiarity in the Shadow of Sovereignty

Forms of informal cooperation, coordination, and action that embody mutuality without hierarchy are the quotidian experience of most people. Only occasionally do they embody implicit or explicit opposition to state law and institutions. Most villages and neighborhoods function precisely because of the informal, transient networks of coordination that do not require formal organization, let alone hierarchy. In other words, the experience of anarchistic mutuality is ubiquitous. Subsidiarity frustrates. Emerging from Catholic roots to become an explicit part of EU law,1 the principle admits of clear articulation as an ideal ('vest authority as close as feasible to those most affected') but then invites conflicting interpretations and elaborations. As a workable principle, subsidiarity founders seemingly when we need it most: when we ask what, precisely, that principle regulates. Andreas Føllesdal has shown that distinct interpretations of subsidiarity have strikingly incongruous political implications, with any "apparent consensus … gained only by obfuscation" (Føllesdal 1998, 190). And as a moral precept, subsidiarity promises a politics sensitive to diverse needs and responsive to local knowledge; yet in practice, any implementation of the ideal pulls us back toward an authoritative center to regulate disputes and coordinate all of this local wisdom. Jenna Bednar describes subsidiarity as "the soul of federalism" (Bednar 2014, 231) and she has in mind two complementary rationales: ensuring that political power is close to the people affected, while also finding efficient ways to satisfy diverse preferences. Of particular interest in Bednar's account is the epistemic role for subsidiarity in bringing a wider range of perspectives to bear on judging new policies than might otherwise be the case in a more centralized system. Here, then, the justification of subsidiarity appeals to efficiency and accountability, not simply for any given snapshot of needs, interests, and associated policies, but also (and more critically) to the constitutional and administrative system as a whole.2 Still, these epistemic hopes for subsidiarity seem to assume, as Jacob Levy puts it, "a fantastic level of competence, knowledge, and disinterestedness on the part of the body that allocates decision-making authority in each case—itself usually one of the contenders for the authority at stake" (Levy 2007, 462). I love subsidiarity for these frustrations and ambiguities. In this respect, it is the perfect moral maxim for the real worlds of political institutions and practices, where most of us, most of the time, muddle through the messy day-to-day complexities of living together, while leaving space for dissent and resistance. Levy argues that subsidiarity "fails as an institutional decision rule," but he prefaces that indictment with the thought that it "may offer a useful critical language" (Levy 2007, 462). That, I think, is a thought worth pursuing. Perhaps we will be less frustrated with subsidiarity if we see it not primarily as a decision rule or principle of institutional design, but also, and perhaps more importantly, as an essential challenge to the dominant vocabulary of the sovereign territorial state? To be sure, subsidiarity labors under the long shadow of the Westphalian imaginary, a vision of politics anchored in justifying coercion over a bounded territory. Sovereignty and rights are the coins of that realm. If subsidiarity is to be a critical lens, then it will be laboring against that imaginary, and our settled moral and legal vocabularies so firmly entrenched therein. To make my case, then, this is the labor I will undertake here. On a rather cold and unfriendly morning in October 1625, Rudolph Christian, the newly enthroned count of Eastern Frisia, arrived at the city gate of Emden, expecting that the city would welcome him and immediately start with the traditional ceremonies during which it had to pay homage to its new sovereign. But nobody met Rudolph Christian at the gate, and only later in the day a delegation of the city council appeared at the count's residence, telling him to his great surprise, that it had not been possible to meet him at the city gate because it had not been known through which of the several gates he had wished to enter (Hueglin 1979, 9). Centuries later and half a world away, Clifford Geertz (1980) offers the following story to set the puzzle of his remarkable account of politics and ceremony in precolonial Bali. Dutch administrators, seeking to establish clear designations of local authority and ownership, wished to establish the boundary between two hostile princedoms. The princes agreed that the boundaries were, respectively, wherever one could see the sea, facing outward, or the marshlands, facing inward. Perplexed, the administrators asked if there hadn't been past conflicts over such a murky division: didn't they fight over this territory? "Mejheer," one of the old leaders replied, "we have much better reasons to fight than these shabby hills" (Geertz 1980, 24–25). Ultimately, things end poorly for the Balinese order. Geertz recounts one of the final encounters of that regime with Dutch forces in 1908, at "Klungkung, the nominal 'capital' of traditional Bali" where "the king and court again paraded, half entranced, half dazed with opium, out of the palace into the reluctant fire of the by now thoroughly bewildered Dutch troops. It was quite literally the death of the old order. It expired as it had lived: absorbed in a pageant" (12–13). What binds these two accounts? In each, older forms—and animating symbols and rituals—of political order fall before the imperatives of sovereignty and its most central ordering feature: coercion. Violence. Max Weber's (in)famous claim to monopoly over legitimate coercion within a clearly delineated territory (Weber 1919, 78). In the case of the Balinese order, Geertz means to highlight what our Westphalian-inflected conceptions of politics and the state tend to obscure: "the ordering force of display, regard, and drama" (Geertz 1980, 121). If we invoke our favored analytic categories and causal explanations to reduce the semiotic core of Balinese politics to "the worn coin of European ideological debate" we "allow most of what is most interesting about it to escape our view. Whatever intelligence it may have to offer us about the nature of politics, it can hardly be that big fish eat little fish, or that the rags of virtue mask the engines of privilege" (123). When the homage was finally paid two years later, on the 28th of June 1627, the relation between city and sovereign had indeed been radically changed. In the place of the unilateral obligation of the city, there now was a mutual contract: in exchange for the city's oath of loyalty, the count had to guarantee the city's privileges by an equally binding 'declaration of rights'. Especially the oath-formula itself appeared fundamentally altered. Where the old oath had spoken of obedience according to customary law between vassals and hereditary sovereign, the new text only spoke of faith between count and city according to mutual contract and in consideration of the city's privileges (Hueglin 1979, 9-10). At the dawn of the sovereign territorial state, then, and sharing so much by way of law and culture, Althusius could negotiate favorable terms of Emden's submission with the fading relevance of local sovereigns. Two centuries later, no such space was possible for the Balinese, and for countless other peoples with distinctive ways of ordering their public lives together. History is littered with peoples who had better reasons to fight than their shabby hills, or who might sometimes fight over shabby hills that they only saw and settled on every few years, before moving on. These peoples lost out to others, whose understandings of use, possession, property, territory, and place were grounded in a particular notion of a right: powers and entitlements to exclude, ultimately grounded in the violence of the sovereign territorial state. The imperatives of territorial sovereignty are distinct from mere control: Henrik Spruyt (Spruyt 1994, 34–35) notes the fundamental novelty of what happens in the decades and centuries after the encounter Hueglin describes. Human territoriality is a deep fact of social life, to be sure; and claims of exclusive and absolute authority are familiar throughout history. The latter, however, were typically made by priests, emperors, and kings, and those claims were over people (bodies and souls), resources, and activities. Territorial jurisdiction was incidental to these desirada, and indeed unimportant insofar as the final authority of divine edict—and of the king or emperor sanctioned by the mandate of heaven—was universal and undifferentiated. In the medieval West, the idea of sovereignty, while a part of medieval thought and law at least from Bodin's famous reflections,3 took a long time to become politically important because it was not clearly differentiated in space: there were no borders delimiting God's power. Spruyt puts the point succinctly: "Church and empire were universalist forms of organization" (1994, 35). This is not to say that claims of territorial jurisdiction were uncommon in human history, but most often they were not claims of exclusive and final authority over clearly bounded physical regions. More often, jurisdictional claims were limited to particular times, people, and activities. Territorial control was incidental to, and derivative of, authority over peoples, activities, and resources. So, what is possible for Emden and some other cities fades as territorial jurisdiction becomes wed to the idea of sovereign territorial states. Possibilities for understanding and implementing complex and overlapping configurations of negotiated, provisional sovereignties become foreclosed under the emerging logics of capital (commerce, exchange, exploitation) and coercion (violence, control, domination), a historical dynamic beautifully elaborated by Charles Tilly (1993).4 Against that history, we so often find ourselves chafing at the legacy of the sovereign state system. Scholars wrestle with how regionally concentrated—and often historically oppressed or marginalized—groups can be fairly and effectively accommodated within existing states (e.g., and most obviously, Kymlicka 1995), or when those groups might legitimately "go it alone," seceding from existing sovereign territorial states (see, e.g., Brilmayer 1991; Buchanan 1991; Wellman 2005). Scholars grapple with the legacies of colonialism, and the continuing injustices faced by Indigenous peoples, in the Americas and around the world (e.g., Coulthard 2014; Allard-Tremblay 2019; Jourdeuil 2025). Much work has grappled with whether, and if so, how, sovereign territorial states may legitimately exclude outsiders, and more critically, use coercion at borders (e.g., Abizadeh 2008; Song 2018; Lenard 2023). And pressing regional and global problems that transcend state boundaries—most obviously and perhaps most critically, climate change—force us to explore the limits of state sovereignty and the realities of how institutions in fact try to grapple with these complexities (Slaughter 2004); the possibilities of fair and legitimate international coordination (Caney 2005) especially with respect to resources (Armstrong 2017), and indeed the possibility and coherence of the very idea of global justice (Beitz 1979; Pogge 1994; Rawls 1999; Blake 2001; Nagel 2005; Cohen and Sabel 2006; Kukathas 2006; de Bres 2012; Tan 2021). These are all important, indeed vital concerns and efforts. Yet I wonder if we might do well to consider some of those ways of ordering public life that have been forgotten or subverted under the imaginative closure that sovereignty has imposed over centuries. Perhaps the possibility of insight from such considerations points us to an understanding of subsidiarity as, at its core, a strategy of resistance against that closure, as much as a rule of thumb for legal-administrative tinkering?5 What does it mean to understand subsidiarity not primarily as a political-legal principle requiring clarification and an authoritative interpretation, nor as a moral principle requiring defense and normative endorsement, but instead chiefly as a strategy of resistance against the dominant vocabulary of territorial sovereignty, and correlative rights of jurisdiction and coercive control? Resistance here is best understood as a reminder and caveat, not a call to revolution and overthrow of the old conceptual order. There is, after all, much to value in the world we find ourselves inhabiting. We have inherited a conceptual inventory and moral vocabulary that we can and should scrutinize, certainly, and that admits of important qualifications, refinements, and re-interpretations. But how else should we understand the relationships today between persons, peoples, and places, without some idea of right? And if we allow that to be a rhetorical question, then we can proceed with powerful arguments for the sovereign territorial state as enabling and assuring those rights. This is also to say, however, that by framing the relationships between peoples and places as a matter of who has a right to territory, we are articulating these relationships in a distinctly modern way, presuming a scholarly and legal tradition that gives sense to the idea of a right over land or space, and correlative ideas of contract, alienation, and jurisdiction. Also presumed are institutional means to implement those ideas, enforcing contracts and regulating activities within a jurisdiction. This is the assumed terrain of much sophisticated work by philosophers and theorists, addressing who has a right to what territory and its resources—states? nations? self-determining peoples? who counts as a distinct 'people'? When and why are these right claims justified, and what do those rights permit by way of using resources, regulating activities within a territory, and enforcing borders against non-members trying to enter?6 These are important conceptual innovations and refinements: in a dramatically unequal and uncertain world, flirting dangerously with populist (racist) nativism and runaway environmental devastation, our practical need for clarity and persuasion on these questions is increasingly desperate. Still, these philosophical and theoretical efforts labor firmly within the imaginative spaces and justificatory vocabularies of the Westphalian sovereign state, and rights-talk is, again, a dominant currency of that realm. Rights are a powerful mediating mechanism, certainly, and we can (hopefully) use them as engines for justice and legitimacy: we can still usefully frame many practical problems—of contested territorial claims, dilemmas of resource management, claims of legitimate entry and occupation of territories—in terms of rights (of ownership, access, and jurisdiction). These are not the only such mechanisms, however, and we should perhaps apply, as Rawls recommended, the principle of toleration to philosophy itself: our critiques and recommendations should not force imaginative and political closure on other mechanisms, other ways of mediating the relationship between persons and peoples, territory and resources.7 To this suggestion, a critic might reasonably rejoin: what else could our relationships to land, resources, and people be, other than one of rights? This is, after all, the world we find ourselves inhabiting. We have inherited a conceptual and moral vocabulary from the past centuries. We can and should scrutinize that vocabulary, certainly; and we should offer important qualifications, refinements, and re-interpretations to these concepts, especially in light of the patently unfair and cruel aspects of those past centuries. But why linger on alternative ways of understanding these relationships? Even if we were to engage in that imaginative labor, what would be the point, as political theorists? Leave those romantic reveries to poets, artists, and futurists. Even the most fervent advocates of ideal theorizing do not suggest we should linger too long in the far-distant realms of utterly unrealistic utopias. Or at least, you do not linger there and still claim the mantle of "political theories." Perhaps, with Rawls, we should not only apply toleration to our philosophical practices, but also strive to be realistically utopian in doing so? (Rawls 1999, 6–8 and 11–12) We live in a world where rights-talk makes sense; where such talk matters deeply to peoples' lives; and where territorial states remain the only feasible way to realize those rights through legislation and enforcement. Theorize that. I won't claim that she is such a critic, but consider how, in her richly argued book on territorial sovereignty, Anna Stilz (2019, 5) frames an introductory discussion of the various historical alternatives to the sovereign territorial state: "I mention these historical alternatives to the territorial states system not because they represent real options for us today: for the most part, they depend upon social and economic preconditions that no longer obtain, and they lack contemporary advocates." In fairness, Stilz goes on to note that these historical complexities make clear that, "however deeply rooted it may be at present, the territorial states system is not a natural or an unavoidable political form." Still, Stilz's book, like so many other representative works in this tradition, takes something of a pragmatic stance: given that we do in fact live in a world of sovereign territorial states (and associated rights-talk), is there, she asks, "any compelling moral justification for organizing our world as a structure of autonomous, bounded, spatially defined jurisdictional units? Should we see this mode of political organization as just a firmly rooted historical contingency? Or are there ethical principles that might support or legitimate it?" (Stilz 2019, 5). Fair questions. I am not a philosophical anarchist. I share with many philosophers and theorists—Stilz included—the considered judgment that (sovereign) state political authority can indeed be legitimate—not least given some of the considerations marshaled by Kofman (2000). I am sympathetic to the arguments on offer by thinkers such as Kolers (2009), Nine (2012), Moore (2015), Stilz (2019), and others, defending claims of right for peoples to be self-determining on particular territories, but also recognizing that the familiar state system is importantly unjust and unsustainable in critical respects, and that state claims of sovereign control over peoples and territories—and claims to non-interference in internal affairs—should answer to moral argument and environmental realities. All of that said, however, I confess that of late I have grown more suspicious of the critic's rhetorical posture just rehearsed. I increasingly adopt what James Scott (2012) calls "an anarchist squint," motivated by the durable fact that, however nuanced and cogent our categories and arguments, the machinery of collective authority so often tends toward seeing the world in a particular way, and eventually comes around to shaping that world according to their administrative logics and practical imperatives: taxation, suppression of rebellion, and thwarting outside challengers. I am also not a philosophical (or political) libertarian, but in this respect I believe those thinkers have the motivating worry exactly right. States coerce. We can talk about accommodating different values and styles of political decision-making, or recognizing problems that transcend state boundaries, but at the end of the day, if your conception of a state involves authorizing and enforcing laws, then it is a coercive apparatus that inevitably transforms its subjects and territories. Whether prosecuting drone strikes, detaining immigrants at borders, or enforcing municipal bylaws regulating water use, this is what states do, their primal logic, their core source code, their most basic terrifying machinery. I worry that, by accepting as necessary (and sufficient?) the vocabulary of rights when thinking about the spatial logic of politics, we may be accepting that moral judgments about coercion inevitably (properly?) involve what Scott (1998) so aptly called "seeing like a state." Whether that state is (aspirationally) global, regional (something like the EU), or limited to existing Westphalian scales and concerns; or whether it applies merely to apparently mundane questions of municipal service provision, regional economic integration, or infrastructure siting decisions; it is still insidious and coercive, shaping its subjects and domains according to the imperatives of coercive rule. All analytic lens distort and obscure, of course. That does not mean they aren't useful in understanding how our world works, and providing guidance in hard cases. I think the territorial rights literature, ultimately nestled in the Westphalian imaginary, clears this hurdle: these arguments and frameworks provide insight and guidance where it is desperately needed. Still, it is convenient how our careful philosophical examinations of, say, territorial rights in international law—or reasonable accommodation and justified removal in immigration decisions, or indigenous self-determination—seem ultimately to leave so much in place. Our prevailing moral vocabulary of ownership and territorial jurisdiction presupposes a particular coercive architecture that sustains those entitlements to regulate uses of space, and in doing so forecloses other possibilities—perhaps not necessarily, as a deep point of inherent logic, but certainly as a contingent yet distressingly durable historical fact about our habits and complacencies. Thus I am not placated when, for instance, Stilz's nuanced defense of a territorial state system begins by qualifying the privileges of state sovereignty,8 and then by denying that those states need be "the Weberian, bureaucratic states we are familiar with today" (Stilz 2019, 14). States are, in Stilz's account, authoritative enforcers of public laws, but she insists that "traditional indigenous decision-making procedures, operating by compromise and consensus, would count as 'states' on this definition. So too would local self-organized schemes that typically operate on a much smaller scale than nation-states," citing Elinor Ostrom's (1990) justly famous study—of emergent local management schemes for common pool resources, such as local fisheries or shared groundwater—with respect to the latter cases (Stilz 2019, 15). But the question of how those consensus-based indigenous systems and local resource management schemes would be coordinated is exactly the question of whether the coercive realities of territorial sovereignty are inevitable to politics, and I fear we cannot escape that question simply by acknowledging some consensus-oriented Indigenous traditions, or the messy but successful local norms and practices that so delighted Elinor Ostrom in her pathbreaking studies of polycentricity and resource management (Ostrom 1983, 1990, 2005) and the evolution of norms (Ostrom 2000, 2010) without—and occasionally in spite of—the strong hand of a centralized coordinating authority.9 To see the problem here more clearly, consider Stilz's proposal, offered in these same early framing moves of her argument, "that states should be required to adopt a decentralized, pluralistic structure that facilitates self-determination for their indigenous peoples and various substate minorities" (Stilz 2019, 13). How would this work for, say, the Bedouin? the Inuit? other nomadic peoples? They cannot live in our world on terms that they would have historically chosen for themselves. In that sense, at the very least, they can never be genuinely autonomous, however capacious our post-colonial states are in encouraging self-determination and self-governance—as either a civic or ethnogeographically understood peoples—in ways that their reasonable understandings and interests would have evolved without the legacies of European interference. They adapt to our understanding of fair use and legitimate jurisdiction, not us to theirs. And this isn't the old romantic othering trope that we simply don't understand their worldviews, their conceptions of land and proper relationships to it. Of course we do, and they understand ours. But for all of our principled talk of accommodation and self-determination and reconciliation, we continue to live in ways that make those increasingly rare lifestyles utterly unsustainable.10 Interestingly, Avery Kolers (2009) does take the Bedouin example seriously in thinking through the complexities of identity, belonging, land use, and territorial security, specifically on and around the lands that are now Israel. Margaret Moore is, I think, the only fellow scholar working in these areas to recognize this—if only to note that, while "interesting and important," this "is not the struggle that is gripping the area today" (Moore 2015, 76). True enough. The Bedouin enjoy one other nod in Moore's book (42), mentioned in passing when the discussion of place-based rights is prefaced with examples of how relationships to land and place are complex.11 I suspect that, between Koler's book and Moore's two mentions, this is more attention than the Bedouin or, frankly, any other nomadic way of life, have hitherto received in Western political philosophy and theory.12 These increasingly rare and consistently marginalized lifestyles suggest foreclosed possibilities for organizing and managing the quotidian vagaries of material and social life, realities on the ground that have always tended to complicate the hopes and dreams of emperors and planners and philosophers, yet that sovereign states have largely succeeded in dominating and rendering legible in just the ways Scott (1998) suggests (fears?). The plight of these lifestyles should, I believe, inspire redress and remorse; intellectual and moral humility; and then perhaps creative reinterpretations of our own concepts and prevalent vocabularies. We must constantly ask if our favored concepts—of ownership, use, jurisdictional autonomy, territorial sovereignty—can be understood in ways that are not so closely tied to the idea of right, and more broadly, to the imaginative legacy of Westphalia that empowers that idea; that animates our understandings of citizenship and authority; and that forecloses so many possibilities for organizing politics and managing territories and resources. We can accept the imaginative and conceptual closure of the Westphalian fixation on a bounded sovereign authority over territory, and then tinker with our concepts and their applications; or we can resist that closure and its inevitable coercions. Perhaps, at least to some useful extent, we can do both? Again, the arguments marshaled by thinkers like Kolers and Nine, Moore and Stilz, are powerful and helpful in thinking through who has rights to territory, when and why, and how we should think about membership and borders, inclusion and exclusion. But they are very much arguments within the Westphalian imaginary. Push just a little bit against the conceptual and historical underpinnings of that imaginary (as we do when we ask about the status of nomadic ways of life within these frameworks), and we quickly find ourselves perplexed and frustrated—and yes, often ashamed. So, yes, we need conceptual rigor and moral clarity within the conceptual and political frameworks we have inherited; but we should also resist at those points where the frameworks coerce and exclude and foreclose possibilities. Again, resistance here need not counsel steadfast rejection and revolution. It may be enough that we recognize the ways that other lenses, other vocabularies, can help us counter the coercive and exclusionary legacies of sovereignty. Subsidiarity, at its heart, can be just such a counter-vocabulary, a principle of muddling through in ways that hedge against rule by indifferent distant others, while recognizing the realities that we are still often importantly bound together with those far away. I think many of the contributors to the literatures I'm pushing at here recognize something of this promise, when they struggle to reconcile their philosophical precision with the messy realities of politics as it is lived in and among various clans and tribes, villages and cities, neighborhoods and regions, and myriad overlapping associations that characterize quotidian politics. Again, Stilz (2019) frames her entire project against a condition of de facto subsidiarity for indigenous and other marginalized groups within existing sovereign states. In other work, Avery Kolers has positioned himself as holding that something like sovereign territorial states can be justified, yet also then giving serious consideration (and helpful clarification) to the question of how a principle of subsidiarity might buttress an institutional cosmopolitanism, "a family of views united by their commitment to democratic global governance regimes falling short of a world state" but where subsidiarity allows "that more coordination at the global level is compatible with more local democratic control" (Kolers 2006, 659). Moore (2015) argues for a conditional presumption of control over resources when that control is plausibly tied to interests in collective self-determination, but those interests can be preempted by the more fundamental interests of others. When reasonable claims conflict, Moore recommends variations on consociational power-sharing and fair federalism, of which subsidiarity is an obvious element. In a work that examines place-specific duties and the justification of borders against the metaphor of watersheds—rather than desert islands and terra nullius and place