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 reaches a negative conclusion. He thereby not only helps clarify where and when subsidiarity may apply but adds to deflationary critiques of the European Union's conception of subsidiarity by suggesting that the European Union's approach does not share common features of other competing conceptions, including applicability conditions. Even if, in other words, one accepts that subsidiarity can have many meanings, the conception used in the European Union does not clearly qualify as an acceptable one. Other criticisms of subsidiarity do not focus on its use in European Union law. In "Beyond Subsidiarity: Normative Principles for Authority Allocation in Democracies", for example, Colin Rowe contributes to the deflationary critique of subsidiarity as a guide for allocating authority within democracies and offers an alternative approach to authority allocation. Rowe argues that subsidiarity is not alone in failing to provide proper guidance on allocative questions. Competing principles—namely, the sovereignty, centralization, fiscal federalism, and all-affected, -subjected, and -coerced principles—also fail to provide clear and compelling guidance on when particular entities (e.g., federal, provincial, municipal governments) should possess authority over particular subjects (e.g., education, defense). The principles are either too general, thereby failing to provide compelling concrete guidance, or too narrow, thereby failing to offer generalizable guidance across different cases. Building on earlier work in democratic theory and prior work by Trevor Latimer on subsidiarity (e.g., Latimer 2018b), Rowe offers a democratic approach to authority allocation that Rowe believes better reflects the reality that different contexts call for different allocations. Rowe argues that authority allocation claims belong to distinct demoi. A demos must then fulfill two conditions to have a valid authority claim. Per Rowe, it must demonstrate that (a) authority over a subject is necessary for specified needs (the content principle) and (b) the demos has "a collective, active, conceptualization" of the subject (the conceptualization principle). These conditions need not track "closeness" to those affected by decisions—and accordingly need not call for subsidiarity's constitutive commitment to "local" authority. Rowe reflects one possible response to deflationary critiques of subsidiarity, namely seeking an alternative means of allocating authority in light of deflationary critiques of subsidiarity. One may, again, instead seek a different role for subsidiarity to play. Andreas Follesdal's "Subsidiarity and Public Reason: Two Cheers Are Quite Enough" takes this alternative approach. Consistent with work by, for example, Yann Allard-Tremblay (2017), Follesdal examines subsidiarity's value for public discourse. However, Follesdal only provides a qualified defense of subsidiarity's discursive value. Follesdal argues that subsidiarity can help further liberal public reason, but only in an imperfect, incomplete manner. Follesdal acknowledges the force of some deflationary critiques of subsidiarity as a principle for allocating authority. He nonetheless argues that it can still guide the use and review of authority one has been allocated, while recognizing that subsidiarity is no panacea. Returning to discussion of subsidiarity's role in European Union law, Follesdal develops analyses of the Court of Justice of the European Union and the European Court of Human Rights to demonstrate that subsidiarity can "nudge more public, and more stringent justifications for the allocation and use of political power" but also risks hiding normative considerations that are or should be guiding public decisions. Follesdal thereby argues that one must approach subsidiarity claims carefully, recognizing that they can bring important normative considerations into the open but protecting against the use of subsidiarity to instead obscure relevant values. He accordingly reserves a third "cheer." Where Follesdal seeks to demonstrate the continued value of subsidiarity for constitutional issues, averring to its discursive value, Michael Da Silva takes a different tack towards identifying a distinct role for subsidiarity given deflationary accounts of its constitutional value. Da Silva shares worries about the use of subsidiarity language to obscure operative moral interests. Indeed, he appears to feel them more acutely and accordingly ultimately suggests structuring relevant constitutional discourse around the discrete values that may justify subsidiarity, like concerns with democratic influence or the value of "local" knowledge.20 He accordingly appears to add to deflationary approaches to subsidiarity. Rather than give up on the concept of subsidiarity, however, Da Silva argues that subsidiarity can play a non-constitutional role in political philosophy. In "Subsidiarity, States, and Intermediate Groups: Maintaining Subsidiarity's Distinct Contribution to Moral Philosophy," Da Silva argues that the concept subsidiarity historically served as a principle for structuring the relationships between entities claiming jurisdiction in an area. More specifically, it developed to address competing claims by entities seeking complete control over an area (empire, nation-states, etc.) and other groups who previously maintain distinct domains of authority and continue to claim such authority (churches, unions, guilds, etc.). Da Silva further argues that subsidiarity can still play a distinct non-constitutional role in political discourse if it is understood as a principle for addressing competing comprehensive (most often state) and non-comprehensive authority claims. Da Silva too appears to suggest that subsidiarity's primary value is discursive in nature. But he also argues that using the same term for constitutional and non-constitutional debates risks confusion and subsidiarity can only play a distinct role in the non-constitutional ones. In "Subsidiarity in the Shadow of Sovereignty", Loren King takes still another tack, rejecting the utility of subsidiarity as a principle and arguing that it may be more fruitfully understood as "an essential challenge to the dominant vocabulary of the sovereign territorial state." King illustrates how the development of the modern nation-state and the concept of territorial sovereignty limited possibilities for complex, overlapping sovereignties that existed in prior eras. He then argues that contemporary philosophers' (understandable) desires to offer pragmatic solutions to important problems ties them to territorial sovereignty in a way that forecloses potentially promising means of addressing real political issues. Analyses that attempt to address the fact of a world organized into nation-states often adopt a rights- and ownership-based lens that favors continued territorial governance over desirable alternatives, like Indigenous governance frameworks, and that cannot adequately address seemingly valid claims by non-territorial groups, like the Bedouin. Like Da Silva, King then suggests that subsidiarity could provide a useful tool for challenging state authority. Unlike Da Silva, however, King argues that subsidiarity should not be understood as a principle for allocating authority but as a tool of resistance.21 Rather than demarcating protected spheres of jurisdiction, King suggests, subsidiarity is best understood as providing a useful vocabulary one can use to challenge state claims while "muddling through" real politics. Consistent with his general call to attend to real politics, King concludes his article with a brief case note. He discusses the North American International Joint Commission, a watershed management entity, as an example of a real multi-level governance structure whose operations reflect subsidiarity's critical potential. Interestingly, Follesdal, Da Silva, and King appear to differ not only in how they would reorient subsidiarity but also in the normative phenomena that they view as key to any explanatorily adequate theory of subsidiarity. Da Silva emphasizes his approach's claimed continuity with historical uses of the term "subsidiarity," but his arguments suggest that uses in European Union law that are central to Follesdal's account often err. Insofar as one views European Union law as a paradigmatic site of subsidiarity practices—casting further doubt on Wolthuis's conclusions—one may find this result problematic. Follesdal and Da Silva appear not only to differ in their response to deflationary challenges, but also in their approach to which normative phenomena are most important for an account of subsidiarity. King then takes a more ecumenical approach. King notes that the concept has a clear pedigree in Catholic thought and is widely invoked in European Union law. But he chooses not to directly engage in any historical disputes, instead using a series of vignettes to illustrate how subsidiarity has operated and how it may continue to do so. King seeks to recover lost ways of understanding sovereignty to address contemporary governance problems without taking a stand on which uses of subsidiarity are foundational. We take no position on which of their approaches is best here, or even on whether any single approach is appropriate for all theoretical tasks. We instead highlight these differences because they further underline the methodological challenges—and options—for subsidiarity theories. Finally, Pablo Ortuzar's "On the Jewish Roots of Subsidiarity and Its Consequences for Modern Political Theory" further extends the history of the concept, potentially providing additional data that any theory of subsidiarity seeking to account for its uses should incorporate. Contrary to dominant interpretations suggesting that subsidiarity originated in Ancient Greek or Medieval European thought (or, one might add, later Catholic Social Thought), Ortuzar argues that the concept originated in Second Temple Judaism. He argues that it developed to address challenges raised by the simultaneous recognition of the Jewish peoples' complete religious authority and the Roman Empire's complete political authority. This may be thought to support Da Silva's claim that the principle, properly understood, also seeks to mediate conflicting claims. Yet Ortuzar argues that attending to relevant history demonstrates subsidiarity's commitments to the primacy of religious institutions. This makes it at best difficult—if not, as Ortuzar claims, impossible—to understand subsidiarity outside a Judeo-Christian ontology, as Follesdal, Da Silva, and others desire.22 Ortuzar leaves open the possibility that subsidiarity could be applied in secular contexts. But he suggests most modern applications fail to learn key lessons in the concept's history. The articles collected here do not agree on the "true" meaning of subsidiarity, the "core" purpose(s) subsidiarity should serve, or whether subsidiarity can play its intended moral roles. One may accordingly worry that this collection only underlines the necessary ambiguity or fragmentation of the concept. Yet even if the concept is irremediably ambiguous or fragmented, this collection of articles highlights the multiplicity of possible responses to such ambiguity or fragmentation. One could simply cease using the concept of subsidiarity. But one could just as easily seek to prioritize a particular conception, develop a new one, or restrict the use of the term for particular contexts. Moreover, the collection of articles also offers reason to be skeptical about simple claims that subsidiarity can be easily jettisoned from our moral ontology. While the articles offer multiple reasons to question whether and when subsidiarity is fit for particular purposes, they further demonstrate ways in which it has addressed real political problems. We leave it to the reader to determine whether they thereby make a compelling case for continued use of subsidiarity—and, if so, which version of subsidiarity is most apt. Yet the articles also offer insights into how to judge competing conceptions and the methodological choices one must make when making such judgments. Even if the articles leave more questions open than they answer, then, they should help further political, legal, and philosophical debates. Most of the papers derive from drafts at a Manchester Centre for Political Theory (MANCEPT) Workshop on Political Theory that we co-convened, "After Subsidiarity?," which sought to address what to do in response to the purported deflationary critiques of subsidiarity outlined above. Neither the workshop nor this issue resolves questions about whether subsidiarity has been "deflated" in the sense of being shown to offer no plausible, distinct guidance for the debates in which it is invoked or about what to do if and when such deflation occurred. However, they provide necessary conceptual clarity and strong arguments for different responses. They may also offer some insight into how to treat comparable concepts, like rights or dignity. But if they merely clarify what subsidiarity should aim to do and the strengths and weaknesses of different attempts to match conceptions with functions, they can further many live debates. Different interventions in those debates will, again, then invite us to reconsider how we address other concepts. If, for example, we hold that we should judge accounts of subsidiarity in terms of particular historical purposes, we should also examine whether and why such a(n at least quasi-)genealogical approach is appropriate for other concepts. These substantive and methodological insights should serve to justify the present volume. We sincerely thank Carol Gould, Georgina Malone, and the other editors and staff at the Journal of Social Philosophy (including Lava Schadde and Maya von Ziegesar) and the organizers of the MANCEPT Workshops on Political Theory for their support for the project. We further thank others involved in the MANCEPT Workshop, including Maria Cahill, and the many peer reviewers for the following papers for their participation in the project. We hope that you enjoy reading the special issue as much as we have enjoyed editing it. The authors declare no conflicts of interest.