#14940 - Federalism Subsidiarity - Constitutional Theory

8. Federalism and Subsidiarity

N. Aroney, ‘Subsidiarity, Federalism and the Best Constitution: Thomas Aquinas on City, Province and Empire’ (2007) 26 Law and Philosophy 161-228

Aquinas on political communities (city, province, empire; kingdom, nation), social communities (household, clan, village), ecclesiastical communities (parish, diocese, universal church) and others (religious orders, confraternities, guilds)

• Subsidiarity – decisions to be taken as closely as possible to the citizen // federal body to take action only where cannot be achieved by individual member states (comparative efficiency)

  • ‘help’ or ‘aid’ (subsidium) of institutions in favour of others

• Federalism –

  • Aquinas’ = hierarchy, not federalism

  • Top-down Federalism – limitations on ruling body ‘from on high’ not popular restraint from below

  • Cf Aristotle – almost exclusively concerned with individual city-states (polis)

    • Aquinas adapted to other forms of community – latent views about federalism

• Ideal constitution (Pt IV) – monarchy, aristocracy, democracy, or mixed model – favoured ‘tempered monarchy’ = mixed model

  • Monarchy tyranny | aristocracy oligarchy | polity democracy

  • For monarchy – possibility that individual may be preeminently virtuous | provide requisite unity to achieve ends of collective government

  • Monarchy > aristocracy > polity | Tyranny < Oligarchy < Democracy

    • Analysis dependent on quality of government – good or bad

    • Ordinary tyranny – promotion of private good | excessive tyranny – oppression of public good

  • Source of authority of monarch determines limits on power

    • Cooperative appointment of leadership for efficacy – right to depose

    • Devine right of kings / superior power – must look to superior for remedy

N. W. Barber ‘The Limited Modesty of Subsidiarity’ (2005) European Law Journal 308

European subsidiarity as democratic structure: allocation of powers to institutions & creation of new institutions;

cf. Catholic subsidiarity – European model has wider appeal & could have developed independently

cf. Self-determination – European federalism protects identities of member States?

Catholic v European Subsidiarity

• EU concerned with democratic public bodies – broader than Catholic, which deals with collective entities generally

  • Catholic – families, etc – engages in private sphere

• EU subsidiarity can be justified by a variety of political philosophies and needn’t rely on Catholic principle

• Catholic subsidiarity – Pope Leo XIII – 1891 – importance of individual & family – State only to intervene to protect common good

• European subsidiarity – Art 5 EC; Protocol on Subsidiarity & Proportionality

  • EC Art 5 “shall take action, in accordance with the principle of subsidiarity, only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can, therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.”

    • Preference for exercise of power by smaller unit (State)

    • Allocation of power qualified by efficiency test

    • Efficiency test qualified by “sufficiently” – minimum level of efficiency required – not sufficient that EC would be better

    • Implicit preference for exercise of power by member State affected by exercise of power, not member State that is better equipped to exercise it

  • TEU Art 1 decisions to be taken “as closely as possible to the citizen”

    • Not legally enforceable – but general objects statement

    • Proposed further principle that applies to EC & States AND local & constituent govs – not confined by art 5

Desirability of subsidiarity

• Introduced to placate member States’ fears of excessive power in EC – no normative value, just practical

• Preventing tyranny – splitting government power & requirement for compromise

  • Flipside of Dicey – federated government is weak

  • BUT does not explain why smallest unit where can be efficiently exercised should be preferred – does not require any particular division, just that divided

    • Aversion of tyranny mere incident of federalism

• Link to democracy – “what touches all concerns all”

  • Those who are affected by power should approve of the outcome – Edward I (1295) summoning parliament – require that come with authority of constituency, rather than simply to advise the King

    • BUT ‘consent-heavy’

  • Those who are affected by power should take part in deliberative process

    • Impractical – require many different forums for each kind of decision – too many bodies creates voter apathy

    • Difficult to define – eg heritage sites of more concern than just those people living in the area? – different levels of interest in different people – more voters dilutes voting power of truly interested people – over/under-inclusive bodies

• “Efficiency” – rough allocation

  • Does deliberative forum exercise power sufficient for discharge?

  • Is deliberative forum representative of interested people? – ie can it exercise power fairly/effectively?

    • Determines minimum level of interest necessary

    • Also rather dependent on mode of election – majoritarianism may not fit the bill

  • Subsidiarity & creation of new institutions – Eg – decision about Scottish roads

    • If Scottish parliament – excludes person who lives in England but commutes to Scotland daily / includes people in Scotland who don’t travel at all

    • If UK – include all interested but also dilutes significantly with uninterested people

    • If new assembly – with specific qualification criteria designed to include interested & exclude uninterested people – would not capture public interest

      • Swiss model of democracy? Redistribution on each vote? – would be difficult to set criteria, subject to fraud, huge JR litigation burden

Subsidiarity v Nationalism (National self-determination)

• Nationalism – moral obligations between nationals stronger than towards non-nationals

  • Right to self-determination – rival principle to subsidiarity

• Subsidiarity attaches decisions to those affected by them // Nationalism ties political power to national group

  • Nationalism promotes parochialism – eg problems in Wales is a British problem and responsibility of whole community

A. Føllesdal, ‘Federalism’ Stanford Encyclopedia of Philosophy http://plato.stanford.edu/entries/federalism/

Exploration of taxonomy, history, justifications, and theories of federalism

Taxonomy

• Federal political order includes

  • Federation – territorial division of power between units; division of power entrenched in constitution which neither can alter; both have direct effect on citizens and are directly elected

    • Cf decentralized authority conferred by unitary states: can be revoked by central legislature

  • Union

  • Confederation – central authority exercises delegated power; member units have veto; central authority binds member units but not citizens directly; centre lacks independent financial/electoral base; authority not ceded permanently

    • Formed for specific tasks

    • Eg North American States during civil war; Switzerland unil 1847; EU

  • League

  • Decentralised union

• Symmetric v asymmetric (members have same or different powers)

• Separate (centre elected directly & not through members; power exercised distinctly) v interlocking/cooperative federalism (members participate in central bodies – cabinets, legislatures, or power to postpone/veto exercises of central power)

• Establishment by ceding powers to collective goals (USA, Canda, Switzerland, Australia) v devolution of authority by central government to alleviate territorial minorities (India, Belgium, Spain)

• Non-territorial federations (loose use of federal terminology, reference to personal autonomy of ethnic or religious minorities)

Justifications

• Advantages over separate states/succession

  • Foster peace

  • Free trade & economic prosperity

  • Protection against tyranny by constraining state power – although presumes benevolent central authority

  • Achievement of common objectives & regulation

  • Increase political influence of constituent members – over larger ambitions & activities of other States

  • Stems from ‘organic’ social organization – each unit secures common good of smaller units beyond their reach – link to catholic traditions of subsidiarity

• Advantages over unitary system

  • Secures minority groups – member units retain power

  • Increase opportunities for citizen participation in decision-making

  • Optimal subsidiarity – letting interested citizens vote on matters

  • Provides diversity

Further issues

• Composition, distribution of power & level of influence of member units in central authority

• Challenge of stability – tend to drift towards centralized or decentralized

• Division of power – principle of subsidiarity

  • What powers to which body

  • Policing the boundaries of power

  • Level of democratic controls

  • Authority to revise – by referendum etc

• Member autonomy v redistribution of wealth & rights

P. Craig, ‘Subsidiarity: A Political and Legal Analysis’ (2012) 50 Journal of Common Market Studies 72

Subsidiarity in the Maastricht Treaty – rationales for inclusion, challenges to realization, potential for replacement with proportionality control on intrusions on State autonomy

Rationale

• Practical/political – Division of competence between member States & EC

• Normative – better to exercise by lower power if ‘suffiiently’ able

• Desire to avoid excessive centralization

• Enhancing pluralism – diversity of nationalities

Difficulties with realisation

• Pre-Lisbon

  • Subsidiarity applicable to all areas that did not fall within EC’s exclusive competence – concurrent powers

  • ...