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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) o 'help' or 'aid' (subsidium) of institutions in favour of others Federalism - o Aquinas' = hierarchy, not federalism o Top-down Federalism - limitations on ruling body 'from on high' not popular restraint from below o 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 o Monarchy ? tyranny | aristocracy ? oligarchy | polity ? democracy o For monarchy - possibility that individual may be preeminently virtuous | provide requisite unity to achieve ends of collective government o 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 o 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 o 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 o 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 o 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 o Flipside of Dicey - federated government is weak o 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" o 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' o 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 o Does deliberative forum exercise power sufficient for discharge?
o Is deliberative forum representative of interested people? - ie can it
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