2025/08/31 by Loren King · 1 voice
Social Sciences · #American Constitutional Law and Politics #Political Philosophy and Ethics #Religious Freedom and Discrimination
paper · pdf · doi:10.1111/josp.70014
openalex publication_date 2025/08/31 · openalex created_date 2025/10/10 · openalex updated_date 2026/07/28
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 within and most or when those might it from sovereign territorial Scholars with the of and the by peoples, in the and the world has with and if sovereign territorial may and more coercion at borders And and that state and perhaps most us to the of state sovereignty and the of how institutions in fact to with these complexities the of and legitimate coordination with to and indeed the and of the idea of and These are all indeed and I if we might do to some of those ways of ordering public that have been or under the that sovereignty has over Perhaps the of from such us to an understanding of subsidiarity at its a of against that as much as a rule of for What it to subsidiarity not primarily as a principle and an authoritative as a moral principle and but as a of against the dominant vocabulary of territorial sovereignty, and rights of jurisdiction and is as a and 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of a state and then it is a that its and at or use, this is what their their core their most I by as (and the vocabulary of rights when about the of politics, we may be that moral about coercion what so a that state is the or limited to Westphalian and or it to of or it is and its and according to the imperatives of analytic and of not they useful in understanding how our world and in I the territorial rights ultimately in the Westphalian imaginary, this these and and where it is Still, it is how our of, territorial rights in and in or ultimately to so much in moral vocabulary of and territorial jurisdiction a particular that those entitlements to regulate of and in so other not as a deep point of but as a yet historical fact about our and I not for of a territorial state system by the privileges of state and then by that those need be “the we are familiar with in authoritative of public but she that decision-making by and would count as on this would local that typically on a much than famous local for resources, such as local or to the But the of how those and local would be is the of the of territorial sovereignty are to politics, and I we escape that simply by some or the messy but local and that so in of and and the of occasionally in of a centralized To see the more in these of be to a that for their peoples and would this the the other in our world on terms that they would have historically for In that at the they can be our are in and a or ways that their understandings and would have without the of European to our understanding of and legitimate not us to And this the old that we simply their their conceptions of and to Of we and they But for all of our of and and we to in ways that make those the in through the complexities of use, and territorial on and the that are now I think, the only in these to only to while and this not the that is the The one other in in when the of rights is with of how to and place are I between and two this is more than the any other way of life, have in political and These and foreclosed for and the quotidian of and social life, on the that have to the hopes and of and and yet that sovereign have in and in the ways The of these I and and moral and then perhaps of our and ask if our favored ownership, use, jurisdictional territorial be in ways that are not so to the idea of and more to the legacy of that that that our understandings of and and that so for politics and and resources. can the and of the Westphalian on a bounded sovereign authority over territory, and then with our and their or we can that and its at least to some useful we can do the by and and are and in through who has rights to territory, when and and how we about and and But they are much within the Westphalian a little against the and historical of that we do when we ask about the of ways of within these and we find ourselves and often So, we need and moral within the and political we have but we also at those where the and and need not and It may be that we the ways that other other can us the and of at its can be such a a principle of through in ways that against rule by others, while the that we are often with those I of the to the at of this when they to their with the messy of politics as it is in and and villages and neighborhoods and and overlapping that quotidian against a of subsidiarity for and other within sovereign states. In other has as that sovereign territorial can be yet also then consideration (and to the of how a principle of subsidiarity might an institutional “a of by their to of a world but where subsidiarity more coordination at the level is with more local argues for a of control over when that control is to in but those can be by the more fundamental of When claims on and of which subsidiarity is an In a that and the justification of borders against the of than and and the notion that political order and peoples who claim sovereignty over a particular to through sovereignty on a on complex and of deep people, such as and which she terms In through how these of and but also and in of territorial rights and state sovereignty, appeals to an account of I the of account of territorial and on point us to about and in terms that the vocabulary of the sovereign territorial state. The of of what and where and as by and and typically the of of resources. of this is perhaps the story to of complex that few have the and on the by and the Emerging from a between two sovereign the has into a but of and that and that state, and policies to that at least people one and of two sovereign If there is one that what the day-to-day and formal the and and the to of would have to be decision is made that not make to those the of and most importantly, of is to local and and and The in some ways a point about of subsidiarity that are typically as a that any workable implementation of subsidiarity under of social and will require coordination and at of organization, and that the (and on such will be To the that any principle of subsidiarity of to that mandate will require a coordination of diverse of which require that are by as and which authority back toward a one of subsidiarity in the European at of that while subsidiarity has been by as a challenge to more with to it has to be an which some political not least the have to more and 2014, with that might be thought to that in of is not and that “the on are not however, on to that perhaps is better as a for with less on the in of On my favored of subsidiarity as a for critical these simply are not of subsidiarity as a moral and critical do a close between subsidiarity and of the between the epistemic and of subsidiarity within And I this to territorial anchored in what she a of most clearly by of the through with the of and authority in I do however, we need to these in of and overlapping jurisdictional and rights within a sovereign territorial state? If the is that politics is about and our then perhaps subsidiarity can be the core moral rather than sovereignty and rights of jurisdiction and perhaps more as the critical been subsidiarity is a that sovereignty, and control rights from and of the and in which so much of our most What of the at the by Andreas Føllesdal and several others, that interpretations of subsidiarity authoritative of the principle to to be a not with subsidiarity and not with subsidiarity as a critical lens, but with constitutional that the of their frustrations of by of human and the of politics as the of particular sovereign territorial states. to consensus on interpretations of political we claim to In such an however, constitutional and may not be a but a subsidiarity is as much about through in as it is a to challenge sovereign imperatives and their dominant In a world that has the of Westphalian territorial sovereignty, the imperatives of and which to toward the of with a critical have a that is perhaps If a on subsidiarity can us then it is The is to and for their on these and for their two on and subsidiarity at the of This from with and with at the Subsidiarity from two with this and in particular from by and Andreas Føllesdal on the of On the for to the dominant vocabulary of state sovereignty, I have much over the years from Hueglin and the The no conflicts of