Subsidiarity and the Deracination of Political Community: The EU and Beyond

Abstract

This paper is concerned to account for the concept of subsidiarity's broad topicality. What is the overall significance of the simultaneous development of the subsidiarity theme across a number of fields, EU law in particular, but also the ECHR, general international law and the shifting internal dynamics of many federal states? Just why has subsidiarity emerged as an important term within the lexicon of contemporary legal theoretical reflection and institutional design? The answer - or at least the beginning of the answer - lies in the way in which, and the reasons for which, ‘subsidiarity’ presents itself as what Jeremy Waldron calls a ‘solution concept’ rather than an ‘achievement concept.’ A solution concept is one, quite simply, that is defined by the solution it seeks rather than by the result it achieves. That is to say, what joins inquiry into a solution concept is a shared sense that the problem to which it is directed is one of significance and of broad application, even if the answer remains elusive. From this baseline, I argue three things. I argue, first, that the emergence of subsidiarity as a candidate term has to do with broader and endemic problems and puzzles associated with changes in the scale and patterning of global political forms and institutions; secondly, that subsidiarity’s response to this operates through an attempt to think of political community and the relationship between political communities in a manner that looks beyond familiar ideas of their rootedness in territory, ethnicity, culture and conceptions of peoplehood associated with popular sovereignty. The invocation of the idea of subsidiarity, in other words, implies a more deracinated understanding of political community. And I want to argue thirdly, that while in some respects it may seem a vain or overstated ambition to seek to rethink political community in such a manner, there are nevertheless good and pressing reasons - pertaining to fundamental questions of the very sustainability of new forms of political architecture in the EU and elsewhere - why we should persevere with the theme of subsidiarity within our political discourse.

Keywords: Subsidiarity, federalism, federation, EU, ECHR, globalization, international law, deracination