The Limited Modesty of Subsidiarity

• Date: 01 May 2005
• Author: N. W. Barber
• Published date: 01 May 2005
• DOI: http://doi.org/10.1111/j.1468-0386.2005.00261.x

The Limited Modesty of Subsidiarity

N. W. Barber*

Abstract: This paper provides an account of the European principle of subsidiarity that

presents it as a principle of democratic structuring: engaging both with the allocation

of powers to existing democratic institutions and with the creation of new democratic

institutions. In the process of discussing the European principle, a contrast is drawn

with the Catholic principle of subsidiarity and with the rival doctrine of national self-

determination. It is argued that the European principle is a central part of the Union’s

constitutional identity, and, as such, crucial to an understanding of the European project.

Subsidiarity is a concept of enormous, even alarming, breadth. There are many possi-

ble versions of subsidiarity: this paper will focus on that contained in the European

Treaties. This principle speaks to the empowerment of democratic institutions; of which

individuals ought to be included in decisions relating to the exercise of public power.

It is a principle about the functioning of democracy, even if it is not a principle of

democracy. Subsidiarity helps shape the structures within which democracy can

operate, but does not require or presuppose the agreement of individuals within these

structures. Most obviously, the European principle of subsidiarity is concerned with

the allocation of powers to pre-existing institutions: for instance, whether a decision

should be taken within the institutions of the European Union or should be allocated

to the Westminster Parliament. It will be suggested that the principle can also provide

an argument for the creation of new democratic institutions, both at the sub-state and

at the supra-state level.

Subsidiarity plays an important part in the constitutional structure of the European

Union. Though its legal effects may be slight, its symbolic significance is enormous: it

is a declaration of the vision of Europe shared by the authors of the Treaty and

enshrined in that document. Its importance is recognised in Romano Prodi’s recent

book, Europe as I See It,where he cites subsidiarity as one of the core principles of

governance that reveal the roots and identity of the European Union.1For Prodi,

European Law Journal, Vol.11, No. 3, May 2005, pp. 308–325.

© Blackwell Publishing Ltd. 2005, 9600 Garsington Road, Oxford OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

*Trinity College, Oxford. Thanks are due to Samantha Besson, Josh Chafetz, John Stanton-Ife, Stephen

Wea therill, and Alison Young. It can be read alongside N. W. Barber, ‘Citizenship, Nationalism and the

European Union’, (2002) 8 European Law Review,241, and develops some of the ideas of that piece.

1R. Prodi, Europe as I See It,trans. A. Cameron (Polity Press, 2000). It has been suggested that Jacques

Delors’ support for subsidiarity was also motivated by his spiritual and philosophical roots in Catholi-

cism: M. Burgess, Federalism and European Union: The Building of Europe, 1950–2000 (Routledge,2000),

230–232; P.Marquardt, ‘Subsidiarity and Sovereignty in the European Union’, (1994) 18 Fordham Inter-

national Law Journal 616, 624–25.

subsidiarity is a distinctively Catholic notion, first formulated in papal encyclicals, and

he draws attention to this religious connection as part of a call for an appreciation of

the ‘Christian soul’ of Europe.2This, he hopes, will enhance integration and strengthen

the identity of the Union. In making this claim, Prodi allies himself with a number of

writers who have sought to show that the EU’s political structures have foundations in

a particular set of cultural traditions; often citing, amongst other sources, its supposed

religious heritage.3In the process of expounding a distinctive European principle of

subsidiarity, this paper will mount a narrow and a broad challenge to this account of

the political nature of the Union, focusing on the subsidiarity principle. Narrowly, it

will argued that whilst there may be a historic connection between the Catholic model

of subsidiarity and the European principle contained in the Treaty, there are funda-

mental differences between the two ideas. In particular, the European principle is

capable of exercising wider appeal than its Catholic counterpart. Even if a historical

connection could be demonstrated, the European model could have developed in iso-

lation from the Catholic model. Whilst the European principle could be seen as a spe-

cialised subset of the Catholic, this is not a necessary part of its identity: it can exist

independently of the Catholic principle, and could be endorsed by some who could not

support the Catholic version. More broadly, it will be contended that the European

principle sets the EU against the quest for a distinctive ‘European’ national identity

and, additionally, against those who present the European project as a mechanism to

protect the national identities of the Member States. The European principle of sub-

sidiarity must be contrasted with the rival principle of national self-determination, and

with the rising ideology of liberal nationalism. This, then, is the limited modesty of

subsidiarity: it is compatible with a great many political ideologies, but it cannot be

squared with all.

IThe Differing Reach of the Catholic and European Principles of Subsidiarity

In historical terms, Prodi may be correct. It might be possible to trace a line between

the Catholic model of subsidiarity, found in various papal encyclicals, to the European

model, found in the Treaties, through German federalism.4A number of writers,

without necessarily assuming that the European and Catholic principles are identical,

have turned to the Catholic principle of subsidiarity in the hope that it will shed light

on the meaning and implications of the Treaty provisions.5But there are at least two

important differences between the European and Catholic conceptions of subsidiarity.

May 2005 The Limited Modesty of Subsidiarity

© Blackwell Publishing Ltd. 2005 309

2Prodi, op. cit. note 1 supra,at 44–47. See also B. J. S. Hoetje´s, ‘The European Tradition of Federalism:

The Protestant Dimension’, in M. Burgess and A. Gagnon (eds.), Comparative Federalism and Federation

(University of Toronto Press, 1993).

3N. W. Barber, ‘Citizenship, Nationalism and the European Union’, (2002) 8 European Law Review 241,

250–256. M. Oreja, ‘European Cultural Identity and the Protection of European Cultural Heritage’,

(1988) 34 European Yearbook1; J. Weiler, ‘Do The New Clothes Have an Emperor’,in J. Weiler, The Con-

stitution of Europe (Cambridge University Press, 1999), 252.

4N. Emiliou, ‘Subsidiarity: An Effective Barrier Against “The Enterprises of Ambition” ’(1992) European

Law Review 383, 388–391; J. Peterson, ‘Subsidiarity: A Definition to Suit Any Vision?’, (1994) Parlia-

mentary Affairs 115, 118.

5Amongst many others: C. Henkel, ‘The Allocation of Powers in the European Union: A Closer Look at

the Principle of Subsidiarity’, (2002) 20 Berkeley Journal of International Law 359; Emiliou, op. cit.

note 4 supra;MacCormick moves freely between the two: N. MacCormick, ‘Democracy and Subsidiar-

ity in the European Commonwealth’, in N. MacCormick, Questioning Sovereignty, (Oxford University

Press, 1999), 152–155.