Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, March 30, 2007

Subsidiarity's ambiguities

I appreciate Rob's recent queries about the cash value of my understanding of the principle of subsidiarity.  Before I can turn to Rob's three points, there's a threshold issue.  My paper is a deliberate attempt to apply the principle as understood in the Church's social doctrine to a concrete social problem of contemporary America.  Where would the Church's principle get us in terms of allowing poor parents to give their children the education they (and the Church) judge that they should have.  I may well be wrong in my understanding of the magisterium's teaching about the principle (indeed, on reason to steer clear of subsidiarity in trying to advance the discussion in Catholic terms is that the term has been used in too many senses, including by the popes), but there are texts to consult, parse, interpret, and, of course, judge for whether or not they articulate a true principle.  I think I do affirm as true the principle as articulated in the magisterial teachings, and I would add that Rob's version of the principle seems to me different from the magisterium's.  For purposes of the present discussion, however, let's leave behind what the magisterium has said about subsidiarity.  Let's just ask what people mean by subsidiarity and whether those propositions are true.

If we're not talking about the Church's understanding of the principle, then what are our sources for saying what the principle is/means.  Common usage?  I would agree with Rob that in common usage, the principle is (roughly) that ruling authority should devolve to the lowest level at which it can be exercised competently.  But is this true?  Is it true that power should devolve to the lowest level at which it can be exercised competently?  Rob seems exclusively to be asking whether the principle is "helpful" or useful.  I'm asking whether it is true.  Of course, I do believe that the true is both useful and helpful, in a very deep sense, but there's no guarantee of its convenience or utility.

My answer to my last question is no.  That is, there does not exist a true moral principle that calls for the devolution of power to the lowest level at which it can be exercised competently. 

Why?  As I see things -- that is, I affirm as true that -- we confront a world in which ruling authority is always already distributed, at least in potency. Subsidiarity, furthermore, is a derivative principle that describes the relations that do or should obtain among those ruling authorities.  The common conception of subsidiarity as calling for devolution makes the assumption that ruling authority starts at the top (in "the state") and should then be made to devolve according to a criterion of competence/efficiency.  The conception of subsidiarity I am affirming as true proceeds from a prior judgment that authorities are plural and primordial to begin with, never the sole possession of the sovereign state, then it then to parcel out and downward.  From the prior judgment, about ruling authorites that are already out there (at least in potency), I derive the the principle of subsidiarity that provides a norm for relations among those authorities.

But it's that prior judgment that is the stumbling block for most people, I suspect.  So, to take Rob's third point, a sufficient reason that the state shouldn't force the Church, as a condition of assisting in any adoptions at all, to assist with adoptions to same-sex couple, is that to do so would be to trench on the Church's ruling authority that the Church posssesses not as a concession of (or conditional devolution from) the state.

The question is always whether there is, at least in potency, genuine ruling authority.  When there is, subsidiarity kicks in, if you will.  So, what about Rob's second point, concerning "local empowerment?"  The question I would ask about a local group is whether it is posessed, at least in potency, of genuine ruling authority.  I would reach different judgments about trade unions that seek just wages and well-organized lnych mobs.  I'm sure job would too, but my point is that "local empowerment" is not a freestanding norm.   

On the principle I affirm as true, authority derives, in part, from conformity with the true and the good.  So, finally, with respect to Rob's first point, I'm not making an argument in favor of "imposing truth claims."  Communities that possess genuine authority must in fact co-exist with other communities, according to judgments of "prudence," but not every group we have to co-exist with is possessed of genuine authority.  The world stage is ample evidence of this.  Power is different from authority.

I suspect Rob and I disagree, at least in part, about the contents of the ontology that precedes the possible operation of the principle fo subsidiarity.  Some of what I affirm as the contents of that ontology I reach based on the contents of Christian revelation, some on basis of natural morality.  Which leads me back to one issue in Rob's third point.  I don't believe that the Church's affirmation of a right to religious liberty contains a right to conduct that violates natural morality.   It may be prudent to tolerate such conduct, and of course -- and this is the point -- we argue argue even among friends about the contents of natural morality, but this much at least, I think, is true:  the Church teaches that there is a naturally accessible morality that is binding on all rational humans. 

Perhaps it's at the level of this last claim that our disagreement begins.  On the position I'm taking, it is because we -- individuals and socieities have naturally- and supernaturally-given functions to perform that we can have genuine authority, and it is from the marvelous plurality of such authorities -- from schools, families, Church, unions, etc. -- that the principle of subsidiarity is derivative.  Rob worries (point two) that if people agree about morality and act accordingly, subsidiarity will go out of business.  On my position, a world of morally upright actors would contain authorities beyond numbering, and subsidiarity would faciliate their interaction.   

There's much more to say about this (especially about this notion of "functions"),  and I'm conscious of not having done justice to Rob's points.  It's amazing how much two people who both want to use the word subsidiarity to benign purposes can disgree about.  I know I agree with Rob that very often the "lowest level" will in fact be where ruling power should be located -- but we get there by very different routes, and my route depends an an ontology of authority that Rob probably won't find acceptable.  Again, there's a lot more to be said about this, some of which is in long text of my "Harmonizing Plural Socieities" paper.  (Btw, thanks, Rob, for your respectful attention to the paper).  On authority specifically, there's more -- from a different angle, however -- in my "Locating Authority in Law" paper, which is posted on the right here.



Brennan, Patrick | Permalink

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