Religion & Law

Richard Esenberg has a very thoughtful post up at Prawfsblawg about "the Catholic notion of subsidiarity and what how it may inform our thinking about proposed expansions of the state in response to various 'crises,' e.g., the financial seizure, global warming and perceived flaws in the delivery of health care."  Check it out! The commenters include several MOJ-ers.  Here is what I wrote:

Subsidiarity is more than a rule that "things should be done at the smaller, more local level", and also more than a "vertically oriented prudential judgment about effectiveness." As Russell Hittinger puts it, "subsidiarity presupposes that there are plural authorities and agents having their 'proper' (not necessarily, lowest) duties and rights with regard to the common good." The danger (and Rob has explored this in some of his work) with thinking of subsidiarity in terms of "devolution" is that this thinking presumes that the state possesses powers that are somehow being "circulated" (Hittinger's word) to "lower" bodies, from the top down. Sure, this kind of devolution sometimes happens, and sometimes is a good idea (more efficient, more responsive, etc.), but it's not the same thing as subsidiarity. "The point of subsidiarity is a normative structure of social forms," Hittinger writes. It is not a "trickling down of power or aid. . . . The principle is not so much a theory about state institutions, or about checks and balances, as it is an account of the pluralism in society." (For more, see Hittinger's essay in the Witte & Alexander volume, "The Teachings of Modern Christianity").