Legal Commentary

In conjunction with some papers that I am completing, I have been thinking a lot 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.

Subsidiarity tells us that a "higher order" of authority should not do what individuals or a "lesser order" can do for themselves. Thus, the argument might proceed, the federal government should not do what a state goverment could do. Government should not do what voluntary mediating institutions can do.

Conservatives often advance subsidiarity as a justification for limited government and it often is. But it's not that simple either.

The reasons are that subsidiarity is not simply a jurisdictional principle but reflects a judgment about - or at least emphasis of a particular perspective on - anthropology. It rests on a set of assumptions about the subjectivity of human persons. It is not only that granting freedom to individuals and the voluntary associations that they form will release human creativity, but that the release of creativity is itself an instrinsic good. True development of the human person requires his or her participation.

This suggests a limit on subsidiarity as a jurisdictional principle strictly defining the role of the state and the spheres of higher and lower levels of government. Catholic social thought also emphasizes solidarity. People are connected to one another and each should be committed to the common good of all. It emphasizes the human dignity of all persons and the duty of charity towards all.Every  individual ought to be able to exercise his or her subjectivity and government (or even larger private institutions) are not the only obstacle.

Sometimes intervention of a higher order may be required to make the exercise of subjectivity possible. This may threaten to mire us in indeterminancy. What do we do when the irresistable force of subsidiarity meets the immovable object of solidarity? 

I think that we can do many things. But it seems to me that some guidance is provided by the notion that policy must make space for human creativity and freedom. Although not every social outcome produced by human freedom is acceptable, it is not for the state to impose its view of the best of all possible worlds. Once it has done what it can (and that may be far from a guarantee) to ensure the conditions for human flourishing, it ought to step back and allow human beings to flourish.

I don't know that this resolves many of the political disputes we have in the US, but perhaps it is a useful way to think about them. 

Cross posted at the Marquette University Law School Faculty Blog