Abstract
Andreas Føllesdal's essay assumes that a principle of subsidiarity concerns how to establish, allocate, or use authority within a social, political, or legal order, including to review the actions of other bodies. Subsidiarity states a rebuttable presumption for the local. So subsidiarity places the burden of argument with attempts to centralize authority. Tasks or legal powers should rest with more local units unless allocating them to a more central unit achieves certain objectives more efficiently or effectively.
The first part includes a taxonomy of elements that vary among conceptions of subsidiarity: which institutions to have, how to allocate authority among them, and how they should use it. The theories differ about the objectives of the polity, the domains and roles of local units and central bodies, and how they allocate the authority to decide such issues. The variations have striking institutional implications.
The second part of the book brings these findings about theories of subsidiarity to bear on international law. One central concern is that international law seems to fit better with the - less justifiable - immunity-preserving conceptions of subsidiarity than with person-promoting conceptions.
The main concern is how and to what extent subsidiarity can serve as a “structuring principle,” fulfilling several criteria of a general principle of international law. One contribution of the discussion is to highlight a limit to the service of subsidiarity. It may foster ‘intra-systemic’ coherence among different sectors of international law but fails to resolve the choice among alternative modes of coherence. One reason is the differing objectives of the different treaties. Subsidiarity in two European legal orders that both protect human rights illustrates this: The EU treaties and its Court of Justice of the EU (CJEU), versus the European Convention on Human Rights (ECHR) and its ECtHR. Subsidiarity arguments may justify both but reduce tensions between them only to a limited degree. They can be expected to grant primacy of market freedoms or of human rights, respectively. This illustrates one finding from earlier chapters: Subsidiarity helps only when ultimate objectives are given.
Biography
Andreas Føllesdal is Professor of Political Philosophy at the University of Oslo. He was the Co-Director of PluriCourts - Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order from 2013 to 2023. He is particularly interested in puzzles of globalization and Europeanization. Føllesdal has written on topics such as human rights, federalism, minority rights, democracy, and subsidiarity.
He has previously served as the Principal Investigator on the project MultiRights - the Legitimacy of Multi-Level Human Rights Judiciary (2011 - 2016) and as Director of Research at the Norwegian Centre for Human Rights (2001 - 2004).