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Subsidiarity (see also Margin of Appreciation)

Invented as an argument against the welfare state, this Catholic social principle is now being used against human rights. According to subsidiarity the job should be done, whenever possible, locally. In 19th-century Italy, saying that the smallest unit should handle things meant, in effective, that the parish should continue to run social services. Sometimes called “localism” by neo-conservatives, it helps them justify dismantling state services, whether or not these are handed over to the churches. The Vatican is even using “subsidiarity” to try to undermine United Nations declarations on human rights.

According to Pope Pius XI, subsidiarity is the doctrine that “a community of a higher order should not interfere in the internal life of a community of a lower order.” [1]  Accordingly, “[subsidiarity] sets limits for state intervention” (Ibid., 1885). What this really means is that the state should let the Church run social services. This was the original purpose of the subsidiarity principle and it continues to be its real objective right up to the present. However, the Church wants to get this “principle” which was only invented to conceal its anti-state agenda, accepted as an independent value. In fact, John Paul II made so bold as to take the welfare state to task for being in contradiction to the principle of subsidiarity! [2] (Well, of course, the welfare state doesn't embody the doctrine which was invented to destroy it ― now what a surprise.)

However, the real purpose of the principle is concealed by the smokescreen of philosphical generality: a whole bundle of lower-order groups are mentioned of which church groups just happen to be an example. Thus John Paul II said

Smaller social units—whether nations themselves, communities, ethnic or religious groups, families or individuals—must not be namelessly absorbed into a greater conglomeration, thus losing their identity and having their prerogatives usurped. Rather, the proper autonomy of each social class and organization, each in its own sphere, must be defended and upheld. This is nothing other than the principle of subsidiarity... [3]

What this principle actually does can be seen in Germany, where applying it has let the churches dominate the country's social services. In 1961 Christian Democratic government passed a law which forbade state services to expand if there was any possibility of the church institutions doing so. [4]

The Vatican managed to get a limited application of the principle of subsidiarity ― as it applies to churches ― adopted in the constitution of the EU in 1997: “The European Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States.” [5]

Then in 2013 a broad endorsement of the principles of subsidiarity and margin of appreciation was incorporated into the Preamble of Europe's human rights convention itself. This was done through Protocol 15, which had been negotiated by the British Governement. [6] It endorsed the principle of subsidiarity ― according to which national governments, legislatures and courts are primarily responsible for guaranteeing and protecting human rights at the domestic level ― along with the ‘margin of appreciation’, which gives states discretion as to how they fulfil their Convention obligations. [7]

Margin of appreciation has long been used to give countries some wiggle room where some human rights face local opposition. For example, the European Court of Human Rights cited margin of appreciation when it permitted crucifixes in Italian state schools. [8] In effect, subsidiarity and its legal tool, margin of appreciation, can help the churches to shelter under national law and give them immunity to EU human rights legislation.

This anti-government principle has been take over by those opponents of the state whose interest is primarily financial. In the US the rightwing Republican Party made plans to transfer social programmes from the federal government to the states. This was expected to weaken them, since the states are far more captive than the federal government to special interests, both commercial and religious, and they have far less oversight by government inspectors and journalists. [9]

A more audacious plan was proposed in 2015 by a Catholic thinktank. Why not achieve subsidiarity by simply dismembering the central government? Just introduce “[constitutional] amendments that restrain the federal government in general and provide state power to nullify federal laws and Supreme Court decisions”. [10] This would eliminate the enforcement of church-state separation, respect for human rights and anything else that didn't suit the Vatican.

In the UK the Catholic origin of this useful principle is masked by calling it “localism”. It is then used by neo-conservatives for its original purpose, to justify dismantling state services. In 2011 a localism law was passed which helps (mostly religious) charities take over government-run services and even state property. [11] US government services are being treated in a similar manner. “The strategy has been to move from federal control, to state control, and then toward privatization.” [12]

In Europe lawyers have noted the trend towards subsidiarity in judgements of the European Court of Human Rights. This shows up when the Court must balance the competing rights of personal privacy and free expression (Articles 8 and 10).

[This has led to a] shift in the Court’s judgments away from deciding itself where the balance lies in any given case towards setting out detailed criteria to be applied by domestic courts in carrying out that balancing exercise, and to finding more “procedural” violations when – and only when – domestic courts fail to apply these criteria fully. That shift appears reflective of a desire to emphasise the principle of subsidiarity [...] [13]

The Vatican, of course, has also been pressing for more subsidiarity. Archbishop Tomasi, speaking before the United Nations in 2012, said that “problems of discrimination and violence...must be pursued on the basis of the principle of subsidiarity”, by which he means “at the level of national and local governments, civil society, religious and cultural leaders”. [14] This, of course, effectively prevents the enforcement of human rights wherever they happen to be unpopular at the local level. It would, for example, deliver many gay Africans over to the lynch mobs.

Notes

1. Catechism of the Catholic Church, Part 3, Section 1, Chapter 2, (1883).

2. 1991 encyclical Centesimus Annus

3. John Paul II to Sixth Session, Pontifical Academy of Social Sciences, 23 February 2000. Excerpt quoted here. The quote continues “... which requires that a community of a higher order should not interfere in the internal life of a community of a lower order, depriving the latter of its rightful functions; instead the higher order should support the lower order and help it to coordinate its activity with that of the rest of society, always with a view to serving the common good (cf. Centesimus annus, May 1, 1991). Public opinion needs to be educated in the importance of the principle of subsidiarity for the survival of a truly democratic society.”

4. Bundessozialhilfegesetz (BSHG § 93) and Jugendwohlfahrtsgesetz (JWG § 5). http://de.wikipedia.org/wiki/Subsidiarit%C3%A4t#Ausgestaltung_in_der_Bundesrepublik_Deutschland

5. Declaration 11 of the European Union's Amsterdam Treaty (signed 1997-10-02, and entered into force 1999-05-01).

6. Brian Chang, "Strasbourg in the Age of Subsidiarity: Enough Reform to Accommodate Conservative Concerns?", UK Human Rights Blog, 21 September 2015. ukhumanrightsblog.com/2015/09/21/strasbourg-in-the-age-of-subsidiarity-enough-reform-to-accommodate-conservative-concerns-brian-chang/

7. Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms, Strasbourg, 24 June 2013. http://conventions.coe.int/Treaty/en/Treaties/Html/213.htm

8. “European Court: Crucifixes permitted in state schools (18 March 2011)”, Concordat Watch. http://www.concordatwatch.eu/topic-38801.834 

9. Eric Pickles [UK Secretary of State], “Faith and Social Action”, speech given in Westminster Central Hall, London, 2011-06-16. http://www.communities.gov.uk/speeches/corporate/faithsocialaction

10. Patrick Archbold [co-founder of Creative Minority Report], “Traditional marriage supporters won every inning…yet somehow lost the game: here’s how to reclaim victory”, Life Site News, 13 February 2015. https://www.lifesitenews.com/blogs/traditional-marriage-supporters-won-every-inning...yet-somehow-lost-the-gam

11. “Dump It on the States”, New York Times editorial, 2012-08-24. This editorial mentions only “energy and timber interests” but it is clear that this applies to other commercial interests -- and the state-by-state curtailment of abortion also makes it clear that this applies to religious interests, as well.

12. Julie Ingersoll [Associate Professor of Religious Studies at the University of North Florida], “Religious Right Dream of Privatized Public Education Gets Boost”, Religion Dispatches, 2011-01-14.

13. Paul Harvey, “Eight Trends and Eight Challenges to the European Court of Human Rights”, UK Human Rights Blog,  2016-02-16. http://ukhumanrightsblog.com/2016/02/16/eight-trends-and-eight-challenges-to-the-european-court-of-human-rights-paul-harvey/

14. “Holy See addresses UN Human Rights Council on Gender”, Vatican Radio, 2012-03-09. http://www.news.va/en/news/holy-see-addresses-un-human-rights-council-on-gend

 


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