Part of the seminar series in constitutional theory, organised by the Programme for the Foundations of Law and Constitutional Government. For a full list of the 2017 seminars, follow this link.

Abstract:

There is an essential contradiction in contemporary notions of subsidiarity. On the one hand, subsidiarity appeals to the ability of local bodies to engage in their own decision-making; on the other, subsidiarity employs a meta-explanation for appropriate levels of decision-making authority. In fact, therefore, the meta-explanation is assumed to provide a non-partisan basis for identifying when decision-making power should be exercised at a primary level (e.g. by representatives of the local association itself) and when at a subsidiarity level (e.g. by the state), begging the question on who decides the meta-explanation. The criteria for who gets to decide is thus out of the hands of the primary actors, which takes away the fullness of political life for those less powerful. The answer lies in recognizing that any meta-explanation for the theory of subsidiarity should be 1) fully articulated as part of the democratic process; 2) open to being questioned and challenged; and 3) recognized as intentional when under judicial review.

The current attempt by international organizations to further an agenda of politically-neutral decentralization in the developing world runs against a fullness of democratic participation by countries’ citizens. The prevailing approach fails to distinguish between decentralizations that affirm man’s political nature and decentralizations that incarcerate it. The paper contrasts efforts to decentralize in Ethiopia and Kenya to demonstrate how policies that appear similar on the surface can in fact have extremely different base intentions. In Ethiopia, a move to federalism was carried out with a view to asserting the dominance of one ethnic group against the others, while at the same time providing a back-door within the constitution for a secession movement if that ethnic group lost federal power. In contrast, Kenya’s switch to a devolved system of government through promulgation of the 2010 constitution came in reaction to a destructive winner-takes-all politics that had placed too much power in the hands of the presidency. The different intentions that lie behind each of the switches to decentralization leave their mark on the nature of interference in sub-state units, proving that it is false to treat a principle of subsidiarity as politically neutral and of equivalent value wherever deployed. Rather, the meta-explanation of the criteria for aggregating or disaggregating power should participate in the fullness of what it means to be a democracy.