European Commonwealth – Comparative public law, subsidiarity and pluralism

In these turbulent times, marked by an intense need to find a way for European nations to express their political, social and economic vision for the future, enlightening food for thought can be found in Professor Neil MacCormick (1941-2009)’s book, Questioning sovereignty (OUP, 1999). This Edinburgh scholar in legal theory, one time Member of the European Parliament (1999-2004) and closely involved with the Scottish National Party cause, sought to provide a balanced intellectual, political and constitutional underpinning for the place of Scotland in the United Kingdom and in Europe. His approach applies by extension to the many European regions seeking new roles within their state and Europe, such as Catalonia, Flanders etc. It however extends beyond pure institutional questions as it has also surprising ramifications on the respective roles of markets and civil society in contributing to individual freedom and the collective good. This intellectual framework provides a refreshing and thought-provoking springboard for approaching the current European challenges and helps mapping how comparative legal research might provide useful tools for political actors, law-makers, civil servants and judges in this particular context.

Questioning sovereignty starts with analysing state sovereignty, individual freedom and the interactions between the two. According to MacCormick, EU Member States are no longer fully sovereign as they have transferred part of their key competences to the European institutions fully knowingly. The EU is however not sovereign either as it does not act legally or politically independently from the Member States. Therefore the overall construction leads to a divided or shared sovereignty between the EU Member States and the EU. We live in an area of post-sovereignty. Hence the idea of European Commonwealth in the sense of a common good that people in Europe and their representatives are striving to realize through an organised political structure, embedded in shared constitutional arrangements. Key to this Commonwealth would be that people and their representatives are animated by a common purpose of peace, safety and economic prosperity.

The consequences of these developments need to be assessed against their implications for individual freedom: how does this affect the conditions under which human beings can live in a free, i.e. an autonomous, way? Is there no risk that the European bureaucracy becomes a new Leviathan? Autonomy in this context can receive different meanings. It can for instance mean that humans are free to make their choice without the state interfering in their decisions (negative autonomy). It can also mean that humans are provided the necessary support to make conscious choices, without undue material constraints limiting their options. Autonomy then means self-realisation within the groups one lives in (positive autonomy). Ideally, autonomy relies thus on two components: an individual and a collective one. This acknowledgment of a collective support provided by the group, for instance in terms of wealth redistribution, calls for more attention on the institutions set up in this context.

The political and legal connections between fostering individual freedom and supporting institutions of the kind needed in a European Commonwealth appear when the time comes to seek a practical implementation of these idea(l)s. MacCormick identifies two guiding principles at this level: democracy and subsidiarity. Subsidiarity has four main components: a) market subsidiarity; b) communal subsidiarity; c) rational legal subsidiarity; and d) comprehensive subsidiarity. These four aspects of subsidiarity each relate to some aspects of the collective decision-making:  the role of institutions, its purposes, its  processes and the involvement of citizens in the public debate.

So market subsidiarity means that the role for collective decision-making is to secure the legal an institutional conditions for the thriving of free and fair markets, where rational beings can pursue their selfish interests. Communal subsidiarity entails the need to have a wide range of diverse institutions and bodies within which individual self-realisation can be fostered and developed. This would mean that civil society is blossoming and that the state refrains from undue interference in civil society. Rational legislative subsidiarity refers to forms of collective decision-making open to all as equals, where  the formation of a rational and lasting will is expressed in general norms in a sustainable manner. Finally, comprehensive subsidiarity hints at the need for a comprehensive level of deliberation and debates about the common good, bringing to light a consciousness that some good is genuinely common among the citizens. These four aspects of subsidiarity should be combined in practice in order to balance individual and collective wellbeing.

Crucial to MacCormick’s thinking, is the appreciation that diversity (of individual projects or social groups) contributes positively to our lives. The development of a European institutional level therefore cannot stifle this diversity. It cannot lead to uniformisation or total harmonisation across the Member States. On the contrary, an inclusive framework is needed where the identity of the regions, social groups and individuals is fully recognised and given a role to enrich the whole. Pluralism is a positive way to balance various forms of government and self-government.

The strength of MacCormick’s approach is that it remains asking crucial questions about the living together of European people within Europe while so many events and developments since 1999 have provided cause for changes (the failed European Constitution, the Lisbon Treaty, the financial crisis across Europe and especially in Southern Europe, the migrant crisis, the Brexit negotiations etc to name only a few of these events). Yet, time and again the available means for providing a democratic framework in order to support the individual and collective wellbeing have been probed and challenged. The balance struck between autonomy and solidarity among European Member States in order to foster the necessary legitimacy and trust in Europe has been upset and in need to be re-imagined constantly and dramatically. The criticisms leveled against some Member States for their hands-on approach, maybe inflexibility, own political and social agenda’s etc. beg the questions of the proper locus for decision-making within Europe – in the short and long term interest of its citizens. Here remain current MacCormick’s questions about the practical implementation of suitable legal and political arrangements within a European Commonwealth to offer each an equal chance towards individual self-fulfillment within their social groups.

It is strongly hoped that comparative legal research in Europe can test some of these ideas when engaging with non-academic actors. It is crucial in this regard to develop constructive and mutually enriching discussions with the actors directly grappling with these questions in their daily life. Their approach, perspectives and questions are part of the material and experiences that inform their choices and decisions. As academics, we hope to contribute to this process thanks to our own analysis of these issues, how we frame them (and reframe them), how we can contextualise them and learn from other countries (if and when possible).

Here are only some of the possible questions that could be used as distinct case-studies:

• What kind of lessons comparative public law can bring to the definition of negative and positive autonomy for human beings and citizens? How does this translate in terms of citizenship? In terms of public order and safety? In terms of education? In terms of health care? In terms of including others in society?
• How can comparative public law help analyse more deeply each of the four aspects of subsidiarity pinpointed by MacCormick?
• Subsidiarity in Europe is mostly understood in the sense of rational legislative subsidiarity. How far does this sense of subsidiarity lead the European institutions? What are the potential way forward? What can be done with the other components of subsidiarity?
• How can deliberation and participation in the decision-making process be organised in a constructive way, to benefit the common good?
• How to identify the healthy size of state intervention? When is it deemed to be supportive? When is it deemed to become arbitrary and oppressive?
• What is the place of judges and courts to protect individual freedom and frame state’s roles ?
• How can comparative public law flesh out pluralism in Europe? Diverse treatments of differences across Europe?
• And your own questions ….

Yseult Marique, University of Essex

September 2016

(Suggested Citation: Y.Marique, “European Commonwealth : comparative public law, subsidiarity and pluralism”, available at https://europeancommonwealth.org/2016/09/22/european-commonwealth-comparative-public-law-subsidiarity-and-pluralism/)