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Tuesday, 28 February 2012

Libertarianism in Law

There is a fundamental principle of Law which is also at the heart of Libertarianism, that of Subsidiarity.
Subsidiarity is an organizing principle that matters ought to be handled by the smallest, lowest or least centralized competent authority. Subsidiarity is, ideally or in principle, one of the features of federalism, where it asserts the rights of the parts over the whole.
We have seen the difficulties that result when responsibilities are moved from a lower level of Government (in our case the parishes), to a higher lever (in our case the ministerial departments), the disaster that is income support replaced the parish welfare system. We the people have suffered the additional cost and the quality of the service has declined substantially.

Our subsidiarity is protected under Article 8 of the European Convention on Human Rights.

The principle of subsidiarity was first formally developed in the encyclical Rerum Novarum of 1891 by Pope Leo XIII, as an attempt to articulate a middle course between laissez-faire capitalism on the one hand and the various forms of communism, which subordinate the individual to the state, on the other. The principle was further developed in Pope Pius XI's encyclical Quadragesimo Anno of 1931, and Economic Justice for All by the United States Conference of Catholic Bishops.
"It is a fundamental principle of social philosophy, fixed and unchangeable, that one should not withdraw from individuals and commit to the community what they can accomplish by their own enterprise and industry." (Pope Pius XI, Quadragesimo Anno, 79)
Subsidiarity is perhaps presently best known as a general principle of European Union law. According to this principle, the EU may only act (i.e. make laws) where action of individual countries is insufficient. The principle was established in the 1992 Treaty of Maastricht. However, at the local level it was already a key element of the European Charter of Local Self-Government, an instrument of the Council of Europe promulgated in 1985 (see Article 4, Paragraph 3 of the Charter) (which states that the exercise of public responsibilities should be de-centralised).

Subsidiarity was established in EU law by the Treaty of Maastricht, which was signed on 7 February 1992 and entered into force on 1 November 1993. The present formulation is contained in Article 5(3) of the Treaty on European Union (consolidated version following the Treaty of Lisbon, which entered into force on 1 December 2009):

Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.

It is therefore fitting that the Euro currency which is an attempt to move economic matters out of the hands of individual nations is now failing, as the EU decided to ignore this principle.

The Tenth Amendment to the United States Constitution which asserts States rights and further, the rights of the people extends the principle of subsidiarity to the USA. In the United States the failure of the federalisation of education is currently a hot topic in political debates again higher costs and deteriorating standards have marked the shift in responsibility to the higher level of authority.

In Jersey we should be served well by any move to give the parishes more responsibility. Parishes are controlled by direct democracy and the finances can be voted on line by line at the annual Rates Assembly.