Hostname: page-component-586b7cd67f-vdxz6 Total loading time: 0 Render date: 2024-11-27T14:03:07.108Z Has data issue: false hasContentIssue false
  • English
  • Français

Radbruch’s Formula Revisited: The Lex Injusta Non Est Lex Maxim in Constitutional Democracies

Published online by Cambridge University Press:  26 July 2021

Seow Hon Tan
Seow Hon Tan*
Affiliation:
Seow Hon Tan, Associate Professor of Law, Singapore Management University, Singapore. [email protected].
Get access

Extract

According to German legal philosopher Gustav Radbruch, laws that are substantively unjust to an intolerable degree should not be regarded as legally valid, even if they were promulgated according to stipulated procedure. Radbruch’s Formula (as his position has been termed) contradicts the central tenet of legal positivism, according to which the existence of laws does not necessarily depend on their merit.1 While some legal positivists suppose that legal invalidity based on the content of particular laws is a central tenet of natural law theory,2 natural law theorists such as John Finnis opine that the lex injusta non est lex3 maxim has been no more than a subordinate theorem of classical natural law theory.4 In Finnis’s view, unjust laws give rise to legal obligation “in a legal sense.”5

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 34 , Issue 2 , August 2021 , pp. 461 - 491
Copyright
© The Author(s), 2021

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

I am grateful for the helpful comments of an anonymous referee of this journal and would also like to acknowledge the assistance of Nicole Ng in locating background material for my reading at a preliminary stage. I also appreciate the discussion of participants when I presented a summary version of this paper at the IVR Japan International Workshop 2020.

References

1. John Austin, The Province of Jurisprudence Determined (Hackett, 1998) at 184; HLA Hart, The Concept of Law, 2d ed (Clarendon Press, 1994) at 185-86; Hans Kelsen, The Pure Theory of Law (The Lawbook Exchange, 2002) at 198-99.

2. Hart, supra note 1 at 207-12.

3. Henceforth, ‘the lex injusta maxim.’

4. John Finnis, Natural Law and Natural Rights, 2d ed (Oxford University Press, 2011) at 351-52.

5. Ibid at 357.

6. This shall be broadly understood as the theory of law which connects posited laws with the law of reason or objective morality, as propounded by such as Aquinas and Finnis.

7. Stanley L Paulson, “Statutory Positivism” (2007) 1:1 Legisprudence 1 at 11-12.

8. Stanley L Paulson, “On the Background and Significance of Gustav Radbruch’s Post-War Papers” (2006) 26:1 Oxford J Leg Stud 17 at 19, 27.

9. Ibid at 33-35.

10. Gustav Radbruch, “Five Minutes of Legal Philosophy” (1945) translated by Bonnie Litschewski Paulson & Stanley L Paulson (2006) 26:1 Oxford J Leg Stud 13 at 14.

11. Stanley L Paulson, “Radbruch on Unjust Laws: Competing Earlier and Later Views” (1995) 15:3 Oxford J Leg Stud 489 at 499-500.

12. Paulson, supra note 8 at 40.

13. Paulson, supra note 11 at 497.

14. Gustav Radbruch, “Statutory Lawlessness and Supra-Statutory Law (1946)” translated by Bonnie Litschewski Paulson & Stanley L Paulson, (2006) 26:1 Oxford J Leg Stud 1 at 7. Commentators have noted that this was in essence just revising his pre-war position to give primacy to justice, but in a limited context—when laws were intolerably unjust. See Frank Haldemann, “Gustav Radbruch vs Hans Kelsen: A Debate on Nazi Law” (2005) 18:2 Ratio Juris 162 at 167.

15. Ibid at 166.

16. Rivers, infra note 58 at 253.

17. John Finnis, “Law as Fact and as Reason for Action: A Response to Robert Alexy on Law’s ‘Ideal Dimension’” (2014) 59:1 Am J Juris 85 at 96.

18. Paulson, supra note 11 at 498.

19. Robert Alexy, “Law, Morality, and the Existence of Human Rights” (2012) 25:1 Ratio Juris 2 at 6 [Alexy, “Law, Morality”]; Robert Alexy, “Some Reflections on the Ideal Dimension of Law and on the Legal Philosophy of John Finnis” (2013) 58:2 Am J Juris 97 at 108 [Alexy, “Some Reflections”].

20. Alexy, “Law, Morality”, supra note 19 at 6.

21. Finnis, supra note 4 at 351.

22. Ibid at 351.

23. Ibid at 365 [emphasis added].

24. Ronald Dworkin, Law’s Empire (Belknap Press, 1986) at 65-66.

25. Mark Murphy, Natural Law in Jurisprudence and Politics (Cambridge University Press, 2006) at 13-14.

26. John Finnis, “The Truth in Legal Positivism” in Robert George, ed, The Autonomy of Law: Essays on Legal Positivism (Oxford University Press, 1996) 195 at 204-05.

27. Hart, supra note 1 at 207-10.

28. Ibid at 210-11.

29. Finnis, supra note 4 at 276.

30. Ibid at 352.

31. Ibid at 352-54.

32. Ibid at 351-52.

33. Alexy, “Some Reflections”, supra note 19 at 107.

34. More will be said later about these dimensions: see the text accompanying note 104.

35. Robert Alexy, “The Dual Nature of Law” (2010) 23:2 Ratio Juris 167 at 176 [Alexy, “Dual Nature”]; Alexy, “Some Reflections”, supra note 19 at 104-05. Finnis thinks that Alexy admits of the possibility of observers calling monstrously evil laws legally valid (Finnis, supra note 17 at 88-89) but notes that the central point of view should be that of participants (Alexy, “Some Reflections”, supra note 19 at 109). Finnis opines that Alexy has failed to challenge Hart’s thesis about the specifically legal point of view of Hart’s participants, who correspond to Alexy’s observers, who recognise as rules what is acceptable by the rule of recognition. Thus, positivists can say that their account of law facilitates an understanding of all perspectives, including that of Alexy’s participants who are interested in legal ideals (Finnis, supra note 17 at 89).

36. Finnis, supra note 17 at 104.

37. Finnis, supra note 4 at 360.

38. Ibid at 354, 357-58. A similar view is shared by Dyzenhaus, who notes that related questions of what the ideal of rule of law requires are equally legal and legal philosophical questions. See David Dyzenhaus, “The Grudge Informer Case Revisited” (2008) 83:4 NYU L Rev 1000 at 1031.

39. Alexy, “Some Reflections”, supra note 19 at 109.

40. Finnis, supra note 17 at 105.

41. He says that conceptual analysis may be unfruitful and he is more interested in justifying law. See Finnis, supra note 17 at 90.

42. Philip Soper, “In Defense of Classical Natural Law in Legal Theory: Why Unjust Law is No Law at All” (2007) 20:1 Can JL & Jur 201 at 202. See also Murphy’s distinction between natural law jurisprudence and natural law political philosophy in Murphy, supra note 25 at 1.

43. Finnis, supra note 4 at 356.

44. Ibid at 362.

45. Brian Bix, “Radbruch’s Formula and Conceptual Analysis” (2011) 56:1 Am J Juris 45 at 53.

46. Brian Bix, “Robert Alexy, Radbruch’s Formula, and the Nature of Legal Theory” (2006) 37:2 Rechstheorie 139 at 142, 149.

47. Bix, supra note 45 at 56.

48. Bix, supra note 46 at 143.

49. Bix, supra note 45 at 53.

50. Robert Alexy, “On Two Juxtapositions: Concept and Nature, Law and Philosophy. Some Comments on Joseph Raz’s ‘Can There Be a Theory of Law?’” (2007) 20:2 Ratio Juris 162 at 168.

51. Ibid at 169.

52. Soper, supra note 42 at 218.

53. Finnis, supra note 4 at 361.

54. Norman Kretzmann, “Lex Injusta Non Est Lex: Laws on Trial in Aquinas’ Court of Conscience” (1988) 33:1 Am J Juris 99 at 115-16.

55. Finnis, supra note 4 at 362.

56. Ibid .

57. Paulson, supra note 8 at 27-28.

58. See the discussion of some instances in Julian Rivers, “Gross Statutory Injustice and the Canadian Head Tax Case” in David Dyzenhaus & Mayo Moran, eds, Calling Power to Account: Law, Reparations, and the Chinese Canadian Head Tax Case (University of Toronto Press, 2005) 233 at 241-44. In relation to East Germany see Russell Miller, “Rejecting Radbruch: The European Court of Human Rights and the Crimes of the East German Leadership” (2001) 14:3 Leiden J Int’l Law 653 at 653-63. Miller notes that Radbruch’s Formula has not been used by the European Court of Human Rights, which chose to find, in similar cases on appeal from the German courts, that the use of firearms had been authorized only for serious crimes, and the acts of the accused persons were therefore not justified by various provisions of German law, with the result that Article 7(1) of the European Convention on Human Rights did not absolve them. But the European Court on Human Rights may have sought to avoid the political sensitivities in what would have been taken as an equation of East German crimes with Hitler’s crimes, if Radbruch’s Formula had been invoked.

59. Manfred J Gabriel, “Coming to Terms with the East German Border Guards Cases” (1999) 38:2 Colum J Transnat’l L 375 at 417. While the killing in these cases was not equated with the mass murder during the Nazi regime (see also Rivers, supra note 58 at 249), in 1992, the Federal Supreme Court for Civil and Criminal Matters considered the validity of a provision of the East German Border Law authorizing a border guard to fire his weapon at persons fleeing at the Berlin Wall. They considered the actual practice of shooting in interpreting the scope of the law. They found that the issues were whether the state had gone beyond “the outermost limit set in every country as a matter of general conviction” and whether the conflict between positive law and justice was “intolerable”: see Paulson, supra note 8 at 28.

60. Robert Alexy, The Argument from Injustice: A Reply to Legal Positivism translated by Stanley L Paulson & Bonnie L Paulson (Oxford University Press, 2002) at 56.

61. Alexy’s writings on constitutional judicial review will not be discussed here as we are making a case for judicial review based on Radbruch’s Formula. See, however, Robert Alexy, “Balancing, Constitutional Review, and Representation” (2005) 3:4 International Journal of Constitutional Law 572; Robert Alexy, A Theory of Constitutional Rights translated by Julian Rivers (Oxford University Press, 2002).

62. Council of Civil Service Unions v Minister for the Civil Service (1984), [1985] AC 374 (HL), Lord Diplock.

63. Rivers, supra note 58 at 234.

64. Ibid .

65. This was challenged in Mack v Attorney General of Canada (2002), 60 OR (3d) 737 (CA). That the court did not consider invalidating the statute has been regretted (Rivers, supra note 58 at 251) though it has also been noted that the constitutional and international norms against racial discrimination might not have been in existence at the time of the statute. See David Dyzenhaus & Mayo Moran, “Mack v Attorney-General of Canada: Equality, History, and Reparation” in David Dyzenhaus & Mayo Moran, eds, Calling Power to Account: Law, Reparations, and the Chinese Canadian Head Tax Case (University of Toronto Press, 2005) 3 at 10. The legislature repealed the statute, but there was no political will to provide redress. See David Dyzenhaus, “The Juristic Force of Injustice” in David Dyzenhaus & Mayo Moran, eds, Calling Power to Account: Law, Reparations, and the Chinese Canadian Head Tax Case (University of Toronto Press, 2005) 256 at 257.

66. Contrast with the view of Dyzenhaus that such a law is better conceived of as punitive towards a class of individuals and therefore failing in Fuller’s requirement of generality which is a requirement of the inner morality of law or the rule of law. See ibid at 270-76.

67. Silvia Suteu, “Eternity Clauses in Post-Conflict and Post-Authoritarian Constitution-Making: Promises and Limits” (2017) 6:1 Global Constitutionalism 63 at 65-66.

68. Rivers, supra note 58 at 240.

69. As this issue is raised only tangentially in an article focused primarily on Radbruch’s Formula as a natural law doctrine, I will not examine this in any detail, but acknowledge that it merits proper consideration for another time.

70. See the text accompanying note 111.

71. (1973) 4 SCC 225.

72. Hart, supra note 1 at 116-17.

73. US Const art VI, cl 2.

74. Alexy makes a different case for human rights which represent the core of justice, as every injustice involves a violation of human rights (Alexy, “Law, Morality”, supra note 19). But my case for acceptance of Radbruch’s Formula in light of acceptance of democratic constitutionalism is a different one.

75. Legitimacy is said to be greater in cases of authorship than ratification, and in turn for ratification over passive acceptance in the form of acquiescence, which is a “suboptimal form of legitimation.” See Jeff King, “The Democratic Case for a Written Constitution” (2019) 72:1 Current Legal Problems 1 at 7-8.

76. Paulson, supra note 8 at 26-27.

77. Haldemann, supra note 14 at 166.

78. Radbruch, supra note 14.

79. Ibid at 8.

80. Ibid .

81. Mary Neal, “Respect for human dignity as ‘substantive basic norm’” (2014) 10:1 Int’l J L Context 26 at 38-39.

82. Ibid at 39.

83. This is not commonly discoursed as such. Usually, the link between the constitution and a natural law understanding of rights is made through the argument that inherent uncreated rights have been recognised in the constitution. See, e.g., Juan Cianciardo, “The Culture of Rights, Constitutions and Natural Law” (2013) 8:2 J Comp L 267. For example, Alexy, writing about human rights that have been positivized into constitutional rights, took the view that the positivization did not cause human rights to “vanish.” Rather, human rights remain “as reasons for or against the content that has been established by positivization and as reasons required by the open texture of constitutional rights.” See Robert Alexy, “Constitutional Rights and Proportionality” (2014) 22 Revus: Journal for Constitutional Theory and Philosophy of Law 51 at 62.

84. Alexy recognises that an accommodation of natural law in positive law is still legal positivism (Alexy, “Some Reflections”, supra note 19 at 109-10). Finnis tends towards this as he requires the system itself to provide a juridical basis for regarding otherwise valid rules as legally invalid by virtue of their iniquity (Finnis, supra note 4 at 476).

85. 381 US 479 (1965) [Griswold].

86. Ibid at 484. Justice Douglas opined that various cases suggested that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”

87. This was especially the case with the judgment of Justice Goldberg, ibid at 488-94.

88. Ibid at 515.

89. 198 US 45 (1905) [Lochner]. This was despite the fact that the majority, through Justice Douglas, declined the invitation to use Lochner as their guide (see Griswold, supra note 85 at 481-82). In Lochner, freedom of contract was found to be guaranteed as part of the ‘liberty’ referred to in the due process clause. This had been criticised as the method by which judges imposed social and economic policies they favoured on the public. See Robert P George, “Natural Law, the Constitution, and Judicial Review” in Robert P George, The Clash of Orthodoxies: Law, Religion, and Morality in Crisis (ISI Books, 2001) 169 at 172.

The view that natural law might have suggested that there exists a right to marital privacy that supports an invalidation of an anti-contraceptive law is ironic as Aquinas’ classical natural law recognises the preservation of species through procreation as natural. See, also, Kirk A Kennedy, “Reaffirming the Natural Law Jurisprudence of Justice Clarence Thomas” (1997) 9 Regent U L Rev 33 at 49.

90. Griswold, supra note 85 at 520.

91. Ibid at 513.

92. George, supra note 89 at 173-74. It has been observed that the philosophical influence upon the founders was the classical natural law theorists rather than the Enlightenment thinkers. See Robert S Baker, “Natural Law and the United States Constitution” (2012) 66:1 Review of Metaphysics 105 at 113. There was also a reluctance to enumerate rights when the proposal for a charter of rights was rejected at the Philadelphia Convention, though a compromise was reached in the guarantees via the amendments. Baker notes that the phrasing in the First Amendment suggests that the rights are not created by the amendments but implies that they pre-exist the constitution. This contrasts with the expression, for example, in the French Declaration of the Rights of Man and of the Citizen, which focuses on state sovereignty and the law being an expression of general will, or the Venezuelan Constitution of 1811 which speaks of a renunciation of unlimited liberty and license and the social contract being an assurance to the individual of the enjoyment of his rights (Baker, ibid at 121-23). Notably, also, there is no contradiction between recognising the natural law foundations of the American Constitution and the rejection of judge-made constitutional law. See Baker, ibid at 130, citing Bowers v Hardwick 478 US 186 (1986). See also, Kennedy, supra note 89 at 47.

93. In particular, the idea of substantive privacy or the freedom from governmental interference in fundamental decisions is hardly likely to have the support of some natural law theorists.

94. George, supra note 89 at 197-98.

95. Ibid at 179.

96. Ibid at 180.

97. Ibid at 182 [emphasis added].

98. Ibid at 195.

99. Ibid at 197.

100. Ibid at 203.

101. Griswold, supra note 85 at 513.

102. Henceforth, ‘broad historical consensus.’

103. Radbruch, supra note 10 at 15-16.

104. Robert Alexy, “Legal Certainty and Correctness” (2015) 28:4 Ratio Juris 441 at 441-42, 444.

105. Alexy, “Dual Nature”, supra note 35 at 174.

106. Robert Alexy, “On the Concept and the Nature of Law” (2008) 21:3 Ratio Juris 281 at 288.

107. Alexy, supra note 104 at 446; Alexy, “Dual Nature”, supra note 35 at 177. Gabriel also notes that there is no need to explicate the requirements of justice; it is enough to know when there is extreme injustice. See Gabriel, supra note 59 at 406.

108. Alexy, “Dual Nature”, supra note 35 at 176. See also Alexy, supra note 106 at 287. Notably, Alexy points out that the position that Beyleveld and Brownsword term ‘idealism’ has inbuilt checks which restrain the wide-ranging effects of injustice on legal validity. Their ‘theory of restraint’ stipulates for a collateral moral obligation to comply with immoral rules, and a provisional legal-moral obligation in the case of controversial rules, in order to balance the moral costs of compliance with the moral costs of non-compliance. Alexy does not agree with this mode of taking away legal validity but recreating a moral obligation as he thinks it is tantamount to treating the consequences of a mistake instead of curing the disease. See Robert Alexy, “Effects of Defects – Action or Argument? Thoughts about Deryck Beyleveld and Roger Brownsword’s Law as a Moral Judgment” (2006) 19:2 Ratio Juris 169 at 171.

109. Alexy, ibid at 173.

110. Alexy, “Dual Nature”, supra note 35 at 178. Much has been written on the duty of judges to listen in on the discourse of the populace; this subject will not be discussed in this article.

111. Robert Audi, ed, The Cambridge Dictionary of Philosophy, 2d ed (Cambridge University Press, 1999) at 588.

112. Soper, supra note 42 at 213.

113. They are also identified as within the jurisdiction of the International Criminal Court, Article 5, Rome Statute on the International Criminal Court, online: https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf (accessed on 23 July 2020).

114. See the text accompanying note 77.

115. Since the basis of Radbruch’s Formula as part of natural law theory lies in moral realism, some changes may be viewed as advancement towards justice in the objective sense, even though this is contentious.

116. See, e.g., Roe v Wade 410 US 113 (1973).

117. See, e.g., Obergefell v Hodges 576 US 644 (2015).

118. Article 5(3) of the Treaty on European Union online: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12012M/TXT&from=EN (accessed on 23 July 2020). Commentators have suggested this idea is historically placatory, given the concerns of states upon joining the Union. See NW Barber, The Principles of Constitutionalism (Oxford University Press, 2018) at 189-90. See also Paul Craig, “Subsidiarity: A Political and Legal Analysis” (2012) 50:1 J Common Mkt Stud 72 at 73.

119. That said, a weak central government can lend to oppression if dominant regions are, for example, racist, as was the case in the southern states within American federalism at one stage. See NW Barber, “The Limited Modesty of Subsidiarity” (2005) 11:3 European Law Journal 308 at 315.

120. Barber, supra note 118 at 190-91.

121. Pontifical Council for Justice and Peace, Compendium of the Social Doctrine of the Church http://www.vatican.va/roman_curia/pontifical_councils/justpeace/documents/rc_pc_justpeace_doc_20060526_compendio-dott-soc_en.html (accessed on 23 July 2020) at para 185 [Pontifical Council].

122. The earliest rudimentary statement might have been from Pope Leo XIII, Rerum Novarum: Encyclical of Pope Leo XIII on Capital and Labor (1891) online: http://www.vatican.va/content/leo-xiii/en/encyclicals/documents/hf_l-xiii_enc_15051891_rerum-novarum.html (accessed on 23 July 2020) at paras 12-14 and 35 when he emphasized the importance of the family and the individual, with the state interfering only to protect the common good or prevent injury. See Barber, supra note 118 at 198. Pope Pius XI emphasized that social activity ought to “furnish help to the members of the body social, and never destroy or absorb them.” See Pope Pius XI, Quadragesimo Anno: Encyclical of Pope Pius XI on Reconstruction of the Social Order (1931) online: http://www.vatican.va/content/pius-xi/en/encyclicals/documents/hf_p-xi_enc_19310515_quadragesimo-anno.html (accessed on 23 July 2020) at para 79, a point also noted by Pope John Paul when he suggested that a community of a higher order ought not interfere in the internal life of a community of a lower order, and should be supportive and coordinating all to the common good. See Pope John Paul II, Centesimus Annus (1991) online: http://www.vatican.va/content/john-paul-ii/en/encyclicals/documents/hf_jp-ii_enc_01051991_centesimus-annus.html (accessed on 23 July 2020) at para 48. See Nicholas Aroney, “Subsidiarity in the Writings of Aristotle and Aquinas” in Michelle Evans & Augusto Zimmermann, eds, Global Perspectives on Subsidiarity (Springer, 2014) 9 at 10-11. See also Patrick McKinley Brennan, “Subsidiarity in the Tradition of Catholic Social Doctrine” in Michelle Evans & Augusto Zimmermann, eds, Global Perspectives on Subsidiarity (Springer, 2014) 29 at 35. The term ‘subsidiarity’ was coined by Italian Jesuit, Luigi Taparelli. See Russell Hittinger, “The Coherence of the Four Basic Principles of Catholic Social Doctrine: An Interpretation” in Pursuing the Common Good: How Solidarity and Subsidiarity can Work Together (Pontifical Academy of Social Sciences, Acta 14, Vatican City 2008) 109 online: http://www.pass.va/content/dam/scienzesociali/pdf/acta14/acta14-hittinger.pdf (accessed on 23 July 2020).

123. Aroney, supra note 122 at 13-18.

124. This was an advancement over Aristotle’s idea as Aristotle treated the political community as self-sufficient. See John Finnis, “Subsidiarity’s Roots and History: Some Observations” (2016) 61:1 Am J Juris 133 at 138. See also Nicholas Aroney, “Subsidiarity, Federalism and the Best Constitution: Thomas Aquinas on City, Province and Empire” (2007) 26:2 Law & Philosophy 161 at 177-79. Indeed, subsidiarity has been regarded as incompatible with Aristotelian ideas which treated the city-state as primordial and did not grant autonomy to inferior levels. See Radu-Michael Alexandrescu, “Democracy and Subsidiarity” (2018) 10:2 Cogito: Multidisciplinary Research Journal 57 at 64.

125. Aroney, supra note 122 at 20.

126. Ibid at 22. From this, subsidiarity is anticipated by Aquinas. See Alexandrescu, supra note 124 at 68.

127. Jonathan Chaplin, “Subsidiarity and Social Pluralism” in Michelle Evans & Augusto Zimmermann, eds, Global Perspectives on Subsidiarity (Springer, 2014) 65 at 69-70. The concern is not just with political units, but with social units that have dignity of their own. See David Golemboski, “Federalism and the Catholic Principle of Subsidiarity” (2015) 45:4 Journal of Federalism 526 at 540. See also, Pontifical Council, supra note 121 at para 187.

128. Pontifical Council, supra note 121 at para 186.

129. Chaplin, supra note 127 at 67.

130. Ibid at 73.

131. Maria Cahill, “The Origin of Anti-Subsidiarity Trends in the Regulation of the Family” (2013) 4 Int’l J Jurisprudence Fam 85 at 89.

132. Russell Hittinger, “Social Pluralism and Subsidiarity in Catholic Social Doctrine” (2002) 16 Annales theologici 385 at 396.

133. John F Kenney, “The Principle of Subsidiarity” (1955) 16:1 American Catholic Sociological Review 31 at 34. Subsidiarity guides the relation the individual has with the units within which they find themself. See Barber, supra note 118 at 200. High regard remains for individual freedom; see Robert A Sirico, “Subsidiarity and the Reform of the Welfare of the Nation State” in Michelle Evans & Augusto Zimmermann, eds, Global Perspectives on Subsidiarity (Springer, 2014) 107 at 111. Subsidiarity assists individuals and groups when they are unable to accomplish something on their own, with a view to achieving their emancipation by fostering freedom and participation through assumption of responsibility, according to Pope Benedict XVI. See Pope Benedict XVI, Caritas in Veritate (2009) at para 57.

134. Golemboski, supra note 127 at 529, 535, 537; Hittinger, supra note 122 at 110.

135. Sirico, supra note 133 at 108. As an aside, from a biblical perspective, higher levels are not more likely to be tainted with sin than the lower levels. See, e.g., the criticism by John Warwick Montgomery, “Subsidiarity as a Jurisprudential and Canonical Theory” (2002) 148 Law & Just—Christian L Rev 46 at 53.

136. In large organisations, the process of decision-making is more remote from the initiative of most of those many members who will carry out the decision. Larger associations should not assume functions which can be performed efficiently by smaller associations; see Finnis, supra note 4 at 146-47.

137. Paolo G Carozza, “Subsidiarity as a Structural Principle of International Human Rights Law” (2003) 97:1 Am J Juris 38 at 44.

138. Andreas Follesdal, “Competing Conceptions of Subsidiarity” in James E Fleming & Jacob T Levy, eds, Federalism and Subsidiary (NYU Press, 2014) 214 at 219.

139. Cahill, supra note 131 at 90.

140. See, e.g., Robert K Vischer, “Subsidiarity as Subversion: Local Power, Legal Norms, and the Liberal State” (2005) 2:2 Journal of Catholic Social Thought 277 at 278.

141. Golemboski, supra note 127 at 543. For example, Rawls’s well-ordered society helmed by a disembedded authority addressed to individuals in a “direct and unmediated” manner is distinct from a community or an association that is envisaged by the model of subsidiarity with its embedded authority addressed to groups. See Maria Cahill, “Sovereignty, Liberalism and the Intelligibility of Attraction to Subsidiarity” (2016) 61:1 Am J Jur 109 at 123, 126-27.

142. Robert A Sirico, “Subsidiarity, Society, and Entitlements: Understanding and Application’” (1997) 11:2 Notre Dame J L Ethics & Pub Pol’y 549 at 558.

143. Ibid at 560.

144. Robert P George, In Defense of Natural Law, rev ed (Oxford University Press, 2001) at 235. While Pope John XXIII’s encyclical letter is cited with approval in relation to world government and subsidiarity, the general idea about coordination can be understood without particular religious beliefs. This is the basis under which they are being considered in this article. See Pope John XXIII, Pacem in Terris: Encyclical of Pope John XXIII on Establishing Universal Peace in Truth, Justice, Charity, and Liberty (1963) online: http://www.vatican.va/content/john-xxiii/en/encyclicals/documents/hf_j-xxiii_enc_11041963_pacem.html (accessed on 23 July 2020) at paras 140-41.

145. See Mattias Kumm, “Sovereignty and the Right to be Left Alone: Subsidiarity, Justice-Sensitive Externalities, and the Proper Domain of the Consent Requirement in International Law” (2016) 79:2 Law & Contemp Prob 239 at 245.

146. George, supra note 144 at 236.

147. Ibid at 238.

148. Ibid at 240.

149. Ibid at 242; see also Carozza, supra note 137 at 71.

150. Sirico, supra note 133 at 114-15.

151. William M Carter Jr, “Rethinking Subsidiarity in International Human Rights Adjudication” (2008) 30:1 Hamline J Pub L & Pol’y 319 at 330.

152. George, supra note 144 at 243.

153. This is, strictly speaking, different from the issue of a common good at the international level, in relation to which Carozza notes the general difficulty in applying subsidiarity in the context of international law in view of the fragmentation of international law and the lack of a uniform, coherent notion of the common good. See Paolo G Carozza, “The Problematic Applicability of Subsidiarity to International Law and Institutions” (2016) 61:1 Am J Juris 51 at 55-60. There is no presumption in favor of localism or devolution as such, as subsidiarity calls for intervention and assistance as well as immunity and autonomy ( ibid at 63).

154. Markus Jachtenfuchs & Nico Krisch, “Subsidiarity in Global Governance” (2016) 79:2 Law & Contemp Probs 1 at 22-23.

155. Carozza, supra note 153 at 61-62.

156. Carozza, supra note 137 at 64-68. It has been argued that the idea of state sovereignty should be replaced with subsidiarity. See Mattias Kumm, “The Legitimacy of International Law: A Constitutionalist Framework of Analysis” (2004) 15:5 Eur J Int L 907 at 920-21.

157. Andreas Follesdal, “Subsidiarity and the Global Order” in Michelle Evans & Augusto Zimmermann, eds, Global Perspectives on Subsidiarity (Springer, 2014) 207 at 215-16.

158. Andreas Follesdal, “The Principle of Subsidiarity as a Constitutional Principle in International Law” (2013) 2:1 Global Constitutionalism 37 at 61.

159. Eyal Benvenisti, “The Margin of Appreciation, Subsidiarity, and Global Challenges to Democracy” (2018) 9:2 Journal of International Dispute Settlement 240 at 240. Moreover, the way the margin of appreciation has been applied is difficult to square with subsidiarity, for example when a broader margin has been allowed when issues relate to protection of morals and national security, but less leeway has been applied to matters of discrimination, freedom of expression, or rights to family life. See Follesdal, supra note 138 at 214, 225.

160. Carozza, supra note 153 at 65.

161. See Gabriel A Moens & John Trone, “Subsidiarity as Judicial and Legislative Review Principles in the European Union” in Michelle Evans & Augusto Zimmermann, eds, Global Perspectives on Subsidiarity (Springer, 2014)157.

162. Eric Heinze, “Equality: Between Hegemony and Subsidiarity” (1994) 52 Int Commission Jur Rev 56 at 56-65.

163. Civil Appeal No. 9535/06.

164. Itzchak E Kornfeld, “Constitutions, Courts, Subsidiarity, Legitimacy, and the Right to Potable Water” (2015) 21:2 Widener L Rev 257 at 271.

165. Richard Vernon, “Crime Against Humanity: A Defence of the “Subsidiarity” View” (2013) 26:1 Can J L & Jur 229 at 232-33.