Federalism, subsidiarity, and the role of local governments in an age of global multilevel governance.

• Author: Blank, Yishai

Introduction I. Globalization, Urbanization, and Global Governance: The Emergence of Multi-Level Global Governance A. Globalization B. Urbanization C. Global Governance II. Federalism and Subsidiarity as Principles of Government A. Federalism: A Theory of Two Recognized Jurisdictions 1. The Characteristics of Federalism 2. The Merits of Federalism and Its Appeal for Global Governance B. The Principle of Subsidiarity 1. The Economic Interpretation of Subsidiarity: The Theory of an Infinite Number of Fully Replaceable and Flexible Political Units 2. The Religious Interpretation of Subsidiarity: The Uniqueness of Every Sphere of Human Activity 3. Subsidiarity and Global Governance III. The Status of Cities in Federalism and in Global Subsidiarity A. Cities in Federalism and in Subsidiarity B. Cities in Global Subsidiarity Conclusion INTRODUCTION

One of the hallmarks of our age is a realization--a product of objective discoveries and of ideological transformations--that a growing number of contemporary problems and challenges require decision-making and implementation at different territorial spheres and by different governmental (and political) levels. (1) Immigration, climate change, labor standards, and the economic crisis are high-profile examples of the fact that it is no longer possible--nor is it desirable--to think, decide, and implement rules and policies only at the federal level or at the state level or at the local level; rather, it has become necessary to govern them at many levels of government--sub-national, national, and supra-national--simultaneously. Yet, our legal systems and political institutions have not yet adapted themselves to this realization and they do not reflect it fully or sufficiently. Furthermore, as I argue in this Article, the two most dominant political theories that are supposed to offer a solution to this growing need of, and belief in, multilevel governance--federalism and subsidiarity--are inadequate and incapable of doing so. And while both theories are invaluable sources for inspiration for the creation of a legal (and political) system that will better fit our changing realization regarding the multi-spheral (global, national, regional, and local) nature of human conflicts and contemporary challenges, I claim two things regarding them: first, that they should be understood as distinct from each other (despite the fact that they are often confused and not theorized as distinct political theories); and second, that subsidiarity is better fit for the task of articulating multilevel governance, even if only as a tool for loosening the grip of federalism over our political and legal theory.

The growing understanding of the need to govern and solve problems at various territorial spheres and by multi-tiered governmental institutions should be read as manifesting three processes that have become emblematic of our times: globalization, urbanization, and the shift from government to governance. These three tectonic shifts involve fundamental material and ideological transformations that are reconfiguring individuals, societies, and governments all over the world. And it is indeed the intersection of these three phenomena that this Article identifies as the source of the need to rethink our current political-legal models. Together, these processes require not only a new division of power between different levels of governments in order to manage various resources more effectively, or in order to tackle different challenges more efficiently; they suggest that it is imperative that we conceptualize afresh the relationship between different territorial spheres--and therefore between competing identities and political affiliations--and that we form new legal principles in order to govern and regulate these new relationships. In this Article, I suggest that the theory of subsidiarity, problematic and incomplete as it may be, might include some important ideas regarding the desirable relations between different spheres of government, between different territorial spheres, and between different sites of identification (subjective and collective).

Federalism and subsidiarity are the two dominant theories that are currently being implemented globally in order to organize and theorize the relationship between different levels of government and different spheres of political action and identification. (2) While both advocate a division of labor between lower and upper governmental levels, they also radically differ from each other. This Article explores the differences and similarities between federalism and subsidiarity as legal and political regimes and points to important areas of departure between them, especially regarding the relationship between states and their territorial sub-divisions, with particular interest in cities. There are three major differences between federalism and subsidiarity. First, federalism privileges one jurisdiction over the rest: the state is the only truly "recognized" or "privileged" territorial sphere, over the rest of the spheres, especially over localities; in subsidiarity, on the contrary, there is no preferred or privileged level of government: each sphere has its own advantages and disadvantages for various purposes. (3) Furthermore, despite the belief that subsidiarity somehow advocates the delegation of decision-making powers to local governments (being "closest to the people"), according to the theory, cities are actually no more privileged than any other level of government. Second, while federalism is mainly focused on the protection of the constituent units from federal intervention (negative autonomy), subsidiarity promotes duties of assistance of the various levels of government towards each other (positive autonomy). Third, federalism is more theoretically committed and historically attached to nationalism, and is therefore more hostile to international and global entities and cooperation. (4) Subsidiarity, on the other hand, is Catholic in its origins as well as in its theory, and is therefore friendlier to global governance schemes. (5)

As a result of these differences, I argue, subsidiarity is a better model for the politics and administration of problems that require multilevel or multisphere involvement. I map the various approaches that are currently articulated in discussions about the changing role of cities in the era of global governance and on the need to allow for more "autonomy" to cities, on one hand, and to enable more coordinative powers to states and international entities, on the other. I conclude by saying that federalism is an inapt theory of government with respect to the changing world structure and emergence of global governance as a radically decentralized mode of power. In its stead, I argue, the principle of subsidiarity is better fit for understanding how power currently works, and how cities can operate in an environment of competing and multilayered jurisdictions. It especially enables the integration of cities and other localities into the emerging political organization of the world, given their unique position as preferred locations of democracy, efficiency, and normative mediation.

I end, however, on a more ambivalent note: despite the fact that subsidiarity should be seen as a better theoretical model for understanding city power and for articulating the possible--and actual--relations between central and local governments, it should not be understood as a comprehensive theory that will resolve all tensions between power centers and social groups and which will provide a method of ruling the world. On the contrary, many of the arguments I make throughout the Article against federalism can also be easily applied to subsidiarity. My preference for subsidiarity should therefore be seen mostly as an antidote to the pervasive federalist mode of thinking, with its idealized and stylized conceptualization of multilevel governance. It should also be read as another articulation of the argument I have been making elsewhere, that central and local powers should not be theorized or legally defined as operating at the expense of one another. Rather, they ought to be viewed as often working in tandem, and therefore regulated as overlapping and cooperating rather than as negating one another. It reminds us, in other words, that the terms "centralization" and "decentralization"--like federalism and subsidiarity--are often mostly ideological markers and not determinant or fixed structures; as such, they fail to tell us much about a concrete result, a specific case or the desired rule. Viewed this way, subsidiarity is a way on expanding a critical theory of multilevel governance, not merely a normative ideal.

1. GLOBALIZATION, URBANIZATION, AND GLOBAL GOVERNANCE" THE EMERGENCE OF MULTI-LEVEL GLOBAL GOVERNANCE

   In this section, I briefly summarize the three processes that have contributed to the emergence of an ideology and practice according to which a growing number of aspects of human affairs require the involvement of multiple territorial units, multiple political communities, and hence, multiple governing entities. The processes are, as I suggested earlier, globalization, urbanization, and the move to governance. Each of these complicated processes clearly justifies more than an article for itself; for the purposes of this Article, however, I shall talk only about the major developments in each trend and how these three developments helped to bring about the idea of multi-level global governance, in which local governments--cities in particular--appear as important agents.

   1. Globalization

      Globalization is probably one of the most discussed phenomena of our times. It describes not only a material condition, but an ideology and a subjective state of mind--a mode of being in the world. Materially, globalization is often described as the process by which capital, commodities, and persons are travelling throughout...