Subsidiarity (from the Latin subsidium , “help” , “reserve”) is a maxim that strives for the greatest possible self-determination and personal responsibility of the individual , the family or the community , as far as this is possible and sensible. As a result, the principle of subsidiarity means that (higher) state institutions should only intervene (but also always) regulatively if the possibilities of the individual, a smaller group or a lower hierarchical level alone are insufficient to solve a certain task. In other words, this means that the level of regulatory competence should always be “as low as possible and as high as necessary”.
The subsidiarity principle is an important concept for federal states such as Germany , Austria , Italy , the United States or Switzerland , as well as for federal state associations such as the European Union . It is also a central element of the regulatory concept of the social market economy .
The principle of subsidiarity determines a precisely defined hierarchy of state-social responsibilities by determining the subordination of the higher level: Tasks, actions and problem solutions should therefore be undertaken as far as possible by the smallest unit or lowest level of an organizational form. Only in cases or policy areas in which this is not possible, would be associated with considerable hurdles, costs and problems, or where cooperation yields clear added value, should larger groups, public collectives or the next higher levels of an organizational form be "subsidiary" (i.e. supportive) intervention. In these cases, however, the intervention of the higher level is not only optional, but explicitly desirable. Here, however, priority must be given to helping people to help themselves over taking on tasks immediately. In this respect, the principle of subsidiarity is also based on other principles such as proportionality or Pareto optimization .
In state theory this means that the state should not be an end in itself, but should serve its citizens and subdivisions and be justified by its concrete added value ( output legitimacy ). He must therefore not take on tasks that self-governing bodies (e.g. municipalities ), social associations (e.g. cooperatives ) or the individuals themselves can do just as well or even better. However, if subordinate units are overwhelmed with certain tasks, the higher-level organization should take over the tasks or support the subordinate units in completing them. In short, the principle of subsidiarity means that the efficient smaller units have priority to act and the higher-level organizations have an obligation to provide and support. This duty also reflects the Latin stem contained in subsidiarity.
In terms of state organization, the principle of subsidiarity should be implemented in a graduated order of higher and subordinate regulatory powers (competencies), which not least include private autonomy . In this step-by-step structure of competencies, the higher-level authorities have to keep the overall system functional by determining the scope of action of the subordinate actors and directing their actions, i.e. taking on "control of self-regulation". In this way, the independent action of the subordinate institutions and persons should be enabled, their initiative should be aroused, and the overall system should be kept capable of learning and overall "humanized".
The principle of subsidiarity with regard to legislative competence finds the most important expression ; in Germany for example in the basic competence of the states according to GG and local self-administration according to (2) GG on the one hand and the priority of application under Art. 31 GG (“ Federal law breaks state law ”) on the other.
For example, measures that affect a municipality (or a member state ) and can be managed independently by it should also be decided in the municipality itself. However, subordinate levels can also be B. religious communities , professional associations and lastly the individual. In this way, the principle of subsidiarity guarantees in particular the freedom that is required for a pluralistically oriented society.
Horizontal and vertical subsidiarity
In some cases, a distinction is made between horizontal and vertical subsidiarity: while vertical subsidiarity determines the subordination of the higher level to subdivisions, horizontal subsidiarity generally limits the scope of the public sector to a specific core of public goods.
History of ideas background
The formulation of the principle of subsidiarity goes back to the time immediately after the Reformation and has its origin in the Calvinist conception of the community. The synod in Emden ( Ostfriesland , 1571), which had to decide on the emerging new canon law , decided in contrast to the previously applicable central Catholic church doctrine that decisions should be made at the lowest possible level:
"Provincial and general synods should not be submitted to questions that have been dealt with earlier and decided jointly [...] and only that which could not be decided in the meetings of the consistories and the classical assemblies or what all the parishes of the province could not be written down concerns. "
This concept of subsidiarity was formulated in 1603 by Johannes Althusius in his main work Politica Methodice digesta , a systematic state doctrine that was shaped by political Calvinism. Taking up the biblical “covenant idea”, he understood society as graduated and interconnected social groups that have to fulfill their own tasks and goals, but which in certain areas are dependent on the support (subsidium) of the superordinate group. The support should only start where inadequacies are revealed, but should never completely take over the task of the other group. As city syndic (1604–1637 / 38) in the Calvinist Emden, Althusius was able to test his ideas of a far-reaching autonomy of the estates-constituted representatives as a representation of the citizens vis-à-vis the Lutheran East Frisian sovereign in the communal practice of the trading and port city.
Based on Aristotle and further developed by Thomas Aquinas , the principle of subsidiarity flowed into Catholic social teaching in 1891 through the encyclical "Rerum Novarum" and marked a decisive turning point in Catholic state theory. This definitely gave up the papal centralistic view of the state, which was controlled by a monarch with divine rights.
A classic formula of the subsidiarity principle can be found in the social encyclical Quadragesimo anno by Pope Pius XI. "On the social order" of May 15, 1931. With this, Pope Pius XI concluded. to the said circular of Leo XIII. Rerum novarum (1891) and, under the impression of increasing centralistic and totalitarian state tendencies, designed an approach to society that made the individual within the scope of his or her individual performance the yardstick and limitation of supra-individual action.
In Germany, Jesuit Father Oswald von Nell-Breuning in particular was seen as a representative of the principle of subsidiarity.
According to this “most important social-philosophical principle”, “just as what the individual can achieve on his own initiative and with his own strength cannot be withdrawn from him and assigned to social activity, what the smaller ones are against is against justice and subordinate communities and can lead to the good end, for the wider and superior community to claim; at the same time it is extremely disadvantageous and confuses the whole social order. Any social activity is of course subsidiary in nature and concept; it should support the members of the social body, but must never smash or absorb them. "
Origins of the understanding of subsidiarity in the 19th century
Approaches to thinking about subsidiarity can be found in liberalism and Catholic social teaching of the 19th century. According to the liberal principle of subsidiarity, secure and shape should primarily of his own existence the individual person himself and his initiative be left. State action should be limited to exceptional situations and only occur if the person (s) concerned are unable to use their own resources. In this social conception, the responsibility of the state is viewed as subordinate, subsidiary. This understanding also applies to the sub-area of dealing with social problems. The activities of private organizations should have priority over state activities.
The roots of the Catholic subsidiarity principle lie in Catholic social thinking in the second half of the 19th century, especially under the influence of Wilhelm Emmanuel von Ketteler and Franz Wärme . The revolutionary years 1848/49 mark the beginning of the formation of a party for Catholicism in Germany and the beginning of modern Catholic social teaching. Above all with von Ketteler, "a development in Catholic social thinking began away from fundamentalist anti-capitalism towards pragmatic reform concepts."
Ketteler's basic ideas are on the one hand the improvement of the living conditions of the workers through self-help and self-organization and on the other hand the need for state protection and help as a prerequisite for this self-help. In his concept "an interplay of cooperative self-help and state support, what is later formulated as subsidiarity in Catholic social teaching takes shape for the first time." (Ibid.) This early concept of Catholic subsidiarity thinking aims at a solution to the "workers question" through integration in the developing bourgeois industrial society. Subsidiarity can be seen here as the answer to the “social question”. (ibid.)
This understanding of subsidiarity received a first further development through the changed political background after the establishment of the German Empire in 1871. Despite a certain minority position in the Reich, a secular and liberal zeitgeist and Bismarck's anti-Catholic politics (" Kulturkampf "), the Catholic faith found growing influence in the Population. The number of Catholic associations founded increased. However, these were still of local and at best regional importance and together with other associations formed the “non-state” association milieu typical of the empire, which was characterized by a large number of charitable associations, foundations and social institutions with a denominational and non-denominational orientation. This time, however, represents the "practical-political experience background for the conceptual formulation of subsidiarity as a central principle of Catholic social teaching".
Until the 1890s, the idea of subsidiarity was given considerable precision. In the papal circular "Rerum novarum" on the social question of 1891, it was formulated more comprehensively for the first time and made an official doctrine. Pope Leo XIII. speaks in favor of the workers' freedom of association and their right to self-help, at the same time emphasizes the importance of state industrial safety, but also points out the barriers to state social organization. The idea of the subsidiarity of state social policy and social action, the primacy of small communities over large organizations , already took on a precise form here.
The emergence and operation of new, centralized, Catholic mass organizations (including the “Caritas Association for Catholic Germany”) already signaled a shift in the meaning of subsidiarity. While von Ketteler's principle of subsidiarity still related to the problems of the new working class, subsidiarity developed into a cross-class principle of social organization in the 1890s. It now contained a “structural principle for the organization of popular life beyond the class struggle” and thus represented a “model for the organization of the entire people”.
The approach, which initially starts from the relationship between the individual and society, can thus be generalized and applied to the relationship between different social and state levels: "In this way, it violates justice, what the smaller and subordinate communities can achieve, for the wider and higher community to claim. "
Subsidiarity in today's law
Subsidiarity in constitutional law
In the Federal Republic of Germany, the principle of subsidiarity underlies the federalism of the federal states . The constitutionally enshrined collective bargaining autonomy goes back to him , as well as the strength of the associations in the health system.
The following applies to Switzerland: the citizens , as sovereigns, empower the community that they elect and that works closely with them - the principles: direct democracy , autonomy , voluntariness. Only those tasks that cannot be carried out at community level are assigned to the state (the canton ). In Switzerland this is known primarily under the term federalism . The cantons merge to form the federal government, to which further tasks are assigned. Citizens have the same rights at all levels - the referendum - and right of initiative . As a rule, Swiss citizens can vote on various templates four times a year.
Subsidiarity in the law of the European Union
Foundation of the subsidiarity principle through the European treaties
“In the areas that do not fall within its exclusive competence, the Community will only act in accordance with the principle of subsidiarity if and to the extent that the objectives of the measures under consideration cannot be sufficiently achieved at Member State level and are therefore better because of their scope or effects can be achieved at community level. "
The Treaty of Rome brought in its preamble expressed that decisions should be made possible to the citizen in accordance with the principle of subsidiarity, and certain in para. 2 that the Union's objectives are to be achieved while respecting the subsidiarity principle.
With the Maastricht Treaty to the EU of 1992, the European Commission and the Council of Ministers were given three rules of conduct that must be observed in their work:
- Strengthening democratic control in the EU
- Transparency in Community legislation
- Respect for the principle of subsidiarity.
The principle of subsidiarity was laid down in the preamble and in(3) of the Treaty on European Union (TEU). It was already in the bud in the ECSC Treaty of 1951 (Art. 5 Para. 1, 2), implicitly in the EEC Treaty of Rome (1957) and expressly in the provisions of the Single European Act (EEA) on the environment (Art. 130r) included.
The Single European Act introduced the principle of subsidiarity for the environmental policy of the then European Community. With the Maastricht Treaty, the principle of subsidiarity is anchored in the general part of the founding treaties of the European Community and Union, cf.para. 2 EGV. The details are regulated in the protocol on the application of the principles of subsidiarity and proportionality .
“In accordance with the principle of subsidiarity, the Union will only act in areas that do not fall within its exclusive competence if and to the extent that the objectives of the measures under consideration cannot be sufficiently achieved, either at the central, regional or local level, but rather because of them Scope or their effects can be better achieved at Union level. "
Control of the subsidiarity principle by the national parliaments and courts
According to the Lisbon Treaty , the national parliaments or their respective chambers, such as the Bundestag and Bundesrat, have the right to monitor compliance with the principle of subsidiarity (cf. lit. b)). The national parliaments have at their disposal preventive control by means of subsidiarity complaints and subsidiarity complaints .
The principle of subsidiarity was anchored in Union law primarily at Germany's instigation. It also plays a role in the relationship between the Federal Constitutional Court and the European Court of Justice (see Solange judgments ). The Federal Constitutional Court furthermore reserves the right to consider legal acts of the European institutions and bodies that are not within the limits of the sovereign rights granted to them to be non-binding in German jurisdiction.
The subsidiarity complaint concerns the possibility of preventive control at the beginning of the legislative process . According to lit. a) TEU and Article 4 of the " Protocol on the Application of the Principles of Subsidiarity and Proportionality " all drafts of EU legislative acts are forwarded by the Commission in advance . This right to information is a natural prerequisite for submitting a subsidiarity complaint. The deadline for this was six weeks after the submission of a draft law in the subsidiarity protocol in the draft constitution , but was extended to eight weeks in the Lisbon Treaty.
During this time, the repugnant national parliamentary chamber has to submit its reasoned opinion. The short deadline poses organizational challenges for the parliaments, so legislative procedures must be followed even before the draft is submitted, and it is necessary to concentrate on particularly controversial projects.
Each member state is assigned two votes, which, if there are two chambers (as in Germany with the Bundestag and Bundesrat ), are distributed between the two chambers. The legal consequences of a subsidiarity complaint are based on the number of votes cast:
- If the opinions submitted do not reach a quorum , they are only "to be taken into account" by the European Parliament , the Council and the Commission according to the Subsidiarity Protocol (Art. 7 (1)).
- If the votes reach a third of the total number of votes allocated to the national parliaments (or a quarter if the project relates to the area of freedom, security and justice ), the draft must be approved by the Subsidiarity Protocol in accordance with Article 7 (2) of the Subsidiarity Protocol Commission and, if necessary, adjusted (so-called " yellow card ").
- If a quorum of 50% of the votes is achieved (“ orange ” or “ yellow-red card ”) and the ordinary legislative procedure is prescribed for the legal act, the Commission must also issue a reasoned opinion if it nevertheless wants to adhere to its draft which are then submitted to the European Parliament and the Council for decision together with the opinions of the national parliaments. If a majority of 55% of the votes in the Council or the European Parliament is of the opinion that the principle of subsidiarity has been violated, the draft will not be dealt with any further (cf. Art. 7, Paragraph 3 of the Subsidiarity Protocol). In practice, however, the Commission has almost always withdrawn the draft law on its own when a “yellow card” was initiated.
- A so-called “ red card ” was also proposed, but not yet implemented, with which the national parliaments could finally and independently stop an EU law without the EU institutions being able to overrule it.
This subsidiarity check can lead to a proposal being taken off the agenda of the European legislator by an objection by the national parliaments.
On May 22, 2012, the national parliaments were successful for the first time with a subsidiarity complaint. An overview of the opinions of the national parliaments and chambers on the respective legislative procedures is available online at the InterParliamentary EU information eXchange .
If the legislative process has already been completed, the early warning system of the above Subsidiarity complaint supplemented by the ex-post subsidiarity complaint procedure. This is set out in Art. 8 Para. 1 of the Subsidiarity Protocol as a subcategory of the action for annulment . The Member State then sends such a complaint to the European Court of Justice on behalf of its national parliament . A previous subsidiarity complaint is not required before the relevant action is taken. While the subsidiarity complaint thus represents a political procedure, the end of which is the decision of the European legislature, the subsidiarity complaint is a judicial review of norms in which the European Court of Justice examines the actual, legal compatibility of a legal act with the EU treaties.
Application in European legal practice
The application of the principle of subsidiarity in the institutional area is based on a simple idea: a state or a federation of states only has those powers that individuals, families, companies and local or regional authorities cannot exercise alone without harming the general interest.
This principle is intended to ensure that decisions are taken as closely as possible to the citizen and that the measures to be decided by the higher political levels are limited to the minimum. This political principle initially asserted itself as a legal principle in the relations of some member states with their regions, although the characteristics differ depending on the constitutional tradition; in Germany the principle is very pronounced.
Applied to the EU, this principle means that it should only take on those tasks that the states cannot perform satisfactorily on their own at their various decision-making levels. The transfer of responsibilities must always take place while preserving the national identity and the competences of the regions. For their part, according to EEC Treaty, the Member States must orient their actions towards the objectives of the Community.the
At the European level, the principle of subsidiarity is an inconsistent concept. Subsidiarity is not intended to paralyze Community action, but rather to encourage it when circumstances so require. Conversely, the EU should restrict or even abandon its own measures if their continuation at Community level proves to be no longer justified.
The principle of subsidiarity has been applied for over forty years. It corresponds to two different requirements: the need for Community action and the proportionality of the means of action in relation to the objectives. The major initiatives of the Commission have therefore always been based on a justification for the need to act. The projects which the Commission set in motion - in particular the common policies provided for in the Treaty of Rome, then the implementation of an area without frontiers and the accompanying policies provided for in the Single Act - were fully justified with regard to the requirements of European integration. Things that have to be regulated in the same way for everyone, in fulfillment of the goals of the European treaties, largely regulated centrally. This z. B. Prevents distortions of competition or regional advantages and disadvantages for individual participants. The "how" of the execution and control on site, however, is regulated on a subsidiary basis, in Germany often even by the federal states.
Accusation of disregarding the subsidiarity principle in European legal practice
The German constitutional lawyer Rupert Scholz accused the European Union, especially its commission , of increasingly disempowering the national parliaments of the EU states by disregarding the subsidiarity principle , using the catchphrase expertocracy . To solve the problem, he proposes to redesign the right to vote in the European Parliament according to the principle of equal electoral votes (one man, one vote), thereby strengthening its democratic legitimacy and towards the European Commission, which so far still has the right of initiative in the legislature of the European Union holds to confer the legislative primacy. Furthermore, the alleged tendency of the members of the Commission to "expand their powers" should also be taken away by the fact that their election will in future be made by the national parliaments.
The historian Peter Jósika, in turn, takes the view that the principle of subsidiarity is primarily disregarded by the European nation states themselves. He particularly criticizes the centralism of the unitary states within the EU, which restrict or prohibit self-determination at local and regional level.
Subsidiarity in procedural law
In procedural terms, there can be a priority relationship between different procedural acts in the form that the subsidiary procedural act is subordinate and its assertion is inadmissible until the priority has been dealt with. One example is above all the subsidiarity of the constitutional complaint in relation to legal remedies. The declaratory action can be subsidiary to the performance action.
According to the criminal law doctrine of competition , when several criminal offenses are committed, the application of one criminal norm can take second place to another.
Subsidiarity in German criminal law
In German criminal law, subsidiarity means that a criminal offense does not claim validity in the event that another offense is also fulfilled. In this case, the offender is not punished for two different offenses , but only for the non-subsidiary offense.
There is both formal and material subsidiarity. Formal subsidiarity exists if an offense expressly states that the perpetrator will not be punished for this offense if another offense intervenes (for example embezzlement in accordance with (1) of the German Criminal Code (StGB): "if the offense is not specified in other provisions is threatened with a heavier penalty ”). It is only partly disputed whether the express subsidiarity only applies to offenses related to intellectual property rights in the event of embezzlement (e.g. robbery and theft ), or whether it applies to all offenses. In such cases, the case law in Germany draws the conclusion from the requirement of certainty under (2) of the Basic Law that a restriction of the subsidiarity clause should be expressly listed in the law, i.e. that a different view is constitutionally inadmissible.
The material subsidiarity other hand, is not regulated by law and states that a less intense legal interest attack recedes behind the more intense. In this way , anyone who actually killed his victim is not punished for attempted manslaughter , even though the requirements are formally met. In addition, an instigator promotes the act, as does an accomplice , but neither are additionally punished for aiding and abetting.
Subsidiarity in German social law
Development in the Weimar Republic
The principle of subsidiarity already played an important role in the discussion about the design of the Weimar welfare state . It can be described as a “regulator for the relationship between the state and charities”. This subsidiarity principle, which is suitable for a wide range of interpretations, underwent a characteristically shortened interpretation during its “ministerial implementation during the Weimar period” and thus a change in meaning. Looking at the formulation in "Quadragesimo anno", the principle relates to the protection of the smaller, subordinate communities. Small communal social organizations should therefore be protected from access by overpowering bureaucratic statehood. Only that support is conducive and helpful, which enables the self-development of the individual person and, if necessary, supports it. This should also apply to the relationship between different social structures. The larger unit is obliged to assist the smaller unit, but is not allowed to relieve it of any tasks that it could do independently.
In the Weimar Republic , this principle was converted into a "bureaucratic organizational principle of the welfare state", primarily by denominational representatives and the Reich Ministry of Labor. The main opponents in the dispute at the time were liberal and denominational groups against sections of social democracy. The private sponsors saw a threat to their existence, especially in the efforts to localize and nationalize, represented by parts of the SPD , but above all by the USPD and (V) KPD . The social democracy wanted to nationalize and de-denominate welfare and to introduce a legal right to welfare services. A "defense cartel, both denominational and non-denominational welfare associations", formed against these efforts. In this dispute about the definition of the division of tasks between public and association bodies responsible for welfare and the role and status of the free welfare associations, the "principle of subsidiarity" is now used as a "self-description and fighting formula" for the independent associations. They demand “the greatest possible independence from state supervision and regulation as well as an upgrading and stabilization of their welfare-political importance”.
These demands were supported by the Reich Labor Ministry (RAM), under the direction of the Reich Labor Minister Heinrich Brauns , who belongs to the Catholic Center Party . This ministry pursued a “targeted policy of promoting and upgrading the free, especially denominational, charitable organizations at the expense of the municipalities, which they understood as the implementation of the Catholic principle of subsidiarity”.
The RAM operated a targeted subsidization of the free associations and involved their central associations in the development and formulation of the policy of the RAM. They advocated the incorporation of the principle of subsidiarity in the relevant legislative works , the Reich Youth Welfare Act (passed in 1922) and the Reich Welfare Duty Ordinance (passed 1924) of the Weimar Republic:
"Insofar as the child's right to be brought up by the family is not met, public welfare comes into play irrespective of the participation in voluntary work", "The youth welfare office also has the task of stimulating, promoting and, if necessary, creating facilities and events [...]"
“The youth welfare office has to support, encourage and encourage voluntary work to promote youth welfare while maintaining its independence and its statutory character, in order to work with it for the purpose of a planned interlocking of all organs and institutions of public and private youth welfare and the youth movement. "
“The welfare offices should be the focus of public welfare work for their area and at the same time the link between public and free welfare work; they should work towards the fact that public and free welfare work complement each other appropriately and work together in forms that do justice to the independence of both. "
The Reichsfürsorgepflichtverordnung (RFV) of 1924 forms the conclusion of the integration of free welfare into state welfare policy. The private welfare associations are explicitly mentioned here and included in the performance of public tasks. In the modification of the Reich Youth Welfare Act of 1926, the seven "Reich top-level associations of free welfare work" received state approvals by naming them in the legal text. The specifically German system of "dual welfare" was manifested in these laws in the Weimar Republic. In its basic features, the funding obligation and overall responsibility of public bodies, with a legally stipulated guarantee of existence and independence of the independent bodies, this system still exists today. With this development, the subsidiarity concept was included in the Weimar welfare legislation. However, the modified interpretation of the principle of subsidiarity must be observed here. Because the subsidiarity policy of the RAM aimed primarily at "the state promotion of large private welfare organizations, [...] the state-protected establishment and expansion of private welfare bureaucracies as a counterweight to the feared socialization laws of local social policy". Thus, the Catholic principle of subsidiarity was transformed into a "bureaucratic organizational principle of the welfare state" and served to legitimize the priority of private welfare associations over public welfare. The conflict between the state and the free associations was not completely resolved by the subsidiarity regulations made in the welfare laws of the Weimar Republic, but "merely converted into a compromise formula".
Arrangement in the Federal Republic of Germany
After the establishment of the Federal Republic of Germany there was a so-called "subsidiarity dispute". E. Friesenhahn and Josef Isensee (principle of subsidiarity and constitutional law ) described the principle of subsidiarity as the main structure of German constitutional law . According to the principle, the state must also subsidize independent institutions that use their own resources to relieve the state of its obligations in such a way that they are able to achieve the standard in their institutions that the state applies to its own institutions in case of doubt would lay.
In the subsidiarity debates of the 1950s and 1960s, a broad spectrum of questions relating to the organization of welfare state security was addressed with regard to the fundamental tension between state provision and individual freedom and responsibility. In 1961 the CDU / CSU government passed the Federal Social Welfare Act (BSHG) and the Youth Welfare Act (JWG). In terms of content, these laws were largely undisputed with the opposition ; there was only dispute about the complex of norms that affected the relationship between public and free welfare. Both laws contained provisions that not only standardize the public's duty to support free welfare, but also subject public welfare to an extensive "functional block" in favor of the free associations with regard to the creation of new facilities. The functional lock meant that public welfare services may not intervene even where private institutions can still be created:
“The social assistance providers should work towards ensuring that adequate facilities are available for granting them. They should not create new facilities of their own as long as the organizations of voluntary welfare listed in Section 10 (2) exist, can be expanded or created. "
"As far as suitable facilities and events of the free youth welfare are available, expanded or created, the youth welfare office should refrain from own facilities and events."
These formulations sparked a conflict between the government ( CDU / CSU ) and the opposition (SPD / FDP ). The latter saw in these regulations an inadmissible narrowing of the self-administration scope of the municipal bodies. Four cities and four federal states therefore lodged constitutional complaints against these regulations in a total of ten proceedings. The power constellation at this time bears a certain resemblance to the Weimar Republic, again a Christian Democratic government faced a large number of countries and cities ruled by social democrats. The free, above all denominational umbrella organizations wanted to consolidate their influence with the help of the "well-meaning" federal government and to consolidate their socio-political position in this favorable constellation of power, while the municipalities saw this as a new boost in the restriction of local self-administration and financial sovereignty. The denominational welfare associations in particular wanted to consolidate their dominant position, especially in the areas of institutional welfare and the semi-open youth welfare institutions. In the controversy at that time, subsidiarity was used less as a legitimation formula for the independence of small and pluralistic units, but rather in the "sense of an association-centered understanding of subsidiarity as an instrument to enforce the existing interests of the welfare associations". The "subsidiarity dispute of the 1960s" can therefore be viewed as a "neo-corporatism dispute". The principle in this interpretation protected the private association power from the interventions of public violence. Subsidiarity thus served as legitimation for the neo-corporatist organization of welfare and social policy, as it did in the developments of the Weimar period. In the “subsequent development phase, the factual importance of the principle of subsidiarity for regulating the relationship between independent and public sponsors gradually decreased”.
The reduction in importance of the principle of subsidiarity can already be seen in the judgment of the Federal Constitutional Court of 1967. The court confirmed the constitutional conformity of the incriminated formulations, but made no reference to the normative content of the principle of subsidiarity in the reasoning of the judgment, even the term itself is not mentioned. The statements were based "on a" secularized "understanding of subsidiarity, according to which the division of labor between public bodies and charities is necessary for reasons of expediency and economic efficiency". Despite the constitutionality of the “functional block”, the relative share of public institutions and services increased steadily in the following years. The independent bodies were increasingly included in the planning activities of the public bodies and the freedom of action of the free bodies was actually restricted by laws with building law, personnel, administrative and conceptual requirements. The relationship between those responsible for welfare can therefore “no longer be described as a simple priority-subordinate relationship. Rather, it is a complex cooperation that is held together by mutual dependencies and interdependencies. ”This system of reciprocal exchange processes between the federal state and the voluntary welfare organization is called“ corporatism ”. This is characterized by the fact that the representatives of the voluntary welfare service receive privileged access to the procedures and processes of the formulation of social policy programs and measures, are privileged through social law regulations, are given preferential participation in the implementation of social policy programs and measures and are supported by public grants and funding programs become. In return, the welfare state instrumentalizes the infrastructural, personal and socio-cultural resources and the area-specific expertise of the welfare associations for the realization of socio-political goals and programs. The conditional priority of a limited number of state-licensed umbrella organizations was shaken by various developments in the course of the 1970s. The emerging self-help movement and the gradual melting of the social and cultural anchoring of the welfare associations call into question the special role of the welfare associations. Deconfessionalization, bureaucratisation and growth in size of the welfare organizations lead to a decline in acceptance among the population. The increasingly tight budget and the opening of the European internal market also have negative effects on the special status of the social welfare organization. The discussion about the relationship between the associations of independent and state welfare services has therefore "moved away from the classic subsidiarity issue and takes place under keywords such as neo-corporatism, third sector or intermediate organizations."
A “revival of the subsidiarity principle” in terms of content came about in the self-help discussion of the 1970s and 1980s (so-called “new subsidiarity policy”). As early as the 1970s, a scene of small, solidarity-based projects, initiatives and self-help groups in the social and youth sector developed and established as an alternative to the corporatist welfare cartel. These represent the interests of “third parties”, namely those who are not involved in the corporatist cartel, e.g. B. Citizens' initiatives and self-help groups of those affected. This debate is about the relationship between “small networks” and large political bureaucracies, that is, from self-organized initiatives to established welfare institutions. The idea of subsidiarity now serves as an argument for strengthening the position of these new forms and initiatives vis-à-vis the traditional large associations, as well as to legitimize their funding claims. The emergence and dissemination of self-organized initiatives and the associated new “strategy of self-help promotion” in ministries of social affairs and municipal social authorities exposed the established associations to increased legitimation pressure. With the term “new subsidiarity policy”, the public sought to directly promote local self-help groups and initiatives, thereby effectively calling into question the “monopoly of representation of the umbrella organizations of voluntary welfare”. The associations reacted to this development with a calculated “mix of inclusion and exclusion strategies”. While, on the one hand, the large ideological associations pursued a relatively restrictive policy of dealing with the new self-help scene, on the other hand, after an agreement between the representatives of the central welfare associations, the Paritätische Wohlfahrtsverband was tasked with seeking an open approach to these new initiatives and using them as a Umbrella organization to be available to promote and support.
In fact, a “pluralization of the carrier landscape” arose. The new associations, initiatives and projects in the youth and social sector are viewed as a “new supporting pillar” alongside the established public and association sponsors. The Child and Youth Welfare Act (KJHG), Art. 1 = SGB VIII, passed in 1990 also aims at a pluralistic sponsorship landscape. In contrast to the JWG, Book VIII of the Social Code does not define the providers and allows private-commercial institutions and individuals to provide services. In Book VIII of the Social Code, even non-profit and other organizations are equated:
"The youth welfare service is characterized by the variety of providers of different value orientations and the variety of content, methods and forms of work."
In SGB VIII, the understanding of subsidiarity was taken up as a "principle of helpful assistance". This understanding is expressed in the promotion and strengthening of forms of self-help (Paragraph 3 of Book VIII of the Social Code), and the preference for suitable measures that are more oriented towards the interests of those affected. Those affected should have an influence on the measures ( (4) SGB VIII) and their respective financial strength should be taken into account ( (5) SGB VIII):
"As far as suitable facilities, services and events are run by recognized organizations of the free youth welfare or can be created in time, the public youth welfare should refrain from its own measures."
"Public youth welfare is intended to promote free youth welfare in accordance with this book and thereby strengthen the various forms of self-help."
"With otherwise equally suitable measures, preference should be given to those that are more strongly oriented towards the interests of those affected and guarantee their influence on the design of the measures."
The discussion about a “new subsidiarity” could only superficially tie in with the classic meanings of subsidiarity in the sense of the original Catholic social teaching. The changed social conditions must be taken into account. The metaphor of the concentric circles of life can no longer be transferred to a modern, functionally differentiated form of society. Rather, what applies here is a picture of many mutually dependent and overlapping circles. Subsidiarity therefore no longer denotes the priority of smaller units, "but rather aims more generally at the development of reflexive control mechanisms that take into account the relative autonomy and the autonomy of the problem areas to be controlled as far as possible."
Subsidiarity has thus gone through another functional change. It developed into a “program formula for advanced social theory that describes the relationship between autonomous, self-referential subsystems” in a modern, differentiated society.
Subsidiarity in Catholic Social Doctrine
Social encyclical Quadragesimo anno
As shown, the Catholic subsidiarity thinking was already developed in the second half of the 19th century. However, it was not manifested until 1931 in the social encyclical Quadragesimo anno , written by Gustav Gundlach and Nell-Breuning , under Pope Pius XI. The name and the classic wording appeared for the first time:
“Just as what the individual can achieve as his own initiative and with his own strength, cannot be withdrawn from him and assigned to social activity, so it violates justice, what the smaller and subordinate communities can achieve and lead to a good end to claim for the wider and higher community; Any social activity is of course subsidiary in its nature and concept; it should support the members of the social body, but must never smash or absorb them. "
In its understanding of subsidiarity, Catholic social teaching is based on natural law arguments. The consequences of this notion are different from those of a liberal understanding of subsidiarity. The state also has the task of supporting the smaller and subordinate communities on the basis of arguments based on natural law.
For explanation, the picture of concentric circles or bowls is given here. This is based on the idea that society is organically composed of diverse communities that are embedded in one another like concentric circles or shells. The outer circle not only has to respect the priority of the inner circle, but also has to use its means to ensure that this inner concentric circle can develop its activity.
The Catholic understanding of subsidiarity therefore has institutional and financial implications, as it explicitly demands the formal priority and primary responsibility of non-governmental organizations and their material, especially financial support (priority-subordinate relationship).
By emphasizing the principle of subsidiarity, the Catholic Church wanted to set an example against the image of society in National Socialist and Communist states (see also the later encyclical Mit Brennender Sorge , 1937). The subsidiarity principle sets the personality principle against collective regimes and emphasizes individual responsibility towards the collective.
Catholic social teaching wanted to point the way between state dirigism and radical liberalism. Thus, Catholic associations and social institutions should also be protected against state access.
Oswald von Nell-Breuning , who was significantly involved in the creation of Quadragesimo anno, has also repeatedly pointed out that the smaller and subordinate communities have a right to help - especially from the state. Subsidiarity should not be misunderstood in the sense that society should only step in as a stopgap in exceptional cases, rather it is about the "helpful support" that society has to provide. The application of the principle of subsidiarity does not mean to wait and see what the smaller communities will be able to do by applying all their resources and using the last reserves, but rather that kind of help is to be given “that repairs people or that makes it easier for him to help himself or that makes his self-help more successful; [...] no matter how well-intentioned measures prevent people from helping themselves, prevent them from doing so or impair the success of their self-help or make them spoiled for them, are in truth no help, but the opposite of it, they harm people. "
Second Vatican Council and its context
In particular, the subsidiarity principle only appears in two Council texts. As a matter of fact, however, it is not only important in other council texts, but above all in the context of the Second Vatican Council , where it stands for encouragement to come of age and has thereby strengthened the particular churches.
The principle of subsidiarity is mentioned directly in the pastoral constitution ( Gaudium et Spes ). There it is emphasized that the economic conditions worldwide “taking into account the subsidiarity principle” and according to the norms of justice are to be arranged (Gs 86c). On the other hand, the declaration on Christian education points out that it is “in accordance with the principle of subsidiarity” that the state is responsible for founding schools and institutes (Ge 3); at the same time - "keeping the principle of subsidiarity in mind" - any kind of school monopoly must be excluded. (Ge 6).
Indirectly, the principle of subsidiarity comes into play particularly where small reform steps towards collegiality and decentralization are involved. The z. B. in the church constitution Lumen Gentium , in which the council indirectly recalls an essential intention of the principle of subsidiarity (cf. also the Apostolic Letter Evangelii gaudium ): "The bishops lead the particular churches assigned to them as representatives and ambassadors of Christ through advice, encouragement, Example, but also in authority and holy power, which they however only use to build up their flock in truth and holiness. "(Lg 27)
In Latin America, the impulses of the Second Vatican Council led to the development of a contextual theology that, in line with the subsidiarity principle, no longer wanted to adopt the theories of European theology. Rather, she made the practice of the base communities and the problems of the predominantly poor people of her continent the starting point of the theological discourse. The Latin American bishops adopted this liberation theology with their resolutions of Medellín (1968) and Puebla (1979).
But also particular European churches drew consequences with a subsidiary character from the council, such as B. in Germany the Würzburg Synod . In its fundamental resolution “Our Hope”, it called for “going from a protectionist church for the people to a living church for the people”.
The necessary connection between solidarity and subsidiarity is most evident in Christian social ethics in the social word published jointly in 1997 by the Council of the Evangelical Church in Germany and the German Bishops' Conference. The text “For a future in solidarity and justice” was developed in a consultation process that lasted over two years at the church's grassroots level. In accordance with the principle of subsidiarity, it is required that social structures must be designed in such a way that the individual and the smaller communities receive the help that enables them to act independently, self-help and for the common good (No. 120). On the one hand, the social word emphasizes the need for personal responsibility and speaks out against a welfare state “which, in a paternalistic way, relieves all citizens of the provision of life. […] On the other hand, it does not correspond to the meaning of the principle of subsidiarity if one understands it unilaterally as a restriction of state competence. If this happens, burdens are placed on the individual and the smaller communities, especially families, which considerably limit their life opportunities in comparison to other members of society. Especially the weaker need help to help themselves. Solidarity and subsidiarity therefore belong together and together form a pair of criteria for shaping society in terms of social justice. "(No. 121)
Encyclical Deus caritas est
Pope Benedict XVI briefly mentions the subsidiarity principle in his first encyclical Deus caritas est (2005). This should characterize the state's actions in the recognition and support of social initiatives, which bring spontaneity and closeness to people in need. Such initiatives - and not the all-regulating supply state - can give people the loving personal attention they need:
"We do not need the state that regulates and dominates everything, but the state that, in accordance with the principle of subsidiarity, generously recognizes and supports the initiatives that arise from the various social forces and combine spontaneity with closeness to those in need."
Apostolic Exhortation Evangelii gaudium
In his apostolic letter Evangelii gaudium published in 2013, Pope Francis regrets that - contrary to the mandate of the Second Vatican Council - there is still no statute for the Bishops' Conferences that understands them "as subjects with specific areas of competence, including a certain authentic teaching authority". The conclusions he draws from this are entirely in line with the subsidiarity principle, even if it is not expressly mentioned here.
“It is not appropriate for the Pope to replace the local bishops in assessing all the problem areas that arise in their areas. In this sense I feel the need to move forward in a healthy 'decentralization'. (Eg 16) "
Earlier popes recognized that the principle of subsidiarity, which is so important in Catholic social teaching, must consistently apply to the Church itself, even if they hardly drew any conclusions from it. So called z. B. already Pius XII. the subsidiarity definition “truly bright words!”, which apply to all levels of social life, and concludes: “They also apply to the life of the church regardless of its hierarchical structure”. Oswald von Nell-Breuning interpreted this in an article on “Subsidiarity in the Church” in such a way that “the principle of subsidiarity is not only compatible with the hierarchical structure of the Church, but belongs to this structure”.
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