Peer Zumbansen, ‘Happy Spells? Constructing and Deconstructing a Private Law Perspective on Subsidiarity’

The current interest among public international lawyers in the principle, concept and governance practice of ‘subsidiarity’ evokes century-old dreams of more efficient and grass-roots based, bottom-up (self-)regulation as a challenge to lagging or absent, inefficient or financially non-sustainable ‘top-down’ governance. The buzz is not altogether surprising in light of frustrating deadlocks in international negotiation and treaty drafting, especially in those areas which touch on some of the most vital concerns today such as intergenerational security, sustainable climate change governance or natural resource preservation.

Subsidiarity, however, the idea that the most adequate and efficient level of governance might be the lowest, where those allegedly most affected by the norms should be their authors, comes with considerable baggage. Most recently and, as it seems, lastingly, evoked, subsidiarity under the Washington Consensus became synonymous with ‘downloading’, ‘downsizing’, ‘off-shoring’ and ‘privatizing’. Again, no wonder that private lawyers have been quite adamant for years now about the ‘promise of contract’ and the celebrated self-reliance of autonomous actors to govern their own affairs. Self-reliance, after the welfare-state, and subsidiarity might turn out to be perhaps just another nice word for the same thing. When international lawyers, therefore, resort to this principle, they should know where they are getting their fix. Private law theorists have – over decades of battling government ‘intervention’ and judicial progressive ‘activism’ – been rehearsing their moves towards a more uninhibited sphere of market-driven-governance [MDG] (think of the Millennium Development Goals – pun intended), and are standing ready to spread the gospel of bottom- up, autonomous self-regulation with little regard to those interests which have always been among the most vulnerable during major governance shifts. The paper critically reviews the different ways in which international lawyers’ affliction with subsidiarity might turn into eating from a poisonous tree. The largely private regulatory aftermath of the 2013 Rana Plaza tragedy serves as a case study to further illustrate these concerns.

Zumbansen, Peer C, Happy Spells? Constructing and Deconstructing a Private Law Perspective on Subsidiarity (July 8, 2015). Law and Contemporary Problems, 2015, forthcoming.

First posted 2015-07-13 06:36:39

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