5.3.2 The Subsidiarity Within National Law
The subsidiarity within national law allows for federal law to have supremacy over regional or State variations, and delegated powers.
The high-level subsidiarity in Britain is explained in the Introduction to devolution in the United Kingdom, with powers devolved to its constituent nations. Many variations are possible within different countries.
There are hierarchies of control for each of the aspects of the legal system within a country:
● A legislature can form national laws, but regional legislatures can also exist.
● Some legal powers can be delegated to other organisations.
● Higher courts can have jurisdiction over lower-level courts.
● Law enforcement powers, for example the police, are managed hierarchically with some form of political control such as a Minister at the top. An example of how this might be arranged in detail was given at the start of this book (2.8.5).
● The penal system also has political control at the top.
Delegated powers must be duly authorised. The individual agencies each need to be told what powers they possess, to impose and enforce rules for public behaviour, and what rules they themselves must comply with. The way in which they exercise their powers is subject to review by the courts, which provide a mechanism for appeal against any breach of permitted procedure. Irving Stevens, in chapter 14 of Constitutional & Administrative Law, described this form of delegated power as “Administrative Law”, and it can be used to delegate powers to local authorities, public services, civil society and even to private companies. It can include some economic regulations.
Philip Hamburger, in his book, Is Administrative Law Unlawful?, claimed that “the executive branch has increasingly come to control Americans through its own administrative rules and adjudication, thus raising disturbing questions about the effect of this sort of state power on American government and society”. He was arguing that all laws ought to be approved by legislatures, rather than allowing powers to be delegated, but this claim is questionable if there is always a right to appeal to the courts.
The subsidiarity within national law allows flexibility to reflect different local requirements. In America, State law can differ from Federal law because the States have their own legislatures. Regional differences can emerge anyway, in any country, even with identical legislation, through different histories of judgements and sentencing – though the appeals process can prevent wide variations, as cases are escalated up towards a Supreme Court or its equivalent.
If there are significant cultural differences between the regions of a country, there may be some benefit in permitting variations – to allow a strengthening of the sense of cultural autonomy and thereby increasing the acceptability of governance for the people involved. Scotland, whose separate legal system within the United Kingdom predates its union with England in 1707, is an example of a divergence which has been retained. In other situations, where a country is in the process of dividing into fragments, a divergence in legal practice would gradually emerge; divergent legislation would become possible as the separation became formalised.
This page is intended to form part of Edition 4 of the Patterns of Power series of books. An archived copy of it is held at https://www.patternsofpower.org/edition04/532a.htm.