Law And Solidarity: Reflections On August 1914

Simon Deakin

On the occasion of the centenary of the outbreak of the war in Europe, it is my great privilege to give this address to the graduating Masters class of 2014, and to continue the historic ties between Cambridge and Louvain. A century ago, our two universities stood in solidarity against the common threat of war and disorder. In conditions of extreme adversity, ties were formed between us which endure today. A shared history of support for independent thought and scientific progress continues to unite us.

In August 1914, many in Europe welcomed a war which they thought would have a cleansing effect on a corrupt and failing society. The conflict had many proximate causes, but deep down was powered by a prevailing idea: that the strong will, and should, overcome the weak. The notion of the ‘survival of the fittest’, when applied to whole societies and nations, was a perversion of the scientific thought of the time; but its link, however tenuous, to theories of evolution, helped to make it conventional wisdom among political and military elites.

The war resulted, not in a new social order, but in unprecedented devastation. The burning of the great library of Louvain was simply a harbinger of the greater damage that would be done to European society. In 1919, at the otherwise ill-fated Versailles conference, the attempt began to construct institutions of cooperation and mutual aid within and between nations. The International Labour Organization was founded on the principle that the existence of poverty anywhere was a threat to peace everywhere. After 1945, following the cataclysm of a second global war originating in Europe, the search for an enduring institutional solution to the threat of social disorder was resumed. Among other things it led to the unique form of transnational cooperation that we now know as the European Union.

The idea of solidarity did not begin with the invention of the ILO and EU. Our legal training tells us that in its origin it is a juridical idea. In private law, it denotes shared responsibility for a harm jointly caused. The joint and several liability of tortfeasors for damage to persons and property, or liability in solidum, is the simplest and oldest expression of this idea.

This observation on the origin of solidarity reminds us that our systems of private law describe a society of interdependent individuals and associations. Private law does not confine itself to regulating the affairs of atomised individuals. The autonomy and freedom of action we enjoy as individuals is the result of institutions which underpin a networked social order.

In social insurance systems of the kind which developed in European societies in the middle decades of the last century, there is a slightly different meaning to solidarity. Both those creating, and those exposed to the risk, participate in schemes for mutual aid. The avatars of labour and capital, along with the state, participate jointly in financing systems of mutual assurance which alleviate the risks of a market society: loss of work and income through industrial injury, sickness, unemployment and old age. These schemes are characterised by the principle of progressivity: the wealthy, or perhaps the simply fortunate, transfer part of their advantage to the poor and unlucky. This advanced form of solidarity is a recognition of our irreducible interdependence as participants in a market order which depends for its progress on the capacity of its institutions to manage innovation and risk.

World War One started 100 years ago in 1914. (photo: CC BY 2.0 State Library of South Australia)

Today, the idea of social Darwinism is making a comeback. It no longer takes the form, as it did a century ago, of the assumed supremacy of certain races and nations over others. Instead it is associated with a claim to moral superiority on the part of the wealthy and powerful within every society. Those with wealth and power see their position as deserved. They have succeeded in the game of life where others have failed. Poverty and powerlessness, conversely, are seen as the just outcomes, and in a real sense the choices, of those who experience them.

The idea of solidarity, by contrast, is today devalued and misunderstood. In some quarters, mutual assistance is seen as a sign of moral weakness – as creating, literally, a ‘moral hazard’ which enables the poor and powerless to exploit the risk. The idea that all in society, including the wealthiest, should contribute to common schemes of mutual assistance, is being eroded away. A rhetoric of choice is replacing that of responsibility. So just as the poor are seen as choosing their poverty, so the rich are increasingly encouraged to choose how and where they should be taxed. We are in danger of crecreating an intellectual climate like that of 1914: one in which it would all be too easy for violence and disorder to be justified on the grounds of their ‘cleansing’ effects.

Our training as lawyers and the professional ethics we are bound to observe as practitioners and teachers of law places us in a unique position in the debates to come. We cannot afford to subscribe to an economised conception of law which equates self-interest with the common good of society. We should be receptive to insights of the social and natural sciences, but should not lose sight of the methods and values of our discipline and practice. At the core of the European legal tradition which we have inherited is the principle of shared access by all citizens and voluntary associations to the protection conferred by the state through the rule of law. This must not become the preserve of a few in our societies.

Former students of the Université Catholique de Louvain, you receive today, with your degrees, your part of this heritage: you are part of the continuing struggle for the rule of law. You must be the fomenters of innovation, the creators of new solidarities.

This column is the text of an address given to the graduating Masters class of the Université Catholique de Louvain, Louvain-la-Neuve, 5 September 2014. See http://www.uclouvain.be/372354.html