Constitutionalism and Social Solidarity: A Theoretical and Comparative Analysis

Abstract

In the face of the threats posed by the COVID-19 pandemic, Solidarity has become the term of the hour. The World Health Organization organized a “solidarity series of events”, under the hashtag “together at home”, and chose the title “Solidarity” for the ambitious global initiative to find a treatment to the virus, establishing a “Solidarity” response fund. Within countries, solidarity was raised as a value requiring the imposition of various social distancing measures and limitations, needed, it was argued, in order to protect both society as a whole, as well as individuals who were especially vulnerable to the virus. The different approaches taken by countries in responding to the COVID-19 crisis can, in part, be explained by the different social perceptions regarding the importance of social solidarity and the duties that stem from it. The notion of solidarity, explored below, underlies the web of mutual commitments among members of a community, and, in the case of states, among members of the political community. This article examines the role solidarity can play when recognized as a constitutional value. Narratives of solidarity are prevalent in constitutions world-wide, both implicitly and explicitly. Despite this prevalence, constitutional scholarship has payed relatively little attention to the notion of solidarity. The article aims to take a step in filling this gap. It calls for recognition and discussion of the significance, potential and perils of recognizing solidarity as a constitutional value and of applying it in constitutional adjudication. The article argues that despite the liberal aversion of the notion of solidarity, which is understandable in light of potential abuses of the concept to justify limitations of individual freedom, solidarity is a precondition for the existence of just societies and for distributive justice, as well as for ensuring that human rights are equally and inclusively realized.The article argues that the relationship between collective identity and solidarity is complex, that solidarity is a multi-layered phenomenon, and that these complexities can and should be reflected in the constitutional manifestation of solidarity. Constitutions do and should refer to more than one layer of solidarity, and courts can and should play a part in instilling substance in these layers. Where solidarity is recognizing as a value, it can serve to examine the effect of laws and policies on under-privileged members of society, and as a source for deriving duties towards them. Finally, the article argues that although constitutional solidarity may intuitively be expected to endorse only intra-state solidarity, that is, solidarity among members of the political community, constitutions can and do endorse notions of transnational solidarity. The article argues that constitutionalism can thus be an important source of “bottom-up” transnational and global solidarity.